ORDER

This appeal has been filed by the appellant being aggrieved by the judgment and decree dated 15.12.2022 passed by Third Additional District Judge, Shajapur in civil appeal No.24/2021by which the judgment and decree passed by Second Civil Judge Class- II, District Shajapur in civil suit No. RCS-A/3548/2014 dated 27.02.2021 was affirmed and appellant's appeal was dismissed.

2. In nutshell the suit before the trial Court was that appellant/defendant was owner of agricultural land survey No.99

and to sale a part of land defendant executed sale agreement with the respondents in the consideration of Rs.3,58,750/- out of which Rs.50,000/- was given in cash and Rs.50,000/- through cheque. On 11.11.2011 the cash amount of Rs.50,000/- was taken and the cheque was returned and cash was received by defendant through his brother Abdul Shamim and the fact that mentioned in the agreement.

3. The sellers have promised to execute the sale-deed in favour of the purchaser within six months. The plaintiffs requested to the defendant/appellant No.1 to execute the sale-deed but he has stated that they are known to each other they have made huge deals of the land so purchasers were not to worry. The purchaser were always ready and willing to pay the rest of the consideration amount Rs.2,58,750/-and to pay the stamp fee and registration charges.

4. After a time when the seller was making procastination the plaintiff have issued a notice on 23.10.2012 through this advocate that notice was served upon the defendant No.1 on 29.10.2012 but he has not replied that and not executed the sale-deed contrary to that on 03.11.2012 he sent a notice and expressed that he rescind the contract. The notice was replied by plaintiff on 20.11.2012 after that the suit was filed.

5. The defendant No.1 in his written statement has denied that he has entered into a contract with the plaintiffs, he has also denied that he has received any consideration amount and also pleaded that the plaintiffs were not ready and willing to perform their part. The time was essence in the contract and by sending a notice on 23.10.2012 he has terminated the contract he is not bound to perform the contract, suit be dismissed.

6. In additional reply through amendment the respondent has admitted that on 22.11.2011 he has entered into an agreement for sale of the disputed land on the consideration amount of Rs.3,58,750/- and in that respect earnest amount of Rs.1,00,000/- was paid by the plaintiffs and rest consideration amount of Rs.2,58,750/- was to be paid within six months. The respondent No.1 was ready to execute the registered sale-deed but plaintiffs have failed to pay the rest of consideration amount within six months hence, the respondent is not liable to perform the contract.

He is entitled to forfeit the advance amount of Rs.1,00,000/- as plaintiffs have violated the conditions of agreement. Thus, the plaintiffs cannot seek a specific performance of the contract.

7. On the basis of pleading the trial Court framed the issues, recorded the evidence of the parties and after hearing the parties passed the judgment by which the suit of the plaintiff was decreed.

On appeal the appellate Court affirmed the judgment and decreed passed by the trial Court and dismissed the appeal hence, this second appeal.

8. Learned counsel of the appellant has submitted that for the trial Court as well as the appellate Court erred for decreeing the suit.

The suit is not filed as per forms 47 and 48 of the appendix A of the CPC. Plaintiffs have never pleaded that they are ready and willing to perform their part thus, the respondent/plaintiffs have failed to plead the essential fact for decree of specific performance of the contract.

Learned counsel has further submitted that the trial Court as well as the appellate Court has wrongly interpreted the legal position and not properly appreciated the evidence on