JUDGMENT 1. - Unfortunately, there are not infrequent instances where what should have been clear and certain by applying well established canons of statutory construction becomes befogged by the vegaries, if one may use a possibly strong word without disrespect, of justicial exposition divorced from these canons. The present appeal before me is such an instance by such a fog created by the defendants in the first appeal which arises out of a civil suit which has been decreed by the learned Addl District Judge No. 2. Jaipur City, Jaipur, in favour of the plaintiff-respondent with costs for specific performance of contract for sale of land measuring 3182 sq. yds. situated at Govind Marg, Jaipur and shown by yellow colour in the site plan (Ex. 1) annexed to the plaint.Factual matrix - 2. Dr. S.R. Mahta, the plaintiff-respondent, filed a suit for specific performance. The defendants appellants, Tejendra Singh, Digvijai Singh and Jaivendra Singh, had entered into a verbal contract on July 27, 1968, through Mahadevlal Jethani (PW-5), a property broker, with the plaintiff-respondent, agreeing to sell him their plot of land of joint ownership admeasuring 3,182 sq. vds as shown with yellow colour in the site plan (Ex-1) annexed to the plaint @ Rs. 44/- per sq. yd. In pursuance to the said agreement to sell, the plaintiff made part payment of Rs. 20,000/- through a crossed cheque dated July 27, 1968, and the said cheque was handed over to Mahadevlal Jethani, who was intermediate person in between the plaintiff-respondent and the defendants as a property broker. The said cheque is admitted to have been accepted by the defendants. According to the terms of the said agreement, the stamps and registration charges were to be borne by the plaintiff respondent and the defendants were to execute the sale-deed and then to deliver a vacant possession of the suit land to the plaintiff. 3. In his plaint, the plaintiff averred that he was always ready and willing to perform his part of contract and accordingly, he handed over to the defendant a draft sale-deed of the land purchased by him and, that draft sale-deed was banded over by the defendants to Shri B.P Agrawal, Advocate, who though suggested some minor amendments in the draft sale-deed but the same was neither handed over to the plaintiff nor was executed on a stamp paper by the defendants. Thus, execution of the sale-deed was delayed by the defendants by false promises and assurances. Ultimately, the defendants expressed their unwillingness on October 31, 1968 to execute a sale-deed in favour of the plaintiff and started negotiations for the sale of the plot in question to some other persons at a higher price though the plaintiff was and is ready to pay the balance amount of sale consideration to the defendants. Therefore, the plaintiff prayed that the defendants may be directed to specifically perform the contract through Court and deliver the vacant possession of the land in dispute to the plaintiff. Rs. 1500/- were also claimed by the plaintiff as interest @ 6% p.a. on the ground that the defendants have been wrongfully utilising Rs. 20,000/- since July 27, 1968. The suit was filed on November 1, 1969. 4. The defendants filed a written statement and resisted the suit. They denied the alleged verbal agreement as was pleaded by the plaintiff. In their written statement, the defendants admitted the payment of Rs. 20,000/- through cheque issued by the plaintiff made part it. It was alleged that the amount was paid towards the agreement dated August 2, 1968 which was of course for the sale of the suit land but that was incomplete contract as all the terms and conditions were not settled between the parties and the negotiations were going on-draft sale deed was to be prepared at the instance of both the parties - no final shape to that sale-deed was given because there were differences between the parties in respect of the contents of the sale deed draft. In the written statement, it was admitted that the draft of sale deed was delivered to the counsel Shri B.P. Agrawal, for the defendants by the property broker, Shri Mahadevlal Jathani. In the written statement certain details of the points which have not been settled between the parties have been given. It was alleged by the defendants that the draft of sale-deed could not have been finalised and since as per the terms of the agreement. the plaintiff also failed to pay balance amount within one month from 2.8.1968 the said agreement was rescinded and the plaintiff was asked vide notice dated 31.10.1969 to take away his advance of Rs. 20,000/-. 5. the plaintiff also failed to pay balance amount within one month from 2.8.1968 the said agreement was rescinded and the plaintiff was asked vide notice dated 31.10.1969 to take away his advance of Rs. 20,000/-. 5. It was also contended in the written statement that afterward the defendants entered into the agreement on October 31, 1969 to sale the suit land to M/s. Radha Vallabh & Sons. It was also pleaded that according to the terms of the agreement the plaintiff was obliged to pay the balance sale prise within one month from 2 8.68 and as such the time was essence of the contract. The defendants further contended that the breach of contract took place at the instance of the plaintiff and in these circumstances, the said agreement came to an end and became cancelled automatically on the expiry of one months from 2.8.1968. The interest was denied by the defendants. In this regard. it was contended in the written statement that after expiry of one month from 2.8.1968, on the termination of the contract, the plaintiff was repeatedly told to take away the amount of his advance money but he (plaintiff) did not care to take away the amount, therefore, they (defendants) were not liable to pay any interest on the amount. According to the defendants, the plaintiff was responsible for breach of contract and thus it was prayed that the suit is liable to be dismissed. It was also pleaded by the defendants in their written statement that their title in the suit land was defective and in spite of this information having been conveyed to the plaintiff, the latter insisted for mentioning in the sale deed about the sound-ness of defendants title over the suit land for which they were not agreeable. 6. After receipt of the written statement, the learned trial Court felt it necessary to examine the defendant probably in order to seek some clarification and on 3.12.1970, the defendant No. 3 Jayendra Singh was examined under O.10 R. and 2 Civil Procedure Code wherein the defendant, Javendra Singh, clearly admitted that on 2.8.1968 he alongwith his other two brothers (co-defendants) agreed to sell the suit land to the plaintiff Rs. 44/- per sq yd. through Shri Mabadevlal Jetbani; that, it was the same plot of land which was on rent with M/s. Radha Ballabh & Sons; the land was compounded by well. 44/- per sq yd. through Shri Mabadevlal Jetbani; that, it was the same plot of land which was on rent with M/s. Radha Ballabh & Sons; the land was compounded by well. It was deposed that there was no agreement in between the parties that vacant possession of the plot was to be delivered to the plaintiff It was also admitted that Mahadevial had talk with him but the negotiations took place on 2.8 68 and the same evening. Mahadevlal delivered him a cheque dated 27.7.69 which according to the witness Jayendra Singh, was antedated. It has further been deposed that Mahadevlal settled only the point and it was that vacant possession is not possibles. No other terms or conditions were settled. The witness also admitted that the draft sale-deed incorporating all such condition which were neither settled between, the plaintiff and Mabadevlal Jethani not was it delivered to Mahadevial for approval, never returned to him thereafter. 