JUDGMENT :

Arguments heard.

The present Second Appeal u/S. 100 of the Code of Civil Procedure, 1908 is filed against the judgment dated 20/12/1983 passed in C.S.No.146-A/1971 (Kanhaiyalal Vs. Madanlal and one another) by which the trial Court has decreed the suit for specific performance of the contract.

2. The first appellate Court has dismissed the appeal of the defendants vide judgment dated 29/7/1992 passed in C.A.No.34-A/1986, against which the present appeal has been filed.

3. Facts of the case reveal that the suit was filed by the respondent – plaintiff Kanhaiyalal for specific performance of the contract against the defendants – Madanlal and his wife Smt. Ramkunwarbai, both are deceased and now they are represented by their legal representatives. Facts of the case further reveal that the property in question i.e., land bearing Survey No. 205/1, Area 5.13 Acre was purchased by the defendants from one Kishan s/o Hira on 17/2/1971. It was stated in the plaint that in the month of February, 1971 as the defendants were in need of money, therefore, they have entered into an oral agreement to sell the suit land to the plaintiff for a sum of Rs.8,000/-; out of which Rs.3000/- was paid on 27/2/1971; Rs.1,000/- was paid on 18/3/1971; and, Rs.2000/- was paid on 6/5/1971. It was further stated that on 6/5/1971 the defendants handed over vacant possession of the suit land to the plaintiff and on 6/5/1971 it was agreed between the parties that the balance amount would be paid in a day or two and thereafter sale deed would be registered in favour of the plaintiff.

4. Plaint averments further reveal that the defendants did not execute the sale deed and, therefore, the plaintiff issued notice to defendant No.1 Madanlal and again orally Madanlal expressed that he would execute the sale deed only if the sum of Rs.3,000/- is paid to him. Plaintiff has further stated that he did agree to the additional demand and prepared a sale deed and also went to the Office of the Sub Registrar, however, the defendants did not appear before the Sub Registrar on 18/5/1971 and, therefore, necessity arose to file a suit for specific performance of the contract.

5. Before the trial Court, the plaintiff has produced as many as six witnesses namely; Mohanlal (PW 1), Kanhaiyalal (PW 2), Rajaram (PW 3), Satyanarayan (PW 4), Bhawanisingh (PW 5) and Harisingh (PW 6). The plaintiff's witnesses have stated that there was an oral agreement between the parties and money was also received by the defendants, though there was a plaint averment stating that possession was also delivered to the plaintiff, but no revenue record was produced nor any document in respect of delivery of possession was brought on record and the plaintiff also stated that later on he was dispossessed. The plaintiff has produced certain documents also before the trial Court ie., Draft Sale Deed (Annexure P/1), receipt of Advocate's fee for drafting sale deed (Annexure P/2), sale deed (Annexure P/3), notice (Annexure P/4) and postal receipt / AD (Annexure P/5). However, none of the documents filed by the plaintiff establish that there was any agreement between the parties. The defendants have also produced witnesses namely; Rajkunwar (DW 1), Ibrahim (DW 2), Omprakash (DW 3), Rameshchandra (DW 4), Pannalal (DW 5) and Madanlal (DW 6) and two documents were brought on record i.e., Police Report (Ex.D/1) and reply to the notice (Ex.D/2).The defendants have stated before the trial Court that the original sale deed dated 17/2/1971 which was executed by Kishan s/o Hira in his favour was stolen by the plaintiff and a Police Report was also lodged in the matter. It was also stated that the plaintiff used to work with the defendants and he was In-Charge of the shop from where he has stolen the sale deed and in those circumstances, a prayer was made for dismissal of the suit.

6. Heard learned counsel for the parties at length and perused the record.

7. This Court has minutely scanned the evidence and observed that