**1** S.B. Civil Regular First Appeal No.46 of 1992. Amar Singh son of Shri Richpal VERSUS Lala Ram son of Shri Bhura Ram IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN, JAIPUR BENCH, JAIPUR J U D G M E N T S.B. Civil Regular First Appeal No.46 of 1992. Amar Singh son of Shri Richpal ..... Defendant-appellant VERSUS Lala Ram son of Shri Bhura Ram ..... Plaintiff-respondent Date of Judgment :::: 05/01/2010. Hon'ble Mr. Justice Dalip Singh Mr. R.K. Mathur, Counsel for the Defendant-appellant None present for the Plaintiff-respondent *** By the Court : This is a first appeal, under Section 96 of the Code of Civil Procedure, 1908, preferred by the defendant-appellant against the judgment and decree dated 13.02.1992 passed by the learned Additional District & Sessions Judge, Kishangarh- bas {Alwar} in Civil Original Suit No.5 of 1989 decreeing the suit for specific performance of the Contract. Brief facts giving rise to this first appeal are that the plaintiff-respondent instituted a suit for specific performance of the Contract dated 03.08.1984 for the sale of agricultural land **2** S.B. Civil Regular First Appeal No.46 of 1992. Amar Singh son of Shri Richpal VERSUS Lala Ram son of Shri Bhura Ram bearing Khasra numbers 660 and 644 measuring in all 1-bigha and 13-biswa, which was agreed to be sold by the appellant for a sum of Rs.13,000/-. The agreement is Exhibit-1 and the receipt of the amount of Rs.13,000/- also executed on the same date, is Exhibit-2. The case of the plaintiff was that after executing the agreement, Exhibit-1, the entire consideration amount of Rs.13,000/- was paid by the plaintiff on the very same day and receipt executed. The further case of the plaintiff was that the plaintiff was in cultivatory possession of the land and as such the defendant-appellant had agreed that he would get the necessary revenue entries changed in his own favour, since the land was jointly entered in the name of the defendant and his younger brother – Ramavtar. The defendant had also given out that the partition of the properties between the defendant and his younger brother – Ramavtar had taken place according to which Ramovtar had been given separate and distinct parcels of the land and on that basis Ramavtar had given up his share in the land in dispute and, therefore, the defendant alone was entitled to sell the land in its entirety. The defendant had agreed that he would get the necessary revenue entries made in his name and thereafter executes the sale-deed and **3** S.B. Civil Regular First Appeal No.46 of 1992. Amar Singh son of Shri Richpal VERSUS Lala Ram son of Shri Bhura Ram get the sale registered. As per the plaint averments, the defendant failed to carry out the necessary change in the revenue entries in his favour and on the contrary, since the prices of land had increased, the defendant instead filed a suit against the plaintiff in the Revenue Court and also certain complaints/reports for theft of crop etc., which ultimately resulted into the plaintiff to file the present suit for specific performance of the Contract. The defendant-appellant in the written-statement, which was filed, denied having executed the agreement or having received the amount of Rs.13,000/- and also denied having executed the receipt for the same. The learned trial Court framed as many as seven- issues, out of which Issue Nos.1 related to the right of the defendant to sell the land and whether the defendant was in cultivatory possession of the land as against the averments of the plaintiff that the plaintiff was cultivating the land in dispute for the past several years. Issue No.2 was with regard to the execution of the agreement and the payment of the consideration of Rs.13,000/- and execution of the receipt on 03.08.1984. Issue No.3 on which much stress has been laid by the learned counsel for the defendant-appellant related to the readiness and willingness on the part of the plaintiff for getting **4** S.B. Civil Regular First Appeal No.46 of 1992. Amar Singh son of Shri Richpal VERSUS Lala Ram son of Shri Bhura Ram the specific performance of the Contract. The learned trial Court decided Issue Nos.1 and 2 in favour of the plaintiff and held that on the basis of the evidence, which had come on record, it was proved that the defendant had executed the agreement, Exhibit-1, which was entered in the register kept by the deed-writer – Leela Ram (PW-3) and necessary entries made in that behalf. The independent witnesses, who were the attesting witnesses were also examined by the plaintiff and relying upon the evidence produced by the plaintiff, the learned trial Court held that the agreement, Exhibit-1 was duly proved and so also the receipt with regard to the