JUDGMENT Pramod Kumar Srivastava, J. – This second appeal has been preferred against the judgment dated 7.12.2011 passed by Additional District Judge, Court No. 2, Ballia inCivil Appeal no. 12 of 2007 (Moti Lal and others v. Kedar Nath Singh and others). 2. In Original Suit No. 84 of 1982 (Moti Lal and others v. Kedar Nath Singh and others.), the plaint case in brief was that defendant Kedar Nath Singh had entered into registered agreement to sell dated 7.6.1980 for sale of his disputed property in favour of plaintiffs for consideration of Rs. 18,300/- and accepted advance consideration for the same. The defendant had accepted total advance consideration of Rs. 75,00/- and had to execute the sale-deed of disputed property after receiving remaining consideration of Rs. 10,800/-. In spite of reminders and the readiness and willingness of plaintiffs, the defendant had not executed the sale-deed of disputed property in terms of registered contract for sale, therefore plaintiffs had filed suit for specific performance of contract. 3. In original suit, defendant had denied contents of plaint by filing written-statement, and further pleaded that he had not executed any such registered agreement to sell. The alleged registered deed of agreement of sale was get executed by presenting any impostor before Sub-Registrar. So, plaintiffs' suit is liable to be dismissed. 4. The trial court had framed issues, accepted documentary and oral evidences of the parties including expert evidences. Thereafter the Court of Civil Judge (S.D.), Ballia had passed its judgment dated 27.4.2007, by which relief of specific performance of contract was declined but the original suit was decreed for the alternative relief of refund of advance consideration. In this judgment, trial court had appreciated evidences and gave specific finding that plaintiffs had properly proved their plaint case about execution of registered agreement for sale of disputed property by defendant in favour of plaintiffs, for consideration; and that the defendant had accepted the advance consideration as pleaded in the plaint. The trial court had also discussed and appreciated the expert evidences of the parties and gave specific finding that plaintiff had proved the execution of disputed document by defendant. The trial court had given specific finding that defendant had failed to prove his averment that he had not executed the said registered agreement to sell or that it was executed by any impostor. The trial court had given specific finding that defendant had failed to prove his averment that he had not executed the said registered agreement to sell or that it was executed by any impostor. The trial court had also decided issue about readiness and willingness of defendant to perform his part of contract in favour of plaintiffs. The trial court had given specific finding of fact confirming every plaint averment, but had declined the relief of specific performance on the ground that during pendency of the suit defendant Kedar Nath Singh had died and relief of specific performance of contract of his share of half of the total property concerned cannot be granted in terms of the registered agreement dated 17.6.1980; therefore the plaintiffs should be returned the amount of advance consideration along with interest. 5. Against the judgment of trial court, Civil Appeal no. 12 of 2007 (Moti Lal and others v. Rakatoo Singh and others) was preferred which was decided by the judgment dated 7.12.2011 passed by Additional District Judge, Court No.-2, Ballia. In this judgment, the first appellate court had appreciated the evidences adduced before the trial court, in the light of arguments of the parties, and gave specific findings of fact that this plaint case is correct that original defendant Kedar Nath Singh had executed the registered agreement to sell dated 17.6.1980 for sale of his property in favour of plaintiffs for consideration of Rs. 18,300/- and had received advance consideration of Rs. 7,500/-, and that the plaintiffs had always been ready and willing to perform their part of contract for sale. Lower appellate court had confirmed the findings of fact of trial court on every plaint averment, and thereafter appreciated the grounds mentioned by trial court for declining the relief of specific performance. Then first appellate court had held that this finding of trial court is incorrect that registered agreement to sell dated 17.6.1980 cannot be specifically enforced. By its impugned judgment dated 7.12.2011 the first appellate court had dismissed the cross-objection of respondents/defendants and allowed the appeal of plaintiffs by setting aside the decree of refund of the money, and substituting it for the relief of specific performance of contract as sought in the plaint. Lower appellate court had directed the defendant to receive remaining consideration of Rs. 10,800/- from plaintiff and execute the sale-deed of disputed property in favour of plaintiffs. 6. Lower appellate court had directed the defendant to receive remaining consideration of Rs. 10,800/- from plaintiff and execute the sale-deed of disputed property in favour of plaintiffs. 6. Aggrieved by the judgment of first appellate court in Civil Appeal no. 12 of 2013, the defendant side of the original suit had presented present second appeal. 