Plaintiff must prove continuous readiness and willingness to perform contract for specific performance; mere assertion is insufficient.

JUDGMENT :

Sanjay K. Agrawal, J.

1. Invoking Civil Appellate Jurisdiction of this Court under Section 96 of the Civil Procedure Code (for brevity “CPC”) the appellants herein/defendants, who are brothers, have filed this appeal calling in question the legality, validity, and correctness of judgment and decree dated 12.04.2022 passed by the 3^rd Additional District Judge, Bastar at Jagdalpur, Chhattisgarh (hereinafter called as ‘trial Court’) by which the plaintiff’s suit for specific performance of contract and permanent injunction has been decreed and the trial Court has directed the defendants to execute the sale deed in favour of the plaintiff within six months from the date of judgment.

(Parties hereinafter will be referred as per the ranking given and status shown in the suit before the trial Court)

Brief facts:-

2. The respondent/plaintiff Nanadlal Ochhwani filed a suit for specific performance of contract and permanent injunction stating inter alia that the suit land bearing Sheet No.93, Plot No.52/1 of the area 2116 sq.ft. is recorded in the name of the defendants and out of which the defendants have offered and proposed to sell 911.76 sq.ft. of land along with the structure standing therein as per map shown in the plaint Schedule A, which ultimately plaintiff agreed to purchase on 28^th March, 2013 for a sale consideration amount of Rs.15,90,000/- and gave two cheques each of Rs.5,00,000/- and registered agreement to sale was executed between them on 28.03.2013 vide Ex.P/1. It was agreed between the parties that defendants will provide the Nazul records, maintenance Khasara and 22 points report to the plaintiff and thereafter demarcation will be done and within six months from that date sale deed will be executed by the defendants in favour of the plaintiff. In furtherance of the said agreement, out of 911.76 sq.ft., 600 sq.ft. with whole structure standing therein, the possession of the suit property was handed over to the plaintiff and till then the plaintiff is the possession holder of the suit land. It was further pleaded that the plaintiff from the beginning was ready and willing to perform his part of contract for making payment of the remaining amount of sale consideration and for execution of sale deed and, therefore, after 28.03.2013, the plaintiff contacted the defendants several times for providing necessary Nazul records and getting the demarcation done, but the defendants always avoided it and could not execute the sale deed.

3. In para 7 of the plaint it was also pleaded by the plaintiff that the plaintiff has been ready and willing to perform his part of contract and it was further pleaded that on coming to know that the defendants are trying to alienate the suit property somewhere else, issued legal notice dated 21.05.2015 vide Ex.P/4 of which the postal receipt acknowledgment is Ex.P/5, requesting them to perform their part of contract. However, despite receiving the said legal notice, they did not perform their part of contract leading to filing of suit on 09.11.2015 for execution of sale deed; for possession of 311.76 sq.ft. of the land and for permanent injunction restraining further alienation.

4. The appellants herein/defendants filed their written statement pleading inter alia that the registered agreement to sale Ex.P/2 is not the ideal agreement to sale, it was executed for security of loan which the defendants have taken for construction of house and for other works @ 1% per annum and, therefore, the same is void and illegal. As such, the sui