Judgment Choudhary S.N. Mishra, J. The relevant facts in the suit giving rise to this second appeal at the instance of the plain tiffs are short and simple. The plaintiffs instituted Title Suit No. 55 of 1970, for specific performance of contract for sale of a home standing on Plot No. 554 of Khaia No. 166 measuring an area of 3 decimals situated in village Chenari within Chenari Police Station in the district of Rohtas, on the basis of a Mahadanama (Ext. 4) , fully described in the schedule of the plaint, It is relevant to mention here that while dictating judgment in this case, it was detected that plot no. 554 is wrongly mentioned in the judgment of the lower appellate court as plot no. 454 and in the certified copy thereof, it is mentioned as plot no. 434 passed in Title Appeal No. 41 of 1978. Hence this matter was brought under the heading" "To be mentioned" on 27.9.92 and it was agreed at the Bar that the correct plot number is 554. So, wherever, a reference to the plot number is found to have been made otherwise than plot no. 554, that shall be read as plot no. 554 only. 2. According to the plaintiffs, the defendant agreed to sell the house in question for a consideration of Rs.1,200/- Out of that, the defendant received a sum of Rs.600/-, as an advance and it was agreed that he will execute the registered sale-deed by June, 1968, after receiving the balance amount of Rs.600/- It was also alleged that inspite of several requests made by the plaintiffs to execute the registered Sale deed, the defendant, one way or the other, did not accede to their requests as a result of which they filed the suit with a prayer that the defendant be directed to execute the registered sale-deed is respect of the house in question after receiving the balance amount of Rs.600/- and if the defendant failed to execute the registered sale peed the same may be executed through the process of the Court. The defendant denied the very execution of the agreement (Ext. 4) and further denied that he had agreed to sell the house in question and to have received any earnest money muchless Rs.600/-, as alleged by the plaintiffs. The defendant denied the very execution of the agreement (Ext. 4) and further denied that he had agreed to sell the house in question and to have received any earnest money muchless Rs.600/-, as alleged by the plaintiffs. It was further alleged that the plaintiffs might have obtained his Left Thumb Impression (L.T.I.) by practicing fraud since the plaintiffs are the residents of the same Mohalla and had intention to grab his house from the very beginning. It was also alleged that his only son Ganga Pal had died, on account of which virtually his mind was not in order. 3. The trial court, on the basis of the pleadings of the parties, framed the following main Issues, apart from the usual and formal issues, for decision of the case. "(iv) Is the Mahadanama in question legal, valid and for consideration? (v) Is the Suit hit by the provisions of Specific Performance of Contract? (vi) Is the plff. entitled to a decree as claimed by The trial court, on appreciation of the evidence adduced on behalf of the parties, decided all the aforesaid three main issues in favour of the plaintiffs and held that the Mahadanama (Ext. 4) is a genuine document and, accordingly, decreed the suit of the plaintiffs. On appeal by the defendant, however, the lower appellate court dismissed the suit on the ground that the suit, having been filed for specific performance of contract, was not maintainable, because the plaintiffs had not complied with the requirement of section 16 (c) of the Specific Relief Act, 1963, (hereinafter called ‘the Act’) inasmuch as in absence of the averment in the plaint that they were ever ready and willing to perform their part of contract. 4. The lower appellate court has further held, on appreciation of evidence, that the defendant being a privileged person his home stead land cannot be sold under the provisions of the Bihar Privileged Persons Homestead Tenancy Act, 1947. The lower appellate court, on the aforesaid findings, allowed the appeal filed by the defendant and dismissed the suit of the plaintiffs. The lower appellate court, however, confirmed the finding of the trial court on issue no. 4 and held that the Mahadanama (Ext. 4) was a legal and valid document and was for consideration. Hence, this second appeal by the plaintiffs. 5. The lower appellate court, however, confirmed the finding of the trial court on issue no. 4 and held that the Mahadanama (Ext. 4) was a legal and valid document and was for consideration. Hence, this second appeal by the plaintiffs. 5. At the time of admission of this second appeal, the following substantial question of law was framed- "Whether the court in law could hold the defendants to be privileged persons without there being documents to prove that fact because, as stated by the learned counsel for the appellants, no Parch a was issued." 6. The learned counsel, appearing on behalf of the plaintiffs-appellants, submitted, firstly, that the lower appellate court has committed an illegality in giving a finding that the defendant is a privileged person. The learned counsel, while developing his argument, has contended that the defendant had not• pleaded in his written-statement that he was a privileged person and. therefore, in absence of the pleading, it was not open to the court of appeal below to declare the defendant as a privileged person and secondly learned counsel contended that the finding of the lower appellate court regarding the non-compliance of the requirement of section 16 (c) of the Act, is not based upon the correct appreciation of facts. 7. The learned counsel, appearing on behalf of the defendant-respondents, on the other hand, contended that in absence of the averment as envisaged in section 16(c) of the Act read with Forms 47 and 48 of the First Schedule of Code of Civil Procedure, the suit of the plaintiffs itself was not maintainable. 8. In order to appreciate the arguments of the learned counsel, appearing or behalf of the parties it is necessary to mention the relevant provisions of the Act. "16 - Personal bars to relief. Specific performance of a contract cannot be enforcedin favour of a persons - (a)………………………. (b)……………………. (c) Who fails to aver and prove that he has performed or bas always been ready and willing to perform the essential terms of the contract which are to be performed by him other than the terms of performance of which has been prevented or waived by the defendant. 