ORDER : Rajani Dubey, J. 1. Challenge in this First Appeal is to the judgment and decree dated 25.09.2018 passed in Civil Suit No.41-A/2011 by 5th Additional District Judge, Bilaspur, District Bilaspur (C.G.) whereby, the learned Court below dismissed the suit filed by the appellant-plaintiff for specific performance of agreement to sell, holding that the appellant-plaintiff has failed to prove his suit. 2. It is not in dispute that appellant/plaintiff - Amit Jain is the grandson of defendant No.1-Nemi Chand Jain (Deceased) being the son of Sheetalchand Jain, son of defendant No.1-Nemi Chand Jain. Respondent No.2-Rishabh Jain is the younger son of defendant No.1-Nemi Chand Jain (Deceased). Defendant/Respondent No.1 Nemichand Jain left for heavenly abode on 19.04.2017 during the pendency of suit. 3. Brief facts of the case are that appellant-plaintiff is resident of House No.3/110, Radha Puram Estate, District Mathura (U.P.). His grandfather, defendant No.1-Nemi Chand Jain (through LRs), had owned and possessed the piece of land bearing Khasra No.37, total area 16.50 acre, which is situated at Mauja Pendari, P.H. No. 25, Tehsil Takhatpur, District Bilaspur (C.G.) (hereinafter referred to as 'Suit Property'). Appellant-plaintiff used to travel Bilaspur and Raipur often for his business and personal purpose. Appellant-plaintiff visited Raipur and at the relevant time defendant No.1-Nemi Chand Jain (through LRs) who was grandfather of the appellant-plaintiff called him along with a non-judicial stamp of Rs.50/-. On the same day, the appellant-plaintiff went to Bilaspur (C.G.) and handed over a stamp paper of Rs.50/- to deceased Nemi Chand Jain, who sought financial help of Rs.5,00,000/- (Rs. Five Lac only) for constructing Nemi Chand Jain Cancer Institute and Research Center as also requested him to buy his 16.50 acre land situated in Bilaspur (Suit Property). It is alleged that Nemi Chand, defendant No.1- (through LRs), entered into a notarized agreement with appellant-plaintiff in relation to sell of his 16.50 acre land (Suit Property). The appellant-plaintiff paid advance of Rs.5,00,000/- (Rs. Five Lac only) as part payment for the Suit Property in presence of two witnesses and before the Notary at the place where the agreement had to be notarized. It has been further alleged that, under the agreement the parties agreed to sell and purchase Suit Property @ Rs.1,25,000/- per acre. This agreement was executed for total consideration of Rs.20,62,500/- for 16.50 acres land and Rs.5,00,000/- was advanced by the appellant-plaintiff as part payment. It has been further alleged that, under the agreement the parties agreed to sell and purchase Suit Property @ Rs.1,25,000/- per acre. This agreement was executed for total consideration of Rs.20,62,500/- for 16.50 acres land and Rs.5,00,000/- was advanced by the appellant-plaintiff as part payment. The agreement was duly signed by defendant No.1-Nemi Chand Jain as well as by the appellant-plaintiff and was notarized by the public notary before two witnesses. It was agreed between the parties that the appellant-plaintiff was required to pay balance amount of Rs.15,62,500/- within four years from the date of the agreement and after receiving the same, defendant No.1-Nemi Chand Jain (through LRs) would execute sale deed in favour of the appellant-plaintiff in respect of suit property and hand over possession of the same. Appellant-plaintiff repeatedly reminded and expressed his willingness to defendant No.1-Nemi Chand Jain (through LRs) that he is ready to give balance amount of Rs.15,62,500/- so that sale deed of the suit property could be executed but defendant No.1-Nemi Chand Jain did not pay heed to appellant-plaintiff's request. When Nemi Chand Jain refused to execute sale deed, appellant-plaintiff with the assistance of his other family members and relatives convinced him and thereafter defendant No.1-Nemi Chand Jain (through LRs) agreed to execute sale deed in next one year. The appellant-plaintiff agreed to that because of involvement of family members and he trusted upon Nemi Chand Jain because of his regard for the relationship with his grandfather. It is alleged that in the meanwhile, neither