payment of the entire amount of consideration of Rs.13,000/- receipt, Exhibit-2 having been executed in proof thereof. As has been stated above, the main contention, which was raised by the learned counsel for the defendant- appellant in this appeal was on Issue No.3 as to whether or not the plaintiff was ready and willing to perform his part of the Contract. Learned counsel for the defendant-appellant contended that in the first place the averments in the plaint do not confirm to the requirement of Section 16(1) (C) of the Specific Relief Act. To appreciate the above, it is necessary that the **5** S.B. Civil Regular First Appeal No.46 of 1992. Amar Singh son of Shri Richpal VERSUS Lala Ram son of Shri Bhura Ram plaint averments itself may be taken note of. Para 7 of the plaint, which contains the averments to this effect, reads as follows : 7. यह है Ǒक िमन वादȣ समय सोदा बैय भी अपने प¢ मɅ बयनामा पंजीबƨ कराने को तैयार था व सौदा बैय से अब तक तैयार हं। तथा खचा[ बयनामा का ःटाàप िलखाइ आǑद वहन ू करने को पहले भी तैयार था व अब भी तैयार हं। यािन अपना ू पाट[ अदा करने को रैडȣ एवं ǒविलंग था व हं। मगर ूितवादȣ ू टाल बाल करता है और बयनामा वादȣ के प¢ मɅ तहरȣर व तकमील नहȣं कराता है अत: िमन वादȣ Ʈारा Ûयायालय ौीमान अपने प¢ मɅ आराजी मुतनाजा का बयनामा तहरȣर व तकमील कराकर पंजीबƨ कराने को अिधकारȣ है और अपने हकूको कȧ र¢ाथ[ दावा हाजा पेश है।'' So far as the present case is concerned, as per the averments contained in the agreement itself Exhibit-1, the plaintiff on his part had paid the entire amount of consideration and nothing further was remained to be paid by way of consideration by the plaintiff. The defendant having received the consideration amount has executed the receipt, Exhibit-2. The relevant portion of the contents of the agreement, Exhibit-1, reads as follows : '' अत: आराजी कȧ बय का सौदा 13,000/ Ǿपये मɅ ौी लाला राम पुऽ ौी भूरा राम कौम अहȣर साǑकन दािधया से करके आज 13,000/ Ǿपये रोकडȣ ूाƯ कर िलये है कÞजा मौका पर पहले से हȣ करȣब 10 सो साल से बेता का चला आ रहा है। शत[ यह है Ǒक कागजात माल मɅ मेरे नाम अभी ½ भाग दज[ है और ½ भाग मेरे भाई के नाम दज[ है मɇने अपने भाई को बदले मɅ दȣगर आराजी दȣ हई है जब मेरे नाम ु का पूरा Ǒहःसा हो जावेगा तो ǒबना Ǒकसी आपǒƣ के बय कȧ **6** S.B. Civil Regular First Appeal No.46 of 1992. Amar Singh son of Shri Richpal VERSUS Lala Ram son of Shri Bhura Ram रǔज० बेता के हक मɅ करा दंगा। यǑद मɇने रेवेÛयू ǐरकाड[ ू दǾःत होने के बाद बयनामा बेता के हक मɅ नहȣं कराया तो ु बेता को हक होगा Ǒक वो अदालत के Ʈारा बयनामा अपने हक मɅ करा लेगा।'' So far as the facts of the present case are concerned on the part of the plaintiff-purchaser nothing remained to be performed and whatever was the obligation under the Contract was solely upon the defendant vendor for getting the remaining half muted in his name and executing the sale-deed and having the same registered in favour of the plaintiff-purchaser. Thus, with a view to appreciate the entire case with regard to readiness and willingness the facts of the instant case cannot be lost sight of and this Issue must be weighed in the light of the above facts. As has been found in the evidence the defendant failed to have made necessary entries corrected and the revenue record changed in his favour, which was the condition for the defendant to perform. On the contrary, the defendant filed a revenue suit against the plaintiff as well as reports in the Police with regard to the theft of the crops, since the possession of the land was with the plaintiff and he was cultivating the same the plaintiff had to give a notice for the execution of the sale-deed and ultimately filed the present suit for specific performance of the Contract. **7** S.B. Civil Regular First Appeal No.46 of 1992. Amar Singh son of Shri Richpal VERSUS Lala Ram son of Shri Bhura Ram In the instant case, the pleadings, as have been quoted here-in-above from Para 7 of the plaint and the averments made in the agreement of the agreed terms and conditions left nothing to be done or performed on the part of the plaintiff and whatever the obligations under the Contract there was on the part of the defendant to perform. Therefore, the findings on Issue No.3 with regard to readiness and willingness for performance of the reciprocal obligations, in the facts and circumstances of the present case do not call for any interference and the suit can not be dismissed in the light of the above facts on the ground that the plaintiff failed to plead or aver and prove that he was forever ready and willing to perform his part of the contract. In the facts and circumstances, I find no reason to interfere with the findings of the learned trial Court. No other point has been argued. Consequently, the appeal is dismissed. There shall be no order as to costs. (Dalip Singh), J. Ashok/