Judgment Narasimham, J. 1. These two appeals by the plaintiff arise out of the judgment of Raj Kishore Prasad, J. partially reversing the judgment of the Additional Subordinate Judge of Patna and setting aside a charge created under Sec. 55(6) (b) of the Transfer of Property Act on some bakasht lands in the possession of defendants 5th and 6th parties. They were heard together and will be disposed of in one judgment. The plaintiffs case was that on the 28th January, 1951, defendant No. 1, Parasnath Choubey and defendant No. 4, Ramadas Choubey, entered into an oral contract with the plaintiff for the sale of their zamindari interest together with bakasht lands to the plaintiff, and on the 29th March, 1951, they also executed and registered two deeds of agreement (moahadanamas), exhibits 1 and 1(a), undertaking to execute the actual sale-deeds conveying the said properties on the 13th April, 1951. It was further alleged that the vendors definitely assured the plaintiff-purchaser that there were no encumbrances on the said properties and a recital to that effect was also made in the contracts (sic) agreement. In pursuance of the contract the plaintiff also advanced certain sums to them by way of earnest money and part of the consideration. The plaintiff was all along ready and willing to perform his part of the bargain and though he issued repeated notices to these two defendants about his readiness and willingness to get the sale-deeds executed, and even went to the length of purchasing the requisite stamps papers on the 11th April. 1951, the defendants did not execute the documents in pursuance of the contract on the due date, namely, the 13th April, 1951. Thereafter, when the plaintiff met them on the 17th April, 1951, these defendants were alleged io have flatly refused to execute the sale-deeds. Hence the plaintiff rushed to the court with two suits against the two defendants, namely, Title suit No. 35 of 1951 and Title suit No. 36 of 1951. The suits as originally framed were simple suits for specific performance of the contract. Subsequently by an amendment some other defendants, namely, defendants 5th and 6th parties, were added as parties, because they were subsequent purchaser from defendants 1 and 4 of the same property by three registered sale-deeds dated the 25th April, 1951. The suits as originally framed were simple suits for specific performance of the contract. Subsequently by an amendment some other defendants, namely, defendants 5th and 6th parties, were added as parties, because they were subsequent purchaser from defendants 1 and 4 of the same property by three registered sale-deeds dated the 25th April, 1951. It was alleged that they were not bona fide purchasers for value and that they were aware of the existence of the previous contract. The plain! was filed on the 20th April, 1951, when the zamindari interest in the village remained with the contesting defendants. But by 1956 the zamindari had vested in the Government under the provisions of the Bihar Land Reforms Act. Hence the plaintiff filed an amendment to the plaint on the 27th February, 1956, giving up his prayers for specific performance of the contract of sale and asking for a statutory charge on the bakasht lands under Section 55(6) (b) of the Transfer of Property Act. 2. The main defence of defendants 1 and 4, the original contracting parties, was that the plaintiff and these defendants were fully aware of the existence of the previous encumbrances on the property and that the plaintiff undertook to pay the consideration money in full to these defendants and also to discharge the encumbrances. Hence, though these defendants were ready and willing to perform their part of the contract by executing the sale-deeds on receipt of the full consideration as stipulated in the contract, the plaintiff committed breach of the terms by insisting on deduction of the mortage dues from the total consideration money. This was said to be the main reason why the contract fell through. 3. The trial court was inclined to accept the plaintiffs case that the sellers created a false impression on the plaintiffs mind about the absence of any encumbrance on the properly and that consequently the plaintiff was entitled to deduct the mortgage dues from the total consideration money. The trial court, therefore, directed defendants 1 and 4 to refund to the plaintiff the earnest money and part of the consideration paid at the time of executing the two agreements, exhibits 1 and 1(a). The trial court, therefore, directed defendants 1 and 4 to refund to the plaintiff the earnest money and part of the consideration paid at the time of executing the two agreements, exhibits 1 and 1(a). But it also held that the subsequent purchasers, namely, defendants 5th and 6th parties, knew of the existence of the prior contract with the plaintiff, that they were purchasers after the commencement of the suit and that the plaintiff was entitled to a charge on the bakasht lands under Sec. 55(6) (6) of the Transfer of Properly Act. 4. The decree for refund of part of the consideration money by defendants 1 and 4 from the plaintiff was not challenged and may be taken as concluded. This, however, does not materially help the plaintiff because defendants 1 to 4 have absolutely no properly in their names at present. Hence the plaintiff has been anxious to get a statutory charge on the baknsht lands which are now in the possession of the subsequent purchasers, namely, defendants 5th and 6th parties. 