defendant No.1-Nemi Chand Jain (through LRs) disclosed the fact of execution of two registered illegal gift deeds in favour of his younger son Rishabh Jain (Defendant No.2 herein) nor the appellant-plaintiff could come to know about this. After some time, the appellant-plaintiff came to know that defendant No.2-Rishabh Jain fraudulently created two illegal gift deeds in his (defendant No.2) own favour. When the said fraudulent activity came to the knowledge of defendant No.1-Nemi Chand Jain (Deceased), he filed two Civil Suits, (1) Original Suit No.57-A/2010 and (2) Original Suit No.87-A/2010, before the Court of District Judge, Bilaspur (C.G.) seeking cancellation of both the illegal gift deeds. When appellant-plaintiff came to Bilaspur to make full and final payment of Rs.15,62,500/-, he came to know about the pendency of suits filed by defendant No.1. When appellant-plaintiff came to Bilaspur to make full and final payment of Rs.15,62,500/-, he came to know about the pendency of suits filed by defendant No.1. Thereafter, the appellant moved an application under Order 1 Rule 10 of the Civil Procedure Code, 1908 (for short 'CPC') for impleading himself as a necessary party to both the suits and published information with regard to the existing agreement to sell between him and defendant No.1-Nemi Chand Jain (through LRs) in relation to suit property and also published a notice informing the public at large that any kind of transaction in respect of Suit Property would be void and illegal in the eye of law since there exists an agreement to sell of the Suit Property. Defendant No.2 herein tried to pressurize the appellant-plaintiff and also extended life threat over phone not to pursue the civil suits at Bilaspur, the report of which was also lodged by the appellant-plaintiff at Govind Nagar Thana, Mathura against defendant No.2 and 3. Further, being aggrieved by non execution of the agreement by defendant No.1-Nemi Chand Jain (through LRs), the appellant-plaintiff has filed a Civil Suit No.41-A/2011 for specific performance of the agreement to sell dated 18.11.2005 before the District Court, Bilaspur (C.G.). 4. During pendency of all three civil suits, Rishabh Jain-Defendant No.2 sold the suit property to defendant No.3-Manjeet Singh Gumbar for consideration of Rs.1,10,00,000/- (Rs. One Crore and Ten Lac only) and three separate sale deeds were executed. Thereafter, defendant No.1-Nemi Chand Jain (through LRs) filed an application for withdrawal of both the suits. Appellant-plaintiff filed a suit for specific performance of agreement against defendant No.1-Nemi Chand Jain (through Lrs) and against defendant Nos. 2 and 3 in relation to cancellation of gift deeds dated 11.08.2006 as well as sale deed dated 19.01.2011, 20.01.2011 and 21.01.2011 & demanded his advance amount of Rs.5,00,000/- along with interest from defendant No.1-Nemi Chand Jain (through LRs). 5. In written statement, defendant No.1-Nemi Chand Jain (deceased) admitted the fact of entering into agreement to sell with appellant-plaintiff but he stated that appellant-plaintiff's agreement was written on a plain paper on 16.11.2005. He never signed any agreement on 18.11.2005 and nor went to any notary. He has also not received Rs.5,00,000/- as advance from the appellant-plaintiff. He filed two civil suits against his son defendant No.2 for cancellation of gift deeds but after some time he withdrew his suits. He never signed any agreement on 18.11.2005 and nor went to any notary. He has also not received Rs.5,00,000/- as advance from the appellant-plaintiff. He filed two civil suits against his son defendant No.2 for cancellation of gift deeds but after some time he withdrew his suits. No cause of action has accrued in favour of appellant-plaintiff to file the suit for specific performance of agreement. He never received any advance amount, therefore, the suit filed by the appellant-plaintiff may be dismissed. 6. Defendant Nos. 2 and 3 have also filed their written statement denying plaint averments. 7. The learned trial Court, after appreciating oral and documentary evidence brought on record by respective parties, non-suited the appellant-plaintiff vide judgment dated 25.09.2018 holding that the appellant-plaintiff has not been able to establish his claim. 