JUDGMENT :-Heard Sri J.P. Rao representing Sri Jakkamsetti Ravindra, the learned Counsel representing the appellants, and Sri Veeraiah representing Nimmagadda Satyanarayana, the learned Counsel representing the contesting respondents. 2. The Apex Court through its order dated 22.7.2004 while allowing Civil Appeal No.1526 of 2000, observed as under: "Since the High Court has interfered with the judgments of the Courts below without framing substantial question of law, the same is set aside and the case is remitted back to the High Court for fresh decision after framing substantial questions of law if in its opinion such question of law arises. Since the second appeal pertains to the year 1982, we would request the High Court to dispose of the second appeal as expeditiously as possible. The appeal is allowed in the above terms. No costs. 3. The said civil appeal was preferred by the defendants as against the order made in S.A. No.382 of 1991 wherein this Court while setting aside the decree passed for alternative relief of refund of sale consideration in favour of the plaintiffs, which had been ordered by both the Court of first instance and also the appellate Court, directed the defendants to execute the sale deed in favour of the plaintiffs within a period of three months from the date of the judgment and accept the balance of consideration, if any, as per Ex.A.1, and if the defendants fail to execute the sale deed in favour of the plaintiffs within the specified time, then the trial Court should execute sale deed in favour of the plaintiffs. 4. Sri J.P. Rao, representing Sri Jakkamsetti Ravindra, the learned Counsel for the appellants/plaintiffs had taken this Court through the substantial questions of law, which had been formulated at Ground Nos.12(a) and (b) of the Memorandum of the Grounds of Second Appeal and would maintain that in the light of the concurrent findings recorded by both the Court of first instance and also the appellate Court relating to the genuineness of the agreement of sale, the discretion was not exercised judiciously by both the Courts below and in a case of this nature instead of granting relief of specific performance and ordering refund of sale consideration, recording certain findings that the plaintiffs are owning substantial properties, cannot be said to be just and proper. In other words, the learned Counsel would maintain that the discretion was not exercised by both the Courts below judiciously, but the discretion was in fact exercised in an arbitrary fashion, which is to be corrected by this Court in the present second appeal. The learned Counsel had taken this Court through the oral evidence available on record relating to the factum of possession and would maintain that the mere fact that PW.7 and PW.8 had deposed in such a fashion and the mere fact that on the strength of such evidence, the Court of first instance recorded certain findings to the effect that on the date of the suit the plaintiffs were not in possession of the property in question, that by itself would not disentitle the plaintiffs from claiming the relief of specific performance in the light of the voluminous oral evidence available on record. Even otherwise, when the genuineness of the agreement of sale, though denied by the other side, had been upheld, in ordinary course, the relief of specific performance should have been granted unless and otherwise it is a case where such relief to be negatived to the plaintiffs. The learned Counsel relied upon certain decisions and also pointed out, the relevant findings recorded by both the Court of first instance and also the appellate Court. 5. On the contrary, Sri Veeraiah, representing Sri Nimmagadda Satyanarayana, the learned Counsel representing the respondents would maintain that the discretion was exercised properly by both the Court of first instance and also the appellate Court. Even as per the evidence of PW.7 and PW.8, as on the date of the suit the defendants had been in possession of the property. In the light of the same, it is doubtful whether possession, in fact, had been delivered to the plaintiffs in pursuance of the agreement of sale or not. On appreciation of the oral and documentary evidence since proper findings had been recorded by both the Court of first instance and also the appellate Court, and inasmuch as refund of the sale consideration had been ordered, no serious prejudice as such is caused to the appellants/plaintiffs and hence such concurrent findings normally not to be interfered with in a second appeal. 6. 6. Heard, the Counsel on record and perused the oral and documentary evidence available on record and the findings recorded by both the Court of first instance and also the appellate Court. 