5. On appeal the learned Single Judge was of the view, relying mainly on the evidence of the plaintiffs own brother. P.W. 1, who is an Advocate of thirteen years -standing practising in Patna District (lour), that the defendants 1 and 4 were always ready and willing to fulfil their part of the contract of sale and that it broke down not due to their own laches. He was inclined to think that the contract fell through because the plaintiff was not ready with the balance of the consideration money to be paid on the agreed date of sale, namely, the 13th April, 1951. Hence he thought that it was the plaintiff who improperly declined to accept delivery of the properly from defendants 1 and 4 on the due date and hence he was not entitled to a charge on the bakasht lands in possession of the subsequent purchasers. 6. Mr. Hence he thought that it was the plaintiff who improperly declined to accept delivery of the properly from defendants 1 and 4 on the due date and hence he was not entitled to a charge on the bakasht lands in possession of the subsequent purchasers. 6. Mr. Lal Narain Sinha for the appellant plaintiff urged that the learned Single Judge has made out a third case which was not the case of the contesting defendants, that his finding that the contract fell through on account of the failure of the plaintiff to have ready cash with him on the date of the sale was based on no evidence but was a mere surmise and that consequently the judgment of the learned Single Judge was vitiated by serious errors of law. He further urged that when the contest ing defendants asserted in their written statement and also led evidence to show that the contract fell through because the plaintiff was not willing to give them the entire consideration money without deducting the previous mortgage dues, it was not open to the learned Single Judge to say that the contract fell through for some other reason. 7. It is well known that once a suit is actually brought in the law courts both parties try to suppress all matters unfavourable to them and put their case at the highest in a somewhat exaggerated form. It is true that defendants 1 and 4 have all along been asserting that the previous encumbrance was fully known to the plaintiff notwithstanding the recital to the contrary in the two deeds of agreement exhibits 1 and 1(a), and that the contract fell through solely because the plaintiff was not prepared to give them the full consideration money, as stipulated in the deeds of agreement, without deducting the previous mortgage dues. The plaintiffs case on the other hand was that he was completely kept in the dark about the existence of the previous encumbrance and the contract fell through because defendants 1 and 4 were avoiding to accept the stipulated consideration money after deducting the mortgage dues. 8. The plaintiffs case on the other hand was that he was completely kept in the dark about the existence of the previous encumbrance and the contract fell through because defendants 1 and 4 were avoiding to accept the stipulated consideration money after deducting the mortgage dues. 8. The main question for consideration by both the courts was whether on the evidence as adduced by the parties it could be held that the plaintiff improperly declined to accept delivery of the properly so as to disentitle him to the charge on fhe bakasht lands as permitted by Sec. 55(6) (b). Tf it could be held that he was always ready and willing to fulfil his part of the contract and that if was due to the laches of the sellers, namely, defendants 1 and 4. that the sale-deeds could not be executed on the 13th April, 1951, the plaintiff may legitimately claim a charge on the property. If, however, il could be held that defendants 1 and 4 were always ready to fulfil part of the bargain and that the contract fell through not due to their ladies, the plaintiffs suit must fail. 9. It is in this connection that the learned Single Judge rightly attached great importance to the evidence of the plaintiffs own brother, P.W. 1. who is the most important witness in this case. He is an Advocate of thirteen years standing practising in the Patna courts. There could possibly be no question of his either getting confused in cross-examination or of making statements without understanding the full implications of the same. In examination-in-chief he stated that defendants 1 and 4 did not inform him on the 13th April, 1951, that there was encumbrance over the property and that there was no agreement that the plaintiff would pay the mortgage dues. But in cross-examination he has given a different statement which has practically destroyed the entire plaintiffs case. According to him. a few days after the. But in cross-examination he has given a different statement which has practically destroyed the entire plaintiffs case. According to him. a few days after the. execution of the deeds of agreement he had talks with defendants 1 and 4 and "they were ready to execute the sale-deed and did not show unwillingness at any time." He further clarified this answer by saying that some days after the execution of the deeds of agreement lie and his brother, namely, the plaintiff, came to know about the existence of the previous enotimbritmy on the properly to the extent of Rs. 8000/-, that he himself inform-,ed defendants 1 and 4 that this sum would have to be debited from the consideration money and that then "they showed willingness to have the encumbrance deducted and were ready to execute the deeds" He emphatically denied Ihc defendants suggestion I hat when he told them that the encumbrance would be deducted from the consideration money" they were startled". It is true that this witness has not gone further and explained as to why the