S. Acharya, J.
1. The plaintiffs instituted the suit under Order 1, Rule 8, C. P. C. representing the villagers of Gunadia and Natara for a declaration that the suit lands are all communal lands. In respect of plot No. 351 in khata No. 106 of village Gunadia, the plaintiffs' alternative case is that defendant No. 1, the owner of that suit plot of land had entered into an agreement to execute a registered sale-deed in favour of the villagers of Gunadia and Natara in respect of the said plot of land and that in spite of notice he has so far not executed the said sale-deed, and so a decree for the said contract be passed in favour of the plaintiffs.
2. As this appeal is confined only to the plaintiffs' case in respect of the said plot No. 351, it is not necessary for me to state here the respective cases pleaded by both the parties in respect of the other suit plots.
3. The defendant No. 1's case in his written statement in respect of plot No. 351 is that the said plot is not a communal land and the villagers of Gunadia and Natara have no right over the said plot of land and they had never exercised any customary or easementary right over the same. He also denies to have ever entered into any contract or agreement with the plaintiffs to sell the said plot of land in favour of the plaintiffs.
Defendants 4 to 8 in effect, support the case of defendant No. 1 in respect of the said plot No. 351.
Defendants 2 and 3 in their separate written statement support the case of the plaintiffs.
4. Both the courts have held that the villagers of the above named two villages had customary right only over 8 decimals of land out of A. 1-55 decimals in the above mentioned plot No. 351 and that they have no customary nor communal right over the rest portion of that plot of land. The trial Court held that the defendant No. 1 had entered into a valid agreement to sell the said plot No. 351 in favour of the plaintiffs as embodied in the agreement Ext. 7 dated 25-12-57. The appellate court on a fresh re-appraisal of the evidence on record has arrived at the finding that the plaintiffs did not show any interest, readiness or willingness to perform their part of the contract for a very long time till the institution of the suit, and so they are not entitled to a decree for specific performance of contract. On the finding that the villagers have no customary or communal right over the said plot minus 8 decimals of land, and that the plaintiffs' prayer for specific performance of contract to purchase the said plot cannot be granted for reasons stated above, the appellate court dismissed the plaintiffs' suit in respect of that plot except the 8 decimals of land on which the plaintiffs' customary rights were found by both the courts below.
5. Mr. Patnaik, the learned counsel for the appellants at first made an attempt to assail the concurrent finding of both courts below that the villagers of the above-mentioned two villages had no customary, easementary or communal rights over plot No. 351 except over 8 cents of land numbered as plot No. 548 in the running settlement, merely on the ground of incorrect or improper appreciation of the relevant evidence on record. The finding to the above effect being a concurrent finding of fact, it cannot be interfered with merely on the above ground. Mr. Patnaik states that in Ext. 7. which is the alleged agreement to sell that plot of land in favour of the plaintiffs, it had been expressly agreed that the said plot of land would be kept vacant for all terms in the interest of the villagers. The said statement was made in the context of the averment therein that the said plot of land would be sold in favour of the villagers for their use as a communal land, but that agreement never materialised. Moreover, the said averment does not show that the villagers of the above mentioned village had any customary or ease-mentary right over the said plot of land, or that the said plot of land was from before being utilised as a communal land. Both the courts below have taken into consideration the above and other facts and materials on record in arriving at the aforesaid finding, and I do not see any convincing reason to interfere with the said finding. On a perusal of the impugned judgment and the finding to that effect of the trial Court, I am convinced that the said finding has been arrived at on a proper discussion and consideration of the relevant evidence on record. Accordingly the said finding is confirmed.
6. With regard to the finding of the court below relating to the plaintiffs' prayer for specific performance of the contract, to execute the sale deed in respect of said portion of plot No. 351, it was for the plaintiffs to establish that since the date of the contract they were continuously ready and willing to perform their part of the contract. Section 16 of the Specific Relief Act, 1963, so far as is relevant is as follows:
'Section 16. Specific performance of a contract cannot be enforced in favour of a person--
(a) xx xx(b) xx xx(c) who fails to aver and prove that he has performed or has always been ready and willing to perform the essential terms of the contract which are to be performed by him, other than terms the performance of which has been prevented or waived by the defendant.'
The above provision makes it obligatory on the part of a plaintiff, who asks for specific performance of a contract, to establish the above facts in Clause (c) and if he fails to do so his claim for specific performance must fail.
In the case of (Ardeshir H. Mama v. Flora Sassoon, 55 Ind App 360 at p. 372 : (AIR 1928 PC 208 at p. 216), their Lordships of the Privy Council observed:--
'In a suit for specific performance, on the other hand, he treated, and was required by the Court to treat the contract as still subsisting. He had in that suit to allege, and if the fact was traversed, he was required to prove a continuous readiness and willingness, from the date of the contract to the time of the hearing to perform the contract on his part. Failure to make good that averment brought with it the inevitable dismissal of his suit.'
