Failure to prove the execution of the agreement of sale and readiness and willingness to perform the contract can lead to the dismissal of appeals.

K. SREEDHAR RAO, J.

( 1 ) THE first respondent and the subject matter in these appeals are different but the appellant is the same. The facts and the questions of law involved are similar. Common evidence is let-in in both the cases. Apart from the two appeals now under consideration, the appellant had filed RSA 206/97 and RSA 207/97. All these appeals arise out of the judgment and decree passed in O. S. No. 21/87 and O. S. No. 59/86 on the file of Munsiff Kustag.

( 2 ) FOR convenient discussion, the respondents hereinafter called plaintiffs and the appellant as defendant.

( 3 ) THE plaintiffs filed a suit for declaration of title and injunction, in alternative seek relief of possession of the suit property from the appellant/defendant. The plaintiffs claim to be the absolute owners of the suit property and allege that the defendant is illegally interfering with their possession and enjoyment. Hence, the suit.

( 4 ) THE defendant sets up a counter claim in both the suits seek relief of specific performance on the strength of agreement of sale Ex. D. 1 executed by the plaintiff in each of the suit. The Trial court dismissed the suit of the plaintiffs allowed the counter claim, directed execution of sale deed by receiving balance of consideration. The plaintiffs aggrieved by the judgments and decrees preferred RA 29/90 and RA 30/90 on the file of Civil Judge, Senior Division, Koppal. The appeals were allowed. The judgment and decree for specific performance granted in favour of the first respondent is set aside. The title of the plaintiffs is declared. The defendant is directed to deliver the possession of the property to the plaintiff. Aggrieved by the said judgments and decree, the defendant filed RSA 124/97 and RSA 206/97 as one set and RSA 123/97 and RSA 207/97 as another set.

( 5 ) THE four appeals filed by the appellant are in fact duplicated proceedings. All the four appeals came to be dismissed for non-prosecution. Civil Petitions were filed in respect of the present appeals and they came to be restored. The other two appeals RSA 206/97 and RSA 207/97 have not been restored to file because no civil petitions are filed for restoration of the said appeals. Any way the present two appeals filed comprehensively covers the challenge to declaration of title and relief of possession granted in favour of plaintiffs in each suit and also challenge the dismissal of the counter claim.

( 6 ) THE admission Judge has framed the common questions of law in RSA 124/97 and RSA 207/97 as follows: 1. Whether the first Appellate Court was justified in rejecting the counter claim made by the first defendant when the appeal filed by the plaintiff was only in regard to the dismissal of the suit and not in regard to grant of counter claim? 2. Whether the first Appellate Court was justified in reversing the decision of the Trial Court on the facts and circumstances of the case?

( 7 ) THE following are the common questions of law framed by the Admission Judge in RSA 123/97 and RSA 206/97: 1. Whether the first Appellate Court was justified in rejecting the counter claim made by the first defendant when the appeal filed by the plaintiff was only in regard to the dismissal of the suit and not in regard to grant of counter claim? 2. Whether the first Appellate Court was justified in reversing the decision of the Trial Court on the facts and circumstances of the case?

( 8 ) THE additional question of law is formulated as follows:

"whether the Appellate Court was in error in not formulating a point and considering the facts and evidence relating to the readiness and willing on the part of the defendant to perform his part of the contract. Without a finding thereof the Trial Court failed to consider the tenability of claim for specific performance under Section 20 of the Specific Relief Act? For not doing so, whether it warrants an order of remand?"

( 9 ) WHEN the defendant seeks relief of specific performance implicitly admits the title of the plai

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