contract eventually broke down. If, as stated by him, defendants 1 and 4 agreed to the deduction of the previous mortgage dues from the consideration money and were always ready and willing to execute the sale-deed at any time, it is obvious that the contract fell through not due to their laches. Mr. Lal Narain Sinha. however, argued with considerable ingenuity that this witness did not fully understand the implications of the questions put to him, that what he meant by the answers was that these defendants were merely evading to execute the documents by false and insincere piomises. that in fact defendants 1 and 4 were never willing to execute the sale-deeds as would be clear from their subse-quent conduct. In my opinion such an argument is not open to Mr. Lal Narain Sinha in the peculiar facts and circumstances of this case. If really this witness meant that the assurance of the defendants about their readiness and willingness to execute the sale-deeds was an insincere and false assurance, he would surely have said so in his deposition. or sat any rate, he could have been re-examined on this point. Considering his attainments and standing at the Bar. his evidence must be taken at its full fact value. or sat any rate, he could have been re-examined on this point. Considering his attainments and standing at the Bar. his evidence must be taken at its full fact value. it would clearly show that the main foundation on the basis of which the plaintiff has brought the suit, namely, that the contract fell through because the defendants did not agree to the deduction of the mortgage money from the consideration, has disapproved. 10. It may be that the observation of the learnetl Single Judge that the contract fell through because the plaintiff did not have sufficient money might not be justified from the evidence on record. The plaintiff (P.W.13) has been always asserting that he had sufficient sum in the Bihar Bank for payment of the consideration money. But the question still remains as to how in view of the evidence of his own brother (P.W. 1) to the effect that the contesting defendants were always ready and willing to execute the sale deed "at any time" it can be held that there were laches on their side. According to P. W. 1 they were even willing to allow the encumbrance to be deducted from the total consideration money. If in spite of this attitude of theirs the sale deed was not executed, the only possible inference is that it must have been due to some laches on the side of the plaintiff. It is not necessary for a court to surmise as to what have been the real cause of the failure of the contract. Whatever that may be, it could not have been caused by the action of the contesting defendants and hence the court was entitled to hold that it was the plaintiff who improperly declined to accept deliver. It was argued that the burden was on the defendants to show that the plaintiff, improperly declined to accepl delivery. This discussion about the burden of proof is wholly academic in this case because both parties have led ample evidence and it is a question of belief or disbelief of the witnesses. The plaintiff alone knows the real secret for the failure of the contract and he has not cared to reveal that secret in court. His brothet (P.W 1) also would not say clearly as to why the contract failed though according to him the contesting defendants were always readv and willing. The plaintiff alone knows the real secret for the failure of the contract and he has not cared to reveal that secret in court. His brothet (P.W 1) also would not say clearly as to why the contract failed though according to him the contesting defendants were always readv and willing. The contesting defendants were really hard pressed for money at that time because they were involved in a criminal case and one of them was actually convicted on the 13th April, 1951 and had to be released on bail. Thus when the facts proved by the plaintiff himself show that the defendants wanted money urgently, that they were ready to allow even the mortgage money to be deducted from the total consideration and they were willing to execute the sale deed at any time, it will not be proper to hold that the learned Single Judge committed any error of law in deciding that there was improper refusal by the plaintiff to accept delivery so as to disentitle him to a charge on the bakasht lands. 11. Mr. Mahabir Prasad tor the appellants further urged that after the taking over of the zamindary by the Government under the provisions of the Land Reforms Act, the bakasht lands have ceased to be bakasht lands and have now become raiyati lands of the purchasers by virtue of the provisions of that Act and that a charge could not be created on these raiyati lands as they are fundamentally different in character from the original property which was the subject matter of the contract between the parties. It is, however, unnecessary to discuss this question of law for the reasons already mentioned. Even if it be held that the mere change in the character of the original bakasht lands into raiyati lands by virtue of the provisions of the Land Reforms Act will not disentitle the plaintiff to the relief under Sec. 55(6) (b) of the Transfer of Property Act, nevertheless on the finding of fact of the lower appellate court, which is based on appreciation of evidence of the plaintiffs own brother (P.W 1). the suit as framed must fail so far as the creation of a charge was concerned. 12. For these reasons. I would maintain the judgment of the learned Single Judge and dismiss the appeal with costs. S.P.Singh, J. 13 I agree.