The failure to include a claim for specific performance in a previous suit precludes the plaintiff from claiming the relief in a subsequent suit.

Hemant Gupta, J.

1. The plaintiff is in second appeal aggrieved against the judgment and decree passed by the learned first Appellate Court whereby suit for specific performance of agreement dated 4.4.1966 was dismissed in appeal.

2. Defendant Harbans purchased the land in dispute measuring 112 kanals 3 marlas from the State Government for Rs. 5,600/-. Defendant Harblas was a Harijan and could not make the payment of entire sale consideration. A sum of Rs. 2000/- was treated as a grant but the remaining amount of Rs. 3,600/- was payable by half yearly instalments. It was the case; of the plaintiff that the defendant approached the plaintiff to pay the amount of Rs. 3,600/- in instalments on behalf of Harblas defendant and that Harbans agreed to transfer 1/2 of the land in favour of plaintiff. It is the case of the plaintiff that possession of land was given to him but subsequently in the year 1972 Harblas took possession of said 1/2 share. The defendant was asked many times in the year 1975 to execute the sale deed in terms of the agreement but he refused to do so and sold the land measuring 71 Kanals 5 Marias to Kulwant Singh and Balwant Singh, defendants No. 2 and 3 respectively. The plaintiff filed a suit for specific performance of the agreement in June, 1977, inter alia, on the ground that she has paid the instalments in terms of the agreement but the defendant has failed to execute the sale deed and, therefore, sought the intervention of the Court.

3. The defendants contested the said suit. It was the stand of the defendants that Harbans defendant had never entered into any contract with the plaintiff nor any contract could be executed. It was also pleaded that the plaintiff never performed her part of the alleged contract nor possession was ever given to the plaintiff. Still further, it was pleaded that the plaintiff earlier filed a suit for injunction which was dismissed under Order 9 Rule 8 of the Code of Civil Procedure and, therefore, present suit is barred. The suit was also stated to be not competent in view of the provisions of Order 2 Rule 2 of the Code of Civil Procedure. It was also pleaded that defendants No. 2 and 3 are bona fide purchasers for consideration.

4. The learned trial Court decreed the suit holding that the agreement dated 4.4.1966 was executed and that the plaintiff had made payment of instalments in terms of the agreement and, thus, the plaintiff is entitled to seek specific performance of the agreement. The defendants were directed to execute the sale deed. However, in appeal, the findings recorded by the learned trial Court were reversed. It was found that the agreement Exhibit P-1 is not signed by the plaintiff and, thus, it is unilateral document, specific performance of which cannot be sought by the plaintiff. It was also found that none of the attesting witnesses of the agreement was produced and, therefore, the execution of the agreement is not proved. Still further, it has been found that the plaintiff has produced receipts Exhibit P-3 to P-7 in respect of payment made by Harblas through Parkash Chand i.e. husband of the plaintiff, but these payments are not sufficient to hold that the plaintiff was ready and willing to perform her part of the contract. As a matter of fact, the learned first Appellate Court found that the records does not show that the payments have been made on behalf of the plaintiff inasmuch as Exhibits D-1 to D-19 are the receipts in respect of instalments paid by defendant Harblas. Thus, the learned first Appellate Court concluded that the plaintiff is not proved to have paid the sale consideration of Rs. 3,600/- to the State Government in pursuance of the agreement or that she had performed her part of the contract. Still further, the learned first Appellate Court found that the claim of the plaintiff for improvement was found to be untenable. She has remained in possession of the land from the year 1966 until the year 1972. It was also found that subseque