JUDGMENT T.P. Sharma, J. 1. By this second appeal filed under Section 100 of the Code of Civil Procedure, 1908 (for short 'CPC'), the Appellants have challenged the legality and propriety of the judgment and decree dated 27.2.1991 passed by the 1st Additional Sessions Judge, Raigarh, in Civil Appeal No. 9A/88, reversing the judgment and decree dated 8.4.88 passed of the 3rd Civil Judge Class-II, Raigarh, in Civil Suit No. 30A/86. 2. The present second appeal is admitted for consideration on the following substantial question of law: Whether in the facts and circumstances of the case, the first appellate Court committed error in law in holding that the Plaintiff had fully performed his part of the contract by paying more than the agreed consideration to deceased Govind singh ? 3. As per pleadings of the parties, original Defendant Govindsingh has entered into an agreement to sale his land admeasuring 13 decimal bearing khasra No. 5 situated at Mitthumoda, Raigarh on consideration of Rs. 3,000/-. Agreement was oral. In pursuant to the agreement, Rs. 200/- and Rs. 320/- was paid to Govindsingh vide Exs.P/1 and P/2. Rs. 50/- was directed as measurement charge and subsequently, Rs. 2500/- was paid in five installments of Rs. 500/- by Plaintiff Punidas. Possession was handed over by original Defendant to Plaintiff/Respondent No. 1 herein. Respondent No. 1 has requested for execution of documents, but Govindsingh had not executed any document. After serving notice, suit for specific performance of the contract was flied against Govindsingh by the Plaintiff/Respondent No. 1. By filing written statement, original Defendant Govindsingh has denied the contract, but has specifically pleaded that he has agreed to sale 0.02 decimal of the land bearing khasra No. 3 to Respondent No. 1 on consideration of Rs. 3000/- and has received Rs. 320/-. Respondent No. 1 has not paid balance amount, therefore, he is not entitled for specific performance of the contract relating to even khasra No. 3 area 0.02 decimal. 4. After providing opportunity of hearing to the parties, learned 3rd Civil Judge Class-II, Raigarh has dismissed the suit in favour of original Defendant Govindsingh. Same was challenged before the lower appellate Court and learned lower appellate Court by allowing the appeal has decreed the suit for specific performance of the contract in favour of the Plaintiff/Respondent No. 1. 5. 4. After providing opportunity of hearing to the parties, learned 3rd Civil Judge Class-II, Raigarh has dismissed the suit in favour of original Defendant Govindsingh. Same was challenged before the lower appellate Court and learned lower appellate Court by allowing the appeal has decreed the suit for specific performance of the contract in favour of the Plaintiff/Respondent No. 1. 5. I have heard learned Counsel for the parties, perused the judgment and decree impugned, judgment and decree of the trial Court and records of the Courts below. 6. Learned Counsel for the Appellants vehemently argued that the alleged contract was oral. Respondent No. 1 has filed two receipts Exs.P/1 and P/2 relating to payment of Rs. 200/- and Rs. 320/-, but he has not filed alleged five receipts of Rs. 500/-. When Govindsingh has issued two receipts, then why Respondent No. 1 has not obtained other five receipts for alleged payment of Rs. 2500/- and if Respondent No. 1 has paid full amount of consideration, then why he has mentioned the fact in Ex.P/4 that he is ready to pay remaining amount, especially alleging the fact that he has paid Rs. 320/- and five times Rs. 500/- i.e. Rs. 2500/- after deducting measurement charge of Rs. 50/-. This shows that Respondent No. 1 has not paid full amount and has not paid Rs. 2500/-. He has not entered into an agreement with Govindsingh relating to khasra No. 5 area 13 decimal, but has entered into an agreement relating to khasra No. 3 area 0.02 decimal. The lower appellate Court has not considered the aforesaid evidence and thereby committed illegality. 7. Learned Counsel placed reliance in the matter of Mrs. Sandhya Rani Sarkar v. Smt. Sudha Rani Debi and Ors. AIR 1978 SC 537, in which the Supreme Court has held that inordinate delay on the part of the Plaintiff to perform the part, decree for specific performance is liable to be refused. Learned Counsel further placed reliance in the matter of Pushparani S. Sundaram and Ors. v. Pauline Manomani James (deceased) and Ors. (2002) 9 SCC 582, in which the Supreme Court has held that the Plaintiff is required to prove that he is ready and willing to perform and has performed his part of the contract. 8. Learned Counsel further placed reliance in the matter of Pushparani S. Sundaram and Ors. v. Pauline Manomani James (deceased) and Ors. (2002) 9 SCC 582, in which the Supreme Court has held that the Plaintiff is required to prove that he is ready and willing to perform and has performed his part of the contract. 8. On the other hand, learned Counsel for Respondent No. 1 opposed the appeal and argued that Respondent No. 1 has entered into an oral agreement to purchase khasra No. 5 area 13 decimal, he has paid Rs. 200/-, Rs. 320/- and Rs. 2500/- in five installments of Rs. 500/- and deducted Rs. 50/- as measurement charge. He has paid the amount of more than agreed amount. Learned Counsel further argued that original Defendant Govindsingh has parted the possession of the suit property to Respondent No. 1 and Respondent No. 1 is in possession of the suit property since 1984. Original Defendant Govindsingh has filed the petition for recovery of possession before the revenue Court, but the same has been dismissed. Appeal was also dismissed on the ground that present Respondent No. 1 is in possession of the suit property on the basis of agreement and has paid full amount of consideration. Learned lower appellate Court has rightly decreed the suit and has not committed any illegality. 