R.N.Ray, J. - (1.) -Heard learned counsel for the appellants who submitted that plaintiffs filed suit for specific performance of contract regarding the disputed land and it was stated in the plaint that Badshah who was the sole defendant died during the pendency of the suit and present defendant was substituted in his place. Badshah agreed to sell his property detailed at the foot of the plaint for consideration of Rs. 14,500/- and he received a sum of Rs. 5980/- by way of earnest money and persuant to that agreement he executed a registered agreement of sale in favour of the plaintiffs. The terms and conditions of the agreement were fully detailed in the agreement itself and some of those conditions are being highlighted in paragraph 2 of the plaint. It has been contended that plaintiffs were althrough willing to perform their part of contract but the defendant did not agree to pay 20 times revenue to acquire Bhumidhari right. It was also agreed upon that in case the defendant failed to execute the sale deed within the stipulated time, then it would be open to the plaintiffs to get the sale executed through the intervention of the Court and in case the plaintiffs failed to fulfil their part of contract, then the earnest money would be forfeited by the defendant. It was also provided that if the defendant did not acquire bhumidhari sanad on their own alter depositing 20 times of the land revenue from his pocket and plaintiff pay that money this the money so deposited and spent by them would be liable to be adjusted towards the balance of sale consideration which had to be paid at the time of the execution of the sale deed. Plaintiffs asserted that these conditions. were binding on the defendant and he had no authority to deny the same but in utter disregard ol these terms and conditions, the defendants adopted totally indifferent attitude and he did not obtain bhumidhari right. Repeated request were made by the plaintiffs and on 27.8.76 plaintiffs sent a notice calling upon the defendants to abide by the terms and conditions of the agreement, the notice was served upon the defendants on 9.9.76 but the . defendant did not pay any heed to the request of the plaintiffs as such the present suit was filed. The defendant filed written statement and thereafter he died. Learned trial .Court after considering the materials on record decreed the suit for specific performance of contract, the substituted defendants preferred appeal before the lower appellate .Court and the lower appellate court held that defendant Badshah executed a deed of agreementagainst acceptance of consideration money and that plaintiff was although willing to perform his part of contract D.W. 1 stated that value or the disputed property on the date of execution of deed was Rs. 30,000/- and on the date of deposition was Rs. 50,000/-. P.W, 1 admitted that there existed a tube well over the disputed property and the value of the tube well has not been assessed. It has been argued that the value of the tube well in the year 1976 could not be less than Rs. 10,000/- at the relevant time for execution of the alleged agreement sale deed as such the plaintiff led emphasis on the refund of the earnest money. P.W. 1 himself admitted that on the date of issuing notice he was prepared to get back his earnest money but on the date of- deposition he was not all prepared, as such the plaintiffs suit for recovery of Rs. 5980/- together with pendente lite and future interest at the rate of Rs. 9% per annum was decreed. Against the same judgment and order dated 19.9.84 as passed in civil appeal No. 222/82 of the court of II Additional District Judge, Agra, this present appeal has been preferred by the plaintiffs-appellants?
(2.) It has been contended before me that since there is concurrent findings of fact of the learned court below that plaintiffs were although willing and ready to perform their part of contract and Badshah actually executed contract of sale upon receiving earnest money so, even assuming that the marketprice of suit property was more at the relevant time for executing the deed of agreement relating to the disputed land till then the suit for specific performance of contract of the disputed land ought to have been allowed to stand. It has been contended tough not admitting but even assuming that there was a tube well in the disputed land and for that reason also the decree given by the court below ought not to have been disturbed by the learned appellate court In this way he contended that the suit for specific performance of contract ought to nave been allowed by the learned court below and as such he has tried to impress upon this court for allowing the second appeal and setting aside the judgment and decree of the lower appellate court and affirm the judgment and decree of the trial court. Learned counsel for the appellant cited a decision reported in AIR 1972 Gal. 207, wherein their Lordships held that discretion to enforce specific performance must not be exercised arbitrarily but judicially upon considering the circumstances of the case. Another decision reported in AIR 1994 SC 105 and Judgment Today 1993 Vol. 3, p, 616 was also reported to.
(3.) Learned counsel for the respondent supported the Judgment more or less on the seasons as has been assigned by the learned appellate court and submitted that relief should be granted where it appears that plaintiff is to get adequate relief by way of compensation.;