In a suit for specific performance of a contract to sell immovable property, the payment of the full consideration proves the plaintiff's readiness and willingness, and the court can grant the ancillary relief of possession under Section 22 of the Specific Relief Act, even if not specifically pleaded.

CAV JUDGMENT

1. Appellant/defendant (now his LRs.) has preferred this first appeal under Section 96 of the CPC calling in question the legality, validity and correctness of impugned judgment and decree dated 27/11/2008 passed by learned IXth Additional District Judge (F.T.C.), Durg in Civil Suit No. 6-A/07 whereby plaintiff’s suit for specific performance of contract has been decreed.

(For the sake of convenience, the parties will hereinafter be referred to as per their status and ranking given in the plaint before the trial Court.)

Facts of the Case :-

2. Plaintiff filed a civil suit stating inter alia that defendant, being the owner of agricultural land bearing Khasra Nos. 1151, 1152, and 1187, total area 0.80 hectare, situated at Village Tarrighat, P.H. No. 31, Tehsil Patan, District Durg, entered into agreement to sale on 28.01.2003 with him and agreed to sell the said suit land to the plaintiff for a sale consideration of Rs. 1,64,000/- out of which, Rs. 50,000/- was paid by the plaintiff as earnest money and the defendant delivered possession of the suit land to the plaintiff and agreed to execute the sale deed on or before 31.03.2003. Subsequently, on 08/03/2003, plaintiff paid Rs. 50,000/- to the defendant and then on 29/03/2003, the remaining amount of Rs. 64,000/- was also paid by the plaintiff to the defendant. Thereafter, despite making repeated requests, defendant failed to execute the sale deed in favour of the plaintiff and ultimately, on 23.02.2006, plaintiff served legal notice upon the defendant, however, the defendant, neither replied to the legal notice, nor executed the sale deed in favour of the plaintiff which led the plaintiff to file suit for specific performance of contract on 27/03/2006.

3. Defendant filed his written statement and denied the plaint averments and contended that possession of the suit land was never handed over to the plaintiff rather defendant, himself, is in possession of the suit land. He has further contended that plaintiff has failed to perform his part of the contract within the stipulated time i.e. 31.03.2003 and as such, the agreement automatically stood cancelled due to lapse of time. He has also denied the fact that plaintiff has paid the entire consideration amount and lastly contended that plaintiff’s suit is barred by limitation.

4. Learned trial Court framed as many as 7 issues and answered them as stated below :-

5. In sum and substance, the trial Court has held that plaintiff has fulfilled his terms of the agreement dated 28/01/03 and paid full sale consideration amount to the defendant and he was ready and willing to perform his part