BHIMA DANA MATA v. HIRABEN JIVA HADHU VISHA CHAD

and amount of Rs.4/- Lakhs was paid as earnest money in the presence of the witnesses and as the defendant no.1 expired and as entry was not recorded in revenue record regarding name of seller in the agreement to sale dated 18.06.2007, the sale-deed could not be registered. It is the case of the plaintiff that after receiving remaining amount of Rs.4 Lakhs, the plaintiff was ready and willing to deposit an amount of Rs.2/- lakhs but because of the names of legal heirs of deceased seller were not recorded in the revenue record, registered sale deed was not executed. It is the case of the plaintiff that agreement to sale was executed by Kanjibhai on 18.06.2007 and said Kanjibhai Jivabhai died on 10.09.2010 and it is only in the year 2015 that names of the legal heirs of deceased Kanji Jiava were mutated in the revenue entry, the present suit for specific performance was filed. After going through the oral as well as documentary evidence so also after giving findings on all issues framed in the suit, the suit was dismissed and challenge was made by way of appeal being Regular CiviL Appeal No.107 of 2023 which was also dismissed by the learned appellate Court after re- appreciating the evidence and hence the present Second Appeal is filed.

3.1 Learned advocate for the plaintiff has mainly argued that the trial Court and the appellate Court have not taken into consideration the fact that suit is for specific performance and both the Courts below have held that as agreement to sale is not registered document, it cannot be looked into and, therefore, as agreement to sale is not registered under the provisions of Section

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17, the suit has been dismissed.

3.2 It has been argued by learned advocate for the plaintiff that in the proviso of Section 49, in a suit for specific performance, an unregistered agreement to sale can be looked into and taken into evidence and, therefore, there is no bar and, therefore, it has been argued that an unregistered document affecting the immovable property and required by Registration Act can be received as an evidence of a contract in suit for specific performance. Learned advocate for the plaintiff has also argued that suit is filed within a period of limitation and as soon as plaintiffs' names were mutated in the revenue record in the year 2015, the plaintiff has filed the suit and, therefore, it cannot be said that there is bar on the ground of limitation.

3.3 Insofar as aspect of plaintiff's proving readiness and willingness to execute sale-deed is concerned, it is stated by the plaintiff that entire sale consideration has been paid.

4.1 Having heard learned advocate for the plaintiff and having gone through the judgment and decree passed by both the Courts below, the fact remains that though agreement to sale at Exh.72 states that possession has been handed over to the plaintiff but in the suit plaintiff himself has claimed possession and, therefore, fact that the plaintiff is in possession of the property in view of agreement to sale cannot be believed. With respect to the amount of consideration i.e. amount of Rs.4/- Lakhs having been deposited,

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the witness of the plaintiff i.e. his brother who has been examined at Exh.66, the said witness has stated that only an amount of Rs.4,000/- (Rupees Four Thousand Only) was paid and not Rs.4/- Lakhs.

4.2 On the factual aspect both the Courts below have given findings that the plaintiff has failed to prove that he has paid earnest amount of Rs.4/- Lakhs out of amount of sale consideration of Rs.6/- Lakhs at the time of executing agreement to sale dated 18.06.2007. The trial Court and the appellate Court have also given findings based on the bank statement of the plaintiff which is produced at Exh.73 that for the period between 09.04.007 and 30.04.2019, the plaintiff was not financially sound to make a huge amount of Rs.4/- Lakhs to deceased Kanji Jiva at the time of executing sale-deed dated 18.06.2007. It has also come on record that no 09.04.2007 the balance amount in the Bank statement of the plaintiff was only Rs.50/- and after executing agreement to sale dated 27.08.2008 the balance amount of the plaintiff was only Rs.210/- and, therefore, plaintiff could not prove that he was financially capable of making payment of Rs.4/- Lakhs at the time of executing sale deed and no document has been produced by the plaintiff to show that the payment of Rs.4/- Lakhs has ever been paid by the plaintiff to defendant.

