The judgment established the discretionary nature of specific performance and the need for equitable circumstances, considering the conduct of the parties and their interests under the contract.

(Delivered on 2nd December, 2009)

Per Dhirendra Mishra, J

1. This first appeal under Section 96 of the Code of Civil Procedure is directed against the judgment and decree dated 29th November, 2002 passed in Civil Suit No.35-A/01 whereby the learned II Additional District Judge, Baloda Bazar has decreed the suit for specific performance of contract of original plaintiff Rajkumar Bajpai.

2. Respondents 1(a), 1(b) & 1(c) are legal representative of the plaintiff Rajkumar Bajpai, who died during pendency of the appeal. (Parties shall hereinafter be referred to as per their description before the trial Court.)

3. The plaintiff filed a suit for specific performance of contract against defendant-Ramakant Dixit and his brother Chandrakant- defendant No.2 with the averments that they entered into an agreement of sale with respect to their undivided property with house bearing Plot No.39 (piece), Sheet No.14 C in Village-Baloda Bazar, P.H.No.77/A/11/A, Rani Mandal, Tahsil-Baloda Bazar (1/2 share of both the share holders i.e. 1/4th part of the total land of size 24 + x 110 ft. = 2695 sq.ft. approximately), situated on the main road, Baloda Bazar (hereinafter referred to as "the first property"), which would fall in share of defendant No.1 after partition.

4. Case of the plaintiff, in brief, is that defendants No. 1 & 2 are brothers. The plaintiff and defendants entered into an agreement on 1.10.1998 for sale of defendant No.1's share of plot area 2695 sq.ft. with house, which was recorded in the name of defendant No.1 and his partner Bulakidas Mundra at the time of agreement, for a consideration of Rs.7 lacs and received a sum of Rs.3 lacs in advance. At the time agreement, the property was undivided. As per conditions of agreement, boundaries were to be fixed after partition and tenants of the defendants, who were in possession, were to be evicted by 30th January, 2001. It was further agreed that defendant No.1 shall get his name mutated in the revenue papers after registered partition, and they shall also get the lease of the plot renewed by 30th January, 2001, and after fulfilling the above conditions, they shall execute registered sale deed in favour of the plaintiff after obtaining balance of consideration of Rs.4 lacs. In case, the defendants fail to fulfill the aforesaid conditions by 30th January, 2001, in the alternative, they shall execute sale deed of another plot measuring 100x100=10000 sq.ft. from their land bearing Khasra No.1149/2, area 0.142 (hereinafter referred to as "the second property") at the rate of Rs. 50/- per sq.ft. after obtaining remaining consideration of Rs.2 lacs in the alternative.

5. It was further averred that in that contingency, it will be the option of the plaintiff to purchase either of the two properties and the defendants shall be bound to execute the sale deed of either of the two properties at the option of the plaintiff. Since the defendants failed to effect partition of the first agreed land by registered partition deed between Bulakidas Mundra and defendants No. 1 & 2, and were also not able to get the land mutated in the name of defendant No.1 and renew the lease despite repeated reminders and written notice and the first property is still occupied by the tenants, a suit for specific performance of contract with respect to the second property was filed. It was pleaded that though the plaintiff expressed his readiness and willingness to pay Rs.2 lacs and asked the defendants to execute the sale deed after receiving remaining consideration of Rs.2 lacs, the plaintiff also served the defendants with a notice dated 4.8.2000 through their advocate, however, defendant No.1 vide his reply dated 5.2.2001 denied to execute the sale deed.

6. Defendants No. 1 & 2, in their written statement, denied the averments in the plaint. They specifically denied that there was any stipulation in the agreement that the partition was to be effected through registered sale deed and that defendant No.1 was required