The agreement's terms regarding land measurement do not render it void; the appeal is admissible as per Section 96 CPC.

Appellants have filed this appeal aggrieved by the judgment and decree dated 14.02.2020 passed by IInd ADJ Dabra in RCSA No.100007/2014 against them and in favour of Laxmichand by which learned trial Court decreed the suit of Laxmichand for specific performance.

Brief facts of the case are that on 20.07.2011, an agreement was executed between the appellants and Laxmichand for the sale of land situated at Village- Bjhera, Tehsil-Cheenor, District-Gwalior situated at Survey No.385/1/1(kha) MIN Rakva 0.418 hectare out of 1.174 hectare i.e. 2 Beegha for consideration of amount Rs.36,00,000/-. At the time of execution of agreement to sale, Rs.15,00,000/- were paid to the appellant Kusum Devi (Rs.10,00,000/- cash and Rs.5,00,000/- by chaque No.79806 of UCO Bank). The last date for execution of sale deed was fixed as 20.01.2012 and remaining amount of Rs.21,00,000/- would be paid at the time of registration of sale-deed. It was also agreed that if within the aforesaid period, appellant-Kusum Bai will not executed the sale deed by taking remaining consideration amount Laxmichand will be free to get sale deed executed through Court in which heirs of Kusum Devi will have no objection if within aforesaid period remaining consideration amount will not be paid, earnest money will be forfeited. In aforesaid agreement, it has also been written that measurement of the land will be done. Thereafter, for execution of aforesaid agreement, Laxmichand gave notice to the appellant Kusum Devi on

13.11.2013 (Annexure P-3) and after the expiry of the period of registration as mentioned in aforesaid agreement i.e. 20.01.2012 (Annexure P-7) which was replied by the appellant. Despite giving notice, appellant has not executed the sale deed in favour of Laxmichand. Being aggrieved by the same, he has filed a civil suit for specific performance of aforesaid agreement before the Court below.

Learned Court below after framing issues and adducing evidence in that regard, decreed the suit in favour of Laxmichand.

Learned counsel for the appellant during the course of argument submitted that appellant was always ready to execute a sale deed as per the agreement dated 20.07.2011 in which last date of agreement was specific mentioned as 20.01.2012 but Laxmichand was not ready and willing to get the sale deed executed with remaining consideration amount of Rs.21,00,000/- in his favour. Before the aforesaid date, he has not given any notice to him for execution of aforesaid agreement. Measurement of the aforesaid land was not condition precedent of the agreement. Learned trial Court has erred in decreeing the suit.

Learned counsel for respondents submitted that Laxmichand was willing and ready to execute the sale deed in his favour subject to payment remaining consideration amount of Rs.21,00,000/-. Laxmichand requested the appellants many times but appellant did not pay any heed to his request and did not get the land measured as agreed in the aforesaid agreement. Due to which, he lodged a report at Police Station Antri and appellant assured that he will execute the sale deed up to 06.06.2012. Despite assurance, he has not executed the sale deed. Learned trial Court on the basis of evidence produced in support of plaint rightly decreed the suit. There is no substance in appeal and the same deserves to be dismissed. In support of his contention, he relied upon the case of Mahesh Chand Gupta and Ors. Vs. A. K. Mishra reported in 1999 (2) JLJ 386 in which it is held that to vendor not getting the land measured as agreed cannot say that time fixed for sale was essence of contract it has also relied upon the case of Syam Prakash Mishra and Ors. Vs. Vijay Pratap Singh and Ors. reported in AIR 2006 Allahabad 56 in which it has been laid down that an appeal under Section 96 CPC is not to be admitted as a matter of right or even under convention unless court is satisfied about the merits of the Appeal.

On going through the agreement executed between the parties on

20.07.2011,