7. The most important fact which the witness also admitted, was that the terms that the sale would have to be completed and the balance price paid within one month was told by him to the plaintiff who was brought before him by Mhadev Lal on 3.8.68 or 4.8.68 after his taking away of receipt of cheque. According to him the plaintiff neither paid the balance sale price nor got the sale deed registered within the aforesaid period of one month. 8. One the basis of the pleading of the parties, the learned trial Court framed asmany as eight issues as under: 1. Whether the contract in dispute between the parties took place on 27.7 68 or 2.8.68 and what is its effect ? 2. Whether the contract was to he performed within a month from 2.8.68 t and time was the essence of the contract ? 3. Whether a draft of sale was given to the plaintiff and it was he who did not perform his part of the contract ? 4. Was the plaintiff ready to perform his part of the contract ? 5. Is the plaintiff entitled to specific performance of the contract in dispute. ? 6. Is the plaintiff entitled to deduct Rs. 1,500/- as interest on Rs. 20,000/- as also such amount as accrued due during the pendency of the suit on this amount from the amount payable by him as sale price to the defendants ? 7. 5. Is the plaintiff entitled to specific performance of the contract in dispute. ? 6. Is the plaintiff entitled to deduct Rs. 1,500/- as interest on Rs. 20,000/- as also such amount as accrued due during the pendency of the suit on this amount from the amount payable by him as sale price to the defendants ? 7. Relief ? 8. Is the defendant not liable to give a vacant possession of land as the same is in the possession of M/s. Radbaballabh & Sons as tenants, if so, what is its effect ? 9. Issue No. 1 though was decided in favour of the plaintiff-respondent but, while doing so, the learned trial Court observed that in view of the admitted facts, it is not necessary to decide as to ween the agreement to sell was entered into between the parties. Issue No. 2 was also decided in favour of the plaintiff- respondent observing that the learned counsel for the defendants frankly conceded that in the presence of the case pleaded and conflicting evidence led by the defendants, themselves he was unable to argue in respect of the issue and therefore, he did not press the issue. 10. Issue No. 3 and 4 have been decided in favour of the plaintiff and against the defendants. Issue No. 5 is also decided in favour of the plaintiff whereas issue No. 6 has been decided against the plaintiff. Issue No. 8 was decided by the learned trial Court balding that the plaintiff would simply get symbolic possession of the land in question in accordance with law. And, ultimately, the suit of the plaintiff-respondent was decreed by the learned trial Court. Hence this appeal. 11. At the very outset, the learned counsel for the appellants submitted that the amendment application filed by the defendants before the trial Court on December 18, 1972 was wrongly rejected on 23.12.1972. In the said amendment application, the defendants sought to introduce new paragraph which according to them was with intent to elaborate and clarify the incorrectness of the original agreement. This amendment application was moved at a stage when the plaintiff's evidence was closed and the defendants' evidence had began and the statement of Jayendra Singh (DW 1) was already recorded but not completed. This amendment application was moved at a stage when the plaintiff's evidence was closed and the defendants' evidence had began and the statement of Jayendra Singh (DW 1) was already recorded but not completed. The learned trial Court while rejecting the aforesaid statement application discussed the facts admitted by the defendant, Jayendra Singh in his statement under O.10 R. 1, C.P.C. recorded during trial. The learned trial Court in its order dated December 23, 1972 quoted the relevant portion of the statement of the defendant. Jayendra Singh and in the light of these statements, the Court observed that the defendant wanted to get rid of the admissions which have come in the aforesaid statement of Jayendra Singh record under O.10. R.1.; and further that the defendants wanted to raise the defence of incompleteness of the contract which they clearly abandoned at the time when the statement of Jayendra Singh was recorded. The learned trial while dismissing the application for amendment also took note that Jayendra Singh (DW 1) made admissions in his statement during trial and before trial, and after appearing in the Court as D.W. 1 he intentionally avoided to appear in the witness box for the purposes of cross-examination. And inspite of several opportunities having been affordly and on 11-2-1972 his cross-examination was closed but subsequent a prayer was made that the defendant may appear to complete his statement-but he again failed to appear and on 13-7-1972, it was stated that he would not be produced for completing his evidence. The Court further observed that the defendant has been purposely withheld so that his incomplete statement would not be read and the damaging admissions made by him would not be available to the plaintiff. It was observed by the learned trial Court that the application for amendment was made after a great delay; and further that, in addition to the plea of incompleteness of the agreement the defendants have taken a new plea in the proposed para No. 21, i.e. non-joinder of necessary party on the ground that the plot in question has been purchased not only by the plaintiff-respondent but also by his brother Gautam Raj Mehta. In support of this proposed amendment it was pleaded that in the site plan. the names of both the two brothers have been mentioned as purchases, moreover the draft of the sale-deed filed by Mr. In support of this proposed amendment it was pleaded that in the site plan. the names of both the two brothers have been mentioned as purchases, moreover the draft of the sale-deed filed by Mr. Mahadevlal in Court on 28.9.72 also shows that the sale deed was to be executed in favour of two persons but these documents came into existence after 27.7.68 and it cannot be said that the original agreement was with two persons. The Court further observed that an agreement may be entered into for one person and it his instance name of another person may be included in the sale-deed. The mentioning of the name of Gautam Raj Mehta in the blue print and the provision for a second name in the draft sale-deed does not lead to the inference that the original agreement was with Gautam Raj Mehta also the defendants knew with whom they have entered into the agreement and they were bound to take this plea at the earliest opportunity if it had been true; and when the facts were in the knowledge of the defendants from the very beginning they cannot be allowed to take this plea at the late stage. 