This appeal is directed against the judgment and decree in Civil Suit No. 117/88 dated 24.2.1989 passed by learned II Additional District Judge, Indore, who was pleased to decree the suit for an amount of Rs. 10,000/- deducting the cost of the suit. So far as the damage is concerned, the decree was not passed.

The short facts giving rise to this appeal are that the disputed house listed as house No. 96 in the municipal records in Gopalbag colony, Indore is registered in the name of the defendant No.1. On 19.9.1974, the said house was sold by defendant No. I Balkishan Takedar through an agent and had obtained Rs. 10,001/- as earnest money. Ex. P/1 agreement to sale was executed by the parties.

One of the conditions was that the sale-deed was to be executed on 6-7th December, 1974. On that day the remaining amount of Rs. 65,000/- would be paid by the plaintiff. The vacant possession would be given to the plaintiff at the time of registration. It was agreed that the expenses will be borne by defendant No. I. It was agreed that if the defendant No. 1 declines, the amount of Rs.10.001/- with the damages would be paid by the defendant No. I to the plaintiff and if the plaintiff fails the defendant will be entitled to the refund of this money. Both the parties have exchanged the notices. The plaintiff had advertised notice on 30.12.1974 in Naiduniy newspaper. The same was replied asking on which date the plaintiff would come to pay the rest of the amount but there was no reply by the plaintiff to that query. The defendant was to get the income tax clearance certificate and the clearance of title, etc. It was said that after 19.9.1974, the plaintiff was always ready and willing to perform his part of the agreement and was by time and again expected the defendant to produce the papers but the defendant went on evading. On 27.1.1974 notice was issued, which was replied as aforesaid.

After raising issues, on appreciation of evidence and hearing the parties. the learned Additional District Judge passed the aforesaid decree holding that though the agreement to sell has been executed but because of some misunderstanding the same could not be fulfilled by the parties. He held that both the parties were at fault at all and therefore no specific performance of that agreement was decreed by the Court and had directed the return of the earnest money minus suit expenses. The lower Court held that on appreciating the suit document there is no mention of showing the papers of title. It is also held that the defendant Balkishan and his witness Ramuprasad DW/2 have stated that the advocate Lalchand Mittal for the plaintiffs was handed over the papers to be shown to the plaintiffs and after satisfying the same the plaintiffs have returned the same. There is no effective rebuttal to the say of the defendant. So far as the clearance of income tax certificate is concerned, the difendant has proved through DW/2 that the same was already obtained on 30.11.1974 i.e. before the agreed date for execution of document and registry. Holding in favour of both parties that the execution and registry could not be done because of the misunderstanding of the parties due to non-mention of such a requirement by the plaintiff. It is not shown that the non-fulfilment of the contract was due to the defendant's default. It is held that the defendant No.2 purchased the property after the agreed date i.e. on 4.9.1975 holding that he was a bone fide purchaser paying the adequate price without notice of the dispute between the plaintiff and the defendant No.1. The lower Court held that the evidence did not prove that the defendant No.2 had the knowledge about the prior agreement. The lower Court also held that otherwise the suit is mainly for getting back the earnest money rather than for specific performance of the contract.

Looking to the evidence of the plaintiffs and the defendants orally as also documentary it is clear that the documentary evidence does not suppo