8. Learned Senior Advocate for the appellant-plaintiff submits that the impugned judgment and decree is arbitrary, illegal and contrary to the law applicable to the facts and circumstances of the present case. The entire finding recorded by the learned trial Court is based on conjecture and surmises. He further submits that the learned trial Court did not consider existence of agreement dated 18.11.2005, which was executed between the appellant-plaintiff and defendant No.1-Nemi Chand Jain (through LRs). The learned trial Court did not consider the fact that defendant No.1-Nemi Chand Jain (through LRs) concealed the fact that he had executed two illegal gift deeds in favour of defendant No.2 despite the fact that there was already an agreement to sell dated 18.11.2005 regarding the Suit Property was in existence. Learned counsel also submits that the trial Court ought to have considered firstly the admission made by defendant No.1-Nemi Chand Jain (Deceased) at four places in his written statement and in Civil Suit Nos. 87-A/2010 and 57-A/2010 & also in amended written statement in relation to the fact that gift deeds executed in favour of defendant No.2 were conditional in nature. Secondly, as per the admission by defendant No.1-Nemi Chand Jain (through LRs) that if defendant No.1 (dead) gifted his land to defendant No.2 which is adjacent to the land of defendant No.2 (which was bought by the defendant No.1 (Dead) in favour of defendant No.2 when he was minor), in that case the defendant No.2 shall sell the land at higher price and he will give the accrued amount from that sell to the defendant No.1. It is contended that defendant No.1-Nemi Chand Jain (through LRs) has also admitted in his pleading that defendant No.2 told him that such gift deeds would be pretentious and the possession of the suit property would remain with defendant No.1-Nemi Chand Jain (through LRs). Fourthly, defendant No.1-Nemi Chand Jain (through LRs) has admitted in his pleading that defendant No. 2 assured him that no rights of the suit property shall be transferred. In such facts of the matter, it is clear that alleged gift deeds were in existence, in that case, both the gift deeds were conditional in nature and the amount accrued out of the sale had to be advanced to the defendant No.1-Nemi Chand Jain (through LRs). 9. Next submission of learned Senior Counsel is that the learned trial Court erred in not appreciating the fact that defendant No.1-Nemi Chand Jain (through LRs) did not express his absolute consent to execute illegal gift deeds as consent was subject to condition subsequent thereto. The learned trial Court did not appreciate the fact that defendant No.1-Nemi Chand Jain (through LRs) had understood that he has been defrauded by defendant No.2 and therefore, he filed two separate suits for cancellation of two illegal gift deeds which were fraudulently and illegally got executed by defendant No.2. It is submitted that this fact was accepted by defendant No.1-Nemi Chand Jain (through LRs) in his written statement dated 20.07.2011 filed in the Suit No.5-A/2011 but the said fact was not appreciated by the learned Court below. Further submission of learned Senior Counsel is that the learned trial Court did not consider conduct of defendant No.1-Nemi Chand Jain (through LRs) in relation to his willingness in withdrawal of the suit which was filed in relation to cancellation of illegal gift deeds and the manner and circumstances in which the said application for withdrawal was allowed, suggests ill intention and collusion of both the parties. It is also contended that the learned trial Court erred in not pointing out inconsistent and suspicious conduct of both the defendants. The conduct of defendant No.1-Nemi Chand Jain (through LRs) was questionable. There were variances and contradictions in his stand and his conduct from one stage to another. The same is evident from the different written statements filed by him. The conduct of defendant No.1-Nemi Chand Jain (through LRs) was questionable. There were variances and contradictions in his stand and his conduct from