JUDGMENT Deoki Nandan, J.- This is a plaintiff's Second appeal in a suit for specific performance of a contract by the defendant-respondent to sell his one third share in a well and two Chaks of agricultural land having a total area of 25 bighas 1 biswa 5 biswansis, and for recovery of Rs. 100/- as damages. 2. The agreement to sell was dated the 25th August, 1966 price settled was Rs. 9,500/-. The sale was to be completed by the 15th June, 1967. The sum of Rs. 3,500/- was advanced in cash. The agreement was registered. According to the plaintiff's case, he went to the defendant several times and asked him to execute the sale-deed before the 15th June, 1967 but the defendant evaded doing so. Ultimately, the plaintiff served a notice, dated the 5th June, 1967 by registered post through counsel requiring the defendant to execute the sale-deed on the 12th June, 1967 but the defendant promised to do so on the 15 June, 1967. The plaintiff attended the Sub-Registrars's Office on both the dates with ready money, but the defendant did not execute the sale-deed. The plaintiff then served another notice, dated the 23rd June, 1967, requiring the defendant to execute the sale-deed. The plaintiff incurred an expenditure of Rs. 100/- on all this, which he was entitled to recover as damages. The suit was filed on the 3rd July, 1967. 3. The defendant admitted the execution and registration of the agreement, but denied the rest of the plaint allegations Section 168-A of the U.P. Zamindari Abolition and Land Reforms Act was set up as a bar to the suit on the ground that the defendant has an undivided share in the land, which had been allotted to him along with his co-sharers on the consolidation of holdings. According to the defendant, the plaintiff did not deliberately get the sale-deed executed within the time fixed by the agreement as he did not have ready money and he himself committed a breach of the contract, with the result that the amount of Rs. 3,500/- stood forfeited. The receipt of the notice, dated the 5th June, 1967, was denied, though the defendant admitted having been orally told to attend the Sub-Registrar's Office on the 12th June, 1967, which he did, but on that date, the plaintiff did not have the balance of Rs. 3,500/- stood forfeited. The receipt of the notice, dated the 5th June, 1967, was denied, though the defendant admitted having been orally told to attend the Sub-Registrar's Office on the 12th June, 1967, which he did, but on that date, the plaintiff did not have the balance of Rs. 6,000/- ready and requested the defendant to accept a promissory note for the amount short, to which the defendant was agreeable ; whereupon, the plaintiff promised to have the sale-deed executed on the 13th June, 1967. On the 13th June, 1967, also, when the defendant reached the Sub-Registrar's Office, the plaintiff did not have the full amount ready with him and said that his man was coming with the balance and he could get the sale-deed executed as soon that man came. The defendant waited till 4:00 P.M. on the 13th June, 1967, but the plaintiff's man did not come with the money ; whereupon, the 15th June, 1967, was fixed by the plaintiff for having the sale-deed executed. On the 15th June, 1967 also, when the defendant reached the Sub-Registrar's Office, the plaintiff did not have the full money. He thereupon, asked the defendant to extend the time. The defendant refused to do so. The defendant further alleged that the plaintiff' allegation that he was ever ready and willing to have the sale-deed executed was false. He did not have sufficient money, and in spite of the continued presence of the defendant, the plaintiff could not have the sale-deed executed and was guilty of breach of the contract. A claim for damages was made for the amount of the earnest money. It was further added that no part of the well has been agreed to be sold. 4. The first issue raised at the trial was whether the contract may be specifically enforced in view of the provisions of Section 168-A of the U.P. Zamindari Abolition and Land Reforms Act. The trial court found that issue against the defendant. On the second issue also, the trial court found that the defendant committed a breach of the contract. On the third issue, the finding of the trial court was that the plaintiff is not entitled to any damages and on the fourth issue that one-third-share in the well had also been agreed to be sold. On the second issue also, the trial court found that the defendant committed a breach of the contract. On the third issue, the finding of the trial court was that the plaintiff is not entitled to any damages and on the fourth issue that one-third-share in the well had also been agreed to be sold. In the result, the trial court decreed the suit for specific performance of the contract on payment of the balance amount of Rs. 6,000/- by depositing it in the court in addition to deposit of Rs. 1,000/- for the expenses of execution and registration of the sale-deed within the time limited by it. 5. On defendant's appeal, the lower appellate court reversed the trial court's decree and dismissed the suit. 6. The trial court's finding that the specific performance of the contract was not barred by Section 168-A of the U.P. Zamindari Abolition and Land Reforms Act was confirmed by the lower appellate court, but the important