7. In the present second appeal, the third respondent died and his legal representatives R.7 and R.8 were brought on record. The substantial questions of law, which arise for consideration in this second appeal, read as under: 1. Whether the discretion exercised by the Courts below under Section 20 of the Specific Relief Act, 1963 can be said to be arbitrary, unsound and unreasonable; and 2. Whether on the facts and in the circumstances the plaintiffs are not entitled to a decree of specific performance of the contract of agreement of sale, dated 21.1.1964 in the facts and circumstances of the case? 8. These are the substantial questions of law, on the strength of which submissions had been advanced by the Counsel on record. For the purpose of convenience, the parties hereinafter would be referred to as plaintiffs and defendants as shown in O.S. No.236 of 1982 on the file of the District Munsif, Chintalapudi. 9. The plaintiffs filed the suit as against the defendants 1 to 6 praying for the relief of specific performance of the contract of agreement of sale in pursuance of the agreement of sale dated 21.1.1964 said to have been executed by defendants 1 to 3 and thereafter late Koppula Venkaiah in their favour in relation to the plaint schedule property. The averments made in the plaint are as follows. 10. The defendants 1 to 3 are the brothers. The fourth defendant is the mother and defendants 5 and 6 are the sisters. Their father Koppula Venkaiah died in or about the year 1968. On 21.1.1964, Koppula Venkaiah and his sons i.e., defendants 1 to 3 agreed to sell the plaint schedule property to plaintiffs for a sum of Rs.2,000/- and accordingly executed an agreement of sale in their favour. On the date of agreement of sale they have, in addition to an advance of Rs.200/- paid in cash to the defendants previously, paid a sum of Rs.875/- which went in discharge of the then subsisting decree debt in O.S. No.263 of 1963 obtained by one Juluri Viswanadham against the father of defendants 1 to 3. On the date of agreement of sale they have, in addition to an advance of Rs.200/- paid in cash to the defendants previously, paid a sum of Rs.875/- which went in discharge of the then subsisting decree debt in O.S. No.263 of 1963 obtained by one Juluri Viswanadham against the father of defendants 1 to 3. As per the terms of agreement of sale, the balance of sale consideration of Rs.925/- was agreed to be paid at the time of registration of the sale deed. It is further averred that late Koppula Venkaiah and his sons defendants 1 to 3 put the plaintiffs in possession of the plaint schedule property on the date of the agreement of sale and ever since the plaintiffs have been in uninterrupted possession and enjoyment of the same. The defendants 1 to 3 and their father undertook to execute a sale deed in favour of the plaintiffs whenever called upon to do so, at the expense of the plaintiffs. After the plaintiffs entered into possession of the plaint schedule property they reclaimed the land and raised mango and cashewnut gardens spending considerable amounts and have been enjoying the usufruct by paying taxes. The Patta No.111 in the tax receipts filed by them relates to the suit land. The possession of the plaintiffs in respect of the suit property is liable to be protected under Section 53-A of the Transfer of Property Act. Even otherwise the plaintiffs have perfected their title over the suit property by adverse possession being in open, continuous and uninterrupted possession and enjoyment of the same to the knowledge of the defendants for over a statutory period. Even otherwise the plaintiffs have perfected their title over the suit property by adverse possession being in open, continuous and uninterrupted possession and enjoyment of the same to the knowledge of the defendants for over a statutory period. It is further submitted that though as per the ten11S of the agreement of sale the balance of sale consideration was agreed to be paid at the time of registration of the sale deed, Koppula Venkaiah being in perennial need for money, prevailed upon the plaintiffs and received a sum of Rs.408/- on 7.3.1964, Rs.370/- on 1704.1964, Rs.47/- on 16.5.1964 and Rs.100/- on 7.9.1964 towards the balance of sale consideration due, and that the said payments have been duly endorsed on the reverse of the suit agreement of sale and Koppula Venkaiah affixed his thumb impression both for himself and as kartha of the joint family of the defendants 1 to 3 and the said endorsements are valid and binding on the defendants 1 to 3. It is further submitted that no time for performance of the contract was fixed as per the agreement of sale and the time was not the essence of the contract. So the plaintiffs did not take immediate steps to obtain the conveyance from the defendants. However, after the death of Venkaiah, though for some years past the plaintiffs have been demanding the