one stage to another. The same is evident from the different written statements filed by him. The learned trial Court has also failed to appreciate fact that defendant No.1-Nemi Chand Jain (through LRs) did not deny the existence of agreement between him and the appellant-plaintiff and also overlooked statement of witnesses adduced by appellant-plaintiff in support of the agreement dated 18.11.2005. In the present case, defendant No.1 died before recording of his evidence, whereas statement of defendant No.2 is full of contradictions. The appellant-plaintiff laid ample evidence for proving his case. It has been also argued that the learned trial Court has gone wrong in holding that the appellant-plaintiff failed to justify the reason to execute the agreement at Takhatpur where defendant No.1-Nemi Chand Jain (through LRs) used to reside but the learned trial Court also failed to appreciate that the suit property is situated at village Pendari, Tehsil Takhatpur and that was the reason to execute the agreement to sell at Tehsil Takhatpur not in District Bilaspur. Therefore, the impugned judgment and decree being contrary to law is liable to be set aside. Last, but not the least, submission is that admission of a party in the proceedings either in the pleading or oral is the best evidence and same does not need any further corroboration. In support of his submission, learned Senior Advocate placed reliance on the decisions of Hon'ble Supreme Court in the matter of Nagindas Ramdav V. Dalpatram Ichharam, (1974) 1 SCC 242 , Ahmedsaheb V. Sayed Ismail, (2012) 8 SCC 516 , Mritunjay Sett V. Jadunath Basak, (2011) 11 SCC 402 , Shakuntala V. State of Haryana, (1979) 3 SCC 226 , Sonia Bhatia V. State of U.P., (1981) 2 SCC 585 , S.R. Srinivasa V. S. Padmavathamma, (2010) 5 SCC 274 , Ponnayal V. Karuppannan, (2019) 11 SCC 800 and Ayaaubkhan Noorkhan Pathan V. State of Maharashtra, (2013) 4 SCC 465 . 10. 10. Learned Senior Counsel for respondent No.3 supporting the impugned judgment and decree submits that defendant No.1-Nemi Chand Jain (Deceased) filed suit challenging the gift deeds made in favour of defendant No.2-Rishabh Jain and subsequently, the suit was withdrawn by him without seeking any liberty to file afresh and therefore, validity of gift deeds cannot be challenged directly or indirectly by defendant No.1-Nemi Chand Jain (through LRs) or his successors in interest and he did not appear in witness box. Therefore, affidavits and other admissions are not considered to be evidence, within the meaning of Section 3 of the Evidence Act. He placed reliance on the decisions of Hon'ble Supreme Court in the matter of Ayaaubkhan Noorkhan Pathan V. State of Maharashtra and Ors., AIR 2013 SC 58 and Bhagwat Sharan (Dead through LRs.) V. Purushottam and Ors., AIR Online 2020 SC 573. 11. Learned State counsel supporting the impugned judgment and decree submits that the trial Court has not committed any error of law while dismissing the suit and no interference is required. 12. On the basis of the pleadings of the parties, as many as 13 issues were framed by the learned trial Court for deciding the dispute. The important issues are as follows :- 1- D;k] izfroknh Ø- 1 usehpan tSu us oknh vfer tSu ls fnukad 18-11-2005 dks oknxzLr laifRr dks izfr ,dM+ 1]25]000@& #i;s esa foØ; djus vuqca/k dj oknh ds i{k esa vuqca/k i= ;k bdjkjukek fu"ikfnr fd;k \ 2- D;k] izfroknh Ø- 1 us mijksDr vuqca/k i= ;k bdjkjukek ds ,ot esa oknh ls c;kuk jkf'k 5]00]000@& #i;s izkIr fd;k \ 3- D;k] bdjkjukek ds 'krksZ ds vuqlkj bdjkj'kqnk Hkwfe dh foØ; i= dh fy[kki ढ+h 4 o"kksZ ds vanj oknh ds i{k esa djuk Fkk \ 6- D;k] oknHkwfe dk izfroknh Ø- 1 ds }kjk izfroknh Ø- 2 ds i{k esa nku i= fu"ikfnr fd;k x;k gS] ;fn gk¡ rks D;k mDr nku i= ls izfroknh Ø- 2 dks dksbZ vf/kdkj mRiUu gksrk gS \ 8- D;k] oknh ;g vuqrks"k izkIr djus dk vf/kdkj j[krk gS fd izfroknh Ø- 3 oknHkwfe dk iathd`r foØ; i= 'ks"k izfrQy jkf'k 15]62]500@& #i;s izkIr dj oknh ds i{k esa fu"ikfnr dj oknHkwfe dk dCtk oknh dks nsa \ 11- D;k] izfroknh Ø- 1 us izfroknh Ø- 2 ds i{k esa fn[kkoVh nku i= fnukad 11-08-2006 fu"ikfnr fd;k \ ;fn gk¡ rks izHkko \ 13. In the instant case, main objection of the appellant-plaintiff is that document