ORDER 1. Plaintiff has assailed the judgment and decree passed by learned two Courts below, denying to grant decree of specific performance of contract. 2. In brief the suit of plaintiff is that the defendant Hiralal entered into an agreement of sale with plaintiff to sell his house, the description whereof is mentioned in para-1 of the plaint and which is the subject matter of the suit for a consideration of Rs. 12,000/- on 12.6.1988. On this date an amount of Rs. 6,000/- was obtained by him as advance money. Further it has been pleaded in paras 2 and 3 of the plaint that by the end of 9th November, 1986, the plaintiff shall pay the entire balance amount or it may be paid in installments. Eventually, on 15.7.1986, 22.8.1986 and on 5.10.1986, the plaintiff paid sum of Rs. 1000/-, 1000/- and Rs. 2000/- respectively to the defendant. Thus, out of entire consideration of Rs. 12,000/- he had already paid a sum of Rs. 10,000/- to him and only an amount of Rs. 2000/- is required to be paid. 3. Further the case of the plaintiff is that he was always ready and willing to pay a sum of Rs. 2000/- to defendant and even today (on the date of the filing of the suit) he is ready to pay the said balance amount of Rs. 2000/-. But the defendant is not willing to execute the sale deed in his favour. Resultantly, he sent notices by registered post to defendant on 20.10.1986, 3.11.1986, 6.12.1986, 15.1.1987 and 4.2.1987, but the defendant is not agreeing to execute the sale deed. Hence, a suit for specific performance of the contract has been filed by him. 4. The defendant denied the plaint averments by filing written-statement and denied the execution of document of agreement of sale and it has been pleaded by him that he never entered into an agreement of sale with the plaintiff. The factum of receiving any amount in advance or any further payment made by plaintiff on different dates towards sale consideration has also been denied by him. 5. In special plea it has been pleaded by the defendant that the suit is not maintainable because it is barred by Anusuchit Jati Tatha Anusuchit Jan Jati Rini Sahayata Adhiniyam, 1967 enacted by the State of Madhya Pradesh. 6. 5. In special plea it has been pleaded by the defendant that the suit is not maintainable because it is barred by Anusuchit Jati Tatha Anusuchit Jan Jati Rini Sahayata Adhiniyam, 1967 enacted by the State of Madhya Pradesh. 6. The learned trial Court on the basis of averments made in the plaint and denial in the written statement framed necessary issues and the parties thereafter adduced their evidence. The learned Trial Court at the time of passing of judgment came to hold that the execution of the document is proved and factum of receiving of sum of Rs. 10,000/- by the defendant from plaintiff is also proved, but did not grant a decree of specific performance of contract although a decree to return sum of Rs. 8,000/- has been passed. Accordingly, suit of the plaintiff was partially decreed. 7. Against the judgment and decree passed by the learned Trial Court for not granting the decree for specific performance of contract the plaintiff filed first appeal. However, the defendant did not file any cross appeal assailing the judgment and decree of learned trial Court passing a money decree against him nor filed any cross objections challenging the execution of agreement of sale which was found to be proved by the learned trial Court. Hence, the said finding of learned trial Court became final. 8. The learned first appellate Court dismissed the appeal of the plaintiff and in this manner this second appeal has been filed by him before this Court. 9. This Court on 7.10.1998 admitted this second appeal on the following substantial question of law :- “Whether the appellate Court erred in law in holding that the agreement for sale of the suit house was void being in contravention to sub-section (6) of section 165 of the Madhya Pradesh Land Revenue Code, 1959 even when the property in suit was not an agriculture land and the defendant was not a member of an aboriginal tribe.?” 10. Today one more substantial question of law has been framed which reads thus : “Whether the learned first appellate Court was obliged to give finding as to whether plaintiff was ready and willing to purchase the suit property?” Learned counsel for the parties are heard on both substantial question of law. 11. By putting deep dent on the finding of the learned first appellate Court, Ku. 11. By putting deep dent on the finding of the learned first appellate Court, Ku. Kriti Joshi, learned counsel appearing for the plaintiff-appellant submits that the decree of specific performance of contract has been denied by the learned first appellate Court on the ground that the defendant is a member of schedule caste community and, therefore, in view of sub section (6) of section 165 of Madhya Pradesh Land Revenue Code, 1959 (hereinafter’ the Act’), the agreement of sale is null and void. According to her if sub section (6) to section 165 is considered in its true spirit, it would become luminously clear that this provision is applicable only to aboriginal tribe declared by the State Government by notification. Hence, it has been put forth by the learned counsel that since there is no material on record in order to hold that the defendant is a member of aboriginal tribe, which has been notified by the State Government, the finding recorded by the learned first appellate Court applying this provision for defendant is wholly unwarranted under the law. 12. By canvassing the substantial question of law No. 2, it has been put forth by her that no finding has been recorded by the learned first appellate Court that the plaintiff was not ready and willing to purchase the suit property. According to learned counsel, the total sale price agreed between the parties is Rs. 12,000/- and near about 80% of the sale price Rs. 10,000/- has already been paid by the plaintiff to the defendant and if that would be the position, according to her, by no stretch of imagination, this can be said that the plaintiff was not ready and willing to purchase the suit property. Hence it has been prayed by her that by allowing this appeal, a decree for specific performance of contract be passed since plaintiff is ready and willing to purchase the suit property throughout and even today. 