The appellate court must respect trial court findings unless clear errors exist, particularly regarding the existence and terms of contractual agreements and the parties' readiness to perform.

JUDGMENT :

Ashok Kumar Pandey, J.

Heard learned counsel for the plaintiff/appellant. No one appears from the side of the defendant/respondent to argue this case.

2. Plaintiff/appellant has filed this appeal for setting aside the judgment and decree dated 24.11.1998 and 01.12.1998 respectively (hereinafter to be referred as the impugned judgment and decree) passed by the District Judge, Katihar in Title Appeal No. 08 of 1996 wherein and whereunder the learned first appellate court set aside the judgment and decree dated 14.02.1996 and 29.02.1996 respectively passed by Sub-Judge 1^st, Katihar in Title Suit No. 25 of 1989.

Submission on behalf of the plaintiff/appellant

3. Learned counsel for the plaintiff/appellant has submitted that the judgment and decree passed by the learned appellate court is against the materials on the record of the case.Learned first appellate court has erred in law in misconstructing the material documentary exhibits, such as, baynama, labadibaynama etc. and oral evidence. The impugned judgment is based on a misreading of material evidences and on non-consideration of the important material documents and evidences. There is an apparent admitted documentary evidence baynama (Ext-2) as well as consistent unrebutted oral evidence on record upon which the trial court has relied to show that the defendant/respondent has received advance of Rs.25,000/- from the plaintiff/appellant. The baynama was executed for selling the house situated in outskirt of Katihar town. There was a clear finding of the trial court as well as it is the finding of the first appellate court that the defendant/respondent has received the amount of Rs.25,000/- from the plaintiff/appellant and in lieu thereof given the original document of labadinama of suit property to the plaintiff/appellant and has also put the signature on the baynama; Exts-A, A/1 and A/2 by the defendant/respondent and his son.

4. That the learned first appellate court has erred in appreciating the facts as well as a wrong application of law has been made. There has been serious misreading of the appellant’s/plaintiff’s evidence on record by learned appellate court. It has further been submitted by the learned counsel for the appellant that the requirement of the law in a case of suit of specific performance of contract, admittedly shows that the plaintiff/appellant was always ready and willing and is still ready and willing to perform his part of the contract i.e. to pay the balance consideration money to the defendant/respondent to get the proper sale deeds of the suit property executed. The learned first appellate court has first disbelieved the story of the defendant/respondent that he has returned Rs.12,000/- on different dates to the plaintiff/appellant out of Rs.25,000/- advance taken by the defendant/respondent and accordingly directed the defendant/respondent to pay back Rs.25,000/- with interest @12 % per annum within 45 days from the date of the order. As such, it has been prayed to set aside the impugned judgment and decree passed by the first appellate court.

5. Plaintiff/appellant had filed the Title Suit No. 25 of 1989 in the court of 1st Sub-Judge, Katihar for the specific performance of contract. The plaintiff’s/appellant’s case in brief is that the defendant/respondent was in need of money for his business. He approached the plaintiff/appellant and proposed to sell the suit land measuring 4 kattha 10 dhurs and 14 dhurkis bearing plot no. 13, khata no. 100 situated at mauza Bangana within Katihar town Ward no. 19 within Katihar municipality, Disctrict-Katihar along with pucca double storeyed building standing thereon. The plaintiff/appellant agreed to