A. B. Srivastava, J. - (1.) THIS is a defendant's second appeal directed against judgment and decree dated 22-10-1983 of the 1st Additional District Judge, Jaunpur, whereby he dismissed the first appeal of the defendant and confirmed the judgment and decree of the trial court in plaintiff's favour.
(2.) BRIEFLY stated the facts relevant are that the plaintiff-respondent Thakurdin filed the suit with the allegation that he sold a plot of land measuring 53 acres to the defendant-appellant for a sum of Rs. 7 000/- by means of sale deed dated 16-5-1975. On the same day there took place an agreement between the parties stipulating that in case the plaintiff paid a sum of Rs. 7,000/- to the defendant within a period of six years, the defendant will execute a sale deed of the said plot in favour of the plaintiff and deliver possession to him. The terms of this agreement were reduced to writing by means of a deed of agreement dated 16-5-1975 The plaintiff thereafter arranged for the amount of Rs. 7,000/- as the expenses for execution of the sale deed and requested the defendant to accept the said amount of sale consideration and expenses and executed the sale deed in his favour, but the defendant paid no head. Ultimately the plaintiff gave a notice dated 22-8-1978 by registered post to the defendant which was personally served on him but he failed to comply with the same. The plaintiff has always been ready and willing to perform his part of the contract but the defendant failed in so doing, hence the suit was filed again with a prayer for specific performance of contract of sale on the terms and conditions incorporated In the deed of agreement. The defendant-appellant filed written statement denying that any agreement to reconvey the land in question to the plaintiff on payment of Rs. 7,000/- took place. He also denied the execution of the deed of agreement dated 16-5-1975 set up by the plaintiff and alleged that taking advantage of the illiteracy of the defendant the plaintiff obtained his thumb impression on a paper with a view to authorise the scribe of the sale deed dated 16-5-! 975 to receive the amount from the office of the sub-Registrar. The agreement appears to have been forged and fabricated on the said paper. The plaintiff never paid or tendered the amount of Rs. 7,000/- or any expenses of execution and registration of sale deed, no notice was ever served on the defendant and there was no question of the defendant's failure to perform his part of any contract. The suit is barred by section 16 of the Specific Relief Act and is also not maintainable as the agreement was not registered. The learned trial court decreed . the suit of the plaintiff with a finding that the agreement as alleged by the plaintiff took place between the parties and the deed of agreement set up by the plaintiff was duly executed by the defendant. He also found that the plaintiff has always been ready and willing to perform his part of the contract, the suit was not barred by section 16 of the Specific Relief Act nor did the agreement for sale require registration. The first appellate court before whom the judgment was challenged, affirmed the same with a finding that the primary responsibility was upon the defendant appellant to execute the sale deed or to show his intention that he was willing to execrate the same, and in its absence the plaintiff could not be in a position to pay the amounts stipulated in the agreement to the defendant and in this view of the matter the plaintiff could not be held to have failed to perform his part of the contract. Aggrieved, this second appeal by the defendant.
(3.) IN this appeal the findings of the two courts below to the effect that there was an agreement of reconveyance between the parties and the document dated 16-5-1975 evidencing such agreement was executed by the defendant-appellant has not been assailed. IN deed it is also not open to the appellant to challenge the same, being a finding of fact. The contention of Shri G. N. Verma, the learned counsel for the defendant-appellant is that since as per the specific terms in the agreement of reconveyance dated 16-5-1975 the plaintiff was required to pay to the defendant a sum of Rs. 7,000/- along with expenses of registration of sale deed, to entitle him to get the sale deed executed, and he did not pay such amount he himself was guilty of non-performance of his part of contract and consequently was not entitled to specific performance of the contract.;