Judgment : K. Ramanna, J. The appellants/defendants have come up with this second appeal challenging the legality and correctness of the judgment and decree dated 5.2.1997 passed by the Additional Munsiff at Virajpet, in O.S. No. 238/1993, which has been confirmed by the learned Civil Judge (Senior Division), Virajpet in R.A. No. 10/1997, dated 19.9.2001. 2. For the sake of convenience the parties will be referred to in their rank assigned to them before the trial Court. 3. The brief facts of the case in nutshell are that; the plaintiff has filed the suit before trial Court seeking for relief of specific performance of agreement of sale and for other allied reliefs. It is the case of the plaintiff that on 9.1.1975 the first defendant approached him by expressing his willing to sell the suit schedule property and he agreed to purchase the same for a consideration of Rs.22,000/-and in pursuance of the same he has paid a sum of Rs.1,000/- as advance for which a money receipt being passed and thereafter on 31.3.1975 he further paid a sum of Rs.11,000/-and the first defendant executed a written agreement, agreeing to execute the sale deed on or before 31.3.1976; that in pursuance of the said agreement the plaintiff was put in possession of the suit property; that he renovated the suit property, with the permission of first defendant after obtaining necessary permission from the municipality, by spending huge sum. It is further case of the plaintiff that, as per the agreement the first defendant had to get the consenting attestation of his brother or any member of the family to the proposed sale deed. Further the plaintiff had to pay interest at the rate of 12% p.a. for the balance amount till he pay the amount and get the registration of the sale deed which was subsequently raised to 15% per annum. Further the plaintiff had to pay interest at the rate of 12% p.a. for the balance amount till he pay the amount and get the registration of the sale deed which was subsequently raised to 15% per annum. It is further case of the plaintiff that, the first defendant acted contrary to the agreement and evaded to execute the sale deed and simply demanding the balance consideration amount without offering himself to execute the sale deed and that the second defendant who is the brother of the first defendant got filed a eviction petition against him in HRC 23/1982; therefore plaintiff suspected the bona fides of the first defendant and got issued notice on 17.5.1982 calling upon him to execute the sale deed on receipt of balance amount of consideration; that the first defendant gave vague and untenable reply; that he is always ready and willing to perform his part of contract and approached the first defendant with his Lawyer to execute the sale deed but the first defendant failed to comply with his request. Hence he filed the suit. 4. On appearance before trial Court the first defendant filed written statement and contested the suit, contending that, plaintiff was not ready and willing to perform his part of the contract and that plaintiff was not having sufficient finds to pay the balance consideration amount and that time was the essence of the contract. However, he admitted the execution of agreement of sale, but, disputed any renovation made by the plaintiff over the suit property. 5. On the other hand, the second defendant had filed separate written statement contending that he had no knowledge of any agreement entered into between plaintiff and first defendant; that he had filed an eviction petition in H.R.C. No.23/1982 and to protract the same plaintiff had filed the above suit. Hence it is prayed to dismiss the suit of the plaintiff. 6. On the basis of the pleadings of the parties, the trial Court in all framed 12 issues out of which 2 issues were subsequent came to be deleted. However during the pendency of the suit before trial Court itself, the first defendant died and hence his LRs were brought on record, subsequently the second defendant had also died, but, since no LRs were left behind by him no one is brought on record in his place. However during the pendency of the suit before trial Court itself, the first defendant died and hence his LRs were brought on record, subsequently the second defendant had also died, but, since no LRs were left behind by him no one is brought on record in his place. To prove his case the plaintiff got examined himself as P.W.1 and his wife was examined as P.W.2 and got marked documents Exs.P.1 to 14. On the other hand, on behalf of the defendants, the wife of the original defendant No.1 was examined herself as D.W.1, however no documents came to be marked on her behalf. The trial Court on the available materials placed before it, decreed the suit of the plaintiff directing the defendants to execute sale deed in favour of the plaintiff within 3 months from the date of passing of the judgment. Being aggrieved by the said judgment and decree the appellants alone have preferred an appeal in R.A. No.10/1997, the other LRs of the deceased original first defendant had no filed any appeal challenging the judgment and decree passed by the trial Court. However, during the pendency of the said appeal the original plaintiff passed away and in his place his LRs were brought on record. The learned Civil Judge after hearing the Counsel for both the parties and after re-appreciating the materials placed before it, dismissed the appeal confirming the judgment and decree passed by the trial Court. Hence this Second appeal under Section 100 of CPC. 7. The learned Civil Judge after hearing the Counsel for both the parties and after re-appreciating the materials placed before it, dismissed the appeal confirming the judgment and decree passed by the trial Court. Hence this Second appeal under Section 100 of CPC. 7. According to appellants, the Courts below have not framed proper and correct issues and that no issue has been framed casting burden on the plaintiff to prove his readiness and willingness to get the registered sale deed from the original first defendant; that the Courts below have erred in holding that the time is not the essence of the contract; that the suit of the plaintiff is barred by limitation in view of Article 54 of Limitation Act and that the suit ought to have been brought within 3 years commencing from 31.3.1976; that the prayer for specific performance was sought for in the suit only on 15.2.1984 by way of an amendment, as such the same is barred by time; that the plaintiff is not ready and willing to perform his part of the contract and had not come forward to get the registered sale deed in his favour within the stipulated period by paying the balance sale consideration amount as such he is not entitled to the relief of specific performance of the contract after lapse of 7 years after the date of execution of agreement to sale; that the value of the suit property is increased due to lapse of time and if the judgment and decree passed by the Courts below is allowed to sustain, the appellants will be put to great hardship. Hence it is prayed to allow the appeal, by setting aside the judgment and decree passed by the Courts below. 