12. To begin with the arguments, Shri R.C. Kasliwal learned counsel for the appellants wrangled that the learned trial Court committed illegality in rejecting the amendment application dated 18.12.72 filed by the defendants to get their written statement a needed: no prejudice could have caused to the plaintiff in case the application for amendment would have been allowed by the lower court. Learned counsel then contended that the Court should be liberal in allowing the application for amendment and it cannot be disallowed on the ground of delay. To fortify his contentions, learned counsel placed reliance upon on the following decisions which are being discussed simultaneously while dealing with the principal crux of the matter on which the fate of the case binges upon : 13. In (1) Pandit Ishwardas v. State of M.P., ( 1979 (4) S.C.C. 163 ) , the High Court did not allow the respondent to raise plea of res judicata at the belated stage by way of amendment. In (1) Pandit Ishwardas v. State of M.P., ( 1979 (4) S.C.C. 163 ) , the High Court did not allow the respondent to raise plea of res judicata at the belated stage by way of amendment. While deciding the case, their Lordships of the Apex Court held that there should be a reasonable explanation for the delay in making the application seeking such amendment and if made at the belated stage, the reason, why it was not sought in the trial Court if the necessary material on which the plea arising from the amendment may be decided, is already there, the amendment may be more rightly granted even otherwise. The facts of the present case are quite different to the cited case because, the factual matrix narrated here in before makes it explicit that herein the amendment application was already filed before the trial Court whereas in the cited decision, the position was different. So. the principles laid down in the cited decision art not applicable to the case in hand. 14. In (2) Gauri Shanker v. Hindustan Trust Ltd., ( AIR 1972 SC 2091 ) , their Lordships observed that where the plea of absence 'if valid notice terminating the contractual tenancy was not taken in the original written statement, an amendment to include the plea after 8 years should not be allowed on account of grass delay and lathes. These observations also do not land support the contention of the learned counsel for the appellant defendants because in the cited case, the amendment sought after 8 years was disallowed on the ground of inordinate delay while the facts of the case in band are otherwise. 15. In (3) Jai Jai Ram Manaharlal v. National Building Material Supply ( AIR 1969 S.C. 1267 ) , the Apex Court held that the Court always gives leave to amend the pleading of a party, unless it is satisfied that the party applying was acting mala fidely or that by his blunder, he had caused injury to his opponent which may not be compensated for by an order of costs. The Apex Court further observed that however, negligent or careless may have been the first omission, and however late the proposed amendment, the amendment may be allowed if it can be made without injustice to the other side, 16. The Apex Court further observed that however, negligent or careless may have been the first omission, and however late the proposed amendment, the amendment may be allowed if it can be made without injustice to the other side, 16. From the principles quoted above it is abundantly clear that the amendment cannot be allowed at the cost of other party or that there should not be any injustice to the other side As stated earlier, in the case in hand, the lower court while dismissing the amendment application observed that the defendants-appellants by making amendment in their written statement wanted to set up a new case against the plaintiff-respondent so, the permission to amend the written statement was disallowed by it. If these circumstances observed by the lower court appear to be correct which in my opinion is so then definitely in view of the principles laid down in Jai, Jai Ram Manahar v. N.B.M. Supply, Gurgaon (supra), the lower court was justified in rejecting the amendment application. 17. This Court in (4) Ramavtar v. Manak Raj, (1978 RLW 192) observed that the powers of allowing amendment of the pleadings are to be exercised librally unless such a permission causes prejudice to the other side or takes away any vested right which has accrued to the other side by lapse of time. 18. At the cost of repetition, I may reiterate that if the reasons given by the lower court in rejecting the amendment application are justified and in my opinion rightly so, then the amendment application moved by the defendants was liable to be dismissed because, no amendment can be allowed in order to cause any prejudice to the other side or which takes away any vested right which has accrued to the other side by lapse of time. 19. 19. In (5) Panchdeo Narain v. Jyoti Sahay, ( AIR 1983 SC 462 ) , the plaintiff described himself in the plaint as a son of the uterine brother of one person-subsequently, plaintiff moved an application for amendment of the plaint inter-alia seeking deletion of the word, "Uterine" from the plaint and that amendment was allowed by the trial Court but was set aside by the High Court-however, the Apex Court held that the trial Judge, granting the application for amendment was satisfied that in order to effectively adjudicate upon the dispute between the parties, the amendment of the pleading was necessary and therefore the High Court ought not to have interfered in its revisional jurisdiction. Such is not the circumstance in the present case. 20. This Court in (6) Firm Jankilal Ram Das v. Mohan Das, ( 1986 RLR 433 ) , observed that the Court is only required to see as to whether amandment sought to be made is absolutely frivolous raises a plausible plea which can be raised by a party to the suit. The facts of the cited case are quite different to the case in hand in respect of' the matter of amendment, and if the amendment sought is found frivolous then it can be said that the lower court was justified in rejecting the amendment application. 21. Shri R. M. Lodha, learned counsel for the plaintiff-respondent, on the other hand, vehemently argued that in the present case, the defendants filed their written statement which was found ambiguous on certain facts and because of this reason, the lower court felt it necessary to record the statement of the defendant under O.10 R.1 and the statement of Jayendra Singh was recorded wherein Jayendra Singh reiterated same facts which were averred by him in the written statement with clarification. In these circumstances, when the defendants tried to get their written statement amended by filing application in this regard, the learned lower court was fully justified in rejecting the amendment application because, the defendants-appellants by way of proposed amendment intended to set up a new case and raise plea against the plaintiff-respondent. 22. Shri Lodha, to strengthen his arguments in the above context, relied upon the following decisions. 23. 22. Shri Lodha, to strengthen his arguments in the above context, relied upon the following decisions. 23. In (7) Brij Mohan v. Commissioner of I.T., (1974 RLW 32) , this Court observed that in the proposed amendment, there should not be any inconsistency with the facts already brought on record by person seeking amendment or the proposed amendment should not be prejudicial to the other side and appear to be necessary for just decision of controvery-but no amendment could be allowed which would introduce totally a new and inconsistent case and, therefore, it was observed that it would not be appropriate to allow the amendment by way of introduction of a new cause of action in regard to the subsequent facts leading to order under Section 132 (5), and its quashing by way of an amendment in exercise of extra ordinary jurisdiction. 24. Next case cited by Shri Lodha is of (8) M/s. Modi Spg. & Wvg. Mills v. Ladha Ram (AIR 1977 SC 690) , wherein the Supreme Court observed that in a case where the amendment introducing entirely a new case and seeking to displace the plaintiff completely from admissions made by defendants in written statement, the application was held liable to be rejected. 