TMI Blog1999 (8) TMI 1008X X X X Extracts X X X X X X X X Extracts X X X X ..... l Chand s/o Shri Mukhram r/o Mohalla Kharayya Ka Pokhra city of Gorakhpur Second Party. We the second party have sold all our business all kinds of Karkhana and goods including the building and quarter, belt and engine, two centigator and Lahorekhana which is situate inside the boundary of the land to the first party for ₹ 9000/-. But the land is joint. Because we the first party will carry on our business on the land in question, therefore we the executants undertake that we will pay ₹ 150/- p.m. as rent for the land in question and will after one year, make a sale deed of the land in question to the second party for ₹ 7000/- (half of which is ₹ 3500/-) and if after one year no sale deed of the land is made of the land in question on account of any thing on the part of the 1st party or the second party we the 1st party will pay rent after one year for three years at the rate of ₹ 200/- per year in advance. If the first party will want to take the land after one year, the second party will have to execute the sale deed in any event. If the sale deed is not made for four years, we the first party will remove our goods from the land in question and will ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and the First Appellate Court. It has been found that the time was of essence of the contract for sale entered into between the parties and time for performance was limited upto four years from the date of the agreement. During these four years and even thereafter in spite of Phool Chand having filed the suit for ejectment after serving notice of termination of tenancy, Thawar Das made no effort to purchase the land except filing a suit for specific performance which was more in the nature of a counterblast to the suit filed by Phool Chand. Thawar Das utterly failed in proving that he was ever ready and willing to perform his part of the contract and to have the purchase materialised. The plea raised by Thawar Das that on 19-9-1966 there was a fresh agreement entered into between the parties reviving the old agreement of 18-7-1956 and thereunder Thawar Das had paid an amount of ₹ 2,000/- to Phool Chand was utterly false and the agreement dated 19-9-1966 propounded by Phool Chand was a false and forged document. The tenancy of Thawar Das was duly and validly terminated by a notice to quit under Section 106 of the Transfer of Property Act. 5. Thawar Das preferred two second ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... It is to be noted that though the High Court has tried to find fault with Phool Chand, nowhere in its judgment the High Court has recorded a finding that Thawar Das (the plaintiff in suit for specific performance) was always ready and willing to perform his part of the contract and to have the sale deed executed by Phool Chand in accordance with the terms of the agreement dated 18-7-1956. Before the High Court on behalf of Thawar Das reliance was also placed on a plea flowing from Section 53-A of the Transfer of Property Act and the High Court proceeded to observe that possession of Thawar Das was in part performance of the agreement to sell and so also Phool Chand's suit for Thawar Das's ejectment could not have been decreed and the latter was entitled to continue and remain in possession of the land. 7. In our opinion, the judgment of the High Court suffers from serious infirmities. It also suffers from the vice of exercise of such jurisdiction as did not vest in the High Court under the law. Under Section 100 of the CPC (as amended in 1976) the jurisdiction of the High Court to interfere with the judgments of the Courts below is confined to hearing on substantial ques ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... raising of the plea by Thawar Das that on 19-9-1966 there was a fresh agreement between the parties and he had paid ₹ 2,000/- to Phool Chand associated with positive finding arrived at by the two courts below which finding has not been upset by the High Court that the plea was false and was sought to be substantiated by producing a false and fabricated document makes the situation worse for Thawar Das. A person who falsely alleges to have paid ₹ 2,000/- and also attempts at proving the plea at the stage of the trial cannot be said to have been ever ready and willing to pay ₹ 7,000/- which under the contract it was his obligation to pay. The present one is not a case where a plea as to payment was raised bona fide but abandoned at or before the trial for in-ability to prove. 8. Plea under Section 53-A of the Transfer of, Property Act raises a mixed question of law and fact and therefore cannot be permitted to be urged for the first time at the stage of second appeal. That apart, performance or willingness to perform his part of the contract is one of the essential ingredients of the plea of part performance. Thawar Das having failed in proving such willingness ..... X X X X Extracts X X X X X X X X Extracts X X X X
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