9. The learned counsel for the defendant respondent in support of his contention relied upon the decisions in Prem Raj Vs. The D.L.F. Housing and Construction (Private) Ltd. (A.I.R. 1968 S.C. 1355), Ramswaroop Singh and others Vs. 9. The learned counsel for the defendant respondent in support of his contention relied upon the decisions in Prem Raj Vs. The D.L.F. Housing and Construction (Private) Ltd. (A.I.R. 1968 S.C. 1355), Ramswaroop Singh and others Vs. Bijoy Kumar Singh (1986 B.L.J.R. 578) Ram Singhasan Choubey and others Vs. Sudama Prasad Sah (A.I.R. 1982 Patna 200) and Nandlal Sah Vs. Pawan Devi (1979 B.L.J.R. 599). I shall deal with these decisions at the appropriate stage. 10. The learned counsel, appearing on behalf of the plaintiffs-appellants, in course of his argument, has drawn my attention to the averment made in paragraph 4 of the plaint as well as Relief No. (1) asked for in the prayer portion of the plaint and contended that taking into consideration the averment made in paragraph 4 of the plaint and relief no. (1) asked for in the plaint, it can be well said that the essential requirement of section 16 (c) or the Act has been fully complied with. It is relevant to quote the averment made in paragraph 4 of the plaint- "WAZE HO KI MUDAIYAN BAIA JARSAMAN MAZKUR SURU SE HI MUDDALAY KO DENE PAR TAIYAR RAHE HAI AUR HAR SAMAY TAIYAR HAI TURHA RAHENGE." 11. I have also perused the averments made in the plaint. The argument advanced on behalf of the appellants is not correct inasmuch as no amount of evidence can fill up the lacuna in the plaint. It is a well settled law that in absence of the averment in terms of section 16 (c) of the Act read with Forms 47 and 48 of the First Schedule of the Code of Civil Procedure, the suit for specific performance of contract is not maintainable. The averment made by the plaintiff in paragraph 4 of the plaint do not can form to the requirements of the Act. 12. In this connection, reference may be made to a decision of the Supreme Court in Prem Raj (supra) wherein his Lordship, in almost a similar situation, has held in paragraph 5 of the judgment as follows- ......It is well settled that in a suit for specific performance, the plaintiff should allege that he is ready and willing to perform his part of the contract. In the present case, no such averment is made in the plaint. In the present case, no such averment is made in the plaint. On the other hand, the plaintiff has alleged that the agreement was as a result of fraud and undue influence and was not binding upon him. For these reasons, it must be held that so far as the relief of specific performance is concerned, the plaintiff has no Cause of action ........ 13. In Ramswaroop Singh and others (Supra), a Division Bench of this Court has held that if the party fails to make an averment in terms of section 16 (c) of the Act, then in that case, the suit for specific performance of a contract must fail. 14. In the case of Nand Lal Sah (Supra), it is held that any lacuna in the plaint in absence of the mandatory facts in terms of section 16 (c) of the Act cannot be overcome by any amount of evidence and almost in a similar situation it was held that in a suit for specific performance of contract, in absence of such mandatory averment, is not maintainable at all. 15. In the case of Ram Singhasan Choubey and others (supra), his Lordship has held that mere evidence of the plaintiff that he was ready and willing to perform his part of the contract would not fulfil the requirement of section 16 (c) of the Act. 16. In view of the discussions made, above, and also relying upon the aforesaid decisions, I am quite in agreement with the lower appellate court that the suit of the plaintiffs is not maintainable in absence of the mandatory requirement in the plaint in terms of section 16 ( c) of the Act 17. Learned counsel for the appellants, relying upon the finding of the lower appellant court next contended that the agreement (Ext. 4) is a genuine and valid document, therefore, the plaintiffs are entitled to the compensation as they had advanced a sum of Rs.600/- to the defendant. In this connection, learned counsel has drawn my attention to Order 41 Rule 33 of the Code of Civil Procedure and submitted that this Court, on the facts and in the circumstances of this case, can grant compensation to the plaintiffs. 18. In support of his contention, he relied upon a decision of the Supreme Court in Mahant Dhangir and another Vs. 18. In support of his contention, he relied upon a decision of the Supreme Court in Mahant Dhangir and another Vs. Shri Madan Mohan and others (A.I.R. 1988 SC 54), wherein their Lordships, while interpreting the provisions of Order 41, Rule 33, have held in paragraph 15 of the judgment- 19 ".... The words, as the case may require' used in R. 33 of O. 41 have been put in wide terms to enable the appellate court to pass any order or decree to meet the ends of justice. What then should be the constraint? We do not find many. We are not giving any liberal interpretation. The rule itself is liberal. The only constraints that we could see may be these that the parties before the lower court should be there before the appellate court. The question raised must properly arise out of judgment of the lower court. If these two requirements are there, the appellate court could consider any Objection against any part of the judgment or decree of the lower court.......... 19. There is no dispute as to the proposition laid down by the Supreme Court in the aforesaid decision, but the difficulty in this case is that there is neither any averment made in the plaint nor has a prayed been made in the relief portion of the plaint nor has the question been raised in the court below and, therefore, in that view of the matter it is not possible for this Court to grant compensation to the plaintiffs. 20. In view of the aforesaid finding, it is not necessary to decide the first question as regards the status of the defendant-respondents whether they are privileged persons or no 21. In the result, this second appeal is dismissed the judgment and decree passed by the court of appeal below is upheld and the suit for specific performance of contract filed by the plaintiffs is dismissed. On the facts and in the circumstances of the case, there shall be no order as to costs. Appeal dismissed.