NISHA GUPTA,J. - (1.) THE instant civil second appeal has been preferred against the judgment and decree dated 17/07/1995 passed by the court of Additional District Judge, Baran by which regular first appeal filed by the defendant -respondents has been allowed and the judgment and decree dated 05/05/1994 passed by the court of Additional Civil Judge -cum -Additional Chief Judicial Magistrate, Shahbad, District Baran decreeing the suit in favour of the plaintiff -appellant, has been reversed.
(2.) THE facts giving rise to this appeal in brief are that the plaintiff -appellant has filed a suit for specific performance, which was decreed by the court below but the first appellate court has reversed the judgment and decree of the court below mainly on the ground that there is absence of readiness and willingness on the part of the plaintiff.
(3.) THE contentions raised in the plaint were that an agreement to sell has been executed between the present plaintiff and late Shri Motilal, father of defendant -respondent No.1 -Kalla on 14/01/1977. The sale consideration was agreed to be Rs.3000/ -. Rs.2500/ - was paid in advance and Rs.500/ - was agreed to be paid at the time of execution of the sale -deed. Thereafter, Shri Motilal has died and respondent No.1 avoided execution of the sale -deed. On 11/02/1983, plaintiff -appellant went to him with balance sale price of Rs.500/ - but he denied to execute the sale -deed hence, suit has been filed. Respondent No.1 has denied even agreement to sell and his contention was that he is owner of the property and his father Motilal was not having any authority to enter into agreement to sell. Court below has allowed relief of specific performance to the plaintiff, which has been set -aside by the first appellate court on the ground in six years, appellant has done nothing to get the sale -deed executed and he is not ready and willing to perform the part of his contract. Hence, this appeal. This court while admitting the appeal on 20/12/1995, framed the following substantial questions of law: - (a) Whether the first appellate court has exceeded its jurisdiction in setting aside the judgment and decree of the learned trial court even after affirming the finding of the trial court on all the issues framed by the trial court and arising before the parties? (b) Whether the first appellate court has acted in exercise of its jurisdiction with material irregularity/illegality in deciding the appeal on the basis of fact which was not in issue between the parties and on which no issue was strucked by the trial court no such an issue arose on the basis of pleadings of the parties -;