defendants to perform their part of contract by executing the registered sale deeds, the defendants have dodged and procrastinated on some pretext or the other. The plaintiffs therefore got issued a registered notice dated 13.10.1982 through their Counsel demanding defendants 1 to 3 to execute registered sale deed in respect of the suit schedule property to which the defendants sent a reply dated 26.10.1982 with absolutely false and continuous allegations. The denial of execution of the suit agreement in the reply notice is totally false and motivated. It is further averred that besides Venkaiah, defendants 1 to 3 affixed their thumb impressions on the suit agreement of sale out of their volition. The denial of execution of the suit agreement in the reply notice is totally false and motivated. It is further averred that besides Venkaiah, defendants 1 to 3 affixed their thumb impressions on the suit agreement of sale out of their volition. The allegations, in the reply notice that later K. Venkaiah borrowed a sum of Rs.875/- some 20 years back from plaintiff No.1 and in lieu thereof plaintiff No.1 was permitted to enjoy the usufruct from the suit land for a period of five years and that he enjoyed the usufruct accordingly and on being disputed, he discontinued to enjoy the usufruct and that defendants are in possession and enjoyment of the said property as owners, are absolutely false and concocted. It is further averred that the defendants never raised• any cashewnut garden in the land; that the defendants are trying to wriggle out of the same transaction in view of the abnormal rise in land prices in the locality; that the defendants have no manner of right in respect of the plaint schedule property and that they have no possession since the date of the agreement of sale and they did not pay any taxes thereon. Since the defendants committed breach of the terms of agreement of sale and repudiated by dubbing the suit agreement as forged, the plaintiffs are entitled to seek the relief of the specific performance of the agreement of sale directing the defendants to execute registered sale deed in favour of the plaintiffs in respect of the plaint schedule property at their expense. It is further averred that if for any reason the relief of specific performance cannot be granted, the plaintiffs are entitled to seek alternative relief of refund of sale consideration with interest thereon amounting to Rs.4,663/- and future interest at the rate of 12% p.a. on Rs.2,000/- from the date of the suit till the realization by creating a charge on the plaint schedule property under Section 55(b) of the Transfer of Property Act. 11. The first defendant filed written statement denying the averments made in the plaint. The defendants 2 to 6 filed memo of adoption, adopting the written statement of the first defendant. 11. The first defendant filed written statement denying the averments made in the plaint. The defendants 2 to 6 filed memo of adoption, adopting the written statement of the first defendant. It was averred in the written statement that defendants 1 to 3 and their father late Venkaiah had not executed the suit agreement of sale on 21.1.1964 in favour of the plaintiffs; that the alleged payment of Rs.200/- in cash and Rs.875/in discharge of subsisting decree in O.S. No.263 of 1963 is false and the alleged agreement of sale is forged document; that the defendants I to 3 and late Koppula Venkaiah never put the plaintiffs in possessions of the suit schedule property; that they never divested themselves of the possession of the suit schedule property at any point of time much less on the date of the agreement of sale. It was also averred that the allegation that the plaintiffs reclaimed the land in dispute, raised a mango garden and cashewnut garden spending considerable amounts and have been enjoying the usufruct by paying the taxes etc., are false and are manufactured for the purpose 1f the suit. It is further contended that Patta no.111 does not relate to the suit schedule land. The defendants and their father raised the mango and cashewnut gardens with their own money and labour and they are enjoying the usufruct themselves since a long time and that the defendants 1 to 3 after the death of their father Venkaiah divided the suit schedule property into three parts and they are enjoying the same as of their own, and pass books were also issued in their names separately. Further specific stand had been taken that at the time of alleged execution of the agreement of sale defendants 2 and 3 were minors and they were not competent to execute the sale or any other agreement. Hence the said document is a void one. 12. On the strength of the pleadings the following issues had been settled. 