7. At the time of admission of this second appeal, following substantial questions of law were framed: "I- Whether the Courts below were justified in decreeing the suit for specific performance of agreement of sale dated 17-06-1980, even though execution of said agreement alleged to have been executed in favour of the respondents, by the predecessor in interest of the appellant no. 1/1 to 1/5 was not proved by the respondents, strictly in accordance with law and beyond reasonable doubt ? II- Whether Courts below were justified in ignoring the duly proved opinion of hand writing expert of the appellants and substituting there own opinion regarding hand writing and thumb impressions of predecessor in interest of the appellant no. 1/1 to 1/5 on agreement to sale dated 17-06-1980. III- Whether the Lower Appellant Court was justified in setting aside the decree of the Trial Court for grant of decree of refund of money with interest @ 6% per anum from the date of filing of suit and decreeing the suit for specific performance of agreement to sale dated 17-06-1980 without reversing the related findings of fact recorded by the Trial Court and also without assigning any lawful reasons for deviating from general rule, of grant of decree of refund of money in place of grant of decree of specific performance, ignoring the provisions contained in Section 20(1) and 2(a)(b) and (c) of the Specific Relief Act 1963 ? IV- Whether while granting discretionary relief of specific performance of agreement to sale dated 17-06-1980 the Lower Appellate Court exercised it's desertion within four corners of relevant provisions contained in the Specific Relief Act 1963 ? V- Whether decree of the Lower Appellate Court based on cermices and conjectures having no leg to stand is sustainable?" 8. Although, five substantial questions of law were framed, but the main contention of learned counsel for the appellant/defendant was that the relief of specific performance of contract is a discretionary relief to the satisfaction of the court. V- Whether decree of the Lower Appellate Court based on cermices and conjectures having no leg to stand is sustainable?" 8. Although, five substantial questions of law were framed, but the main contention of learned counsel for the appellant/defendant was that the relief of specific performance of contract is a discretionary relief to the satisfaction of the court. He contended that the trial court had given specific reasons for not granting the relief of specific performance and for granting alternative relief of refund of advance consideration which is not incorrect. He submitted that no evidence was given as to why relief of specific performance should be granted, therefore there was not occasion for first appellate court to reverse the finding of trial court and grant relief of specific performance. He contended that there is not reason as to why discretion for specific performance of contract in question should be exercised under Section 20 of the Specific Relief Act in favour of plaintiffs/respondents. 9. These contentions were refuted by learned counsel for the respondents who submitted that defendant/appellants had taken false defence in written-statement on every fact mentioned in plaint and all the contents of this pleading were found incorrect and false. Defendant/appellants had taken wrong defences to deceive the court and tried to abuse the process of law. In these circumstances, discretion should not be granted in his favour. He further submitted that there has been concurrent finding of fact of the two lower courts on the point of execution of registered agreement to sell by defendant in favour of plaintiff for sale of his property after receiving advance consideration, that first appellate court had properly discussed the position as to why the conclusion of trial court on the point of refund of relief of advance consideration is erroneous, and that the lower appellate court had properly appreciated the legal provisions and exercised the judicial discretion for grant of relief of specific performance. He further submitted that none of the findings of lower appellate court either on fact or on lawful was erroneous; therefore this appeal should be dismissed. 10. The first and second substantial questions of law, as above, are based on findings of fact by the lower courts. He further submitted that none of the findings of lower appellate court either on fact or on lawful was erroneous; therefore this appeal should be dismissed. 10. The first and second substantial questions of law, as above, are based on findings of fact by the lower courts. The pleading of defendant/appellant was that he had never executed any document of registered agreement of sale in question, which was got executed by plaintiffs by presenting any impostor before Sub-Registrar, and the plaintiffs were not ready and willing to perform their part of contract. The trial court as well as the first appellate court had independently discussed and appreciated the evidences in that regard and gave specific finding of fact that case of defendant/appellants was found incorrect, and that it is proved from evidences that plaintiff and defendant had entered registered agreement of sale dated 17.6.1980 by which defendant had agreed to sell his disputed property to plaintiff and received advance consideration, and that the plaintiffs had all along been ready and willing to perform their part of