8. Heard the arguments of the parties and perused the records; the substantial question of law that arises for my consideration is; i) Whether the Courts below are justified in granting decree for specific performance when the evidence on record including Ex.P.3 and Ex.P.4 show that there was delay on the part of the plaintiff to pay the agreed amount under the agreement? ii) Whether the suit seeking specific performance of the contract is within time and whether the amended prayer should be construed from the date of the amendment or from the date of filing of suit? ii) Whether the suit seeking specific performance of the contract is within time and whether the amended prayer should be construed from the date of the amendment or from the date of filing of suit? iii) Whether there was readiness and willingness on part of the plaintiff to perform his part of contract? 9. Admittedly, the suit schedule property is the house property and the decreed original first defendant was its owner and he entered into an agreement of sale/Ex.P.2 dated 19.3.1975 with the plaintiff for a total consideration of Rs.22,000/-and received a sum of Rs.12,000/- as earnest money. Further, under Ex.P.2/agreement, the possession of the suit property was handed over to the plaintiff. However, as per the Ex.P.2/ agreement of sale, the plaintiff was required to tender the balance consideration amount with interest at 12% p.a. and on such tender the defendant to execute registered sale deed in favour of plaintiff before the Sub-Registrar. Further, under the said agreement the defendant had undertaken that he will get consenting attestation of his brother or anybody else of his family deems necessary. The time stipulated under Ex.P.2 for completion of sale was 31.3.1976. But, according to plaintiff time was not the essence of contract and that a difference arose between deceased original first defendant and his brother/deceased second defendant, as such the deceased original first defendant went on postponing the execution of the sale deed in his favour, for obtaining the consenting attestation of his brother; that he had renovated the suit property by obtaining necessary permission from the Municipal Corporation and had put up compound wall etc., and had invested huge amount on the suit property. On the other hand according to defendant the plaintiff failed to get the sale deed registered in his favour within the stipulated period and that he was not ready and willing to perform his part of the contract, as such it is contended that the plaintiff cannot seek for specific performance of the agreement of sale/Ex.P.2 after lapse of so many years from the date of it's execution. 10. It is not in dispute between the parties that the deceased original first defendant was the absolute owner of the suit schedule property and that his younger brother deceased second defendant had no interest in it. 10. It is not in dispute between the parties that the deceased original first defendant was the absolute owner of the suit schedule property and that his younger brother deceased second defendant had no interest in it. Of course he is stated to have filed H.R.0 petition against the plaintiff claiming himself to be the owner of the suit property. However from the materials placed on record it is settled between the parties that the suit properly belongs the deceased original first defendant alone and the deceased second defendant had no interest in it, there is no rival claim set up against the title and ownership of the deceased original 1st defendant over the suit property. Thus it is clear that as on the date of execution of Ex.P.2 the deceased original first defendant was competent to enter into sale agreement with the plaintiff. Further from the plain reading of the said agreement of sale/Ex.P.2 it is clear that the undertaking given by the deceased original defendant No.1 to get consenting attestation of deceased defendant No.2 or any other number of the family, is only with an intention to transfer unimpeachable title to the plaintiff over the suit property and the same cannot be interpreted as deceased second defendant having any right, title or interest over the suit property. Moreover, the same has not been disputed before me or before the Courts below. Hence there is no need to discuss further with regard to the same. 11. The point which was much argued by the defendants before the Courts below and before this Court is that the time was the essence of the contract and that the plaintiff failed to get the registered sale deed in his favour within the stipulated period as such he cannot seek performance of the said agreement of sale/Ex.P.2. In this regard both the Courts below have concurrently held that, though in Ex.P.2 it is mentioned that the sale deed should be executed on or before 31.3.1976, the time was not the essence of the contract, while coming to this conclusion the Courts below have relied on the endorsements made on the Ex.P.2 marked at Ex.P.2(a) to (d), as per which the deceased original first defendant himself extended the time for executing sale deed by receiving interest on the balance sale consideration amount due by the plaintiff. These endorsements have not been disputed by the defendants and accordingly as per the last endorsement Es.P.2(d) the deceased original first defendant received interest at the rate of 15% p.a. for the period 1978-79 and stated that the balance to be paid on 31.3.1980. Further, the surrounding facts and circumstances of the case also makes it clear that time was not the essence of contract and that the plaintiff was ready and willing to perform his part of the contract and that it is the deceased original first defendant who evaded the execution of sale deed on one or the other pretext. In fact, the plaintiff had issued legal notice as per Ex.P.11 to the deceased original first defendant to come forward to execute registered sale deed in his favour. There is no materials placed on record or even there is no pleadings to the effect that the deceased original first defendant had at any time demanded the plaintiff to pay the balance sale consideration and get