Judgment :- This appeal is filed by the first defendant as against the decree and judgment made in OS.No.155 of 1983 on the file of the Court of Subordinate Judge, Machilipatnam, Krishna district. The said appellant died during the pendency of the appeal and appellant no.2 was brought on record as his legal representative, who is at present prosecuting the present litigation. The respondent is the plaintiff and second defendant is shown as not necessary party to the appeal. 2. The facts in brief are as hereunder: The respondent herein-plaintiff instituted OS.No.155 of 1983 on the file of the Court of Subordinate Judge, Machilipatnam, praying for the relief of specific performance and for other ancillary relief’s. The suit was resisted by filing written statement and after settlement of issues, the learned Judge recorded the evidence of PWs.1 to 6 and DWs.1 to 5 and also marked Exs.A1 to A16 and Exs.B1 to B17 and ultimately came to the conclusion that the respondent herein-plaintiff in the suit is entitled for the relief of specific performance. Aggrieved by the same, the present appeal was preferred. 3. Contentions of Sri G. Vidyasagar : Sri G. Vidyasagar, the learned counsel representing the appellant made the following submissions: The counsel would submit that the document in controversy on the strength of which the suit was instituted is a forged document and in fact the expert also opined that the signatures do not tally but however unfortunately due to the death of the counsel the said expert was not examined. The learned counsel would also submit that the fact that the sister of respondent-plaintiff is the wife of first appellant i.e., present second appellant in the appeal, who was brought on record as legal representative, is not in serious controversy. The counsel would also submit that on careful reading of the respective pleadings of the parties and also the evidence available on record, it is clear that the first appellant-first defendant owned substantial properties. Whereas the respondent-plaintiff is not so rich and apart from the said fact large family is depending on him and he has no capacity to raise such funds to purchase the property. The learned counsel also pointed out the episode of Sridevi and would maintain that in the light of the differences which arose between the parties, this litigation had been thought of. The learned counsel also pointed out the episode of Sridevi and would maintain that in the light of the differences which arose between the parties, this litigation had been thought of. While further elaborating his submissions, the learned counsel would also maintain that though PW.4 one of the attestors had been examined, the said witness was treated as hostile and he had not supported the version of PW.1. The learned counsel would also maintain that the other witnesses PWs.2 and 3 no doubt deposed that they were present at the time of transaction and the nature of evidence in this regard appears to be more artificial and hence in view of the same, agreement of sale may have to be viewed with suspicious. The learned counsel had taken this court through the oral evidence available on record in detail apart from the documentary evidence placed before the court and would contend that in the light of the facts, the learned Judge instead of negativing the relief of specific performance had totally erred in decreeing the suit. The learned counsel would also point out that these lands are fertile lands yielding substantial income and hence the stand taken by the respondent-plaintiff that the first appellant-defendant would have agreed to sell the said property at a paltry sum also cannot be believed. The counsel would also maintain that merely because tenancy pleaded by the second defendant is not believed. That may not be a ground to grant the relief of specific performance. The counsel also would contend that at any rate the relief of specific performance being discretionary in the light of the nature of the evidence adduced by the parties decreeing the suit for specific performance as such cannot be sustained. 4. Contentions of Sri M.Y.K. Rayudu: Sri M.Y.K. Rayudu, the learned counsel representing the respondent-plaintiff would maintain that neither the expert was examined nor the report of the expert had been marked. Hence this aspect may not have any serious impact on the findings recorded by the learned Judge. The learned counsel would also maintain that even from certain of the admissions made by DW.1 it is clear that PW.1 was having capacity to purchase the property and hence the capacity of PW.1 in this regard cannot be doubted. Hence this aspect may not have any serious impact on the findings recorded by the learned Judge. The learned counsel would also maintain that even from certain of the admissions made by DW.1 it is clear that PW.1 was having capacity to purchase the property and hence the capacity of PW.1 in this regard cannot be doubted. The learned counsel also had explained the relevant date of agreement of sale in question, the marriage of Sridevi and the respective stands taken by the parties and would maintain that at any stretch of imagination the version of the first appellant-first defendant cannot be believed. While further elaborating his submissions, the learned counsel had pointed out to the evidence of PW.4 the attestor of the agreement of sale and would maintain that although this witness was declared as hostile in this suit, the evidence of this witness in ATC would clearly go to show that for certain reasons he had gone back on his prior deposition and had deposed in a particular fashion in a half-hearted manner and hence the evidence of PW.4 is not trustworthy. Even otherwise, the learned counsel would submit that inasmuch as the fact that he had signed the agreement of sale had been admitted and up to that extent he had supported the version of PW.1 and taking overall conduct of PW.4 into consideration the learned Judge recorded reasons in detail. The learned counsel would also submit that even if the evidence of PW.4 to be discarded it is not as though, there is no other evidence on record, the evidence of PWs.2 and 3 is available on record, which would clearly support the version of PW.1. In a case of this nature, whether the attestor of the document in question if declared hostile, the other evidence can be relied upon, the counsel placed strong reliance on the decision in BANDARU VEERAMMA AND ORS. V/s. CHIRRAVURI RAMAKRISHNA SARMA AND ORS (AIR 1976 ANDHRA PRADESH-370). While further elaborating his submissions, the learned counsel would point out that the agreement of sale is not a compulsorily attestable document and in the light of the other evidence and on the strength of evidence of PW.1, the decree can be granted. V/s. CHIRRAVURI RAMAKRISHNA SARMA AND ORS (AIR 1976 ANDHRA PRADESH-370). While further elaborating his submissions, the learned counsel would point out that the agreement of sale is not a compulsorily attestable document and in the light of the other evidence and on the strength of evidence of PW.1, the decree can be granted. The learned counsel would submit that the contentions, which are being advanced by the appellant's counsel at present, had not been raised by way of specific pleas in the written statement. The learned Judge having observed the demeanor of the witnesses, taking the conduct of the parties into consideration recorded categorical finding that PW.4 and DW.1 are false witnesses and in that view of the matter, ultimately decreed the suit. While concluding the counsel also pointed out that this court as appellate court normally to be slow in disturbing such well- considered findings of the trial court. Reliance was placed on the decisions in NARBADA PRASAD V/s. CHHAGANLAL AND ORS (AIR-1969 SC-395), JAVVAJI GNANA SRIRAMULU V/s. CHALLA MUTHAIAH (1981 (2) ALT-339). 