1. Whether the agreement dated 21.1.1964 is true? 2. Whether the agreement dated 21.1.1964 even if true is not binding on defendants 2 and 3 by reason of the fact that they are minors on the date of agreement? 3. Whether the alleged payment of the balance of the sale consideration is true? 4. Whether the plaintiff is entitled to the specific performance prayed for? 5. 2. Whether the agreement dated 21.1.1964 even if true is not binding on defendants 2 and 3 by reason of the fact that they are minors on the date of agreement? 3. Whether the alleged payment of the balance of the sale consideration is true? 4. Whether the plaintiff is entitled to the specific performance prayed for? 5. Whether the plaintiffs were in possession of the suit property on the date of suit and if so, whether they are entitled to the injunction prayed for? 6. Whether the plaintiffs have perfected their title to the suit property by adverse possession? 7. To what relief? 13. On behalf of the plaintiffs PWs.1 to 8 were examined and Exs.A.1 to A.22 were marked. On behalf of the defendants DWs.1 to 5 were examined and Exs.B.1 to B.10 were marked. 14. The Court of first instance while answering issue Nos.1 to 3 recorded reasons in detail at paragraphs 7 and 8 and came to the conclusion that these issues are to be decided in favour of the plaintiffs and against the defendants. 15. While answering Issue No.6, the trial Court recorded reasons at paragraph No.9 and came to the conclusion that the second defendant as DW.1 admitted that PW.1 was in possession of the suit garden for four years, but he says that they leased out the garden to PW.1 in lieu of the debts given to them. The other witnesses for the defendants have also categorically stated that the plaintiffs were in possession of the suit schedule property on account of the amount advanced by them to the defendants. No doubt the defendants also filed cist receipts Exs.B 4 to B.10 and passbooks Exs.B.1 to B.3. But PW.8 the Trainee Officer has clearly stated that patta No.111 comprises of S.Nos.202/2, 2021 4 and 204 and Exs. B 4 to B.10 pertains to RS.No.20l/2, 202/10, 202/2 and 202/4, whereas the suit land is covered by R.S.No.204 which was in possession of plaintiffs. In view of the said discussion the trial Court held this issue in favour of the plaintiffs. 16. While answering Issue No.5 at paragraph No.10, the trial Court referred to the evidence of PW.7 and also PW.8. In view of the said discussion the trial Court held this issue in favour of the plaintiffs. 16. While answering Issue No.5 at paragraph No.10, the trial Court referred to the evidence of PW.7 and also PW.8. In the light of the said evidence relating to dispossession, the trial Court came to• the conclusion that the plaintiffs were not in possession of the suit schedule property on the date of the suit and hence they are not entitled for the relief of injunction. 17. While answering Issue No.4, the trial Court recorded certain reasons at paragraph-II and held the issue in favour of the plaintiffs. However, while answering Issue No.7, the trial Court observed that PW.1 in his cross-examination admitted that they are not joint and divided long back. They are exclusively enjoying their respective shares of properties and that in partition this party and plaintiff No.2 got 30 acres of land each, and in view of the circumstances of the case, the trial Court felt that the plaintiffs should be granted alternate relief for refund of amount representing sale consideration of Rs.4,663/- with future interest and accordingly decreed the suit for Rs.4,663/- with future interest at the rate of 12% per annum on Rs.2,000/- from the date of suit till realization and the defendants are directed to pay the amount within six months from the said date and if the defendants are failed to pay the amount, the plaintiffs are entitled to realize the said amount by way of attachment of the plaint schedule property. The defendants were further directed to pay the costs of the suit. 18. The defendants appear to have not preferred any appeal. But however, the plaintiffs being aggrieved of the order of refund of sale consideration instead of granting relief of specific perforn1ance had carried the matter by way of appeal in A.S. No.105 of 1984 on the file of I Additional District Judge, West Godavari District at Eluru. 19. The appellate Court at paragraph 7 formulated the following point for consideration. "Whether the lower Court committed error in not granting the relief of specific performance and if so, the appeal is liable to be allowed?" 20. The appellate Court proceeded to record reasons at paragraphs 8, 9, 10 and 11 and ultimately dismissed the appeal, but in the circumstances, without costs. 21. "Whether the lower Court committed error in not granting the relief of specific performance and if so, the appeal is liable to be allowed?" 