JUDGMENT
Hemant Gupta, J.
1. This order shall dispose of Regular Second Appeal No. 1475 of 1980 arising out of a suit for specific performance of an agreement to sell dated 5.10.1964 entered upon in favour of Piara Singh (hereinafter to be referred as “the vendee”) and Regular Second Appeal No. 1474 of 1980 arising out of suit for possession filed by the owners of the suit land (hereinafter to be referred as “the vendors”).
2. The following substantial questions of law arise for consideration of this Court:
1. Whether there is negation of contract on account of change of Khasra No. pleaded by the plaintiff by way of amendment in the plaint?
2. Whether the plaintiff was ready and willing to perform his part of the contract?
3. Whether the plaintiff is entitled to a decree for specific performance of agreement in the facts and circumstances of the case?
3. The said questions of law arise out of an agreement executed by one Gurcharan Singh in favour of plaintiff Piara Singh on 5.10.1064 for a total sale consideration of Rs. 15,000/-. The sale deed in pursuance of the said agreement was to be executed on 15.6.1965 and a sum of Rs. 7000/- was paid as earnest money. But before the sale deed could be executed, vendor Gurcharan Singh died on 13.3.1965. It is the case of the plaintiff that notices were issued for calling upon the legal heirs of the vendor to execute the sale deed but the sale deed was not executed which led to the filing of a suit for specific performance of the agreement on 25.3.1966. Along with the suit, the plaintiff has deposited balance sale consideration of Rs. 8000/- as well. The plaintiff claims to be in possession of the suit land in terms of the agreement to sell. On the other hand, the vendors filed a suit for possession on 5.1.1977 in respect of land measuring 94 Kanals 3 Marlas as described in the jamabandi for the year 1969-70, earlier owned by Gurcharan Singh.
4. The suit was initially decreed on 31.5.1966 but the appeal against the said judgment and decree was accepted and the matter was remanded to the learned trial Court after framing of additional issues vide judgment dated 20.10.1976. After remand, the plaintiff-appellant moved an application for amendment of plaint on 14.12.1976. It was pleaded therein that the suit was initially filed on the basis of jamabandi for the year 1959-60 and there have been changes in the Khewat and Khasra Nos. and the area has also decreased. The vendee sought amendment in the plaint so as to claim relief on the basis of jamabandi for the year 1969-70 and the describe the existing land in the plaint. The vendee sought to explain that Khasra No. 56M/13/l (1 Kanal 10 Marlas) and 55M/20/1 (3 Kanals 16 Marlas), total land measuring 5 Kanals 6 Marlas, was taken from Gurcharan Singh. In the reply dated 22.12.1976 filed on behalf of the defendants No. 3 and 4 the contents of para No. 2 of the relevant para of the application was stated to be incorrect and denied but it was pleaded that Gurcharan Singh and defendants No. 3 and 4 formed joint Hindu Family. In respect of other paragraphs regarding change of Khasra Nos. in the agreement and in the jamabandi, it was only stated that “other amendments are opposed”. In separate reply dated 22.12.1976 filed on behalf of defendants Nos. 2 and 5, it was stated that “the application for amendment is opposed, it is belated and after thought”. No orders were passed on the said application but another application was filed on 30.12.1976 proposing the amendment in the paragraphs sought to be incorporated. It was pointed out that the suit was filed on the basis of jamabandi for the year 1959-60 and there have been changes in Khewat Nos. and Khasra Nos. Para No. 3(d) of the application reads as under:
Para No. 1-a shall be added; “The Khasra Nos. 55M/20/l (3-16) was included in the agreement of sale but Gurcharan Singh ceased to be the owner of this land. Khasra Nos. 62M/7/l 7-7) was included in the agreement, but this Khasra No. has been divided into three parts. Khasra No. 62M/7/l/2 (2-0), 7/1/3/(3-3) remained with Gurcharan Singh and the remaining area 2 Kanals 4 Marlas did not remain the property of Gurcharan Singh. Khara No. 63/10(-8-0) was the subject matter of the agreement, but 63M/l0/1/(6-12) now owned by Gurcharan Singh deceased. 62M/4(8-0) was included in the agreement of sale but now 62M/4/1(2-8) remained with Gurcharan Singh. In place of the above land which went out of the ownership of Gurcharan Singh got 63M/13/2 (6-8) and 53M/13/1/(0-16), so the plaintiff has sued for these new numbers for the land which ceased to be the land of Gurcharan Singh.
