JUDGMENT G.S. Solanki, J. 1. Being aggrieved by the judgment and decree dated 11.02.2005, passed by District Judge, Seoni, in civil suit No. 3-A/01, Defendant/Appellant has preferred this appeal under Section 96 of Code of Civil Procedure 2. In short the Plaintiff/Respondent's case is that the Defendant/Appellant owing a shop in Seoni city which is situated in Block No. 49, Plot No. 209/5, area of 15.5" X 14" pakka construction along with the open plot of 12.5"X17.5" adjoining to backside of the shop, aforesaid shop and plot hereinafter to be referred as disputed property. 3. According to Plaintiff/Respondent, Defendant/Appellant executed an agreement to sale of disputed property on 21.06.2000 vide Ex. P/1 for the amount of Rs. 1,48,500/-, out of which Rs. 48,500/-was taken as an advance. As per terms of the agreement rest amount of Rs. 15,000/-will be paid on Dipawali, 2000 and the balance of Rs. 85,000/-to be paid up to 8.3.2001. Thereafter Defendant/Appellant will execute the registered sale deed in favour of Plaintiff/Respondent. 4. It was further pleaded that Defendant/Appellant had taken Rs. 5000/-on 18.7.2000 and Rs. 15,000/-on 13.10.2000, total Rs. 20,000/-as per terms of agreement and receipt has been endorsed on the back side of Ex. P-1. According to Plaintiff/Respondent in the month of January-February, 2001 he requested the Defendant/Appellant to execute the sale deed after receiving the remaining amount of Rs. 80,000/-but Defendant/Appellant avoided the execution of sale deed. Hence, Plaintiff/Respondent sent a registered notice on 20.02.2001, informing Defendant/Appellant that, he may after receiving the balance amount Rs. 80,000/- execute the sale deed on or before 8.3.2001. 5. Defendant/Appellant in his reply raised the objection in regard to size of the plot as well as he pleaded that Plaintiff/Respondent failed to pay the remaining amount of the agreement, therefore, due to non compliance of terms of agreement to sale, same become void. 6. Defendant/Appellant's case in short is that disputed property is an ancestral property and he is not sole owner of the disputed property. According to Defendant/Appellant there is share of her mother and son in the disputed property therefore he had no right to sale the whole disputed property. He further pleaded that Plaintiff/Respondent indulge in money landing that too, without license. According to Defendant/Appellant he taken the loan from the Plaintiff/Respondent and Ex. P/1 was executed for the purpose of security of loan of Rs. He further pleaded that Plaintiff/Respondent indulge in money landing that too, without license. According to Defendant/Appellant he taken the loan from the Plaintiff/Respondent and Ex. P/1 was executed for the purpose of security of loan of Rs. 50,000/- only, therefore he prays for setting aside impugned judgment and decree. 7. Learned trial court after framing the issues and on appraisal of evidence on record decreed the suit as mentioned herein above. Hence, this appeal. 8. Learned Counsel for the Appellant submitted that trial court committed error in not appreciating the evidence on record in its proper perspective. He further contended that the said agreement was only for the purpose of collateral security for loan transaction. He further contended that trial court committed error in assessing the readiness and willingness on the part of the Plaintiff/Respondent. He further contended that disputed property is ancestral property in which share of other coparcener is existed therefore no decree for specific performance of contract can be passed. He lastly contended that learned trial court ought to have use the discretion under Section 20 of the Specific Relief Act, not to decree the suit for specific performance. 9. On the contrary learned Counsel for the Respondent contended that Plaintiff/Respondent was ready and willing to perform his part of contract and Defendant/Appellant failed to perform his part and in this way he supported the impugned judgment and decree passed by the trial court and prays for dismissal of the appeal. 10. I have perused the impugned judgment, evidence and other materials on record and considered the rival contention of the parties. 11. Plaintiff Narayn Singh Thakur(P.W.1) deposed that Defendant/Appellant Dadu Kaushalendra Nath Singh(DW-1) entered into the contract to sale of disputed property in the month of June, 2000 and executed agreement to sale Ex. P-1 in the presence of Komal Prasad Kashyap(PW-2) and one other Ramkishore in the sum of Rs. 1,48,500/- and he taken the earnest money of Rs. 48,500/-. This fact is duly supported by the evidence of Komal Prasad Kashyap (PW-2). 12. Defendant/Appellant Dadu Kaushalendra Nath Singh himself admitted the signature on Ex. P-1 as well as he further admitted receiving of Rs. 48,500/- in cash on the date of execution of Ex. P-1. In these circumstances execution of Ex. P-1 is duly proved. Defendant/Appellant Dadu Kaushalendra Nath Singh is illiterate person therefore it can not be presumed to have signed the Ex. P-1 as well as he further admitted receiving of Rs. 48,500/- in cash on the date of execution of Ex. P-1. In these circumstances execution of Ex. P-1 is duly proved. Defendant/Appellant Dadu Kaushalendra Nath Singh is illiterate person therefore it can not be presumed to have signed the Ex. P-1 without reading the recital of the document. 