JUDGMENT 1. With the consent of learned counsel for the parties, the matter is finally heard. 2. This appeal under section 100 of the Code of Civil Procedure, 1908, is directed against the judgment and decree dated 27.2.2017 passed in Civil Appeal No. 500028/2015 whereby the judgment and decree dated 31.3.2015 in Civil Suit No. 03A/2015 is reversed. 3. Suit at the instance of the appellant was for specific performance of contract of sale of 1/3rd share of land forming part survey No. 1775 ad-measuring 0.11 hectare situated at village Rator, Tashil and District Shivpuri. It was contended inter alia that the agreement of sale was entered into on 12.6.2009 and after receiving earnest money of Rs. 18000/- the possession was delivered in favour of the plaintiff. And that plaintiff was ready and even willing to perform his part of agreement. The defendant besides denying the execution of agreement of sale, contended that the plaintiff is the encroacher and has since been dispossessed from the suit land. It was urged that the plaintiff is not entitled for decree of specific performance. 4. The trial Court framed five issues, vÁ, S.No. ISSUES CONCLUSION 1 Whether the defendant No.1 Proved entered into an agreement with plaintiff for sale of suit land for sale consideration of Rs. 20,000/-? 2. Whether the deft. No.1 Proved received earnest money of Rs. 18,000 from the plaintiff? 3. Whether the plaintiff has Not proved always been ready and willing to perform his part of contract 4. Whether the suit has been Proved instituted within the prescribed period for filing suit 5. Relief and costs Accordingly Para No: 17 5. Respective parties led their evidence. 6. The trial Court found that the plaintiff failed to establish of his readiness and willingness to perform his part of agreement. Consequently, non suited the plaintiff for specific performance of the agreement for sale, but found the plaintiff entitled for the refund of Rs. 18,000/-. The suit was partly allowed to the extent of refund of advance money with 6% interest per annum from the date of agreement i.e. 12.06.2009. 7. In an appeal preferred by the defendant, the first appellate Court upheld the finding by the trial Court as to execution of the agreement of sale and that the plaintiff did not prove his readiness and willingness to perform his part of agreement. 7. In an appeal preferred by the defendant, the first appellate Court upheld the finding by the trial Court as to execution of the agreement of sale and that the plaintiff did not prove his readiness and willingness to perform his part of agreement. The appellate Court, however, interfered with the decree as to refund of Rs. 7. In an appeal preferred by the defendant, the first appellate Court upheld the finding by the trial Court as to execution of the agreement of sale and that the plaintiff did not prove his readiness and willingness to perform his part of agreement. The appellate Court, however, interfered with the decree as to refund of Rs. 18,000/-, the reasons find mention in paragraphs No. 25 and 26 of the judgment : ¼25½ mYYks[kuh; gS fd fo}ku voj U;k;ky; us tks oknh dks dfFkr vuqca/k i= Á-ih&1 ds rgr vfxze ds :i esa fn;k tkuk vfHkdfFkr /kujkf'k 18]000@:i;s ÁfrŒ ØŒ 1 ls mls okfil fnyk;s tkus dk vkns'k fn;k gS] og oLrqr% bl ea'kk ls fn;k x;k ÁdV gksrk gS fd Hkys gh oknh mDr vuqca/k ds rgr vius 'ks"k fgLls dk ikyu djus esa bPNqd o rRij u jgus ds dkj.k vuqca/k dk fof'k"V vuqikyu djk ikus esa vlQy jgk gS rFkkfi og mlds rgr fn, x, vfxze /ku dks okfil ikus dk gdnkj gS] ;g bl dkj.k fd mHk;i{k dks mDr /kujkf'k dh okilh mijkar vuqca/k iwoZ dh fLFkfr esa yk;k tk lds rFkk mlls fdlh Hkh i{k dks Áfrdwy ÁHkko ;k uqdlku u iM+s rFkkfi ;gk¡ Åij dh x;h foospuk ls ;g ÁdV gqvk gS fd oLrqr% dfFkr vuqca/k Á-ih&1 ds rgr dCtk u fn, tkus ds ckotwn oknh }kjk Lo;a voS/kkfud —R; djrs gq, fookfnr Hkwfe lfgr ÁfrŒ ØŒ 1 ds vU; HkkbZ;ksa dh 'ks"k Hkwfe xsar ij Hkh tcju dCtk fd;k tkdj mldk mi;ksx@miHkksx fd;k tk jgk gS] tcfd og oLrqr% mlh le; ;fn ÁfrŒ ØŒ 1 }kjk dfFkr vuqca/k Á-ih&1 ds fof'k"V vuqikyu ls O;fFkr gqvk Fkk] rks bl laca/k esa mfpr dk;Zokgh gsrq U;k;ky; esa okn yk ldrk Fkk vkSj U;k;ky; ds ek/;e ls fodz; i= laikfnr djkdj mDr vuqcaf/kr Hkfe dk