Abhay M. Naik, J.

( 1. ) This is plaintiffs appeal against judgment and decree passed by the Courts below, denying thereby decree for specific performance of contract.

( 2. ) Short facts involved herein are that the plaintiff/appellants instituted a suit for specific performance of agreement to purchase agricultural land comprised in survey No. 145 in area 17 bigha 9 biswa, situated at Village Kanjwaha. Tahsil Khaniyadhana, District Shivpuri with allegations that the suit land belonged to Dhansingha (defendant No.2), who was Bhumiswami and occupant of it. He agreed to sell it to the plaintiff for a consideration of Rs.8500/-. He received entire consideration on 07-06-1984 and delivered possession of the suit land on the same day. He further executed an agreement of sale on the same day. The suit land was inherited by defendant No.2 from Gajua, whose name was recorded as Bhumiswami. After the death of Gajua, the suit land was inherited by defendant No.2 but his name was not entered in the record of rights in place of Gajua, therefore, it was agreed that registered sale deed would be executed by defendant No.2 after getting his name mutated in the record of rights in place of Gajua. Later on, defendant No.2 despite Mutation in his favour did not execute registered sale deed in favour of plaintiff and, instead, executed a registered sale deed in favour of defendant No.l (Pyarelal) on 11-12-1987 despite having already contracted with the plaintiff, hence, the alleged sale deed dated 11-12-1987 is incompetent, void and ineffective vis-a-vis plaintiffs interest in the suit land. The alleged sale deed dated 11-12-1987 is fictitious and without consideration. Plaintiff has been ready and willing to get the registered sale deed executed in his favour in accordance with the above mentioned agreement. Plaintiff issued the notice, requiring defendants No.1 and 2 to execute the registered sale deed on 20-04-1988. They did not turn up on the said date to execute the registered sale deed in favour of plaintiff. It is further pleaded that the plaintiff onwards 07-06- 1984 constructed a well in the suit land by spending Rs.2,000/- and has been cultivating it since then. With the aforesaid allegations he sought a decree for specific performance in his favour and prayed that defendants No.1 and 2 may be directed to execute a registered sale deed in respect of the suit land in his favour. He also prayed for perpetual injunction that they be restrained from interfering into plaintiffs possession.

( 3. ) Defendants No.1 and 2 submitted a joint written statement refuting thereby the claim of plaintiff. They inter alia, stated that defendant No.2 is not in receipt of Rs.8500/- as consideration from the plaintiff and has not executed the alleged sale agreement dated 07-06-1984. Possession of the suit land was also not handed over to the plaintiff. Thus, the alleged agreement in favour of plaintiff was totally denied. Instead, it was stated that defendant No.2 has sold the suit land to defendant No.1 after receipt of consideration of Rs.15,000/- vide registered sale deed dated 11-12-1987 and has also delivered possession to defendant No.1. Alleged construction of well by the plaintiff on the suit land was also denied. Possession of the plaintiff on the suit land was equally denied. It was further objected that the suit of plaintiff for want of prayer for restoration of possession is bad in law. The alleged agreement dated 07-06-1984 was opposed as a forged and concocted document. Thus, dismissal of the suit of plaintiff was prayed for.

( 4. ) Learned trial Judge after recording the evidence held that defendant No.2 had executed a sale agreement in favour of plaintiff on 07-06-1984 after receipt of consideration of Rs.8500/-. However, delivery of possession at the time of execution of sale agreement was not believed. Learned trial Judge accordingly granted a decree for refund of Rs.8500/- in favour of plaintiff vide judgment and decree dated 09-0