JUDGMENT 1. - The history of this litigation dated back to half a century before when 1 respondent-plaintiff has made highest bid in an auction for the purchase of land measuring 70ft. X 40ft. at Tej Mandi Alwar on 6.11.1947 for a sum of Rs. 4,725/-. He deposited 1/4th of the sale price by way of an advance on 6.11.1947. The plot was identified as Plot No. 4 in Tej Mandi Scheme, Alwar. This transaction took place before the formation of the State of Rajasthan and before coming into force the provisions of the Constitution of India in State of Rajasthan, in which erstwhile Alwar State had been merged as a part of Union of India on commencement of the Constitution. Prior to the commencement to the Constitution and after the aforesaid auction, Alwar-State had merged into erstwhile "Matasya State". 2. Present appeal arises out of decree passed for the specific performance of the said agreement for which the respondent-plaintiff had filed a Civil Suit in the Court of District Judge, Alwar on 25th December, 1964 alleging that the successor-State of Rajasthan, considering the question of accepting the liability to honour the agreement entered by the erstwhile State of Alwar for the sale of aforesaid land at Tej Mandi Scheme and during this period the plaintiff was ready and willing to perform his part of the contract, he having already performed the part of contract, which was required by him at the time of auction proceeding, namely depositing of 1/4 of the sale price and the balance price was to be deposited only after auction was confirmed by the State. 3. In the year 1961, Urban Improvement Trust was constituted in Alwar by the State Government vide its notification dated 17th July 1981, published in Rajasthan Rajpatra dated August 1, 1961 and Tejmandi Scheme was also placed under the Trust as per the averment made in the plaint. Somewhere in September 1962, the plaintiff came to know that 'Sanads' of plots were being issued to the purchasers of the land in Tejmandi Scheme from the erstwhile Alwar State by the Trust he sent his agent Gopalji to deposit the balance 10 amount. The said Gopalji filed an application before the Trust to deposit the balance price. However the same was not accepted nor it was intimated to the plaintiff or his agent the reason for such non-acceptance. The said Gopalji filed an application before the Trust to deposit the balance price. However the same was not accepted nor it was intimated to the plaintiff or his agent the reason for such non-acceptance. Thereafter, when a notice of auction of plot No. 4 in Tejmandi was published, an application was given by the plaintiff through his advocate protesting against 1s that auction. The petitioner was informed that in its meeting dated 10th October, 1962 a decision was taken by the Trust that because the plaintiff has not deposited 3/4 amount of the price within the prescribed period as mentioned in its notice dated February 27, 1962, the auction made in his favour in 1947 was cancelled. 4. The further case of the plaintiff was that he did not receive any such communication from the side of the Urban improvement Trust, Alwar as they were not correctly addressed to him and as he was ready and willing to perform his part of the contract for purchase of plot No. 4 in Tejmandi Scheme throughout, the same cannot be sold to Respondent No. 4 Jai Bhagwan for Rs. 15,0001- on lease hold basis. 5. Thus on the premise that the contract for sale of the aforesaid plot, in part performance of which the plaintiff has paid the part of the price consideration at the time of auction as per the terms of auction and he was ready and willing to perform at all times his part of contract, has been kept alive by the successor State when it decided to issue 'Sanads' to the successful bidders at auction in 1947 at Tejmandi Scheme, he is entitled to decree for specific performance of contract and the sale in favour of respondent-defendant No. 4 Jai Bhagwan cannot be carried out. The plaintiff also claimed in the alternative. a sum of Rs. 20,000/- by way of damages which included part of the price paid by him to the return of which he was otherwise entitled to.5-A. The defendant-State of Rajasthan and the Collector, defendants No. 1 and 3 respectively, in their written statement admitted that Plot No. 4 was auctioned for Rs. 4725/- and the bid of the plaintiff being highest was accepted. it was also admitted that 1/4 amount of the sale price was deposited by the plaintiff. 4725/- and the bid of the plaintiff being highest was accepted. it was also admitted that 1/4 amount of the sale price was deposited by the plaintiff. They further stated that notice was given to the plaintiff at his Rewadi Address which was available in the record and was also published in the Rajasthan Times Alwar and in Rajasthan Rajpatra. But inspite of these notices the plaintiff did not pay the balance of the sale price and therefore the plaintiff cannot be said to be ever ready and willing to perform the essential part of the terms of the contract. He is therefore, not entitled to a decree for specific; performance and damages. 6. The trial Court framed as many as six issues which are as under: 1(a) Whether the notice issued by the Urban improvement Trust, in the Rajasthan Gazette dated 26.7.1962 and in daily news paper 'Rajasthan Times' Aiwar dated 20th June, 1962 are valid and binding on the plaintiff? (b) If so, whether the Urban Improvement Trust Alwar was justified in treating the contract of sale at an end and re-auctioning the plot in favour of defendant No. 4? 2.(a) Whether the Urban Improvement Trust Alwar issued notice dated 27 2.1962 to the plaintiff? (b) If so, whether that notice is valid and binding on the plaintiff, although it was not received by the plaintiff? (c) If so, whether the Urban Improvement Trust Alwar was justified in treating the contract of sale at an end and re-auctioning the plot in favour of defendant No. 4? 3. Whether the plaintiff is entitled to the refund of As Rs. 1180/-deposited by him as advance money'? 