PARKASH WANTI (DECEASED) Vs. DIAL SINGH

JUDGEMENT

(1.) This judgment disposes of civil miscellaneous No. 200-C of 1991 and R.S.A. No. 174 of 1983. Second appeal is directed against the judgment and decree of the first appellate Court reversing on appeal those of the trial Court and dismissing the suit of the plaintiff/appellant for specific performance of the agreement to sell dated May 19, 1977. Facts first :-

(2.) From the pleadings of the parties, the following issues were framed :-

(3.) The trial Judge decided issue No. 1 in favour of the plaintiff. Issue No. 2 was not pressed before him as a result of which, the awarded decree for possession by way of specific performance of the agreement to sell on payment of Rs. 3,000/-. The defendant/respondent aggrieved against the judgment and decree of the trial court challenged the same in first appeal. The first appellate Court found that the plaintiff was not actually ready and willing to perform her part of the agreement and she committed its breach. Coming to this finding, the appellate court took note of the fact that pursuant to the agreement to sell, the sale-deed was to be executed on or before June 30, 1977 but the plaintiff served a notice on the defendant in 1978 calling upon the defendant to execute the sale deed in terms of the agreement. This conduct of her, according to the learned Judge, was a strong circumstance suggesting that the plaintiff was not ready and willing to perform her part of the contract and she committed the breach of the agreement. This is essentially a finding of fact based upon appreciation of evidence and not open to challenge in second appeal.