4.3 Moreover, the suit that has been filed by the plaintiff is also beyond period of three years, no cognate proof is produced by the plaintiff to show that the plaintiff had right to file suit for specific

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performance of an agreement to sale dated 18.06.2007 in the year 2015. Moreover, the plaintiff has also not produced any document to show that plaintiff was ready and willing to pay the balance amount as per agreement to sale as factually the plaintiff has miserably failed to prove that plaintiff had financial capacity to pay any such huge amount. The fact also remains that plaintiff did not show his readiness and willingness to pay the balance amount of sale consideration. The readiness means the capacity of performing the contract which would include the financial position and willingness relates to the conduct of the plaintiff.

4.4 The Law is very clear that in a suit for specific performance of an agreement / contract the plaintiff will have to show his readiness and willingness to fulfill all the obligations that are mentioned in a particular agreement / writing/ contract. In the present case, when the plaintiff alleges that amount of Rs.4/- Lakhs is paid in advance and the balance amount was required to be paid, it is for the plaintiff to prove that the balance amount has been paid and/or he is in position to pay balance amount and the plaintiff has to prove that he has money or has alternative and / or necessary arrangement for getting the money paid. In the present case, the plaintiff has not adduced any evidence to show availability of funds to make payment in terms of the contract. The plaintiff had to plead that the plaintiff has sufficient funds and was in possession to raise funds to discharge his obligation under the contract and if the plaintiff does not have enough funds with him to discharge his obligation in terms of contract, which requires him

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to make money, the plaintiff would have specifically pleaded how money would be available to him. In the present case, from the record it can be clearly established that plaintiff did not have balance to pay the sale consideration, the plaintiff has also miserably failed to prove that as to when amount of Rs.4/- Lakhs was ever paid and amount of Rs.2/- Lakhs was paid after execution of sale. The plaintiff has also miserably failed to prove that he had capacity to pay and / or arrange amount and, therefore, plaintiff will not be entitled to specific agreement even if he proves the breach of contract by defendant or that defendant is not ready and willing to perform his obligation towards contract when the suit was instituted. Moreover, there is no explanation coming from the plaintiffs as to the delay in filing a suit for specific performance of an agreement entered in the in the year 2007 and the suit being filed in the year 2015. The explanation that the names of the legal representatives of deceased Kanjibhai not mutated in revenue record is not a ground that the plaintiff could not have filed suit till 2015, as he has has not denied the fact of having knowledge of the death of Kanjibhai and knowledge of the legal representatives of Kanjibhai and, therefore, the judgment and decree of the trial Court and the appellate Court are as per Law.

5. It is required to be noted that in Second Appeal, the scope is very limited and the Court cannot re-appreciate the evidence. In the case of Navaneethammal v. Arjuna Chetty . reported in 1996 (6) SCC 177, the Hon'ble Apex Court has observed as under:-

"11. This Court, time without number, pointed out that

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interference with the concurrent findings of the courts below by the High Court under Section 100 CPC must be avoided unless warranted by compelling reasons. In any case, the High Court is not expected to reappreciate the evidence just to replace the findings of the lower courts."

6. In the case of Jaichand (Dead) through Lrs and Other v. Sahnulal and Another reported in 2024 SCC OnLine SC 3864, the Hon'ble Apex Court has observed as under:-

"28. It is thus clear that under Section 100 CPC, the High Court cannot interfere with the findings of fact arrived at by the first Appellate Court which is the final Court of facts except in such cases where such findings were erroneous being contrary to the mandatory provisions of law, or its settled position on the basis of the pronouncement made by the Apex Court or based upon inadmissible evidence or without evidence."

7. Therefore, also the plaintiff has miserably failed to show that there is any substantial question of law involved in the present appeal and the substantial question of law which has been formulated in the memo of appeal are also not substantial question of law and on facts and the said factual aspect has well been considered by the Trial Court and the First Appellate Court.

8. Under the circumstances, this Second Appeal is devoid of any substantial question of law. Both the learned Trial Court and first appellate Court have rightly decided the issue between the parties in the right perspective and as stated above no substantial question of law arises in the present appeal. The plaintiffs have failed to prove their case before the learned trial Court as well as before the first appellate Court. This Court does not find any substance in the

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present Second Appeal as the same is devoid of any merit both on facts and law and the same is dismissed at admission stage. In view of dismissal of the main Appeal, the civil application would not survive and it is disposed of accordingly.

(SANJEEV J.THAKER,J)

MISHRA AMIT V.

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