- (1.) Heard learned Counsel for the defendant-appellant and learned Counsel for the plaintiffs-respondents first set, who has appeared through caveat at the admission stage. Learned Counsel were also heard on 22.2.2012. This is one of the defendants' second appeal arising out of O.S. No. 328 of 1990 which was filed by Nanayee Singh against Bishwanath. Appellant is son of Bishwanath and proforma respondents No. 2 to 8 are wife, daughters and other sons of Bishwanath. Respondents No. 1/1 to 1/8 are sons of Nanyee Singh original plaintiff.
(2.) The suit was filed for specific performance of an agreement for sale executed by Bishwanath in favour of Nanyee Singh on 22.8.1989. Agreed sale consideration was ' 45,000/- out of which ' 44,000/- had been paid as earnest money. Only ' 1000/- remained to be paid as balance sale consideration, sale-deed was to be executed within a year. The suit for specific performance of the agreement for sale was decreed on 13.8.1999 by Civil Judge, Senior Division, Deoria. Against the said decree original defendant filed Civil Appeal No. 71 of 1999, which was dismissed on 10.11.2011, hence this second appeal.
(3.) The argument of learned Counsel for the appellant that plaintiff was not ready and willing to perform his part of the agreement is not at all convincing. The main argument is that plaintiff did not prove that he had the money. Almost entire sale consideration (about 97%) had been paid as earnest money and only ' 1000/- were to be paid more. Accordingly, it cannot be accepted that he was not having money to pay balance sale consideration or that he did not have money to bear expenses for execution of the sale deed. Learned Counsel for the appellant has referred to the oral statement of the plaintiff, copy of which is Annexure-IV to the affidavit filed in support of stay application in this second appeal. There is nothing in the said statement, which can show that plaintiff was neither having money nor was in a position to arrange for the money. Both the Courts below after thorough examination of the evidence rightly held that plaintiff was ready and willing to perform his part of the agreement. Agreement was also found to be proved.;