- (1.) THIS Second Appeal is on behalf of the defendant Nos. 2 and 3 namely Kamla and Kunwar Sain, who resisted a suit filed by the present respondent Nos. 1 and 2 for relief of specific performance of contract dated 21-12-1966 for sale of nine agricultural plots with a total area of 5. 30 acres in District Mathura. In addition to the present appellants- defendants the executant of the agreement in question namely Ninua was impleaded as defendant No. 1 in the suit. An another subsequent purchaser of the property in question, namely Smt. Ram Dulari was arrayed as defendant No. 4 in the suit. It was pleaded by the plaintiffs that defendant No. 1 negotiated the sale of the disputed plots with the plaintiffs for a total consideration of Rs. 10,000/- out of which he received a sum of Rs. 7,000/- as earnest money on the date of execution of the agreement and he gave possession of the said agricultural plots on that date itself. The defendant No. 1-Ninua subsequent to the said agreement deposited ten times revenue of the plots with the authorities concerned. But he in collusion with the appellants- defendants No. 2 and 3 and also the defendant No. 4 negotiated a deal of transfer of those plots in their favour. Having got the information of this development, the plaintiffs approached the appellants-defendants No. 2 and 3 and tried his best to dissuade them from purchasing the plots by giving them due information that a prior agreement of sale had already been obtained by them from the owner (Ninua) and its possession has also been taken over by them. The plaintiffs also approached the defendant Nos. 1, 2 and 3 and warned them against execution of the sale deed even at the Sub-Registrar's Office where Ninua and other defendants were present for executing of the sale documents in favour of defendant Nos. 2 and 3. All these efforts of plaintiffs proved of no avail and out of nine plots in question, seven plots were illegally transferred by Ninua in favour of the appellant- defendants No. 2 and 3. Later on, the defendant No. 4 who is respondent No. 4 in this appeal also illegally obtained a sale deed of the remaining two plots in question from Ninua on 18-4- 1968.
(2.) THE plaintiffs also claim that they had always been ready and willing to perform their part of the agreement in question towards the execution of the sale deed. But when they found no recourse open to them except to file a suit before the competent Court of law, they preferred this Suit No. 76 of 1968 in Court of Civil Judge, Mathura, where it was resisted by defendant No. 1 Ninua who filed his written statement whereas the, defendants No. 2 and 3 together filed a common written statement and on behalf of the defendant No. 4 another written statement was filed before the trial Court. After full trial of the suit, the learned Civil Judge vide judgment and decree dated 27-4-1971 decreed the suit and granted the relief for specific performance of contract in favour of the plaintiffs. This judgment however, was appealed against by the two sets of the defendants by filing separate appeals in the Court of District Judge, Mathura being Civil Appeal Nos. 137 of 1971 and 36 of 1972, which were finally decided by the 1st Addl. District Judge, Mathura vide judgment and decree dated May 11, 1977. Both the appeals were dismissed and the judgment and decree passed by the trial Court were affirmed. The Courts below taking into the entire aspect of the matter demonstrated in the pleadings of the parties and in the evidence adduced by them have given concurrent findings that the appellants- defendants No. 2 and 3 and respondent-defendant No. are though the purchasers of the plots in question but they are not bona fide purchasers having sufficient notice of the previous agreement in question executed by their vendor defendant No. 1 in respect of the same plots in favour of the plaintiffs. They ventured to purchase the property and they could not be given any benefit of such purchase, which is not at all a bona fide one. The Courts have also held that the defendant No. 1-Ninua had executed the agreement in question, which was a valid document conferring due legal rights for getting its specific performance done in their favour. Accordingly, finding favour with the contentions of the plaintiffs, the suit for specific performance was decreed from both the Courts below. These Courts however, appear to have not given due recognition to the legal aspect of the matter as envisaged under Section 16 (c) of the Specific Relief Act, 1963 (for short the 'act') imposing a mandatory obligation upon the plaintiffs to aver and prove their willingness to perform their part of contract before and after filing of the suit and also before the decree was passed. No discussion or finding has been recorded on this point in the judgment of both the Courts below.
(3.) THEREFORE, aggrieved with the aforesaid judgment of the lower appellate Court, the defendant Nos. 2 and 3 have come up in this second appeal under Section 100 of the Code of Civil Procedure (for short 'c. P. C. ' ). I have heard Sri S. N. Singh, learned counsel for the appellants and Dr. (Ms.) Madhu Tandon holding brief of Sri G. N. Verma, learned counsel representing the plaintiffs-respondents and have gone through the entire materials available on record. The original records of the lower Court have also been perused.;