JUDGMENT
S.N. Pathak, J.
1. This second appeal is directed against the judgment and decree passed by 6th Additional District Judge, Siwan, in Title Appeal No. 117/72. The plaintiff of Title Suit No. 165/65 filed this second appeal. The plaintiffs suit was decreed by the trial Court. However, on appeal by the defendant of the suit, the trial Court’s judgment was reversed and, hence, this second appeal filed by the plaintiff of the suit.
2. The plaintiff had filed a suit for specific performance of contract against the defendant on the pleading that there was an agreement of sale executed by the defendant’s father on 25-6-62. The agreement was for sale of 3 Katha 15 Dhurs of land for a consideration money of Rs. 750 of Plot No. 353. Out of the consideration money Rs. 150 was paid at the time of execution and Rs. 263 was the loan amount taken by the defendant on the basis of hand not dated 10-6-61. This amount was to be adjusted to the consideration money. However, in spite of several demands by the plaintiffs, Ramjeet Bharti who had executed the agreement failed to abide by his part of the contract and in the meantime Rtimjeet Bharti died. Thereafter, the plaintiff placed a demand upon defendant-respondent, and having failed in securing sale-deed from them also, the plaintiff served Lawyer’s notice upon them. Even this having failed, the plaintiff filed this suit.
3. Before this Court the only substantial question of law formulated for decision of this Second Appeal was “whether the first appellate Court erred in holding that the plaintiff-appellant was not willing and ready to perform his part of the contract before filing the suit”. On perusal of the plaint of the plaintiff/it is apparent that it is stated at paragraph 5 that in spite of demands Ramjeet Bharti failed to execute the sale-deed and he died. When the plaintiff demanded upon his heirs, they also failed to keep the promise of their predecessor. Then the plaintiff served the Lawyer’s notice. At paragraph 6 it has been stated that plaintiff got embroiled in the domestic troubles and, therefore, he could not filed the suit immediately after the Lawyer’s notice and the hand note executed by Ramjeet Bharti was going to become time-barred, hence, he filed a suit for realisation of this amount. The aforesaid statements of the plaintiff in his plaint indicate that during the period when he was troubled by his domestic problems, he was not ready to perform his part of the contract and moreover when he filed a suit for realisation of the loan amount, he had almost waived the adjustment of the amount towards the consideration money on the sale-deed to be executed by Ramjeet Bharti or his heirs. These were the facts specifically pleaded in the plaint. The first appellate Court had discussed the entire gamut of oral and documentary evidence and he had come to the definite conclusion that the plaintiff had failed to prove that he was ever willing and ready to perform his part of the contract. So, I fail to understand where the appellate Court erred in law in holding that the plaintiff was unable to perform his part of the contract, Besides the above, nowhere in the plaint the plaintiff stated that he was always ever ready to perform his part of the contract and the defendant or his predecessor Ramjeet Bharti was not co-operating in performing the agreed contract. It was submitted before me by the appellant’s lawyer that language and the exact verbiage of the pleading is not to be taken in its literal sense. But in spite of this legal position, at least there should be an averment in the plaint that in spite of the offer of the plaintiff that he is ready to perform his part of the contract the person executing the agreement for sale failed to abide by his contract. Such averment must be there in the plaint. Other vise, it is difficult for the Court to gather that the plaintiff is prepared to perform his part of the contract. The specific averments to which I have referred to above regarding the pleading indicate that the plaintiff had rather waived the amount of loan to be treated as adjustment towards the consideration money of the sale-deed to be executed because when he had already filed a suit for its realisation, it was not probable for the defendants to think that this amount was left in their hand to be adjusted towards the consideration money. In this connection, it was further submitted by the appellant’s lawyer that when a major part of the consideration money is paid, it is to be presumed that the plaintiff was ready to perform his part of the contract. This argument also does not cut much ice when the plaintiff-appellant had already filed a suit for realisation of the loan money and, or course, the loan money shall be realised along with its interest, So, the major part of the consideration money would be realised through the money suit by the plaintiff. The amount of loan, therefore, would not be left in the hands of the defendant to be adjusted towards the consideration money of the sale-deed to be executed. The circumstances, was, therefore, overwhelwing in favour of the finding of the first appellate Court that the plaintiff had almost waived his part of the contract. In such a circumstance, I do not think that the finding arrived at by the appellant Court regarding the non-preparation of the plaintiff-appellant to perform his part of the contract was vitiated by any legal error.
4. As a result of the aforesaid discussion, I do not think that this appeal has any merit. It is, accordingly, dismissed. The parties shall bear their own cost of the appeal.