of both the gift deeds are suspicious and defendant No.1-Nemi Chand Jain (through LRs) himself also wanted to cancel the same. 14. In this context, submission of learned counsel for the appellant-plaintiff is that gift deed was one sham transaction which is evident from para 6 of written statement of defendant No.1-Nemi Chand Jain (through LRs). Contents of para 6 of written statement of defendant No.1-Nemi Chand Jain (through LRs) are as follows:- ^^fnukad 11-08-2006 ds iwoZ o`"kHk tSu eFkqjk ls fcykliqj vk;k rFkk mlus bl izfroknh ls dgk fd mls viuk O;olk; Hkfo"; esa cढ+kuk gS bl gsrq /ku dh vko';drk gS ftls og vius ,dkmUV esa crk lds rFkk bude VSDl esa iznf'kZr dj lds bl lanHkZ esa o`"kHk tSu us bl izfroknh ds le{k ,d izLrko j[kk fd ;g izfroknh vius lkeus dh Hkwfe dk nku i= o`"kHk tSu ds i{k esa lEikfnr dj ns blds i'pkr og lEiw.kZ Hkwfe dks vPNs nkeksa ij foØ; dj nsxk rFkk bl izfroknh dks mldh Hkwfe dk foØ; ewY; ns nsxk rFkk ihNs dh Hkwfe dk o`"kHk dks Hkh vPNk ewY; fey ik;sxkA o`"kHk tSu us bl izfroknh ls dgk fd og ek= fn[kkoVh nku i= gksxk okn Hkwfe dk dCtk Hkh blh izfroknh vFkkZr usehpan tSu ds ikl jgsxkA vf/kdkjksa dk dksbZ gLrkarj.k ugha gksxkA o`"kHk tSu ds dFkuksa ij fo'okl djrs gq, bl izfroknh us fnukad 11-08-2006 dks nks fn[kkoVh nku i= mDr o`"kHk tSu ds i{k esa lEikfnr dj fn;s FksA** 15. Late defendant No.1-Nemi Chand Jain (through LRs) admitted and specifically pleaded that gift deeds executed by him in favour of Rishabh Jain-Defendant No.2 were sham gift deeds as is evident from the above quoted para. 16. So far as argument of learned Sr. counsel for the appellantplaintiff with regard to admission part of defendant No.1-Nemi Chand Jain (through LRs) is concerned, he placed reliance on the decision of Hon'ble Supreme Court in the matter of Nagindas (supra), wherein in para 27, it was held thus:- “27. 16. So far as argument of learned Sr. counsel for the appellantplaintiff with regard to admission part of defendant No.1-Nemi Chand Jain (through LRs) is concerned, he placed reliance on the decision of Hon'ble Supreme Court in the matter of Nagindas (supra), wherein in para 27, it was held thus:- “27. From a conspectus of the cases cited at the bar, the principle that emerges is, that if at the time of the passing of the decree, there was some material before the Court, on the basis of which, the Court could be prima facie satisfied, about the existence of a statutory ground for eviction, it will be presumed that the Court was so satisfied and the decree for eviction through apparently passed on the basis of a compromise, would be valid. Such material may take the shape either of evidence recorded or produced in the case, or, it may partly or wholly be in the shape of an express or implied admission made in the compromise agreement itself. Admission, if true and clear, are by far the best proof of the facts admitted. Admissions in pleadings or judicial admission, admissible under Section 58 of the Evidence Act, made by the parties or their agents at or before the hearing of the case, stand on a higher footing than evidentiary admissions. The former class of admissions are fully binding on the party that makes them and constitute a waiver of proof. They by themselves can be made the foundation of the rights of the parties. On the other hand, evidentiary admissions which are receivable at the trial as evidence, are by themselves, not conclusive. They can be shown to be wrong. 17. Further, Hon'ble Supreme Court in the matter of Ahmedsaheb (supra), has held in para 12 thus:- “12. It is needless to emphasise that admission of a party in the proceedings either in the pleadings or oral is the best evidence and the same does not need any further corroboration. In our considered opinion, that vital aspect in the case viz. The admission of the respondent in the written statement about the rate of rent and the further admission about its non-payment for the entire period for which the claim was made in the three suits was sufficient to support the suit claim. 18. In our considered opinion, that vital aspect in the case viz. The admission of the respondent in the written statement about the rate of rent and the further admission about its non-payment for the entire period for which the claim was made in the three suits was sufficient to support the suit claim. 