2025:JHHC:20419 1 IN THE HIGH COURT OF JHARKHAND AT RANCHI S. A. No. 274 of 2017 Smt. Meena Devi, wife of Dharmendra Vishwakarma, Resident of Chorindi, P.O.-Boreya, P.S.-Bariatu, District-Ranchi, Jharkhand. … … Appellant/Appellant/Plaintiff Versus 1. Smt. Prem Lata Pandey, W/O Sri Pradeep Kumar Pandey, Resident of Karamtoli, P.O. & P.S.- Lalpur, District-Ranchi, Jharkhand. … … Respondent/Respondent/Defendant 2. Smt. Sonia Devi, W/O Bishun Ram, Resident of Chorindi, P.O.- Boreya, P.S.- Bariatu, District-Ranchi, Jharkhand. … … Performa Respondent/ Appellant/Plaintiff --- CORAM :HON'BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY --- For the Appellant : Mr. Sudhir Kr. Sharma, Advocate For the Respondents : Mr. Indrajit Sinha, Advocate : Mr. Ankit Vishal, Advocate --- 27/24.07.2025 1. Heard the learned counsel appearing on behalf of both the parties. 2. This appeal has been filed against the judgement dated 31.03.2017 (decree signed on 13.04.2017) passed by the learned Additional Judicial Commissioner-V, Ranchi in Title Appeal No. 76 of 2013 whereby the title appeal has been dismissed and judgment dated 30.09.2013 (decree singed on 08.10.2013) passed by the learned Munsiff, Ranchi in Title Suit No. 56 of 2005 has been affirmed. 3. The learned Munsiff had dismissed the title suit seeking specific performance of contract. 4. The appeal was admitted vide order dated 08.11.2019. On 08.11.2019 only one substantial question of law was framed and thereafter, four additional substantial question of law has been framed vide order dated 12.06.2025 and thus there are five substantial questions of law to be answered in this appeal which are as follows: - 2025:JHHC:20419 2 i. Whether the learned Appellate Court below failed to consider Section 16(1) C of Specific Relief Act, 1963 in its right perspective or not? ii. Whether learned 1st Appellate Court while passing impugned judgement and decree committed perversity in holding that there is no concluded and valid agreement dated 30.1.1994 (Ext. 4) between plaintiff no. 1/appellant and defendant despite holding that plaintiff no. 1 contributed payment of Rs. 39,000/- (19,000/- on 30.1.1994 + 15,000/- 14.3.1994 and 5,000/- on 11.12.1994 through her husband Dharmendra Vishawakarma (PW 8) to the defendant and directing the defendant to return the aforesaid amount to Plaintiff No.1 along with interest of 12% w.e.f 11.12.1994? iii. Whether finding of the learned 1st Appellate Court that Ext. 4 is not validly concluded agreement between plaintiff no. 1 and one Asha Devi and defendant and plaintiff no. 2 not being party to the agreement, the suit for specific performance was not maintainable as the plaintiffs has no valid cause of action, is nothing but perverse? iv. Whether Asha Devi was a necessary party to the suit? v. Whether the agreement is severable in nature and could be subject matter of specific performance of contract only with respect to Smt. Meena Devi plaintiff no.1 in exclusion of Asha Devi? 5. The title suit was filed for the following reliefs:- a. That after adjudication please pass a direction to the defendant to execute a sale deed in favour of the plaintiffs within three months. b. That in failure of execution of sale deed the court shall execute deed under the process of the court in favour of plaintiffs. c. Cost of the suit. d. Other relief or reliefs for which the plaintiffs are entitled to get. 6. The Title Suit was filed by two plaintiffs namely Meena Devi and Sonia Devi seeking specific performance of contract of sale of immovable property dated 30.01.1994 (Exhibit-4) entered into between Meena Devi and Asha Devi on one part as purchaser and sole defendant namely Prem Lata Devi as vendor. 7. The schedule of the property relating to the combined claim of the plaintiffs as per plaint is as follows: - 2025:JHHC:20419 3 The vacant land comprising R.S. Plot No. 176, under Khata No. 24, Area 7 Kathas 3 Chattak out of total area 76 decimals of village Chirondi. P.S. Bariatu, District Ranchi, bounded and butted as follows:- North: Road South: Plot No. 175 East: 176 A West: 176 C 8. After dismissal of the title suit both the plaintiffs filed the 1st appeal and after dismissal of the 1st appeal, only one of the plaintiffs, namely Meena Devi is the appellant before this Court and the co- plaintiff has not filed any appeal and is accordingly a proforma respondent in second appeal who has not appeared despite service of notice which was accepted as validly served vide order dated 24.06.2023. Arguments of the appellant 9. Learned counsel for the appellant has submitted that the agreement of sale dated 30.01.1994 (Exhibit-4) for a total consideration of Rs.75,000/- was entered into between Meena Devi and Asha Devi on one part and the defendant namely Prem Lata Pandey on the other. Meena Devi and Asha Devi had two distinct portions of the property. 10. He submits that Asha Devi opted out of the agreement and in her place, Sonia Devi came who paid the consideration amount to Asha Devi and consequently the monetary part between Asha Devi and defendant was taken care of. 11. The suit for specific performance of contract was filed by Meena Devi and Sonia Devi and admittedly no fresh agreement was entered into between/amongst the parties. 12. The learned counsel has submitted that so far as the required permission for transfer is concerned, the application was filed by the defendant for selling the property in the name of Meena Devi and Sonia Devi which itself goes to show that Sonia Devi was in picture in place of Asha Devi with consent of the defendant. 2025:JHHC:20419 4 13. Meena Devi, the sole appellant herein, had constructed a house over the portion of the property which was to her share as per the agreement and defendant had earlier filed an eviction suit against the husband of Meena Devi alleging default in payment of rent being Title Eviction Suit No. 34 of 2003 which was dismissed vide judgment dated 20.02.2010 (Exhibit-5) and the decree is marked Exhibit-6. 14. With respect to the agreement dated 30.01.1994 (Exhibit-4), the learned counsel for the appellant as well as the respondents have placed the agreement. It is not in dispute that as per the agreement (Exhibit-4), through the entire boundary with respect to the property to be sold to Meena Devi and Asha Devi together totaling 7 Katha and 3 ½ Chhatak has been mentioned, but separate boundary with respect to each one of them has not been mentioned. Further, though the total consideration amount of Rs. 75,000/- has been mentioned in the agreement (Exhibit-4), but bifurcation of the consideration between Meena Devi and Asha Devi has not been mentioned and further the agreement does not have a timeline as to after how much time the sale deed would be executed. The learned counsel for the respondents has also submitted that there is no mention in the agreement that possession of any portion of the property has been handed over to the appellant (Meena Devi). 