Judgement R. B. LAL J. :- This appeal by the plaintiff is from a judgment and decree dated 23rd May, 1978 of the, 2nd Addl. Civil Judge, Meerut dismissing the suit for specific performance and recovery of possession. 2. The plaintiff-appellant brought suit with the allegations that on 25th Sept., 1965, Smt. Omkari (defendant No. 1) had agreed to sell her land to him for a consideration of Rs. 20,000/-. She had 1/3rd share in joint bhumidhari and sirdari khatas. She had agreed to have her share partitioned and to acquire bhumidhari rights in respect of the sirdari land. The sale deed in his favour was to be executed thereafter. He paid a sum of Rs. 3,000/- to the defendant No. 1 as advance and she executed a registered agreement to sell in his favour. He gave notice dated 13th May, 1968, to the defendant No. 1 to have her share partitioned and to execute a sale deed thereof in his favour on receipt of the balance consideration of Rs. 17,000/- but she did not pay any heed. Defendant No. 1 and her co-sharers were in collusion, and therefore he thought that it would not be expedient to wait till the partition of the share of the defendant No. 1. He gave another notice dated 9/10 Sept., 1968 calling upon the defendant No. 1 to execute the sale deed of the land of her share in his favour after depositing ten times land revenue in respect of the sirdari land, and to come to the registration office on 20th Sept., 1968 for the purpose. The defendant No. 1 did not comply. After this notice, he several times approached the defendant No. 1 to execute the sale deed but she refused to do so. He was all along willing and ready to perform his part of the contract and to pay the balance consideration of Rs. 17,000/- and other incidental expenses. 3. The plaintiff got the plaint amended in the year 1969 and impleaded Rajsingh as a defendant. He alleged that Rajsingh (present defendant-respondent No. 2) in collusion with the defendant No. 1, filed a suit in the Court of the Civil Judge, Saharanpur, for recovery of money on the basis of a fictitious claim and obtained an ex parte decree. 3. The plaintiff got the plaint amended in the year 1969 and impleaded Rajsingh as a defendant. He alleged that Rajsingh (present defendant-respondent No. 2) in collusion with the defendant No. 1, filed a suit in the Court of the Civil Judge, Saharanpur, for recovery of money on the basis of a fictitious claim and obtained an ex parte decree. He got the decree transferred to Meerut and put the share of bhumidhari plots of defendant No. 1 to auction sale in execution of that decree. He purchased the land himself and the auction sale was confirmed on 7-3-1969 by the executing Court. The plaintiff added that he was not arrayed as a party in that suit by Raj Singh. The auction sale was a collusive act of Raj Singh and the defendant No. 1. Raj Singh had full notice of the agreement to sell between him and the defendant No. 1. The auction sale was also hit by the doctrine of lis pendens and it was not binding on him. 4. The plaintiff prayed that a decree for specific performance be passed and the defendant No. 1 be directed to execute a sale deed of the property detailed at the foot of the plaint in his favour, on receipt of the sum of Rs. 17,000/-. The defendant No. 2 Raj Singh should also be directed to join in the execution of the sale deed. He also prayed for delivery of possession over the land in suit. At the foot of the plaint, the property in suit was described as 1/3rd share in the bhumidhari and sirdari plots. Four bhumidhari plots measuring 27 bighas 15 biswas 15 biswansis and one sirdari plot measuring 17 bighas 3 biswas 10 biswansis were mentioned. The total area of the share of this defendant No. 1 was shown as 14 bighas 19 biswas and 11 ? biswansis. 5. Originally the plaintiff had arrayed the co-tenants of defendant No. 1 also as defendants Nos. 2 to 6 and had made some allegations with regard to the partition suit which was pending at the time of the institution of his suit. He later on deleted the names of those defendants from the aray of the defendants. Hence, it is not necessary to set out averments made with regard to the partition suit. 6. Smt. Omkari filed a written statement on 20th April, 1969. He later on deleted the names of those defendants from the aray of the defendants. Hence, it is not necessary to set out averments made with regard to the partition suit. 6. Smt. Omkari filed a written statement on 20th April, 1969. She averred that she was trying her best to get her share partitioned and she had no objection to the specific performance of the agreement to sell dated 25th Sept., 1969. She added that the delay in decision of the partition suit was on account of the fabian tactics of her co-tenants. She also pleaded that the suit of the plaintiff was premature. Under the terms of the agreement, the sale deed was to be executed after the partition of the holding and the mutation proceedings were over. 7. Raj Singh (respondent No. 2) filed a written statement on 19th May, 1970. He pleaded that the defendant No. 1 had borrowed a sum of Rs. 15,000/- from him on 15th Jan., 1965, and executed a pronote in his favour. He filed suit in the Court of the Civil Judge, Saharanpur, for recovery of the principal and interest and the suit was decreed. He got the decree transferred to Meerut and got the share of land of the defendant No. 1 put to auction sale which was confirmed on 7th March, 1969. Later on he obtained possession over the land. He denied that there was any collusion between him and the defendant No. 1. He attacked the agreement to sell dated 25th Sept., 1965, as a fraudulent and collusive document. He also contended that the plaintiff had no right to challenge the auction sale in his favour. 