IN THE HIGH COURT OF JUDICATURE AT PATNA SA No.31 of 2007 HARIHAR MAHTO, SON OF LATE CHARITAR MAHTO, RESIDENT OF VILLAGE – DHANAUTI, PRAGANA, PACHALAKH, P.S. – SIWAN, MUFASSIL, DISTRICT – SIWAN. ….. PLAINTIFF/APPELLANT/APPELLANT. Versus JANARDAN SAH, SON OF LATE RAMCHANDRA SAH, RESIDENT OF VILLAGE – DHANAUTI PARGANA PACHALAKH, P.O. – DHANAUTI, P.S. – SIWAN MUFASSIL, DISTRICT – SIWAN. …DEFENDANT/RESPONDENT/RESPONDENT. ----------- 05/ 15.09.2009 Heard learned counsel for the appellant. 2. This second appeal has been filed by the sole plaintiff-appellant-appellant challenging the judgment and decree of both the learned courts below. 3. This second appeal arises out of Title Suit No. 129 of 1987 which was filed by the plaintiff for specific performance of agreement for sale dated 05.04.1982 (Exhibit 2) said to have been executed by the defendant-respondent- respondent in favour of the plaintiff-appellant-appellant with respect to the suit land. The said suit was contested by the defendant whereafter issues were framed, evidence was led and arguments were made by both the parties and finally by judgment and decree dated 24.03.2004, learned Munsif – Ist, Siwan dismissed the aforesaid suit on contest. 2 4. Against the aforesaid judgment and decree of the trial court the plaintiff filed Title Appeal No. 15 of 2004 which was contested by the defendant respondent whereafter the said title appeal was dismissed on contest by the learned District Judge, Siwan vide his judgment and decree dated 30.11.2006. 5. It transpires that the learned court of appeal below framed two issues which were also two of the several issues formulated by the trial court, namely, (a) Whether the plaintiff has proved to have tendered the money within the stipulated period and was ready and willing to perform his part. (b) Whether the plaintiff is entitled for a decree for specific performance of the contract. 6. Both the aforesaid issues were the main issues with respect to the respective claims of the parties on which the result of the case was dependent. Learned courts below very carefully considered all the evidence adduced by both the parties, oral and documentary, whereafter they found that it was incumbent on the plaintiff to examine the postal peon to 3 prove the service of notice and further that when the signature on the document was challenged by the defendant, then it must have been proved by the plaintiff by examination of an expert, but the plaintiff has failed to prove either the said signature or the acknowledgement of service by postal peon nor any handwriting expert was examined to prove the signature on the acknowledgement. 7. It was also found that the plaintiff has failed to prove that he tendered or approached the defendant within the stipulated period either personally or through notice by registered post. It was also found that the plaintiff has not been able to prove that he ever tendered or was ready and willing to perform his part of the agreement within the stipulated period. Furthermore neither the tender of money within the stipulated period could be proved nor the plaintiff could show that he was always ready and willing to perform his part of the agreement by any material whatsoever, hence the plaintiff was clearly not entitled for any decree of specific performance of contract. 8. In the aforesaid facts and circumstances, this Court does not find any illegality in the impugned judgment and decree of the learned courts below nor does it find any 4 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. kundan (S. N. Hussain, J.)