JUDGMENT Hon’ble Prakash Krishna, J.—This is defendant’s appeal under Section 96 of C.P.C. against the judgment and decree dated 19th of August, 1977 passed by the First Additional District Judge, Shahjahanpur in O.S. No. 19 of 1976 whereby it decreed the suit for specific performance of an agreement to sell. 2. O.S. No. 19 of 1976 was instituted by the plaintiff respondents on the pleas inter alia that the plaintiff agreed to sell four plot Nos. 356-A, 312, 356-B and 366 total area admeasuring 7.59 acres for a sum of Rs. 23,000/- situate in village Fatehpur Bujurg, Pergana and Tehsil Tilhar, District Shajahanpur. A registered sale agreement dated 28th of June, 1974 was arrived at between the parties and a sum of Rs. 5,000/- was given to the defendant at the time of execution of the agreement, Rs. 2,000/- at the time of the registration of the agreement and it was agreed upon that the balance amounting to Rs. 18,500/- would be payable at the time of the registration of the sale-deed. January 10, 1975 was the date fixed for the execution of the sale-deed. It so happened that the defendant could not obtain Bhumidhari Sanad in respect of these plots and therefore another registered agreement dated 20th of December, 1974 was executed and the period for execution of the sale-deed was extended up to 10th of January, 1976. The defendant having failed to execute the sale-deed in spite of notice dated 27.12.1973 as also in pursuance of oral requests, suit for specific performance of contract to sell dated 20th of December, 1974 was filed and in the alternative a relief for refund of Rs. 4,500/- was claimed. 3. The suit was contested mainly on the pleas that the plaintiff and defendant were Bataidar and a dispute having arisen in between the parties with respect to the distribution of the crop, it was settled between the parties due to intervention of some reputed persons and said settlement was reduced in writing on 2nd of February, 1976 whereby and whereunder the defendant paid a sum of Rs. 10,000 to the plaintiff with the clear stipulation and understanding that the plaintiff relinquishes all his rights under the aforesaid agreement. The sum of Rs. 10,000/- given by the defendant includes the return of advance money amounting to Rs. 4,500/-, Rs. 1,200/- towards pronote executed by the defendant and Rs. 10,000 to the plaintiff with the clear stipulation and understanding that the plaintiff relinquishes all his rights under the aforesaid agreement. The sum of Rs. 10,000/- given by the defendant includes the return of advance money amounting to Rs. 4,500/-, Rs. 1,200/- towards pronote executed by the defendant and Rs. 4,300/- towards the damages paid by the defendant to the plaintiff. 4. On the pleadings of the parties the trial Court struck the following issues : (1) Whether the plaintiff entered into an agreement relinquishing his rights under the agreement? (2) Whether the agreement in favour of the plaintiff was obtained by fraud? (3) Whether the plaintiff was always ready and willing to get sale-deed executed? (4) Whether the plaintiff paid Rs. 4,500/- to the defendant as alleged? (5) Relief. 5. The plaintiff examined himself in respect of his case as PW/1 and the defendant examined himself as DW/1. He also examined one Lt. Col. M.K. Shahi as DW/2 and Chhotey Lal DW/3 in support of his case with regard to the payment of Rs. 10,000/- to the plaintiff and the cancellation of the registered agreement in question. The trial Judge decided the issues No. 1 and 3 together. The trial Judge has found that the plaintiff did not enter into an agreement relinquishing his right under the agreement in question. The agreement in question was not obtained by fraud, as pleaded by the defendant and the plaintiff was always ready and willing to get the sale-deed executed. The finding with regard to the payment of earnest money amounting to Rs. 4,500/- was also recorded in favour of the plaintiff and the suit was decreed. 6. Shri Manoj Mishra, the learned Counsel appearing for the defendant-appellant submitted that the Court below has committed illegality in not accepting the case of the defendant-appellant that the earlier registered agreement entered into in between the parties stands cancelled in view of Exhibits A1 and A2 and Section 63 of the Contract Act. Exhibit A1 is the receipt dated 2nd of February, 1976 signed by the plaintiff. The said document witnesses the payment of Rs. 10,000/- by the defendant to the plaintiff. Exhibit A2 is also signed by the plaintiff which shows that the plaintiff has relinquished his right under the agreement for sale with the clear understanding/stipulation that he will not enforce his right against the agreement in question. The said document witnesses the payment of Rs. 10,000/- by the defendant to the plaintiff. Exhibit A2 is also signed by the plaintiff which shows that the plaintiff has relinquished his right under the agreement for sale with the clear understanding/stipulation that he will not enforce his right against the agreement in question. The plaintiff respondent has admitted his signatures on these documents and the trial Court, it was submitted, wrongly held that these documents are not admissible in evidence in view of Section 92 of the Evidence Act being unregistered documents. Elaborating the argument it was submitted that under Section 92 of the Evidence Act, only oral evidence in certain circumstances is excluded but it does not talk about documentary evidence. Reliance was placed on the dictionary meaning of word ‘rescind’ as defined in Black’s Law Dictionary. 