- (1.) This is a first appeal by the appellant (hereinafter referred to as 'the plaintiff') against the judgment and decree dated 26.10.1983 passed by the learned Additional District Judge, Sirohi by which the suit filed by the plaintiff against the respondents (hereinafter referred to as 'the defendants') for specific performance of the agreement dated 2.4.1976 (Ex. 1) was dismissed. Note That during the pendency of this appeal, the defendant No. 1 Basti Mal died and his Legal Representatives were taken on record.
(2.) The facts giving rise to this appeal are as follows :- The plaintiff filed a suit for specific performance against the defendants on 21.3.1979 alleging that the original defendant No. 1 Basti Mal (now died) agreed to sell a plot No. 10-H situated in Veer Durga Das Nagar, Pali to the plaintiff on 2.4.1976 through agreement (Ex. 1) for Rs. 17,551/- and on the same day, the plaintiff paid to the defendant No. 1 Rs. 2,001/-. It was agreed between the parties that rest of the amount of Rs. 15,550/- would be paid by the plaintiff to defendant No. 1 at the time of registration and the registered sale would be executed before 2.5.1976. It was further agreed that in case the clearance certificate either from the Municipality or UIT is required, the same would be obtained by the defendant No. 1. It was further agreed that in case the defendant No. 1 could not get the sale deed registered, the defendant No. 1 would pay to the plaintiff doubt amount of the advance money. It is further alleged that the defendant No. 1 had not obtained the clearance certificate as in the original patta Ex. D-1, there were two conditions (3) and (4) and according to these conditions, if the house was not constricted by the defendant No. 1 within two years from the date of the purchase i.e. 4.6.1964 the patta could be cancelled by the Municipality and possession can be taken back. Since the defendant No. 1 has not complied with the condition Nos. (3) and (4) of the patta (Ex. D-1) issued in his favour, the plaintiff was very much worried and wanted a clear title and that is why he pressed for clearance certificate, for which the defendant No. 1 did not care at all, despite several letters issued to him by the plaintiff. The plaintiff also wrote letters to the defendant No. 2 and sought explanation from the Municipality about the title of the defendant No. 1, but the defendant No. 2 did not reply at all. The plaintiff has always been ready and willing to perform the terms of the agreement but it was the defendant No. 1, who did not pay any heed and because of the fault on the part of the defendant No. 1, the said agreement (Ex. 1) could not be executed. The plaintiff, therefore, filed the suit against the defendants for specific performance of agreement Ex. 1 and further, alternatively, it was prayed by the plaintiff that Rs. 2,901/- (sic. 2001/-) be refunded to the plaintiff alongwith the interest etc. etc.
(3.) The suit of the plaintiff was contested by the defendant No. 1 by filing a written statement on 5.5.1979 before the lower court stating that it was the duty of the plaintiff to purchase stamps of registry, which he has failed to do so and the defendant No. 1 had always been ready to get the sale deed registered in favour of the plaintiff, but the plaintiff did not care at all and that the title of the defendant No. 1 was clear and the plaintiff on one or the other pretext always wasted his time asking for a clearance certificate and, therefore, the suit be dismissed.;