The absence of a specific issue regarding readiness at trial is not fatal if findings are supported by evidence. Partial performance for undivided property is permissible where the defendant claims sole ownership and fails to substantiate competing rights of co-owners.

JUDGMENT :

ANUBHA RAWAT CHOUDHARY, J.

1. This second appeal has been filed against the Judgment and Decree dated 22.03.2025 (Decree sealed and signed on 03.04.2025) passed by the learned District Judge-III, Deoghar in Civil Appeal No.20 of 2023 affirming the Judgment and Decree dated 24.01.2023 (Decree sealed and signed on 04.02.2023) passed by the learned Civil Judge (Senior Division)-III, Deoghar whereby Title Suit No.28 of 2013 seeking specific performance of contract was partly decreed by directing the defendant no.1 to execute the sale deed for 1/3^rd share (829 sq. ft.) out of the area of 4978 sq.ft. as described in schedule ‘A’ of the plaint in favour of the plaintiff on receiving rest of the balance consideration amount as per the agreement dated 12.08.2009 within 2 months failing which the plaintiff will be at liberty to get the sale deed executed through the agency of the court.

2. The defendant 1^st party having lost in 1^st appellate stage has filed this second appeal.

3. The suit was filed for the following reliefs:-

(i) That the decree of specific performance directing the defendant 1^st party to execute the sale deed for the 1/3^rd share (829 Sq. ft.) property out of agreement area 2489 Sq. ft. out of total area of 678 plot number is 4978 Sq. ft. described in Schedule-A of this plaint to the plaintiff and 1/3 share to the defendant No. 2 and 1/3 share to the defendant No. 3, on receipt of the balance consideration amount and in case the defendant 1^st party will not find ready for executing the sale deed through the process of court.

4. The learned counsel for the appellants while assailing the impugned judgments has submitted that the learned trial court did not frame any specific issue in connection with readiness and willingness on the part of the plaintiff to perform his part of the contract. The learned counsel for the appellants has relied upon the judgment of the Hon’ble Supreme Court passed in Civil Appeal Nos. 8050-8051 of 2022 [ V.S. Ramakrishnan vs. P.M. Muhammed Ali ] decided on 09^th November, 2022 and has referred paragraph 4.1 of the said judgment to submit that no finding can be recorded with respect to readiness and willingness in absence of specific issue framed to that effect. He submits that the Hon’ble Supreme Court in the said case had remanded the matter by framing that issue for consideration by the learned trial court.

5. He has also submitted that the learned courts have failed to consider that the father of the plaintiff was contesting a case against the defendant in a proceeding under Section 144 Cr.P.C. which was initiated on 17.07.2009 and was ultimately dropped on 04.09.2009 and in the meantime the agreement of sale was entered on 12.08.2009. He submits that it is almost an impossibility that in the midst of a proceeding under Section 144 Cr.P.C. the agreement of sale will be entered into between the parties. He submits that this aspect of the matter has not been considered by the learned courts while upholding the validity of the agreement.

6. Learned counsel has also submitted that the specific performance has been allowed with respect to undivided portion of the property inasmuch as there has been no partition with respect to the suit property which stood recorded in the name of the defendant and his brother. He submits that the brother of the defendant was not even a party in the suit for specific performance of contract and even in the agreement the brother of the defendant was not a party. The learned counsel for the appellants has submitted that there cannot be any sui