5. Heard the counsel. Perused the respective pleadings of the parties, the evidence available on record and also the findings recorded by the learned trial Judge. 6. PLEADINGS OF THE PARTIES: For the purpose of convenience, the parties hereinafter would be referred to as "plaintiff" and "defendants" as shown in OS.No.155 of 1983 aforesaid. 7. AVERMENTS MADE IN THE PLAINT: It was pleaded in the plaint, as hereunder: For discharging his debts, the first defendant agreed to sell to the plaintiff, the plaint schedule land covering an extent of Acs:5-39 cts., in RS.No.532/1-A and Ac:0-15 cents in RS.No.l494/4 of Pedagonnuru village for Rs.55,400-00 and executed an agreement of sale dated 4-4-1983 receiving an advance of Rs.50,000-00 and delivered the possession of the plaint schedule property to the plaintiff on the same date. It was agreed that the balance of sale consideration of Rs.5,400-00 (Rs.5400-00) has to be paid on 30-6-1983 and the first defendant to execute a proper sale deed in favour of the plaintiff or his nominee. If the balance of sale consideration is not paid within the stipulated time, it carries interest at 24% p.a. A month later disputes arose between the plaintiff and the first defendant, who is no other than the plaintiff's sister's husband regarding the marriage of the plaintiff's daughter Sree Devi which took place n the month of May, 1983. If the balance of sale consideration is not paid within the stipulated time, it carries interest at 24% p.a. A month later disputes arose between the plaintiff and the first defendant, who is no other than the plaintiff's sister's husband regarding the marriage of the plaintiff's daughter Sree Devi which took place n the month of May, 1983. The first defendant had refused to execute and register the sale deed and the plaintiff was always ready and willing to perform his part of the contract and he is ready to pay the balance of sale consideration. So the plaintiff issued a notice to the defendant for which the defendant issued a reply with all false allegations. The plaintiff raised seed bed in an extent of Ac:0-30 cts., on 22-6-1983. The first defendant set up the second defendant as a lessee and on 1-7-1983 got filed a petition in ATC.No.6 of 1983 with false allegations only to avoid to execute the sale deed a false tenancy was set up. Therefore, he is entitled to the reliefs prayed for in the plaint. 8. AVERMENTS MADE IN THE WRITTEN STATEMENT OF THE FIRST DEFENDANT: It was pleaded in the written statement of the first defendant as hereunder: The first defendant denied the execution of the agreement of sale in favour of the plaintiff and the receipt of Rs.50,000-00 towards advance. The delivery of the possession of the land is also denied. The other terms alleged in the plaint in respect of the sale of agreement are also denied by the first defendant. It is further contended in the written statement that the first defendant and his wife intended to adopt the plaintiff's daughter by name Sri Devi and give her in marriage to one Sai babu who is the son of Ragala Simhadri, a relative of the defendant. The first defendant and his wife came to know that Sri devi never harboured any idea of marrying Sai Babu and Sai babu also did not agree to marry Sri D3evi. Then the first defendant and his wife dropped the idea of fostering Sri Devi. Hence, the first defendant surmises that the plaintiff having failed in his scheme to take possession of the lands of the issueless defendant might have devised the present suit to have wrongful gain. The first defendant also did not evince any interest in that proposal made by the plaintiff. Hence, the first defendant surmises that the plaintiff having failed in his scheme to take possession of the lands of the issueless defendant might have devised the present suit to have wrongful gain. The first defendant also did not evince any interest in that proposal made by the plaintiff. The plaintiff grew wild and has given out that eh would see that the defendant and his wife were ruined. The first defendant, who is a bare signatory that too with difficulty he signs his name. Therefore, the plaintiff might have created the agreement of sale by forging the signature of the first defendant. The second defendant is the lessee for item no.1 of the plaint schedule land for the last 6 or 7 years. It is also false to contend that he made the second defendant to file the ATC.No.6 of 1983 in August 1983. The plaintiff made an attempt to take away the paddy cut in item no.1 of the plaintiff but could not succeed as the first defendant issued a report to the police. The plaintiff is not entitled to any relief. 9. AVERMENTS MADE IN THE WRITTEN STATEMENT OF SECOND DEFENDANT: The second defendant filed his written statement contending that the first defendant delivered possession of the plaint schedule land to the plaintiff on 4-4-1983 is false. The second defendant has been in possession of the plaint schedule property as a lessee under the first defendant since a long time prior to 4-4-1983. In view of the threats hurled by the plaintiff contending that he will be disturbed from his lawful possession, he was constrained to file the tenancy petition before the Special Officer and obtained the orders of injunction restraining the plaintiff and others from interfering with his enjoyment of item no.1 of the plaint schedule property. This court has no jurisdiction to entertain the suit. The second defendant is neither proper nor necessary party to the suit and the suit is liable to be dismissed. 10. ISSUES SETTLED BEFORE THE TRIAL COURT: The following issues were settled before the trial court : (1) Whether the agreement of sale dated 4-4-83 (4-4-83) is true valid and binding on the first defendant? (2) Whether the plaintiff is entitled to the relief of specific performance of agreement of sale dated 4-4-83? (3) Whether the plaintiff is entitled to the alternative relief prayed for in the suit? (2) Whether the plaintiff is entitled to the relief of specific performance of agreement of sale dated 4-4-83? (3) Whether the plaintiff is entitled to the alternative relief prayed for in the suit? (4) Whether the second defendant is not a proper and necessary party to the suit? (5) Whether this court has jurisdiction to decide the issue whether the second defendant is a tenant in respect of the plaint schedule property? (6) To what relief? 11. ORAL EVIDENCE AVAILABLE ON RECORD: On behalf of the plaintiff, PWs. 1 to 6 were examined. On behalf of defendants DWs.1 to 5 were examined. 12. DOCUMENTARY EVIDENCE AVAILABLE ON RECORD: On behalf of plaintiff, Exs.A1 to A16 were marked. On behalf of defendants Exs.B1 to B17 were marked. 13. FINDINGS RECORDED BY THE TRIAL COURT: While answering issues 1, 4 and 5, the learned Judge recorded a finding that the plaintiff by examining himself as PW.1 and also marking Exs.A6 to A8, A12 and A13 and also by examining PW.4 established that the first defendant executed the agreement of sale having received the advance sale consideration of Rs.50,000-00. While answering issue nos. 4 and 5 the learned Judge recorded a finding that the second defendant is not at all the tenant of the first defendant and he was set up by DW.1 to cause loss to the plaintiff. The learned Judge ultimately came to the conclusion that the plaintiff is entitled for the relief of specific performance. 