RACHAKONDA NARAYANA Vs. PONTNALA PARVATHAMMA

JUDGEMENT

(1.) This is a plaintiff's appeal. On 12th of December, 1975 defen-dant No.1 executed an agreement to sell two plots of land - plot A comprising 2 acres patta land, plot B comprising Ac.1.30 Cents Sivaijama land for a sum of Rs.17,900/- in favour of the plaintiff. Under the agreement to sell, a sum of Rs. 2,900/- was paid to defendant No.1 as earnest money. Subsequently one Bhima Naik issued a registered notice to the appellant stating therein that he is the owner of the land comprising in plot B measuring Ac.1.30 Cents and that the defendant No.1 has no right to sell the same to the appellant herein. The appellant sent notice to defendant No.1 for executing the sale deed. However, the defendant evaded to perform his part of the contract. It is under such circumstances on 15-3-76, the appellant herein brought a suit for specific performance being OS 19/76 in the Court of Subordinate Judge, Madanapalle. The plaintiff's case was that the appellant always was and is ready and willing to perform his part of the contract. Since the title of defendant No.1 was found to be defective as one Bhima Naik set up title on Sivaijama land, hence the plaintiff prayed for specific performance of agreement to sell of two acres of patta land only after proportionate deduction of the price for the land or in the alternative, substitute the patta land for the price agreed upon between the parties. Defendant No.1 contested the suit by filing a written statement . The defendant took the plea that the plaintiff cannot seek to enforce a new contract and that the plaintiff under the pretext of notice having received by him from Bhima Naik, did not come forward to perform his part of the contract and his plea for proportionate deduction of the price or in the alternative, substitute the property is untenable and the suit is liable to be dismissed. The Trial Court held that the plaintiff is not entitled to seek enforcement of new contract either by way of substitution of the patta land or for proportionate deduction of the agreed price of the land. The trail Court further found that the plaintiff is not entitled to seek enforcement of new contract either by way of substitution of the patta land or for proportionate deduction of the agreed price of the land. The trial Court further found that the title set up by Bhima Naik in respect of one item of the land did not entitle the plaintiff to vary the contract. With the aforesaid finding, the plaintiff's suit was dismissed.

(2.) The plaintiff thereafter filed an appeal before the first appellate Court. Before the first appellate Court for the first time it was stated by defendant No.1 that he has no title in respect of plot B land and the same belonged to his wife and she has refused to assign the said land in his favour. Under such circumstances, the plaintiff moved an application for amendment of the plaint to the effect that the plaintiff is ready and willing to purchase Ac. 2 acres of land in plot A by paying the entire sale consideration of Rs.17,900/- and further he is relinquishing his claim in respect of the land contained in plot B and that he would not claim any compensation. The said amendment was allowed by the appellate Court. The first appellate Court having found that defendant No.1 has no title in respect of land comprising in plot B, and the plaintiff is ready and willing to pay up the whole of the agreed consideration amount, after relinquishing his claim in respect of plot B land and the compensation, the plaintiff is entitled to decree for specific performance. In that view of the matter, the appeal was allowed and the suit was decreed in respect of land comprised in plot A measuring two acres of patta land.

(3.) Aggrieved, the defendant preferred a second appeal before High Court. The High Court was of the view that since the plaintiff did not come with the suit claiming the benefit of sub-section (3) of section 12 of the Specific Relief Act, 1963 (hereinafter referred to as the Act), and claimed performance of only part of the whole agreement, and therefore, he was not ready and willing to perform his part of the whole contract and thus not entitled for decree for specific performance of the agreement to sell. Consequently the second appeal was allowed and the suit stood dismissed. It is against the said judgment of the High Court, the plaintiff has preferred this appeal by way of special leave petition.