Point of Law - Section 16 (c) of the Act of 1963 provides that specific performance of a contract cannot be enforced in favour of a person who fails to prove that he has performed or has always been ready and willing to perform the essential terms of the contract which are to be performed by him (Para 26).

Headnote:
Code of Civil Procedure, 1908 - Section 100 - Order 41 Rule 31 - Specific Relief Act, 1963 - Section 19 (b), 16, 16 (c), 19 - Transfer of Property Act, 1882 - Section 3 - Second appeal - Personal bars to relief - Performance of a contract - Relief against parties and persons claiming under them by subsequent title – Specific performance of a contract cannot be enforced in favour of a person who fails to prove that he has performed or has always been ready and willing to perform the essential terms of the contract which are to be performed by him (Para 26)
Finding of the Court :
Find that no substantial question of law arises in the present appeal and the lower appellate court has rightly decreed the suit of plaintiff respondent no.1 for specific performance for which he is entitled pursuant to the registered agreement to sale executed between the plaintiff and the defendant under whom the present appellants are litigating - No interference is required by this Court with the judgment and decree passed by the lower appellate court.
Result - Second Appeal dismissed.

JUDGMENT :

1. Heard Sri Arpit Agarwal, learned counsel for the appellants.

2. This is plaintiffs’ second appeal under Section 100 of Code of Civil Procedure (hereinafter called as “CPC”) arising out of judgment and decree dated 13.03.2019 passed by District Judge, Pilibhit and judgment and decree dated 08.03.2022 passed by Civil Judge (Senior Division) arising out of Original Suit No.66 of 2012.

3. Facts, in brief necessary to appreciate the controversy in hand, are that the plaintiff filed an Original Suit No.66 of 2012 claiming relief of permanent injunction against the defendants-respondents for not interfering in the property mentioned in the plaint.

4. Case set up by the plaintiff was that a registered Will was executed on 08.07.1954 by one Smt. Ram Daulati in favour of late Ram Chandra Lal, father of the plaintiffs. The testator of the Will died in the year 1957 and since then the possession of late Ram Chandra Lal continued till his death and thereafter the plaintiffs are in possession. The plaintiffs had demolished the two storey building which was existing over the land in dispute for constructing a new house. It was on 10.03.2012, when the plaintiffs were trying to raise construction then the defendants objected and tried to take forcible possession. Hence, the suit for injunction was filed.

5. The plaintiffs filed a list of documents which included the electricity bill, the tax receipts etc. Despite, notice, the defendants did not turn up and the trial Court proceeded ex-parte, and on 13.03.2019 dismissed the suit on the ground that plaintiffs claimed to be the owner in possession on the basis of the Will deed dated 08.07.1954, which was not brought on record and only the receipts of the Nagar Palika Parishad regarding house tax and water tax were filed.

6. Against the said judgment, a Civil Appeal No.24 of 2019 was filed, the lower appellate Court framed the following points of determination under Order 41 Rule 31 of CPC, which are as under:-

^^1- D;k fo}ku voj U;k;ky; }kjk ikfjr fd;k x;k iz'uxr fu.kZ; i=koyh ij miyC/k lk{; ds foijhr gS\
2- D;k vihykFkhZ }kjk izLrqr dh x;h iathd`r fnukafdr 08-07-1954 ds vk/kkj ij vihykFkhZ@oknhx.k dk dksbZ fookfnr laifŸk es igqprs gS vFkok ugh\

7. During the pendency of the appeal, the plaintiffs-appellants filed copy of the Will deed under Order 41 Rule 27 of CPC, which was taken by the Court. The lower appellate Court tried both the points together and found that the alleged Will dated 08.07.1954 was not proved by the appellants as required under Section 63 (C) of the Indian Succession Act, 1925 (hereinafter called as “Act 1925”) read with Section 68 of the Indian Evidence Act, 1872 (hereinafter called as “Act 1872”), and further held that Section 90 of the Act of 1872 was not applicable, which was in regard to the presumption of document being 30 years old. The lower appellate Court on 08.03.2022 dismissed the appeal, hence the present appeal.

8. Sri Arpit Agarwal, learned counsel for the appellants submitted that lower appellate Court fell into the trap by holding that the case of the appellants was not covered under Section 90 and in fact, covered under Section 90-A (2) of the Act, 1872. According to him, both the sections operate in a different field, and the Will dated 08.07.1954 was a 67 years old document, and as per Section 90, the said Will should have been presumed to have been executed by the testator in favour of late Ram Chandra Lal. According to him, the lower appellate Court wrongly held that the case would fall under sub-Section 2 of Section 90-A of the Act, 1872.

9. Reliance has been placed upon the decision of Co-ordinate Bench of this Court in case of Nirmala Verma Vs. Nirmal Banerjii and others 2010 (1) AWC 978. Relevant paras 27 and 31 are extracted hereasunder:-

“27. The Court further finds that the lower appellate court has observed that the presumption under Section 90 of the Evidence Act was not available to the appellant on the ground that the documents filed was