Judgment 1. This Regular Second Appeal was originally filed by Malkiat Singh- plaintiff, who died during its pendency on 21-8-2000 and, vide order dated 12-2-2002, his sons Mukhtiar Singh and Balraj Singh were substituted in his place. 2. This appeal has been filed against the judgment and decree dated 4-9-1982 passed by Additional District Judge, Ferozepur, vide which the appeal filed by Chand Singh defendant No. 2 against the judgment and decree dated 10-10-1981 passed by Additional Senior Sub-Judge, Ferozepur, has been accepted; suit of the plaintiff for specific performance of the agreement has been dismissed and his suit for recovery of Rs. 3,360/- i.e. Rs. 3,000/- as return of the earnest money and Rs. 360/- as damages by way of interest at the rate of 12% per annum has been decreed, whereas the appeal filed by Malkiat Singh-plaintiff against the aforesaid judgment and decree dated 10-10-1981 has been dismissed. 3. The brief facts of the case are that on 12-12-1977 Malkiat Singh plaintiff entered into an agreement of sale with Om Parkash, defendant No. 1 for the purchase of land measuring 36 Kanals situated in Village Talwandi Bhai at the rate of Rs. 9,500/- per acre. At the time of the execution of the agreement, an amount of Rs. 3,000/- was paid as earnest money to defendant No. 1. The remaining sale consideration was to be paid by the plaintiff at the time of execution of the sale deed, which was to be executed on or before 25-6-1978. When prior to the last date of execution of the sale deed, plaintiff became apprehensive of the sale of the disputed land by defendant No. 1 in favour of defendant No. 2, he filed a suit for permanent injunction against defendant No. 1 on 22-4-1978. Thereafter, he served a legal notice upon defendant No. 2 on 28-4-1978. In spite of that, defendant No. 1 executed registered sale deed dated 1-6-1978 regarding the land in question in favour of defendant No. 2. Hence, the plaintiff filed the instant suit for specific performance on 19-11-1978 against both the defendants. It was alleged that in addition to Rs. 3,000/- which was paid as earnest money on 12-12-1977 at the time of the execution of the agreement of sale, a sum of Rs. Hence, the plaintiff filed the instant suit for specific performance on 19-11-1978 against both the defendants. It was alleged that in addition to Rs. 3,000/- which was paid as earnest money on 12-12-1977 at the time of the execution of the agreement of sale, a sum of Rs. 15,700/- was paid by the plaintiff to defendant No. 1 on 14-2-1978 vide pronote and receipt, which amount was to be adjusted towards the sale consideration. Thus, it was alleged that a total amount of Rs. 18,700/- was paid by the plaintiff to defendant No. 1 towards the sale consideration of the disputed land; and he was ready and willing to pay the remaining amount, but defendant No. 1, in violation of the terms of the aforesaid agreement, illegally sold the land in question in favour of defendant No. 2 vide registered sale deed dated 1-6-1978. It was alleged that the plaintiff was to pay Rs. 42,750/- as the total sale consideration, out of which he had already paid Rs. 18,700/-. Therefore, on payment of the balance amount, defendant No. 1 was sought to be directed to execute and register sale deed in favour of the plaintiff as he was always ready and willing to perform his part of the agreement. 4. The defendants contested the suit and filed separate written statements. Defendant No. 1 though admitted the execution of the agreement, but denied the payment of the earnest money by the plaintiff as alleged. He further alleged that he was ready to execute the sale deed on receipt of the full sale consideration but the plaintiff had no money, therefore, he had consented to the sale made by defendant No. 1 in favour of defendant No. 2. The facts of breach of contract by him and payment of Rs. 15,700/- by the plaintiff as additional amount towards the sale consideration were denied. Defendant No. 2, in his separate written statement, took the plea of bona fide purchaser for value and consideration. 5. On the pleadings of the parties, the learned trial Court framed the following issues :- 1. Whether the defendant No. 1 received a sum of Rs. 3,000/- as earnest money from the plaintiff? OPP 2 Whether the plaintiff had paid the amount of Rs. 15,700/- to the defendant No. 1 on 14-2-78 as alleged ? OPP 3. 