The suit for specific performance at the instance of any one party is maintainable, and the legal provisions of the Specific Relief Act, Transfer of Property Act, Civil Procedure Code, and Indian Evidence Act are crucial in determining the maintainability and burden of proof in specific performance suits.

JUDGMENT :

1. This Second Appeal arises out of judgment and order passed by the learned District Judge, Latur in RCA No. 42 of 1995, allowing an appeal thereby setting aside the judgment and decree of the trial Court and substituting the same. The appellants are the original defendants in a suit for specific performance of contract. The trial Court while partly decreeing the suit, directed appellants/defendants to refund an earnest money. Whereas, the appellate Court by way if impugned judgment directed appellants/defendants to execute a sale deed of the suit land. The appellants/original defendants are thus before this Court. The parties are hereinafter referred to as per their original status in the suit.

2. The facts in short are that the plaintiff had filed a suit for specific performance of contract and for perpetual injunction. All the appellants are legal representatives of deceased Devidas, who was occupier of the land block No. 9, to the extent of 10 Acres 31 Guntha from North-East corner, situated at village Murud, Akola, Taluka Latur. The defendant was not personally cultivating the suit land, it was given to the plaintiff for cultivation on crop share basis, since 1979. For the family necessity i.e. for performance of marriage of daughter defendant entered into an agreement to sale the land with the plaintiff and original defendant No. 2 for consideration of Rs. Rs. 30,000/-. An agreement took place in the month of October, 1988. An agreement was oral agreement entered into in the presence of one Subhash Gurling Belapure and Bhagwan Vithaldas Bhutada. Since the land was an Inam land, it was the defendant, who was required to obtain permission for sale from Competent Authority. On the date of agreement the plaintiff and defendant No. 2 paid Rs. 20,000/- to the defendant No. 1 and Rs. 5,000/- were to be paid at the time of execution of agreement by the plaintiff. Lateron, a joint affidavit was executed on 11.10.1982 for obtaining permission of the suit land. An amount of Rs. 25,000/- was paid till that time.

3. Pursuant to the application for permission, the Competent Authority even granted permission to the defendant to sale land by order dated 14.10.1990. The Plaintiff therefore, requested defendant to execute the sale deed by accepting remaining amount of Rs. 5,000/-. However, he avoided to execute the sale deed, therefore, a notice came to be issued to him through an Advocate on 17.10.1990. The defendant even refused to accept the notice. On this background the suit was instituted.

4. It is the case of the defendant that he was cultivating the land till 1978 personally. Defendant No. 1 decided to shift to Latur in December, 1978. In December, 1978 he orally contracted to sale his share to the plaintiff and original defendant No. 2 jointly for an amount of Rs. 30,000/- by obtaining earnest amount of Rs. 15,000/-. The plaintiff and defendant No. 2 were put in possession by the defendant. The possession is thus permissive possession on the basis of an agreement to sale. It is stated that there was a need of money for the purpose of family necessity and the marriage of his daughter. It is thus the case that the land was to be purchased by the plaintiff and defendant No. 2 jointly and not only by the plaintiff. However, since defendant No. 2 has not come forward for the sale deed, the sale deed could not be executed. It is further defence that when an agreement was with the plaintiff and defendant No. 2, the plaintiff cannot claim performance without joining defendant No. 2 and if the performance is to be sought, it should be by all the parties to the agreement. It needs to be noted that during pendency of the suit, defendant No. 2 filed an application for transposition as plaintiff. The said application came to be allowed and defendant No. 2 came to be transposed as plaintiff No. 2.

5. The trial Court accepted the case of the defendant that the plaintiff alone cannot seek specific performance when defendant No. 2 was not