18. In the present case, defendant No.1-Nemi Chand Jain (Deceased) filed written statement wherein in para 6 it has been pleaded that gift deeds were sham transaction but after some time he amended his written statement and pleaded in para 12 as under:- ^^fof'k"V dFku** & ;g fd oknh ds }kjk feF;k rFkk diViwoZd Ny djrs gq, fu"ikfnr dwVjfpr vuqca/k i= ds vk/kkj ij ;g nkok fd;k x;k gSA ;g izfroknh oknh ls dfFkr vuqca/k i= dk fu"iknu ugha fd;k gS] ;g izfroknh oknh ls dksbZ Hkh vfxze jk'kh izkIr ugha fd;k gS oknh ds }kjk feF;k dFku fd;k x;k gSA ;g izfroknh oknHkwfe dks iw.kZ Lokeh jgk gS rFkk ;g izfroknh oknHkwfe dks vius iq= izfroknh Øekad&2 o`"kHk tSu dks vius LoLFk ekufld n'kk esa nkui= iath;u dk;kZy; esa mifLFkr gksdj fu"ikfnr djrs gq, oknHkqfe dks LoRo izfroknh o`"kHk tSu dks iznku dj fn;k FkkA bl izfroknh ds }kjk vius iq= izfroknh Øa 2 o`"kHk tSu ls gq, vkilh ikfjokfjd fookn ds dkj.k mijksDr nkui=ksa ds laca/k esa ftyk U;k;ky; esa okn la[;k 57,&2010 rFkk 87v&2010 okn izLrqr fd;k Fkk tks fd dqN le; i'pkr bl izfroknh rFkk izfroknh Øekad&2 o`"kHk tSu dk laca/k lkekU; gks tkus ds dkj.k bl izfroknh ds }kjk vius mijksDr nkui=ksa ds laca/k esa izLrqr okn dks vius LosPNkiwoZd okil ys fy;k x;k FkkA** 19. Thus, from above pleading it is manifestly clear that defendant No.1-Nemi Chand Jain denied execution of agreement in favour appellant-plaintiff and previously he denied the gift deeds but later he ratified the gift deeds and stated that he withdrew his suits filed against defendant No.2-Rishabh Jain and settled the dispute with his son. 20. Objection of the learned counsel for the appellant-plaintiff is that the admission is best piece of evidence and defendant No.1-Nemi Chand Jain (through LRs) has admitted in his written statement about agreement and sham gift deeds. But, in this case, during the pendency of suit, defendant No.1-Nemi Chand Jain left for heavenly abode and could not appear in witness box. 21. But, in this case, during the pendency of suit, defendant No.1-Nemi Chand Jain left for heavenly abode and could not appear in witness box. 21. Hon'ble Supreme Court in the matter of Bhagwat (supra) held in para 20, which reads thus :- “20. In Nagubai Ammal and Ors. Vs. B. Shama Rao and Ors., (1956) 1 SCR 451 which is the locus classicus on the subject it was held as follows:- “An admission is not conclusive as to the truth of the matters stated therein. It is only a piece of evidence, the weight to be attached to which must depend on the circumstances under which it is made. It can be shown to be erroneous or untrue, so long as the person to whom it was made has not acted upon it to his detriment, when it might become conclusive by way of estoppel. It would be pertinent to mention that in Himani Alloys Ltd. Vs. Tata Steel Ltd., it was also held that the admission should be categorical, should be conscious and deliberate act of the party making it. As far as the present case is concerned we do not find any clear-cut admission with regard to the existence of an HUF. At best, from the recitals in the mortgage deed and averments in the written statement, all that can be said is that at the relevant period of time the property was treated to be a joint property.” 22. Further, Hon'ble Supreme Court in the matter of Ayaaubkhan (supra), held in para 31 and 34, which reads thus:- “31. Affidavit – whether evidence within the meaning of Section 3 of the Evidence Act, 1872 : It is a settled legal proposition that an affidavit is not evidence within the meaning of Section 3 of the Indian Evidence Act, 1872 (hereinafter referred to as the 'Evidence Act'). Affidavits are therefore, not included within the purview of the definition of “evidence” as has been given in Section 3 of the Evidence Act, and the same can be used as “evidence” only if, for sufficient reasons, the Court passes an order under Order XIX of the Code of Civil Procedure, 1908 (hereinafter referred to as the 'CPC'). Affidavits are therefore, not included within the purview of the definition of “evidence” as has been given in Section 3 of the Evidence Act, and