SAHDEO RAI Vs. LAXMAN RAI

JUDGEMENT

(1.) THIS second appeal, at the Instance of the appellant, is directed against the judgment dated 22.6.1990 and decree dated 31.7.1990 passed in Title Appeal No. 19/88/789, whereby and whereunder the learned 4th Additional District Judge, Giridih affirmed the judgment dated 1.2.1988 decree dated 12.2.1988 passed in Title Sit No. 39/87 by Munsif, Giridih.

(2.) IT appears that plaintiff filed a title suit for specific performance of contract for directing the defendant to execute a registered sale deed in respect of Schedule A land given at the foot of the plaint after receiving Rs. 2000.00 from the plaintiff and for delivery of khas possession to the plaintiff. It is further alleged that defendant executed a registered deed of agreement for sale in favour of the plaintiff in respect of the disputed land on payment of Rs. 2000.00 within a period of 17.2.1982 to 17.2.1987. The plaintiff went to the defendant with Rs. 2000.00 in the year 1986 several times, tendered the amount and requested the defendant to receive the amount and execute the sale deed in his favour but the defendant avoided to accept the amount and execute the sale deed. It is said that plaintiff again tendered the amount to the defendant in the month of January, 1987 several times but the defendant avoided to accept the same on different pleas. Thereafter the plaintiff served the defendant a notice on 30.1.1987 requesting him to accept the money and execute the sale deed in his favour but defendant sent a reply on 4.2.1987 through his lawyer informing that the plaintiff never tendered Rs. 2000.00 to him and requested the plaintiff to pay Rs. 2000.00 on or before 17.2.1987 to the defendant or his lawyer Sri Prithivipal Singh, Advocate and after this plaintiff again approached the defendant with cash money, who promised to receive the same on 11.2.1987 in Court. On that day plaintiff with his son went to the office of Sri Prithivipal Singh, Advocate but the defendant did not reach there and his learned advocate directed the plaintiff to come on 16.2.1987. On that day also the plaintiff alongwith other persons went to his office with cash amount of Rs. 2000.00 but the defendant did not turn up in the office of the advocate. The plaintiff is still ready to pay the cash amount but the defendant avoided and failed to perform his part of contract and hence this suit.

(3.) THE plaintiff filed a suit for specific performance of agreement entered into between the parties and learned Court of Munsif framed the issues, recorded evidence both oral and documentary of both sides and ultimately dismissed the suit and the plaintiff filed an appeal against the judgment and decree of the learned Court below and there too also he lost the appeal and thereafter the plaintiff has filed this second appeal and in this second appeal the following substantial question of law has been formulated: whether the learned Courts below committed an error in holding that the plaintiff was not ready and willing to perform his part of contract purported to be on the ground that he did not offer balance consideration either by bank -draft or to the advocate of the defendant which mode of payment was not contemplated under the agreement?