25. In (9) P.H. Patil v. K.S Patil, ( AIR 1957 SC 363 ) the Supreme Court observed that all amendments ought to be allowed which satisfy the two conditions (a) of not working injustice to the other side, and (b) of being necessary for the purpose of determining the real questions in controversy between the parties, and the amendments should be refused only where the other cannot he placed in the same position as if the pleading had been originally correct but the amendment would cause him an injury which could nit be compensated in costs. Then the Supreme Court held as under : "It is merely a particular case of this general rule that where a plaintiff seeks to amend by setting up a fresh claim in respect of a cause of action which since the institution of the suit had become barred by limitation, the amendment rust be refused; to allow it would be to cause the defendant an injury which could not be compansated in costs by depriving him of a good defence to the claim, The ultimate test therefore still remains the same can be amendment be allowed without injustice to the other side, or can it not ?" Thus, viewed from the above angle, I am of the opinion that the principles laid down in the cited cases (supra) lend much more support to decide the presently crux and objection taken by the learned counsel for the appellant because, in the instant case, the amendment application moved by the defendants was dismissed mainly on the ground that the defendants intended to set up a new cause of action and that too after cordinate delay, with intent to withdraw admissions made by the defendant in their written statement as well as in the statement taken under O.10 R,1. In these circumstances, the principles enunciated in the cited cases (supra) are fully applicable to the facts and circumstances of the case in hand. 26. In the instant case, the learned counsel for the appellants himself conceded that the order dated December 23, 1972 whereby the learned trial court dismissed the application for amendment. was challenged before the High Court in the revision petition that was dismissed too. I am of the openion that the defendants having challenged the order dated 23-12-1972 in revision petition cannot be permitted to challenge the same order in appeal filed against the final judgment and decree. Even otherwise, the order dated 23-12-1972 has not been challenged on specific ground by the appellants in memo of this first appeal. The learned trial court while rejecting the application for amendment has given various reasons but those reasons have not been challenged in memo of appeal except that the findings and the reasons given by the learned trial court in the said order dated 23-12-1972 are erroneaus or wrong. 27. The learned trial court while rejecting the application for amendment has given various reasons but those reasons have not been challenged in memo of appeal except that the findings and the reasons given by the learned trial court in the said order dated 23-12-1972 are erroneaus or wrong. 27. As stated earlier, the trial court has held that the amendment sought by the appellants is malafide-the amendment if allowed could result into withdrawal of admission made by the defendant and would cause serious injustice to the plaintiff. All these findings have not been challenged in memo of appeal by way of assigning and raising specific plea and showing reasons even otherwise. In this view of the matter, at the time of arguments, the appellants cannot/could not be permitted to challenge the order dated 23-12-1972 on the grounds which have not been taken in memo of appeal. Even otherwise, the order of amendment having not allowed has been rightly passed by the learned trial court and does not call for any interference because, if the amendment which the defendants sought, is allowed that would have the effect of withdrawal of the admission made by the defendants and it is settled law that such an amendment cannot be allowed. And, this view is fortified by the decision of the Apex Court in AIR 1978 S.C. p. 798-(10) Haji Mohd Ishaq v. Mohd. Iqbal . 28. It is again settled proposition of law that if an amendment is allowed' which would result into serious injustice to the other side the same cannot be allowed. Coupled with, in the instent case, the facts which the defendants wanted to insert by way of amendment were already in the knowledge of defendants at the time of filing of the original written statement and thus inconsistent facts which were in the knowledge cannot be taken by way of an amendment as has been observed to be so in P.H. Patil v. K. S. Patil (supra) & Brij Mohan v. Commissioner of I. T. (supra). 29. The law is also very clear that the amendment which is not bonafide cannot be allowed and in the present case, the learned trial court has found the same to be malafide and as such, the amendment application was rightly rejected by the learned trial court. 30. 29. The law is also very clear that the amendment which is not bonafide cannot be allowed and in the present case, the learned trial court has found the same to be malafide and as such, the amendment application was rightly rejected by the learned trial court. 30. The amendment sought are not necessary to decide the real controversy because these amendments will have no relevance on the point whether the contract is concluded or not, as it is settled law that for agreement of sale of land, the price, area of land and time of completion of contract having been agreed, contract stands concluded-moreso, no prejudice has been caused to the defendants because amendment sought were of the evidenciary character and the defendants have already led evidence to that effect. 31. Now, I am passed on the next phase of the argument of Shri R. C. Kasliwal learned counsel for the appellants, i.e. in view of, he coming into force of the Urban Land (Ceiling & Regulations) Act 1976, (for facility. 'the Act of 1976') a decree for specific performance of agreement for sale of land of an area extending 1500 sq. yds. cannot he sustained and is also hit by Section 23 of the Contract Act. Whereas Shri R.M. Lodha appearing for the respondent- plaintiff, contended that such an argument is misconceived inasmuch as the provisions of the Ceiling Act of 1970 do not effect the I resent decree, at all. 32. On bestowing my earnest consideration to the arguments of the learned counsel for the parties and having browsed through the relevant provisions of the Act, 1976, I am of the opinion that the provisions of the Act, 1976, do not declare a decree for specific performance passed before the commencement of the Act to be void, secondly, the rights obtained by a party under decree cannot be permitted to be defeated by delay in disposal of appeal as also in the execution of decree for specific performance. as has been observed by (11) Y. Subba Rao v. Amizunnia Begum, (AIR 1984 NOC 300-Andh. as has been observed by (11) Y. Subba Rao v. Amizunnia Begum, (AIR 1984 NOC 300-Andh. Pra.) more so the Ceiling Act of 1976 does not render contract for sale of land void entered earlier in point of time; thirdly, there is nothing in the agreement nor can it be implied from the circumstances that it was the object of the parties that the provisions of Ceiling Act should be transgrassed because at the relevant time, there was no ceiling Act; and further that, the inability to hold land in excess of ceiling prescribed by statute has no effect upon the contract of the operation of transfer and as has been laid down in (12) Satappa v. Appaya (AIR 1968 SC 1359) , the statutory forefeiture incurred in the event of transferee coming to hold land in excess of the ceiling does not invalidate the transfer between the parties. Fourthly, various provisions of the Ceiling Act, 1976 including Sections 15 & 20 make it clear that such decree for specific performance is permissible and are not at all hit by coming into force of the said Act 1976 and in this regard, a reference can be made to the decision in (13) Bai Desabai v. Mathuradas ( AIR 1980 SC 1334 ) . 