IN THE HIGH COURT OF JUDICATURE AT PATNA SA No.268 of 2000 1.Smt. Rajeshwari Devi, w/o of Lal Bachan Bhagat 2.Mundrika Singh 3.Chandrika Singh 4.Ram Nand Singh alias Rama Nand Singh 5.Rama Kant Singh All sons of late Ramlal Singh 6.Mostt. Dulari Kuer, wife of late Ram Lal Singh alias Devi. 7.Lal Bahadur Bhagat @ Lal Bahadur, son of Singashan Bhagat 8.Domani Devi, daughter of Singashan Bhagat 9.Ram Bali Bhagat @ Ram Bali Singh, son of Indrashan Bhagat. 10.Ramayan Bhagat @ Ramayan Singh, son of Indrashan Bhagat. All residents of village-Siswa Khurd, P.S. Nairwa,P.O.Levari Pargana-Chaubar,Distt.Siwan. ……(Plaintiffs-Respondents Ist Set)..Appellants versus 1.Most. Dularo Kuer wife of Satya Narain Singh 2.Sheo Shanker Singh, son of Staya Narain Singh 3.Devanti Devi 4.Manti Devi Both daughters of Satya Narain Singh 5.Ram Sakho Devi, daughter of Basdeo Singh, … Defendants Ist set-Appellants)-Respondents 1st set 6.Gagan Deo Singh, son of Jagdish Singh. 7.Sheo Prasad Singh, son of Mahendra Singh. 8.Bali Ram Singh, son of Jamuna Singh. 9.Sheo Shankar Singh, son of Jamuna Singh 10.Sudama Singh, son of Jag Singh 11.Chandrika Singh, son of Rajaram Singh. 12.Moti Chand Prasad, son of Chatur Prasad 13.Angad Prasad, son of Raja Ram Singh 14.Banke Bihari Prasad, son of Baleshwar Prasad 15.Suganti Kuwari, wife of Tej Bahadur 16.Amit Kumar Singh, son of Tej Bahadur 17.Kusum Kumari, daughter of Tej Bahadur Singh. 18.Sheo Pratap Singh 19.Jai Narain Singh Both sons of Rajendra Singh @ Bachcha Singh 20.Rambani Devi 21.Phul Pati Devi 22.Sundari Kumari All daughters of Rajendra Singh@ Bachcha Singh 23.Radha Kishun Singh, son of Ram Kripal Singh 24.Sakhichand Sah, son of Chatar Sah. 25.Balkesia @ Ramsakhiya, daughter of Basdeo 2 Singh. All residents of village Siswa Khurd, P.S. Mairwa,P.O. Lavari, District Siwan. ..(Defendants 2nd set-Appellants)-Respondents 2nd set. ------ For the Appellants: Mr. Rajendra Narayan, Advocate For the Respondents:Mr. Ravi Shankakr Dwivedi, Advocate. ----- 09/ 10.12.2008 Heard learned counsel for the appellants and learned counsel for the respondents. 2. This second appeal has been filed by the plaintiffs- respondents-appellants challenging the judgment and decree of the learned court of appeal below. 3, The matter arises out of Title Suit No.139 of 1975, which was filed for a decree of specific performance of contract in favour of the plaintiffs and for directing defendant no.1 to accept the registration of the sale deed dated 20.09.1974(Ext. 1) said to have been executed by Dawlato Devi and for other ancillary reliefs. 4. The said suit was decreed on contest with cost by the learned Subordinate Judge-V, Siwan, vide judgment and decree dated 20.12.1988. Against the aforesaid judgment and decree of the trial court, the defendants-appellants-respondents filed Title Appeal No. 07/1989(06/1997), which was allowed on contest without cost by the learned Additional District Judge-V, Siwan, setting aside the judgment and decree of the trial court and rejecting the claim and suit filed by the plaintiffs. Against the aforesaid judgment and decree of reversal, the instant second appeal has been filed on behalf of the plaintiffs. 5. The crux of the matter is the sale deed dated 3 20.09.2004 (Ext. 1) said to have been executed by Dawlato Devi in favour of the plaintiffs, but it was not produced before the registering authorities by the said Dawlato Devi. 6. From the averments of the parties and the materials on record including the judgments and decree of the learned courts below, it is quite apparent that the learned court of appeal below has considered the said sale-deed in detail and has found that interpolations in the said deed are apparent from the naked eyes and the contents have been recited in different manner, which has been accepted by the scribe of the document himself deposing as P.W.14 on behalf of the plaintiffs. The said scribe was also found to have stated that he