15. Learned counsel for the appellant has referred to paragraph 12 of the plaint to submit that it has been stated therein that the appellant, immediately after the execution of agreement, has constructed a temporary construction over the property which she occupied immediately after the agreement. He has submitted that in response to this statement, the defendant had made a statement that the house was constructed by the defendant and it was let out to the appellant, but the eviction suit being Title Eviction Suit No. 34 of 2003 has been dismissed. 16. During the course of argument, the learned counsel for the appellant has submitted that the balance consideration amount to be separately paid by the appellant (Meena Devi) has not been mentioned 2025:JHHC:20419 5 in the plaint. However, the learned counsel for the appellant upon his own calculation made during the court proceedings has stated that Rs. 54,000/- would be the amount payable by the appellant (Meena Devi). He submits that Rs. 39,000/- was already paid. 17. The learned counsel submits that even if the agreement (Exhibit-4) was not concluded with Sonia Devi as held by the learned 1st appellate court as her claim was, she had substituted Asha Devi, then also there was a concluded agreement between Meena Devi and the defendant and therefore the agreement (Exhibit-4), to the extent it is between Meena Devi and the defendant, is required to be enforced. He submits that findings of the learned 1st appellate court with regard to agreement between Meena Devi and the defendant is perverse. 18. The learned counsel for the appellant has submitted that there was no direction to refund money to the plaintiff No. 2 as the court had come to a conclusion that there was no concluded contract between plaintiff No. 2 and the defendant, but so far as plaintiff No. 1 is concerned, the courts have themselves directed to refund Rs.39,000/- to the plaintiff No. 1[appellant (Meena Devi)] and this aspect of the matter itself goes to show that there was a concluded contract, so far as plaintiff No. 1[appellant (Meena Devi)] and defendant is concerned. 19. 19. The learned counsel for the appellant submits that the case of the appellant is squarely covered by Section 12(4) of the Specific Relief Act, 1963 and the part of the agreement (Exhibit-4) to the extent it relates to plaintiff No. 1[appellant (Meena Devi)] and the defendant is required to be performed irrespective of whether Sonia Devi, who had replaced Asha Devi, is not aggrieved by the impugned judgment or not. He submits that Asha Devi is not a necessary party in the suit. 20. With respect to the 1st substantial question of law, the learned counsel for the appellant has submitted that though no specific date has been mentioned as to when the appellant had approached the defendant to show readiness and willingness to perform her part of the 2025:JHHC:20419 6 contract, but he has referred to paragraph 13 and 17 of the plaint wherein the plaintiff had stated about sending legal notices to the defendant which were received by the defendant on 01.07.2004. He has referred to paragraph 19 and 20 of the plaint to submit that the refusal to abide by the agreement (Exhibit-4) was on 15.02.2005 and the suit was filed on 22.03.2005. Learned counsel for the appellant has referred to paragraph 7 and 8 of the examination-in-chief of P.W. 5 and has submitted that nobody appeared for cross-examination of this witness and therefore, the entire evidence of P.W. 5 remained intact. Learned counsel for the appellant has further referred to evidence of P.W. 2 and has submitted that in paragraph 9 of his evidence-in-chief, he has stated that out of the total consideration, Rs. 55,000/- was already paid and at the insistence of the plaintiffs, an application was filed for taking permission for sale of land and even after getting permission, the defendant was approached time and again but she did no execute the sale-deed. He has further submitted that ultimately the eviction suit was filed wherein a stand was taken that the plaintiff no. 1 was not the tenant under the defendant. Argument of the respondent no.1 (the defendant) 21. Learned counsel for the respondents, on the other hand, has submitted that on the face of the agreement (Exhibit-4), it is not severable although the property was to be transferred to two persons and the area with respect to each of them was mentioned, but without boundary with respect to their respective share as the entire property was to be transferred as a whole. He has also submitted that there is neither any pleading nor any evidence to show as to how much amount of consideration was to be paid by each one of them; both the plaintiffs were fighting the suit together and there was only evidence that Rs. 55,000/- was paid in connection with the property, but there was no evidence as to how much remaining amount was to be paid by each of them. 22. He has submitted that in aforesaid circumstances, the agreement (Exhibit-4) is incapable of performance qua the appellant alone. He 2025:JHHC:20419 7 has also submitted that there is no readiness and willingness to perform the remaining part of the contract from the side of the appellant (Meena Devi) when seen in the light of the provision of Section 16(1)(c) of the Specific Relief Act, 1963. The learned counsel has relied upon the judgment passed by the Hon'ble Supreme Court reported in (2019) 17 SCC 429 (Vijay Kumar and others Vs. Om Prakash) (paragraph 6) and also the judgment reported in (2023) 11 SCC 775 [U.N. Kirshnamurthy (since deceased) through Legal Representatives Vs. A.M. Krishnamurthy] (paragraph 45). 23. Learned counsel for the respondents submits that since the agreement was not severable, the remaining question also fall in place and therefore, no relief can be granted to the appellant (Meena Devi). Rejoinder arguments of the appellant (Meena Devi) 24. In response, learned counsel for the appellant has submitted that the appellant being in possession of a portion of the property, the property stood duly identified. He has further submitted that the readiness and willingness is duly proved, inasmuch as, there is no cross-examination from the side of the defendant in connection with the statement made by the witnesses regarding readiness and willingness to perform their part of the contract. He has also submitted that though the propositions of law laid down by the Hon'ble Supreme Court in the judgment cited by the respondents is not in dispute, but the same do not apply to the facts and circumstances of this case. Findings of this Court. 