14. POINTS WHICH ARISE FOR CONSIDERATION IN THIS APPEAL : (1) Whether the findings recorded by the Court of first instance relating to agreement of sale dated 4-4-83 under Ex.A9 are sustainable in the facts and circumstances of the case? (2) Whether the plaintiff is entitled to the relief of specific performance in the facts and circumstances of the case? (3) To what relief the parties would be entitled to? 15. Issue Nos. 1 and 2 : Both these points be discussed together for the purpose of convenience. The specific stand taken by the first defendant in the written statement is that Ex.A1 is a forged document and hence the same is not binding him. The first defendant, who had examined himself as DW.1, is no other than the brother-in-law of the plaintiff-PW.1. 1 and 2 : Both these points be discussed together for the purpose of convenience. The specific stand taken by the first defendant in the written statement is that Ex.A1 is a forged document and hence the same is not binding him. The first defendant, who had examined himself as DW.1, is no other than the brother-in-law of the plaintiff-PW.1. The stand taken by the plaintiff is that by virtue of Ex.A1, the first defendant agreed to sell the plaint schedule agricultural land in favour of the plaintiff having received an advance of sale consideration of Rs.50,000/- and agreed to execute a registered sale deed after receiving the balance sale consideration of Rs.5,400/- by giving specific date and delivery of possession of the property also had been recited in the said agreement of sale. The stand taken by the first defendant is that the said land has been in possession and enjoyment of the second defendant as tenant for the last seven or eight years. It is the further stand taken by the defendant that since he was not acceptable to take the daughter of the plaintiff one Sri Devi along with her husband and to give some property to them, the plaintiff had thought of forging his signature on Ex.A1 and instituted the suit claiming the relief of specific performance. The first defendant examined himself as DW.1 as already aforesaid and his wife was examined as DW.2. DW.1 deposed that he is having Acs:15-00 of land and PW.1 has got three other brothers and four 4 sisters and had inherited a thatched house of his father and he has no brothers or sisters and he had no issues also and his lands are double crop wet lands. DW.1 also deposed that he had constructed a dhaba house in the place of thatched house and he is in the habit of depositing income from the agricultural lands and his wife is supervising the construction of dhaba house with the income from the lands and also withdrawing some amount from the bank deposits. Ex.B4 is the certificate issued by the Branch Manager, State Bank of India, Gudivada to show that he had withdrawn fixed deposit amount. Ex.B4 is the certificate issued by the Branch Manager, State Bank of India, Gudivada to show that he had withdrawn fixed deposit amount. He did not borrow any amounts from others for the purpose of construction and he did not borrow Rs.10,000/- from PW.2 and another Rs.11,000/- from Katakam Subba Rao and he never sold Acs:5-38 cents of land to PW.1 and another vacant site to PW.1 to discharge his debts. This witness had taken a specific stand that he never executed any contract of sale in favour of PW.1 and he never received Rs.50,000/- from PW.1 out of total consideration of Rs.54,500/- under the agreement of sale. DW.1 also deposed that they had never gone to the house of Adavi Ramaiah and he had paralysis stroke on his right hand and he had never delivered vacant possession of land to PW.1 and he can sign with his left hand and he cannot identify the signature on the promissory note. One Bandi Suryanarayana used to cultivate the plaint schedule land on lease and he died but he does not remember when he died. After his death, his brother DW.2 is cultivating the suit land as tenant. DW.1 also deposed that due to his incapacity to manage the properties, his wife was managing the properties on his behalf and his father-in-law died in the dhaba house and PW.1 and his brother Sambaiah had driven away his father from their house. Then DW.1 and his wife brought him to the house and they were looking after him. This witness also deposed that PW.1 did business in a sundry shop and PW.1 and his brother partitioned five acres of land belonging to their father. Originally PW.1 had a thatched house. Subsequently PW.1 constructed a dhaba house.. This witness also deposed that PW.1 constructed a dhaba house and subsequent thereto he had constructed his dhaba house. DW.1 also deposed that he requested PW.1 to give his daughter in marriage to Saibabu, his cousin's son and for that proposal Sri Devi did not accept. She was married to the son of Kanakarao. After the marriage PW.1 asked DW.1 to keep his daughter Sri Devi and son-in-law in his house to which he has not agreed. Then he told him that he will see (nipani chustana). She was married to the son of Kanakarao. After the marriage PW.1 asked DW.1 to keep his daughter Sri Devi and son-in-law in his house to which he has not agreed. Then he told him that he will see (nipani chustana). This witness, PW.1 and PW.1's brother Sambaiah jointly purchased vacant site in Uppalagudem and they have divided that land on one side PW.1 got his share and he got a share in the middle on the other side Sambaiah got his share. This witness also deposed that his wife is paying taxes on his behalf. Exs.B5 to B14 are the land revenue receipts. Ex.B15 is the ryotwari pass book issued to him. After receiving notice from PW.1 prior to the filing of the suit, DW.1 and his wife went to Gudivada and got issued reply notice to PW.1 through his advocate. Ex.B16 is the office copy of reply notice. This witness also deposed that they had no intention to adopt the son of PW.1 and he need not execute any sale deed for the plaint schedule properties in favour of PW.1. In the lengthy cross- examination of DW.1 several suggestions put to him were denied. DW.1 deposed in his cross-examination that he had paralytic stroke when he was aged about one year and by that time his father died and he was aged about forty years and after the death of his father he was married and his father predeceased his father-in-law. This witness deposed that he does not know the total extent of PW.1's land and PW.1 has got one son and two daughters. Since the marriage of Sri Devi, disputes arose in between him and PW.1 and they had not brought up Sri Devi from her childhood but they thought of marrying Sri Devi to his cousin son Sai Babu and keep them into his house. DW.1 deposed that he did not attend the marriage of Sri Devi and his wife also did not attend the marriage of Sri Devi. PW.1 did not invite him to the said marriage. This witness also deposed that at the time of settlement of marriage, he was not called. By that time disputes arose between DW.1 and PW.1. This witness no doubt deposed that he got mentioned in written statement that PW.1 asked to keep his daughter and son-in-law in his house. PW.1 did not invite him to the said marriage. This witness also deposed that at the time of settlement of marriage, he was not called. By that time disputes arose between DW.1 and PW.1. This witness no doubt deposed that he got mentioned in written statement that PW.1 asked to keep his daughter and son-in-law in his house. PW.1 did not ask him to give some property to his daughter and son-in-law and he did not instruct his advocate that PW.1 asked some property to his daughter and son-in-law