33. The aforesaid objection by learned counsel for the appellant has been taken by way of application for amendment in memo of appeal praying therein that on the basis of subsequent change in law, the appellants be allowed to amend memo of appeal. I am of the opinion that without allowing the amendment application, judicial notice can be taken for the subsequent events if the same are material in order to decide the matter in hand, 34. The last plank of attack on the context of Ceiling Act 1976, by learned counsel for the appellant is that Sections 5 (3) and Section 15 coupled with Section 42 of the Ceiling Act, 1976 arc relevant for the purpose of present controversy and in view of the aforesaid Sections of the Ceiling Act, the decree passed in favour of the plaintiff-respondent becomes nullity because this decree cannot now be upheld after coming into force of the aforesaid sections of the Ceiling Act, 1976. 35. Before I deal with this plank of attack a brief reference to the relevant provisions would be advantageous. 35. Before I deal with this plank of attack a brief reference to the relevant provisions would be advantageous. Section 5 (3) relates to the restriction on transfer of vacant land by any person holding vacant land in excess of the ceiling limit-such-as-transfer by way of sale, mortgage. gift, lease or other wise cannot be made, untill the person holding vacant land in excess of limit has furnished a statement under Section 6 of the Ceiling Act and a notification relating to the excess vacant land by him has been published under sub-section (1) of Section 10, and no such transfer in contravention of this provision shall be made by such person and any such transfer in contravention of these provisions shall be demand to null and void. 36. On a bare look at the provisions referred to above, I am of the view that the restriction on transfer is for those persons who are holding land in excess of ceiling limit. But, in the present case, the transfer relates to about 3182 sq yds, of land said to have been transferred by three persons holding land jointly. In this view of the matter, the land transferred is not above the ceiling limit in case the same is bifurcated in three persons. Neither in the amendment application nor during the course of the arguments, it has been so claimed on behalf of the appellants that the appellants were having some more land and that too, above the ceiling limit. In these circumstances, in my view, in the present case, Section 5 (3) of the Ceiling Act is not applicable. 37. Section 15 of the Ceiling Act, 1976 relates to ceiling limit on future acquisition by inheritance, bequest or by sale in execution of decree etc. In the present case, it has not come on record that the plaintiff respondent is having urban land to such an extent that the provision of Section 15 of the Ceiling Act. 1976 can be attracted. Under Section 15, if the land of person holding vacant one. exceeds in the aggregate of ceiling limit, then he shall within three months of such acquisition. file a statement before the competent authority and also specify the vacant land within the ceiling limit which he desired to retain. 38. In these circumstances, in case the decree in favour of the plaintiff is upheld then in that case. exceeds in the aggregate of ceiling limit, then he shall within three months of such acquisition. file a statement before the competent authority and also specify the vacant land within the ceiling limit which he desired to retain. 38. In these circumstances, in case the decree in favour of the plaintiff is upheld then in that case. the plaintiff-respondent is bound to furnish return of the urban land if he is in occupation of the urban land exceeding ceiling limit. In view of this situation, if the decree passed in favour of the plaintiff-respondent is found valid then the same cannot be set aside on the grounds mentioned in Section 15 of the Ceiling Act, 1976. Suffice is to say that the question of excess vacant land under the provisions of the Ceiling Act. 1976 can be determined only by the competent authority and it is competent authority alone who can determine as to how much land is in excess as vacant land, to the ceiling limit and for that purpose, inquiry has to be made by him. 39. In view of the fore going discussions, the consideration of Section 42 of the Ceiling Act is not relevant. I am therefore, of the view that the objection with regard to the Ceiling Act, 1976 taken by the learned counsel for the appellant is untenable and in these circumstances, it is not necessary to allow the amendment application flied by the appellant for amending the memo of appeal. 40. Adverting now to the merits of this first appeal, I firstly take up consideration of the findings arrived at by the lower court on issue No. 1 viz., whether the contract in dispute between the parties took place on 27.7.68 or 2.8.68 and what is its effect ? I may say that this issue is not of much avail. The learned counsel for the defendants had conceded before the lower court that the findings on either side would not be going to make any difference in the final decision of this suit because admittedly one agreement took place. In this view of the matter, the aforesaid admission of the defendants appellants' counsel before the subordinate court now cannot be assailed by the appellants on the ground that the trial Court has not given any firmed finding on issue No. 1. In this view of the matter, the aforesaid admission of the defendants appellants' counsel before the subordinate court now cannot be assailed by the appellants on the ground that the trial Court has not given any firmed finding on issue No. 1. Whereas categorically, the subordinate court observed that since it is admitted position between the parties that only one agreement for the sale of suit land was made between them through property broker Mahadevlal Jethani and a Cheque for Rs. 20,000/- was given by the vendee to the vendors towards sale price under that contract, it would de futile exercise to decide whether that agreement was made on 27.7.68 or 2 8.6 .Even it is settled proposition of law that if concession is made by the counsel on a particular point before the Court and the said concession is not challenged before the Court, the statement made in the judgment will be taken to be correct. This view is fortified by the decisions of the Apex Court in (14) Bank of Bihar v. Mahabirlal, ( AIR 1964 SC 377 ) and in Gauri Shanker v. Hindustan Trust Ltd. (supra) AIR 1972 SC 2091 ) . 41. The next limb of arguments in the context of assailing the findings on issue No. 1. of Shri R. C. Kasliwal is that in the instant case, the plaintiff-respondent failed to prove that the terms of the contract were settled. If the terms are not settled then it cannot be assumed that there is a valid contract-an uncertain contract cannot be enforced. Shri Kasliwal added. Then Shri Kasliwal tried to fortify saying that in the present case, the contract is not complete because as per the evidence on record it can be said that the parties did not agree with the terms and conditions which were embodied in the sale deed yet to be executed in favour of the plaintiff-respondent, inasmuch as in a valid contract, there must be an unqualified acceptance and if these is possibility of further dispute then such a contract cannot be alive In this regard Shri Kasliwal cited some decisions, a brief resume of its hereunder would be very advantageous to resolve the controversy in issue. 