25. The case of the plaintiffs as per the plaint, in short, was that the suit land having area of 7 katha 3 chattak as described in the schedule to the plaint belonged to the defendant who agreed to sell the suit land to the plaintiff No. 1 and Asha Devi for a total consideration of Rs.75,000/- and a written agreement of sale (Exhibit-4) dated 30.01.1994 was entered into between the plaintiff No.1 and Asha Devi on one hand and the defendant on the other. Plaintiff no.1 and Asha Devi paid Rs.35,000/- at the time of agreement. 2025:JHHC:20419 8 26. It was the case of the plaintiffs that the physical possession of the suit property was handed over to plaintiff No.1 and Asha Devi; Asha Devi remained in possession till 14.03.1994, but the plaintiff No.1 continued her possession; Asha Devi changed her mind and decided not to purchase the suit land and orally settled with plaintiff No.2 to purchase the land in her place and Asha Devi also received back her advance money in connection with the land from plaintiff No.2. Thus, Asha Devi was replaced by plaintiff No.2 for the purpose to purchase of the property to the extent which related to Asha Devi. A further amount of Rs.5,000/- was paid by plaintiff No.1 to the defendant on 11.12.1994. 27. It was also the case of the plaintiffs that they had put demarcation over the suit land with respect to their respective share and plaintiff No.1 had also constructed a temporary residential house over her portion immediately after executing of the agreement dated 30.01.1994 (Exhibit-4). Thereafter, the defendant applied for grant of permission to sell the land which was granted on 22.01.1999 in favour of the plaintiffs but the defendant never showed her intention to perform her part of contract and always gave assurance to the plaintiffs that since the plaintiffs are in possession, nobody is going to disturb them and the sale deed will be executed later on. A statement was made in the plaint that the plaintiffs were always ready and willing to perform their part of the contract and they always shown their readiness and willingness to perform their part of the contract. It is further case of the plaintiffs that on 24.06.2004 a notice was issued by the plaintiffs to the defendant with a request to execute the sale deed, but the plaintiffs did not receive any reply although the advocate’s notice was received by the defendant on 01.07.2004. 28. However, the plaintiff No.1 came to know on 02.01.2004 that the suit for eviction was already filed by the defendant against the husband of plaintiff No.1. It is further case of the plaintiffs that they requested the defendant to do her part of the contract but on 15.02.2005 the defendant refused to execute the sale deed in favour of 2025:JHHC:20419 9 the plaintiffs. They asserted in the plaint that plaintiffs were ready and willing to pay the balance consideration amount at once. 29. The written statement was filed by the defendant opposing the prayer and also raising technical grounds including valuation of the suit property, maintainability of the suit being barred by law of limitation, estoppel of acquiescence and having no cause of action. It was asserted that the description of the suit property was vague and not identifiable. It was further stated that the suit was a counter blast of the Eviction Title Suit No. 34 of 2003 which was pending in the court in which the husband of the plaintiff No.1 was the sole defendant. The other statements made in the suit was denied and it was asserted that the real consideration amount of the land was Rs.7,30,000/- and not Rs.75,000/- and the agreement was alleged to be forged and fabricated and it was also asserted that no money was received by the defendant and that the witnesses are unknown to the defendant. 30. It was asserted that the husband of the plaintiff No.1 was month to month tenant of the defendant and he was in possession as tenant and Asha Devi was the sub tenant. It was also asserted that since there was the house over the occupancy raiyati land so proceeding seeking permission under section 26 of the U L Ceiling Act is unwarranted in law. It was also asserted that the defendant never received notice dated 24.06.2004. 31. The learned trial court has framed altogether 10 issues which are as follows: - i. Is the suit maintainable in its present form? ii. Have the plaintiff got valid cause of action for the suit? iii. Is the suit maintainable under the provisions of law of limitation? iv. Have the plaintiffs entered into an agreement for the sale of the suit land with the defendant? v. Have the plaintiffs paid an advance to confirm the agreement dated 30.1.1994? vi. Has the defendant delivered possession to the plaintiffs after execution of said agreement? 2025:JHHC:20419 10 vii. Have the plaintiffs shown their willingness and readiness to purchase the suit land? viii. Has the defendant applied for permission, vide Permission Case No. 49/99 under the provisions of U.L.Ceiling Act? ix. Have the plaintiffs constructed a residential house over the suit land after execution of an agreement? x. Are the plaintiffs entitled to get relief/ reliefs as prayed thereon? 32. The plaintiffs examined 9 oral witnesses and documentary evidences in support of their case which are as follows:- Oral Evidence on behalf of Plaintiffs P.W.1 Rajendra Gope P.W.2 Chaitu Oraon P.W.3 Bahadur Munda P.W.4 Prabhash Chouhdary P.W.5 Ravindra Ram P.W.6 Smt. Meena Devi- plaintiff no.1 P.W.7 Smt. Sonia Devi- plaintiff no.2 P.W.8 Dharmehdra Vishwakarma- husband of plaintiff no.1 P.W.9 Ajay Kumar Documentary evidence on behalf of plaintiffs Exhibit-1 The signature of Ravindra Ram on the agreement dated 30.01.1994. Exhibit-2 Certified Copy of no objection certificate in Case No. 549 of 1999 under Section 26 of Urban Land (Celling and Regulation) Act 1976. Exhibit-3 and 3(a) Advocate notice Ext.3(a) is postal registration receipt of the advocate notice dated 24.06.2004. Exhibit-4 The agreement dated 30.01.1994. Exhibit-4(A) to 4(B) Signatures of witnesses on the agreement dated 30.01.1994. Exhibit-5 Certified copy of the judgment dated 20.02.2010 in Eviction Title Suit No. 34 of 2003. Exhibit-6 Certified copy of the decree passed in Eviction Title Suit No. 34 of 2003. Exhibit-7 The Carbon Copy of the advocate notice dated 24.06.2004. 2025:JHHC:20419 11 Exhibit-7(A) The postal registration receipt. Exhibit-8 Acknowledgment regarding receipt of advocate notice. 