the same can be used as “evidence” only if, for sufficient reasons, the Court passes an order under Order XIX of the Code of Civil Procedure, 1908 (hereinafter referred to as the 'CPC'). Thus, the filing of an affidavit of one's own statement, in one's own favour, cannot be regarded as sufficient evidence for any Court or Tribunal, on the basis of which it can come to a conclusion as regards a particular fact-situation. (Vide : Sudha Devi V. M.P. Narayanan and Ors., AIR 1988 SC 1381 ; and Range Forest Officer v. S.T. Hadimani, AIR 2002 SC 1147 : (2002 AIR SCW 909), “34. In Ramesh Kumar V. Kesho Ram, AIR 1992 SC 700 : (1992 AIR SCW 336), this Court considered the scope of application of the provisions of O. XIX Rr. 1 and 2 CPC in a Rent Control matter, observing as under:- “The Court may also treat any affidavit filed in support of the pleadings itself as one under the said provisions and call upon the opposite side to traverse it. The Court, if it finds that having regard to the nature of the allegations, it is necessary to record oral evidence tested by oral cross-examination, may have recourse to that procedure.” 23. In view of above settled legal position, we do not find much force in the argument of learned Sr. counsel for the appellant-plaintiff regarding admission part for the reason that in this case, as it has come that defendant No.1-Nemi Chand Jain left for heavenly abode and could not appear before the learned trial Court for cross-examination, therefore, the pleadings of defendant No.1-Nemi Chand Jain (through LRs) cannot be kept in the category of admission. 24. The appellant-plaintiff had filed the suits for specific performance of agreement and in such a suit plaintiff has to prove his readiness and willingness to perform his part of contractual obligation but appellant-plaintiff Amit Jain stated in paras 97, 101, 107 and 108 of his cross-examination as under:- “97. 24. The appellant-plaintiff had filed the suits for specific performance of agreement and in such a suit plaintiff has to prove his readiness and willingness to perform his part of contractual obligation but appellant-plaintiff Amit Jain stated in paras 97, 101, 107 and 108 of his cross-examination as under:- “97. It is true that it has been written in the agreement (Ex.P.1) that sale deed would be executed within four years from the date of agreement after paying balance amount and after 18.11.2005 when on 15.11.2009 he asked Nemi Chand Jain (Defendant No.1 through LRs) to execute sale deed, four days were left. It is true that from the date of alleged agreement dated 18.11.2005 to 15.11.2009 he might have told Nemi Chand Jain to execute the agreement, no documents whatsoever or notice has been produced by him in the case.” “101. He had signed the agreement before Notary at Takhatpur. It is true that two suits against Rishabh Jain with regard to gift deeds were filed by Nemi Chand Jain, which were withdrawn by Nemi Chand Jain without any conclusion or order of the Court. It is true to say that he had moved an application under Order 1 Rule 10 of C.P.C. for impleading him as party in the two suits filed by Nemi Chand Jain against Rishabh Jain and he had also appeared in the said suits.” “107. It is true to say that he has written at Sl. No.13 of his affidavit under Order 18 Rule 4 CPC that he came to know about the gift deeds dated 11.08.2006 in the month of November, 2010. It is true to say that he had first filed the suit on 04.01.2011 only against Nemi Chand Jain for the specific performance of the contract. The witness himself states that he had moved an application under order 1 Rule 10 of CPC in the Civil Suits No.57A/2010 and 87A/2010 which were filed against Rishabh Jain by late Nemichand Jain with regard to gift deeds.” “108. It is true to say that in the present suit, on 08.04.2016, amendment was added in the suit seeking relief to first declare null and void the gift deed dated 11.08.2006 and three sale deeds dated 19.01.2011.” 