A decree for specific performance requires clear and certain identification of the property; ambiguity in description renders it inexecutable.

JUDGMENT :

SASHIKANTA MISHRA, J.

This Second Appeal has been filed by the defendants challenging the judgment and decree passed by the learned 2nd Additional District Judge, Cuttack in Title Appeal No.74 of 1993, whereby the First Appellate Court allowed the cross-appeal filed by the plaintiff and decreed the suit for specific performance of contract. Earlier, this Court had disposed of this appeal by judgment dated 14.01.2016. However, the said judgment having been recalled in RVWPET No.40 of 2016, the appeal has been heard afresh and is being disposed of by this judgment.

2. For convenience, the parties are referred to as per their respective status before the trial Court.

3. Plaintiff’s case is that he instituted the suit for specific performance of contract on the basis of an agreement dated 04.08.1986 (Ext.1) alleging that defendant no.1, who had acquired Ac.0.096 dec. of land under a registered deed of gift, agreed to sell Ac.0.040 dec. out of the same for a total consideration of Rs 20,000/-. Plaintiff pleaded that a sum of Rs 4,000/- was paid as advance consideration and the balance amount of Rs.16,000/- was agreed to be paid at the time of execution and registration of the sale deed within three years from the date of the agreement after obtaining permission from the Urban Ceiling Authority. According to the plaintiff, he was always ready and willing to perform his part of the contract, but the defendants failed to execute the sale deed for which he filed the suit. In the alternative to the relief for specific performance, he prayed for refund of the advance amount with interest.

4. The defendants denied execution of the agreement and pleaded that their signatures and left thumb impressions had been obtained on blank papers on the pretext of arranging a loan. They further contended that the suit property had not been properly described and was not identifiable and, therefore, no decree for specific performance could be granted.

5. Basing on the rival pleadings, the trial Court framed the following issues for determination :

1) Is the suit maintainable?

2) Is there any cause of action to file the suit?

3) Whether suit is barred by law of limitation?

4) Is the suit bad for non- joinder and mis-joinder of parties?

5) Whether the agreement for sale dated 04.05.1986 executed by the defendants is genuine, valid and enforceable against the defendants?

6) Whether the plaintiff is ready and willing to perform his part of contract?

7) Whether the suit schedule property properly described and identifiable for passing an executable decree?

8) To what other relief or reliefs to which plaintiff is entitled?”

6. Taking up issue Nos.5 and 6 at the first instance the trial Court disbelieved the defence plea that the signatures and left thumb impressions of the defendants had been obtained on blank papers for the purpose of arranging a loan and subsequently converted into the agreement (Ext.1). However, it recorded a finding that the plaintiff had failed to establish that he was all along ready and willing to perform his part of the contract, which is an essential requirement for grant of decree for specific performance. While answering Issue No.7, the trial Court held that the suit schedule property had not been properly described and was not identifiable so as to enable the Court to pass an executable decree for specific performance. On the other issues relating to maintainability, cause of action, limitation and non-joinder or mis-joinder of parties, the findings were returned in favour of the plaintiff. Ultimately, the trial Court refused the relief of specific performance b