33. Neither oral nor documentary evidence has been filed on behalf of the defendant in support of her case. 34. So far as issue No. 1 and 2 are concerned, it was held that since issue No. 6, 7 and 9 were decided against the plaintiffs, there was no cause of action and consequently, the suit was not maintainable and the issue No.1 and 2 was decided against the plaintiffs. So far as issue No. 10 is concerned, learned trial court held that the plaintiffs being not shown their readiness and willingness to perform their part of the contract and also that the plaintiff No.2 was not a party to the agreement dated 30.01.1994 (Exhibit-4) and therefore, the suit cannot be decreed. With respect to issue No.3, the same was disposed of by simply stating that the defendant had not brought any oral or documentary evidence and issue No.3 was simply disposed of. So far as issue No. 6, 7 and 9 are concerned, the learned trial court recorded that plaintiff No.2 was not a party to the agreement dated 30.01.1994 (Exhibit-4); defendant was ready to abide by the agreement in the year 1999 but the plaintiff neither produced any written or oral evidence to substantiate their readiness and willingness to perform their part of the contract by making payment of the balance consideration amount and held that the plaintiffs were not ready and willing to perform their part of the contract; the advance money in connection with the agreement was paid by plaintiff No.1/her husband and Asha Devi and the defendant did not hand over the suit property to the plaintiffs; the defendant had sought permission for sale of property under Urban Ceiling Act for which a case No. 549 of 1999 are itself indicated that the plaintiffs had not constructed their residential house by that time over the suit property. The learned trial court ultimately decided issue no. 6,7 and 9 against the plaintiffs. Issue no. 4 and 5 were decided in favour of the plaintiff No.1 and against the plaintiff No.2 as plaintiff 2025:JHHC:20419 12 no.2 was not a party to the agreement. The issue No.8 was disposed of in terms of the discussions made in the judgment. 35. Both the plaintiffs jointly filed appeal. The learned 1st appellate court has framed altogether four points for determination which are as follows: - I. Whether there was any concluded contract between the plaintiffs and the defendant? II. Whether plaintiffs have been ready and willing to perform their part of the contract and are still ready and willing? III. Whether plaintiffs have valid cause of action and the suit is maintainable? IV. Whether the plaintiffs are entitled to the relief as claimed? 36. The findings of the learned 1st appellate court is as under:- “Point No. I 10. ………………………………………………………………………… ………………………. From the aforesaid testimony of the plaintiff no 1 it transpires that the defendant did not make any offer to her regarding her land and plaintiff no 1 has not accepted or given consent to any offer of sale of land by defendant. It was the husband of the plaintiff which agreed to purchase on offer given by defendant. Further there is no evidence given by plaintiff no 1 that any negotiation regarding the price or consideration money for any proposed sale or land by the defendant which clearly transpires from the aforesaid testimony of plaintiff no 1. there is no negotiation and settlement of term regarding the time place and manner of sale in the light of Ext-4. Therefore, I find that there is no meeting of minds regarding the terms of the agreement between the plaintiff no 1 and the defendant. It also transpires from Ext-4 that it was drafted and typed at the court campus Ranchi and as per statement of plaintiff her husband has taken it to the house of the defendant and obtained her signature on it. ………………………………………………………………………… ………………………………………………………………………… ………………..It is settled law that if a contract is to be made, the intention of the offeree to accept the offer must be expressed without leaving room for doubt as to the fact of acceptance or to the co-incidence of the terms of acceptance with those of the offer. The rule is that acceptance must be absolute and must correspondent with the terms of the offer. If 2025:JHHC:20419 13 the two minds were not ad idem in respect of the property to be sold there cannot be said to have been a contract for specific performance. The specific performance of a contract is actual execution of the contract according to its stipulations and terms. The stipulation and terms of the contract have therefore to be certain and the parties must have been consensus ad idem. The burden of showing the stipulations and terms of the contract and that the minds were ad idem is of course on the plaintiff. If the stipulation and the terms are uncertain, and the parties are not ad idem, there can be no specific performance, for there was no contract at all. Where there are negotiations, the court has to determine at what point if at all the parties have reached agreement. Severe hardship may be a ground for refusing specific performance even though it results from circumstances which arise after the conclusion of the contract. Ext-4 bears signature of Premlata Pandey dated 30.1.1994 as well as signatures of witness Kewal Choudhary (ext-4A) and Prabhash Choudhary (ext-4b). On first page of this Ext-4 signature of Premlata Pandey has been marked as Ext-A/3 as well as on the second page A/4. On the basis of aforesaid analysis testimony of the plaintiff No 1 Smt Meena Devi examined as PW-6 and examination of Ext-4 the alleged agreement of sale I find that there was no concluded agreement existed between the plaintiff no 1 and the defendant. Further the terms of Ext-4 having no stipulation regarding time, place and manner of execution of sale deed in pursuant to this document also makes the deed un-enforceable because this fact is in equitable to the defendant and grossly in favour of the plaintiff no 1. From the aforesaid Ext-4 original agreement as well as pleading of the plaintiff and the submission of the PW-6 plaintiff no 1 it is crystal clear that agreement executed in favour of Smt Meena Devi plaintiff no 1 and Smt Asha Devi (not party in the suit) it is further clear from testimony of the PW-7 plaintiff no. 2 that no agreement was executed by Premlata Pandey in her favour. Therefore, I find that there is no concluded and valid agreement between the defendant and plaintiff no 2 Smt Sonia Devi. Further I find that agreement dated 30.1.1994 was for the sell of entire 7 katha and 3 ½ chhatak land in favour of plaintiff no 1 Smt Meena Devi and Smt Asha Devi. Accordingly this point is decided against the plaintiffs and in favour of the defendant/ respondent. Point No.2 2025:JHHC:20419 14 It has been pleaded on behalf of the plaintiffs that plaintiffs were always ready to perform their part of contract. That the plaintiffs always shown their willingness