TMI Blog2005 (8) TMI 740X X X X Extracts X X X X X X X X Extracts X X X X ..... /- had been paid as advance money and the consideration for sale was fixed at ₹ 10,000/-. Thus the balance amount of ₹ 7,500/- was to be paid at the time of execution of sale-deed. The suit was contested by the present appellant-defendant No.3. The present appellant along with defendant No.1 (respondent No.4) contended that the permission to sell the land had been obtained from the Settlement Officer (consolidation) during the year 1980. When the plaintiffs were requested to purchase the land, they did not agree to get the sale deed executed. Thereafter defendant No.1-Jogendra Singh executed the sale deed in favour of the present appellant and respondent No.5. The trial court decreed the suit and directed for specific complia ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s were ready and willing to perform their part of the contract. As noted above, the appeal was allowed and the suit was dismissed. The plaintiffs carried the matter in second appeal before the High Court. The following question was formulated for adjudication:- Whether in respect of land regarding which the agreement to sell had taken place, was a bit increased or decreased in consolidation proceeding, amounts to change in property and hence the said agreement can be enforced by suit for specific performance of contract? The High Court held that there was a minor variation in the area. Referring to a decision of this Court in Smt. Baikunthi Devi and Ors. v. Mahendra Nath and Anr. (AIR 1977 SC 1514) it was held that the variation was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the plaintiffs to perform their part of the contract, the High Court could not have allowed the second appeal. In response, learned counsel for the respondents submitted that the High Court had considered the question as regards effect of court of facts not considering relevant evidence or adopting essentially erroneous approach of the matter. The conclusions were actually in relation to the findings recorded by the first Appellate Court regarding the readiness and willingness aspect. Merely because the question has not been formulated, that should not stand in the way of affirming the decision of the High Court. It was submitted that the present appellant did not take any plea in this regard before the High Court and therefore should no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pra) relied upon the first Appellate Court was clearly distinguishable on the facts and the High Court has rightly observed that the decision in Smt. Baikunthi Devi's case (supra) was applicable on the facts of the case. We, therefore, find no substance in the plea raised by learned counsel for the appellant that the High Court was not justified in answering the question formulated in favour of the respondents. But in view of the fact that no question was formulated regarding the findings recorded by the first Appellate Court on the other aspect, the High Court could not have set aside the judgment of the first Appellate Court in its entirety. On that ground alone, the present appeal succeeds and the judgment of the High Court in second ..... X X X X Extracts X X X X X X X X Extracts X X X X
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