contract in question. The evidences in this regard by the two lower courts were although appreciated independently, but both the courts below had reached to common and concurrent findings on these points in favour of plaintiffs and against the defendant/appellants. The finding in this regard given by the two lower courts are based on proper appreciation of evidences and are such which should be natural conclusions on the basis of those evidences. Both the lower courts had appreciated the oral evidences as well as evidences of experts and then gave their independent but concurrent findings to the effect that this is incorrect to state that agreement dated 17.6.1980 was not executed by defendant Kedar Nath Singh. There was concurrent and acceptable finding of fact that the defendant Kedar Nath Singh had executed registered agreement of sale of his disputed property in favour of plaintiff after receiving advance consideration, but later he had not executed the sale-deed in terms of contract, in spite of the fact that plaintiffs had all along been ready and willing to perform their part of contract and had been asking and giving notice to plaintiffs and attempting to get the sale-deed executed. Therefore, this contention of learned counsel for the appellant is found incorrect that plaint case was not proved or that the lower appellate courts had not properly appreciated the expert opinion adduced on behalf of the defendant/appellant. The concurrent findings of fact in this regard, as given by the two lower courts are apparently correct and acceptable. Such findings cannot be interfered in second appeal by re-appreciation of evidences, especially on ground of feeble probability of any other inference, other than that of lower courts, being possible. Therefore, substantial questions no. 1 and 2 are decided against the appellants/defendants and in favour of plaintiffs/respondents. 11. Section-20 of Specific Relief Act reads as under: "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 performance 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. Explanation 2.-The question whether the performance 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." 12. The Apex Court in N.P. Thirugnanam v. R. Jagan Mohan Rao (Dr), (1995) 5 SCC 115 held as under: "5. It is settled law that remedy for specific performance is an equitable remedy and is in the discretion of the court, which discretion requires to be exercised according to settled principles of law and not arbitrarily as adumbrated under Section 20 of the Specific Relief Act, 1963 (for short "the Act"). Under Section 20, the court is not bound to grant the relief just because there was a valid agreement of sale. Section 16(c) of the Act envisages that plaintiff must plead and prove that he had performed or has always been ready and willing to perform the essential terms of the contract which are to be performed by him, other than those terms the performance of which has been prevented or waived by the defendant. The continuous readiness and willingness on the part of the plaintiff is a condition precedent to grant the relief of specific performance. This circumstance is material and relevant and is required to be considered by the court while granting or refusing to grant the relief. If the plaintiff fails to either aver or prove the same, he must fail. To adjudge whether the plaintiff is ready and willing to perform his part of the contract, the court must take into consideration the conduct of the plaintiff prior and subsequent to the filing of the suit along with other attending circumstances. The amount of consideration which he has to pay to the defendant must of necessity be proved to be available. The amount of consideration which he has to pay to the defendant must of necessity be proved to be available. Right from the date of the execution till date of the decree he must prove that he is ready and has always been willing to perform his part of the contract. As stated, the factum of his readiness and willingness to perform his part of the contract is to be adjudged with reference to the conduct of the party and the attending circumstances. The court may infer from the facts and circumstances whether the plaintiff was ready and was always ready and willing to perform his part of the contract." 13. In present case the readiness and willingness to perform his part of the contract, as required for the grant of relief of specific performance, is proved fact. Not only the lower courts had given such finding in favour of plaintiff-appellant, but also this fact is explicitly clear and evident from the fact that out of total agreed sale consideration of Rs. 18,300/- the plaintiff-appellant had already paid Rs. 7,500/- which is 40.98 % of the sale consideration. This amount of sale consideration was used and usurped by defendant-appellant who had also been enjoying the possession of disputed property. 14. Thus almost slightly less than 41% consideration was utilised and enjoyed by the defendant-respondent, who had not only been enjoying the property in question, but had already been acting in bad faith and mala fide manner when he had been taking false defences of alleged loan and refund of amount etc., which were found incorrect and false by the two lower courts. He had been repeatedly telling lie, and misusing process of court by giving false evidences. 