5. On the pleadings of the parties, the learned trial Court framed the following issues :- 1. Whether the defendant No. 1 received a sum of Rs. 3,000/- as earnest money from the plaintiff? OPP 2 Whether the plaintiff had paid the amount of Rs. 15,700/- to the defendant No. 1 on 14-2-78 as alleged ? OPP 3. Whether the plaintiff had been ready and willing to perform his part of the agreement ? OPP 4. Whether the plaintiff had consented to the sale made by defendant No. 1 in favour of defendant No. 2. If so, its effect ? OPD 1 5. Whether defendant No. 2 Chand Singh was bona fide purchaser without notice and for value of the suit property ? OPD 2 6. Whether the plaintiff is entitled to specific performance of the agreement in dispute ? OPP 7. Relief. 6. In the written statement, execution of the agreement of sale was not disputed by defendant No. 1. However, it was alleged that no consideration was passed to him. In this regard, on issue No. 1, it was held that at the time of execution of the agreement of sale, an amount of Rs. 3,000/- was paid by the plaintiff to defendant No. 1 as earnest money. On issue No. 2, it was held that the amount of Rs. 15,700/- was not paid to defendant No. 1 towards the sale consideration, but the same was held to be a different transaction. On issue No. 3, it was held that the plaintiff was ready and willing to perform his part of the agreement. On issue No. 5, it was held that defendant No. 2 was not a bona fide purchaser. On the basis of the aforesaid finding, the suit of the plaintiff for specific performance was decreed by the learned trial Court on payment of balance sale consideration. 7. Against the said judgment and decree, two separate appeals were filed. One by the plaintiff, whereby he challenged the finding recorded by the learned trial Court regarding payment of Rs. 15,700/- vide pronote and receipt dated 14-2-1978 towards the sale consideration of the agreement of sale; and second by defendant No. 2 against the decree of specific performance. Learned first appellate Court accepted the appeal filed by defendant No. 2 and suit of the plaintiff for specific performance of the agreement was dismissed. 15,700/- vide pronote and receipt dated 14-2-1978 towards the sale consideration of the agreement of sale; and second by defendant No. 2 against the decree of specific performance. Learned first appellate Court accepted the appeal filed by defendant No. 2 and suit of the plaintiff for specific performance of the agreement was dismissed. However, his suit was decreed for recovery of Rs. 3,360/- i.e. Rs. 3,000/- as return of the earnest money and Rs. 360/- as damages by way of interest at the rate of 12% per annum. The appeal of the plaintiff was dismissed by holding that though the payment of Rs. 15,700/- was made to defendant No. 1 vide pronote and receipt, but the same was neither towards the sale consideration of the agreement in question nor defendant No. 1 had agreed to give adjustment of the said amount towards the sale consideration. The following findings in this regard have been recorded by the learned first appellate Court :- "I find force in the contention of learned counsel for the plaintiff-appellant that the payment Rs. 15,700/- to Shri Om Parkash- defendant is established vide pronote Exhibit-P1 and receipt Exhibit-P2. However, the learned counsel has failed to point out any material evidence on the record to reveal that the said amount Rs. 15,700/- was paid towards the sale consideration of the agreement in question or that the vendor Shri Om Parkash had ever agreed to give the adjustment of the said amount towards the sale consideration. The purpose for borrowing the said amount of Rs. 15,700/- is given in the pronote but it does not reveal that it was intended to be adjusted towards the sale consideration. Had it been a payment towards the sale consideration, it must have been either written on the back of the agreement itself or a separate receipt showing it as the amount adjustable towards the sale consideration must have been obtained. On careful perusal of the evidence adduced by the parties it is revealed that the plaintiff has failed to prove that Rs. 15,700/- were paid towards the part payment of the sale consideration of the sale deed to be executed in his favour. The agreement executed between the parties is Exhibit P3 and it reveals that Rs. 3,000/- were paid as earnest money and the balance amount was payable at the time of registration. 