7. In response, Shri Ravi Kiran Jain, senior advocate, submitted that the findings recorded by the trial Judge are well considered findings. The plaintiff has denied the receipt of Rs. 10,000/- under Exhibits A1 and A2 and the said finding is based on correct appreciation of evidence on the record. Further, paper Nos. Exhibits A1 and A2 being unregistered documents cannot be read in evidence to rescind, or modify the registered agreement in question. Reliance was placed on a judgment of Apex Court in S. Saktivel (Dead) by LRs v. M. Venugopal Pillai and others, JT 2000 (9) SC 345. 8. The moot point involved in the present case is whether plaintiffs right under the agreement to sell dated 20th of December, 1974 stood extinguished upon the execution of deeds dated 2nd of February, 1976 (Exhibit A1 and Exhibit A2) for Rs. 10,000/-. This question depends upon the question with regard to the admissibility of Exhibit A1 and A2 in evidence. The second question involved is whether the plaintiff respondent otherwise is entitled to get a decree for specific performance of contract to sell specially in view of admission of receipt of Rs. 10,000/- on 2nd of February, 1976 has not been denied by him specifically and whether the Court in the facts and circumstances of the case would be right in exercise of its jurisdiction to refuse the relief of specific performance of contract for sale in view of Section 20 of Specific Relief Act. 9. The trial Court decided issues No. 1 and 3, which are material issues, together. 9. The trial Court decided issues No. 1 and 3, which are material issues, together. The relevant pleadings and the evidence in this regard may be looked into. The defence as set up by the defendant respondent was that a dispute arose between the plaintiff and defendant who were Bataidar over distribution of crops. The said dispute was resolved through intervention of Lt. Col. M.K. Shahi, a respectable citizen of the locality. To prove the said settlement the defendant appellant besides examining himself as DW/1 has examined Lt. Col. K.M. Shahi, DW/2 and Chhotey Lal DW/3. The plaintiff in his deposition has also admitted that Lt. Col. K.M. Shahi is a respectable person of society and the plaintiff was called by him on 2nd of February, 1976. In para 2 of his deposition the plaintiff admits his signatures on Exhibits A1 and A2. He further deposes that Lekhpal Jiya Ram informed that he is called by Col. K.M. Shahi and the plaintiff went to the house of the Patwari wherein Col. Shahi, defendant and his brother-in-law and five or six other persons were present. In cross-examination, he denies the compromise although in further cross-examination he has stated that he signed the documents on 2nd of February, 1976 in the evening and after signing them he went to his house. First Information Report was not got lodged in the police station of the circle but was got lodged at Jalalabad due to fear. From the deposition of the plaintiff respondent one thing is crystal clear that he was present on 2nd of February, 1976 and signed the document Exhibit A1 and Exhibit A2 in the presence of Col. K.M. Shahi and other persons, without making any protest. A reasonable inference can be drawn that settlement, as pleaded by the defendant, that the plaintiff agreed to give up his existing rights under the agreement in question, was arrived at. Specially when he failed to examine any witness to support the case that no money was given to him while signing the Exhibits Al and A2. In this regard besides the statement of the defendant appellant (DW 1), the defendant Chhote Lal DW/3 who has signed the Exhibit A1 and Exhibit A2 as witness. Col. K.M. Shahi has categorically stated in his statement that a sum of Rs. In this regard besides the statement of the defendant appellant (DW 1), the defendant Chhote Lal DW/3 who has signed the Exhibit A1 and Exhibit A2 as witness. Col. K.M. Shahi has categorically stated in his statement that a sum of Rs. 10,000/- was given to the plaintiff and the agreement was arrived at between the parties voluntarily without there being any force. No suggestion was given to Col. K.M. Shahi in the cross-examination that either the money was not paid or the agreement was arrived at under the threat or coercion. Nor any cross-examination was made on the fact that the money was not given. Chhotey Lal DW/3 has clearly stated that a settlement took place on 2nd of February, 1976 at the place of Col. Shahi and the Exhibits A1 and A2 were signed by the plaintiff respondents in his presence and he has signed the document as a witness. A sum of Rs. 4,500/- was given to the plaintiff in his presence. Thus, there is clinching evidence on the record to show that the Exhibits A1 and A2 were executed by the plaintiff respondent out of his own freewill on account settlement arrived at between the parties in token of receipt of Rs. 10,000/-. 