In a suit for specific performance of a contract, the plaintiff must plead and prove continuous readiness and willingness to perform their part of the contract from the date of the contract to the time of the hearing, as required under Section 16(c) of the Specific Relief Act, 1963.

Judgement

JUDGMENT :- The plaintiffs instituted the suit under O. 1, R. 8, C. P. C. representing the villagers of Gunadia and Natara for a declaration that the suit lands are all communal lands. In respect of plot No. 351 in khata No. 106 of village Gunadia, the plaintiffs alternative case is that defendant No. 1, the owner of that suit plot of land had entered into an agreement to execute a registered sale-deed in favour of the villagers of Gunadia and Natara in respect of the said plot of land and that in spite of notice he has so far not executed the said sale-deed, and so a decree for the said contract be passed in favour of the plaintiffs.

2. As this appeal is confined only to the plaintiffs case in respect of the said plot No. 351, it is not necessary for me to state here the respective cases pleaded by both the parties in respect of the other suit plots.

3. The defendant No. 1 s case in his written statement in respect of plot No. 351 is that the said plot is not a communal land and the villagers of Gunadia and Natara have no right over the said plot of land and they had never exercised any customary or easementary right over the same. He also denies to have ever entered into any contract or agreement with the plaintiffs to sell the said plot of land in favour of the plaintiffs.

Defendants 4 to 8 in effect, support the case of defendant No. 1 in respect of the said plot No. 351.

Defendants 2 and 3 in their separate written statement support the case of the plaintiffs.

4. Both the courts have held that the villagers of the above named two villages had customary right only over 8 decimals of land out of A. 1-55 decimals in the above mentioned plot No. 351 and that they have no customary nor communal right over the rest portion of that plot of land. The trial Court held that the defendant No. 1 had entered into a valid agreement to sell the said plot No. 351 in favour of the plaintiffs as embodied in the agreement Ext. 7 dated 25-12-57. The appellate court on a fresh re-appraisal of the evidence on record has arrived at the finding that the plaintiffs did not show any interest, readiness or willingness to perform their part of the contract for a very long time till the institution of the suit, and so they are not entitled to a decree for specific performance of contract. On the finding that the villagers have no customary or communal right over the said plot minus 8 decimals of land, and that the plaintiffs prayer for specific performance of contract to purchase the said plot cannot be granted for reasons stated above, the appellate court dismissed the plaintiffs suit in respect of that plot except the 8 decimals of land on which the plaintiffs customary rights were found by both the courts below.

5. Mr. Patnaik, the learned counsel for the appellants at first made an attempt to assail the concurrent finding of both courts below that the villagers of the above-mentioned two villages had no customary, easementary or communal rights over plot No. 351 except over 8 cents of land numbered as plot No. 548 in the running settlement, merely on the ground of incorrect or improper appreciation of the relevant evidence on record. The finding to the above effect being a concurrent finding of fact, it cannot be interfered with merely on the above ground. Mr. Patnaik states that in Ext. 7, which is the alleged agreement to sell that plot of land in favour of the plaintiffs, it had been expressly agreed that the said plot of land would be kept vacant for all terms in the interest of the villagers. The said statement was made in the context of the averment therein that the said plot of land would be sold in favour of the villagers for their use as a communal land, but that agreement never materialised. Moreover, the said averment does not show that the villagers of the above mentioned village had any customary or easementary right over the said plot of land, or that the said plot of land was from before being utilised as a communal land. Both