IMPORTANT POINT
Agreement to Sell – If plaintiff, in a suit for specific performance is required to prove that he was always ready and willing to perform his part of contract, it is necessary for him to step into witness box and depose said fact and subject himself to cross-examination on that issue – Plaintiff cannot examine in his place, his attorney holder.

The appellant/plaintiff has called in question the judgment rendered by the High Court of Madhya Pradesh dated 01.09.2016 in First Appeal No. 340 of 2003 allowing the appeal preferred by the respondent nos. 1 to 3/defendant nos. 12 to 14 thereby setting aside the judgment and decree dated 25.04.2003 passed by the Trial Court in Civil Suit No. 38-A of 2000.

2. The facts of the case briefly stated, are that the appellant/plaintiff entered into an agreement to sell with respondent no. 4 (acting as Power of Attorney holder of respondents/defendant nos. 2 to 11) for purchase of land admeasuring 145.60 acres bearing Khasra No. 214 to 233 (except Khasra No. 225) and Khasra Nos. 67/1 to 212 situated at village Khirsau, Tehsil Sihora, District Jabalpur, M.P for sale consideration at the rate of Rs.3,000/- per acre, totalling Rs.4,41,000/-. The appellant/plaintiff paid earnest money of Rs.41,000/- on the date of agreement to sell and the balance amount was to be paid on the date of registration of the sale deed which was to be done within six months from the date of agreement.

2.1 On 22.05.1996, the appellant/plaintiff paid an additional amount of Rs.20,000/- for which an endorsement was made on the backside of the agreement. Further amount of Rs.40,000/- was paid on 30.06.1996 which too was endorsed on the backside of the agreement. On 26.12.1996, another agreement was executed between the appellant/plaintiff and the Power of Attorney Holder extending the execution of the sale deed till 31.03.1997, remaining terms being the same. The date was further extended to 31.05.1997 vide entry made in the subsequent agreement dated 26.12.1996. Another entry was made on 23.04.1997 mentioning that the agreement to sell shall come to an end on 31.05.1997.

2.2 However, the respondent/defendant no. 1 being the Power of Attorney Holder of respondents/defendant nos. 2 to 11 executed the sale deed of the suit land on 14.05.1997 in favour of respondent nos. 1 to 3/defendant nos. 12 to 14 even though the said respondents were aware of the earlier sale agreement and its extensions. The sale deed dated 14.05.1997 was executed behind the back of the appellant/plaintiff which came to his notice subsequently on which a legal notice was sent on 30.05.1997 calling upon the respondents/defendant nos. 1 to 11 to be present in the Registrar’s office at Sihora on 31.05.1997 to carry out the formalities for execution of the sale deed. Despite receipt of this notice, the respondents/defendant nos. 1 to 11 did not attend the Registrar Office. On 31.05.1997, the appellant/plaintiff was informed by the sub Registrar that the suit land has been sold in favour of respondent nos. 1 to 3/defendant nos. 12 to 14.

2.3 According to the appellant/plaintiff, he is in possession of the suit land, therefore, he objected to the application dated 20.08.1997 moved by the respondents/defendant nos. 12 to 14 for mutation of their names. The Gram Panchayat assured the appellant/plaintiff in its meeting dated 06.12.1997 that defendant nos. 12 to 14 will execute a sale deed in favour of the appellant/plaintiff, therefore, legal action was not initiated. The present suit was filed on 19.06.2000.

2.4 The respondents/defendants in joint written statement averred that the suit land is in possession of the respondent nos. 1 to 3/defendant nos. 12 to 14 being the bona fide purchasers for value paid vide registered sale deed dated 14.05.1997. It was pleaded that the respondents/defendants were not aware of any agreement to sell between the appellant/plaintiff and respondent nos. 1 to 11 and that the suit is barred by limitation. It was also pleaded that time was the essence of the contract and the sale deed was to be executed within six months from the date of the agreement and that the appellant/plaintiff did not have sufficient funds with him for payment of the sale consideration and the advance amount of Rs.40,000/- was also returned to the appellant/plaintiff through one Subhash Chandra Bansal. Th