SHIVDAYAL SON OF KALU RAM Vs. BANWARI LAL

JUDGEMENT

(1.) The instant second appeal has been preferred against the judgment and decree dated 8.12.1995 passed by Additional District Judge (hereinafter referred to as "first appellate court") , Sikar in Civil Regular Appeal No. 36/90 whereby the "first appellate court" quashed and set aside the judgment and decree passed by the Munsiff Magistrate, Danta Ramgadh, Sikar (hereinafter referred to as "the trial court") in civil suit no. 86/87.

(2.) The brief facts giving rise to this second appeal can be summarised as thus: As per the plaint the case of the plaintiff-appellant (hereinafter "the plaintiff") is that that a sale deed was duly executed between the plaintiff and defendant-respondent (hereinafter "the defendant") , in respect of the suit property/land. The plaintiff was already in possession of the suit property and it was further agreed between the parties that they would get the aforesaid sale deed registered the next day i.e. 27.6.1987. However, the sale deed could not be registered on the stipulated date for some reason. Thereafter, the defendant tried to take the possession back from the plaintiff and also obstructed him from putting up fences on the suit property. Aggrieved by the actions of the defendant, the plaintiff filed a suit for specific performance and permanent injunction, seeking the relief of specific performance and to restrain the defendant from taking back the possession. The said suit was decreed in favour of the plaintiff by the learned trial court. However, the judgment and decree of the trial court was set aside by the first appellate court. Aggrieved by the judgment of the first appellate court, the plaintiff has preferred this second appeal. The second appeal was admitted on 11.1.1996 by the court and the following substantial questions of law were framed:

(3.) Mr. R.K. Agarwal, learned senior counsel appearing on behalf of the plaintiff-appellants has contended that the first appellate court erred in observing that the unregistered deed of sale, executed between the parties could not be received as evidence of the contract in a suit for specific performance. The learned counsel placed reliance on proviso to Section 49 of the Registration Act, 1908 and also the judgment by the Hon'ble Apex Court in the case of S. Kaladevi v. V.R. Somasundaram and Others, (2010) 5 SCC 401. Mr. Agarwal next contended that in a suit for specific performance, question of readiness and willingness does not arise in case where the plaintiff has already performed his part of the contract. To support his contention, Mr. Agarwal relied on Section 16(c) of the Specific Relief Act, 1963 and the judgment of the Apex Court in the case of Syed Dastagir v. T.R. Gopalkrishna Setty, (1999) 6 SCC 337.