8. Raj Singh filed three additional written statements dated 11-5-1971, 28-3-1977 and 18-7-1977. In the first additional written statement he took up the stand that the proceedings in the suit for partition of holding between Smt. Omkari defendant No. 1 and her co-tenants were bona fide and binding. The proceedings had become final and the plaintiff had no right to challenge the same. In the second additional written statement he pleaded that after the auction purchase he had got himself impleaded in the partition suit and got a separate kurra prepared for himself. He was in possession over that land. The proceedings had become final and the plaintiff had no right to challenge the same. In the second additional written statement he pleaded that after the auction purchase he had got himself impleaded in the partition suit and got a separate kurra prepared for himself. He was in possession over that land. In para 2 of the third additional written statement he pleaded that after the preparation of a separate kurra of the land of Smt. Omkari in the partition suit, the suit of the plaintiff (present appellant) was not maintainable as the details of the property given at the foot of the plaint remained incomplete and indefinite. The plaintiff had not cared to substitute the particulars of the kurra prepared for Smt. Omkari in his plaint. He (Raj Singh) was a bona fide purchaser for valuable consideration without notice of the agreement to sell and, therefore, the said agreement could not be enforced against him. 9. Two of the co-tenants of defendant No. 1, who had been arrayed as defendants, filed a written statement and an additional written statement; but since the names of the co-tenants were struck off from the array of defendants, it is not necessary to set out their pleas. 10. The learned Civil Judge framed in all nine issues in the suit. He answered six issues in favour of the plaintiff and held that the agreement to sell was not invalid, the plaintiff had always remained ready and willing to get the sale deed executed in his favour on performing his part of the contract, the suit was not barred by the principles of estoppel and acquiescence, and Raj Singh was not a bona fide purchaser without notice. He however, decided three issues namely Nos. 2, 5 and 9 against the plaintiff and held that the suit was premature as it was filed before the conclusion of the partition suit. The decree in the partition suit was binding on the plaintiff and he had no right to challenge the decree passed in that suit. For this reason the suit for specific performance was barred by the principle of res judicata. The decree in the partition suit was binding on the plaintiff and he had no right to challenge the decree passed in that suit. For this reason the suit for specific performance was barred by the principle of res judicata. The suit was not maintainable because the plaintiff was claiming specific performance in respect of a larger area even though defendant No. 1 had been given smaller area in partition and the plaintiff had not cared to give the details of the separate kurra of the defendant No. 1 in the plaint. In the result the learned Civil Judge dismissed the suit with costs to Raj Singh contesting defendant. 11. The plaintiff has not felt satisfied and hence this appeal. Raj Singh respondent No. 2 alone has contested this appeal. 12. We have heard learned counsel for the parties. 13. The learned counsel for the appellant has taken up an entirely new stand in this appeal. He has urged that in view of the provisions of Section 12 (3) of the Specific Relief Act, 1963, (briefly the Act) the suit should have been decreed for specific performance in respect of the reduced area of land namely 6 bighas 16 biswas bhumidhari which had been allotted to defendant No. 1 in the partition suit. In order to claim benefit of this provision it was not necessary to amend the plaint and incorporate a prayer to that effect. The relief under that provision could be claimed at any stage of litigation and can be claimed even at the appellate stage. In support of this proposition the learned counsel has placed reliance on the decision Kalyanpur Lime Works v. State of Bihar ( AIR 1954 SC 165 ). The learned counsel for the appellant has made an oral submission before us claiming benefit of the provision of S.12 (3) of the Act. He has further submitted in compliance with Cl.