20. The appellate Court proceeded to record reasons at paragraphs 8, 9, 10 and 11 and ultimately dismissed the appeal, but in the circumstances, without costs. 21. Aggrieved by the same, the plaintiffs had preferred S.A.No.382 of 1991 on the file of this Court, and inasmuch as this Court had disposed of the second appeal allowing the appeal without formulating the substantial questions of law, the Apex Court made an order of remand in Civil Appeal No.1526 of 2000 and that is how this second appeal is before this Court again. 22. The substantial questions of law on the strength of which the submissions had been advanced already had been specified supra. It is needless to say that the question, which had been argued in elaboration, is on the aspect of discretion, whether exercised properly and judiciously by the Courts below in the light of Section 20 of the Specific Relief Act, 1963 (hereinafter, in short, referred to as 'the Act' for the purpose of convenience). 23. Section 20 of the Act dealing with the discretion of the decree in specific performance, reads as hereunder: 20. Discretion as to decreeing specific performance,-(1) The jurisdiction to decree specific performance is discretionary, and the Court is not bound to grant such relief merely because it is lawful to do so; but the discretion of the Court is not arbitrary but sound and reasonable, guided by judicial principles and capable of correction by a Court of Appeal. (2) The following are cases in which the Court may properly exercise discretion not to decree specific performance- (a) where the terms of the contract or the conduct of the parties at the time of entering into the contract or the other circumstances under which the contract• was entered into are such that the contract, though not voidable, gives the plaintiff an unfair advantage over the defendant; or (b) where the performance of the contract would involve some hardship on the defendant which he did not foresee, whereas its non-performance would involve no such hardship on the plaintiff; (c) where the defendant entered into the contract under circumstances which though not rendering the contract voidable, makes it inequitable to enforce specific performance. Explanation 1.-Mere inadequacy of consideration, or the mere fact that the contract is onerous to the defendant or improvident in its nature, shall not be deemed to constitute an unfair advantage within the meaning of clause (a) or hardship within the meaning of clause (b). Explanation 2.-The question whether the perfom1ance of a contract would involve hardship on the defendant within the meaning of clause (b) shall, except in cases where the hardship has resulted from any act of the plaintiff subsequent to the contract, be determined with reference to the circumstances existing at the time of the contract. (3) The Court may properly exercise discretion to decree specific performance in any case where the plaintiff has done substantial acts or suffered losses in consequence of a contract capable of specific performance. (4) The Court shall not refuse to any party specific performance of a contract merely on the ground that the contract is not enforceable at the instance of the other party. 24. This section corresponds to old Section 22 of the Act. The relief of specific performance is a discretionary remedy and the Court is not bound to grant such relief of specific performance merely because it is lawful to do so. The jurisdiction to decree specific performance though discretionary and the Court is not bound to grant such a relief merely because it is lawful to do so, but the discretion of the Court is not arbitrary but sound, reasonable, guided by judicial principles and capable of correction by a Court of Appeal. It is needless to say that such discretion to be exercised in a judicious manner and cannot be exercised in an arbitrary way. 25. The Apex Court in Mademsetty Satyanarayana v. Yellaji Rao, AIR 1965 SC 1405 , while dealing with the Specific Relief Act 1877 observed at paragraph-6 as under: Under Section 22 of the Specific Relief Act, relief of specific performance is discretionary but not arbitrary. Discretion must be exercised in accordance with sound and reasonable judicial principles. The cases providing for a guide to Courts to exercise discretion one-way or other are only illustrative; they are not intended to be exhaustive. Discretion must be exercised in accordance with sound and reasonable judicial principles. The cases providing for a guide to Courts to exercise discretion one-way or other are only illustrative; they are not intended to be exhaustive. As Article 113 of the Limitation Act prescribes a period of 3 years from the date fixed thereunder for specific performance of a contract, it follows that mere delay without more extending upto the said period cannot possibly be a reason for a Court