the sale deed in his favour. Of course, the plaintiff cannot rely on the latches on the part of defendant to succeed in his suit, but in the facts and circumstances involved in the case and by the conduct of the parties, it is clear that, if the time was the essence of the contract and plaintiff was not ready and willing to perform his part of the contract, the defendant ought to have issued any notice demanding the plaintiff to complete the sale, this is so because, the plaintiff was put to possession of the suit property and he is in possession of the same in part performance of the agreement of sale/Ex.P.2 and he had developed the same by investing huge amount. If really it is the plaintiff who evaded the execution of the sale deed by making default to make payment of balance sale consideration amount, the defendant ought to have issued notice rescinding the contractlEx.P.2. The absence of the defendant to issue such notice clearly indicates that it is the deceased original first defendant who evaded the execution of sale deed in furtherance of agreement of sale/Ex.P.2. The absence of the defendant to issue such notice clearly indicates that it is the deceased original first defendant who evaded the execution of sale deed in furtherance of agreement of sale/Ex.P.2. The circumstances of the case of clearly discloses that the plaintiff was financially well of to pay the balance sale consideration amount and he was ready and willing to perform his part of the contract under agreement/Ex.P.2, had the deceased original first defendant came forward to execute registered sale deed in his favour. Of course, there is some delay in approaching the Court of law by the plaintiff, seeking for the relief of specific performance of the agreement/Ex.P.2, but the same is within the time prescribed under the Limitation Act and the suit has been brought by the plaintiff within 3 years from the date of refusal of the deceased original defendant No.1 to executed registered sale deed in favour of the plaintiff. 12. Further, mere raise in the market value of the property by the lapse of time is not a ground to refuse specific performance in favour of the plaintiff. The delay caused only due to the fault of the deceased original first defendant. In this regard the Courts below have rightly held that since the plaintiff pay agreed rate of interest on the balance sale consideration amount, the above question does not arise for consideration. 13. Further, the balance of convenience is also lies much in favour of granting decree as prayed for by the plaintiff. It is the plaintiff who will be put to great hardship and irreparable loss if his prayer is not allowed, since he has been in continuous possession of the suit property and had developed the same by investing huge amounts which is evidenced from the materials placed on record by the plaintiffs. The Courts below have properly exercised discretion vested in them in decreeing the suit of the plaintiff and there is no illegality, incorrectness or arbitrariness in the same to interfere with the same. 14. Of course, it is vehemently argued by the Counsel for the appellant that there were no proper and specific issues framed by the trial Court as to the readiness and willingness of the plaintiff to complete the sale under agreement/Ex.P.2. 14. Of course, it is vehemently argued by the Counsel for the appellant that there were no proper and specific issues framed by the trial Court as to the readiness and willingness of the plaintiff to complete the sale under agreement/Ex.P.2. But from the materials placed on record it is clear that both the parties to the suit proceeded with the suit knowing fully well the case of the other party and have led all the material evidence before the Court in respect of all the issues which are necessary for the final disposal of the dispute between the parties, as such it is not fare on the part of the appellants to contend before this Court that there were no proper issues framed by the trial Court. Further by referring to various circumstances involved in the case it is extensively argued by the Counsel for the appellant that time was the essence of the contract and that the plaintiff was not ready and willing to perform his part of the contract, but for the reasons stated above the said contention of the appellant cannot be sustained. 15. It is further argued by the Counsel for the appellant that the prayer for specific performance of agreement was incorporated subsequent to filing of the suit, as per order of amendment dated 15.2.1984, thus it is claimed that the suit is barred by limitation. Admittedly, this objection has been raised for the first time in this appeal, the same has not been raised the trial Court at the time of allowing of plaintiff's application seeking for amendment of his prayer and his application came to be allowed without kept opening any objections as to limitation and even after amendment and adding of new relief, no issue regarding limitation came to be framed and defendants proceeded with the suit without raising any objections in this regard. As such, the said amendment allowed should be construed as having made from the date of filing of the suit. The question of limitation includes both question of fact law and the said question cannot be decided without bearing in mind the facts and circumstances involved in the suit and without framing any issue in that regard and permitting the parties to adduce evidence in support of their case. The question of limitation includes both question of fact law and the said question cannot be decided without bearing in mind the facts and circumstances involved in the suit and without framing any issue in that regard and permitting the parties to adduce evidence in support of their case. In the instant case, since the question regarding limitation is raised for the first time in this appeal, the same cannot be sustained and is accordingly rejected. 16. For the foregoing reasons, I do not find any illegality or incorrectness in the judgment and decree passed by the Courts below and there are no good grounds to interfere with the concurrent findings recorded by the Courts below, there were no justifiable reasons to refuse specific performance of contract to the plaintiff, no reasons have been shown by the appellants to refuse the decree in favour of the plaintiff. Both the Courts below have properly and legally exercised the discretion vested with them under Section 20 of the Specific Relief Act in decreeing the suit of the plaintiff and the same does not call for any interference. Hence this appeal fails and is accordingly dismissed. No costs.