13. Defendant/Appellant pleaded in paras 2,4 and additional plea (para 1) of his written statement that he took the loan for the need of agriculture because his crops were damaged and he was in need of money. Contrary to this pleading he adduced the evidence that he took the loan for education of his son who was taking coaching of IIT at Kota, Rajasthan. 14. Defendant witnesses Balram Singh (DW-2) and Ranjeet Singh(DW-3) also deposed that loan was taken for the education of son of Defendant/Appellant. In these circumstances, pleading and proof are not consistent. The fact of taking the loan for education purpose was not pleaded, and evidence without pleading can not be read as evidence. It is well established principle of law that decision of the case can not be based on outside the pleading. It is the case pleaded, that has to be found. 15. Learned Counsel for the Appellant placed reliance on Note No. 115, Bhagwan Singh v. Ramprasad 1993 MPWN 2 But in that case there was ample evidence on record in regard to loan transaction, that father of Plaintiff admitted the truthfulness of loan transaction before Panchayat and was willing to take the earnest money which was paid as an advance, in that fact situation this Court was of the view that the transaction was the loan transaction. Such circumstances are not available in case in hand, therefore principles laid down in Bhagwan Singh (supra) is not applicable to the fact of this case, in these circumstances Defendant failed to prove the fact that it was a loan transaction. 16. Nest question has been raised by learned Counsel for the Appellant that trial court committed error in assessing the readiness and willingness on the part of Plaintiff/Respondent. He further contended that Plaintiff/Respondent failed to prove his readiness and willingness to perform his part of contract. He placed reliance on Bal Krishna and Anr. v. Bhagwan Das (dead) by L.Rs and Ors. He further contended that Plaintiff/Respondent failed to prove his readiness and willingness to perform his part of contract. He placed reliance on Bal Krishna and Anr. v. Bhagwan Das (dead) by L.Rs and Ors. (2008) 12 SCC 145, His Holiness Acharya Swami Ganesh Dassji v. Shri Sitaram Thapar AIR 1996 SC 2095 and Pukhraj D. Jain v. G. Gopalakrishna. AIR 2004 SC 3504 17. On perusal of aforementioned authorities despite the different facts of the cases, the Hon'ble Apex Court laid down the principle that in a case of specific performance Plaintiff must not only plead readiness and willingness to perform the contract but also prove the same to perform the essential terms of the contract. 18. In above said context I shall now examine the pleading and evidence of Plaintiff in regard to readiness and willingness to perform the contract. On perusal of plaint it reveals that Plaintiff specifically pleaded his case in para Nos. 6 and 7 of his plaint in regard to readiness and willingness that he repeatedly made oral request to Defendant, as to the affect that he execute sale deed, after receiving balance amount Rs. 80,000/-but Defendant/Appellant avoided the execution of sale deed. Then he sent a legal notice on 20.02.2001 and call upon the Defendant/Appellant to take the remaining amount of Rs. 80,000/-and execute the sale deed on or before 8.3.2001. 19. Narayan Singh Thakur(P.W.-1) deposed he gave a notice through his counsel on 20th June, 2001, copy of that notice is Ex. P-2. Defendant/Appellant sent reply of this notice which is Ex. P-7. He further deposed that he took voluntary retirement from the service of Junior Auditor to arrange the balance amount, to pay Appellant/Defendant and to perform his part of contract. He further deposes that he repeatedly made request to Defendant for execution of sale deed, according to him witnesses are also made aware of this fact. He further stated that he filed an application in the office of Registrar Ex. P/5, and Ex. P/6 is receipt thereof. 20. Now I am appreciating evidence regarding readiness and willingness on the part of Plaintiff. Readiness means capacity of Plaintiff to perform contract which includes his financial position to pay the purchase price. For determining his willingness to perform the contract, the conduct of Plaintiff has to be properly scrutinized. P/5, and Ex. P/6 is receipt thereof. 20. Now I am appreciating evidence regarding readiness and willingness on the part of Plaintiff. Readiness means capacity of Plaintiff to perform contract which includes his financial position to pay the purchase price. For determining his willingness to perform the contract, the conduct of Plaintiff has to be properly scrutinized. As per plaint averments Plaintiff failed to plead fact, in regard to his readiness or his financial position to pay balance amount of purchase price. He stated that he took the voluntary retirement from his department to fulfill the remaining part of contract. This fact did not find place in his pleading. More over this fact also not find place in his notice Ex. P-2 despite the fact that he retired before issuing the notice Ex. P-2. In these circumstances, he took the retirement to arrange the amount for performance of his part appears to be after thought. 