JUDGMENT : (1) Instant Civil 1st Appeal is directed against the judgment and decree dated 07.07.2015 passed by the Court of Principal District Judge, Budgam. (2) The respondent (hereinafter referred to as the plaintiff) filed a suit captioned “Gh. Mod. Lone Vs. Ab. Ahad Mir & ors” praying for the following reliefs: (a) A decree of specific performance may be passed in favour of the plaintiff and against the defendants directing them to execute sale deed in favour of the plaintiff of the suit land with shamilat land adjacent to it. (b) A decree of perpetual injunction may be passed in favour of the plaintiff and against the defendants restraining them perpetually from interfering with the suit land and shamilat land adjacent to it. (3) Defendants filed their written statement denying claim of the plaintiff. (4) On the basis of respective pleadings of the parties, as many as seven issues were framed, same are reproduced herein-below:— 1. Whether the defendant No.1 and 2 had agreed to sell suit land measuring 6 kanals and 7 marlas situated at Wagar Budgam to the plaintiff in lieu of Rs.2.50 lacks? OPP 2. Whether in pursuance of the transaction, the plaintiff paid the entire consideration amount to the defendants 1 and 2? OPP 3. Whether apart from the consideration amount, the defendants 1 and 2 had also borrowed Rs.2.50 lacs from the plaintiff and same had been acknowledged by the defendants 1&2 by having issued receipt dated 3.6.2003 ? OPP 4. Whether the possession of the suit land was delivered to the plaintiff on 5.4.2002 ? OPP 5. Whether the suit has been wrongly valued for purposes of Court fee and if so, what is deficiency in the Court fee? OPD 6. Whether by having taken undue advantage of illiteracy and old age of defendant No.2, plaintiff obtained his thumb impression on blank paper for having extended promise to provide employment to his son viz. defendant No.3 ? OPD 7. In case plaintiff succeeds in its suit whether he is entitled to decree for specific performance and perpetual injunction in respect of the suit land. (5) During the pendency of the suit, plaintiff claim to have been dispossessed, therefore, filed an application for amendment so as to pray for decreed of possession. defendant No.3 ? OPD 7. In case plaintiff succeeds in its suit whether he is entitled to decree for specific performance and perpetual injunction in respect of the suit land. (5) During the pendency of the suit, plaintiff claim to have been dispossessed, therefore, filed an application for amendment so as to pray for decreed of possession. Same was dismissed vide order dated 31.08.2006 but same was reversed by the High Court while allowing revision petition vide order dated20.04.2007 and amendment was allowed. After amendment, additional issue to the following effect was framed: “Whether the plaintiff during the pendency of the suit was dispossessed from the suit land, if so, is he entitled to the decree of recovery of the possession of the same? OPP (6) Both the parties led evidence in support of their respective cases. (7) Learned trial court after appreciating the evidence, has decided issue Nos.1 to 3 together concluding therein that the witnesses produced by the defendants have admitted the payment of amount but stated that it was in connection with some business transaction whereas some had said that it was consideration amount for the land. (8) While re-appreciating the evidence as produced by both the parties in support of issues No.1 to 3, what emerges is that defendants No.1 and 2 had agreed to sell suit land measuring 6 kanals 7 marlas in lieu of Rs.2.50/- lacs. The entire amount has been received by the defendants. In addition, an amount of Rs.2.50/- lacs was received by the defendants No.1 and 2 which has been acknowledged by them. The same fact is clear from the original receipt as is available on the trial court records which, on proof, has been exhibited as EXP-1. The said receipt clearly reveals that an amount of Rs.2.50/- lacs has been received as consideration for land measuring 6 kanals 7 marlas. In addition, further Rs.2.50/- lacs have been received on credit basis by the defendants. It is amply established by evidence that an amount of Rs.5/- lacs has been received by Mst. Zeba and Ab. Ahad Mir (wife and husband), therefore, findings recorded by learned trial court on these three issues on proper appreciation of evidence are totally apposite and un-interferable. In addition, further Rs.2.50/- lacs have been received on credit basis by the defendants. It is amply established by evidence that an amount of Rs.5/- lacs has been received by Mst. Zeba and Ab. Ahad Mir (wife and husband), therefore, findings recorded by learned trial court on these three issues on proper appreciation of evidence are totally apposite and un-interferable. (9) Regarding issue No.4, learned trial court has recorded a finding that the possession of the suit land was delivered to the plaintiff and it remained in his possession from April, 2002 to September, 2004. Thereafter he was dispossessed by the defendants during pendency of the suit. The evidence of unclenching nature has supported version of the plaintiff. On consideration of the evidence, there is no scope for taking a view different to one as has been taken by the learned trial court, therefore, issue No.4 has been rightly decided against the defendants. (10) The findings recording on issue No.5 are not disputed. (11) Defendant No.3 has failed to prove issue No.6 though witness has been examined but nothing favourable to defendant No.3 has been elicited. (12) The plaintiff while leading evidence vis-à-vis additional issue has clearly established that the possession of the suit land was delivered to him and the same was in his possession from the year 2002 to 2004. He used to sow paddy and mustard in the suit land. Dispossession of the plaintiff from