In a suit for specific performance, the plaintiffs must aver in the plaint and prove at trial that they were continuously ready and willing to perform their part of the contract from the date of the contract until the date of the decree.

R. N. MISRA, J.

( 1 ) THE plaintiffs are in appeal against a reversing judgment of the lower appellate court in a suit for specific performance of a contract of sale. Defendant No. 1 was the original owner of the Ka and Kha Schedule lands, and for legal necessity, the plaintiffs allege, she entered into an agreement to sell the properties in dispute on 27-8-57 for a total consideration of Rs. 400/ -. Rs. 200/-as a part consideration was paid that day to defendant No. 1 and it is claimed that she put the plaintiffs in possession. The agreement is marked as Ext. 2. It is asserted by the plaintiffs that in spite of repeated demands by them defendant No. 1 postponed the execution of the document and ultimately on 29-11-57 she executed a sale deed in respect of the Kha schedule land of the plaint, which was a part of the contract, under Ext. 2 for Rs. 275/-in favour of defendant No. 2, The sale deed is marked as Ext. A.

( 2 ) ON the footing that defendant No. 2 had notice of the contract between the plaintiffs and defendant No, 1 the suit for specific performance was filed on 5-159. Defendant No. 1 filed a written statement denying the suit contract, but did not contest the litigation at the trial. Defendant No. 2 denied the agreement, delivery of possession, passing of part consideration and took the stand that he was a bona fide purchaser for value without notice.

( 3 ) THE learned Munsif discussed the evidence at length, but did not record any categorical finding on the question of delivery of possession or passing of consideration. He held, "i come to the conclusion that the defendant No. 1 definitely entered into a contract to sell the suit land to the plaintiffs as alleged and the deed of contract is genuine and for consideration". The treatment of the issues in the hands of the trial Court under issue Nos. 3 and 4 shows that they have been very perfunctorily decided though there was certain evidence on either side. Apart from making a running statement what each of the witnesses had deposed, conclusions were not drawn from such evidence. The trial Court, however, gave a decree to the plaintiffs.

( 4 ) THEREUPON defendant No. 2 appealed to the lower appellate court. The learned additional Subordinate Judge reassessed the evidence and took into account the various documents that were placed before him and came to hold that the plaintiffs had failed to prove due execution of the suit agreement and as such the said document cannot be the basis for a suit for specific performance. He negatived the claim of defendant No. 2 under the sale deeds, the first sale deed being a fraud on registration, and the second sale deed being pendente lite. It is against the reversing judgment of the lower appellate Court that this Second appeal has been filed by the plaintiffs.

( 5 ) IT is unfortunate that even the lower appellate Court did not examine the evidence with a view to recording positive findings on material aspects that arose for determination in a suit for specific performance. In the facts of the present case, it becomes necessary to find whether there was a valid agreement, whether part performance had been done by the plaintiffs as alleged, and whether in terms of the contract the plaintiffs had been put into possession. Many other aspects which were not very material engaged the attention of the lower appellate Court and, therefore, it lost sight of the real aspects and ultimately disposed of the appeal by holding that the plaintiffs were not entitled to relief.

( 6 ) I was myself thinking of going into the matter to reassess the evidence and record findings in exercise of powers under Section 107, C. P. C. But I find, as Mr. Patnaik for the respondents, rightly indicates, that there is want of a basic assertion in the plaint and there does not appear to be evidence to support the stand that the plaintiffs were always ready and willing to perform their part of the contract. It is one of the fundamental requirements in a suit