K. Sreedhar Rao, J.
1. This appeal along with the cross-objections are filed against the judgment and decree dated 9-7-1997 in R.A. No. 48 of 1989 on the file of the District Judge, Gulbarga arising out of the judgment and decree dated 8-10-1982 in O.S. No. 49 of 1978 on the file of the Civil Judge, Gulbarga.
2. The appellant is the plaintiff in the suit. The respondents filed a suit for specific performance of the contract to execute a registered sale deed in respect of the suit schedule land, in respect of which a written agreement for sale was executed on 31-8-1975. Under the terms of agreement, the plaintiff had paid the full consideration amount of Rs. 31,001/- towards the sale value, the plaintiff was put in possession. The defendants undertook to execute the sale deed as and when called upon. Based on the agreement of sale, Ex. P. 14, the plaintiff made an application for mutation in his name in the revenue records. The Tahsildar by his order dated 22-12-1977 directed mutation in the name of the plaintiff. During the said proceedings the defendants contended that the agreement of sale is concocted and denied his liability to execute the sale deed. The defendants also filed a suit in O.S. No. 408 of 1977 seeking permanent injunction against the plaintiff herein not to interfere with the possession. The said suit came to be dismissed. During the pendency of O.S. No. 408 of 1977, the present suit came to be filed by the plaintiff. The Trial Court decreed the suit of the plaintiff. The Appellate Court reversed the judgment and decree of the Appellate Court and dismissed the suit on the ground that the plaintiff had failed to aver and prove his readiness and willingness throughout in order to get the relief of specific performance. Aggrieved by the said judgment and decree, the present appeal is filed.
3. The following points of law are reformulated for consideration.-
'1. Whether the First Appellate Court was justified in dismissing the suit on the ground that there is no pleading on the part of the plaintiff that he is ready and willing to perform his part of the contract i.e., to say that the plaintiff was financially capable to obtain the registered sale deed?
2. Whether the Appellate Court was wrong in holding that the agreement of sale is executed by the respondents ignoring the oral evidence adduced by the defendants in that behalf that he was taking treatment at Hubli and not present at the village?'
4. Sri Appa Rao, learned Counsel for the respondents relied on the ruling of the Supreme Court in the case of Manjunath Anandappa Urf. Shivappa Hanasi v. Tammanasa and Ors., to bring home the point that a plaintiff in a suit for specific performance of contract not only must raise a plea that he is all along been and even on the date of filing of suit was ready and willing to perform his part of contract, but also prove the same. It is further observed that only in certain exceptional situation where although in letter and spirit, the exact words had not been used but readiness and willingness can be culled out from reading of the averments made in the plaint as a whole coupled with the material brought on record at the trial of the suit, to the said effect.
5. In view of the ratio, the learned Counsel argued that the plaint does not contain any necessary averment about the readiness and willingness on the part of the plaintiff throughout. Therefore, argued that the judgment of the First Appellate Court is based on sound and proper reasons.
6. After careful perusal of the judgments of the Courts below and the ratio cited at the Bar, I find, the ratio has no application to the facts of the case. In the present case, the plaintiff had paid the full consideration amount and was put in possession of the property. The only legal formality to obtain the registered sale deed was left to be done at a future date and at the choice of the plaintiff. The defendants had agreed to execute the sale deed as and when called upon. The contention of the respondents that the readiness and willingness would include the necessary financial capacity of the plaintiff to obtain a registered sale deed and absence of pleading of proof in that regard is fatal to the case of the plaintiff is an untenable contention. The plaintiff has discharged all his obligations under the agreement to be performed in favour of the defendants. The only formality of obtaining sale deed was to be done. The argument of the respondents that the plaintiff had no necessary financial capacity to obtain registered sale deed is based more on a surmise than by a concrete evidence in that behalf. The very fact that the plaintiff is in possession and cultivation of a land, which is a productive capital asset can give no room for doubt that he had no capacity to bear registration expenses. The plaintiff has filed the suit within the period of three years from the date of knowledge of refusal. In the mutation proceedings before the Tahsildar some time after the execution of the agreement, the defendants denied the execution of agreement from the said period within three years, the suit is filed. The necessary averments about readiness and willingness would arise when there are unfulfilled obligations on the part of the party seeking specific performance. When there are no such existing liabilities or obligations, the need to aver and prove the readiness and willingness does not arise.
7. The learned Counsel for the respondents argued that the sale agreement is concocted and oral evidence let in by the doctor to show that the defendants were not present at the village and he was at Hubli for taking treatment is disbelieved by the Courts below and there is concurrent finding. I do not see good reasons to interfere with the concurrent finding.
8. In that view of the matter, the finding of the Appellate Court that the plaintiff has failed to plead and prove his readiness and willingness is untenable. Accordingly, Issue Nos. 1 to 4 are answered in negative. I do not find any error in the views taken by the Courts below in that regard. Accordingly, the judgment and decree of the Appellate Court is set aside. The judgment and decree of the Trial Court is confirmed and this appeal is allowed with costs. The cross-objections are dismissed.