5. The vendors made a statement that they have no objection to the amendment being allowed subject to costs. The said amendment was allowed subject to payment of Rs. 25/- as costs on 21.1.1977. Amended written statement was filed by defendants No. 3 and 4 but defendant No.5 stated that he does not want to file a fresh written statement.
6. The learned trial Court dismissed the suit after recording finding on Issue No. 3 to the effect that the vendee was not ready and willing to perform his part of the contract, though all other issues were decided in favour of the vendee. The finding on Issue No. 3 was primarily returned on the ground that the vendee has not used the words “willing” in the plaint filed and, therefore, the plaintiff has failed to prove that he is ready and willing to perform his part of the contract.
7. In appeal against the said judgment and decree, the learned first Appellate court found that the said finding is not correct inasmuch as that the plaintiff need not state in actual words that he was continuously ready and willing to perform his part of the contract, it is sufficient if the recitals made in the plaint are clear. The Court found that it has been averred in the plaint that the plaintiff had got the balance of purchase money with him and he had been requesting Gurcharan Singh to execute the sale deed but he could not do so on account of his death and, therefore, it is clear that the plaintiff had been ready and willing to perform his part of the contract and non mention of the word “willing” in the plaint does not affect his case. After returning such finding, the learned first Appellate court proceeded to affirm the finding on Issue No. 3 wherein it was held that the vendee has sought specific performance of certain Khasra Nos. which were not part of the agreement and that the vendee has not led any evidence on record to show that the land included in the plaint was given to Gurcharan Singh in lieu of the land in regard to which he has executed the agreement of sale. Thus, the plaintiff has changed an essential condition of the contract and, thus, debarred himself from the relief of specific performance of the agreement. Still further, the Court found that since there is a change in Khasra No., the plaintiff cannot be said to be ready and willing to perform the original contract and consequently dismissed the appeal.
8. Another fact which requires to be noticed is that in a suit for possession filed by the vendors, the description of the land tallies with the description of the land incorporated by the vendee by virtue of amendment. Still further, it was pleaded in the said suit by the vendor that the vendee has alleged that he had agreement of sale of the “land in dispute” from Gurcharan Singh deceased. A preliminary objection was raised by the vendee that the suit should be stayed as the matter in issue is directly and substantially in issue in the previously instituted suit. Still further, an application was filed by the vendor on 31.3.1977 for consolidation of both the suits. It was stated in the said application as under:
The above mentioned case is for specific performance on the basis of agreement of sale filed by the plaintiff against the defendants. Defendants No. 3 and 4 have also filed a suit for possession in respect of the land in suit against the plaintiff and the remaining defendants. The next date in that case is 26.4.1977. The case is Ravinder Pal Singh v. Piara Singh etc.
The subject matter directly and substantially in both the suits is same and the parties to both the suits are also same.
9. The said application was allowed by the learned trial Court on 19.12.1977 as the same was not opposed by the vendee.
10. In the above factual background, learned Counsel for the appellant has vehemently argued that the vendors have never disputed the subject matter of the land in the suit. Learned First Appellate court has made out a new case for the vendors without any pleading to that effect. It is pointed out that when an application for amendment of the plaint was filed to incorporate new Khasra Nos. on account of changes in the revenue record, the same was not opposed by the vendors. It was clearly and categorically explained that there is change of Khasra Nos. from that mentioned in jamabandi for the year 1959-60 to that in the jamabandi for the year 1969-70 and, therefore, the amendment should be allowed. Apart from the fact that the amendment was not opposed, the vendors have filed a suit for possession of these very Khasra Nos. in respect of which the vendee has sought specific performance of the agreement. Even subsequently an application for consolidation of the suits was filed on the ground that the land in dispute is common in both the cases. It could not be pointed out that Gurcharan Singh was the owner of some other land as well which could create some ambiguity regarding the land described in the suit. Still further, the vendors have not disputed the identity of the suit land as different from the agreement. It was pointed out that had the vendors disputed the identity of the suit land with that described in the agreement, the vendee would have led evidence to prove that it is on account of change of old Khasra No. Since the aver-merits in the plaint were not disputed as not relating to the agreement, the findings recorded by the learned first Appellate court are not sustainable in law.
