Kulshrestha, J. -- 1. This appeal under clause 10 of the Letters Patent, has been filed against the Judgment and decree passed by the learned Single Judge in First Appeal No.3 of 1990, by which the decree of specific performance of contract of sale passed by the learned Second Additional Judge to the Court of District Judge, Bilaspur, in Civil Suit No. 13-A of 1982, has been affirmed.

2. A suit for specific performance of contract of sale of the land measuring 65,000 Sq.ft. of Kh. Nos. 449/1 and 449/3 in village Ameri (now within the limits of Municipal Corporation, Nilaspur) was filed by the respondent (plaintiff) on the basis of an agreement dated 1.9.1980 against the appellant No. 1 as the vendor and against the respondent No.2 as subsequent transferee of the land. It is not disputed that the appellant No. 1, an advocate and a notary, is engaged in real estate business and deals in sale and purchase of properties. It is also not disputed that the appellant No. 1 had entered into an agreement dated 1.9.1980 for sale of land measuring 65,000 Sq. ft. out of the land comprised in Kh. No. 449/1 and 449/3 at the rate of Re. 1.10 per Sq. ft. and had received a sum of Rs. 6,000/- towards earnest money and agreed to execute sale-deed by 30.9.1980 on receipt of the balance consideration after measurement of the land.

3. The case of the respondent, in short, was that the respondent approached the appellant No. 1 for getting the land measured, but on one pretext or the other, he avoided the same and after expiry of the date mentioned in the agreement, the vendor sent a legal notice dated 22.10.1980 (Annexure-P/3) informing the respondent (plaintiff) that although the land was got duly measured through Patwari in the presence of the parties, the plaintiff \vas avoiding to perform his part of the obligation under the contract and, therefore, he was called upon to appear before the Registrar within three days for conveyance of the property, failing which the agreement would be cancelled. The plaintiff sent a Reply dated 25.10.1980 (Annexure-P/2) to the said notice through his advocate, informing the defendant vendor that he had approached him several times for getting the land measured and for executing the sale-deed, but he evaded his obligation on the ground that the plaintiff should first purchase stamp-papers. The plaintiff also stated in this reply that the defendant was negotiating with other parties for sale of the said land and called upon the defendant to execute the sale-deed within 15 days, failing which he would be compelled to institute action in the Civil Court for specific performance of the contract. Thereafter, the suit was filed on 3.12.1980 and the subsequent purchaser (appellant No.2) of part of the suit land was also joined as a defendant on the ground that she had purchased the land with prior knowledge of the agreement with the plaintiff.

4. The appellants resisted the suit and pleaded that there was failure on the part of the plaintiff to perform his part of the obligation till the date the vendor rescinded the contract by notice. According to the defendant (vendor), the land was got measured through Patwari (D.W. 2) twice, on 24.8.1980 and 9.9.1980, well before the agreed date for execution of the sale-deed, but despite that, the plaintiff took no steps to make payment of the balance amount and to get the sale-deed executed in his favour. The plaintiff remained unwilling even after notice Annexure-P/3 was issued by the defendant vendor, as he did not have the funds with him to meet this liability.

5. Learned trial Court, on the basis of the evidence brought on record, decreed the suit for specific performance and the said decree of the trial Court has been affirmed by the learned Single Judge by Judgment dated 5.8.1998. It is against this Judgment that the two appellants have filed this Letters Patent Appeal.

6. Shri Deoras, learned counsel for the appellants, has assailed the judgment and decree passed by the