21. On perusal of Ex. P-2 it reveals that Plaintiff/Respondent only informed Defendant/Appellant that he has arranged the balance amount but how he arranged and how much he has in his hand it was not specifically written in notice Ex. P-2 as well as in plaint. Same thing was found in his statement he only deposed that he took the voluntary retirement for arranging balance amount to purchase disputed shop, but he did not say that how much amount he got from his voluntary retirement. If he got the amount, that could have been pleaded or deposed that how much amount he got from his voluntary retirement but he failed to plead and deposed this particular fact. In these circumstances, amount was ready with him can not be said to be proved. 22. Although Plaintiff/Respondent pleaded that he requested the Defendant/Appellant to execute sale deed before issue of notice Ex. P-2 but this fact is denied by Defendant/Appellant. As per Appellant, he apprised his witnesses regarding this fact but none of the witnesses supported him, hence this fact remained unproved. 23. As regard to application Ex. P-5 Plaintiff/Respondent deposed that he filed Ex. P-5 in the office of Registrar and copy of receipt Ex. P-6 but he admitted that he filed this objection in regard to the fact that Appellant should not register the disputed property to any other person. 23. As regard to application Ex. P-5 Plaintiff/Respondent deposed that he filed Ex. P-5 in the office of Registrar and copy of receipt Ex. P-6 but he admitted that he filed this objection in regard to the fact that Appellant should not register the disputed property to any other person. He further admitted that Defendant/Appellant did not execute any agreement to sale to any other person. 24. In these circumstances, application Ex. P-5 is a document which was prepared only to show the readiness. But in this document also, how much amount was in the possession of Plaintiff on 8.3.2001 was not specifically mentioned. In these circumstances, Plaintiff/Respondent failed to produce the documentary evidence regarding funds to pay the balance consideration and trial court failed to appreciate this fact and committed error in recording the finding that Plaintiff took voluntary retirement to arrange the fund to perform his part of contract. 25. Learned Counsel for the Respondent submitted that Plaintiff pleaded his readiness and willingness to perform the contract as well as he proved the same. He relied on Surya Narain Upadhyaya v. Ram Roop Pandey and Ors. AIR 1994 SC 105 but the facts of Suryanarayan case (supra) was different and in that case Plaintiff specifically pleaded his readiness and willingness as well as he deposited the remaining balance amount Rs. 9,000/-within the stipulated time, which shows that Plaintiff had the capacity to pay the balance consideration, but in instant case there is not such pleading and proof that Plaintiff had the balance amount, in his hand or in his account, therefore the principles laid down in the aforementioned authority is not applicable to this case. 26. As regard to the fact that Defendant was competent to execute sale deed or not ? I perused the evidence of Defendant/Appellant Dadu Kaushalendra Nath Singh and evidence of Plaintiff/Respondent and documents Ex. 12-A,13-A, sale deed which was executed by Defendant/Appellant as well as revenue records Ex. P-9,P-10 and P-11 which show that Defendant/Appellant Dadu Kaushalendra Nath Singh is title holder of disputed property and he was competent to execute the sale deed therefore the conclusion of trial court in this regard can not be said to be perverse. 27. 12-A,13-A, sale deed which was executed by Defendant/Appellant as well as revenue records Ex. P-9,P-10 and P-11 which show that Defendant/Appellant Dadu Kaushalendra Nath Singh is title holder of disputed property and he was competent to execute the sale deed therefore the conclusion of trial court in this regard can not be said to be perverse. 27. In view of the aforementioned discussion, I find that Plaintiff/Respondent remained unable to plead and prove his readiness and willingness to perform remaining part of the contract and trial court committed error in appreciating the evidence on record in its proper perspective. 28. In these circumstances, appeal is partly allowed and decree passed for specific performance of disputed property is hereby set aside and suit for specific performance of contract is hereby dismissed. However, Defendant/Appellant is bound to refund the amount of Rs. 48,500/-+ Rs. 20,000/-, total Rs. 68,500/-with simple interest at the rate of 6% per annum from the date of receiving the amount. 29. Parties are directed to bear their own cost. 30. Counsel fee's as per schedule or certificate (which ever is less). 31. Decree be drawn accordingly.