JUDGMENT Hon’ble S.U. Khan, J.—List revised. In spite of sufficient service as per office report dated 20.9.2007, no one has appeared on behalf of respondents. Heard learned Counsel for the appellant. 2. This is a plaintiff’s second appeal arising out of O.S. No. 529 of 1988. The suit was filed for specific performance for agreement for sale and was decreed on 3.12.1991 by Civil Judge, Allahabad. Against the said judgment and decree, defendants-respondents filed Civil Appeal No. 197 of 1992. Illrd A.D.J., Allahabad allowed the appeal and set aside the judgment and decree passed by the trial Court through judgment and decree dated 17.11.1994 giving rise to the instant second appeal. At the bottom of the Memorandum of Second Appeal, four subbtantial questions of law were stated by the appellant. This appeal was admitted on 3.10.2007 on substantial questions of law No. (i), (ii) & (iv), which are quoted below : “(i) Whether the lower appellate Court acted illegally in reversing the finding recorded by the trial Court on irrelevant circumstances culled out by the lower appellate Court itself? (ii) Whether the lower appellate Court has acted illegally in accepting the vague assertion of fraud and misrepresentation made by the defendants in the written statement without any particulars in the pleading and the evidence on the record? (iv) Whether none of the particulars noticed by the lower appellate Court in support of its judgment, were pleaded in the written statement and proved by the defendants. No suggestion was made at all during the course of evidence and the argument before the trial Court. The lower appellate Court has based its finding only on surmises and conjectures. The finding recorded by the lower appellate Court, therefore, is arbitrary, erroneous, illegal and perverse?” 3. According to the plaint allegations, defendants executed a registered agreement for sale on 15.7.1986 in respect of agricultural property admeasuring two bighas five biswas for a consideration of Rs. 60,000/- after receiving Rs. 35,000/- as earnest money. Initially, the land in dispute alongwith some other agricultural land belonged to Kewal Prasad, who had sold the land in dispute to the defendants on 29.5.1986. The defence taken was that defendants intended to execute agreement for sale of only 1/3 of the land in dispute in favour of Daya Shanker real bother of husband of defendant No. 1 and real brother of defendant No. 2 Girija Shanker. The defence taken was that defendants intended to execute agreement for sale of only 1/3 of the land in dispute in favour of Daya Shanker real bother of husband of defendant No. 1 and real brother of defendant No. 2 Girija Shanker. It was also stated that they intended to execute the agreement after receiving Rs. 3,500/- as earnest money out of total agreed sale consideration of Rs. 9,000/-. However, plaintiff, who was their near relation got the sale deed executed in his favour taking advantage of illiteracy of defendants. It was also stated that defendants did not receive Rs. 35,000/-. Trial Court found that the agreement was, in fact, executed after receiving Rs. 35,000/- by the defendants. 4. The lower appellate Court on conjectures and surmises held that the agreement for sale was result of fraud and collusion. 5. One of the reasons given by the lower appellate Court is that immediately after receipt of original sale deed executed by Kewal Prasad in favour of the defendants, agreement for sale was got executed and till then even the names of defendants had not been mutated in the revenue record on the basis of sale deed through which they had purchased the land in dispute. In my opinion, this was wholly irrelevant circumstance. Moreover, defendants had admitted that they intended to execute agreement for sale but in favour of Daya Shanker. The second reason given by lower appellate Court is that two years period was fixed to execute the sale-deed, which was unnatural and it was stated in the agreement that plaintiff did not have sufficient ready money to meet the expenses of sale-deed. In my opinion, this reasoning of the lower appellate Court is also erroneous as normally some time is fixed for execution of the sale deed in the agreement for sale. Lower appellate Court has also held that during two years’ period, price could have escalated. This argument is also irrelevant as about 55% sale consideration had been given as earnest money and possession had also not been given to the vendee, hence escalation of market value would not have adversely affected the defendants. 6. Lower appellate Court has also mentioned that earnest money was not paid before the Registrar but was shown to have been paid in the village. In this regard, before the Registrar, defendants admitted that earnest money had been paid to them earlier. 6. Lower appellate Court has also mentioned that earnest money was not paid before the Registrar but was shown to have been paid in the village. In this regard, before the Registrar, defendants admitted that earnest money had been paid to them earlier. This admission was sufficient. Lower appellate Court also mentioned that plaintiff did not show that from where he got Rs. 35,000/-. It was wholly irrelevant to show the source of money. 7. Next reason given by the lower appellate Court is that husband of defendant was literate, hence he should have been made a witness of the agreement. Normally witnesses are of the vendee and not of the vendor. Lower appellate Court also mentioned that receipt of payment was also not obtained in the presence of husbands of the lady defendants. This was also wholly irrelevant. 8. The ultimate finding of the lower appellate Court is that defendants neither entered into any agreement nor received any earnest money and alleged agreement for sale is beyond real state of affairs (vastwikta se pare). Lower appellate Court has not discussed any evidence. Appeal has been decided only on conjectures and surmises. 9. Execution of the agreement was admitted by the defendants, they only pleaded fraud and misrepresentation. Under Order VI Rule 4, C.P.C., it is essential to state the particulars of fraud and misrepresentation. The lower appellate Court did not say a single word about the facts pleaded by the defendants to the effect that they did intend to execute the agreement for sale but in favour of another person. Order VI Rule 4, C.P.C. is quoted below : “4. Particulars to be given where necessary.—In all cases in which the party pleading relies on any misrepresentation, fraud, breach of trust, wilful default, or undue influence, and in all other cases in which particulars may be necessary beyond such as are exemplified in the forms aforesaid, particulars (with dates and items if necessary shall be stated in the pleading”. 10. In the instant case, in the written statement absolutely no particulars of fraud or misrepresentation were given as required by Order VI Rule 4, CP.C, There are only general allegations in the written statement, which fall short on requirement of Order VI Rule 4, C.P.C. [vide AIR 1976 SC 163 , Afsar Shaikh v. Soleman Bibi and AIR 1977 SC 615 , Varanasaya Sanskrit Vishwavidyalaya v. Dr. Rajkishore Tripathl]. Rajkishore Tripathl]. 11. Accordingly, the above substantial questions of law are decided in favour of the appellant and it is held that the appellate Court not deny the relief and hold that no agreement had been executed as alleged by the plaintiff on the vague assertions in the written statement without there being any particulars of fraud and misrepresentation as required by Order VI Rule 4, C.P.C. Moreover, appellate Court has based its judgment upon conjectures and surmises and the circumstances, which were not even pleaded by the defendants. It is not at all permissible under law. 12. Accordingly, second appeal is allowed. Judgment and decree passed by the lower appellate Court is set aside. Judgment and decree passed by the trial Court is restored. ————