Paramjeet Singh, J. - (1.) INSTANT regular second appeal filed by the appellant -defendant is directed against the judgment and decree dated 06.01.1986 passed by learned Sub Judge 1st Class, Jagadhri, whereby suit of the respondent plaintiff has been decreed for refund of Rs. 5000/ - with proportionate costs and relief for specific performance of contract has been declined, as well as against the judgment and decree dated 01.10.1986 passed by learned Additional District Judge, Ambala whereby appeal preferred by the appellant -defendant against the judgment and decree dated 06.01.1986 has been dismissed and cross -objections filed by the respondent -plaintiff has been allowed and the judgment of the Court of first instance has been modified and suit of the plaintiff has been decreed for specific performance. For convenience sake, hereinafter parties will be referred to as they are arrayed in the Court of first instance i.e. appellant as defendant and respondent as plaintiff.
(2.) THE detailed facts are already recapitulated in the judgments of the Courts below and are not required to be reproduced. However, brief facts relevant for disposal of this second appeal are that plaintiff filed a suit for possession by way of specific performance against the defendant on the ground that defendant vide agreement dated 15.01.1977 had agreed to sell land measuring 49 kanals 6 marlas situated in Village Malakpur Bangar to the plaintiff for a sum of Rs. 35,000/ -. A sum of Rs. 5000/ - was paid by the plaintiff to the defendant as earnest money. Defendant agreed to get his land redeemed from the bank and to execute the sale deed on or before 15.06.1977. Defendant executed the receipt about the payment of Rs. 5,000/ - in favour of the plaintiff. It is further averred that the plaintiff was and has always been ready and willing to perform his part of contract. He has been keeping with him the entire sale consideration along with expenses of stamp and registration. Plaintiff is still ready and willing to perform his part of the contract. The defendant was asked several times by the plaintiff to honour his commitment but he failed to perform the same. Upon notice, defendant appeared and contested the suit. He denied the agreement of sale or accepting Rs. 5000/ - as earnest money. The alleged receipt executed by him with respect to receipt of amount was also denied. However, it was averred that the agreement to sell and the receipt were got executed from him by fraud and mis -representation, as such, there was no question of performing his part of the contract. It was further averred that two documents were got prepared by the defendant to support the case of his friend Raj Kumar. In the additional plea, the defendant took the plea that two documents were got prepared from him fraudulently.
(3.) PLAINTIFF filed replication controverting the pleas taken by the defendant and reiterating the allegations made in the plaint;