ORDER :

1. A suit for specific performance was decreed by the trial court, which was dismissed by the High Court in appeal, reversing the judgment and decree. The suit was filed by the plaintiff, the appellant herein, alleging that an agreement was entered into with the 1st defendant, the 2nd respondent herein, for purchase of two properties which are more fully described as Item No.1 and Item No.2. Admittedly, Item No.2 belonged to a third party and Item No.1 was owned by the 2nd respondent. The 2nd respondent made the plaintiff believe that he was in possession of Item No.2 property which he had agreed to purchase from its real owner. The 1st respondent who was the 2nd defendant in the suit later purchased both Item No.1 and 2 and made valuable constructions thereon. The trial court based on the evidence, found that the plaintiff was always ready and willing to pay the balance consideration and time was never the essence of contract since it stood extended from time to time till 12.02.1985. The trial court rejected the contention raised regarding material alteration in the agreement and decreed the suit.

2. The High Court, however, on a reading of the basic document produced, the sale agreement, found that there is clear alteration in so far as the recitals with respect to Item No.2, which was also written in a different ink. Relying on Seth Loonkaran Sethiya v. Mr. Ivan E. John and Ors. , (1977) 1 SCC 379, the High Court found material alteration and reversed the decree of the trial court.

3. Mr. G. Sivabalamurugan, learned counsel appearing for the appellant argued that on 15.07.1984, an agreement was entered into for sale of 2.40 acres, for a total sale consideration of Rs.56,000/- and an advance of Rs.1,000/- was paid. The agreement referred to both Item Nos.1 and 2, the former belonging to the 1st defendant and the later belonging to the second. The period within which the sale deed was to be executed was three months. The plaintiff was always ready and willing to pay the balance sale consideration and on 11.10.1984, within the three month period, a notice was issued to the 1st defendant, expressing the readiness and willingness to pay the balance consideration and requiring the execution of the sale deed. The 1st defendant replied by a letter dated 22.01.1985, demanding the balance amount with 18% interest. On 11.02.1985, the 1st defendant sold Item No.2 to 2nd defendant and later on, a demand draft of Rs.1,000/- was sent, purportedly in refund of the advance which was returned by the plaintiff. Subsequently, on 09.03.1985 again, 1st defendant sold Item No.1 to 2nd defendant, before which the suit for specific performance was fled on 01.03.1985.

4. The learned counsel read over to us the judgment of the trial court and argued that the High Court erred in reversing the findings and the judgment and decree passed by the trial court. It is pointed out that there was clear evidence regarding the agreement and having established the readiness and willingness, the trial court had rightly passed the decree, especially when there was no evidence led on behalf of the 1st defendant. The alteration was never urged before the trial court by the 1st defendant nor was there any deposition to that extent. An alteration could not have been found by the High Court merely on looking at the documents and it should have been properly analyzed with an expert as provided under Section 73 of the Indian EVIDENCE ACT , 1872.

5. Mr. D. Ramakrishna Reddy learned counsel for the respondents, on the other hand points out that the 2nd defendant was always in possession of the property. The interpolation found by the High Court was on a mere reading of the documents, which is permissible, and Section 73 has no application. The High Court observed that the interpolation is so blatant, the agreement having been written in two different inks, there is no cause for interference to the judgment of the High Court.

6. Trite is the principle that the plainti