fof/kor~ vkf/kiR; ÁkIr dj ldrk Fkk] ysfdu ,slk u djrs gq, mlds }kjk Lo;a mDr Hkwfe ij tcju vkf/kiR; fd;k x;k] ftlds fo#) ÁfrŒ ØŒ 1 }kjk l{e U;k;ky; esa dk;Zokgh Ápfyr fd;k tkuk ÁdV gqvk gSA ¼26½ vr% ekeys esa vk;h mDr rF; ifjfLFkfr ftlds v/khu oknh }kjk Lo;a fookfnr Hkwfe ds vykok ÁfrŒ ØŒ 1 ds HkkbZ;ksa dh 'ks"k Hkwfe ij tcju dCtk dj mldk mi;ksx@miHkksx fd, tkus dk rF; mls dfFkr vfxze /kujkf'k dk lkE;k ds fl)kar ds rgr gdnkj ugha cukrk D;ksafd ;g OkLrqr% ,slh Áo`fRRk dks c<+kus okyk gksxk fd dksbZ Hkh O;fDr vpy laifRRk ds laca/k esa fcuk dCts dk vuqca/k djs vkSj rnqijkUr ml laifRRk ij dCtk djds mlds laca/k esa nh x;h vfxze /kujkf'k dks Hkh e; C;kt okfil ÁkIr dj ys vkSj bl Ádkj voS/kkfud —R; djrs gq, Hkh iwoZ fLFkfr esa C;kt lfgr /kujkf'k ÁkIr dj vk tk,A vr% mDRk rF; ifjfLFkfr OkLrqr% oknh dks vU;k;iw.kZ /kuh cukus dh Áo`fRRk j[krh gSA vr% mDr dkj.k ls fo}ku fopkj.k U;k;ky; }kjk ikfjr ?kksf"kr fu.kZ;kuqlkj oknh dfFkr vuqca/k Á-ih&1 ds rgr crkSj vfxze fn;k tkuk vfHkdfFkr 18]000@#i, ,oa ml ij 06 Áfr'kr okf"kZr dh nj ls vuqca/k fnukad 12-6-2009 ls olwyh fnukad rd C;kt lfgr ikus dk lqik= gksuk ugha ik;k tkrk vkSj bl laca/k esa fo}ku fopkj.k U;k;ky; }kjk fn;k x;k fu"d"kZ gLr{ksi fd, tkus ;ksX; ik;k tkrk gSA 8. In these factual backdrop, the substantial question of law which arises for consideration is “whether first appellate Court was justified, in given facts, to have reversed the judgment and decree for refund of amount paid in advance by applying the principle of equity?. 9. Evidently, the first appellate court returned the finding that the plaintiff contrary to the terms of contract for sale had perforce occupied not only the piece of land agreed but also the land said to be belong to brothers. Learned Judge observed that since the plaintiff committed an illegality in encroaching the land, he is not entitled for refund of the amount. In other words, the plaintiff is punished for said illegal act which in turn has led to unlawful encroachment to the defendant who did not file any suit for compensation, nor was there any cross suit. 10. Section 22 (1) (b) of the Specific Relief Act, 1963, stipulates : “22. Power to grant relief for possession, partition, refund of earnest money, etc.—(1) Notwithstanding anything to the contrary contained in the Code of Civil Procedure,1908 (5 of 1908), any person suing for the specific performance of a contract for the transfer of immovable property may, in an appropriate case, ask for— (a) …........ (b) any other relief to which he may be entitled, including the refund of any earnest money or deposit paid or [made by] him, in case his claim for specific performance is refused.” 11. Thus, it is legal right of the plaintiff in case he fails to succeed in getting decree for specific performance to seek refund of the earnest money. The First Appellate Court did not advert to any term of the agreement dis-entitling the plaintiff from refund of earnest money. In Sushila Devi and others v. Kachrabai and others, 1994 MPLJ 362 , it is held : “5. …....... It is sattled law that in proper cases, where specific performance is refused, the Court may direct the refund of the amount to the plaintiff even though he has not specifically asked for it in the plaint. ….....” 12. Recently, in Revanasiddayya v. Gangamma alias Shashikala and another, (2018) 1 SCC 610 , it is held by their lordships : “24. …....... ….....” 12. Recently, in Revanasiddayya v. Gangamma alias Shashikala and another, (2018) 1 SCC 610 , it is held by their lordships : “24. …....... One cannot dispute the legal position that once the bargain to sale/purchase of any land fails, the unsuccessful buyer becomes entitled in law to claim refund of earnest money from the seller under section 22 of the Specific Relief Act, 1963 ...........” 13. In view whereof, the first appellate Court grossly erred in non suiting the plaintiff for the refund of amount paid as earnest money/advance. Consequently, the judgment and decree dated 27.2.2017 passed in civil appeal No. 500028/2015 is reversed. The judgment and decree passed by the trial Court in Civil Suit No. 3A/2015 is restored. 14. The appeal is allowed to the extent above. 15. Parties to bear their own costs.