question, according to the lower appellate court was whether the breach of contract was committed by the plaintiff or the defendant. According to the lower appellate court, the trial court "did not attach any weight to the absence of the plaintiff-respondent from the witness box as in his opinion the statements of Brijendra Singh P.W. 1 and Sukhbir Singh P.W. 2 were sufficient to prove that the respondent had the required moneys with him for payment of consideration." The lower appellate court did not believe these statements. In its own words : "I am not ready to rely upon the statement of Brijendra Singh, brother-in-law of the respondent when the respondent himself kept away from the witness box without any adequate reason .It may also be mentioned here that the appellant had not admitted the presence of Brijendra Singh at the office of the Sub-Registrar on 12th or 15th June, 1967, and therefore, it was all the more necessary for the plaintiff-respondent to examine himself." About Sukhbir Singh P.W. 2, the lower appellate court said, "his statement cannot be accepted because he appears to be a firm supporter of the respondent. He is a resident of the village of the respondent and may be extremely close to him. Therefore, to save this amount of Rs. 3,500/- earnest money he may have been persuaded to depose in favour of the respondent. He is a resident of the village of the respondent and may be extremely close to him. Therefore, to save this amount of Rs. 3,500/- earnest money he may have been persuaded to depose in favour of the respondent. It is always not possible for a person to prove close relationship between the other party and his witnesses and so a witness cannot be relied upon merely on the ground that he appeared to be quite independent. This witness is alleged to have accompanied the respondent on 12th June, 1967, and again on 15th June, 1967, to the office of the Sub-Registrar and stayed there from morning till at about 5.30 P.M. No person would have agreed to stay with anybody throughout the day without any work unless he was extremely close. Sukhbir Singh P.W. 2, therefore cannot be said to be an independant witness." Further, according to the appellate court, "the circumstances also do not favour the respondent. It is in the deed of agreement that the plaintiff-respondent will get the sale-deed prepared and will bear the expenses of the same. It is clear from the evidence that on 12th June, 1967 the plaintiff-respondent did not get the draft of the sale-deed prepared....The plaintiff-respondent did not get the draft prepared either on the 12th or 15th June, 1967. If really the plaintiff was willing to get the sale-deed executed, he should have come with the prepared draft of the sale-deed on 12-6-67. I also feel that if the appellant was not willing to execute the sale-deed without any good reason, he would not have come to the office of the Sub-Registrar at all on 12-6-1967. Therefore, the statement of appellant appears to be more probable and it was the respondent, who was not in possession of sufficient money to pay the entire balance of consideration and so the sale-deed was not executed on 12th June, 1967." 7. About the 15th June, 1967, the finding of the lower appellate court is that the plaintiffs, case that the defendant did not turn up at the office of the Sub-Registrar could not be accepted because the defendant moved a search application (Ext. A-6) that day in the office of the Sub-Registrar. According to the lower appellate court, the plaintiff was "creating evidence to a false case. 8. A-6) that day in the office of the Sub-Registrar. According to the lower appellate court, the plaintiff was "creating evidence to a false case. 8. Having heard the learned counsel for the plaintiff-appellant, I find it impossible to endorse the finding of the lower appellate court that the plaintiff was creating evidence to prove a false case. On the other hand, the certified copy of the search application (Ext. A-6). which was made by the defendant on the 15th June, 1967, in the Sub-Registrar's Office was an example of that kind, and showed that it was the defendant, who was trying to create evidence of his presence at the Sub-Registrar's office on the 15th June, 1967, when in fact, he was not present there. Similarly, the lower appellate court's idea that the plaintiff ought to have gone to the Sub-Registrar's Office ready with a sale-deed drafted and written out on a stamp paper is also not in keeping with the usual practise in the Mufassil. The usual practise is that when the parties reach the Kutcheri for execution of a sale-deed is scribe is contacted, the requisite stamp paper is purchased and the sale-deed is scribed or typed written, executed and got registered the very same day. 9. The lower appellate court is again not right in disbelieving the evidence of the plaintiff's witnesses on the ground that they were persons close to the plaintiff and that the plaintiff himself ought to have appeared as a witness. These witnesses had been believed by the trial court which had the advantage of seeing their demeanour. The evidence of the plaintiff would not have added any greater weight to what was stated by these witnesses. The trial court has not referred to the documentary evidence filed by the plaintiff in the form of the notices served by him, and that he