Judgment M.L.Singhal, J. 1. Rajinder Singh Plaintiff(respondent-herein) filed suit for possession through specific performance of this agreement of sale dated 10.1.1973 qua 1/2 share (9 Biswas) out of abadi plot measuring 18 biswas as described in the head note of the plaint situated in village Kot Gangu Rai Tehsil and District Ludhiana bearing Khewat No. 26 khatuni No. 35, Khasra No. 404, measuring 1 kanal 9 marlas per jamabandi for the year 1969-70 alleged to have been executed by Sher Singh defendant (appellant-herein) in his favour for total consideration of Rs. 4000/- minus Rs. 1400/- received by him as earnest money on the date of its execution. It was also prayed that in case the court found that Sher Singh had less share in the said abadi plot than nine biswas, decree for possession through specific performance be passed in his favour qua that much area on payment of proportionate sale price; in the alternative, it was prayed that decree for the refund of Rs. 1400/- paid as earnest money plus another Rs. 1400/- as damages and interest thereon at the rate of 18 per cent per annum from 10.1.1973 to the date of the suit and future interest at the said rate till realisation be passed. It was alleged in the plaint that it was represented to him by Sher Singh and Basta Singh defendants 1 and 2 that Sher Singh had 1/2 share i.e. 9 biswas in the abadi plot measuring 18 biswas ibid. It was further represented by them that Sher Singh was given 1/2 share at the time of family partition in lieu of his 1 /5th share in the other two and this abadi properties. They persuaded him to purchase 1/2 share =9 biswas of Sher Singh out of abadi plot for Rs. 4000/-. He entered into agreement of sale with Sher Singh for a sum of Rs. 4000/- and paid him Rs. 1400/- as earnest money. Balance sale price of Rs. 2600/- was to be paid at the time of registration of the sale deed, with was stipulated to take place by 31.5.1978. 2. Sikander Singh, defendant No. 3 Smt. Bhago Defendant No. 4 (appellant-herein), who are brothers son and brothers widow respectively of Sher Singh controverted the claim of Sher Singh that Sher Singh had 1/5th share in the other properties. 2. Sikander Singh, defendant No. 3 Smt. Bhago Defendant No. 4 (appellant-herein), who are brothers son and brothers widow respectively of Sher Singh controverted the claim of Sher Singh that Sher Singh had 1/5th share in the other properties. They also denied that Sher Singh got 1/2 share in the abadi plot as detailed in the heading of the plaint at partition. They denied the title of Sher Singh qua 1/2 share =9 biswas out of abadi plot measuring 18 biswas. Sher Singh defendant did not execute the sale deed in favour of the plaintiff in pursuance of that agreement for sale. He went to U.K. in August, 1974 and returned to India in March 1976. On his return, Sher Singh was requested to execute sale deed but he kept on putting off on one pretext or the other. Registered notices were served on Sher Singh and Basta Singh and the other defendants for the due performance of the contract by the execution of the sale deed, but in vain. It was further averred in the plaint that plaintiff Rajinder Singh was always ready and willing to pay the remaining sale money to Sher Singh defendant and obtain sale deed from him and was still ready and willing to perform his part of contract. It was Sher Singh defendant, who defaulted, in executing sale deed, in pursuance of agreement of sale. 3. Defendant No. 1 Sher Singh Contested the suit of the plaintiff urging that the suit is time barred, plaintiff is estopped by his act and conduct from seeking specific performance when he got earnest money back on 2.8.1976. It was denied that he got Rs. 1400/- as earnest money. He got only Rs. 400/- as earnest money and that also, the plaintiff received back. It was urged that plaintiff himself was not ready to perform his part of contract. Plaintiff never came to him nor did he go to the office of Sub Registrar on the stipulated date, ready to pay the price of the plot as per agreement. Defendant remained in India till August 1974 and then he was ready to perform his part of contract. Plaintiff backed out. Sher Singh defendant went to UK in August, 1974 and returned to India on 12.12.1975. Defendant remained in India till August 1974 and then he was ready to perform his part of contract. Plaintiff backed out. Sher Singh defendant went to UK in August, 1974 and returned to India on 12.12.1975. Till August, 1974, the plaintiff was his counsel in the partition suit and he never showed any willingness to obtain sale deed in pursuance of agreement to sell dated 10.1.1973. Contract was rescinded by the plaintiff. Notice was served on him (defendant Sher Singh) in the second week of August, 1976 by the plaintiff, which was duly replied by him. Plaintiff never came forward to perform his part of contract on or before 31.5.1973. He never issued any notice to him presumably because he knew that failure on his part to perform his part of contract had already taken place. While going to UK, he had given power of attorney to his wife and the plaintiff had known that his wife was his attorney in respect of his entire property and that he could call upon her to execute sale deed on his behalf. 4. On the pleadings of the parties, the following issues were framed by the trial Court. 1. Whether the suit is time barred ? OP Parties. 