to exercise its discretion against giving a relief of specific performance. Nor can the scope of the discretion, after excluding the cases mentioned in Section 22 of the Specific Relief Act, be confined to waiver, abandonment or estoppel. If one of these three circumstances is established, no question of discretion arises, for either there will be no subsisting right or there will be a bar against its assertion. So there must be some discretionary field unoccupied by the three cases, otherwise the substantive section becomes otiose. It is difficult to define that field. Diverse situations may arise which may induce a Court not to exercise the discretion in favour of the plaintiff. It may better be left undefined except to state what the section says namely, discretion of the Court is not arbitrary, but sound and reasonable guided by judicial principles and capable of correction by a Court of Appeal. 26. Reliance was also placed on a decision of the Supreme Court in Panchallan Dhara and others v. Monmatha Nath Maity (dead) thr. L.Rs. and another, 2006 (4) ALD 18 (SC) = 2006 (4) Supreme 705 . Further reliance was placed on K. Sambasiva Rao v. P. Bangaru Raju, AIR 1985 AP 393 , G. Rosaiah v. C. Balarand Reddy, AIR 1989 AP 179 , Ramshankar v. Kailasgauri, AIR 1974 Guj. 69 . 27. The Judicial Dictionary by Justice L.P. Singh and P.K. Maja (II Edition) defines discretion. Relevant portion with regard to meaning of discretion reads as hereunder. Discretion.- With regard to the meaning of 'discretion' Lord Halsbury in Sharp v. Wakefield, (1891) AC 173 - observed as follows: " 'Discretion' means when it is said that something is to be done within the discretion of the authorities that something is to be done according to the rules of reason and justice, not according to private opinion according to law and not humour. It is to be, not arbitrary, vague and fanciful, but legal and regular. And it must be exercised within the limit, to which an honest man competent to the discharge of his office ought to confine himself (Valsamma Thomas v. Additional District Magistrate, Alappuzha, AIR 1998 Ker. 124 ). Discretion must not be arbitrary. The very term itself stands unsupported by circumstances imports the exercise of judgment, wisdom and skill as contradistinguished from unthinking folly, heady violence or rash injustice. (Lala Bhai Tikam Lal and others v. The Municipal Commissioner for the City of Bombay, 3 Ind. Cas. 361). 28. The main grievance of the appellants/plaintiffs is that the Courts below having recorded positive findings relating to the genuineness of the agreement of sale, negativing the relief of specific perforn1ance is totally unjustified. It is needless to say that EX.A.1 is the agreement of sale, dated 21.1.1964. The plaintiffs filed the suit for specific performance of agreement of sale, dated 21.1.1964-Ex.A. 1 and for the alternative relief of refund of sale consideration. It is the case of PW.1 that the plaintiffs have been in possession of the property even on the date of EX.A.1 and also subsequent thereto. PW.2 identified the signatures of attestors and the scribe of EX.A.1 to AS. PW.3 in a way deposed that he had certain transactions relating to the mango garden of the plaintiffs. PW.4 deposed that he is having his land by the side of the mango garden of PW.1 and used to watch over the trees at the request of PW. 1. PW.5 deposed certain facts relating to the settlement of dispute between plaintiffs and the adjoining landowners. The evidence of PW.7 and also PW.8-Trainee Officer is available on record. 29. The second defendant, who was examined as DW.1 deposed that they never executed EX.A 1 and defendants 1 to 3 are in possession and enjoyment of the plaint schedule property. DW.2 and DW.3 are the adjoining landowners, who also deposed that the defendants are in possession of the plaint schedule property. DW.4 and DW.5 also deposed that they purchased the mangos and cashewnut gardens from DW.1. PW.2 identified the signatures of the scribe and attestors. EX.A21 is the reply given by the defendants to the registered notice issued by the plaintiffs. DW.4 and DW.5 also deposed that they purchased the mangos and cashewnut gardens from DW.1. PW.2 identified the signatures of the scribe and attestors. EX.A21 is the reply given by the defendants to the registered notice issued by the plaintiffs. A careful reading of the reply notice would go to show that defendants 1 to 3 and their father executed EX.A 1 and in the light of the evidence available on record both the Court of first instance and also the appellate Court came to the conclusion that EX.A1 agreement of sale was in fact executed by the defendants in favour of the plaintiffs and the same is true, valid and binding on them. As can be seen from the evidence available on record, and even if the case