from item no.1 of the schedule. This witness also deposed that DW.2 did not file tenancy petition against him. After filing the suit DW.1 vacated the land since DW.1 was cultivating the land. Several questions were put to this witness relating to the tenancy petition. This witness again deposed that his wife attended the marriage and presented some amount. To several questions this witness answered his wife may know those aspects. This witness deposed that he know Kaza people and he also knows Ramaiah and Suraiah who worked as clerks and he has no enmity with Ramaiah and Suraiah. This witness also deposed that Ramaiah is not a document writer but Karnam will be writing documents. This witness deposed that PW.1 purchased land from the income from the business and arrack contracts. Since one or two years his sight is not good and he has signed on papers received from the court but he now cannot identify them. This witness was cross-examined in relation to the petition and the signature and other aspects. This witness specifically denied suggestion deposing that it is not true to suggest that DW.1 and his wife went to Pedda Gonnuru and that agreement was written by Adavi Ramaiah at Pedda Gonnuru and Srivarapu Sanyasi Rao and PW.4 and PW.2 were present. Several other suggestions had been denied. It may be appropriate to have a look at the evidence of DW.2 also on this juncture, who is no other than the wife of DW.1 and sister of PW.1. This witness deposed that D1 is her maternal uncle. She also deposed that D1 has got Acs:11-00 of land and she has been looking after the affairs and she had also deposed about purchase of certain lands and also leasing out the lands. This witness deposed that D1 is her maternal uncle. She also deposed that D1 has got Acs:11-00 of land and she has been looking after the affairs and she had also deposed about purchase of certain lands and also leasing out the lands. She also deposed that the suit lands are fertile lands and they are not liable for submersion. Prior to the lease of the land to D2 they have leased the land to his elder brother Suryanarayana. This witness deposed that PW.1 got Ac:11/2 of land and he never did business either in Excise contracts or paddy commission business and PW.1 is having a small sundry shop in the Vasara of his house. She had also deposed in detail about the episode of Sri Devi, who is supporting the stand taken by DW.2 in this regard. She also deposed that having suggested not to contest ATC since they had leased out the lands to DW.2, she had denied certain aspects regarding borrowings of the amounts. In the cross-examination she had deposed about there were no disputes between her family and the family of PW.1 and there were no dealings between her and PW.1 since for the last nine years. Since one year prior to Sri Devi's marriage differences arose between her and PW.1 and since then they were not in good terms. This witness also deposed that they were not invited at the time of engagement of Sri Devi but they were invited for the marriage. She attended the marriage but DW.1 did not attend the marriage. This witness also repeated the same version as DW.1 in relation to the demand made by PW.1 to keep his daughter and son-in-law in their house. This witness specifically deposed that they completed the construction of Dhaba house within one year and they spent Rs.55,000/- and she collected from her debtors and this witness also deposed that she gave Rs.7000/- to K.Reddy, Rs.5000/- to Subba Rao, Rs.5000/- to Bandaru Krishna, Rs.5000/- to Reddy Appa Rao and Rs.4000/- to Bandaru Chinnamaiah. Since five or six years she advanced amounts to them but she cannot say when exactly these amounts were given to them and they executed pronotes in her favour and she had returned them after discharging the promissory notes and still she is having an amount of Rs.10,000/-. Since five or six years she advanced amounts to them but she cannot say when exactly these amounts were given to them and they executed pronotes in her favour and she had returned them after discharging the promissory notes and still she is having an amount of Rs.10,000/-. This witness also deposed that PW.1 carrying Kirana business for three years and since ten years he is not doing Kirana business and she cannot say the extents of land having to PW.1's brothers. This witness specifically deposed that it is not true to suggest that PW.1 is having Acs:15-00 of land. This witness was cross-examined at length relating to certain property particulars and several of the suggestions were put to her in relation to tenancy petition and in relation to the suit transactions had been specifically denied. This witness was specifically denied the suggestion that they borrowed Rs.55,000/- from Marvadi of Gudivada and K.Subba Rao and Simhachalam, PW.2. She denied all the suggestions relating to the agreement of sale in question. In the light of the specific stand taken by DWs.1 and 2 in relation to the episode of Sri Devi and also in relation to the suit transaction, it would be appropriate to have a look at the evidence of PW.1 for better appreciation of the facts and circumstances of the case. 16. PW.1 deposed that first defendant is his maternal uncle and his sister was given in marriage to him. This witness deposed in detail relating to the relationship and also the lands were being looked after. This witness also deposed that his sister had been looking after the first defendant. PW.1 further deposed that his sister requested him to get construction of Dhaba house and also in the place of her old house and by spending about Rs.80,000/- and odd Dhaba was constructed for D.1. After completion of construction of the house and two years thereafter due to the pressure from the creditors she intended to sell Acs:5-39 cents of wet land and Ac:0-15 cents of dry land and PW.1 was asked her to sell the land to him and he is ready to pay at the market rate. After completion of construction of the house and two years thereafter due to the pressure from the creditors she intended to sell Acs:5-39 cents of wet land and Ac:0-15 cents of dry land and PW.1 was asked her to sell the land to him and he is ready to pay at the market rate. PW.1 also deposed that told his sister that the adjacent land was sold by a pleader at the rate of Rs.10,000/- per acre and hence he was ready to pay at that rate only and his sister informed him after consulting D1 that she will inform him and on the next day D.1 and his wife came to him and agreed to sell the land at the rate offered by him and he was ready to pay Rs.40,000/-on the date of agreement but D.1 and his wife insisted for payment of Rs.50,000/- for that also he agreed and he had also agreed to purchase hayrick yard at the same rate and he agred to pay the balance in two months thereafter and to obtain regular registered sale deed. This witness also deposed that if he failed to pay the balance sale consideration within two months, he agreed to pay 24% interest p.a., with the above conditions, he had obtained sale agreement from them. The sale deed was executed at Peddagonnuru, which is hamlet of Peddagonnuru and the Karnam is a resident of Peddagonnuru. PW.1, DW.1, DW.2 i.e., wife of DW.1 and Ragala Rangarao, Siripurapu Sanyasi Rao and one Gorre Simhachalam, all of them went to Karnam's house and the Karnam was not in the house. As the Karnam was not available, they had gone to the house of Adavi Ramaiah, a document writer, clerk of Khaza people. Adavi Ramaiah went to Karnam and brought the book and scribed the agreement in the presence of all the above