Naik, J. -- 1. This judgment would decide S.A. No.304/99 (Rameshchandra and another v. Kamal Kishore and others) and S.A. No.344/99 (Bhogabai (dead) and others v. Omprakash and others), since both the appeals arise from common facts and documents.

2. S.A. 304/99 is defendants' appeal against the judgment and decree dated 21.4.1999 passed by the Court of District Judge, Gwalior (M.P.), in Civil Appeal No.47-A/98 reversing thereby the dismissal of Civil Suit No.366-A/91 and granting a decree for specific performance. Needless to say that while deciding S.A. No.304/9, references about evidence have been taken from the record of Civil Suit No.366-A/91.

3. Facts relevant herein for the purposes of the said appeal are that the plaintiff Dhannalal (predecessor of respondents) instituted a suit against Ratiram (predecessor of appellants) for specific performance with allegations that the plaintiffs needed Rs.4,000/- in the year 1969 for domestic expenses. He agreed to mortgage the suit house for the said consideration. Defendant got executed registered sale-deed in his favour on 11.4.1969 for a consideration of Rs.4,000/- with a contemporaneous agreement of resale for the same amount simultaneously. Plaintiffs paid a sum of Rs.3,000/- and a fresh agreement was executed on 11.9.1972 by the plaintiffs with a condition that the plaintiffs would pay the balance of Rs.1,000/- within a year and will get the registered sale-deed executed from the defendant. Plaintiffs offered a sum of Rs.1,000/- at times but the defendant avoided to receive it and execute a sale-deed. Therefore, the plaintiffs issued registered notice dated 29.9.1972 and instituted a suit for direction to defendant to receive the balance money and execute the registered sale-deed.

4. Defendant submitted his written statement refuting thereby the allegations contained in the plaint. He stated that the defendant had purchased the suit house vide registered sale-deed dated 11.4.1969. It was an outright sale and the plaintiffs, thereafter, had executed a rent note dated 11.4.1969 in favour of the defendant and are in occupation of the said house on rent at the rate of Rs.50/- per month accordingly. Execution of agreement to resell has been denied. It is further denied that due to expiry of alleged agreement dated 11.4.1969, a fresh agreement was executed by the defendant on 11.9.1972 as alleged in the plaint. Plaintiffs being tenants in the house have already been sued vide Civil Suit No.3-A/73 for eviction and recovery of arrears of rent.

5. Learned trial Judge dismissed the suit vide judgment and decree dated 26.9.1976. Aggrieved by it, plaintiffs through LRs preferred Civil Appeal No.47-A/98 which has been allowed by the learned District Judge, Gwalior, by the impugned judgment and decree dated 21.4.1999 granting thereby a decree for specific performance that the defendants on receipt of balance amount of Rs.1,000/- would execute a registered sale-deed in favour of the plaintiffs. Hence, the present second appeal is submitted which has been heard on the substantial questions of law formulated on 2.7.1999 which are being decided in the following manner.

6. Substantial question of law No.1 :

"Whether in the absence of agreement the decree for specific performance is rightly granted by the appellate Court?"

It has been argued by Shri Tomar, learned senior counsel appearing on behalf of the appellants, that the alleged agreement of resale dated 11.4.1969 has not been produced at all. In the absence of production and proof about such agreement, a decree for specific performance cannot legally be granted. Shri Tomar, learned senior counsel, placed reliance on Shyam Singh v. Daryao Singh (dead) by LRs and others [AIR 2004 SC 348], K. Simrathmull v. Nanjalingiah Gowder [AIR 1963 SC 1182], Bhaskar Waman Joshi (deceased) and others v. Shrinarayan Rambilas Agarwal (deceased) and others [AIR 1960 SC 301], and Chunchun Jha v. Ebadat Ali and another [AIR 1954 SC 345], to buttress his subm