1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR O R D E R S.B. CIVIL SECOND APPEAL NO.31/1991 (Dharma Chand Vs. Omkar & Ors.) Date of order : 28.07.2009 P R E S E N T HON'BLE MR. JUSTICE GOPAL KRISHAN VYAS Mr. B.N. Calla, for the appellant. In this second appeal, at the time of admission, the following substantial question of law was formulated for adjudicating this appeal : “Whether in case when the plaintiff was ready and willing to perform his part of contract even then the Courts below were right in refusing to grant decree of specific performance of contract?” In this second appeal, the appellant is challenging the judgment and decree passed by Addl. District Judge, Bhilwara dated 23.4.1990 passed in Civil Appeal No.38/85 whereby the learned appellate Court reversed the judgment and decree dated 11.10.1985 passed by Muncif & Judicial Magistrate First Class, Bijolia in Civil Original Case No.29/82. According to the facts of the case, the 2 plaintiff-appellant preferred a suit for specific performance of contract which was said to be written in between the parties on 18.1.1978. A prayer was made in the suit that the decree against the defendant respondents be passed for specific performance of the contract. So also, in the alternative, it was prayed that Rs.2900/- be allowed in form of decree in favor of plaintiff appellant with cost and interest. The suit was contested by the defendant respondents and after filing written statement by the defendant respondents, the learned trial Court framed five issues including the issue of relief. Learned trial Court after recording oral evidence as well as documentary evidence dismissed the suit of the plaintiff appellant vide judgment and decree dated 11.10.1985. Being aggrieved and dissatisfied with the judgment and decree passed by the trial Court, the plaintiff appellant filed an appeal before the District Judge, Bhilwara whereby the learned appellate Court partly allowed the appeal and suit of the plaintiff appellant was decreed only against the respondent No.1 Omkar to the extent that respondent shall pay Rs.1000/- to the plaintiff-appellant and dismissed the appeal against the respondent Santosh Chand. 3 Learned counsel for the appellant vehemently argued that out of the five issues framed by the trial Court, three issues were decided in his favor and on the basis of finding of issue No.4, the suit was dismissed. While attacking upon the finding of issue No.4, it is submitted that both the Courts below have committed an error while giving finding with regard to the fact that prior to executing the agreement in favor of the plaintiff appellant, the property in question was already sold by agreement to respondent No.2 – Santosh Chand and subsequently, the sale was made through registered sale deed in the year 1982. I have perused the finding of trial Court as well as the appellate Court with regard to issue No.4. The trial Court as well as the appellate Court has discussed the evidence of appellant himself for the purpose of issue No.4 and a specific finding has been given that his own witness are admitting in their statements that subsequent purchaser was not having knowledge with regard to agreement arrived at in between the plaintiff and respondent No.1. It is also observed in the finding of issue No.4 that property in question was already in possession of the respondent No.2 because there was agreement to sale in his favor. Meaning thereby, the finding of issue No.4 is not perverse, so also, it is based on sound appreciation of evidence. Therefore, even if the plaintiff appellant was ready and willing to perform his part of 4 contract in pursuance of the agreement arrived at in between the parties, the learned trial Court has rightly dismissed the suit on the basis of the finding arrived at for issue No.4. The finding of issue No.4 was further affirmed by the appellate Court. In this view of the matter, there is no force in this second appeal. Hence, this second appeal is dismissed. No order as to cost. (GOPAL KRISHAN VYAS), J. arun