(Prayer: This Regular Second Appeal is filed under Section 100 of the Code of Civil Procedure against the Judgement and Decree dtd 09.11.2004 passed in R.A.No.16 of 2001 on the file of the Civil Judge (Sr. Dn), Gangavathi, dismissing the appeal and modifying the Judgment and Decree dtd 19.01.2000 passed in OS No.188 of 92 on the file of the Addl. Civil Judge (Jr. Dn) Gangavathi.)
1. The case of the plaintiffs is that they are brothers and defendants 1 and 2 are the husband and wife. Defendant No.1 was the owner in possession of the suit land measuring 26 acres 22 guntas more fully described in the schedule to the plaint. Out of this extent, defendant No.1 has executed an agreement of sale to an extent of 13 acres 11 guntas in favour of the plaintiffs with the consent of her husband defendant No.2. On 20.05.1985 a sum of Rs.15,000/-, out of Rs.28,600/-, was received as earnest money deposit. Possession was handed over. From that day onwards, the plaintiffs were in actual possession of the suit land. In spite of making repeated request, sale deed was not executed. Hence, the instant suit was filed seeking for specific performance of the agreement of sale dated 20.05.1985. That defendants have entered into an agreement of sale of the suit land in favour of defendants 3, 4 and 5 on 10.07.1989 to an extent of 6 acres 20 guntas each. Defendants 3 to 5 have purchased the suit land having full knowledge about the said agreement between the plaintiffs and defendants 1 and 2 and therefore, the same is opposed to law. On 06.04.1990, defendant No.1 executed the registered sale deed in favour of defendants 3 to 5 to defeat the rights of the plaintiffs with full knowledge that there is an agreement of sale with the plaintiffs. Therefore, the registered sale deeds are not lawful and not binding on the plaintiffs. It is the case of the plaintiffs that defendant Nos.1 and 2 in order to defeat the rights of the plaintiffs over the suit lands, the defendants tried to alienate the suit schedule property in favour of the defendants. OS No.197 of 1989 was filed by them seeking for an injunction against the defendants restraining alienation. The defendants therein denied the execution of any agreement of sale. The suit was withdrawn. That the defendant Nos.3 to 6 were made parties to the suit as they are bound to execute the appropriate sale deed. Therefore, the instant suit was filed seeking for specific performance.
2. On service of suit summons, the defendants entered appearance and denied suit claim. The defendant Nos.1 and 2 denied that they have received any amount from the plaintiffs. The plea of the defendants in OS No.197 of 1989 is that the defendant No.1 has not at all executed any agreement of sale in favour of the plaintiffs. Therefore, the suit was withdrawn.
3. Based on the pleadings, the trial court framed the following issues:
(1) Whether the plaintiffs prove that the defendants No.1 and 2 have executed Agreement of Sale on 20.05.1985 towards the suit property?
(2) Whether the plaintiffs further prove that on the alleged date of Agreement for sale defendants No.1 and 2 received Rs.15,000/- towards the sale consideration amount as earnest money?
(3) Whether the plaintiffs further prove that in pursuance of the said agreement of sale, on the same day defendants 1 and 2 have delivered the actual possession of the suit property? (4) Whether the plaintiffs further prove that the registered sale deeds executed by defendant No.1 in favour of defendant No.3 to 6 are illegal and not binding on them?
(5) Whether the plaintiffs further prove that they were and are always ready and willing to carry out their part of the contract?
(6) Whether this court has no pecuniary jurisdiction to try this suit in view of valuation as alleged in para no.12 of WS of D-3 to 6?
(7) Whether the suit of the plaintiffs barred by limitation?
(8) To what relief the plaintiffs are entitled?
(9) What order or decree?
4. Issue Nos.1 to 5 were held in the affirmative and issue Nos.6 and 7 were held in the negative. The suit was decreed against the defendants 1 to 6 to the effect that the sale deed executed by defendant No.1 in favour of defendant Nos.3 to 6 was held as null and void and not binding on the plaintiff Nos.1 and 2 after receiving the balance sale consideration of Rs.13,600/-. The defendants 3 to 6 were directed to join defendant No.1 to execute the sale deed and on failure, the sale deed to be executed through the Court Commissioner. Aggrieved by the same, the defendants preferred an appeal, which was dismissed. The judgment and decree declaring the sale deeds in favour of the defendant Nos.3 to 6 as null and void was set aside. Aggrieved by the same, defendant Nos.3 to 6 have filed this second appeal.
5. Appellant No.1 filed a memo before this Court seeking to withdraw the appeal. The appeal was dismissed as withdrawn against appellant No.1, namely defendant No.3. The appeal continued in the name of defendant Nos.4 to 6.
6. By the order dated 12th January 2006, the appeal was admitted to consider the following substantial question of law:
Whether the findings of the Courts below decreeing the suit of the plaintiff for specific performance by holding that the purchaser cannot question the readiness and willingness on the part of the plaintiff in performing his part of the contract is contrary to the decision of the Hon ble Supreme Court in Ram Awadh (dead) by L.Rs. and others v. Achhaibar Dubey and another, reported in AIR 2000 SC 860, is perverse and arbitrary?
7. The learned counsel for the appellants contends that the judgment and decree of the both the courts below are perverse and liable to be interfered with. That both the Courts below committed serious error in misreading the evidence on record.
8. On the other hand, the learned counsel for the respondents defends the same.
9. The substantial question of law that has been framed is as to whether in a suit for specific performance, the purchaser is entitled to question the readiness and willingness on the part of the plaintiff in performing his part of the contract or not.
10. The said question of law that has been framed is no more res integra. It has been answered by the judgment of the Hon ble Supreme Court in the case of Ram Awadh (dead) by L.Rs. and others v. Achhaibar Dubey and another reported in AIR 2000 SC 860, wherein the Hon ble Supreme Court held in paragraphs 6 and 7 as follows:
6. The obligation imposed by Section 16 is upon the Court not to grant specific performance to a plaintiff who has not met the requirements of Clauses (a), (b) and (c) thereof. A Court may not, therefore, grant to a plaintiff who has failed to aver and to prove that he has performed or has always been ready and willing to perform his part of the agreement the specific performance whereof he seeks. There is, therefore, no question of the plea being available to one defendant and not to another. It is open to any defendant to contend and establish that the mandatory requirement of Section 16(c) has not been complied with and it is for the Court to determine whether it has or has not been complied with and, depending upon its conclusion, decree or decline to decree the suit. We are of the view that the decision in Jugraj Singh s case (1995 AIR SCW 901 : AIR 1995 SC 945) is erroneous.
7. In the circumstances, it becomes necessary to remand the suit to the trial court, namely, the Court of the Munsif, Gyanpur, Varanasi, to consider whether or not it has been established that the original plaintiff Bachna and her legal representatives had proved that they had performed or were always ready and willing to perform the terms of the agreement for sale in Bachna s favour.
11. Therefore, the substantial question of law is accordingly answered by holding that the subsequent purchasers are entitled to question the readiness and willingness on the part of the plaintiff in performing his part of the contract. However, the Hon ble Supreme Court therein remanded the matter to the trial court to determine the question of readiness and willingness. However, in the instant case, the question of readiness and willingness was framed by the trial court as issue No.5 as to whether the plaintiffs further prove that they were and are always ready and willing to carry out their part of the contract. Therefore, the question of remanding the matter in order to establish that the plaintiffs have proved their readiness and willingness would not arise for consideration, since the said issue has been concurrently held in favour of the plaintiffs.
12. Under these circumstances, having answered the substantial question of law, the appeal being devoid of merit is dismissed. The judgment and decree of both the Courts below are affirmed. No costs.