and readiness to perform their part of the contract. That the plaintiffs have made request to defendant to execute sale deed with respect to land in suit in their favour but the defendant always took filmsy grounds and took some pretext or other. That on 24.6.2004 written notice was given by the plaintiffs to the defendant requesting her to execute sale deed. It has also been pleaded that defendant applied for granting permission to sale land under suit u/s 26 of the Urban Land Ceiling Act in the court of ADM Ranchi and the same petition was allowed on 22.01.1999. Further pleaded that plaintiffs paid maximum amount of the total consideration. That the plaintiffs are ready to bear cost of the registration of the sale deed and also ready to give balance amount adjusting amount paid as advance. On the other hand it has been pleaded on behalf of the defendant that there was house over the occupancy Raiyati land so proceeding u/s 26 of the written land ceiling act is unwarranted in law. No assurance was given by this defendant to the plaintiffs. Defendant was never in need of money. Never intended to transfer the suit land. Now it is admitted position on the record that Ext-4 was executed by defendant on 30.1.1994 but the suit for specific performance of contract has been filed on 22.3.2005 after more than eleven years. It is also admitted to the plaintiffs that defendants applied for permission u/s 26 of the Land Ceiling Act and the same was granted on 22.1.1999 but the plaintiff admittedly sent notice to the defendant on 24.6.2004. Though it has been pleaded by the plaintiff that they requested defendant to execute sale deed with respect to the land in suit in their favour. But there is no evidence when and where plaintiffs asked the defendant to execute sale deed in their favour and offered the balance money. It also transpires from the relief claimed by the plaintiffs that after adjudication direction to the defendant to execute sale deed in favour of the plaintiff within three months. Further it transpires that one of the parties to the original agreement dated 30.1.1994 Smt Asha Devi has admittedly withdrawn from the alleged agreement and not interested in its execution. Under the aforesaid fact and circumstances though there is no time fixed for execution of the sale deed in pursuance to Ext-4 dated 30.1.1994 but the delay and latches on the part of the plaintiff no 1 as well as non-participation of the other party of the agreement i.e. Smt Asha Devi I find that plaintiffs were not ready and willing to perform their part of contract. Therefore, 2025:JHHC:20419 15 finding of the learned lower court on this point are confirmed and this point is decided against the plaintiff and in favour of the defendants/ respondent. Point No. 3 Since one of the party to the original agreement Smt Asha Devi has not joined plaintiff neither she has been pleaded as party in the suit. Admittedly agreement was jointly in favour of the plaintiff no 1 and Smt Asha Devi. Entire land as mentioned in the agreement was to be conveyed in their favour after payment of balance amount as agreed in the agreement. Plaintiff no 2 was not a party to the Ext-4 which has been sought to be specifically enforced in this suit. Further there is no validly concluded agreement between parties therefore I find that plaintiffs have no valid cause of action and the suit is not maintainable as framed. Since plaintiffs have also failed to prove their readiness and willingness they are not entitled for relief of the specific performance. However, Rs.35000/- has been paid as advance amount on 30.1.1994 on behalf of the plaintiff no 1. Out of which plaintiff no 1 admitted that she contributed Rs 19000 thereafter there are two receipts dated 14.3.1994 and 11.12.1994 regarding receiving Rs.15000/- and Rs.5000/ respectively from Dharmendra Vishwakarma husband of the plaintiff no 1. Therefore, defendant/respondent is liable to return this amount having total Rs.39,000/- to the plaintiff no 1 with interest. Therefore defendant/ respondent is directed to return and pay Rs.39000/- with interest at the rate of 12% from 11.12.1994.” 37. Thus, the learned 1st appellate court held that the agreement was not valid between the plaintiff No.1 and the defendant and was also not valid between the plaintiff No. 2 and the defendant; Since Asha Devi was not a party in the suit and admittedly agreement was jointly in favour of the plaintiff No.1 and Smt Asha Devi and the entire land as mentioned in the agreement was to be conveyed in their favour after payment of balance amount as agreed in the agreement. And the plaintiff No.2 was not a party to the agreement sought to be specifically enforced in this suit, it was held that plaintiffs had no valid cause of action and the suit was not maintainable as framed. The learned 1st appellate court also held that the plaintiffs have also failed to prove their readiness and willingness and they are not entitled for relief of the specific performance. 2025:JHHC:20419 16 38. This Court finds that as per the agreement dated 30.01.1994 (Exhibit-4) the purchasers were Meena Devi [to the extent of 5 katha 3½ chattak] and Asha Devi [to the extent of 2 katha] and Rs.35,000/- was already paid. Total consideration amount was Rs.75,000/-. It is also not in dispute that Rs.39,000/- in total was paid by the plaintiff No.1 Meena Devi and Rs. 16,000/- was paid by Asha Devi. As per the case of the plaintiffs, Asha Devi backed out and Sonia Devi (plaintiff no.2) stepped in her place by paying Rs. 16,000/- directly to Asha Devi. The suit for specific performance of agreement was filed by Meena Devi and Sonia Devi in which Asha Devi was not made party in the suit. In view of the aforesaid facts the substantial question of law no. (ii) to (iv) are to be decided which are related to each other. Substantial question of law no.(ii) to (iv) Whether Asha Devi was a necessary party to the suit? 39. It is a specific case of the plaintiffs that there was an arrangement between Asha Devi and plaintiff No.2 that instead of Asha Devi, Plaintiff No.2 would be substituted and now the sale deed was to be executed in favour of Meena Devi and Sonia Devi (the substitute of Asha Devi). It is also the case of the plaintiffs that the amount of consideration to the extent of Rs.16,000/- was paid by the Sonia Devi-the plaintiff no.2 directly to Asha Devi and under such circumstances, Meena Devi and Sonia Devi joined together to file the suit seeking specific performance of the agreement of sale deed dated 30.01.1994 and Asha Devi has not been made party. 