15,700/- were paid towards the part payment of the sale consideration of the sale deed to be executed in his favour. The agreement executed between the parties is Exhibit P3 and it reveals that Rs. 3,000/- were paid as earnest money and the balance amount was payable at the time of registration. Even the scribe or the attesting witness of the document Exhibit-P1 and Exhibit-P2 nowhere deposed that this amount was paid for adjustment at the time of execution of the sale deed. Moreover the present plaintiff-appellant filed a suit for injunction restraining the vendor from selling the land in dispute on 22-4-1978 but, the alleged payment of Rs. 15,700/- dated 14-2-1978 was never mentioned in that plaint. Exhibit-P4 is the copy of that plaint. If the plaintiff had actually paid Rs. 15,700/- towards the sale consideration then there was no occasion to miss the mention of that payment in the said plaint. So the only inference from that omission that can be raised is that either the pronote and receipt were not in existence at that time or the payment thereof was a distinct transaction and was not towards the sale consideration. Not even an iota of evidence is brought on the record by the plaintiff-appellant to reveal that the sum of Rs. 15,700/- was paid towards the sale consideration muchless that he is entitled to the adjustment thereof. So this issue was rightly decided against the plaintiff-appellant Shri Malkiat Singh by the learned lower Court and those findings are affirmed." 8 After recording the aforesaid finding, the learned first appellate Court reversed the finding of the learned trial Court on issue No. 3 and held that it cannot be said that the plaintiff was ready and willing to perform his part of the agreement because in the notice given by him to defendant No. 1 on 28-4-1978 and in the suit filed by him, he pleaded the payment of the said amount of Rs. 15,700/- and claimed adjustment of the said amount which has been held to be not a payment towards the sale consideration. In that situation, it was held that the aforesaid claim made in the notice as well as in the suit will negate the plea of the plaintiff regarding his readiness and willingness to perform his part of the contract. 15,700/- and claimed adjustment of the said amount which has been held to be not a payment towards the sale consideration. In that situation, it was held that the aforesaid claim made in the notice as well as in the suit will negate the plea of the plaintiff regarding his readiness and willingness to perform his part of the contract. In this regard, learned first appellate Court observed as under :- "In the instant case the plaintiff has been ready and willing to get the sale deed executed on payment of the balance price after adjusting the sum of Rs. 15,700/- and similar claim was made in the notice Exhibit-P7 which is dated 28-4-1978. So obviously on 28-4-1978 the plaintiff Shri Malkiat Singh was ready and willing to get the sale deed executed after adjusting the sum of Rs. 18,700/-. Since the sum of Rs. 15,700/- has not been proved to have been paid to the vendor towards the part payment of sale consideration, so strictly speaking the plaintiff Shri Malkiat Singh has failed to prove that he was ready with the balance sale consideration and that he was ready and willing to perform his part of the contract in terms of the agreement Exhibit-P3. So I find force in the contention of the learned counsel for Shri Chand Singh-appellant that the plaintiff is not entitled to the relief of specific performance." 9 Against the aforesaid judgment and decree, the plaintiff has filed the instant appeal. 10. Learned counsel for the appellant, while referring to the decisions of the Hon ble Supreme Court in Motilal Jain V/s. Smt. Ramdasi Devi (2000) 8 JT (SC) 59 : (AIR 2000 SC 2408) and P. Purushottam Reddy V/s. M/s. Pratap Steels Ltd., 2000 (2) Rec Civ R 70 : (AIR 2002 SC 771) and a decision of this Court in Rakha Singh V/s. Babu Singh, 2002 (2) Rec Civ R 205 : (AIR 2002 Punj and Har 270), has submitted that the finding recorded by learned first appellate Court on the issue of readiness and willingness is totally perverse and is not sustainable. He submitted that the plaintiff has duly averred in the plaint that he was ready and willing to perform his part of the agreement and he has also stated so, when appeared in the witness box. Therefore, merely because the averment made by him that an amount of Rs. He submitted that the plaintiff has duly averred in the plaint that he was ready and willing to perform his part of the agreement and he has also stated so, when appeared in the witness box. Therefore, merely because the averment made by him that an amount of Rs. 15,700/- was paid to defendant No. 1 through pronote and receipt towards the sale consideration was found to be not proved, it cannot be presumed that he was not ready and willing to perform his part of the agreement. 