(ii) of sub-section (3) that the appellant relinquishes all claims to the performance of the remaining part of the contract and all right to compensation either for the deficiency or for the loss or damage sustained by him through the default of the defendant. He has added that the appellant also does not claim reduction in the amount of consideration in proportion to the part of the contract which must remain unperformed and he is prepared to pay the balance of Rupees 17,000/-. 14. He has added that the appellant also does not claim reduction in the amount of consideration in proportion to the part of the contract which must remain unperformed and he is prepared to pay the balance of Rupees 17,000/-. 14. The learned counsel for the contesting respondent has disputed this submission and urged that the appellant is not entitled to claim the benefit of the provisions of Section 12 (3) of the Act. He has urged that the plaintiff had not pleaded the material facts which would have formed the basis for such a claim. Averments relevant to the provisions of S.12 (3) should have been made at the trial of the suit and the defendant should have been afforded an opportunity to go to trial on questions which would have arisen in that connection. There was no statutory duty on the trial Court to grant relief under S.12(3) without the plaintiff asking for it. The learned counsel has further urged that in the trial Court the stand of the plaintiff was that he was entitled to specific performance of contract in respect of one-third share of defendant No. 1. In this connection he had questioned the decree for partition and said that it was not binding on him. This had given rise to the issue of res judicata which was decided by the trial Court. By taking up this stand, by implication, the plaintiff had given up the option which could be claimed by him under Section 12 (3) of the Act. The plaintiff had not given an indication that he intended to enforce the option available to him and the contesting respondent (Raj Singh) did not know that the plaintiff would exercise the option in future. The plaintiff-appellant was claiming benefit of S.12 (3) after a lapse of about 14 years, and in the mean time there had been a general rise in the price of land. On account of this delay as well, the plaintiff was not entitled to exercise of discretion of this Court in his favour. 15. The findings which were recorded in favour of the plaintiff have not been challenged before us. 16. The view of the trial Court that the plaintiff was bound by the decision in the partition suit and could not challenge that decision too has not been assailed before us. 15. The findings which were recorded in favour of the plaintiff have not been challenged before us. 16. The view of the trial Court that the plaintiff was bound by the decision in the partition suit and could not challenge that decision too has not been assailed before us. After taking this view the learned trial Judge held that since the plaintiff was claiming one-third share and the share of defendant No. 1, had been held to be less than that, his suit was barred by the principle of res judicata. In our opinion, this view of the learned trial Court was not correct. The suit for specific performance could not be held barred by the principles of res judicata on this ground. 17. On the date of the institution of the suit, i.e. 7th Oct., 1968 the suit was premature. The agreement to sell clearly provided that defendant No. 1 would execute a sale deed in favour of the plaintiff within one month of the decision of the partition suit and its amaldaramad in the revenue records. Preliminary decree in the partition suit determining the share and area of defendant No. 1 was passed on 30-4-1969. The stand of the plaintiff that he could waive the condition of partition of the share of defendant No. 1 and could claim execution of the sale deed of the unpartitioned one-third share of defendant No. 1, was not well founded and was rightly repelled by the learned trial Court. The language of the agreement to sell was unambiguous in this respect. However, this aspect lost its importance and became academic when during the pendency of the present suit, the partition suit was decided and it was held that defendant No. 1 had only one-fourth share in the four bhumidhari plots alone and had no share in any other plot. The area of the share of defendant No. 1 was also determined at 6 bighas 16 biswas. This partition decree became final. After this, the suit could not be dismissed on the technical ground that it was premature. The fact that the plaintiff had filed the suit prematurely could at the best disentitle him from claiming costs and render him liable to pay costs of the defendants. 18. Now we proceed to consider the appellants plea that he may be allowed the benefit of the provisions of S.12 (3) of the Act. 19. The fact that the plaintiff had filed the suit prematurely could at the best disentitle him from claiming costs and render him liable to pay costs of the defendants. 