40. This Court finds that the learned trial court while deciding the issue No. 4 and 5, decided the same in favour of the plaintiff No.1 and against the plaintiff No.2 as admittedly the agreement dated 30.01.1994 (Exhibit-4) was entered into between the plaintiff No.1 and Asha Devi on one hand and the defendant on the other hand and plaintiff No.2 was neither a party to the agreement nor had given any advance money to the defendant in connection with the agreement. Admittedly no fresh agreement was entered into incorporating the 2025:JHHC:20419 17 plaintiff No.2 in the agreement and the case of plaintiff No.2 was that she had replaced Asha Devi. 41. This Court is of the considered view that Asha Devi being a signatory to the agreement to the extent of 2 kathas of land and was certainly a necessary party for the purpose of enforcement of agreement dated 30.01.1994 (Exhibit-4). The Plaintiff No.2 could not have sought enforcement of the agreement to which she was not a party without impleading Asha Devi (party to the agreement) in the suit. This Court is of the considered view that merely because the defendant had applied and was granted the permission to sell the suit property in the name of the plaintiffs, the same by itself cannot be enough to hold that the plaintiff no. 2, in her own right, could enforce the agreement to which she was not a party. Mere application /grant of permission to sell does not have the effect of automatic deletion of the name of Asha Devi and insertion of the name of the plaintiff no. 2 in her place. It is one thing to say that the purchaser can nominate one or the other person in whose favour the sale deed is to be executed pursuant to an agreement of sale, but in the absence of Asha Devi (signatory to the agreement), the agreement was not enforceable at the instance of the plaintiff no.2 who claimed that there has been an arrangement between the plaintiff no.2 and Asha Devi. A party to the agreement cannot be unilaterally replaced by another person unless there is any stipulation to this effect in the agreement itself. 42. This Court is of the considered view that there was no binding agreement between the plaintiff No.2 and the defendant which could be enforced through the process of law. This Court is of the considered view that Asha Devi, the signatory to the agreement, was a necessary party in the suit seeking enforcement of the agreement and in her absence no relief could be granted. Accordingly, it is held that Asha Devi was a necessary party and in her absence the agreement was not enforceable through the process of law. The substantial question of law no. (iv) is decided against the appellant-plaintiff no.1 and in favour of the respondent–defendant. 2025:JHHC:20419 18 Whether learned 1st Appellate Court while passing impugned judgement and decree committed perversity in holding that there is no concluded and valid agreement dated 30.1.1994 (Ext. 4) between plaintiff no. 1/appellant and defendant despite holding that plaintiff no. 1 contributed payment of Rs. 39,000/- (19,000/- on 30.1.1994 + 15,000/- 14.3.1994 and 5,000/- on 11.12.1994 through her husband Dharmendra Vishawakarma (PW 8) to the defendant and directing the defendant to return the aforesaid amount to Plaintiff No.1 along with interest of 12% w.e.f 11.12.1994? AND Whether finding of the learned 1st Appellate Court that Ext. 4 is not validly concluded agreement between plaintiff no. 1 and one Asha Devi and defendant and plaintiff no. 2 not being party to the agreement, the suit for specific performance was not maintainable as the plaintiffs has no valid cause of action, is nothing but perverse? 43. This court finds that the learned trial court decided issue No. (4) and (5) in favour of the plaintiff No.1 but the same issues were decided against plaintiff No.2. Meaning thereby, the learned trial court held that there was a valid agreement between the plaintiff No.1 and the defendant. So far as plaintiff No.2 is concerned, both these issues were decided by the learned trial court against the plaintiff No.2. 44. However, the 1st appeal was filed by both the plaintiffs. The learned 1st appellate court has given concurrent finding with regards to plaintiff no. 2 that there was no agreement between plaintiff no.2 and the defendant and this finding has become final as the second appeal has been filed only by the plaintiff no.1. 45. With respect to plaintiff No.1 the learned 1st appellate court held that there was no concluded and valid agreement dated 30.01.1994 (Exhibit-4) despite holding that an amount of Rs.39,000/- was paid to the defendant by the husband of Meena Devi-plaintiff No.1 namely Dharmendra Vishwakarma (PW-8) and also directed the defendant to return the amount of Rs.39,000/- to plaintiff No.1 along with interest @12% with effect from 11.12.1994. 2025:JHHC:20419 19 46. The learned 1st appellate court gave the aforesaid finding with respect to plaintiff No.1 primarily on the ground that there was no negotiation and settlement of terms regarding, time and place and manner of sale in the light of Exhibit-4 and that there was no meeting of mind regarding terms of agreement between the plaintiff No.1 and defendant as it was the husband of the plaintiff No.1, and not the plaintiff no. 1 herself who had agreed to purchase the property and there has been no negotiation between the plaintiff No.1 and the defendant. 47. This Court is of the considered view that the finding of the learned 1st appellate court that there was no concluded and valid agreement dated 30.01.1994 (Exhibit-4) between the plaintiff No.1 and the defendant is not in accordance with law. This is on account of the reason that once it was found by the learned courts that consideration amount of Rs.39,000/- was paid by the plaintiff No.1 through her husband and the learned 1st appellate court also directed the defendant to return the said amount to the plaintiff No.1 in connection with which the defendant has no grievance, it cannot be said that there was no agreement between the plaintiff no.1 and the defendant. Further, on perusal of the agreement, this Court finds that although no specific time line was given in the agreement for execution of the sale deed, but it was clearly mentioned that in case the permission to sell is not granted then the plaintiff No.1 and Asha Devi would be entitled to refund of the amount, otherwise they would be bound to register the deed. The fact remains that after grant of permission, notice for executing the sale deed was given which upon no proper response triggered the cause of action to file the suit. In view of the aforesaid findings, this Court holds that the learned 1st appellate court while passing the impugned judgment and decree committed perversity in holding that there was no concluded and valid agreement dated 30.01.1994 (Exhibit-4) between the plaintiff No.1 and defendant despite holding that plaintiff No.1 contributed for payment of Rs.39,000/- through her husband to the defendant and also 2025:JHHC:20419 20 directing the defendant to return the aforesaid amount to plaintiff No.1 with interest @12% with effect from 11.12.1994. The substantial question of law no. (ii) is accordingly decided in favour of the appellant- plaintiff no.1 and against the respondent-defendant. 