4. Whether the plaintiff is entitled to recover to Rs. 1820/- as interest on the advance money? 5. Whether the plaintiff is entitled to recover Rs. 17,000/- as damages for non performance of the contract? 6. Whether the plaintiff was ready and willing to perform his part of the contract? 7. Burden of proving of issue No. 1 (a) and (b) and issue No. 2 (a), (b) and (c) was on the defendants which were decided against the defendants by holding that the alleged notices have not been proved by the defendants to have been sent to the plaintiff. 7. Burden of proving of issue No. 1 (a) and (b) and issue No. 2 (a), (b) and (c) was on the defendants which were decided against the defendants by holding that the alleged notices have not been proved by the defendants to have been sent to the plaintiff. Principal issue No. 6 was also decided in favour of the plaintiff by holding that the plaintiff was ready and willing to performa his pan of contract after holding that a valid contract of sale subsisted between the parties. In view of the aforesaid findings a decree for specific performance of contract for the sale of aforesaid land in favour of the plaintiff was passed on 30th November, 1968. 8. Against the aforesaid judgment only Urban Improvement Trust preferred an appeal which has been dismissed by the learned Single Judge vide judgment under appeal dated 13th October, 1980. 9. As is apparent from the judgment under appeal the only finding on issue No. 6 was assailed before the learned Single Judge that is to say whether the plaintiff was ready and willing to perform his part of the contract. After considering the material on record, the learned Single Judge found in favour of the plaintiff affirming the finding of the trial Judge and dismissed the appeal. Hence, this special appeal. 10. Having heard learned counsel for the parties and after perusing the material on record, we we of the opinion that the finding of fact recorded by the trial Judge which was confirmed by the learned Single Judge about the readiness and willingness of the plaintiff to perform his part of contract throughout is not required to be interfered with in this appeal as the finding is reached after elaborate consideration of entire material on record and there is,infirmity in reaching such conclusion. 11. The question however arises whether plaintiff is entitled to a decree for specific performance of agreement for sale in terms of such agreement in absolute as a matter of right. 12. Grant of decree for specific performance is equitable relief and the plaintiff cannot claim it as a matter of right even if it is legal to do so. 11. The question however arises whether plaintiff is entitled to a decree for specific performance of agreement for sale in terms of such agreement in absolute as a matter of right. 12. Grant of decree for specific performance is equitable relief and the plaintiff cannot claim it as a matter of right even if it is legal to do so. About this principle also, there cannot be any dispute as it is well settled principle, In i recent decision of the Supreme Court reported in Nirmla Anand v. Advent Corporation (P) Ltd. and ors., 2002 WLC (SC) Civil 512 : (2002) 8 SCC 146 , the Supreme Court has observed that 'grant of decree for specific performance lies at the discretion of the Court and it is also well settled that it is not always necessary to grant decree for specific performance merely for the reason that it is legal to do so.' 13. This proposition is not disputed before us by learned counsel for the appellant. Placing reliance on the aforesaid principle learned counsel for the appellant has urged that since the auction has taken place in 1947 and suit was filed in 1964, and since then there has been tremendous rise in land prices at Alwar, it will not be just and equitable to grant a decree for specific performance in favour of the plaintiff at this distance of time and to allow him to reap gains of tremendous price escalation to himself. It will be highly inequitable. He can be compensated by grant of decree for damages for breach of contract at best. 14. However, placing reliance on the aforesaid decision of Supreme Court, the learned counsel for the respondents has urged that in such circumstances, the Court has also discretion to impose any reasonable condition including payment of an additional amount by one party to the other while granting or refusing decree for specific performance. He submitted that the plaintiff has always been ready and willing to perform his part of contract. He has wrongly been denied the execution of contract in his favour by grant of 'Sailed' since 1962. In September 1962 he had offered to deposit the balance amount of the price immediately after he came to know about the fact that the appellant would issue 'Sanads' in respect of the successful bidders at auction in 1947 at Tejmandi Scheme. He has wrongly been denied the execution of contract in his favour by grant of 'Sailed' since 1962. In September 1962 he had offered to deposit the balance amount of the price immediately after he came to know about the fact that the appellant would issue 'Sanads' in respect of the successful bidders at auction in 1947 at Tejmandi Scheme. However, for the unwarranted reason and for no fault of the plaintiff, the Urban Improvement Trust Alwar, the appellant-defendant refused to accept that amount and cancelled the auction made in his favour thereafter without any notice to him. The cancellation of auction without notice to him itself was in breach of principles of natural justice and was bad in law and when attempt to transfer the same plot to a third person was made, a suit was promptly filed and for the first time, he was apprised that auction in his favour has been cancelled. Learned counsel has also shown his willingness on behalf of the plaintiff to pay an additional sum by way of sale consideration as may be determined by the Court. 