18. Now we proceed to consider the appellants plea that he may be allowed the benefit of the provisions of S.12 (3) of the Act. 19. Sub-section (3) of S.12 corresponds to S.15 of the Specific Relief Act, 1877 with some modifications. Sub-section (3) reads thus :- "(3) Where a party to a contract is unable to perform the whole of his part of it, and the part which must be left unperformed either - (a) forms a considerable part of the whole, though admitting of compensation in money; or (b) does not admit of compensation in money; he is not entitled to obtain a decree for specific performance; but the Court may, at the suit of the other party, direct the party in default to perform specifically so much of his part of the contract as he can perform, if the other party - (i) in a case falling under clause (a), pays or has paid the agreed consideration for the whole of the contract reduced by the consideration for the part which must be left unperformed and in a case falling under Cl.(b), the consideration for the whole of the contract without any abatement; and (ii) in either case, relinquishes all claims to the performance of the remaining part of the contract and all right to compensation, either for the deficiency or for the loss or damage sustained by him through the default of the defendant." 20. The words unable to perform suggest that the sub-section is applicable only when the party cannot for any reason perform the whole of what he has promised. The inability may arise by any cause whatsoever including statutory limitations. The inability to perform may arise by - (i) deficiency in quantity of the subject-matter, or (ii) variance in quality, or (iii) defect in title; or (iv) some legal prohibition; or (v) other causes. The expression considerable part implies that the part which will be left unperformed is either large as regards quantity or as regards quality. In other words, it is material and not insignificant, so that a reasonable objection can be taken by the promisee to accept performance. The expression considerable part implies that the part which will be left unperformed is either large as regards quantity or as regards quality. In other words, it is material and not insignificant, so that a reasonable objection can be taken by the promisee to accept performance. The phrase does not admit of compensation implies that there are no data for ascertaining a fair and reasonable amount as the money value of the difference between what can be performed and the express subject-matter of the contract. The amount need not be mathematically accurate. If a reasonable estimate of the amount as the money value can be made, it will not be a case where the compensation is unascertainable. 21. The language of the agreement to sell in the instant case is clear and indicates that defendant No. 1 had contracted to sell her one-third share in the two holdings which came to 14 bighas 19 biswas 11-2/3 biswansis to the plaintiff after the conclusion of the partition proceedings. It was not the intention of the parties that if on partition defendant No. 1 were to be held entitled to a smaller area, then the agreement would be taken to relate to that smaller area alone. When in the partition suit the defendant No. 1 was held entitled to only 6 bighas 16 biswas bhumidhari land, she became unable to perform the whole of her part of the contract. The part which was to remain unperformed was obviously considerable part being more than half of the area originally contracted to be sold. The considerable part which was to be left unperformed admitted of compensation in money. The fair and reasonable compensation could be determined with reference to the amount of sale consideration fixed for the area originally contracted for. Thus, the ingredients of Clause (a) of sub-section (3) of Section 12 of the Act were present in the instant case. 22. In the plaint the plaintiff claimed specific performance of the contract in respect of the one-third undivided share of defendant No. 1 in the bhumidhari and sirdari holdings which come to 14 bighas 19 biswas and odd. This could be justified on the ground that at the time of the institution of the suit, the suit for partition of the holdings was pending. This could be justified on the ground that at the time of the institution of the suit, the suit for partition of the holdings was pending. However, after the partition suit was decreed and the decree became final, it was clear that the defendant No. 1 could not be deemed owner of more than 6 bighas 16 biswas bhumidhari land and she could not transfer more than that area to the plaintiff. After this decree the plaintiff did not get the plaint amended so as to claim the relief for specific performance in respect of 6 bighas 16 biswas land only under the provisions of Section 12 (3) of the Act. He, on the other hand, attacked the partition decree as collusive. He later on gave up this stand, but continued to assert that the partition decree was not binding on him and he was entitled to specific performance of the whole contract. During the trial also the plaintiff did not change the above stand and did not claim benefit of Section 12 (3) either by moving an application or by making an oral submission in this behalf. In the memorandum of appeal too the partition decree was challenged and it was not said that the appellant might be allowed the benefit of Section 12 (3) of the Act. It was for the first time during arguments that the learned counsel for the appellant has prayed for allowing the benefit of the provisions of S.12 (3). 