MUNGESHWAR SAHOO. J.:–The plaintiffs have filed this second appeal against the judgment and decree of the lower appellate court dated 9.7.1990 passed by the 4th Additional District Judge, Aurangabad in Title Appeal No. 65 of 1983/ 10 of 1987 reversing the judgment and decree of the trial court dated 29.8.1983 passed by Sri R.V. Ram, 2nd Additional Subordinate Judge, Aurangabad in Title Suit No. 114 of 1978/ 38 of 1982.

2. The plaintiffs appellants filed the aforesaid title suit for declaration that the plaintiffs have acquired valid right, title and interest in the suit land on the basis of the registered sale deed dated 25.4.1977 executed by defendant No.1 in favour of the plaintiffs and also prayed for recovery of possession. The plaintiffs further prayed for a direction to the defendants to perform the ta khubzul badlain and in case the sale deed has been withdrawn by the defendants the same may be handed-over to the plaintiffs. The plaintiffs also claimed that they are ready to pay balance consideration money to the defendant No.1 if the court directs so and prayed for permanent injunction.

3. The plaintiffs claimed the aforesaid relief on the facts inter alia that defendant No.1 executed a sale deed on 25.4.1977 for a consideration of Rs.10000/- in favour of the plaintiffs. Rs.1000/- was paid as earnest money and it was agreed that the rest consideration amount would be paid at the time of exchange of equivalent i.e. ta khubzul badlain. Subsequently, further Rs.1000/- was paid to the defendant on 6.5.1977. The plaintiffs have been always willing and ready and still ready to pay the balance consideration amount but the defendant is avoiding to exchange the ta khubzul badlain. On 27.9.1977 the plaintiffs sent notice through his counsel and the defendants expressed his willingness to accept the balance of consideration money but deliberately he omitted to mention that he has received the subsequent payment of Rs.1000/-. Reply to the notice was sent to the effect that the plaintiffs are ready to pay balance of Rs.8000/-. Subsequently, on 25.11.1977 again Rs.6000/- out of Rs.8000/- was paid.

4. The defendant No.1 filed written statement alleging that only Rs.1000/- was paid and the intention of the parties was that title would pass only after the payment of the full consideration amount which was to be performed by the plaintiffs and this fact is also mentioned in the sale deed. The plaintiffs never paid the balance consideration of Rs.9000/- and obtained the registered ticket within 15 days. The defendants were ever willing to receive the balance consideration amount but the plaintiffs defaulted in payment. The defendants also denied to have received subsequent payment of Rs.1000/- and then Rs.6000/-. The defendants cancelled the sale deed by registered cancellation deed.

5. After trial the trial court held that on the basis of sale deed title was created in favour of the plaintiffs therefore, the deed of cancellation is not in accordance with the law and also held that plaintiffs were ready and willing to perform their part of the contract and decreed the suit. However, the trial court categorically recorded a finding that balance consideration amount was not paid by the plaintiffs to the defendants i.e. Rs. 7000/-. The defendant thereafter filed appeal. The lower appellate court set aside the trial court judgment recording a finding that the plaintiffs respondents were not willing to pay balance consideration amount and, therefore, the title did not pass to the plaintiffs.

6. At the time of admission following substantial question of law were formulated on 26.2.1993.

“(i) As to whether the findings of the court of appeal below is beyond the scope of the pleadings?

(ii) As to whether the judgment of the court of appeal below is vitiated because there is no finding that whether the plaintiffs were entitled for the claim of the specific performance of the contract?”

7. At the time of hearing of the second appeal the learned counsel f

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