15. Section 20(2) of the Specific Relief Act had provided certain conditions, as quoted above, in which court may properly exercise discretion not to decree specific performance. He had been repeatedly telling lie, and misusing process of court by giving false evidences. 15. Section 20(2) of the Specific Relief Act had provided certain conditions, as quoted above, in which court may properly exercise discretion not to decree specific performance. Considering those conditions in light of present case it is found that (a) the terms of the contract or the conduct of the parties at the time of entering into the contract was not such could give the plaintiff an unfair advantage over the defendant, because the plaintiff had already received about 41% of sale consideration, and it would be the defendant whould get unfair advantage over plaintiff-respondent if no relief of specific performance is granted; (b) in present matter there appeared nothing which the defendant-respondent could not foresee, and instead of defendant it would be the plaintiff-respondent who would suffer hardship by non-performance who had paid big chunk the price of property, and when in present age of boom of property prices would get meager amount of actual price of said land, even if the money is refunded with interest; and (c) the defendant-appellant, after receiving of almost 40% of sale consideration, had not entered into the contract under any circumstances which makes it inequitable to enforce specific performance. 16. In Satya Jain (D) through LR and others v. Anis Ahmed Rushdie (D) through Lrs and others 2013 (31) LCD 558 Apex Court had held as under: "The discretion to direct specific performance of an agreement and that too after elapse of a long period of time, undoubtedly, has to be exercised on sound, reasonable, rational and acceptable principles. The parameters for the exercise of discretion vested by Section 20 of the Specific Relief Act, 1963 cannot be entrapped within any precise expression of language and contours thereof will always depend on the facts and circumstances of each case. The ultimate guiding test would be the principles of fairness and reasonableness as may be dictated by the peculiar facts of any given case, which features the experienced judicial mind can perceive without any real difficulty. It must however be emphasised that efflux of time and escalation of prince of property by itself cannot be a valid ground to deny the relief of specific performance." 17. It must however be emphasised that efflux of time and escalation of prince of property by itself cannot be a valid ground to deny the relief of specific performance." 17. In the case of Rathnavathi and another v. Kavita Ganashamdas 2015 (1) Civil Court Cases 164 (SC), the Apex Court had held as under: "In our considered opinion, the High Court being the last Court of appeal on facts/law while hearing first appeal under section 96 of CPC as well within its powers to appreciate the evidence and came to its own conclusion independent to that of the trial court's decision. One cannot dispute the legal proposition that the grant/refusal of specific performance is a discretionary relief, and, therefore, once it is granted by the appellate court on appreciation of evidence, keeping in view the legal principle applicable for the grant then further appellate court should be slow to interfere in such finding, unless the finding is found to be either against the settled principle of law, or is arbitrary or perverse." 18. On the basis of above discussion, I am of the considered opinion that during trial or during first appeal court, no evidence was led by defendant-appellant to prove that his livelihood is dependent on disputed property or that prejudice, if any, would caused to him if contract for sale in question is specifically performed. The burden of proving such facts are on defendant-appellant who wants the court to believe it, but he had failed to discharge this burden. It is also proved that respondent appellant been acting dishonestly, pleading false defences and giving false evidences in Court to prove that he had no intention to execute agreement for sale in question and also that no amount of plaintiff is due against him. In these circumstances, this contention of learned counsel for the respondent is not unacceptable that plaintiff-respondent had totally proved its plaint case and would suffer prejudice if contract for sale in question is not specifically performed, but no prejudice would be caused to defendant-respondent in case of specific performance of contract. This contention is also found acceptable that for acting in dishonest and mala fide way and giving false defences and for telling lie before the Court, the defendant-appellant should not be awarded and given benefit of his greed, nor should he be permitted to benefit of his misuse of process of court. 19. This contention is also found acceptable that for acting in dishonest and mala fide way and giving false defences and for telling lie before the Court, the defendant-appellant should not be awarded and given benefit of his greed, nor should he be permitted to benefit of his misuse of process of court. 