23. The contention of the learned counsel for the appellant that the suit should have been decreed for specific performance of contract in respect of the reduced area of land, in substance amounts to saying that the trial Court should have suo motu proceeded to grant the benefit of the provisions of Section 12 (3) to the plaintiff even though he had not cared to claim the same. We are unable to accept this contention. This sub-section does not cast such a duty on the Court. Sub-clause (ii) of this sub-section requires the party who claims benefit of this sub-section to relinquish all claims to performance of the remaining part and all right to compensation for the deficiency or for the loss or damage occasioned through the default of the defendant. This sub-section does not cast such a duty on the Court. Sub-clause (ii) of this sub-section requires the party who claims benefit of this sub-section to relinquish all claims to performance of the remaining part and all right to compensation for the deficiency or for the loss or damage occasioned through the default of the defendant. Unless the plaintiff conveys it to the Court that he is prepared to make such a relinquishment, it is under no legal duty to consider the desirability of allowing benefit of this sub-section to him. Since in this case, admittedly, such a relinquishment was not made by the plaintiff before the trial Court and even no reference was made to this sub-section in reply to issue No. 9 the trial Court was justified in not considering the question of applicability of Section 12 (3) of the Act. 24. The contention of the learned counsel for the contesting respondent that the plaintiff appellant cannot claim the benefit of the provisions of Section 12 (3) because he had not pleaded the material facts and had not afforded an opportunity to the respondent to go on trial on those facts is, in our opinion, too broadly stated. There is nothing in Section 12 or any other provision of the Act which requires that the facts relevant to the applicability of these provisions should be pleaded in the plaint or be set out in an application. To accept the learned counsels submission would be rendering this beneficial provision too narrow and technical. In most of the cases material facts essential for claiming benefit of this sub-section, are likely to come on record with clarity and sufficient certainty. Only in a few cases the material facts may not come on the record or remain in dispute in the absence of a formal claim for the benefit of the provisions of S.12(3), during the trial. In such cases the defendant may argue with some justification that the plaintiffs belated claim should not be considered for want of the necessary material. However, the present is not a case of this type. Here all the material facts are available on the record and there is no dispute about them. We have discussed that material earlier and shown how it makes out the necessary ingredients of Section 12 (3) (a) of the Act. 25. However, the present is not a case of this type. Here all the material facts are available on the record and there is no dispute about them. We have discussed that material earlier and shown how it makes out the necessary ingredients of Section 12 (3) (a) of the Act. 25. The relinquishment of claim to further performance of the remaining part of the contract and all rights to compensation can be made at any stage of litigation. This was held in Kalyanpur Lime Works v. State of Bihar, ( AIR 1954 SC 165 ). Their Lordships of the Supreme Court referred with approval to a Division Bench decision of the Lahore High Court in Waryam Singh v. Gopi Chand, (AIR 1930 Lah 34). 26. In the case of Kalyanpur Lime Works the plaintiff had sued the State of Bihar for specific performance of a contract for lease. It was found that an earlier lease in favour of another company was in force and could not be forfeited and, therefore, the Government was not in a position to grant lease of the property to the Lime Company. The Lime Company made an application at the appellate stage chiming benefit of the provisions of old Section 15 and prayed grant of the lease for the period of five years which remained after the expiry of the period of lease of the other company. Their Lordships of the Supreme Court observed: "Relinquishment of the claim to further performance can be made at any stage of the litigation." and referred to Waryam Singhs case with approval. However, the benefit of old Section 15 was not allowed an other considerations. 