PHOOL PATA Vs. VISHWANATH SINGH

JUDGEMENT

(1.) Leave granted.

(2.) Challenge in this appeal is to the judgment rendered by learned single Judge of the Allahabad High Court, Lucknow Bench in a Second Appeal under Section 100 of the Code of Civil Procedure, 1908 (in short CPC). The plaintiffs-respondents herein had filed a suit for specific performance of contract dated 30-7-1977 as well as for cancellation of sale deed dated 14-5-1980. According to the plaintiffs a sum of Rs.2,500/- had been paid as advance money and the consideration for sale was fixed at Rs.10,000/-. Thus the balance amount of Rs.7,500/- was to be paid at the time of execution of sale-deed. The suit was contested by the present appellant-defendant No.3. The present appellant along with defendant No.1 (respondent No.4) contended that the permission to sell the land had been obtained from the Settlement Officer (Consolidation) during the year 1980. When the plaintiffs were requested to purchase the land, they did not agree to get the sale deed executed. Thereafter defendant No.1- Jogendra Singh executed the sale deed in favour of the present, appellant and respondent No.5.

(3.) The trial court decreed the suit and directed for specific compliance of the agreement to sale, in dispute, dated 30-7-1977 and cancellation of sale deed dated 14-5-1980 along with other reliefs. The matter was carried in appeal before the learned Additional District Judge, Gonda who allowed the appeal and set aside the judgment of the trial court and directed dismissal of the relevant suit. It is to be noted that the trial court had held that the plaintiffs had proved that they were ready and willing to perform their part of the contract. Before the first Appellate Court, two stands were taken by the defendants. Firstly, it was submitted that there was change in the area and description of the land in question and though the agreement was purportedly for 1 acre 99 decimals, after completion of the consolidation proceedings the area had become 2 acres and 2 decimals. The area of some chaks had decreased and some had increased. It was further submitted that materials on record did not justify the stand of the plaintiffs that they were ready and willing to perform their part of the contract. After analyzing the evidence the first Appellate Court recorded two findings. Firstly, it was observed that the description of the properties had completely changed and therefore the suit for specific performance was liable to be dismissed. Reliance was placed on a decision of this court in Piarey Lal vs. Hori Lal (1977) 2 SCC 221 for adopting such view. It was also concluded that the materials on record did not justify the conclusion that the plaintiffs were ready and willing to perform their part of the contract. As noted above, the appeal was allowed and the suit was dismissed. The plaintiffs carried the matter in second appeal before the High Court. The following question was formulated for adjudication :-