10. The trial Court without examining the oral evidence of the parties on this issue proceeded to decide the suit on the assumption that even if the defendant’s case is taken to be correct, the said documents cannot be read in evidence, to which I will advert in the later part of this judgment. 11. Having noticed the evidence of the parties, the question which immediately falls for consideration is the applicability of Section 63 of the Contract Act and Section 92 of the Evidence Act. Shri Manoj Mishra submits that Section 63 of the Contract Act provides that every promisee has a right to dispense with or remit wholly or in part, the performance of promise made to him or may extend the time for such performance or may accept instead of it, any satisfaction which he thinks fit. He submits that Exhibit A-2 is not a document which rescinds the agreement to sell but it is in nature of relinquishment deed, executed by the plaintiff. He submits that Exhibit A-2 is not a document which rescinds the agreement to sell but it is in nature of relinquishment deed, executed by the plaintiff. The plaintiff under Exhibit A2 has relinquished his right available to him under the agreement for sale which is clearly permissible under Section 63 of the Contract Act. That may be so, but dispensation acceptance or satisfaction should be in accordance with the procedure known to law. At this place, it is appropriate to notice Section 92 of the Evidence Act. Relevant para of the Section 92 of the Evidence Act is reproduced below : “92. Exclusion of evidence of oral agreement—When the terms of any such contract, grant or other disposition of property, or any matter required by law to be reduced to the form of a document, have been proved according to the last Section, no evidence of any oral agreement or statement shall be admitted, as between the parties to any such instrument or their representatives in interest, for the purpose of contradicting, varying, adding to, or subtracting from, its terms : Proviso (1) …………………………. Proviso (2) …………………………. Proviso (3) …………………………. Proviso (4)—The existence of any distinct subsequent oral agreement to rescind or modify any such contract, grant or disposition of property, may be proved, except in cases in which such contract, grant or disposition of property is by law required to be in writing, or has been registered according to the law in force for the time being as to the registration of documents.” 12. The Apex Court in S. Saktivel (dead) by LRs. v. M. Venugopal Pillai and others, JT 2000 (9) SC 345 has held as follows : “A perusal of the aforesaid provision shows that what Section 92 provides is that when the terms of any contract, grant or other disposition of the property, or any matter required by law to be reduced in the form of document, have been proved, no evidence of any oral agreement or statement is permissible for the purpose of contradicting, varying, adding or subtracting the said written document. However this provision is subject to proviso 1 to 6 but we are not concerned with other provisos except proviso 4, which is relevant in the present case. However this provision is subject to proviso 1 to 6 but we are not concerned with other provisos except proviso 4, which is relevant in the present case. The question then is whether the defendant-appellant can derive any benefit out of proviso (4) to Section 92 for setting up oral arrangement arrived at in the year 1941 which has the effect of modifying the written and registered disposition. Proviso (4) to Section 92 contemplates three situations, whereby, (i) the existence of any distinct subsequent oral agreement as to rescind or modify any earlier contract, grant or disposition of the property can be proved, (ii) however, this is not permissible where the contract, grant or disposition of property is by law required to be in writing. (iii) no parol evidence can be let in to substantiate any subsequent oral arrangement which has effect of rescinding a contract or disposition of property which is registered according to the law in force for the time being as to the registration of document. In sum and substance what proviso (4) to Section 92 provides is that where a contract or disposition, not required by law to be in writing, has been arrived at orally then subsequent oral agreement modifying or rescinding the said contract or disposition can be substantiated by parol evidence and such evidence is admissible. Thus if a party has entered into a contract which is not required to be reduced in writing but such a contract has been reduced in writing, or it is oral in such situations it is always open to the parties to the contract to modify its terms and even substitute anew by oral contract and it can be substantiated by parol evidence. In such kind of cases the oral evidence can be let in to prove that the earlier contract or agreement has been modified or substituted by new oral agreement. Where under law a contract or disposition are required to be in writing and the same has been reduced in writing, its terms cannot be modified or altered or substituted by oral contract or disposition. No parol evidence will be admissible to substantiate such an oral contract or disposition. Where under law a contract or disposition are required to be in writing and the same has been reduced in writing, its terms cannot be modified or altered or substituted by oral contract or disposition. No parol evidence will be admissible to substantiate such an oral contract or disposition. A document for its validity or effectiveness is required by law to be in writing and, therefore, no modification or alteration or substitution of such written document is permissible by parol evidence and it is only by another written document the terms of earlier written document can be altered, rescinded or substituted.” 