19. For the reasons discussed above, it is found that plaintiff-respondent had totally proved his case and readiness and willingness to perform his part of contract and also that if said contract is not specifically performed, then he would be subjected to serious prejudices, because he had been waiting for long time after paying more than 40% sale consideration, and had been subjected to long litigation without any sufficient reason. 20. So far as third substantial question of law is concerned, it is found that this is not framed properly on facts. The first appellate court had specifically discussed the reasons given by trial court at the time of deciding the issue no. 6 and gave its reason as to why the conclusion of trial court for non-granting of relief of specific performance of contract is erroneous. First appellate court had specifically referred the findings of trial court by assigning lawful reasons. The trial court had given reason for non-granting of relief of specific performance by submission that original defendant Kedar Nath Singh had died so his half share in disputed property cannot be sold. First appellate court had rightly found that this reason for denial of relief of specific performance is erroneous. This finding of first appellate court is correct that when the original defendant had executed the registered agreement of sale of his share in disputed property, then his whole share can be sold in exercise of decree of specific performance of contract without any illegality. First appellate court had rightly reversed its finding of trial court that plaintiffs cannot be deprived of their right of specific performance of contract against the substituted defendants (appellants of present second appeal) merely because the original defendant had died during pendency of litigation. The death of original defendant Kedar Nath Singh was the only reason for the trial court to decline the plaintiffs from relief of specific performance. This reason was also baseless. The death of original defendant Kedar Nath Singh was the only reason for the trial court to decline the plaintiffs from relief of specific performance. This reason was also baseless. Had there been any other reasons as discussed in Section 20(1) or Section 20 (2) (a)(b)(c) then matter would have been otherwise; but in present matter it was the defendant (appellants' side) who had taken incorrect defences and false pleas with intention to deceive not only the plaintiff but also the court, and had not given any reason as to why the grant of specific performance of contract would be unjust or inequitable to them or that there was any circumstances which was not foreseen by original defendant at the time of execution of sale-deed that had emerged later on. 21. Apart from it, it is found that plaintiffs/respondents had executed the registered agreement for purchase of disputed property of original defendant Kedar Nath Singh on 17.6.1980 and paid advance consideration and had been ready and willing to perform their part of contract, but when defendant Kedar Nath Singh had refused to execute the sale-deed in terms of contract then they had filed original suit no. 84 of 1982 after about two years of execution of said contract, and since then they had been pursuing for the relief till now, for about 14 years. It would be unjust if plaintiffs/respondents be denied relief of specific performance which they are seeking by filing suit on the basis of correct facts, and which was being contested by defendant/appellants on the basis of false, incorrect and dishonest pleadings. The defendant/appellants should not be permitted to take advantage of their false pleadings and mala fide dishonest defence in the garb of legal provisions. For these reasons, I am of the opinion that the judgment and finding of first appellate court was in consonance of Section 20 of the Specific Relief Act, 1963 when it had granted the discretionary relief of specific performance in favour of plaintiffs/respondents for the contract dated 17.6.1980. Accordingly, substantial questions no. 3 and 4 are decided in favour of plaintiffs/respondents and against the defendant/appellants. 22. Accordingly, substantial questions no. 3 and 4 are decided in favour of plaintiffs/respondents and against the defendant/appellants. 22. A perusal of the records reveal that the trial court as well as the first appellate court had meticulously appreciated the pleadings of the parties and gave findings of facts in the light of adduced evidences, in favour of plaintiffs and against the defendant, on each point of fact including execution of registered contract for sale, receiving of advance consideration by original defendant and readiness and willingness of plaintiffs/respondents to perform their part of contract. Therefore this contention of learned counsel for the appellant is found incorrect and unacceptable that the judgment and decree of lower appellate court is based on surmises and conjectures. In fact, it is found that judgment of lower appellate court is based on proper appreciation of evidences and law, which is hereby confirmed. Accordingly, substantial question of law no. 5 is decided in negative, against the defendant/appellants and in favour of plaintiffs/respondents. 23. No other point was discussed before this Court at the time of hearing. On the basis of above discussion, it is found that there is no factual, legal or procedural error in the judgment of lower appellate court, which is hereby confirmed. Accordingly, this appeal is dismissed. Appeal dismissed.