- (1.) THIS appeal is directed against the judgment and decree of the Second Temporary Civil and Sessions Judge, Azamgarh dated Aug. 23, 1969.
(2.) THE defendant No. 1 was the Bhumidhar of the land specified at the foot of the plaint. On Oct. 29, 1963 be entered into an agreement in writing to sell, this land to the plaintiff for consideration of Rs. 4000/- of which a sum of Rs. 500/- was paid by the plaintiff to the defendant No. 1 the same day as earnest. THE sale was to be executed after obtaining permission from the Settlement officer (Consolidation) since the land in question was under consolidation proceedings. THE plaintiff asked the defendant No. 1 to apply for the permission which the defendant N. 1 did. On the permission being obtained the plaintiff insisted upon the defendant No. 1 to execute the sale in his favour and obtain the balance of the sale consideration. This was evaded by the defendant No. 1. On Dec. 21, 1963, the defendant No. 1 executed sale of the land in favour of the defendant No. 2. THE plaintiff required him to rescind the sale but to no effect. THE suit was instituted with these allegations on March 23, 1964 seeking the relief of specific performance of the agreement to sell. In defence the defendant No. 2 averred that there was no agreement to sell arrived at between the plaintiff and the defendant No. 1. It was refuted that the defendant No. 2 had notice of any such agreement. The plea taken was that he was a bona fide purchaser for consideration of Rs. 4800/- without notice. The defendant No. 1 did not put in contest and the suit proceeded ex parte against him. The trial court found against the defendant No. 2 on both the pleas raised by him. The agreement to sell was found to be duly executed on Oct. 29, 1963, it was also found that the defendant No. 2 had notice to that agreement. The suit was, therefore, decreed for the relief of specific performance of agreement to sell on March 31. 1966. The appeal filed by the defendant No. 2 against the decree was dismissed on Aug. 23, 1969. The findings recorded by the trial court on both the points were affirmed. Aggrieved the defendant No. 2 preferred this appeal. Due to his death during the pendency of the appeal the legal representatives were brought on the record.
(3.) SRI S. N. Verma, learned counsel for the appellants submitted that there was no agreement to sell executed by the defendant No. 1 in favour of the plaintiff on Oct. 29, 1963 and that the defendant No. 2 did not have notice of any such agreement. Both these contentions are concluded by the concurrent findings of fact. The agreement was found duly executed vide Ex. II. In regard to the notice it was held on the basis of the evidence placed on the record that the defendant. No. 2 had been present personally when the agreement was executed. The testimony of the plaintiff to this effect was accepted by both the courts below. There is no perversity shown to exist in relation to these findings. In view thereof these contentions have to be rejected. Sri S. N. Verma learned counsel for the appellants has contended chiefly, however, that there has been no compliance to the mandatory requirement of S. 16 (c) Specific Relief Act, 1963 and, therefore, the suit could not be decreed for specific performance. In terms of S. 16 (c) specific performance of a contract cannot be enforced in favour of a person "who fails to aver and prove that he has performed or has always been ready and willing to perform the essential terms of the contract which are to be performed by him. . . . . " Form No. 47 of Appendix A of the First Schedule of the Civil P. C. which reads as under was also referred to- "the plaintiff has been and still is ready and willing specifically to perform the agreement on his part of which the defendant has had notice. ";