27. In Waryam Singhs case ( AIR 1954 SC 165 ) defendants Nos. 1 and 2 had agreed to sell 200 Kanals of specified land, but later on it was found that they were owners of only two-third of that land. In the trial Court the plaintiff insisted on specific performance of the whole contract and prayed that the defendants be asked to make good the deficiency from the other land belonging to them. At the time of the arguments the plaintiff had moved an application claiming benefit of the old Section 15 in case it was held that the defendants were incompetent to sell the whole of the land. At the time of the arguments the plaintiff had moved an application claiming benefit of the old Section 15 in case it was held that the defendants were incompetent to sell the whole of the land. The Division Bench held: "It is open to the plaintiff to relinquish his claim to any part of the property in suit on the conditions specified in Section 15 at any time before the suit is finally decided by the Court of appeal." 28. Thus, there is ample authority to support the proposition that relinquishment could be made at any stage of the litigation including the appellate stage. The claim of the plaintiff appellant for grant of benefit under Section 12 (3) cannot, therefore, be rejected on the simple ground that it was not made at the trial stage and has been made for the first time at the appellate stage. In our view the claim can also not be rejected on the short ground that it was not incorporated in the plaint or was not set forth in writing before the trial Court. 29. The question whether the delay in making the claim would or would not disentitle a plaintiff from grant of such a relief is, in our opinion, an entirely separate and different question and its decision would depend on a consideration of the facts and circumstances of each particular case and the over-all conduct of parties. 30. Raj Singh, the contesting respondent, purchased one-fourth share of defendant No. 1 in bhumidhari land in auction sale on 21-1-1969. Till then the partition suit had not been decided and the share of defendant No. 1 had not been determined. It appears that Raj Singh got one-fourth share of defendant No. 1 in the bhumidhari land auctioned because sirdari land could not be put to sale. Up to 7-3-1969 the plaintiff had no occasion to claim benefit of Section 12 (3) because till then it had not been finally decided as to what was the share of defendant No. 1 in the holdings. It cannot, therefore, be said that when the contesting respondent made the bid in the auction sale he was misled by the silence of the plaintiff. 31. The plaintiff was pursuing the suit for specific performance of contract diligently. It cannot, therefore, be said that when the contesting respondent made the bid in the auction sale he was misled by the silence of the plaintiff. 31. The plaintiff was pursuing the suit for specific performance of contract diligently. The mere fact that the plaintiff was challenging the partition decree as not binding on him, cannot lead to the conclusion that he had given up his option of claiming the benefit of the provisions of Section 12(3) of the Act. The plaintiff was trying to get the specific performance of the total area contracted for and he could fall back on the provisions of Section 12(3) at any later stage, if he felt that the suit for specific performance of the whole contract could not be decreed. Therefore, there could be no justification for the contesting respondent to think that the plaintiff had given up his option under Section 12(3). It is obvious that the purchase was not made by the contesting respondent under the impression that the plaintiff had given up his option under Section 12(3) because till then the circumstances for exercise of that option had not arisen. 32. Undoubtedly, the plaintiff made his claim for the benefit of the provisions of Section 12 (3) after a considerable delay of about 14 years from the date of the institution of the suit. However, we are of the opinion that the delay unless it has caused prejudice to the defendants, should not by itself be taken as sufficient to disentitle the plaintiff from obtaining relief. In the instant case, the contesting defendant has not been able to show that any harm was caused to him on account of the delayed exercise of option by the plaintiff. As observed earlier, the auction purchase was made by the contesting respondent at a time when the question of exercise of option did not exist. The categorical finding of the Court below which has not been challenged before us, is that the contesting respondent (Raj Singh) was not a bona fide purchaser and he had full knowledge of the agreement to sell in favour of the plaintiff. Raj Singh is a brother-in-law (sale) of Mahabir Singh who was a co-tenant of defendant No. 1 and also her deceased husbands cousin. Raj Singh is a brother-in-law (sale) of Mahabir Singh who was a co-tenant of defendant No. 1 and also her deceased husbands cousin. The provisions of S.52 of the Transfer of Property Act do not apply to an auction sale of property in execution of a decree, but the principle of lis pendens has been held to apply to such auction sales; vide Samrendra Nath Sinha v. Krishna Kumar Nag, ( AIR 1967 SC 1440 ). In the instant case, the auction sale was held during the pendency of the suit for specific performance of contract. 