Shri A.H. Joshi, J.- This is a first appeal by unsuccessful plaintiffs as their suit for specific performance of agreement to sell and develop, executed in their favour by the defendants was dismissed.

2. The defendants own a plot admeasuring 900 sq.mtrs. and a house thereon which is their ancestral property and defendants claim to the said plot was confirmed in the inventory proceedings No. 18927/76.

3. Admittedly :-

(a) agreement of sale cum development was executed on 2.5.1986.

(b) Domingos Leao Furtado and Rosa Piedade Babista were in physical possession of the house standing on the said plot.

(c) All other conditions expressly incorporated in the agreement are not in dispute.

(d) Property was to be developed after plaintiffs would be put in possession of flats as promised.

4. What is in dispute is :

Whether the plaintiffs had to take the property for development with encumbrance i.e. the possession of family members of brother of defendant No. 1 and the plaintiffs had to get them evicted.

5. Plaintiffs have pleaded in the plaint in regard to the performance on their part as follows :

"7. The defendants represented to the plaintiff No. 1 and its partners that they had obtained orders for the eviction of the said occupants of the house standing in the said property and handed over to the plaintiff No. 3 copies of certificates from Inventario No. 18927/76, copy of judgment passed by Panaji Bench of High Court in M.C.A. No. 14 of 1986 in Civil Revision Application No. 36 of 1985, besides copies of title deed.

8 ................ to 12 ..............

13. The plaintiff No.3 kept on approaching the defendants on a number of occasions requesting them to hand over the possession of the house standing in the said property so that he could go ahead with the project. The defendants always kept on promising that they would hand over the possession but failed to do so.

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19. The plaintiffs repeatedly have approached the defendants, particularly the defendant No. 1 with requests that they expedite the handing over of the possession of the said house. Although the defendants have always been promising to do so, they have not handed over the possession till date.

20...................

21. The plaintiffs state that they have not fulfilled all their obligations under the said agreement and that the agreement has not been complied with merely on account of the failure on the part of the defendants to comply with their part of the agreement, namely the handing over of the possession of the house standing in the said property.

22. The plaintiffs state that they are ready and willing to perform all their obligations under the said agreement and that they will do so within the stipulated time limits from the date when the defendants hand over possession of the said house."

(quoted from pages 45 to 47 and page 48 of appeal paper book)

6. Defendants' stand is tacitly admitting contradictory on the point of defendant No. l's brother's family being in actual possession, while replying paragraph 10 of the plaint. Relevant paragraphs of written statement, namely, paragraph No. 3 and 6 are reproduced below for ready reference :-

3. The contents of paragraphs 5 and 6 are believed to be correct except for the area of the said property and the fact that the afore-stated Domingos Furtado and Rosa Piedade Batista are not residing therein as stated. The aforementioned persons have been evicted from the house by an order of this Hon'ble High Court.

4................. 5.................

6. With reference to the contents of paragraph 10 of the contents as set out therein are denied as being false and misleading. The possession of the said building was to be taken over by the plaintiffs as per the agreement with all the inherent encumbrance of which the plaintiff was fully aware. The plaintiff was unable to carry out his part of the agreement as represented by the plaintiff and due to which there were several other problems which wer