42. In (15) Baiznath v. Kshetrahari Sarkar, ( AIR 1955 Cal. 42. In (15) Baiznath v. Kshetrahari Sarkar, ( AIR 1955 Cal. 210 ) , it has been observed that subsequent waiver of any of his rights by the lessee cannot afford any criterion for determining whether there was a binding contract between himself and the lessor at the date of the alleged contract and that, a true test for determining whether there was such a binding contract is whether the parties were of one mind on all material terms of the contract at the time it is said to have been finalised between them and whether they intended that the matter was closed and concluded between them. Turning to the facts of the present case, I may state that herein, the learned trial court found that on the day when the parties entered into contract the terms were clear and specific because. the measurement of actual land which was to be sold, its price, the mode of payment all were clear and it was agreed between the parties that vacant possession was to be given. It was also found that in these circumstances, it becomes admitted fact that there was agreement between the parties and as per the pleadings of the parties only difference was of the date when the contract was entered into. Thus, if it were found that terms of the contract were certain and precise then the case cited (ibid) is not helpful to the appellants. 43. In (16) Nathus Pasua v. Munir Khan, (AIR 1943 Nagpur 129) , it has been observed that both the parties must be of one mind-they must agree as to the matter which renders agreement unlawful. In (17) Namayya v. Union of India (AIR 1958 Andh. Pra. 533) , it has been held that an absolute acceptance of an offer would not make a binding contract if, in fact, it does not extend to all the terms of the contract under negotiations or if it are only a provisional arrangement subject to the condition that a further agreement would be the executed. 44. In next cited case (18) Badri Prasad v. State of M.P. ( AIR 1970 SC 706 ) , it has been observed that there should not be conditional acceptance if the facts are such then it cannot be said that there is a valid contract. 45. 44. In next cited case (18) Badri Prasad v. State of M.P. ( AIR 1970 SC 706 ) , it has been observed that there should not be conditional acceptance if the facts are such then it cannot be said that there is a valid contract. 45. In (19) Jainarain Ram Lundia v. Surajmull (AIR 1949 Federal Court p 211) , what precisely and elaborately elucidated is being lucidly reproduced hereunder:- `If after a contract is concluded and its terms settled further negotiations are started with regard to new matters, that would not prevent full effect being given to the contract already existing, unless it is established as a fact that the contract was rescinded or varied with the consent of both the parties or that both parties treatei it as incomplete and inconclusive. Once completed. the contract can he got rid of only with the concurrence of both parties. Where nothing was proposed or mentioned at the time when the contract was entered into, regarding the payment of stamp duty on the deeds of tranzfer and it was not an essential part of the bergain nor was it intended to be so, and there was agreement between the parties on the terms which are necessary in law to constitute a contract of sale and on other terms as well which the parties themselves considered material and the contract was concluded the subsequent negotiation on the question of payment of stamp duty would not affect the concluded contract." ..."If after a contract is concluded, one of the parties starts fresh negotiations, with a view to introduce new terms. and this is done under mistake but has no effect in altering the conduct of the other party then even if the subsequent negotiations fail the party which attempted to reopen the concluded contract can enforce it specifically." I am of the view that the dictum of law laid down by the Federal Court (supra) is much more helpful to the plaintiff-respondent because, in the instant case, the learned counsel for the appellant claimed the so-called agreement as incomplets on the ground that subsequent negotiations started between the parties and the parties did not reach to a final conclusion. 46. 46. In (20) Devendra v. Sonubai (AIR 1971 Mys.p. 217) , a similar view was taken that where time fixed for the performance of the contract was extended twice and the object of the purchaser was also not a commercial undertaking time is not of the essence of the contract. 47. Adverting to the present set of circumstances I may raiterate that while discussing issue No. 1 the subordinate court arrived at a finding that admittedly the agreement did take place between the parties-so, it would be futility to decide whether the agreement effected on 27.7 78, or 2.8.68. In view of the pleadings and evidence of the parties, there is no dispute with regard to the agreement between the parties and the only dispute is of a date and of the completencess of the agreement. After having a careful study of the evidence on record. I am of the view that it has been established by the plaintiff that the agreement took place on 27.7.68 because it has been proved by the evidence of Dr. S.R. Mehra, Mahadevlal Jethani and moreso from the statement of Jayendra Singh, one of the defendants recorded under O.10 R.1 C.P.C. So far as the question, whether contract took place on 2-8-61. is concerned, burden lays on the defendants to establish it and the defendants have miserably failed to do so by leading any evidence because the statement of Jayendra Singh recorded after issues were framed cannot be read since he did not appear for completing his that evidence and his cross-examination in spite of number of opportunities having afforded to the defendant. Jayendra Singh Herein, most crucial admitted fact is that an amount of Rs. 20,000/- was advanced by the plaintiff-respondent to the defendant, Jayender Singh, and that payment was made through a crossed cheque. In the statement recorded under O.10 R. I, Civil Procedure Code, Jayendra Singh has deposed that the cheque for the advance money which was given to him through Mahadevlal Jethani bears the date as 27.7.68. It was the explanation of Jayendra Singh that the cheque was anti-dated. In the statement recorded under O.10 R. I, Civil Procedure Code, Jayendra Singh has deposed that the cheque for the advance money which was given to him through Mahadevlal Jethani bears the date as 27.7.68. It was the explanation of Jayendra Singh that the cheque was anti-dated. I am of the view that this explanation is totally false because on the day when the agreement took place there was no doubt in the- minds of the parties so, there was no reason before the plaintiff to have antidated the cheque which was accepted by Jayendra Singh (defendant) and the date of issue was also noticed by him and no objection, however, was raised at the time when he received cheque and there was no doubt in his mind at that time otherwise he could have returned saying that the same is anti-dated. The date on the cheque which was given to Jayendra Singh shows that the contract was definitely entered into before 2.8.1968. 48. Though I stand benefitted by the enlightment derived from the decisions referred to above and from brief resume of evidence narrated above, I am of the view that explanation calls for a more intrinsical examination than has been done hitharto. 