2. Whether the suit is bad for mis-joinder of the parties ?OPD 3. Whether the suit is not properly valued for the purposes of court fee and jurisdiction ?OPD 4. Whether the plaintiff is estopped by his own acts and conduct as alleged in the written statement ?OPD 5. Whether the agreement dated 10.1.1973 is invalid and void on the grounds as alleged in the written statement? OPD 6. Whether the plaintiff is entitled to the decree of specific performance of contract? OPP 7. Relief 5. Subordinate Judge III Class, Ludhiana dismissed the plaintiffs suit, in view of his findings, that there was lack of readiness and willingness on the part of the plaintiff to obtain sale deed for Sher Singh on payment of the remaining sale money. It was found that plaintiff took no step to obtain sale deed from the defendants on or about 31.5.1973 on payment of the remaining sale money to him. It was found that he did not call upon Sher Singh either directly or through somebody else to execute sale deed in his favour any time after 31.5.1973. It was found that plaintiff took no step to obtain sale deed from the defendants on or about 31.5.1973 on payment of the remaining sale money to him. It was found that he did not call upon Sher Singh either directly or through somebody else to execute sale deed in his favour any time after 31.5.1973. It was also found that plaintiff had failed to prove that he had adequate funds at his disposal to part with in favour of Sher Singh defendant, so that latter could execute sale deed in his favour. It was found that the plaintiff got back Rs. 400/- which had been received by the defendant by way of earnest money. It was found that even in the notice Ex.P2 served upon Sher Singh by the plaintiff, the plaintiff had not stated about his readiness and willingness to perform his part of contract. He, however, held the agreement to have been executed by Sher Singh in favour of the plaintiff and that he had received Rs. 1400/- as earnest money. Plaintiffs suit was held to be within time. 6. Aggrieved from this judgment and decree dated 14.6.1978 passed be subordinate Judge III Class, Ludhiana, Rajinder Singh plaintiff went in appeal. 7. Appeal preferred by Rajinder Singh plaintiff was accepted by Additional District Judge, Ludhiana vide order dated 7.1.1980 and the plaintiffs suit was decreed for possession through specific performance of the agreement of sale dated 10.1.1978 Ex.P.1 against Sher Singh defendant on payment of the remaining sale money amounting to Rs. l266-67P. Qua six biswas of land, in view of his findings, that Sher Singh had executed agreement to sell dated 10.1.1973 in favour of the plaintiff qua 9 biswas of land for a sum of Rs. 4000/-. He had received Rs. 1400/- at the time of execution of agreement of sale. He was owner of only six biswas of land and, therefore, he could be called upon to execute sale deed qua six biswas of land on payment of the reduced price. It was found that plaintiff was always ready and willing to perform his part of contract and it was Sher Singh who defaulted. Plaintiffs suit was found within time. 8. Aggrieved from this judgment and decree dated 7.1.1980. Sher Singh, Basta Singh, Sikander Singh and Smt. Bhago defendants came up in appeal to this Court. 9. It was found that plaintiff was always ready and willing to perform his part of contract and it was Sher Singh who defaulted. Plaintiffs suit was found within time. 8. Aggrieved from this judgment and decree dated 7.1.1980. Sher Singh, Basta Singh, Sikander Singh and Smt. Bhago defendants came up in appeal to this Court. 9. Shri Pritam Saini, Advocate appearing for appellants 3 and 4 namely Sikander Singh and Smt. Bhago withdrew this appeal on 17.2.2000 and, therefore this appeal was dismissed qua them on 17.2.2000. 10. Learned counsel for the appellant submitted that the plaintiff was not ready and willing to obtain sale deed from Sher Singh defendant. If he had been ready and willing to obtain sale deed from Sher Singh, he would have contacted Sher Singh on or about 31.5.1973 and called upon him to execute sale deed in his favour. If he had been ready and willing to obtain sale deed from Sher Singh defendant on or about 31.5.1973, he would have gone to the office of Sub Registrar either on 31.5.1973 or soon thereafter and made an application to the Sub Registrar that he was present before him with a view to obtain sale deed from Sher Singh but Sher Singh was not present. Plaintiff did not do so. Sher Singh defendant remained in India all through. He went to USA in August, 1974 and came back to India in March 1975. It was submitted that there was no evidence that till August 1974, Rajinder Singh made any effort to demonstrate his readiness and willingness to obtain sale deed from Sher Singh on receipt of the remaining sale price from him. 11. Learned counsel for the plaintiff-respondent Rajinder Singh, on the other hand, submitted that the plaintiff-respondent could not call upon Sher Singh defendant appellant to execute sale deed in his favour on or about 31.5.1973 because it was not sure whether Sher Singh had 1/2 share in abadi plot measuring 18 biswas and that there was dispute of title between him and his other brothers and that partition proceedings were going on between him and his brothers in regard to their joint properties and it was only when his title became clear qua six biswas of land that he could purchase six biswas of land. 12. 