Readiness and willingness for specific performance inferred from substantial earnest payment, possession handover, pleadings and conduct; concurrent findings immune from interference in second appeal unless perverse.

JUDGMENT :

ROMESH VERMA, J.

1. The present appeal arises out of the judgment and decree, as passed by the learned Presiding Officer, Fast Track Court, Mandi, H.P. in C.A. No. 76/98, 199/2004, dated 16.03.2005, whereby the appeal preferred by the present appellants/defendants has been ordered to be dismissed and the judgment and decree, as passed by the learned Civil Judge, 1st Class, Court No.1, Mandi, dated 22.09.1998 has been affirmed whereby the suit filed by the plaintiff/respondent for specific performance of agreement of sale, dated 31.03.1989 and for injunction was decreed.

2. Facts of the case are that the plaintiffs/respondents filed a suit for specific performance of agreement and injunction before the learned Civil Judge Court No.1 Mandi on 19.06.1992. It was averred in the plaint that an agreement dated 31.03.1989 was duly executed and signed between the plaintiff and defendant No.1 in the presence of attesting witnesses namely Lal Man and Puran Chand whereby defendant No.1 sold her ¼ share to the extent 1-14-14 bighas, out of total area of the land measuring 6-18-5 bighas comprised under Khewat No. 524 min, Khatauni No. 900, Khasra No.2331 and 2388, Kitas 2, situated at Village Kumi Illaqua Balh, Tehsil Sadar, District Mandi, in favour of the plaintiff for a total sale consideration of Rs.15,547.50/- (Fifteen Thousand Five Hundred Forty- Seven and Fifty Paise) i.e. at the rate of Rs. 9000 per bigha. It was stated that in part performance of agreement, dated 31.03.1989, the plaintiff paid a sum of Rs.10,000/- to defendant No.1 as an earnest money and in pursuance to that, defendant No.1 handed over the joint possession of the land to the plaintiff and thereafter, the plaintiff is in joint possession of the suit land till the institution of the suit.

3. It was further averred that the payment of balance sale consideration of Rs.5,547.50/- was agreed to be paid to defendant No.1 at the time of execution and registration of the sale deed in favour of the plaintiff. It was agreed by defendant No.1 that as per terms and conditions of the agreement whenever the plaintiff deems fit, he may get the sale deed executed and registered in his favour and in case defendant No.1 resiles from her commitment, in that event the plaintiff can initiate appropriate legal proceedings against defendant No.1 for the redressal of his grievances. Time was not essence of the contract, but as per the plaint it was to be got executed and registered in the office of Sub Registrar, Sadar, Mandi, in the year 1992 and the plaintiff orally informed defendant No.1 about this fact in the presence of the witnesses. In the month of March, 1992, the plaintiff requested defendant No.1 to accompany him to Mandi for getting registration of sale deed done in his favour and to receive the balance sale consideration amount before the Sub Registrar, Sadar Mandi, but she assured and promised to do so within fortnight. It was submitted that defendant No.2 was having prior knowledge of the agreement to sell entered between the plaintiff and defendant No.1, therefore, the defendants conspired and connived with each other and entered into a sale purchase transaction qua