SWARAN SINGH Vs. DALIP KAUR

JUDGEMENT

(1.) THE appellant filed a suit for specific performance on the allegations that defendant Nos. 1 and 2 and one Sardara Singh agreed to sell land measuring 14 kanals 9 marlas situated in village Makandpur vide agreement dated 7.10.1969 for an amount of Rs. 3,000/- out of which Rs. 2,400/- was paid as earnest money. Sale was to be effected after getting the permission to sell the land on behalf of the minors. However, the possession was delivered to the plaintiff. The defendants were issued notices dated 20.11.1975, 29.12.1978 and 27.1.1979 for execution of the sale deed but they did not execut it. However they received Rs. 400/- by money order. It was further case of the plaintiff that the minors have became major, therefore, they can execute the sale deed. As the defendants failed to execute the sale deed, hence the suit was filed. Defendant Nos. 1 to 5 contested the suit and controverted the allegations. It was denied that they had executed any agreement but it was pleaded that they were not owner of the suit land therefore they could not sell the suit land. It was also denied that they had made any promise to get permission from the court for selling the share of the minors and then to execute the sale deed. They also denied the delivery of the possession to the plaintiff. They also pleaded that defendant Nos. 6 to 8 were in possession as vendees.

(2.) ON the pleadings of the parties, the learned trial Court framed a number of issues and after recording the evidence, dismissed the suit. Aggrieved by which, the plaintiff preferred an appeal before the learned Addl. District Judge, Gurdaspur. The appeal was partly allowed and it was ordered that plaintiff was entitled to the refund of Rs. 2,800/- from defendant Nos. 1, 2 and 5. Aggrieved by the orders of the courts below, the present appeal has been preferred.

(3.) THIS appeal is to be dismissed on the ground that in the plaint, there was no averment by the plaintiffs that they were ready and willing to perform their part of contract. In a suit for specific performance, the plaintiff has to plead that he was ready and willing to perform his part of contract and also prove the same. Similar proposition has been considered by the Apex Court in Pukhraj D. Jain and others v. G. Gopalakrishna, 2004(3) RCR(Civil) 171 (SC) and it has been held as under :-