11. I have heard the arguments of learned counsel for the appellant and have perused the record of the case. In my opinion, there is no merit in the instant appeal. Most of the facts in this appeal are not disputed. The execution of the agreement dated 12-12-1977 and its terms have also not been disputed. The payment of Rs. 3,000/- as earnest money though was denied by defendant No. 1, but held to be proved by both the Courts below. The payment of Rs. 15,700/- vide pronote and receipt dated 14-2-1978 by plaintiff to defendant No. 1 was initially not held to be proved by the learned trial Court, but by the learned first appellate Court, it was held that the said amount was paid by the plaintiff to defendant No. 1 in some other transaction. It was further held that the said amount was not paid towards the sale consideration as alleged by the plaintiff. It is also clear from the pleadings and case of the plaintiff that he claimed the said payment towards the sale consideration and adjustment of the same as such and thereafter, he gave notice to defendant No. 1 asking him to execute the sale deed on receipt of the balance sale consideration. In the plaint also, he has pleaded this fact. 12. Now, the question arises for consideration is : Whether the conduct of the plaintiff by claiming the payment of Rs. 15,700/- towards the sale consideration and by asking defendant No. 1 to execute the sale deed on receipt of the remaining amount after adjusting the same, will tantamount to readiness and willingness of the plaintiff to perform his part of the agreement ? The answer, in my opinion, is in negative. Because in the notice as well as the plaint, the plaintiff has not offered the balance sale consideration to defendant No. 1. The answer, in my opinion, is in negative. Because in the notice as well as the plaint, the plaintiff has not offered the balance sale consideration to defendant No. 1. Since it was held that the amount of Rs. 15,700/- was not paid towards the sale consideration, therefore, while offering less amount of sale consideration after adjusting the aforesaid amount of pronote and receipt, the plaintiff cannot be held to be ready and willing to perform his part of the agreement. This conduct of the plaintiff would preclude him from getting an equitable relief. It is well settled that it is condition precedent for grant of decree for specific performance that the plaintiff must show his continuous readiness and willingness to perform his part of the contract in accordance with its terms from the date of the contract to the date of hearing. In this regard, reference is made to Simon Jacob Silas V/s. Casper John Balthasar Kohlhoff, AIR 1954 Trav-Co 440, wherein it has been held as under (para 7) : "The continued desire to purchase the property included in Ext. T but on the plaintiffs own terms regarding the payment of the price is not the "continued readiness and willingness" on which the law insists as a condition precedent to the grant of a decree for specific performance. If anything, it is a negation of his "continued readiness and willingness" to perform the obligations under Ext. T and should by itself entail a dismissal of his suit." 13. Similarly, the Hon ble Supreme Court in Raj Kumar Agarwal V/s. Thawar Das, (1999) 7 SCC 303 : (AIR 1999 SC 3248), held that a person who falsely claims to have paid a sum of money and attempts to prove the plea at trial stage, cannot be said to have been ever ready and willing to pay the sum due under the contract in question and on such conduct his suit for specific performance cannot be decreed. In view of the this proposition of law. I do not find any merit in the instant appeal. The judgments cited by learned counsel for the appellant, as mentioned above, are not relevant to the facts of the present case. 14. In view of the aforesaid discussion, I do not find any merit in the instant appeal and the same is hereby dismissed with no order as to costs. Appeal dismissed