9. As per pleadings and evidence of the parties, the Plaintiff/Respondent No. 1 has pleaded the payment of Rs. 320/-, deduction of Rs. 50/- and payment of Rs. 2500/- in five installments, total Rs. 2870/-. He has amended his plaint and has made allegation relating to payment of Rs. 200/-. The Plaintiff has also pleaded that possession was delivered by Govindsingh and he is in possession over the suit property. 10. Both the parties have not disputed that Respondent No. 1 is in possession of the suit property since 1984. Original Defendant Govindsingh has filed the application before the revenue Court for possession, but the same has been dismissed by the revenue Court on the ground that Respondent No. 1 is in possession of the suit property on the basis of specific performance of the contract and he has paid the amount to original Defendant Govindsingh. Original Defendant Govindsingh has denied receipts of Rs. 200/- and Rs. 2500/- in his pleading and evidence. Original Defendant Govindsingh has denied receipts of Rs. 200/- and Rs. 2500/- in his pleading and evidence. While examining himself as Plaintiff Respondent No. 1 Punidas has specifically deposed that he has paid Rs. 200/- and Rs. 320/- vide Exs.P/1 and P/2 and claim deduction of Rs. 50/- for measurement. He has also deposed that he has paid Rs. 2500/- in five installments of Rs. 500/-. Govindsingh (DW-1) has denied receipts and has admitted that he has only received Rs. 320/-, although he has admitted in para 12 of his cross-examination that he has written and executed the document Ex.P/1 which contents the receipt of Rs. 200/-. Definitely, Ex.P/4, the alleged notice given by Punidas to Govindsingh reveals that within three days of receipt of notice, Govindsingh shall execute sale deed after receiving remaining amount of consideration. It shows that some amount was due at the time of issuance of notice, although as per pleading and evidence, No. amount was due, inter alia, Respondent No. 1 had paid Rs. 70/- in excess. 11. From perusal of the plaint, written statement, receipts Exs.P/1 and P/2, notice Ex.P/4 and evidence of the parties, it reveals that the Plaintiff/ Respondent No. 1 has alleged that he has paid Rs. 320/- and deducted Rs. 50/-. He has paid Rs. 2500/- in five installments, whereby he has paid Rs. 2870/-. Same thing find place in Ex.P/4. Rs. 130/- was remained for payment. Ex.P/4 reveals that Respondent No. 1 has given notice to original Defendant Govindsingh for execution of sale deed after receiving remaining payment of Rs. 130/- which was due as per Ex.P/4, but subsequently plaint was amended and payment of Rs. 200/- was also pleaded. Same was denied by original Defendant Govindsingh, but has admitted that he has written and signed Ex.P/1 relating to receipt of Rs. 200/-. He has not explained that whether he has not received Rs. 200/- and has prepared Ex.P/1 without receiving any amount or the aforesaid amount is not related to this transaction. 12. In the absence of this fact, the only presumption would be possible that Respondent No. 1 has paid Rs. 320/- and also Rs. 200/- vide Exs.P/1 and P/2 to original Defendant Govindsingh, but original Defendant Govindsingh had denied the receipt of Rs. 200/-. Contract was oral. As per evidence of Respondent No. 1, possession was parted to him. He has paid Rs. 320/- and also Rs. 200/- vide Exs.P/1 and P/2 to original Defendant Govindsingh, but original Defendant Govindsingh had denied the receipt of Rs. 200/-. Contract was oral. As per evidence of Respondent No. 1, possession was parted to him. He has paid Rs. 2500/- in five installments which original Defendant Govindsingh has denied but has mentioned that fact in Ex.P/4 notice issued to Govindsingh prior to filing of the suit. This fact also find place in revenue Court's judgment. In plaint filed by Respondent No. 1, Govindsingh has denied the receipt of Rs. 2500/-. He has also denied receiving of Rs. 200/-, although he has admitted the issuance of receipt of Ex.P/1 which shows that Govindsingh has tried to deny the receipt of payment of consideration even relating to payment of Rs. 200/- vide Ex.P/1. 13. In these circumstances, evidence adduced on behalf of Respondent No. 1/Plaintiff appears to be more reasonable and probable against the evidence of denial of original Defendant Govindsingh. Learned lower appellate Court has rightly accepted the evidence relating to payment of consideration on behalf of Respondent No. 1. Excess payment and factum of less payment mentioned in Ex.P/4 is well explained. Respondent No. 1 is in possession of the suit property on the basis of agreement of the contract to sale since 1984. Preset Appellants or their predecessor-in-title Govindsingh had not filed any suit for possession or other suit relating to claim over the property. In these circumstances, the only presumption would be possible that the Plaintiff/Respondent No. 1 has fully performed his part and has paid the amount more than the agreed consideration. 14. As held by the Supreme Court in the matter of Mrs. Sandhya Rani Sarkar AIR 1978 SC 537, Respondent No. 1 has not caused any delay in performing his part. 15. As held by the Supreme Court in the matter of Pushparani S. Sundaram and Ors. (2002) 9 SCC 582, the Plaintiff was ready and willing to perform and has performed his part and he is in possession on the basis of performance of his part of the contract. 16. Consequently, substantial question of law No. 1 is decided as negative. On the basis of decision on the substantial question of law formulated for the decision of the appeal, I do not find any substance in the appeal. 16. Consequently, substantial question of law No. 1 is decided as negative. On the basis of decision on the substantial question of law formulated for the decision of the appeal, I do not find any substance in the appeal. The appeal being without substance is liable to be dismissed and it is hereby dismissed. The parties shall bear their own cost. 17. Advocate fee as per schedule. 18. A decree be drawn accordingly.