Partha Sarthy, J.—

Re.: I.A. no. 4 of 2022

Heard learned counsel for the appellants and learned counsel for the respondents.

2. The instant application has been filed under Order XXXIX Rules 1 and 2 and section 151 of the Code of Civil Procedure praying therein to restrain the substituted respondents 1(a)(i) to 1(a)(x) from making any new construction in the suit land during pendency of this appeal. Further prayer is made to restrain the respondents from demolishing the suit house and making any new construction and to maintain status quo during pendency of the appeal.

3. The plaintiff -appellant filed title suit for specific performance of contract which was registered in the learned trial court as Title Suit no. 55 of 1967/102 of 1984. This suit along with two others having been dismissed by common judgment dated 23.9.1986 passed by the learned 2nd Additional Sub Judge, Bhojpur, Buxar, the instant appeal has been preferred.

4. The plaintiff’s case is that an agreement for sale was entered into on 27.2.1967 between Raghunath Prasad Patwa and the plaintiff for sale of the suit property for a total consideration of Rs. 13,500/- out of which Rs. 1500/- was given in advance as earnest amount. It is further case of the plaintiff that Raghunath Prasad Patwa had executed a mortgage deed in favour of the plaintiff’s husband Bindhyachal Prasad on 8.2.1967 for Rs. 10,000/- and this amount of Rs. 10,000/- was also included in the agreement for sale. It was agreed between the parties that the sale deed would be executed after receiving the balance amount of Rs. 2000/- with respect to the land described in schedule I of the plaint. It is the case of the plaintiff that inspite of several reminders, he refused to execute the sale deed. An Advocate notice was sent to Raghunath Prasad Patwa on 6.7.1967. On coming to know about one Kamata Prasad also being interested in the same area she got an Advocates notice sent to him also. Both Raghunath Prasad Patwa and Kamata Prasad filed their written statement and contested the suit.

5. It may be mentioned here that the other suit ie Title Suit no. 108 of 1968 was filed by one Kamata Prasad Saraf wherein his case was that the defendant no. 1 Raghunath Prasad Patwa had executed an agreement for sale in his favour on 11.2.1967, had received an advance of Rs. 700/- and the said Raghunath Prasad Patwa had agreed to execute the sale deed for Rs. 21,500/- within a period of six months. The third case ie Title Suit no. 52 of 1969 was filed by Ramrup Sonar against Raghunath Prasad Patwa to the effect that Raghunath Prasad Patwa had executed an agreement for sale for a piece of land (2 ½ feet in width from north to south and 54 feet in length east to west). This agreement to sale was executed on 22.10.1966 for which Raghunath Prasad Patwa had taken an advance of Rs. 600/- out of the total consideration amount settled at Rs. 2500/- and had agreed to execute the sale deed within six months.

6. It is submitted by learned counsel appearing for the appellants that from perusal of the judgment impugned and specially paragraph no. 1 thereof it would transpire that the learned trial court has committed an error in its judgment in dismissing the suit on the grounds of the plaint suffering from non joinder of necessary party, failure of the plaintiff to prove her readiness to perform her part of the contract which tantamounts to non compliance of section 16(c) of the Specific Relief Act, 1963 and the expert witness not supporting the genuineness of the agreement for sale. It was submitted by learned counsel for the appellants that all the points decided by the learned trial court has been challenged by the plaintiff – appellant in the instant appeal. Learned counsel for the appellant in support of his contention has relied on the judgments in the case of Brajendra Nath Ghosh and others vs. Sm Kashi Bai and others [AIR 1946 Patna 177], Dharam Nath Ojha & ors. vs. Raghunath Ojha [2001(2) PLJR 268] and Maharwal Khewaji Trust (Re