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NIDHI GUPTA, J.

The plaintiff is in Second Appeal against the judgment of reversal whereby Suit filed by the appellant for specific performance of Contract dated 02.07.2001 although decreed by the learned trial Court, has been set aside in appeal filed by the respondents/defendants; and relief has been modified only for recovery of Rs.2,65,000/- along with interest @ 12% per annum as return of loan amount.

2. It was the pleaded case of the appellant in the plaint that defendant is owner in possession of suit land measuring 17 kanal 12 marla. Vide Agreement to Sell dated 02.07.2001, the defendant had agreed to sell the said land to the plaintiff for total sale consideration of Rs.4 lakh. Agreement to Sell was duly executed and registered in the Office of Sub-Registrar, Jhajjar vide serial No.1182 dated 02.07.2001. The plaintiff had paid an amount of Rs.2,65,000/- at the time of execution of Agreement as earnest money in the presence of witnesses. The plaintiff had therefore paid a substantial amount of the total sale consideration as part payment. As per the Agreement, Sale Deed was required to be executed on or before 01.07.2002 after receiving remaining consideration. It was pleaded in the plaint that the plaintiff was always ready and willing to perform his part of the contract and is still ready and willing to perform. The plaintiff had gone to the defendant on 01.07.2002 with remaining sale consideration. However, the defendant did not turn up. So, Sale Deed could not be executed. It was alleged that plaintiff had asked the defendant many times to execute the Sale Deed, but defendant had failed to execute the same. Hence, present Suit was filed on 07.04.2005.

3. Upon appraisal of pleadings and oral & documentary evidence adduced by the parties, the ld. Civil Judge (Senior Division), Jhajjar had decreed suit of the plaintiff vide judgment and decree dated 02.04.2011, as follows: -

“12. Keeping in view the above discussion on the issues, the plaintiff's suit for possession by way of decree for specific performance is established and the same is hereby decreed with costs. The defendant are directed to get the sale deed executed within 60 days from the date of this judgment as per the terms and conditions agreed by the parties. Decree-sheet be drawn according. File be consigned to the records after due compliance.”

4. However, Civil Appeal filed by the defendant was accepted by the ld. District Judge, Jhajjar vide judgment and decree dated 09.12.2013 as follows:-

“23. The question which arises for consideration is, " To what relief the respondent is entitled to?". Admittedly, the respondent had paid a sum of Rs. 2,65,000/- to Sajjan Singh on 1.7.2002. Surat Singh (DW1), in his testimony, has admitted that it was settled that respondent would pay interest on the same at the rate at which the Bank advances the money. Even at the time of argument, Mr. Udai Bhan, counsel for the appellants submitted that the Appellants are prepared to pay interest to the Respondent. Appellants have utilised the money of the Respondents from 2.7.2001. More than twelve years have expired since then. In these circumstances, I hereby order that the appellants would pay interest @ 12% per annum with yearly rests on the sum of Rs. 2,65,000/- to the respondent from 2.7.2001 till the date of payment. Respondent would also be entitled to the cost of the suit as well as of the appeal. The appeal is allowed. Decree sheet be prepared accordingly. The records of the Trial Court with a copy of this judgment be sent to the quarter concerned. Appeal filed be consigned to the record room after due compliance.”

5. Hence, present second appeal by the plaintiff.

6. It is inter-alia submitted by learned counsel for the appellant that First Appellate Court was in patent error in not granting relief of specific performance to the appellant as defendant in his written statement has admitted the Agreement dated 2.7.2001, and has also admitte