JUDGMENT :

1. The civil suit no.65/1993 filed by the respondent-plaintiff (for brevity-'the plaintiff') seeking specific performance of the agreement dated 26.2.1989 came to be decreed by the learned Civil Judge, Junior Division, Kota (for brevity-'the learned trial court') vide judgement dated 1.9.2005 and the civil regular appeal no.21/2005 (CIS 113/2005) preferred thereagainst by the appellant/defendant (for brevity-the defendant’) has been dismissed by the learned Additional District Judge No.2, Kota (for brevity-'the learned appellate court') vide judgement and decree dated 20.2.2020.

2. The relevant facts in brief are that the plaintiff filed a suit stating therein that vide sale agreement dated 26.2.1989, the defendant agreed to sell his agricultural land comprising of khasra nos.156 and 157 measuring 0.74 hectares and 0.64 hectares respectively situated in Naya Nohra, Tehsil Ladpura, District Kota to him for a sale consideration of Rs.50,000 out of which the defendant received a sum of Rs.25,000 in cash and a sum of Rs.6,000 through cheque no.CA 188/47 on that very day and possession of the subject property was handed over to him. It was stated that despite repeated requests and service of notices upon the defendant, he avoided execution of the sale deed whereas, the plaintiff was always ready and willing to perform his part of the agreement. Therefore, the decree of specific performance was prayed for.

3. The defendant in his written statement admitting the receipt of cheque worth Rs.6000 and possession of the subject land being with the plaintiff, submitted that it was not in pursuance of subject agreement. In special plea, it was submitted that he has received no consideration under the sale agreement dated 26.2.1989. It was averred that under an agreement executed in the year 1986, he agreed to sell the subject land in favour of wife of Shri Mukut Bihari, the guardian of the plaintiff and prior thereto, possession of the subject land was already handed over by him to Shri Mukut Bihari for cultivation for a consideration of Rs.2,000 per year. It was stated that since the agreement was not complied with by Shri Mukut Bihari, it came to an end. Execution of any sale agreement in between the parties was specifically denied by the defendant.

4. On the basis of pleadings of the parties, the learned trial court framed six issues including relief. After recording evidence of the respective parties, the learned trial court decreed the suit vide judgement dated 1.9.2005. The civil first appeal preferred thereagainst by the defendant was dismissed by the learned appellate court vide judgement and decree dated 19.8.2006; but, the matter was remanded back to it by this Court vide judgement dated 18.7.2017 in S.B. Civil Second Appeal No.430/2006 to decide it afresh. Thereafter, the civil first appeal has again been dismissed by the learned appellate court vide judgement and decree dated 20.2.2020.

5. Assailing the impugned judgement and decree, Shri A.K. Sharma, learned senior counsel for the defendant made two fold submissions; (1) despite it being a suit for specific performance, no issue was framed with regard to readiness and willingness of the plaintiff to perform his part of agreement and (2) even otherwise also, the plaintiff could not prove the same.

6. Elaborating his submissions, Shri Sharma submitted that in a suit filed for specific performance, it is imperative for the plaintiff to plead and establish his readiness and willingness to perform his part of contract and a specific issue must be framed in this regard. Inviting attention of this Court towards the judgement dated 1.9.2005, he submits that since no such issue was framed therein, the findings recorded on this aspect by the learned courts against him without putting him to its notice, cannot be sustained in the eye of law. He further submits that had such specific issue been framed, the appellant could have proved by leading evidence that the plaintiff was not cont