JUDGMENT 1. - This appeal has been filed by appellant Jarnail Kaur wife of Shri Chand Singh, r/o Ghuduwala, Tehsil Padampur, District Sriganganagar, who died on 28.11.2003 and her LRS. namely- 1. Chand Singh, 2. Kuldeep Singh, 3 Daljeet Singh and 4. Hardeep Kaur have been brought on record against the respondent Ashok Kumar @ Kamal, being aggrieved by the judgment and decree passed by the learned Addl.District and Sessions Judge, Srigangangar dated 21.09.1984 in Civil Original Suit No.01/1979 by which the learned trial court dismissed the suit of the appellant filed for specific performance of the contract. 2. The short facts giving rise to this appeal are that the mother of the present appellant filed a suit for specific performance of the agreement dated 05.07.1975 by which the defendant (hereinafter referred to as 'the respondent') entered into an agreement for selling his land bearing murraba No.41 having 121/2 bighas of land in lieu of Rs. 30,000/- and the plaintiff appellant paid Rs. 24,000/- in cash and the respondent handed over the possession of the suit property to the appellant. On 04.09.1975, plaintiff paid Rs. 1500/- to the respondent. The defendant inspite of several reminders, did not execute the sale deed and appellant was always willing and ready to pay the rest of the amount. Therefore, the appellant has filed a suit for specific performance of the agreement dated 05.07.1975 and further for injunction against the eviction from the suit property and in the alternative the appellant prayed for decreeing the suit for Rs. 30,000/-. 3. The respondent filed a written statement and denied the fact of the execution of the agreement and further took a specific plea that the respondent belongs to Scheduled Caste and the appellant belongs to General Caste, therefore, the agreement is void in terms of the provisions of the Tenancy Act. He also took certain other pleas regarding the deficiency of the court fees. He also took certain other pleas regarding the deficiency of the court fees. On the basis of the pleadings of the parties, the learned trial court on 03.08.1981 framed nine issues and later on vide order dated 19.04.1981 framed the following 14 issues: " 1- D;k izfroknh us okfnuh ls fnukad 05-07-1975 dks viuk eqjCck uEcj 41 dh 12 AA ch?kk Hkwfe okds pd 1 ,u0,u0 rglhy ineiqj dks cspus dk bdjkj c,ot 30]000 :i;k djds izfroknh us 24]000 :i;k crkSj lkabZ udn olwy ik;kA 2- D;k izfroknh us fnukad 04-09-1975 dks bdjkj cS; isVs 1500 :i;k ethn okfnuh ls ysdj iq'r bdjkj&ukek ij viuh fu'kkuh vaxwBk dhA 3- D;k okfnuh eqrkfcd bdjkj cS; okn xzLFk Hkwfe dks [kjhnus dks rRij ,oa bPNqd Fkh vkSj vc Hkh gSa\ 4- D;k Hkkjr ljdkj okn esa vko';d i{kdkj gS vkSj mlds vHkko esa nkok ukdkfcy pyus ds gSa\ 5- D;k LoxhZ; pUnxhjke ds vU; mRrjkf/kdkjh okn eSa vko';d i{kdkj gSaA ;fn gksa rks bldk nkok ij D;k vlj gSa\ 6- D;k izfroknh ds vuqlwfpr tkfr dk lnL; gksus ds dkj.k lafonk fnukad 05-07-1975 fof/k fo:) gSaA ;fn gkWa rks bldk D;k izHkko gSa\ 7- D;k nkok lun izkIr u gksus ds dkj.k pyus ;ksX; ugha gSa\ 8- D;k nkok fMlIyslM ijlUl ,DV ds rgr ukdkfcy pyus ds gSa\ 9- D;k nkok vUnj fe;kn ugha gSa\ 10- D;k nkok dkfcy lek;r vnkyr okyk ugha gSa\ 11- D;k vkjkth eqrnkfo;k dk dCtk oknh ls Jheku~ ftyk/kh'k de phQ lsVyesUV dfe'uj us izkIr dj fy;k Fkk\ 12- D;k dksVZ Qhl uk dkQh gSa\ 13- D;k Hkwfe ds Hkkjr ljdkj dh lEifRr gksus ds dkj.k dksbZ bdjkj&ukek fcuk iwoZ izkfIr eUtwjh ugha gks ldrk\ 14- vuqrks"k D;k gksxk\ " 4. The plaintiff appellant examined 5 witnesses PW/1 Chand Singh, PW/2 Bhagat Ram, PW/3 Mukh Ram, PW/4 Amarjeet Singh and PW/5 Sardar Prem Singh in support of the plaint and the defendant examined himself as DW/1, and one more witness DW/2 Jagdev Singh. The learned trial court, after hearing both the parties, vide impugned judgment dated 21.09.1984 dismissed the suit of the plaintiff appellant against which the plaintiff appellant has filed this appeal. 5. The learned trial court, after hearing both the parties, vide impugned judgment dated 21.09.1984 dismissed the suit of the plaintiff appellant against which the plaintiff appellant has filed this appeal. 5. Counsel for the appellant contended that in the trial court issue No.3,4,5,7,8,10,11,12 and 13 were not pressed by the defendant respondent and issue No.1 and 2 were decided in favour of the plaintiff and regarding both these issues, no cross appeal or cross objections have been filed by the respondent. Therefore, only issue No.6 requires consideration, while deciding this appeal. 