persons. He had given instructions for drafting the sale agreement and the same was drafted. He purchased Rs.5/- stamp and the agreement was written on it. Another clerk of Khaza people by name, Wadavalli Suraiah came there at the time of writing the agreement of sale. PW.1 and Ramaiah told him that inasmuch as the drafting the agreement of sale was going on after completion he will come there and Wadavalli Suraiah also stayed there till the completion of writing of the agreement. Another clerk of Khaza people by name, Wadavalli Suraiah came there at the time of writing the agreement of sale. PW.1 and Ramaiah told him that inasmuch as the drafting the agreement of sale was going on after completion he will come there and Wadavalli Suraiah also stayed there till the completion of writing of the agreement. The contents of agreement were read over to all of them by Adavi Ramaiah. All of them agreed for the contents as correct and he paid Rs.40,000/- and he took Rs.10,000/- from Rangarao and in total he paid Rs.50,000/- to the scribe. After that scribe obtained the signature of D.1 on the agreement and also obtained the signatures of attestors, Ramaiah gave the amount of Rs.50,000/- to the first defendant and then he endorsed as scribe. This witness also deposed that till the execution of Ex.A1 Suraiah was there. As per agreement, it was agred that the possession of the land should be delivered to him. This witness also deposed about his family affairs and further deposed about his sister told him and his daughter that she will perform his daughter's marriage with one Ragala Sai babu and his daughter did not agree for that proposal and refused to marry him. Then he performed his daughter's marriage with another boy and sister and D.1 did not attend the marriage. He requested D.1 and his sister to receive the balance and execute registered sale deed. Again on the next day he went and asked her to register the document but she refused to register the document stating that PW.1 deceived her. He had deposed the amount in Indian Bank, Gonnuru branch and got issued registered notice. Ex.A1 is the agreement of sale, Ex.A2 is the certified copy of registered notice got issued by PW.1 to D.1. After receipt of the above notice, D.1 got filed a tenancy petition to D2 against PW.1, Dw.1 and DW.2 as well. D1 also gave reply notice to Ex.A2 notice. Ex.A3 is the certified copy of reply notice. D1 and his wife DW2 did not engage any advocate in the tenancy proceedings. Ex.A4 is he certified copy of order of the Special Officer, Kaikalur in ATC.No.6 of 1983. D2 preferred an appeal against the orders of Special Officer in ATA.No.10 of 1985. D1 also gave reply notice to Ex.A2 notice. Ex.A3 is the certified copy of reply notice. D1 and his wife DW2 did not engage any advocate in the tenancy proceedings. Ex.A4 is he certified copy of order of the Special Officer, Kaikalur in ATC.No.6 of 1983. D2 preferred an appeal against the orders of Special Officer in ATA.No.10 of 1985. D1 and his wife did not appear in ATA.No.10 of 1985 nor contested and the appeal was dismissed. Ex.A5 is the certified copy of order in ATA.No.10 of 1985 on the file of the Court of District Judge, Krishna at Machilipatnam. This witness also deposed that D2 preferred a Revision before the High Court. This witness further deposed that he had examined the attestors of Ex.A1 in tenancy proceedings. Now Ragala Rangarao is against him since D1 and his wife promised to bring up his son. The scribe of Ex.A1 is no more. The first attestor Sripurapu Sanyasi Rao is also against him because his son did not agree to marry his daughter. This witness deposed that he was ready and willing to perform his part of the contract. Hence he filed the suit for specific performance and also alternatively he claimed to refund the amount with interest. In the cross-examination by D1, several details had been elicited. This witness deposed that Parvathamma and Kankaiah did not attend the marriage but with some one they sent a presentation gold to Sri Devi. This witness also deposed in the cross-examination that he got issued Ex.A2 notice after the marriage of Sri Devi. This witness no doubt denied several suggestions relating to Ex.A2. This witness also deposed that he cannot say whether Ex.B1 was issued by his advocate to D.1 and he does not remember whether the dates as mentioned in Ex.B1 are correct or not and also he cannot say whether the correction in the month portion of date at one place at Ex.B2 is date corrected in Ex.B1. Ex.B3 is the date put by the advocate under his signature as found in Ex.B1. Ex.A1 is dated 04-4-1983. This witness deposed that it is not true to say that to grab the property of D.1, he forged Ex.A1 agreement and went to his advocate at Gudivada on 20-4-1983 and gave instructions to him to issue notice but for some reasons he asked him not to issue notice. Ex.A1 is dated 04-4-1983. This witness deposed that it is not true to say that to grab the property of D.1, he forged Ex.A1 agreement and went to his advocate at Gudivada on 20-4-1983 and gave instructions to him to issue notice but for some reasons he asked him not to issue notice. Several details had been elicited relating to his family and several other particulars relating to partition and the other details. This witness also deposed that he had purchased Acs:12-00 independently and got sale deeds and he had purchased in the name of Lakshmi Kumari and Sampurna towards paspu-kum-kuma. He spent only Rs.6000/- to celebrate Sri Devi's marriage. This witness also deposed that it is not true to suggest that he failed to lookafter his father in his last days and his sister Parvathamma lookafter him in his last days. PW.1 further deposed that he had his meals in the house of Parvathamma for six months because of disputes between PW.1 and Sambaiah. This witness also deposed that he got dealings with Khaza people since 1970 and he had dealings with Raja Ramanandam and his brothers. Raja Ramanandam family got two plots. Two clerks Adavi Ramaiah and Vodavalli Suraiah. The negotiations for the purchase of land covered under Ex.A1 were finalized on 2-4-1983 and by then he was having cash of Rs.40,000/-. The details relating to the cash and other particulars had been narrated by this witness and several particulars were elicited in the cross-examination and this witness deposed that he borrowed Rs.10,000/- from Ragala Ranga Rao to pay the consideration under Ex.A1. It was only a hand loan and he did not execute any pronote in favour of Ragala Ranga Rao. This witness also deposed that he did Excise contract work in October 1983 and he had participated in the auction for the year 1982-83. Certain suggestions were to the extent of land owned by D.1 also had been denied. Several details relating to his purchase of land and the extent had been elaborately deposed. This witness specifically deposed in the cross-examination that by the date of Ex.A1 there was no dispute between him and his sister. Except D1 and his wife there were no other members to be maintained by D.1 and he asked them why they had incurred debts. They told him that they incurred debts for the construction of dhaba. This witness specifically deposed in the cross-examination that by the date of Ex.A1 there was no dispute between him and his sister. Except D1 and his wife there were no other members to be maintained by D.1 and he asked them why they had incurred debts. They told him that they incurred debts for the construction of dhaba. After execution of Ex.A1, D.1 told him the name of persons from whom he borrowed the amounts. D1 also told