A party seeking specific performance must continuously prove readiness and willingness to perform the contract; failure results in dismissal of the claim.

JUDGMENT :

D. DASH, J.

1. The Appellant, in this Appeal under Section 100 of the Code of Civil Procedure, 1908 (for short, ‘the Code’), has assailed the judgment and decree 22.04.1991 and 08.05.1991 respectively passed by the learned Additional District Judge, Bhadrak in S.J. Appeal No.35/14 of 1986/1987.

By the same, the Appeal filed by the Appellant (Plaintiff) under section 96 of the Code in challenging the judgment and decree dated 09.04.1986 and 21.04.1986 respectively passed by the learned Sub-Judge, Bhadrak in O.S. No.52 of 1979-I in decreeing the suit filed by the Appellant as the Plaintiff have been set aside.

The Appellant, as the Plaintiff, had filed the suit for specific performance of contract for sale in respect of the suit land with further prayer for confirmation of his possession over the same and in the alternative, for recovery of possession in case of dispossession. The suit, having been decreed directing the Defendants 1 & 2 (Respondent No.1 & 2) to execute a sale deed in favour of the Plaintiff on receipt of consideration of Rs.500/- (Rupees Five Hundred) within the time stipulated or else the sale deed to be executed in favour of the Plaintiff through Court, the same has been set aside in the First Appeal carried by the aggrieved Defendants 1 & 2.

2. For the sake of convenience, in order to avoid confusion and bring in clarity, the parties hereinafter have been referred to, as they have been arraigned in the Trial Court.

3. The Plaintiff’s case is that he entered into an agreement with Defendants 1 & 2 for sale of the suit land measuring Ac.0.162 decimals for a consideration of Rs.3,000/- (Rupees Three Thousand) on 21.07.1978. Pursuant to the said agreement, the Defendants 1 & 2, while agreeing to sale the suit land received a sum of Rs.2,500/- (Rupees Two Thousand Five Hundred) as advance consideration leaving a balance of Rs.500/-(Rupees Five Hundred) towards the consideration to be paid at the time of execution and registration of the sale deed within one month thereof. It is stated that the Defendant No.3, having the knowledge of the agreement for sale, had purchased the land from Annexure-2 to the extent of Ac.0.99½ decimals and it is said that it was without any consideration. The Plaintiff further states that pursuant to the said agreement, the possession of the suit land had been delivered to him by Defendants 1 and 2 and he is in possession of the same. Having come to know about the subsequent sale deed executed by Defendant No.2 in favour of Defendant No.3 in respect of a portion of the said land covered under the agreement, the suit came to be filed.

4. The Defendants 2 & 3 contested the suit. Defendant No.3, denying his knowledge about the said agreement as to have been entered between the Plaintiff and Defendants 1 and 2, asserted himself to be a bona fide purchaser for value without notice of the agreement.

5. The Defendant No.2, in his written statement, submitted to have never entered into any agreement along with Defendant No.1 for sale of the suit land to the Plaintiff. He also denies to have received any consideration. It is stated that he and his brothers were in dispute for partition of their land. Accordingly, he and his brothers approached some of the villagers for amicable partition of their landed properties. As per the direction of the Panchayat, they executed Ekrarnama and for that purpose, stamp papers had been purchased and he had signed on some blank papers. Since his brother, namely, Jagabandhu did not agree to sign on stamp papers, those remained with Defendant No.1 and subsequently, as he had dispute with him, the Plaintiff and Defendant No.1 prepared the collusive document and the suit has been fil