IMPORTANT POINT
Appeal cannot be filed against a dead person.
A person not ready and willing and snot asserting his right for six years cannot claim specific performance of an agreement.

ORDER :

1. Leave granted.

2. Heard learned counsel for the parties.

3. The defendant has come up in the appeal aggrieved by Judgment passed by the High Court of Judicature for Rajasthan Bench at Jaipur. The High Court has allowed the appeal and set aside the judgment passed by the first appellate court and restored the decree passed by the trial court decreeing the suit.

4. The facts lies in the narrow compass :

The plaintiff Ram Rattan, an advocate filed a suit claiming specific performance of agreement to sell dated 14.1.1977 said to have been entered into for a consideration of Rs. 3,000/-, it was averred that earnest money of Rs. 2,500 was paid to the deceased Motilal, father of defendant-Kalla, who was admittedly ailing seriously at the relevant point of time and required the money for his treatment. The plaintiff had averred that he approached the defendant-Kalla for execution of the sale deed as such suit was filed in March, 1983. It appears that order of status quo was passed however defendant-Kalla had sold the suit property in favour of Bhagirath in the year 1986 which appears to be in violation of the order of injunction passed by the trial court.

5. The defendant had not taken the stand in his written statement that no such agreement had been entered into and the possession of the land had not been handed over to the plaintiff. Defendant was in possession of the land and enjoying it. Motilal father of the defendant-Kalla died seven years ago two days before the Akhateej in Baisakh month. Motilal was not in the need of money, the agreement is fabricated one and the plaintiff wanted to grab the valuable property by way of filing suit.

6. The defendant no. 2 in his written statement also denied the factum of the execution of the agreement and contented that it was the outcome of forgery. He is a bona-fide purchaser. Plaintiff had not initiated any proceedings for cancellation of the sale deed.

7. The trial court decreed the suit vide judgment and decree dated 5.5.1994. The first appellate court i.e. court of Additional District Judge allowed the appeal vide judgment and decree dated 17.7.1995 and dismissed the suit. The First Appellate Court found that the suit was filed after six years hence it could not be said that the plaintiff was ready and willing to execute or perform his part of the agreement. The conduct of the plaintiff was adversely commented upon.

8. The plaintiff aggrieved by the judgment and decree passed by the first appellate court preferred the second appeal the same has been allowed by the impugned judgment and order. Aggrieved thereby the instant appeal has been preferred before us.

9. Sh. Ajay Choudhary, learned counsel appearing on behalf of the appellant submitted that the agreement was shrouded in mystery. It was the outcome of forgery.

10. There was no reason for the plaintiff to keep quite for a period of six years of death of Motilal and thereafter to file a suit. The first appellate court has rightly dismissed the suit. The High Court has illegally reversed its judgment and decree, it could not be said that the plaintiff was ready and willing continuously to perform his part of contract which is sine qua non for decreeing the suit for specific performance of the agreement to sell. Hence the judgment and decree passed by the appellate court deserves to be restored in the peculiar facts and circumstances. It was also submitted that land approx. eight bighas could not have been sold for a paltry sum of Rs. 3,000/- in the year 1977, later on it was sold in the year 1986 for a sum of Rs. 31,200/-.

11. Mr. Sushil Kumar Jain, learned senior counsel appearing on behalf of respondent has submitted that the trial court and the High Court are justified in decreeing the suit. The appellant has no right to retain the land as he is a purchaser in violation of order of injunction passed by the trial court thus no legal right can be said to be accrued to him on the basis of the sale deed executed in the year 1986. The