13. The aforesaid case was relied upon by the learned Counsel for the respondent in support of his contention that Exhibit A-2 cannot be read in evidence in view of Section 92 of the Evidence Act, evidencing the payment of Rs. 10,000/- to the plaintiff respondent for relinquishment his right under the agreement for sale or that he would not bring any suit against the present defendant appellant. Section 92 of the Evidence Act deals with the exclusion of oral evidence or statements for the purpose of contradicting, varying, adding to, or subtracting from its terms. The contention of the learned Counsel for the appellant is that the said document is admissible in evidence for the reason that it is not an oral evidence. Further such evidence (Exhibit A2) would be admissible to prove the satisfaction of the obligation of the defendant appellant under Exhibit A2 by the plaintiff respondent. Reliance has been placed on a Full Bench judgment of this Court in Collector of Etah v. Kishori Lal and another, AIR 1930 All 721. In that case the Full Bench under point No. 2 in second part of its judgment noticed that "we have to answer is whether a plea of satisfaction of a debt by a registered document, amounts to a plea contradicting, varying, adding to, or subtracting from the terms of the contract.” 14. The fact of the case before the Full Bench was that a registered mortgage deed was in existence between the parties. The defence was that there was an agreement between the parties where under the defendants paid certain amount in full satisfaction of their claim and the plaintiffs took the money without protest and after expiry of the period of two years claimed the money in suit. The defence was that there was an agreement between the parties where under the defendants paid certain amount in full satisfaction of their claim and the plaintiffs took the money without protest and after expiry of the period of two years claimed the money in suit. The defence was that the plaintiffs were not entitled to any things as the mortgage has already been satisfied. In this factual back drop, this Court disagreeing with a decision of Bombay High Court in Jagannath v. Shanker, 54 IC 689 has held that it is open to a mortgagee to remit any portion of debt due to him and the remission does not involve any change in the terms of the original contract. It is true that when the mortgagee accepted the sum of Rs. 800/- and remitted Rs. 1,200/- out of the mortgaged money, the parties entered into a contract. The Full Bench observed that the contract in any way did not seek to alter the terms of original mortgage contract. The aforesaid dictum is fully applicable to the facts of the present case, as rightly submitted by Shri Manoj Mishra, the learned Counsel for the defendant appellant. According to him, the subsequent deed amounts to be the deed of relinquishment rescinding earlier agreement for sale. 15. Proviso 4 to Section 92 of the Evidence Act was pressed into service by the Court below to exclude the admissibility of Ex-A2. Section 92 of the Evidence Act excludes the evidence of oral agreement or statement. In Sarkar’s Law of Evidence (15th Edition 1999) on page 1327 it has been stated by the learned author that the word “oral” in the proviso to Section 92 is used in the sense of being “not committed to writing" and the words “oral agreement” in this Section include all unwritten agreement whether come to by words of mouth, or otherwise. Hence an unwritten agreement though implied from the acts and conduct of the parties is nonetheless oral. Further it has been stated that the words “oral evidence” have been defined in Section 3. The words “oral” or “verbal” are not synonymous with the word “parol” which is not unfit used in a different sense. Hence an unwritten agreement though implied from the acts and conduct of the parties is nonetheless oral. Further it has been stated that the words “oral evidence” have been defined in Section 3. The words “oral” or “verbal” are not synonymous with the word “parol” which is not unfit used in a different sense. The learned author has noticed that the words “parol evidence” have been used in many decisions of the High Court, though sometimes applied to the written matter as opposed to the instrument under seal. Hence sometimes oral testimony or statement is opposed to the written, is in the present connection used to describe all evidence extraneous to the document itself. It follows that Ex-A-2 cannot be termed as oral evidence. 