49. Jayendra Singh in his statement under O. 10. R.1 Civil Procedure Code has stated that he negotiated with property broker, Mahadevlal Jethani and only term about which they discussed, was that the vendor would not be able to deliver vacant possession of the plot; and then he categorically stated that no other term and condition was discussed or settled. His further deposition was that the contract was time bound-that was discussed by him with the plaintiff Personally on 3.8.68 or 4-8-68. This clearly means that even according to him, this term was settled subsequently to the making of the agreement. Even assuming for the sake of arguments, e.g. mantioning in Ex. 1 the payment was to be made and sale deed got executed within one month from 2.8.68 can it be held that in the facts and circumstances of the case, the time was the absence of the contract ? Ex.1 is the receipt said to have been given by the defendants. 1 the payment was to be made and sale deed got executed within one month from 2.8.68 can it be held that in the facts and circumstances of the case, the time was the absence of the contract ? Ex.1 is the receipt said to have been given by the defendants. In this receipt, no doubt it has been mentioned that the sale deed will be executed on receiving full payment within one month from 2.8.68 but it could not be inferred from this receital that the time was essence of the contract, and further default clause was conspicuous and ambiguous in the receipt. There is no specific explanation of returning or forfeiting the advance money on the expiry of one month. On the other hand in the statement of Shri B.P. Agrawal (DW 5) it has come as evidence that the representative of the parties did come to him for the finalisation of the draft of sale deed after one or two months from the date of the receipt i.e. 2.8.68 and they continued to come for about 6-8 months for the finalisation of the sale-deed. This facts alone was sufficient to conclude that the parties never intended that the sale-deed had to be executee within a particular time or that the time was the essence of the contract. 50. In the draft sale-deed (Ex. 5) it has clearly be in recited that the balance sale price would be payable before the Sub-Registrar at the time of the registration. This fact also falsified that the time was the essence of the contract. As said earlier, in the instant case, defendant. Javendra Singh appeared in the witness box, but even after so many opportunities having been afforded to him, he did not appear in the witness box again, for cross-examination. In these circumstances, the defendants appellants cannot place any reliance on his own statement. He was the only person who was a party in the agreement. The other defendants did not talk any part in the negotiations with regard to the sale of the disputed plot. So the evidence of other defendants except Jayendra Singh is based on hear-say and they are not in a position to give a direct evidence on the issues involved in the present case. So the appellants are unable to take any benefit from the statements of the defendants other than Jayendra Singh. So the evidence of other defendants except Jayendra Singh is based on hear-say and they are not in a position to give a direct evidence on the issues involved in the present case. So the appellants are unable to take any benefit from the statements of the defendants other than Jayendra Singh. Thus looking to the evidence on record and the findings of the trial Court. I am of the opinion that the trial court was justified in rightly arriving to the conclusion that the time was not essence of the contract-as is fortified from the statement recorded under O.10 R-1, Civil Procedure Code, of Jayandra Singh coupled with the fact that there was no default clause in the receipt for non-fulfillment of the contract within time inasmuch as the statement of R.P Agrawal (DW-5) also shows that since the parties started coming for finalisation of the sale-deed after one or two months of August, 1968 and as such the time could not have been the essence of the contract. Even otherwise, the time is not essence of the contract generally in the contract of sale of immovable property as has been laid down in the following reported cases- (21) 1967 RLW 498; (22) 1973 RLW 611; (23) AIR 1966 Mad 46 and (24) AIR 1964 On, 269. Re. Issue No. 2 51. While deciding issue No. 2, the subordinate court observed that the learned counsel for the defendants frankly conceded that in the presence of the case pleaded and conflicting evidence led by the defendants, themselves, he was unable to argue anything in respect of the issuse and therefore, learned counsel had not pressed the issue. In this view of the matter I am also of the opinion that here also, learned counsel for the appellant who has also appeared before the trial Court, has no right again to press this issue No. 2 and dispute the findings of the learned trial court on it.Re. Issues No. 3 & 4 52. Under these issues, the subordinate court has found that the plaintiff has been ready and willing to perform his part of the contract This is establish- ed from the statements of Dr. S.R. Mehta (PW-I). Issues No. 3 & 4 52. Under these issues, the subordinate court has found that the plaintiff has been ready and willing to perform his part of the contract This is establish- ed from the statements of Dr. S.R. Mehta (PW-I). R.C. Bhansali (PW-3), Sardarmal singhi (PW-4) and Munnalal Goyal (PW-21) So, far as the objection raised by the learned counsel for the appellants is concerned to the effect that issue No. 4 does not show willingness which is mandatory under section 16 of the specific Relief Act, is wholly misconceived because, what is required under Section 16 of the said Act is that the plaintiff should plead and prove his ready and willingness before a decree for specific performance is granted and in the present case, the plaintiff has been able to prove his readiness and willingness more so there is categorical finding by the trial Court to that effect. The findings of the trial Court is based on the statement of Jayendra Singh which was recorded under O.10 R. 1 Civil Procedure Code wherein he deposed that the draft of sale deed was delivered by them to Mahadevlal which was then never returned to them. In his statement he, however, admitted that in this draft sale deed they had written a number of such terms and conditions which were neither settled between him and Mahadevlal nor between Mahadevlal and the plaintiff. From the above pleadings of the defendants, the position boles down and makes it manifest that they tried to introduce certain fresh terms and conditions in the contract at the drafting stage which the plaintiff said to have declined to be bound with and the sale could not be completed But, I may observe that this by itself is not sufficient to say that there was no contract in between the parties and for that purposes, reliance can be placed on the decision of the Federal Court (supra) 53. The plaintiff in his plaint and statement has clearly stated that he was ready to pay balance sale price and bar stamp and registration charges which were only the conditions settled between the parties at the time when the agreement was entered into. The plaintiff in his plaint and statement has clearly stated that he was ready to pay balance sale price and bar stamp and registration charges which were only the conditions settled between the parties at the time when the agreement was entered into. The plaintiff has also stated that he was always ready and willing to perform his part of the contract but the defendants neglected to finalise the draft of the sale-deed and then admitted to dispose of the suit land to somebody at a higher price. The defendants, to certain extent in their written statement, recited that due to the difference between the