48. This Court also finds that it was the case of the plaintiffs that so far as the advance of Rs. 35,000/- mentioned in the agreement is concerned, Rs.19,000/- was paid by husband of the plaintiff no.1 and Rs. 16,000/- was paid by Asha Devi constituting total of Rs. 35,000/- and once it is held as aforesaid that there was a valid agreement between plaintiff no. 1 and the defendant, for the same reasons, this Court finds that there was a valid agreement between Asha Devi and the defendant. 49. Thus, the finding of the learned 1st Appellate Court that Ext. 4 is not validly concluded agreement between plaintiff no. 1 and one Asha Devi and defendant is perverse and it is held that there was a validly concluded agreement between plaintiff no. 1 and one Asha Devi on one hand and the defendant on the other hand. As already held above that Asha Devi was a necessary party in the suit who was not made party. This Court is of the considered view that the suit for specific performance was not maintainable and that the learned court rightly came to the finding that the plaintiffs together had no valid cause of action. The substantial question of law no.(iii) is accordingly answered against the appellant-plaintiff No.1 and in favour of the respondent-defendant. The substantial question No.(v) Whether the agreement is severable in nature and could be subject matter of specific performance of contract only with respect to Smt. Meena Devi plaintiff no.1 in exclusion of Asha Devi? 50. In order to seek enforcement of the part of the contract of qua Meena Devi, the learned counsel for the appellant ultimately relied upon Section 12(4) of the Specific Relief Act 1963 which is quoted as under: - 2025:JHHC:20419 21 12. Specific performance of part of contract. — (1) Except as otherwise hereinafter provided in this section, the Court shall not direct the specific performance of a part of a contract. (2) ………………………. (3) …………………………………… (4) When a part of a contract which, taken by itself, can and ought to be specifically performed, stands on a separate and independent footing from another part of the same contract which cannot or ought not to be specifically performed, the court may direct specific performance of the former part. 51. The said section 12(4) specifically provides that when a part of the contract which taken by itself, can and ought to be specifically performed, stands on a separate and independent footing which cannot or ought not to be specifically performed, the Court may direct specific performance of the former part. 52. It has to be seen as to whether the agreement between the plaintiff no.1 and Asha Devi on the one hand and the defendant on the other hand was severable for being enforced in the suit by only the plaintiff no. 1 against the defendant with respect to her share of the property involved in the agreement as Asha Devi was not a party in the suit and the finding that there was no agreement between the plaintiff no.2 and the defendant has attained finality and only plaintiff no.1 is the appellant before this Court in this appeal seeking to enforce her part of the agreement with the defendant. 53. On the face of the agreement, which has also been quoted in the impugned judgment, it is apparent that the consolidated consideration amount of Rs.75,000/- was mentioned with respect to entire 7 Katha and 3½ chattak of land and the boundary with respect to the entire property with its description has been also mentioned in the agreement. However, on the face of the agreement there was no demarcation/boundary as to which portion of the property was to be sold to plaintiff No.1 and which portion of the property was to be sold to Asha Devi. 54. Neither the agreement nor the plaint nor there is any material on record to bifurcate the boundary of the property with respect to Meena 2025:JHHC:20419 22 Devi and Asha Devi (now Sonia Devi) nor there was any bifurcation as to who was to pay how much out of the total consideration amount, but the rate and the total consideration was mentioned in the agreement dated 30.01.1994 (Exhibit-4). Further, no such bifurcation with respect to boundary and consideration amount was made in the plaint as both Meena Devi and Sonia Devi were plaintiffs in the suit and were seeking to enforce the agreement dated 30.01.1994 (Exhibit- 4) jointly. The suit property was 7 Katha and 3 chattak which was ½ chattak less than the area mentioned in the agreement and it is not clear as to which portion of the property of area ½ chattak has been left out by the plaintiffs. 55. The perusal of the plaint reveals that the suit was filed for an area of 7 katha and 3 chattak which was also in the schedule of the plaint and in the plaint it was mentioned that the defendant had handed over the physical possession to the plaintiff No.1 Meena Devi and Asha Devi. Asha Devi had discontinued her possession after arrangement with the plaintiff No.2. However, nothing has been mentioned as to which portion of the suit property was handed over to Meena Devi as no boundary with respect to her possession has been mentioned and similarly no such details has been found in the Exhibit- 5, which is the judgement passed in Eviction Title Suit No. 34 of 2003 This is over and above the fact that the present plaintiff No.1 Meena Devi was not a party to the said eviction suit (Exhibit-5). Further, the law is well settled that in the case of dispute of landlord-tenant relationship under special legislation, the court only incidentally and prima-facie examines the title disputes and the same is not a declaration of title of the property. The Exhibit-5 does not help the appellant in any manner. 56. In view of the aforesaid finding, this Court is of the considered view that the the agreement is not severable in nature and cannot be subject matter of specific performance of contract only with respect to Smt. Meena Devi plaintiff no.1 in exclusion of Asha Devi. The substantial question of law no. (v) is accordingly 2025:JHHC:20419 23 decided against the appellant-plaintiff no.1 and in favour of the respondent-defendant. Substantial question of law no.