did not take thumb impression of Mostt. Dawlato Devi over Ext.1 and hence the learned court of appeal below rightly came to the conclusion that the evidence of the parties supported the case of the defendants that the thumb impression of Mostt. Dawlato Devi was fraudulently taken on the blank paper when she had been in the family of plaintiff no.1 to attend the marriage ceremony. The learned court of appeal below further found that in paragraph no.9 of his statement as P.W.18, plaintiff no.1 himself specifically stated that the stamps for the sale-deed executed on 20.09.1974 were purchased on 23.05.1975, which clearly goes to show that the said sale-deed (Ext.1) was an ante-dated document. The learned court of appeal below also found that the same was intentionally done in order to cover the sale deed of subsequent purchaser. 7. It has been further found that the learned trial court declared the title of the plaintiffs 1st set also on the basis of adverse 4 possession, which was absolutely illegal as it had itself declared the title of the plaintiffs on the basis of Ext.1 admitting the title of Mostt. Dawlato Devi. So far deposition of Mostt. Dawlato Devi in Misc. Case No.65 of 1976 is concerned, the learned court of appeal below has rightly come to the conclusion that the said miscellaneous case under Order IX of the Code of Civil Procedure involved issues and subject matter, which were completely different from the issues involved in the title suit as in the miscellaneous case the only matter to be proved was with respect to service of notice and non-appearance of the defendants but in the title suit question of title and other intricate matters etc. were involved, which were not at all for consideration in the miscellaneous case. Hence, it was rightly held that the miscellaneous case cannot be held to be a part of the title suit and the evidence adduced in the miscellaneous case could not be deemed to be part of the title suit. Furthermore, admittedly, certified copy of the deposition of Mostt. Dawlato Devi in the miscellaneous case was never produced by the plaintiffs in the title suit or in the title appeal for being exhibited on their behalf as the said Mostt. Dawlato Devi was claimed to have died. 8. So far the claim of the plaintiffs at the belated stage that they were ready and willing to perform their part of contract is concerned, learned counsel for the appellants submits that since the plaintiffs claimed to have already performed their part of contract, therefore, there was no occasion for them to make any specific plea in their pleadings that they are ready and willing to perform their part of contract. The said claim of the appellants is falsified by the fact that 5 they themselves sought amendment in the plaint for adding the pleading of being ready and willing to perform their part of contract, which was rejected up to the High Court. Against the said order of the High Court, the plaintiffs did not move before the higher Court and accepted the verdict of this Court, which did not allow the amendment of the pleading regarding readiness and willingness. In the said circumstances, it is quite apparent that in absence of any plea of readiness and willingness, the plaint for specific performance of contract cannot be legally decreed. 9. In the said circumstances, the learned court of appeal below rightly decided that the learned trial court transgressed its jurisdiction beyond the scope of the suit when it held that defendants no.2 to 14 were not bona fide purchasers of the land. 10. In the aforesaid facts and circumstances, this Court does not find any illegality in the impugned judgment and order of the learned court of appeal below nor does it find any substantial question of law involved in the instant second appeal, which is, accordingly, dismissed at this stage of hearing under Order XLI Rule 11 of the Code of Civil Procedure. MPS/ ( S. N. Hussain, J. )