JUDGMENT :

S.M. MODAK, J.

1. Plaintiff is vendor/owner of the suit property whereas defendants are the purchasers. They are in possession of the suit property. Plaintiff's suit for recovery of possession was decreed by the trial court. There were the issue of defendants in possession towards part performance and whether the agreement for sale had become unenforceable (on account of non-compliance of the provisions of Income Tax Act from the side of vendor). The issue of the part performance was answered in favour of the defendants. But the suit was decreed by the trial court as the agreement for sale has become non-enforceable. When the defendants preferred first appeal, the findings on part performance (in favour of defendants) were confirmed. The first appellate court come reversed the findings on “whether the agreement had become non-enforceable” and hence, the suit cannot be dismissed. Now, this second appeal is preferred by the plaintiff. It was admitted on the following substantial questions of law:

(1) Whether the appellate Court was justified in extending the protection of Section 53-A of the Transfer of Property Act to the respondents when they never showed their willingness and readiness to perform their part of the contract?

(2) Whether the judgment of the Appellate Court is sustainable in view of the impossibility of perfecting title to the suit plot in favour of the respondents?

2. The judgment dated 11th June, 2004 challenged before this court is delivered by the Court of Ad-hoc Additional District Judge, Nagpur. By the said judgment, the plaintiff is aggrieved because the appeal filed by the defendants was allowed by the first Appellate Court. The First Appellate Court reversed the judgment of the trial Court and dismissed the suit of the plaintiff. It be will be material to consider the facts discovered from the pleadings and evidence.

FACTS

3. The said suit was filed for recovery of possession from two defendants and for declaration that the termination of the agreement for sale at the instance of plaintiff is legal. The plaintiff is the owner of the suit land bearing Plot No. 6 from Khasra No. 27/1 admeasuring 465 sq. mtrs. situated at Nagpur (hereinafter referred to as the ‘suit plot’). The said plot was owned by Pragati Housing Cooperative Society Ltd. of which the plaintiff is a member.

4. The dispute in between the parties is not about execution of the said agreement, but the dispute pertains to fulfillment of the terms and conditions of the said agreement. The agreement was of the year 1982 but the suit was filed in 1994 inasmuch as 12 years afterwards.

5. Neither the plaintiff filed the suit containing similar reliefs prior to 1994 nor the defendants filed the suit for specific performance at all. The plaintiff’s version is based upon breach of terms of the agreement for sale by the defendants.

6. The breaches are as follows:

(a) Not paying full consideration of Rs. 1,00,380/- inspite of long period.

(b) Not obtaining following NOC/permissions:

(i) Income tax clearance certificate.

(ii) NOC from Pragati Society.

(iii) Clearance from U.L.C. authorities.

(c) Erecting a structure (which is being used for running school) without the permission of the local authorities and without her own permission.

Whereas, the defendants’ version is:

(a) Payment of entire consideration of Rs. 1,00,380/-.

(b) Responsibility to obtain above said NOC/permission falls on the shoulder of plaintiff and infact she has failed and hence estopped from blaming the defendants.

7. Other area of dispute is about “handing over possession of the suit plot by the plaintiff to the defendants.” The plaintiff’s claim is that the defendants took forcible possession. Whereas, both the defendants’ claim that possession was delivered voluntarily by the plaintiff herself on the date of execution of agreement i.e. 30th December, 1982. On this background in a suit