JUDGMENT

1. This appeal under section 96 of the Code of Civil Procedure has been preferred by defendant No.2 being aggrieved by the judgment and decree dated 4.2.2002 passed in Civil Suit No.33-A/1997 by the Second Additional District Judge, Indore, whereby the claim of plaintiff/respondent No.1 for specific performance of contract dated 5.5.1998 has been decreed.

2. The claim of plaintiff is that defendant No.1 had entered into an agreement with him for sale of the suit property, which is a flat bearing number 301, for a consideration of Rs.3.50 lakhs on 5.5.1995. A written agreement was also executed between them on that day and entire sale consideration was also paid by plaintiff to defendant No.1 who had agreed that she would soon deliver possession of the suit flat to him and shall execute the requisite sale deed in his favour. She had also requested that even though there is an averment in the agreement that possession has been handed over to plaintiff, but she may be permitted to retain possession till she finds alternate accommodation for herself. The plaintiff accepted the said request but defendant No.1 did not deliver possession to her. On 15.10.1997 she assured the plaintiff that she would execute the sale deed in his favour within a week. After a week when plaintiff went to the flat she was met by defendant No.2 who stated that he is the owner thereof and is residing therein in that capacity. On inquiry defendant No.1 stated that she has given the suit flat to defendant No.2 for residence for some time. Plaintiff then asked defendant No.1 to execute the sale deed in his favour, but she refused to do so and defendant No.2 also refused to deliver possession of the suit flat to him.

3. On such contentions, on 4.5.1998 the plaintiff instituted an action for specific performance of contract dated 5.5.1995.

4. Defendant No.1 contested the claim by filing her written statement submitting that no agreement to sale was executed between plaintiff and her. No amount has ever been paid by plaintiff nor was any letter written by her to plaintiff on 15.10.1997. On 12.8.1997 she has sold the suit flat to defendant No.2 under a registered sale deed and has delivered possession of the same to him. The defendant No.2 also filed his written statement submitting that he is the owner of the suit flat by virtue of the sale deed executed in his favour by defendant No.1 and is in legal possession of the same.

5. Upon pleadings of the parties issues were framed by the trial Court and thereafter plaintiff and defendant No.2 led evidence in support of their respective contentions. Defendant No.1, however, did not lead any evidence. By the impugned judgment and decree, the trial Court has decreed plaintiff’s claim by holding that he has proved that an agreement to sale was executed between him and defendant No.1 on 5.5.1995 upon payment of a sum of Rs 3,50,000/- by him to her and that plaintiff has always been ready and willing to perform his part of the contract but defendant No.1 has not done so and has executed sale deed with respect to the suit flat in favour of defendant No.1 which is not binding upon him.

6. Learned senior counsel for defendant No.2 has submitted that the judgment and decree passed by the trial Court is wholly illegal and deserves to be set aside. By way of her evidence the plaintiff has totally failed to prove the factum of execution of the agreement dated 5.5.1995 between him and defendant No.1. There is no plea as regards readiness and willingness on part of plaintiff to perform his part of the contract neither has the same been proved by him by way of his evidence. The agreement was allegedly entered into on 5.5.1995 whereas the suit has been instituted on 4.5.1998 just one day prior to expiry of period of limitation. No notice was issued by plaintiff to the defendants prior to institution of the suit. The possession of the suit flat is with defendant No.2 and the averment of plaintiff that possession was delivered to h