RADHEY SHYAM Vs. BRIJENDRA SINGH

JUDGEMENT

(1.) THIS is second appeal by the defendant Radhey Shyam son of Badan Singh against the judgment and decree by the two courts below decreeing the suit for specific performance in favour of Brijendra Singh son of Badan Singh, whose step brother defendant Radhey Shyam has challenged the said decree. The first Appellate Court by its judgment dated 11. 12. 1992 held that plaintiff Brijendra Singh was entitled to specific performance and the main defendant Gajendra Singh son of Vaktavar Singh was bound to execute a sale deed in favour of Arazi khasra No. 771 measuring 10 Biswa Barani agricultural land situated at village Jahangirpur, Tehsil Nadbai, District Bharatpur in pursuance of the agreement to sell executed by said Gajendra Singh on 12. 5. 1980 for the sale consideration of Rs. 500/- which was paid by the plaintiff Brijendra Singh and possession of the said agricultural land was handed over to the plaintiff but the registered sale deed was not executed.

(2.) ACCORDING to the plaintiff, when the plaintiff approached the vendor Ganjedra Singh for execution of sale deed in respect of the said agricultural land in his favour he refused to do so on the ground that he had since become khatedar of the said agricultural land and had transferred the same by registered sale deed in favour of Radhey Shyam for a sum of Rs. 1000/ -. The plaintiff immediately filed the suit on 11. 10. 1982 and the date of registered sale deed in favour of Radhey Shyam is also 11. 10. 1982. Upon coming to know of the same, the plaintiff immediately amended the suit and impleaded his step brother Radhey Shyam also as defendant in the suit on 15. 10. 1982. The plaint was contested by the said defendant Radhey Shyam only and he filed the written statement to the plaint and the original vendor Gajendra Singh did not contest the suit, though he appeared as defence witness, DW. 2 before the court prior to his death. It is stated that the said original vendor Gajendra Singh also since died in the year 1996 and no steps were taken to bring legal heirs of the said vendor Gajendra Singh on record and accordingly his name was deleted from the array of respondents vide order dated 6. 12. 2005 of this Court on the request of learned counsel for the appellant Radhey Shyam as the application under Order 22 Rule 4 CPC was not pressed.

(3.) DR. P. C. Jain, learned counsel for the appellant, therefore, submitted that since Radhey Shyam was the transferee for value who has paid his money in good faith and without notice of the original contract, as the trial court has not held that his signatures on the original agreement to sell dated 12. 5. 1980 were on the same date or not, the decree of specific performance cannot be enforced against him. He further submitted vehemently that in the absence of any pleading of readiness and willingness to perform his part of the contract by the plaintiff, the very essential foundation for grant of decree of specific performance was absent and according to provisions of Section 16 (c) of the Specific Relief Act, 1963, the said decree could not be granted because according to him the plaintiff had failed to aver and prove that he has performed or has always been ready and willing to be performed by him, other than terms the performance of which has been waived by the defendant and accordingly he prayed that the present second appeal deserves to be allowed at the instance of purchaser Radhey Shyam and the decree and judgment of both the courts below deserve to be set aside.