12. Suffice it to say, there is no evidence that the plaintiff apprised Sher Singh defendant of this position on or about 31.5.1973 dissuading him from claiming specific performance of the agreement to sell. Defendant remained in India till August 1974. Plaintiff could call upon him to execute sale deed in his favour or he could apprise him of his position qua agreement which dissuaded him from going ahead with agreement. In notice Ex.P2 dated 9.8.1976 served upon Sher Singh defendant by the plaintiff, it is not mentioned that the plaintiff was ready and willing to obtain sale deed from the defendant. It is mentioned that he kept putting off the matter as he did not have title qua 1/2 share and his co-sharers were denying his title and the factum of partition. He told the defendant that he will launch criminal proceedings against him and Basta Singh for the offence of cheating committed by both of them but before taking any step he was giving him opportunity to show and prove his bona fides and title by executing sale deed qua 1/2 share of 9 biswas out of abadi plot measuring 18 biswas within seven days from the receipt of this notice. Defendant gave reply to this notice by which he told them that he had 1/3rd share in abadi plot measuring 18 biswas. Regarding his title the plaintiff could verify by going through the revenue record as he and the plaintiff are covillagers. Plaintiff knew that he had 1/3 share in the abadi plot measuring 18 biswas. It was he who induced him to execute agreement to sell with regard to 1/2 share abadi plot measuring 18 biswas saying that he would use his influence with Sardara Singh and persuade him (Sardara Singh) to sell his half share and his own half share but later on Sher Singh failed to persuade Sardara Singh to agree to this proposal and the agreement was dictated to the petition writer by plaintiff Rajinder Singh, who is an advocate. Title of Sher Singh was quite clear so far as 1/3rd share of abadi was concerned and this was known to Rajinder Singh. Even after the service of notice dated 9.8.1976. the plaintiff did not go to the office of Sub Registrar for obtaining sale deed from the defendant. Plaintiff may have the capacity to purchase. He may have been ready to purchase. Even after the service of notice dated 9.8.1976. the plaintiff did not go to the office of Sub Registrar for obtaining sale deed from the defendant. Plaintiff may have the capacity to purchase. He may have been ready to purchase. He may not have been willing to purchase. 13. Learned counsel for the appellant submitted that in this case the plaintiff was not willing to purchase. If he had been willing to purchase, he would have tried to Contact the plaintiff on or before 31.5.1973 and reminded him of his liability undertaken by him in this agreement. Plaintiff did not call upon him to perform his part of contract on or about 31.5.1973. Sher Singh defendant was in India till August 1974. Till then, he did not take any step to remind him of his liability under the agreement. In this case, it is not mere delay. Plaintiff filed this suit on 25.9.1976. It is a case of total inaction on the part of the plaintiff for 3/3/1-2 years which is in clear violation of the terms of the agreement which required him to pay the balance sale money and purchase stamp papers and than ask for execution of the sale deed. It will be inetquitable to allow relief of specific performance to the plaintiff. Continuous readiness and willingness on the part of the plaintiff is condition precedent to the grant of relief of specific performance and this circumstance is material and relevant and is required to be considered by the Court while granting or refusing to grant relief. If the plaintiff either fails to prove the same, he must fail. To adjudge whether plaintiff is ready and willing to perform his part of contract, the court must take into consideration the conduct of the plaintiff prior and subsequent to the filing of the suit alongwith other attending circumstances. The Court is not bound to grant relief which is discretionary merely because there was valid agreement of sale. It is equitable remedy and is in the discretion of the Court which "discretion however, has to be exercised according to the settled principles of law and not arbitrarily", are the observations made by the Honble Supreme Court of India in N.P. Thirugnanam v. Dr. R. Jagan Mohan Rao, 1995 (5) S.C.C. 115 with reference to Section 16 (c) and 20 of the Specific Relief Act. 14. R. Jagan Mohan Rao, 1995 (5) S.C.C. 115 with reference to Section 16 (c) and 20 of the Specific Relief Act. 14. There has been considerable rise in the value of immovable properties in recent years. After such long lapse of time it will be inequitable to allow specific performance of the contract in favour of the plaintiff. If the relief of specific performance is allowed, the defendants will have to part with six biswas of land for a very small amount. Might be, the plaintiff did not default and Sher Singh defendant also did not default. Plaintiff bona fide took that he was entitled to specific performance of nine biswas of the abadi plot i.e. 1/2 share of 18 biswas and in his is anxiety, he evaded the decision of partition proceedings. Might be, the defendant bona fide felt that he could convey only six biswas and he was willing to convey six biswas. It appears that agreement lost its efficacy because of this misunderstanding on the part of the plaintiff and the defendant. In the circumstances, what would be equitable is to restore the plaintiff and Sher Singh defendant to the same position as if there had been no agreement at all between them. Sher Singh defendant should be called upon to refund Rs. 1400-00 alongwith interest thereon at the rate of 10 per cent per annum from the date of suit till its realisation. In view of what has been stated above decree for possession through specific performance granted by the Additional District Judge, Ludhiana vide judgment dated 7.1.1980 is set aside and instead decree for damages to the tune of Rs. 1400/- plus interest thereon at the rate of 10 per cent per annum payable from 25.9.1976 till realisation is granted in favour of Rajinder Singh plaintiff-respondent against defendant-appellant Sher Singh. Appeal qua appellants 3 and 4 is dismissed as withdrawn. No order as to costs. Appeal allowed to the extent indicated above qua Sher Singh and Basta Singh.