of the plaintiffs to be taken as true, it is not the case of the plaintiffs that they have paid the entire amount in one lump sum but the payments appear to have been made on several occasions. It is also available on record that defendants 1 to 3 had been in financial trouble and in order to discharge the decretal debt to one Viswanadham, defendants 1 to 3 and their father executed Ex.A1-agreement of sale, and however, as already observed supra, the consideration was not paid on one date. The balance of consideration had been paid on different occasions as shown by EX.A.2 to A.5, and the same was acknowledged by the father of defendants 1 to 3. The time may not be the essence of contract in relation to immovable property. But however, the appellate Court recorded several reasons and also had taken note of the fact that the entire consideration was not paid in lump sum and also observed that there are no compelling reasons for the plaintiffs to wait for so many years without taking a sale deed. The appellate Court had further explained certain circumstances, which may probablise the fact that the transaction to be in the nature of usufruct mortgage. Further, the fact is that the plaintiffs are in possession of Acs.30.00 of land and they are rich landowners. The father of defendants 1 to 3 could not discharge the decree debt and in such circumstances EX.A.1 was executed on a plain white paper and the recitals of EX.A.1 are in the nature of sale deed but the same was not registered. The father of defendants 1 to 3 could not discharge the decree debt and in such circumstances EX.A.1 was executed on a plain white paper and the recitals of EX.A.1 are in the nature of sale deed but the same was not registered. Hence, in the circumstances, especially taking into consideration the evidence of PW.7 and PW.8 this Court is of the opinion that the findings recorded by the Court of first instance in ordering refund only, instead of granting relief of specific performance cannot be found fault with. The Court of first instance and also the appellate Court further had taken into consideration the evidence of PW.7 and PW.8 and also the evidence of the witnesses on behalf of the defendants as well on the aspect of factum of possession and also referred to Exs.B.1 to B.3 and came to the conclusion that under such compelling circumstances, the father of defendants 1 to 3 might have permitted the plaintiffs to enjoy usufruct for sometime and subsequent thereto possession had been taken. But as on the date of the suit the plaintiffs were not in possession of the plaint schedule property. These are the concurrent findings recorded by both the Court of first instance and also the appellate Court. 30. It is no doubt true that the very execution of EX.A.1 had been denied by the defendants and in the facts and circumstances the stand taken by the defendants cannot be said to be a justifiable stand. May be that the defendants had not approached the Court with correct version while taking the defence in the written statement. Here is a case where the suit for specific performance had been instituted by the plaintiffs and no doubt the alternative relief of refund of consideration had been prayed for. Though the very denial of execution of Ex.A.1 by the defendants may not be a justifiable stand certain of the factors had been taken into consideration especially by the appellate Court though the trial Court was more guided away by the fact that the plaintiffs are rich landowners. May be that the Court of first instance has taken into consideration the equities between the parties and came to the conclusion that instead of granting the relief of specific performance, granting relief of refund of consideration may be just and proper. 31. The appellate Court recorded several reasons. May be that the Court of first instance has taken into consideration the equities between the parties and came to the conclusion that instead of granting the relief of specific performance, granting relief of refund of consideration may be just and proper. 31. The appellate Court recorded several reasons. The under noted arc certain of the facts which may be relevant for the purpose of deciding whether the discretion exercised by the Courts below can be said to be just and proper 'in the facts and circumstances of the case. 1. The father of the defendants 1 to 3 had been in financial trouble and pressure relating to the discharge of the decretal debt of one Viswanadham. This aspect is not in serious controversy. 2. Though the execution of EX.A.1 had been specifically denied by the defendants in the light of EX.A.21 and other attendant circumstances and the other oral evidence available on record, the fact that EX.A.1 was executed though may not be in serious controversy, the total consideration was not paid at a time but it had been paid in three spells, also is not in serious dispute as evident by Exs.A.2 to A.5. 