him that he borrowed by pledging gold with Gudivada Madvadi and Katakam Subba Rao of Sriharipuram and Marri Simhachalam of his village. Varri Simhachalam is his brother-in-law i.e., his wife's elder brother. This witness also deposed that personally he know the discharge of debts by D.1 belonging to Gudivada Marvad and Katakam Subba Rao, as he was personally present at the time of discharge. ?This witness had given particulars that defendant borrowed Rs.10,000/- from Marvadi, Rs.11,500/- from Katakam Subba Rao and Rs.10,000/-from his brother-in- law. This witness had taken a specific stand that the agreement of sale is a bonafide transaction and not a forged document. Several suggestions put to this witness in relation to Ex.A1 had been specifically denied. This witness also deposed that ten days after Ex.A1 his daughter Sri Devi expressed her unwillingness to marry Sai babu and five or six days later he informed D1 and his wife about the unwillingness of Sri Devi to marry Sai babu and asked them to forget about the alliance. The suggestion put in relation to Sri Devi also had been denied. In the cross-examination of D2 this witness deposed that D2 is not related either to PW.1 or D.1 or his wife. Certain suggestions put to this witness in the cross-examination of D2 also had been denied. PW.4 is the only witness who was examined who is said to have attested the agreement of sale in controversy. This witness deposed that he does not know about the purchase of land by the plaintiff and D.1 and he knows one Adavi Venkat Kanka Ramaiah and he is no more and he is resident of Pedda Gonnuru. He died about two years back. He does not know whether Advai Venkata Kanka Ramaiah used to scribe documents. This witness deposed that he does not know about the purchase of land by the plaintiff and D.1 and he knows one Adavi Venkat Kanka Ramaiah and he is no more and he is resident of Pedda Gonnuru. He died about two years back. He does not know whether Advai Venkata Kanka Ramaiah used to scribe documents. D2 filed tenancy petition against plaintiff, D1 and his wife on the file of Special Officer, Kaikaluru and he deposed on behalf of plaintiff in the tenancy petition as RW.4. This witness deposed that he does not know about the agreement of sale in between plaintiff and the first defendant and he had not stated as in Ex.A6 (a portion marked in certified copy of deposition of this witness as RW.4 in ATC.No.6 of 1983 on the file of Special Officer, Kaikaluru). He further deposed that he did not state as in Ex.A8 (a portion marked in certified copy of deposition of the witness as RW.4 in ATC,.No.6 of 1983 on the file of Special Officer, Kaikaluru). At that stage this witness was requested to be treated as hostile and to permit to cross-examine him and the learned counsel was permitted to cross-examine the witness. In the cross-examination by the plaintiff this witness deposed that he had signed on Ex.A1 and he signed on blank stamp papers at the instance of PW.1 at his house and he did not ask PW.1 why he wants his signature on blank stamp papers. He signed on blank stamp papers out of confidence on PW.1. This witness also deposed that since last three years, this witness and PW.1 are not in cordial terms. PW.1 inspite of repeated demands he did not pay the amount as such differences arose between them. This witness also deposed that he did not state as in ex.A7 (a portion marked in certified copy of deposition of the witness as RW.4 in ATC.No.6 of 1983 on the file of Special Officer, Kaikaluru). He further deposed that he did state as in Ex.A8 (a portion marked in certified copy of deposition of the witness as RW.4 in ATC.No.6 of 1983 on the file of Special Officer, Kaikaluru). This witness also deposed that he did not state as in Ex.A9 (a portion marked in certified copy of deposition of the witness asRW.4 in ATC.No.6 of 1983 on the file of Special Officer, Kaikaluru). This witness also deposed that he did not state as in Ex.A9 (a portion marked in certified copy of deposition of the witness asRW.4 in ATC.No.6 of 1983 on the file of Special Officer, Kaikaluru). Like wise in Ex.A10 the relevant portion had been marked. Exs.A11 and A12 are the relevant portion of the certified copy of deposition of the witness asRW.4 in ATC.No.6 of 1983 on the file of Special Officer, Kaikaluru). This witness further deposed that he does not remember whether he had stated as in Ex.A13 (a portion marked in certified copy of deposition of the witness asRW.4 in ATC.No.6 of 1983 on the file of Special Officer, Kaikaluru). By the time he signed on Ex.A1 the signature of first attestor was not there. The specific suggestion put to this witness had been denied. In the cross- examination of D1, this witness was having Acs:15-00 of land and it is a fertile land and it is not liable for submersion. D1 had no necessity to sell his land. D1 is innocent and a weak person and D1 cannot speak properly and D1 has no capacity to understand things stated by others. PW.1 had no capacity to purchase land for Rs.50,000/-. Certain suggestions put to this witness had been denied. It is pertinent to note that apart from the evidence of PW.1 in relation to Ex.A1 transaction, the evidence of PW.4 alone is available as attestor of the document. Strong reliance was placed on the decision of the Division bench in BANDARU VEERAMMA AND ORS. V/s. CHIRRAVURI RAMAKRISHNA SARMA AND ORS., referred supra-1, wherein the Division bench while dealing with the attestation of the will and the attestor being declared hostile, observed that : In the event of an attestor being declared hostile, it is permissible for the propounder of the will to cross-examine such an attesting witness and it is also legitimate for such a propounder to rely upon other evidence to show that the will has been properly executed. The counsel-representing respondent in the light of this decision to the effect that the respondent-plaintiff can definitely rely upon the evidence of PWs.2 and 3 though PW.4 was declared hostile at length made submissions. Exs.A14, A15, A16 also certified copy of deposition of the witness as RW.4 in ATC.No.6 of 1983 on the file of Special Officer, Kaikaluru had been specifically pointed out. 17. Exs.A14, A15, A16 also certified copy of deposition of the witness as RW.4 in ATC.No.6 of 1983 on the file of Special Officer, Kaikaluru had been specifically pointed out. 17. PW.2 deposed that PW.1 is his sister's husband and PW.1 married about 45 years back. This witness also deposed about the partition of the family particulars and other details and PW.1 acquiring properties by doing business. This witness no doubt deposed all the details relating to Ex.A1 transaction, virtually supporting the evidence of PW.1 in all material particulars. This witness in the cross-examination deposed that he can put only his signature but cannot even read the names of other persons. Because he is the brother-in-law of PW.1 he called him on that day as he was an elderly man and PW.1 did not ask him to be present as attestor and D.1 knows to put his signature. One Kankaiah is his younger brother. This witness was cross-examined at length relating to several family affairs and also relating to the partition and relating top the capacity of PW.1 to pay the amount, the business particulars and other details. This witness also deposed that he is in the habit of lending amounts. He had denied several suggestions and pleaded some ignorance of certain aspects when specific questions were put to him. The counsel for the appellant made serious comments relating to PW.2 on the ground that he is closely