( i ) Whether the learned Appellate Court below failed to consider Section 16(1) (c) of Specific Relief Act, 1963 in its right perspective or not? 57. Before proceeding to discuss the merits of the matter with regard to 1st substantial question of law i.e. Whether the learned courts have properly exercised their power while considering the readiness and willingness by the plaintiff to perform the plaintiff’s part of the contract in terms of Section 16(1) (c) of the Specific Relief Act, 1963, it would be relevant to refer to the judgment passed by the Hon’ble Supreme Court in the case of Vijay Kumar Vs. Om Prakash reported in (2019) 17 SCC 429, paragraph 6, wherein it has been clearly held that in order to obtain a decree for specific performance, the plaintiff has to prove his readiness and willingness to perform his part of the contract and the readiness and willingness has to be shown throughout and has to be established by the plaintiff. In the said case, the plaintiff had not shown his capacity to pay the balance consideration amount and could not produce any document to show that he had the balance consideration with him on the relevant date nor was he able to name the friends from whom he raised money or was able to raise the money. The Hon’ble Supreme Court was of the view that the trial court rightly pointed out that the plaintiff could not place on record his bank account, passbook or statement of accounts or any other instrument to establish that he had money with him at the relevant point of time to perform his part of the contract and ultimately upheld the view of the trial court that the plaintiff had not been able to prove readiness and willingness on his part. Paragraph 6 of the aforesaid judgment passed by the Hon’ble Supreme Court is quoted as under: - “6. In order to obtain a decree for specific performance, the plaintiff has to prove his readiness and willingness to perform his part of the contract and the readiness and willingness has to be shown throughout and has to be established by the 2025:JHHC:20419 24 plaintiff. In the case in hand, though the respondent-plaintiff has filed the suit for specific performance on 29-4-2008, the respondent-plaintiff has not shown his capacity to pay the balance sale consideration of Rs 22,00,000 (Rupees twenty- two lakhs). In his evidence, the respondent-plaintiff has stated that he has borrowed the amount from his friends and kept the money to pay the balance sale consideration. As rightly pointed out by the trial court, the respondent-plaintiff could not produce any document to show that he had the amount of Rs 22,00,000 (Rupees twenty-two lakhs) with him on the relevant date; nor was he able to name the friends from whom he raised money or was able to raise the money. Furthermore, as rightly pointed out by the trial court, the respondent- plaintiff could have placed on record his accounts book, passbook or the statement of accounts or any other negotiable instrument to establish that he had the money with him at the relevant point of time to perform his part of the contract. We are, therefore, in agreement with the view taken by the trial court that the respondent-plaintiff has not been able to prove his readiness and willingness on his part.” 58. In another judgment passed by the Hon’ble Supreme Court in the case of U.N. Krishnamurthy v. A.M. Krishnamurthy reported in (2023) 11 SCC 775, it has been observed that it is settled law that for relief of specific performance, the plaintiff has to prove that all along and till the final decision of the suit, he was ready and willing to perform his part of the contract and it is the bounden duty of the plaintiff to prove his readiness and willingness by adducing evidence and such crucial facet has to be determined by considering all circumstances including availability of funds and mere statement or averment in plaint of readiness and willingness, would not suffice. Paragraph 45 of the aforesaid judgment passed by the Hon’ble Supreme Court is quoted as under: - “45. It is settled law that for relief of specific performance, the plaintiff has to prove that all along and till the final decision of the suit, he was ready and willing to perform his part of the contract. It is the bounden duty of the plaintiff to prove his readiness and willingness by adducing evidence. This crucial facet has to be determined by considering all circumstances including availability of funds and mere statement or averment in plaint of readiness and willingness, would not suffice.” 2025:JHHC:20419 25 59. In the present case, the suit was filed on 22.03.2005 seeking specific performance of contract with regard to agreement of sell dated 30.01.1994. It is the argument of the appellant that Rs.39,000/ was paid by the appellant-plaintiff No.1 and Rs. 16,000/- was already paid by Smt. Asha Devi/ Smt. Sonia Devi (plaintiff No.2) which comes to total Rs.55,000/- and what was remained to be paid was only Rs.20,000/-. Thus, around 26% approximately of the total consideration amount was still to be paid and it cannot be said that it was only the meniscal amount. 60. The plaint did not make any averment with regard to the availability of fund, it only mentioned about readiness and willingness to perform the part of the contract on the part of the plaintiffs, but there is no averment regarding availability of the balance consideration amount. Even in the evidence, nothing has been mentioned on behalf of the plaintiff regarding readiness and willingness to perform their part of the contract with respect to availability of fund to fulfill their obligation. 61. The learned courts have examined the readiness and willingness on the part of the plaintiffs to perform their part of the agreement and have rightly held that the plaintiffs have failed to prove their reediness and willingness to perform their part of the agreement. There is neither any pleading nor there is any evidence with regard to availability of balance consideration amount with the plaintiffs to get the sale deed executed pursuant to the agreement of sale dated 30.01.1994. 62. In view of the aforesaid judgments passed by the Hon’ble Supreme Court, this Court is of the considered view that the plaintiffs have failed to plead and prove the readiness and willingness to perform their part of the contract in terms of Section 16 (1)(c) of the Specific Relief Act 1963. Consequently, the substantial question of law No. (i) is answered against the appellant- plaintiff no.1 and in favour of the respondent-defendant. 2025:JHHC:20419 26 63. As a cumulative effect of the aforesaid findings with regards to the substantial questions of law, this second appeal is dismissed. 64. Pending interlocutory application, if any is, closed. 65. Let a copy of this order be communicated to the concerned courts through “Fax/e-mail”. (Anubha Rawat Choudhary, J.) Rakesh/-AFR