11. Learned Counsel for the respondents has vehemently argued that the vendee has substituted the land described in the agreement by virtue of amendment sought in the plaint. The vendee has not explained as to how such changes in the revenue record were effected. There is nothing on the record to show that on account of consolidation in the village, the land of few Khasra Nos. has undergone change. Since the land in suit is not the land in the agreement, therefore, the finding recorded by the learned first Appellate court cannot be said to raise any substantial question of law in second appeal. Reliance was placed on Veerayee Ammal v. Seeni Ammal A.I.R. 2001 S.C. 2920. It is also argued that the amendment was allowed in the year 1976, therefore, the suit would be deemed to have been filed on the date when the application for amendment of plaint was allowed and, therefore, the suit is beyond the period of limitation. Reference was made to Tarlok Singh v. Vijay Kumar Sabharwal and Vishwambhar and Ors. v. Laxminarayan (dead) through L.Rs. and Anr. . It was also argued that where the suit is not in terms of the agreement, a decree cannot be granted. Reliance was placed upon Simon Jacob Silas v. Casper John Balthasar Kohlhoff A.I.R. 1954 Travancore-Cochin 440. Still further, it has been argued that it will be wholly inequitable and harsh to grant specific performance of an agreement executed 42 years ago on a sale consideration of Rs. 15.000/-when the market prices have gone considerably high. The price in the agreement is unrealistic price and on the basis of it a decree for specific performance should not be granted. Reliance was placed on Her Highness Maharani Shantidevi P. Gaikwad v. Savjibhai Haribhai Patel and Ors. , Mohinder Singh v. Harjit Singh and Ors. (2001-3) 129 P.L.R. 101 and Kanshi Ram v. Om Parkash Jawal and Ors. . It was also argued that since the plaintiff has claimed alternative plea of damages, the plaintiff cannot be granted a decree for specific performance of the agreement.
12. After hearing learned Counsel for the parties at some length, my findings on each substantial question of law are as under:
QUESTION No. 1
The agreement of sale dated 5.10.1964 was in respect of land measuring 98 kanals 19 marlas as described in the jamabandi for the year 1959-60. Before the sale deed could be executed on the appointed date, vendor Gurcharan Singh died on 13.3.1965. Since the matter remained pending before the Court, fresh jamabandies were prepared and the plaintiff sought amendment in the plaint so as to incorporate description of land as per latest jamabandi then available. The vendor has not disputed the description of land in the latest jamabandi in respect of land owned by Gurcharan Singh. There is no dispute about the identity of the land nor it could be pointed out that Gurcharan Singh had some other land than the land which was subject matter of suitor the agreement. It was never the case of the vendors that Khasra Nos. have not undergone change at the hands of the revenue authorities as sought to be projected by the vendee. Therefore, it is not a case of substitution of the land in the suit than the land described in the agreement but the changes were incorporated in the plaint on account of changes in the revenue record.
13. Still further, in the application seeking amendment of plaint, the plaintiff has clearly described that as to how there is variation in the total area as well as change in Khasra No. Not only that, no objection was raised to such amendment being allowed. The vendors have filed a suit for possession of the same land which was incorporated by virtue of the amendment sought. The suit for possession was filed on 5.1.1977, whereas the amendment in the suit for specific performance was allowed on 01.01.1977. The close proximity in which the land was sought to be corrected by the vendee and the suit for possession was filed by the vendors leave no manner of doubt that the parties were ad item on the identity of the suit land. No dispute was raised in the written statement field by the vendors regarding the identity of the suit land or that there is negation of the contract. Still further, the vendors have moved an application for consolidation of both the suits with the averment that the subject matter is the same. In these circumstances, there could not be any negation of contract in the absence of any pleading or evidence. Rather, the facts on record leave no manner of doubt that identify of the suit land was not disputed and finding recorded by the learned first Appellate Court is without any foundation.
14. The argument raised by learned Counsel for the respondents that the amendment has been allowed on 1.1.1977 and, therefore, suit for specific performance in respect of agreement dated 5.10.1964 shall be deemed to be instituted on the said date is again devoid of any merit. Tarlok Singh’s case (supra) is a case where suit for injunction was sought to be amended into suit for specific performance. In that case, the Court held in the facts and circumstances of that case that suit for specific performance could be deemed to be filed when application for amendment was allowed by the learned Trial Court. Similarly in Vishambhar’s case, (supra), the challenge was to alienation by a natural guardian of the minor without Court sanction and without legal necessity. It was found that such alienation is voidable and not void ab initio and, therefore, declaration has been sought within the period of limitation. The principles laid down in the aforesaid judgments have no applicability to the facts of the present case wherein description of the land was sought to be corrected to be in tune with the revenue record on account of passage of time. In Simon Jacob Silas’s case, (supra), the plaintiff has sought modification in respect of essential terms of the contract unilaterally, whereas in the present case the amendment is sought in respect of description of land on the basis of revenue record which description is accepted by the vendors at more than one place. In the present case, there is not change of cause of action, nor any order was passed restricting the amendment from the date of order. Therefore, the amendment would relate back to the date of filing of plaint. Therefore, I am of the opinion that by seeking amendment to update the Khasra Nos. in terms of the latest revenue record will not amount to negation of contract.