had attended the Sub-Registerar's office and waited there for the defendant for the execution of the sale-deed. In his application dated the 12th June, 1967 to the Sub-Registrar, the plaintiff stated that the defendant had promised, to have the sale-deed executed on the 12th June, 1967, but when the plaintiff had a talk with the defendant at the Tahsil, the latter told him that he was busy and would shortly execute the sale-deed on the 15th June, 1967. The application declared that the plaintiff had gone with ready money and was returning back to the village at 5:00 P.M. It is highly improbable that the plaintiff would have made that kind of an application it he had not carried ready money that day. The plaintiff's application made before the Sub-Registrar on the 15th June, 1967 says that he was present there for getting the sale-deed executed with the necessary money, but the defendant was not seen that day, and, therefore, he was returning back. On the other hand, apart from Ext. A-6, to which a reference has been made above, the defendant made an application, dated the 1st July, 1967 to the Sub-Registrar, wherein he said that although, it was agreed that the sale-deed would be executed on the 2nd July, 1967, that turned out to be a Sunday and, therefore, the village Panches, had fixed 1st July, 1967 for execution of the sale-deed, and he had therefore, come there, but the purchaser had not reached there. This may be read in the context of the defendant's reply, which is dated the 3rd/4th July, 1967, to the plaintiff's notice, dated the 23rd June, 1967. It appears that the defendant was trying to wriggle out of the bargain. The finding of the lower appellate court that the plaintiff committed a breach of the contract does not appear to be justified by the evidence on the record and is clearly vitiated in law ; inasmuch as it is based more on conjectures and is clearly vitiated in law ; inasmuch as it is based more on conjectures and surmises than on the evidence on the record. The findings of the trial court are better and there was no good ground for interfering with them. The last ground of appeal is that at all events a decree for refund of Rs. 3,500/- admittedly taken by the defendant ought to have been passed in the plaintiff's favour. On the terms of the contract, it appears to me that, in all probability, it was in agreement to secure a loan of Rs. 3,500/-. I say so because the agreement is dated the 25th August, and the last date for the completion of the sale was fixed at 15th June, 1967, which was more than nine months thereafter. On the terms of the contract, it appears to me that, in all probability, it was in agreement to secure a loan of Rs. 3,500/-. I say so because the agreement is dated the 25th August, and the last date for the completion of the sale was fixed at 15th June, 1967, which was more than nine months thereafter. The only reason given for not accepting a sale-deed then and there was that crops were standing on the land at that time, but the recital shows that the defendant was in need of money. Surely, his need for money could not be satisfied by having to wait for more than nine months for the execution of the sale-deed. Crops are harvested generally by the end of April. The agreement to sell was, I think, a comouflage for a simple mortgage or collateral security for an advance of money on mortgage in simply not made these days in view of the dilatoriness of the legal process in our country. Be that as it may, once it is found that the plaintiff did not commit any breach of the contract and it was rather the defendant who was guilty of having committed a breach of the contract; the defendant should only be too happy if he can save his land by paying back the amount of Rs. 3,500/- which was admittedly received by him as advance. But the defendant must pay interest thereon at the rate of six per cent per annum and the full costs of the plaintiff in all the three courts. 10. In the result, the appeal succeeds and is allowed with costs. The decree under appeal is set aside. The plaintiff's suit shall be decreed in the following terms, namely that if the defendant deposits in the executing court within three months from to-day, the sum of Rs. 3,500/-with interest at six percent for per annum from the 1st September, 1966 up to the date of deposit and she full costs incurred by the plaintiff in all the three courts as may be taxed in the decree of this Courts, the contract for the sale of the property (Ext. 3,500/-with interest at six percent for per annum from the 1st September, 1966 up to the date of deposit and she full costs incurred by the plaintiff in all the three courts as may be taxed in the decree of this Courts, the contract for the sale of the property (Ext. 3) shall be deemed to be void and the amount to so deposited shall be forthwith paid over to the plaintiff by the executing court, but if the defendant fails to deposit the said amount of Rs 3,500/- with interest thereon and the costs within three months from to-day, the trial court's decree for specific performance of the said contract shall stand restored on the terms thereof with costs throughout. The office shall prepare the decree of this court with in six weeks and issue certified copies thereof to the parties on payment of necessary charges latest within two months from to-day.