16. There is another aspect of the matter yet. The agreement in question though registered was executed on 20.12.1974. At that time an agreement of sale was not required to be a registered document in the State of U.P. under Section 17 of the Registration Act. It is an acknowledged legal position that an agreement of sale does not by itself create any interest, right or title in the immovable property. In view of Section 54 of the Transfer of Property Act this has been so held by a Full Bench decision of this Court in AIR 1976 All 150 . The explanation attached to Section 17 (2) of the Registration Act before its amendment in U.P. by U.P. Act No. 57 of 1976 reads as follows : “A document purporting or operating to effect a contract for the sale of immovable property shall not be deemed to require or ever to have require registration by reason only of the fact that such document contains a recital of the payment of earnest money or of the whole or any part of the purchase money.” 17. Also it was not disputed by Shri Ravi Kiran, the learned Senior Counsel for the plaintiff respondent that prior to commencement of the U.P. Act No. 57 of 1976 an agreement to sell was not compulsorily registrable. 18. In view of the above discussion, I find sufficient force in the argument of the appellant’s Counsel that the Court below was not correct in excluding the Ex-A1 and Ex-A2 from the evidence. The learned trial Court has placed reliance upon a judgment of Orissa High Court in AIR 1973 Orissa 22. 18. In view of the above discussion, I find sufficient force in the argument of the appellant’s Counsel that the Court below was not correct in excluding the Ex-A1 and Ex-A2 from the evidence. The learned trial Court has placed reliance upon a judgment of Orissa High Court in AIR 1973 Orissa 22. However, the said judgment cannot be relied upon in view of the Full Bench judgment of this Court in the case of Collector of Etah v. Kishori Lal (supra). 19. There is yet another aspect of the case. The present appeal arises out of suit for specific performance of contract to sell. There is no much dispute between the parties that the agreement to sell was executed on 20th of December, 1974. Ex-A1 is a receipt and Ex-A2 is a relinquishment deed. Both these documents were executed by the plaintiff respondent. He in examination-in-chief has admitted his signatures on Ex-A1 and Ex-A2. However, he has stated that he did not receive Rs. 10,000/-. It is difficult to accept the statement of the plaintiff that he did not receive Rs. 10,000/-. The evidence of the defendant appellant is more trustworthy and inspires confidence. Only this much has been stated by him that he lodged a first information report with police station at Jalalabad and did not lodge first information report at Tilhar P.S. Within whose jurisdiction the document Ex-A1 and A2 were executed. A copy of the first information report is Ex-3 wherein it has been stated that he was made to put his antedated signatures at three places and the accused persons have manufactured a document to show that he has received back his money under the agreement of sale. According to the first information report three persons Chhuttan, Munna and Abid were witnesses. None of these persons were examined as his witness in the suit. To give the jurisdiction to the Police Station Tilhar, he has stated in the first information report he brings Gur in the market. It is difficult to believe the story set up by the plaintiff respondent to explain Ex-A1 and A2. Even if it is accepted for the sake of argument that the Ex-A1 and A2 were not admissible in evidence in view of Section 92 of the Evidence Act, it is not a fit case to pass a decree for specific performance of contract to sell. Even if it is accepted for the sake of argument that the Ex-A1 and A2 were not admissible in evidence in view of Section 92 of the Evidence Act, it is not a fit case to pass a decree for specific performance of contract to sell. Section 20 of the Specific Relief Act confers discretionary power to be exercised by a Court in appropriate cases to refuse a decree for specific performance of contract to sell. 20. The Apex Court in Govind Ram v. Gyan Chand, 2001 (1) ARC 342 has held as follows : “It is settled position of law that grant of decree for specific performance is not automatic and is one of the discretion of the Court and the Court has to consider whether it will be fair, just and equitable. Court is guided by the principle of justice, equity and good conscience as stated in P.V. Joseph’s son Mathew v. Nedumbara Kuruvila’s son and others, AIR 1987 SC 2328 . The Court should meticulously consider all facts and circumstances of the case and motive behind the litigation should also be considered.” 21. The above decision has been followed in A.C. Arulappan v. Ahalya Naik, JT 2001 (6) SC 394. 22. In B. Mutthu Swami v. Agnamal and others, JT 2002 (2) SC 410 the same view has been reaffirmed. 23. Coming to the facts of the present case, it is not a fit case to grant a decree for specific performance of contract to sell and the Court below has clearly committed an error of law in decreeing the suit for the same on the footing that the plaintiffs right to have the agreement in force subsisted. 24. In view of the above discussion, the judgment and decree of the trial Court cannot be sustained. The same is hereby set aside. The appeal is allowed and the suit stands dismissed. ————