33. The fact that the price of property had risen during the period of 14 years too cannot be taken as a circumstance disentitling the plaintiff from claiming the benefit of Section 12 (3). The trend of rise in land prices had set in even in the year 1969 when the contesting respondent made the auction purchase. The plaintiff was to purchase 14 bighas and odd area in the year 1965 for a sum of Rs. 20,000/-. In January, 1969 the prices had risen which is evident from the fact that the auction purchaser purchased a portion of that property namely, 6 bighas 16 biswas bhumidhari land for a sum of Rs. 18,500/-. It cannot, therefore, be justifiably argued that rise in prices of land during the recent years has led the plaintiff to change his mind and claim benefit of the provisions of Section 12 (3). 34. On a careful consideration we are of the view that no circumstances exist in the instant case which would justify denial of the benefit of Section 12 (3) to the plaintiff on any ground. We hold that the plaintiff should be allowed the benefit of the provisions of Section 12 (3) of the Act. As said earlier, the learned counsel for the plaintiff appellant has made a statement before us making relinquishment as required in sub-clause (ii) of sub-section (3) of Section 12. Though the present case falls under Cl.(a) and the plaintiff can claim proportionate reduction in the amount of consideration, but his learned counsel has made a statement before us that the plaintiff appellant is prepared to pay the sum of Rs. 17,000/- which is the balance which remains to be paid by him and he does not claim any reduction under sub-section (i). 17,000/- which is the balance which remains to be paid by him and he does not claim any reduction under sub-section (i). This has probably been done in order to reduce the loss of the contesting respondent to the minimum. 35. The learned Civil Judge had held that the suit was not maintainable because the plaintiff was claiming specific performance in respect of a larger area even though defendant No. 1 had been given a smaller area in partition and the plaintiff had not cared to give the details of the separate kurra of defendant No. 1 in the plaint. The learned Civil Judge would not have, in all probability, taken this view if the benefit of the provisions of Section 12 (3) had been claimed before him. Since that benefit has been claimed before us and we have held that the claim can be entertained and allowed in the circumstances of the case, the finding of the learned Civil Judge on issue No. 9 that the suit is not maintainable, cannot be taken as correct. 36. The learned Civil Judge gave a categorical finding that the plaintiff had always been ready and willing to get the sale-deed executed in his favour on performing his part of the contract. This finding is well founded and has not been challenged before us. 37. In view of the above, the appeal deserves to be allowed in part. 38. Since the option under Section 12(3) of the Act has been exercised at a late stage, we think that the plaintiff should be directed to bear his own costs throughout and to pay the costs to Raj Singh contesting respondent in this Court as also in the Court below. 39. In the result the appeal succeeds and is allowed. The decree of the trial Court dis- missing the suit is set aside. The suit for specific performance of contract in respect of 6 bighas 16 biswas bhumidhari land of plot No. 2254-A, which was allotted to the kurra of Smt. Omkari and Raj Singh the present respondents, is decreed against both the defendants respondents on payment of Rupees 17,000/- by the plaintiff. The plaintiff is allowed to deposit the sum of Rs. 17,000/- in the Court below within a period of three months from today. The plaintiff is allowed to deposit the sum of Rs. 17,000/- in the Court below within a period of three months from today. On the deposit being made as aforesaid, both the defendants, namely, Smt. Omkari and Raj Singh shall execute the sale deed of the aforesaid land in favour of the plaintiff at the latters (plaintiffs) expenses within one month. In the event of the defendants or any one of them failing to execute the sale-deed, the plaintiff shall be entitled to get the sale deed executed through Court at his own expenses. After the sale-deed has been executed, Raj Singh defendant would be entitled to withdraw the sum of Rs. 17,000/- deposited by the plaintiff in pursuance of this decree. The plaintiff shall also be entitled to obtain possession over the land transferred to him by the sale-deed. 40. In the circumstances of the case the plaintiff shall bear his own costs throughout and shall pay the costs of this Court as well as of the Court below to the contesting respondent Raj Singh. Smt. Omkari who did not contest, shall bear her own costs throughout. 41. In case the plaintiff fails to deposit the amount of Rs. 17,000/-, within the time allowed, his suit shall stand dismissed with costs of both the Courts. Appeal partly allowed.