6. Counsel for the appellant contended that issue No.6, as decided by the learned trial court, is not correct and the learned trial Judge has gravely erred in law in deciding issue No.6 against the plaintiff appellant. Counsel for the appellant further contended that it cannot be said that the agreement Ex.2 and Ex.3 are void in view of the provisions of section 42 (b) of the Rajasthan Tenancy Act 1955. The land in dispute is not khatedari land but it is an evacuee property allotted by the Government of India through Rehabilitation Department. Issue No.6 decided by the learned trial court is wholly contrary to law and are liable to be set aside. Counsel for the appellant further contended that the learned trial court also erred in holding that the provisions of section 65 of the Indian Contract Act are not applicable and further holding that plaintiff appellant is not entitled to restore Rs. 30,000/-. He further contended that when the trial court held that the agreement was not enforceable, the plaintiff appellant is entitled to recover the money paid under the contract. The interpretation made of section 65 of the Indian Contract Act, is wholly erroneous and unsustainable in the eye of law. The respondent cannot be allowed to retain the amount on the principle of equity. The trial court has arrived at the conclusion that the plaintiff appellant has paid Rs. 25,500/- to the defendant respondent as earnest money and did not order to pay this amount back to the appellant plaintiff. The respondent cannot be allowed to retain the amount on the principle of equity. The trial court has arrived at the conclusion that the plaintiff appellant has paid Rs. 25,500/- to the defendant respondent as earnest money and did not order to pay this amount back to the appellant plaintiff. Counsel for the appellant contended that in view of the judgment of the apex court in Tarsem Singh v. Sukhminder Singh, [ AIR 1998 SC 1400 ] holding that even in case of unenforceable agreement where the money has been based on equitable doctrine under the provisions of section 65, the appellant plaintiff is entitled to get the earnest money back from the defendant respondent. 7. Per contra, the learned counsel for the respondent contended that in the judgment in Tarsem Singh' case (supra) Hon'ble Division Bench of the apex court held the principle as argued by the learned counsel for the appellant, whereas the counsel for the respondent submitted that in Kuju Collieries Ltd. v. Jharkhand Mines Ltd. [ AIR 1974 SC 1892 ] the Full Bench comprising of 3 Judges, the Hon'ble apex court held that where the agreement is abinitio void and not enforceable under the law and the agreement does not become void due to the subsequent happening or where the original agreement was not enforceable under the law, plaintiff is not entitled to restore the amount. Counsel for the respondent further contended that where at the time when the agreement is entered into, both the parties knew that it was not lawful and therefore, void, there was no contract but only an agreement, the plaintiff is not entitled to get the earnest money. He further referred to Thakurain Harnath Kuar v. Thakur Indar Bahadur Singh, [AIR 1922 Privy Council 403] and M.D. Army Welfare Housing Organisation v. Sumangal Services Pvt.Ltd., AIR 2004 SC 1344 (1) . 8. During the course of the arguments learned counsel for the appellant admitted this fact that where the judgment passed by the Division Bench of the Hon'ble apex court is contrary to the Full Bench judgment, as per law of precedence, the Full Bench judgment shall prevail. 9. I have perused both the judgments. In Tarsem Singh's case (supra), the earlier judgment in Kuju Collieries Ltd.'s case (supra) has not been referred or discussed. According to the law of precedence, thus Kuju Collieries Ltd.'s case (supra) holds good. 9. I have perused both the judgments. In Tarsem Singh's case (supra), the earlier judgment in Kuju Collieries Ltd.'s case (supra) has not been referred or discussed. According to the law of precedence, thus Kuju Collieries Ltd.'s case (supra) holds good. In view of the above judgment, issue No.6 decided by the learned trial court, cannot be said to be unsustainable, rather the above judgment supports the finding on issue No.6 of the learned trial court. 10. No other issue is required to be dealt with by this Court. Issue No.6 decided by the learned trial court is required to be affirmed in view of the above judgments cited by the learned counsel for the respondents. 11. Accordingly, this appeal deserves to be dismissed and is hereby dismissed and the judgment passed by the learned trial court dated 21.09.1984 is affirmed, with no order as to costs.Appeal dismissed. *******