In the decision of (Gomathinayagam Pillai v. Palaniswami Nadar) AIR 1967 SC 868, it has been held that the respondent who claimed a decree for specific performance must plead and prove that he was ready and willing to perform his part of the contract continuously between the date of the contract and the date of hearing of the suit. In the present case before me the only averment regarding specific performance of contract is in para 15 of the plaint. The relevant averment to that effect is quoted below:--
' xx xx xx in view of the agreement dated 25-12-57 the plaintiffs Nos. 1 to 6 on behalf of the said two villages are entitled to a decree for specific performance of contract of sale on a consideration of Rs. 450/-which the plaintiffs are ready and willing to pay and so in that case defendant should be directed to execute and register necessary sale deed on receipt of the aforesaid amount.......'
There is nothing in the plaint to show that the plaintiffs since the date of the contract were continuously ready and willing to perform their part of the contract. The court below has noted that fact and on a lengthy consideration of the oral and documentary evidence on record gives a convincing finding that the plaintiffs have not been able to establish at the hearing of the suit that they were continuously ready and willing to perform their part of the contract after the date of the alleged agreement till the date of the hearing of the suit.
7. Mr. Patnaik, the learned counsel for the appellants, submitted that as the contesting defendants, did not state in their written statement that the plaintiffs were not ready and willing to perform their part of the contract at the relevant time, it was not necessary for the plaintiffs to prove the facts as per Clause (c) of Section 16 of the Specific Relief Act in this case. As stated above, the plaintiffs in their pleadings nowhere asserted that they were ready and willing to perform their part of the contract continuously between the date of the contract and date of the hearing of the suit. Their averment in this aspect is that they after the filing of the suit 'are' ready and willing to pay the consideration money. As the plaintiffs did not assert the relevant facts it was not necessary for the contesting defendant to make any assertion to traverse such facts in their written statement. As under law, it was mandatory on the part of the plaintiffs to assert the above fact in their pleading and also to establish the same in the suit, and they have utterly failed in that direction, absence of any averment to that effect in the written statement is of no consequence in this case. Apart from the oral evidence on this aspect of the matter, which has been considered by the court below, it is worthwhile mentioning that the aforesaid agreement Ext. 7 is of Dec. 1957. For the first time after two years and 4 months, the plaintiffs sent a notice in April, I960 to the defendant No. 1 asking him to execute the sale deed. The plaintiffs have not been able to show anything regarding their readiness and willingness to execute their part of the contract at any time between Dec. 1957 and April, 1960. As the plaintiffs utterly failed to establish the above mandatory fact, their suit for specific performance of contract must fail and has been rightly dismissed by the court below.
8. Towards the end of the hearing of this appeal, Mr. Patnaik has filed a petition in this Court to amend para 15 of the plaint by adding therein before the words 'are ready and willing to pay', the words 'have always been and still'.
After the decision of the case in the trial and appellate court on the [first occasion, it came up before this Court in S. A. No. 176/67. This Court detected certain defects in the trial of the suit under Order 1, Rule 8, C. P. C. and remanded the case to the trial Court for fresh disposal after complying with the provisions of Order 1 Rule 8. The suit was thus tried for the second time, and after the decisions of the trial Court and the appellate Court this suit of 1960 is again before this Court in Second Appeal. If the plaintiffs were actually ready and willing to perform their part of the contract after the alleged agreement in 1957, and if absence of averment in the plaint to that effect was due to inadvertent mistake in drafting of the plaint, the plaintiffs could easily have detected the same in course of the last 17 years during which this matter remained pending in the different courts. Apart from that consideration, the lower appellate court dealt with the said matter in its judgment delivered in 1974. Since 1974 till now, no efforts were made by the plaintiffs for amending the plaint as desired at present. The court has held that there is no convincing evidence on record to show that the plaintiffs continuously were ready and willing to perform their part of the contract from the date of the agreement till the date of the institution of the suit, I am satisfied that the Court's finding to that effect is perfectly correct and justified. If the amendment praved for is allowed at this stage, no finding other than the aforesaid finding already given by the court below can be arrived at on the evidence on record. Moreover, if the said amendment is allowed the defendant No. 1 must be given an opportunity to traverse that fact in his pleading and also by adducing evidence in the case. The suit that way has to be tried afresh for the third time with the above new averment. In my opinion, affording further opportunity to the plaintiffs to adduce evidence on the new facts now alleged by them on the above aspect will enable the plaintiffs to plug in the aforesaid important defect in the plaintiffs' case causing great prejudice to the defendant. Moreover as the plaintiffs could not adduce any evidence to that effect in the trial of the suit for two times, they in their efforts and attempt to support the above fact may take recourse to adduce false evidence on this matter, for genuine evidence on this aspect after such a long lapse of time will be a difficult proposition.
9. On the above considerations, I reject the above-mentioned petitionfor amendment filed now on behalfof the plaintiffs.
10. For reasons stated above the decision of the court below dismissing the plaintiffs' prayers in respect of No. 351 minus the 8 decimals of land are perfectly correct and justified and this appeal has no merit. It is accordingly dismissed with costs.