related to PW.1 and even other wise he had nothing to do with Ex.A1 transaction and he had deposed in a particular fashion only with a view to help PW.1. However, the counsel for the respondent-plaintiff placed strong reliance on the evidence of PW.3 who is said to be an independent witness available to him. PW.3 also deposed about all the particulars. This witness deposed by the time he went to the said place Ramaiah was scribing the agreement. PW.1, D.1, R. Ranga Rao, Sanyasi Rao, sister of PW.1 Parvathamma were present and he knows all those parties. Ramaiah asked him to stay there till he completes the agreement and he read over the contents. D1 sold about Acs:5-00 and odd to PW.1 and it was sold for Rs.55,000/- and odd. PW.1, D.1, R. Ranga Rao, Sanyasi Rao, sister of PW.1 Parvathamma were present and he knows all those parties. Ramaiah asked him to stay there till he completes the agreement and he read over the contents. D1 sold about Acs:5-00 and odd to PW.1 and it was sold for Rs.55,000/- and odd. It was agreed that on that day Rs.50,000/- should be paid and balance should be paid within two months , other wise in default the amount has to be paid with interest at 24% p.a. It was also agreed that possession should be made on the same day. D1 signed on the agreement. Sanyasi Rao and Ranga Rao attested it. PW.1 paid Rs.50,000/- to D1 through Ramaiah. This witness also deposed that he know the handwriting of Ramaiah. In the cross-examination he deposed that he worked as clerk under Khaza Ramanatham, Ramachandra Rao and Krishna Murthy. Ramaiah is the other clerk. In the length cross-examination, suggestions put to this witness were answered under what circumstances he had gone there and why he had been there and on whose request and had also given further particulars of Khaza people and other aspects. This witness specifically denied the suggestion that no such payment of Rs.55,000/- had been made on the said date. 18. PW.5 deposed that himself, PW.1, S. Sanyasi Rao and Simhachalam carried arrack business since 1976 to 1986 and this witness worked as gumastha and this witness used to maintain accounts of arrack business. This witness had given certain particulars relating thereto and he was cross-examined at length. PW.6 was examined, who deposed about PW.1 was having land near to his shed, which he purchased from D1 and he raised seed bed in the land purchased by PW.1 from D.1 and PW.1 also raised paddy and he had given permission to raise seed bed and D.1 obtained stay, as he was not allowed to take the seed lings. In the cross- examination, this witness deposed that PW.5 came to PW.1's land in the first week of June, 1983 and by that time the seeds were already sown. Certain details had been elicited in the cross-examination. It is needless to say that PW.5 was examined in relation to the capacity of PW.1 and PW.6 was examined in relation to the aspect of delivery of possession. Certain details had been elicited in the cross-examination. It is needless to say that PW.5 was examined in relation to the capacity of PW.1 and PW.6 was examined in relation to the aspect of delivery of possession. Apart from the evidence of PW.1 and DW.2, which had been already discussed supra, the evidence of DWs.3, 4 and 5 is also available on record. 19. DW.3 is the second defendant, who had deposed about filing of ATC.No.6 of 1983 and obtaining of exparte injunction and this witness was cross-examined at length. Ex.A14 is the portion marked in certified copy of deposition of the witness asRW.4 in ATC.No.6 of 1983 on the file of Special Officer, Kaikaluru. Like wise, Exs.A15 and A16 also had been marked. This witness also deposed about the judicial proceedings and ultimately taken to High Court and the result thereof and at particular point of time taking possession of the land. This witness also deposed that it is not true to say that eh did not pay anything to DW.2 and the other suggestions had been denied. 20. DW.4 deposed that he is resident of Uppargudem and he knows the parties to the suit and D1 got lands in the village. D1 is having about Acs:5-00 in Upparadoddi and he has no vacant site. After receiver was appointed, DW.2 was cultivating the land and she became highest bidder since seven or eight years. Prior to that Suryanarayana elder brother of D2 cultivated the land. This witness also deposed that he does not know about the disputes between plaintiff and D1. In the cross-examination he deposed that DW.1 is a physically handicapped person from his childhood. 21. DW.5 also deposed that D2 cultivated Upparadoddi land since four or five years and prior to that his elder brother Suryanarayana cultivated the said land. It is needless to say that these witnesses were examined with a view to strengthen their version in relation to the aspect of possession. This is the evidence available on record. Exs.B5 to B14 are the revenue receipts. Ex.B15 is the ryotwari passbook, Ex.B16 office copy of registered notice and Ex.B17 registration extract of sale deed executed by K.S. Ramachabndra Rao in favour of DW.1 and others. 22. This is the evidence available on record. Exs.B5 to B14 are the revenue receipts. Ex.B15 is the ryotwari passbook, Ex.B16 office copy of registered notice and Ex.B17 registration extract of sale deed executed by K.S. Ramachabndra Rao in favour of DW.1 and others. 22. The counsel for the respondent-plaitniff placed strong reliance on the decision of the Supreme Court in NARBADA PRASAD V/s. CHHAGANLAL AND ORS referred supra-2, which is a matter arising under the Representation of Peoples Act, (43 of 1951) wherein the Apex court while dealing with the appeal under section 116(A) of the Act observed that: An appeal before the Supreme Court under Section 116-A is an appeal as of right and is open both on facts and law; still the practice of the courts has uniformly been to give the greatest assurance to the assessment of evidence made by the Judge who hears the witnesses and watches their demeanour and judges of their credibility in the first instance. In an appeal the burden is on the appellant to prove how the judgment under appeal is wrong. To establish this he must do something more than merely ask for a re-assessment of the evidence. He must show wherein the assessment has gone wrong. Where the court of first instance relies upon probabilities alone, the appellate court may be in as good position as the court of trial in judging of the probabilities; but where the court of trial relies upon its own sense of the credibility of a witness the appellate court is certainly at a disadvantage, because it has not before it the witness but the dead record of the deposition as recorded. Where the evidence which the Judge considers truthful not on the probabilities of the case but because the Judge on his observation of the manner in which the witness deposed, the appellate Court should be slow to depart from the conclusion of the trial judge. 23. Where the evidence which the Judge considers truthful not on the probabilities of the case but because the Judge on his observation of the manner in which the witness deposed, the appellate Court should be slow to depart from the conclusion of the trial judge. 