QUESTION NO. 2
The learned trial Court held that the vendee was not ready and willing to perform his part of the contract on account of the fact that word “willing” was not used in the plaint although a reading of the plaint leaves no manner of doubt that the circumstances to reflect his willingness have been pleaded. Even evidence goes to prove the readiness and willingness of the vendee to perform his part of the contract. As a matter of fact, the sale could not be executed on account of the death of the original vendor and the suit was filed on 25.3.1966 as well as balance sale consideration, undisputedly, was deposited on the said date. Since the finding recorded by the learned first Appellate Court in respect of negation of contract has not been accepted, therefore, I am of the opinion that there is nothing on the record to return a finding that the vendor was not ready and willing to perform his part of the contract. Hon’ble Supreme Court in Moti Lal Jain v. Ramdasi Dew (Smt.) and Ors. A.I.R. 2000 S.C. 2048 : (2006) S.C.C. 420, while considering the requirements of pleading and evidence to prove readiness and willingness of the plaintiff, held that the Court must keep in mind that a plea is not an expression of art and science but an expression through words to place fact and law of one’s case for a relief. Since most of the pleas are drafted by counsel and, hence, they inevitably differ from one to the other. It should be read as a whole and to test whether the plaintiff has performed his obligations, one has to see the pith and substance of the plea. Following the said principle, this Court in Parmod Bhushan Pal v. Bachan Singh (2006-2)143 P.L.R. 836 held that on averment of readiness and willingness in the plaint is not a mathematical formula which should only be in specific words. If the averments in the plaint as a whole do clearly indicate the readiness and willingness of the plaintiff to fulfill his part of the obligations under the contract which is the subject-matter of the suit, the fact that they are differently worded will not militate against the readiness and willingness of the plaintiff in a suit for specific performance of contract for sale. Thus, I am of the opinion that the vendee was ready and willing to perform his part of the contract.
QUESTION No. 3
Though it is well settled that the rights of the parties have to be seen on the date of filing of the suit, therefore, mere delay in decision in a suit for specific performance filed by the vendee cannot be a factor to be taken into consideration while moulding the relief in favour of the vendee. Not only that the vendee was delivered possession in terms of the agreement in the year 1964 but the vendee has deposited the entire sale consideration in the year 1966 itself. Therefore, the argument raised by the learned Counsel for the vendors that decree for specific performance of the agreement at this stage would be inequitable (on the basis of judgment in Her Highness Maharani Shantidevi P. Saikwad’s case (supra) or harsh (on the basis of decision in Mohinder Singh’s case (supra)) or is unrealistic price (as in Kanshi Ram’s case (supra)) have no applicability as the delay in the decision of the suit cannot be used against the vendee as the rights of the vendee have to be determined on the date of filing of the suit itself and keeping in view that possession of the land was delivered to the vendee on the date of the agreement.
15. Learned Counsel for the respondents has also argued that since alternative relief was claimed, the vendee is not entitled to specific performance of the contract but payment of earnest money alone could be ordered. Reference was made to Manjunath Anandappa Urf. Shivappa Hanasi v. Tammanasa and Ors. , and Kanshi Ram’s case (supra). However, the principles laid down in the said judgments cannot be extended to the facts of the present case as in Manjunath ‘s case (supra), a suit for specific performance was filed after 6 years from the date of entering into the agreement of sale. The Court found that delay in approaching the Court disentitle the plaintiff to the discretionary relief. Similarly, in Kanshi Ram case’s (supra), the Court held that a decree for specific performance would be guided by justice, equity, good conscience and fairness to both the parties. In the present case, the vendee sought specific performance of the agreement in the year 1966. The suit was resisted on the ground that the land in suit is joint Hindu Family property. The vendors having failed to prove such assertion and the vendee having paid substantial amount at the time of entering into agreement and having deposited the balance purchase money in the Court, the justice, equity and good conscience will demand grant and decree for specific performance in favour of the vendee.
16. In view of the findings recorded above, the finding on Issue No. 3 recorded by learned First Appellate Court is reversed. Consequently, Regular Second Appeal No. 1475 of 1980 filed by the vendee is accepted and the suit is decreed. The defendants are directed to execute the sale deed in respect of the suit land in accordance with law, whereas decree for possession i.e. subject matter of Regular Second Appeal No. 1474 of 1980 is set aside and suit for possession filed by vendors is dismissed.