The burden of proof lies with the plaintiff to establish the passing of consideration and readiness and willingness to perform the contract in a specific performance case.

JUDGMENT

P.N.Desai, J. - This appeal arise out of the Judgment and decree in R.A.No.247/2004 passed by Presiding Officer, Fast Track Court-VI Gulbaraga wherein, the First Appellate Court has allowed the appeal and set-aside the judgment and decree passed by the trial Court in O.S.No.213/1995 dated: 13-03-1998, consequently the suit of the plaintiff is dismissed before the trial court.

2. This appeal was filed by the appellant is the plaintiff before the trial court and the respondents are the defendants before the trial court. The defendant Nos.2 & 4 died during pendency of proceeding and their L.Rs. were on record.

3. For the purpose of clarity and convenience and to avoid repetition of discussion, the parties are referred in this Judgment as per their respective ranks before the Trial Court.

4. The appellant/plaintiff has filed suit before the trial court for specific performance of contract and injunction against the defendants. The brief contention of the plaintiff is that the plot bearing Nos.7, 8 & 9 situated in survey No.43/1 of Badepur Gulbarga shown in the layout plan approved by the Mandal panchayat, Taj Sultanpur are situated within the boundaries as shown in paragraph No.2 of the plaint. The defendant was the owner of land bearing survey No.43/1 situated at Badepur Taluka & Dist: Gulbarga. He converted the agriculture land into Non Agriculture land as per the Order of Special Deputy Commissioner Gulbarga in file No.REV/ LND. NA/76/82-83 dated: 27-07-1983. Thereafter he prepared a layout in the said land and made number of plot of different sizes and in due course got the layout approved by the Mandal Panchayat Taj Sultanpur on 10-04-1991. But before the layout was got approved to the defendant agreed to sell three plots described in paragraph No.2 of the plaint to the plaintiff as per the agreement for sale entered into between the plaintiff and defendant. The defendant had agreed to sell each plot for Rs.10,000/- and those plots are measuring 30 feet x 40 feet as told by the defendant. Accordingly on 06-03-1990 there was a sale agreement between the plaintiff and defendant and plaintiff paid the entire sale consideration amount of Rs.30,000/- to the defendant. The defendant having received the consideration amount executed an agreement for sale in favour of the plaintiff and in part performance of that agreement of sale, the defendant delivered the actual possession of these plots. The plaintiff is in possession of those suit plot as purchaser from the date of that agreement till today.

It is further case of the plaintiff that, defendant executed a separate receipt for having received Rs.30,000/-. When the plaintiff enquired with the defendant after the agreement, the defendant told that he has submitted layout plan for approval and it has not been approved. The defendant went on postponing the same. Ultimately on 15-02-1993 the plaintiff issued legal notice to the defendant and the said notice returned on the ground that the defendant was not found. The plaintiff on 27-02-1993 got issued another notice, but the defendant refused to received it. Then the plaintiff personally met the defendant and requested to execute the sale deed, again the defendant told that layout plan was not approved so he could not execute the sale deed, for that reason the defendant refused to receive the notice issued by the plaintiff and the defendant promised to execute the sale deed immediately after the layout was approved. In the month of March 1995 the plaintiff came to know that the layout had been approved on 16-04-1991 itself and as per the layout the plots agreed to be sold and delivered to the plaintiff are plot Nos.7, 8 and 9 as described in paragraph No.2 of the plaint. So the plaintiff got issued another legal notice on 29-03-1995 requesting the defendant to execute registered sale deed in respect of suit plot within ten days from the date of receipt of the notice. The defendant received the said notice on 31-03-1995 and did