3. It is also pertinent to note that the defendants at the earliest point of time in the reply notice had taken a specific stand that their father permitted to allow the plaintiffs to enjoy the usufruct towards debts under EX.A.1 for a period of five years. 4. The above fact in a way is probablised by the fact that even in the light of the evidence of PW.7 and PW.8 and the evidence on behalf of the defendants it is clear that as on the date of the institution of suit, the plaintiffs had not been in possession of the plaint schedule property, and concurrent findings had been recorded by both the Court of first instance and also the appellate Court on the aspect of factum of possession of the defendants relating to plaint schedule property as on the date of the suit. 5. This is also probablised by the fact that the specific stand taken by PW.1 that as on the date of agreement of sale delivery was effected and they continue to be in possession of the property even as on the date of the suit and subsequent thereof, cannot be sustained. 5. This is also probablised by the fact that the specific stand taken by PW.1 that as on the date of agreement of sale delivery was effected and they continue to be in possession of the property even as on the date of the suit and subsequent thereof, cannot be sustained. In fact on appreciation of oral and documentary evidence, clear findings had been recorded by both the Court of first instance and also the appellate Court. 6. It is true that normally in case of immovable property time cannot be said to be the essence of contract in a case for specific performance. But however, the compelling reasons for waiting for so many years also had not been explained by the plaintiffs and hence probably the appellate Court recorded certain reasons and came to the conclusion that the transaction may be of the nature of usufruct mortgage. 7. It is also pertinent to note that Ex.A.1 was executed on a plain white paper. The fact that the recitals of Ex.A.1 would go to show that it is a sale deed, which also requires registration, had been taken note of. 8. Further concurrent findings had been recorded relating to the factum of possession on the date of institution of suit, which would probablise that the defence taken in the reply notice may be more probable, though the defence of total denial of execution of Ex.A. 1 by the defendants cannot be a sustainable stand. 32. In the light of the findings recorded by the appellate Court and also the Court of first instance, and further taking into consideration the several of the aspects which had been pointed out by this Court as referred to supra, the only question which may have to be decided by this Court is "whether granting of decree for refund of sale consideration alone, declining to grant the relief of specific performance by the Courts below, can be said to be justified in the light of Section 20 of the Act as specified above". 33. On appreciation of the facts and also the oral and documentary evidence available on record, this Court is satisfied that the fight appears to be between the unequals. 33. On appreciation of the facts and also the oral and documentary evidence available on record, this Court is satisfied that the fight appears to be between the unequals. Under certain compelling circumstances Ex.A.1 was executed and though specifically the ground of undue hardship was not put into service, this Court is satisfied that in the light of the reasons recorded and the discretion exercised by both the Court of first instance and also the appellate Court in refusing the relief of specific performance and granting the refund of consideration only with interest, cannot be found fault within any way. It is no doubt true that normally when an agreement of sale had been specifically denied and on evidence the Courts recorded a finding relating to the genuineness of the agreement of sale, the relief of specific performance to be granted unless there are other compelling circumstances to negative the relief. Merely because the defence of total denial was made by the defendants that by itself cannot be a ground to decline exercising the discretion in favour of such parties especially in the light of the specific stand taken by the defendants at the earliest point of time in the reply notice. Hence viewed from any angle this Court is of the considered opinion that the findings recorded by both the Court of first instance and also the appellate Court cannot be found fault with. 34. Accordingly, the second appeal is dismissed, but however, since the plaintiffs, who were partly successful in the suit and partly unsuccessful are fighting the second appeal, the parties have to bear their own costs.