IN THE HIGH COURT OF JUDICATURE AT PATNA SA No.338 of 2004 BIDYA SINGH & ORS Versus MAHENDRA PRASAD SINGH & ORS ----------- 08/ 15.07.2008 Heard learned counsel for the appellants. 2. This second appeal arises out of Title Suit No. 69 of 1979 which was filed by the plaintiffs-appellants for specific performance of contract in favour of plaintiffs against the defendants directing them to execute sale deed in favour of plaintiffs with respect to the suit land mentioned in Schedule-I of the plaint after receipt of the balance consideration amount of Rs.4000.00 and if the defendants fail to execute the same, it should be executed through the process of the court and for other ancillary reliefs. 3. The said suit was dismissed by the learned Subordinate Judge- II, Lakhisarai vide judgment and decree dated 31.05.2003 against which the plaintiffs-appellants filed Title Appeal No. 15 of 2003 which was also dismissed by the learned Additional District Judge-I, Munger vide judgment and decree dated 16.09.2004. Against the aforesaid judgments and decree of the learned courts below, plaintiffs-appellants have filed this second appeal. 4. Both the learned courts below specifically found that the plaintiffs concealed the fact that they were in possession of the suit land on the basis of Sudhbharna and sat tight over the matter perhaps on the strength of one line recital in Exhibit-3 that they have been put in possession and the plaintiffs’ pleadings completely omitted the Sudhbharna aspect. The learned courts below relied upon a decision of the Hon’ble Apex Court in a case of Sardar Govindrao Mahadik and 2 another Vs. Devi Sahai and others, reported in A.I.R. 1982 SC 989 in which it was held : “The acts preliminary to the contract would be hardly of any assistance in ascertaining where they were in furtherance of the contract and anything done in furtherance of the contract postulates the pre- existing contract and the acts done in furtherance thereof and hence, the acts anterior to the contract or merely incidental to the contract would hardly provide any evidence of part performance.” 5. Learned courts below also found that the plaintiffs had come out with a case that Rs.8000.00 paid to the defendants at the time of execution but from the depositions of the plaintiffs’ witnesses specially PWs.8 and 4, it transpires that they had not stated that any such amount was paid to the defendants. The learned court of appeal below also relied upon the said decision of the Hon’ble Supreme Court in which it had also held that in a case of part performance the transferee has to prove that he had done some act in furtherance of the contract, but in the instant case the plaintiffs did not even give discharge over Exhibits 5 series. 6. Learned courts below have also rightly come to the conclusion that the specific performance of contract is an equitable relief and it is settled law that one who seeks equity must do equity but in the instant case the plaintiffs did not come with clean hands, head and heart as the plaintiffs were proved to be professional money lenders but they concealed the documents which were in their possession and also concealed the facts which were in their knowledge and had come up with unfair pleadings. 7. The learned courts below found that the plaintiffs failed to 3 prove the valid execution of Exhibit-3 by the defendants and also failed to prove passing of any consideration as per their own pleadings and hence, it was rightly held by the learned courts below that plaintiffs’ possession over the suit land was on the basis of Exhibit-3. In the said circumstances, the plaintiffs had miserably failed to prove the contract and passing of consideration. 8. On the other hand, the learned courts below have arrived at specific findings of fact that the defendants had succeeded in proving that agreement(Exhibit-3) was obtained by the plaintiffs by force and the defendants had not executed the document as pleaded by the plaintiffs and no consideration was paid and accordingly the agreement in question was not legal and valid. 9. In the aforesaid facts and circumstances, the judgments and decree of the learned courts below are covered by findings of fact and no substantial question of law is involved in the instant second appeal, which is accordingly dismissed. harish/ (S.N.Hussain, J.)