IN THE HIGH COURT OF JUDICATURE AT PATNA SA No.331 of 2002 ----------- Rabindra Thakur, son of late Nageshwar Thakur, resident of village Nagawan Pergana Goa, P.S. Dariapur, P.O. Arbind Nagar, District Saran. …Plaintiff-Respondent-Appellant. Versus 1. Most. Ram Mukhi Devi, wife of late Baij Nath Thakur 1(ka). Raghaw Thakur, son of late Baij Nath Thakur, Both residents of village Nagawan, P.O. Arbindnagar, P.S. Dariapur, District Saran. 1(kha) Malti Devi, daughter of late Baij Nath Thakur, wife of Bhuneshwar Thakur, resident of village and P.O. Gangahara, P.S. Dariapur, District Saran. 1(g) Bunni Devi d/o late Baij Nath Thakur, w/o Jai Prakash Tiwary, resident of village and P.O. Amnaur, District Saran, presently village Nagawan, P.O. Arbind Nagar, P.S. Dariapur, Distt. Saran. 1(gh) Pramshila Kumari 1(ang) Pratima Kumari Both daughters of late Baij Nath Thakur, resident of village Nagawan, P.O. Arbind Nagar, P.S. Dariyapur District Saran. …Defendants-Appellants (of T.A.No.40/90)-Respondents. 2. Gautam Thakur 3. Ashok Thakur Both sons of late Mishri Lal Thaur. All residents of village Nagawa Perga Goa, P.S. Dariapur Post Arbind Nagar, District Saran. ..Defendants-Appellants( of T.A.No.39/90 )…Respondents. ……. For the appellant : Mr. Birendra Nath Mishra, Advocate. For the respondents : None. ……… 08/ 06.05.2009 Heard learned counsel for the appellant. 2. This second appeal has been filed on behalf of the sole plaintiff-respondent-appellant challenging the judgment and two decrees of the learned court of appeal below. 3. The matter arises out of Title Suit No. 80 of 1980, which was filed on behalf of the plaintiff-appellant for specific performance of contract vide agreement for sale dated 26.08.1978 said to have been executed by the predecessor of the defendants- 2 respondents, namely, Kailash Thakur with respect to the suit land against the defendants-respondents as the said Kailash Thakur had died in the month of November, 1978. 4. The aforesaid title suit was decreed on contest by learned Munsif-II, Chapra, vide his judgment and decree dated 12.04.1990. Against the aforesaid judgment and decree of the trial court, two of the defendants, namely, Mostt. Salehra Kuar and Baijnath Thakur filed their respective appeals, namely, Title Appeal No.39 of 1990 and Title Appeal No. 40 of 1990. The aforesaid title appeals were taken up together and were allowed in part by the learned Additional District Judge-VIII, Saran, Chapra vide his judgment and decree dated 07.09.2002. 5. Against the aforesaid judgment and decree passed by the learned court of appeal below in both the title appeals, the plaintiff-appellant filed only the instant second appeal, namely, S.A. No. 331 of 2002. Although learned counsel for the appellant claims that he had filed this common second appeal against two decrees of the learned court of appeal below in view of the decision of a Full Bench of this Court in case of Haribans Singh vs. Basist Kumar & others, reported in 1985 B.L.J. 501, but in the instant matter appellants in both the title appeals were different and furthermore court fee with respect to only one decree under challenge had been paid in this second appeal although according to the said decision of the Full Bench itself the court fee with respect to both the decrees of the title appeals which are challenged in this second appeal should 3 have been deposited by the appellant in this court. 6. So far the merit of the second appeal is concerned, after considering the arguments as well as the materials on record, including the impugned judgments and decrees of the learned courts below, it is quite apparent that the agreement for sale in question dated 26.08.1978 is said to have been executed by Kailash Thakur, who was the uncle of the defendant Baijnath Thakur. It also transpires that the defendants specifically stated in their pleadings that the said Kailash Thakur had not executed any deed of agreement in favour of the plaintiff, who had committed fraud. However, it is not in dispute that Kailash Thakur died in the month of November, 1978 a few months after the said agreement for sale and the suit out of which this second appeal had arisen was filed by the plaintiff in the year 1980. 7. Learned court of appeal below after considering the pleadings and evidence of the parties and also the provisions of law as well as the case laws involved in the case came to the conclusion that Kailash Thakur was a very old person according to the calculation of age and the execution of agreement for sale was specifically denied by the defendants and as such it was the duty of the plaintiff to prove that the agreement for sale was executed by the said Kailash Thakur, in which he had miserably failed. The learned court of appeal below after considering the pleadings and evidence of the parties specifically found that the plaintiff had neither pleaded nor proved that he was always, since the time of the 4 execution of the agreement for sale till the date of filing of the suit, was throughout ready and willing to perform his part of the agreement. It was also found that only when the evidence of other witnesses were taken, the plaintiffs filed a petition that he should be re-examined and in his re-examination only he said that he was even ready to perform his part of the agreement. This statement had not been given by the plaintiff in his pleading or original original examination-in-chief on the basis of which cross- examination was done and apart from that there is no material to show that the plaintiff was always ready and willing to perform his part of the agreement. 8. In the said circumstances, relying upon the subsequent petition/affidavit of the plaintiff, it cannot be legally presumed that he was always ready and willing to perform his part of the agreement specially in view of section 16 of the Special Relief Act, 1960. 9. In view of the aforesaid conclusions, this Court does not find any illegality in the impugned judgment and decrees 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. )