25. It is crystal clear from the aforesaid statement of the appellant-plaintiff that first defendant No.1-Nemi Chand Jain filed two suits against his son defendant No.2-Rishabh Jain. It is crystal clear from the aforesaid statement of the appellant-plaintiff that first defendant No.1-Nemi Chand Jain filed two suits against his son defendant No.2-Rishabh Jain. Thereafter, appellant-plaintiff had filed an application for impleading him as necessary party in the suit and after that he filed the suit in question on 04.01.2011. He has admitted that he has not filed any document in support of his case showing that he is ready and willing to perform his part of contract or to execute the sale deed of disputed property. It is also clear that he never asked defendant No.1-Nemi Chand Jain to execute the sale deed in his favour. 26. The appellant-plaintiff and defendant No.2-Rishabh Jain both are close relatives of defendant No.1-Nemi Chand Jain being grandson and son respectively. The appellant-plaintiff filed the suit on the basis of agreement to sell and defendant No.1-Nemi Chand Jain (Deceased) in his amended pleading stated that he had withdrawn his suits against defendant No.2-Rishabh Jain and settled all the disputes. 27. Order XXIII Rule 1 of the Code of civil Procedure, 1908 prescribes as under :- “1. Withdrawal of suit or abandonment of part of claim – (1) At any time after the institution of a suit, the plaintiff may as against all or any of the defendants abandon his suit or abandon a part of his claim: Provided that where the plaintiff is a minor or other person to whom the provisions contained in Rules 1 to 14 of Order XXXII extend, neither the suit nor any part of the claim shall be abandoned without the leave of the Court. 28. Thus, it is clear from the conduct of defendant No.1-Nemi Chand Jain (Deceased) that first he challenged the gift deeds by filing two civil suits but subsequently, these suits were withdrawn by him without seeking any liberty to file afresh, therefore, validity of his gift deeds, directly or indirectly, cannot be challenged by defendant No.1-Nemi Chand Jain (through LRs) or his successors. It is also not in dispute in this case that defendant No.1-Nemi Chand Jain (Deceased) was exclusive owner of the Suit Property and this property was not an ancestral one but self acquired. It is also not in dispute in this case that defendant No.1-Nemi Chand Jain (Deceased) was exclusive owner of the Suit Property and this property was not an ancestral one but self acquired. Defendant No.1-Nemi Chand Jain (Deceased) executed registered gift deeds in favour of defendant No.2-Rishabh Jain, son, on 11.08.2006 and after five years defendant No.2-Rishabh Jain sold the property to defendant No.3-Sardar Manjeet Singh by executing sale deeds dated 20.01.2011 and 22.01.2011 in his favour and at the relevant point of time defendant No.1-Nemi Chand Jain was alive. He had filed his written statement in this civil suit. 29. The learned trial Court also recorded its finding that the plaintiff has failed to prove issue Nos. 1, 2 and 3 in his favour. This suit was filed by the appellant, therefore, burden to prove the suit is on the plaintiff and the learned trial Court has rightly recorded in paras 13 to 34 that the plaintiff has failed to prove these issues in his favour on the ground of preponderance of probabilities. The findings so recorded by the learned trial Court in paras 13 to 34 are based on proper appreciation of oral and documentary evidence. The learned trial Court framed issue Nos.6 and 11, which were related to gift deeds, as discussed above. Defendant No.1-Nemi Chand Jain himself had withdrawn his suits and settled the disputes with his son defendant No.2. The learned trial Court also recorded its finding in para 44 of judgment that the defendant No.1-Nemi Chand Jain executed the gift deeds in favour of his son defendant No.2-Rishabh. This finding is also based on proper appreciation of oral and documentary evidence. 30. The assessment made by the learned trial Court is based on proper appreciation of evidence and facts situation of the case and by applying correct legal principles, therefore, it does not call for any interference by this Court. 31. In view of the aforesaid discussions, we find no merit in the appeal filed by the appellant-plaintiff and the same is dismissed with no order as to cost(s). 32. A decree be drawn accordingly.