15. In this connection, it may be apposite to refer the following observation made by Hon'ble Supreme Court "It is true that grant of decree of specific performance lies in the discretion of the court and it is also well settled that it is not always necessary to grant specific performance simply for the reason that it is legal to do so. It is further well settled that the court in its discretion can impose any reasonable condition including payment of an additional amount by one party to the other while granting or refusing decree of specific performance. Whether the purchaser shall be directed to pay an additional amount to the seller or converse would depend upon the facts and circumstances of a case. Ordinarily, the plaintiff is not to be denied the relief of specific performance only on account of the phenomenal increase of price during the pendency of litigation. That may be, in a given case, one of the considerations besides many others to be taken into consideration for refusing the decree of specific performance. As a general rule, it cannot be held that ordinarily the plaintiff cannot be allowed to have, for her alone, the entire benefit of phenomenal increase of the value of the property during the pendency of the litigation. As a general rule, it cannot be held that ordinarily the plaintiff cannot be allowed to have, for her alone, the entire benefit of phenomenal increase of the value of the property during the pendency of the litigation. While balancing the equities, one of the considerations to be kept in view is as to who is the defaulting party. It is also to be borne in mind whether a party is trying to take undue advantage over the other as also the hardship that may be caused to the defendant by directing specific performance. There may be other circumstances on which parties may not have any control. The totality of the circumstances is required to be seen." 16. On our enquiry Mr. Maloo learned counsel for the appellant about current status of plot, stated that since the filing of appeal, another auction purchaser Shri Jai Bhagwan in whose favour, the appellant has agreed to to transfer the land in question on lease basis for a sum of Rs. 15,000/- in 1964 has withdrawn from the said transfer and the amount deposited by him has been withdrawn by him unconditionally and is not in contention any more. The plot in question still continue to be in possession of the plaintiff-Urban Improvement Trust and is available for sale. 17. Learned counsel for the parties further informed that there has been tremendous increase in the price of the property in question during the pendency of this litigation. As on today the reserve price of land in the vicinity of the plot in question ranges about Rs. 5,000/- per sq. yd., whereas the market price may be much above the same. Keeping in view the principle enunciated in Nirmala Anand's case (supra) that where there is a phenomenal increase in value of land during pendency of litigation and the plaintiff has further found to be entitled to the decree for specific performance way back in 1968 by the trial court when price escalation was not as high as it is today and he is not responsible for the delay or default in performance of the agreement, then the Court in its discretion instead of refusing to a decree for specific performance may impose any reasonable condition including any additional amount to be paid by party to the other. While granting a decree for specific performance and in doing so, the Court as further stated that in such circumstances, it would not be unreasonable and unequitable to make the appellant sole beneficiary of the escalation of real estate price and the enhanced value of the property in question. 18. Keeping, the facts of the present case and the aforesaid principles in view, and the findings of the two courts below in favour of the respondent-plaintiff that he was ready and willing to perform his part of the contract and is not a defaulting party, the ends of justice would meet if a decree for specific performance passed in favour of the plaintiff is modified as under:- 1. There shall be conditional decree for specific performance of agreement dated 24.11.1947 having come into existence as a result of auction conducted by the authorities of the then Alwar State and agreed to be carried out by the successor State of Rajasthan and the plaintiff respondent No. 1, the appellant shall execute a transfer deed of Plot No. 4 Tejmandi Scheme, Alwar; 2. The respondent-plaintiff shall pay to the appellants a sum computed at the reserve price of the aforesaid plot as is in force today subject to a minimum of Rs. 6,000/- per Sq, Yard in addition to sum already paid by the plaintiff; 3. The amount payable at the aforesaid rate shall be communicated by appellant to the respondent within six weeks and the respondent will pay the aforesaid sum within two months so from the date of the receipt of communication of the amount payable by him from the appellant - U.I.T.; 4. The respondent plaintiff shall be entitled to have the transfer deed executed in their favour only on payment of aforesaid sum; 5. The terms of the transfer of the plot in question in favour of plaintiff shall be as per current Rules of U.I.T. subject to consideration for such transfer in terms as stated above for transferring the plot in the aforesaid Scheme; 6. The respondent failing to comply with the terms of the conditional decree as above shall stand denied and lose their right and entitlement for specific performance of the agreement referred to above in their favour. Consequent thereto the appeal shall stand allowed and the suit stands dismissed. Each party shall bear their own costs throughout. The respondent failing to comply with the terms of the conditional decree as above shall stand denied and lose their right and entitlement for specific performance of the agreement referred to above in their favour. Consequent thereto the appeal shall stand allowed and the suit stands dismissed. Each party shall bear their own costs throughout. The appeal is disposed of in the above terms.Appeal Disposed of by Modifying Decree as above. *******