23. The counsel also placed strong reliance on the decision in JAVVAJI GNANA SRIRAMULU V/s. CHALLA MUTHAIAH referred supra-3, wherein the learned Judge while dealing with the appreciation of evidence - trial judge dismissing the suit on the basis of evidence available on record – appellate court cannot differ from the view of the trial court unless the decision is wrong, the learned Judge held that: It has long been settled law when the decision of a trial Judge is based substantially on his assessment of the quality and credibility of witnesses, an appellate Court, must, in order to reverse, not merely entertain doubts - whether the decision below is right, but be convinced that it is wrong. That is so, irrespective of whether or not the trial Judge made any observation with regard to credibility of witnesses. 24. It is true that the trial Judge will have an opportunity to observe demeanour of the witness. It is also true that while disturbing the findings of the trial Judge, who had recorded certain findings on appreciation of evidence, normally the appellate court to be slow in disturbing such findings unless such findings can be said to be totally wrong and unsustainable and the evidence had not been appreciated in proper perspective. It is also true that the first appellate court is always at liberty to appreciate the whole evidence available on record and record its own findings either affirming the findings of the court of first instance or deviating from the said findings. The episode of Sri Devi and the resultant differences between the PW.1 and his brother-in-law DW.1 and DW.2, if carefully crutinized it may be to the advantage and disadvantage of both the parties. It may be that having entered into the agreement of sale Ex.A1 subsequent thereto due to the differences, which arose between these close relatives, the first defendant might have gone back by virtue of which PW.1 was constrained to approach the court by filing the present suit. It may be that having entered into the agreement of sale Ex.A1 subsequent thereto due to the differences, which arose between these close relatives, the first defendant might have gone back by virtue of which PW.1 was constrained to approach the court by filing the present suit. Equally it may be that inasmuch as all was not well with D.1 and due to misfortune D1 and DW.2 are not having any children, PW.1 may be of the fond hope that he may be getting some property from sister's side also because they belong to the same village and in the light of the evidence available on record may be initially D1 and DW.2 were showing some interest in Sri Devi that she be to be married to a close relative and subsequent thereto the same was not fruitful. On being dissatisfied it may be probably that DW.1 might have thought of Ex.A1 transaction. The evidence of both sides in this regard appears to be more or less balanced. Yet another aspect is relating to D2. Several findings had been recorded by the learned Judge in relation to the tenancy proceedings. It may be that the tenancy proceedings had been thought of by D.1, to give troube to PW.1 or it may be that in the natural course of events also especially in the light of the evidence of DWs.4 and 5 possession might have not been delivered to PW.1 but however it is stated that PW.1 is in possession. It is also yet another important aspect to be noted that the signature in Ex.A1 was taken to the expert. It appears that an expert had opined the said signature not to be genuine signature of the first defendant. It is no doubt true that the said expert was not examined and equally the report atleast had not been marked but the fact remains that the document had been taken to an expert and the expert had opined in a particular fasion. It is true that expert opinion is only opinion evidence. It is no doubt true that the said expert was not examined and equally the report atleast had not been marked but the fact remains that the document had been taken to an expert and the expert had opined in a particular fasion. It is true that expert opinion is only opinion evidence. In the light of these competing claims especially taking into consideration the nature of evidence of PW.4 especially the statement made by RW.4 in the tenancy proceedings and the present evidence and the contradictory stands taken by PW.4, this evidence was totally disbelieved and in the light of his admission in relation to his signature as can be seen in Ex.A1, the learned Judge recorded findings that due execution of Ex.A1 had been proved. For this purpose, the learned Judge relied upon the evidence of PW.3 in particular and in addition thereto evidence of PW.1 also had been relied upon. It is needless to say that PW.2 is a close relative to PW.1. The relationship between the parties also may have to be taken into consideration in the backdrop of the whole factual matrix apart from the episode of Sri Devi. The fact that these parties D1 and DW.2 are not having any issues at all, this aspect is not in serious controversy. It is no doubt true that some evidence had been let-in relating to the capacity of PW.1 to advance the amount in question. The evidence of PW.3 appears to be independent evidence though the evidence of PWs.4 and 5 to be viewed with some suspicious. The evidence of PW.1 plaintiff is also available on record. Relating to the aspect of possession there appears to be some struggle between the parties and the findings recorded by the learned Judge predominantly appear to be in relation to the tenancy proceedings. On overall appreciation of the facts and circumstances, taking into consideration the fact that the first defendant is not only the husband of DW.2 but incidentally he is the maternal uncle of both PW.1 and DW.2. It may be that several of the family affairs of DW.1 were within the knowledge of PW.1 as can be seen from the evidence. On overall appreciation of the facts and circumstances, taking into consideration the fact that the first defendant is not only the husband of DW.2 but incidentally he is the maternal uncle of both PW.1 and DW.2. It may be that several of the family affairs of DW.1 were within the knowledge of PW.1 as can be seen from the evidence. It is needless to say that it is settled principle that a decree for specific performance always need not be granted because it is within the discretion of the court either to grant relief of specific performance or not. On the over all facts and circumstances of the case, especially taking into consideration several of the important aspects which had been referred to supra, this court is of the considered opinion that the learned Judge erred in granting the relief of specific performance as prayed for instead of granting the refund of consideration. This court is of this view, for the reason that the evidence available on record being not satisfactory i.e., PW.2 being a close relative of PW.1 and PW.2's interested testimony and PW.4 only attestor deposing in a half heart way and the other evidence available being of PW.3 only, clear, satisfactory evidence is not available. As far as the payment of amount is concerned, since this court is satisfied that PW.1 had paid that amount to D.1 i.e., first defendant, this court is inclined to grant only alternative relief of refund of the consideration, which had been in fact prayed for even in the plaint. 25. Issue No. 3: In the light of the findings recorded above, the principal relief granted by the learned Judge granting the relief of specific performance is set aside and in the alternative relief of refund of consideration paid by PW.1 to DW.1 at interest @ 6% per annum from the date of institution of the suit till the date of recovery of the amount, is being granted by this court. Accordingly, the decree and judgment of the Court of first instance are hereby modified and the appeal is partly allowed to the extent indicated above. In view of the close relationship between the parties, the parties to bear their own costs.