the suit land on 20th September, 2004 by the defendants No.1 and 2 has been established. The defendants and their witnesses have not, in any manner, rebutted the same, as is clear from the evidence of the defendants, therefore, finding has been correctly recorded against the defendants (13) While dealing with issue No.7, the learned trial court relying on various judgments which include judgment rendered in the case of “Nirmal Anand Vs. Advent Corp. Private Ltd. And others” ( AIR 2002 SC 3396 ) and also judgment delivered in the case captioned “Chaman Lal and others Vs. Khan Ab. Gani” reported in S.L.J 1996 J&K Page 467, and the evidence as led, has come to conclusion that a contract for sale of immovable property is established. Advent Corp. Private Ltd. And others” ( AIR 2002 SC 3396 ) and also judgment delivered in the case captioned “Chaman Lal and others Vs. Khan Ab. Gani” reported in S.L.J 1996 J&K Page 467, and the evidence as led, has come to conclusion that a contract for sale of immovable property is established. The plaintiff has filed a receipt, EXP-1, in terms whereof defendants No.1 and 2 have admitted to have received an amount of Rs.5/- lacs i.e. Rs.2.50/- lacs as sale consideration of land measuring 6 kanals 7 marlas covered by survey No.377, 379 and 386 situated at Wagoora and the rest amount of Rs.2.50/- lacs on loan. The receipt is dated 3rd June, 2002. It bears thumb impression of defendant Ab. Ahad (now deceased) and defendant No.2 Mst. Zeba. It also bears signature of four witnesses and the scribe. Contents of the said document have been proved. Learned trial court has also drawn a conclusion that the suit property, admittedly, is now in the possession of defendants and having taken a view not to exercise the discretion for grant of specific performance in view of peculiar facts and circumstances, has held defendants liable to return as against the amount received by them, an amount equivalent to the market value of the suit land. It has also been mentioned that notification bearing No.DCB/SQ/015/1601-20 dated 31.03.2015, issued by Deputy Commissioner, Budgam, reveal that the market value of the land per kanal falling within the area Tehsil Khansahab is fixed at Rs.6/-lacs with effect from April 1st, 2015 to March 31, 2016. The suit land falls in the said area, the total market value of the suit land would be Rs.38, 10,000/-which the defendants shall pay to the plaintiff within a period of three months, in default they shall execute the sale deed for the suit land in favour of the plaintiff and handover possession of the suit land in his favour. (14) Counsel for the appellants (defendants) has not been able to show any evidence recorded during trial of the suit so as to suggest that an amount of Rs.5/-lacs was not received by the defendants Ab. Ahad (now deceased) and his wife Mst. Zeba. On the other hand, it has been fully established by the plaintiff during trial that the amount was received by said defendants. Ahad (now deceased) and his wife Mst. Zeba. On the other hand, it has been fully established by the plaintiff during trial that the amount was received by said defendants. When it is so, they have no justification nor have any right to grab the said money of the plaintiff. (15) The learned trial court has rightly placed reliance on the judgment titled Nirmal Anand Vs. Advent Corpn. Pvt. Ltd. And others ( AIR 2002 SC 3396 ). The relevant portion of para 6, as quoted in the trial court judgement, for facility of reference, is relevant to be quoted: “It is true that grant of decree of specific performance lies in the discretion of the Court and it is also well settled that it is not always necessary to grant specific performance simply for the reason that it is legal to do so. It is further well settled that the Court in its discretion can impose any reasonable condition including payment of an additional amount by one party to the other while granting or refusing decree or specific performance. Whether the purchaser shall be directed to pay an additional amount to the seller or converse would depend upon the facts and circumstances of a case. Ordinarily, the plaintiff is not to be denied the relief of specific performance only on account of the phenomenal increase of price during the pendency of litigation. That may be, in a given case, one of the considerations besides many others to be taken into consideration for refusing the decree of specific performance. As a general rule, it cannot be held that ordinarily the plaintiff cannot be allowed to have, for her alone, the entire benefit of phenomenal increase of the value of the property during the pendency of the litigation……” (16) The direction to pay present value of the disputed land instead of executing sale deed as concluded by the learned trial court is also supported by law laid down by the Hon’ble Apex Court in the case of “Damacherla Anjaneyulu Vs. Damcherla Venkata Seshaiah” reported in 1987 AIR (SC) 1641. (17) The findings recorded by the learned trial court issue-wise do not call for any interference. (18) While bestowing thoughtful consideration to the pleadings, issues framed, evidence led by the parties, documents available on record and on re-appreciation of the whole material, the judgment and decree impugned is upheld, appeal dismissed. Damcherla Venkata Seshaiah” reported in 1987 AIR (SC) 1641. (17) The findings recorded by the learned trial court issue-wise do not call for any interference. (18) While bestowing thoughtful consideration to the pleadings, issues framed, evidence led by the parties, documents available on record and on re-appreciation of the whole material, the judgment and decree impugned is upheld, appeal dismissed. However, no order as to costs. Decree be prepared accordingly. (19) Trial court record along with copy of the judgment and decree be sent to the trial court.