parties on certain new terms to be inserted in the draft sale-deed. it could not be finalised. The defendant, Jayendra Singh in his statement under O.10 R. 1. Civil Procedure Code admitted that the final draft of the sale deed has been supplied by them to the plaintiff who failed to proceed further and therefore, the allegation of breach of contract is levelled on the plaintiff. Whereas, the plaintiff deposed that the draft of sage deed was got prepared by him and the same was sent through Jethani to the defendants for approval. Mahadevlal Jetbani (PW-3) stated that this draft sale deed was handed over to Jayendra Singh by him. Jayendra Singh admitted that the said draft sale deed was received by him and handed it over to Shri B.P. Agrawal Advocate for approval and finalisation. The receipt of this draft has been admitted by Shri B.P. Agrawal who also appeared in the witness box. I may observe that on this point these is complete unanimity between the parties. The learned trial court on the basis of discrepancies in the evidence of the defendants and their witnesses did net believe the defendant's version and that appears to he correct in the light of the evidence of the defendant, because, the statement of Jayendra Singh is self-contradictory inasmuch as there are lot of contradictions in the statements of Digvijay Singh. Abdul Majid and Jayendra Singh on the point of the draft proposed sale-deed. In these circumstances, the learned trial Court was justified in disbelieving the evidence of the defendant's witnesses. 54. As stated earlier, the plaintiff agreed to bear stamp and registration fees expenses etc. but it is the case of the party that the draft sale-deed was not finalised and after finalisation of the draft. In these circumstances, the learned trial Court was justified in disbelieving the evidence of the defendant's witnesses. 54. As stated earlier, the plaintiff agreed to bear stamp and registration fees expenses etc. but it is the case of the party that the draft sale-deed was not finalised and after finalisation of the draft. the plaintiff was to purchase stamp and pay balance price before the Sub-registrar. The plaintiff not only supplied a draft of sale-deed to the defendant but he also earnestly tried to pursue the matter by requesting Shri B.P. Agrawal, Advocate through R.C. Bhansali (PW-3), the then Judge Small Cause Court and ' Sardarmal Ninghi (PW-4) for finalising the draft expeditiously. Shri B.P. Agrawal in his statement has admitted that R.C. Bhansali and Sardarmal Singhi (PW 3 & PW 4) both did request him for the same, and Digvijay Singh (defendant-appellant) was also requested to finalise the matter early and this request was conveyed through Mannalal Goval (PW 2). It is thus clear that the plaintiff took keen interest in the finalisation of the sale-deed and, therefore it could not be held that the plaintiff was not willing or ready to perform his part of the contract.Re. Issue No. 5 55. Shri R.C. Kasliwal appearing for the appellants sought to raise plea that since there was no concluded contract, the question of specific performance of the contract did not arise This argument of Shri Kasliwal is also fallacious and without any substance for the simple reason that for sale of land a contract is required to be concluded by agreement between the parties on three basic things namely, price of land, area of land and time for completion. In the present case, from the statement of Jayendra Singh under O.10 R 1 Civil Procedure Code it is established that all the three factors viz. price, area of land and time for completion were fixed. In his statement under O. 10 R. 1 Civil Procedure Code Jayendra Singh admitted that the agreement was entered into with the plaintiff for sale of disputed land which was compounded by a well and was not part of larger plot. The land was agreed to be sold @ Rs. 44/- per sq. yd. In his statement under O. 10 R. 1 Civil Procedure Code Jayendra Singh admitted that the agreement was entered into with the plaintiff for sale of disputed land which was compounded by a well and was not part of larger plot. The land was agreed to be sold @ Rs. 44/- per sq. yd. It was also stated by Jayendra Singh that he received cheque from Mahadevlal Jethani on 2.8.68 which was dated 27.7.68 and that the sale-deed was to be executed within one month. Thus, from the above narration of the evidence, it is established that there was concluded contract between the parties. For the proposition that the agreement for sale of land, once price, area of land and time for completion are fixed, the concluded contract comes into existence reference can be made to the following reported cases : Jainarain v. Surajmull (AIR 1949 Fed. Court p. 211); (25) AIR 1968 SC 1028 ; (26) Dr. Jiwanlal v. Brij Mohan, (AIR 1913 SC 659) . 56. As stated earlier, if the contract was not completed then there was no question of acceptance of a sum of Rs. 20,000/- by the defendants from the plaintiff towards price and similarly, the plaintiff could not have issued cheque of Rs. 20,000/- if the contract were not completed because it is against a human conduct in common parlance and none can take risk of paying Rs. 20,000/- without there being any certainty and precision for the sale of land. 57. The only thing which remained to be completed was the execution of the sale-deed and at this stage, the negotiations started between the parties with regard to the question of casement and other things appurtenant to the suit land. Even in a completed contract, the parties are always free at any subsequent stale to change the terms or and additional terms and conditions with their common consent, and the person who, by entering into a contract accepts the offer in purchasing an immovable property may add the name of any other person in the sale deed to be executed It was, therefore within the competence of plaintiff to add the name of Gautam Raj Mehta in the blue print and in the proposed draft sale deed, and on this fact, this inference that the original agreement was with Gautam Raj Mehta also cannot be drawn. The defendants fully knew as to with whom they have entered into agreement. Therefore, subsequent negotiations or events, if any, cannot change the nature of contract originally completed, as all essential and basic terms for sale of land were agreed between the parties on the date of agreement. Thus, the learned subordinate court was justified in findine that the contract between the parties was concluded one and was capable of being enforced, against the defendants-appellants. Viewed in these circumstances, I do not find any error in the findings arrived at by the learned trial court on issue No. 5. 58. In view of the proposition of law laid down in (27) M.L. Devendra Singh v. Syed Khaja ( AIR 1973 SC 2457 ) and in (28) Govinddas v. Shantibai, ( AIR 1972 SC 1520 ) , in the contract for specific performance of immovable property grant of decree of specific performance of the contract is a rule. The trial Court having decreed the plaintiff's suit and that too on a very cogent grounds, the question of interference in the discretion exercised by the lower court does not call for by this Court as has been laid down in the following cases : (29) Abdul Kayum v. Damodhar, (AIR 1964 Born. 16), and AIR 1971 Mysore 217 (supra). 59. In view of the foregoing discussions. I do not find any illegality and perversity in the findings of the trial Court so as to conclude that the discretion exercised by the lower court is based on erroneous reasons. 60. In the result, this appeal fails and is hereby dismissed. Looking to the facts and circumstances, the parties are directed to bear their own costs.Appeal Dismissed. *******