A plaintiff seeking specific performance of an agreement to sell property must prove the execution of the agreement and fulfill the conditions precedent laid down in the agreement.

( 1 ) THIS is to plaintiffs second appeal arising out of a suit for specific performance of an agreement to sell the property said to have been executed by the defendant in favour of the plaintiff. The trial Court had decreed the suit. On appeal the learned District Judge reversed the decree of the trial Court and dismissed the suit.

( 2 ) SHORTLY stated, the plaint case was that on 14-4-69 he hold the house belonging to him in favour of the defendant for a sum of Rs. 4,000/- under a sale deed executed by the former in favour of the defendant. The same day, the defendant executed an agreement to resale in favour of the plaintiff in respect of the said house. According to the terms set out in that agreement, the defendant was to execute the sale deed in favour of the plaintiff within two years, i. e. by 13-4-71 for the same amount, namely Rs. 4,000/ -. Yet another document was executed by the plaintiff in the shape of rent note in favour of the defendant, the rent fixed thereunder being Rs. 30/- per month payable by the 14th of each succeeding month. The plaintiff was ready and wiling to perform his part of the contract at all material times but the defendant declined to retransfer the property and hence the suit.

( 3 ) THE defence set up by the respondent was that he had not executed the deed of agreement for the retransfer of the property in favour of the plaintiff on the basis of which the suit has been filed. He had executed another document which has not been filed by the plaintiffs. That document incorporated an agreement of resale in favour of the plaintiff within 8 months. It is not necessary to set out the other pleas taken in defence.

( 4 ) THE trial Court believing the plaintiffs evidence held that the agreement of resale set up by the plaintiff had in fact been executed by the defendant. It further found that the plaintiff was willing to perform his part of the contract and had indicated his intention through successive notices but the defendant did not execute the sale deed as he was bound to do under the said agreement. The trial Court rejected the defence version on the ground that the defendant had not produced a copy of the agreement which was alleged to have been executed for the retransfer of the property as asserted by him. On these findings the suit of the plaintiff-appellant was decreed.

( 5 ) THE lower appellate Court on appeal set aside the finding of the trial Court and held that the plaintiff-appellant had failed to establish the execution of the document Ext. 11 which purports to be an agreement of sale executed in favour of the plaintiff-appellant by the defendant-respondent. This finding of the appellate Court is based on a consideration of the entire evidence on record. The other ground on which the appellate Court dismissed the suit was that the plaintiff had not fulfilled the conditions laid down in Ext. 11 even assuming that the same was executed by the defendant. It has held that the plaintiff having allowed the rent to remain in arrears for more than three months he forfeited the right to claim specific performance of the agreement for the resale of the property.

( 6 ) FOR the appellant the first ground urged was that the appellate Court committed a patent error of law in holding that the plaintiff had not prayed the execution of the agreement Ext. 11 by the defendant. He invited my attention to the statement of the plaintiff to the fact that the paper (which was later exhibited as Ext. 11) had been signed by the defendant-respondent in his presence and that the signature appearing at the foot of that paper were those of the defendant. This was sufficient to constitute proof of due execution of the agreement for resale (Ext. 11 ).

( 7 ) I am unable to agree. Reading the finding of the appellate Court as a whole it is apparent that the conclusion of the appellate Court is not that Ext. 11 had not been formally proved but that the evidence adduced by the plaintiff was entirely ins