13. Combating the aforesaid submission put forth by the learned counsel for the appellant, Shri P.K. Sharma, learned counsel for the respondent, argued in support of the impugned judgment and submits that looking to the bar envisaged under sub section (6) to section 165 of the Code it was not necessary for the first appellate Court to decide the question of readiness and willingness. Further it has been submitted by him that looking to the condition embodied in the document that before 9th November 1986, the entire consideration was to be paid and because as per plaintiff’s own showing that an amount of Rs. 2,000/- is still required to be paid, rightly a decree of specific performance of contract was not passed. Hence, it has been prayed by the learned counsel for the respondent that this appeal is devoid of substance and the same be dismissed. 14. Having heard learned counsel for the parties, I am of the view that this appeal deserves to be allowed. Regarding substantial question of law No. 1. 15. On bare perusal of the written statement, nowhere it is gathered that the defendant is a member of aboriginal tribe, which has been notified by the State Government. Since, there is no pleading of defendant to this effect, applicability of bar as envisaged under sub-section (6) to section 165 does not arise. Since there is no pleading to this effect and no issue has been framed in that regard, and further when it was not the case of the defendant, according to me the learned first appellate Court cannot make out a case which was not pleaded in the written statement. In this context, I am profitable placed reliance on two decisions of the Supreme Court, they are C. Mackertich v. Steuart & Co. Ltd. AIR 1970 SC 839 and Siddu Venkappa Devadiga v. Smt. Rangu S. Devadiga and others AIR 1977 SC 890 . Since it is not the case of the defendant that he is member of aboriginal tribe, I am of the view that the learned First Appellate Court erred in law in dismissing plaintiff’s appeal. 16. On bare perusal of the pleadings of the parties and particularly, the pleadings of the defendant, no where it is gathered that the suit property is agriculture land. There is no evidence to this effect of either of the parties that the suit property is agriculture land. On the other hand, it is borne out from the pleadings as well as from evidence placed on record, that the suit property is situated in the vicinity of Municipal Corporation of Indore and because it is not agriculture land, section 165 (6) of the Code is not having any applicability on it. 17. On the other hand, it is borne out from the pleadings as well as from evidence placed on record, that the suit property is situated in the vicinity of Municipal Corporation of Indore and because it is not agriculture land, section 165 (6) of the Code is not having any applicability on it. 17. Substantial question No. 1 is thus answered that since it is not the case of the defendant that he is member of aboriginal tribe and further the suit property is not an agriculture land and is a house the said provision would not apply and the bar of section 165 (6) of the Code is not applicable and, therefore, the agreement of sale of the house was not void. Regarding substantial question of No. 2. 18. On bare perusal of the impugned judgment, it is gathered that the factum of readiness and willingness of plaintiff was not taken into account while deciding the appeal by the learned First Appellate Court. According to me, in a suit for specific performance of contract unless and until there is a finding of Court that the plaintiff is not ready and willing to purchase the suit property, the decree of specific performance of contract normally should not be denied. Having failed to give any finding on this point, the judgment of the learned first appellate Court in dismissing the appeal cannot be sustained. 19. It is pertinent to mention that against the judgment of learned trial Court holding that the execution of document has been proved and part consideration has also been received by the defendant, no cross-objections were filed by the defendant and, therefore, finding of the learned trial Court on those issues became final. 20. The substantial question No. 2 is thus answered that the learned first appellate Court erred in substantial error of law in not giving any finding about the readiness and willingness of the plaintiff to purchase the suit property while dismissing the appeal. 21. Resultantly, this appeal succeeds and is hereby allowed. The impugned judgment and decree passed by learned First Appellate Court is set aside and the case is sent back to the learned first appellate Court to pass a fresh decision in the appeal in terms of directions given herein above in this order. 22. Parties are directed to appear before the learned first appellate Court on 21st November, 2011. The impugned judgment and decree passed by learned First Appellate Court is set aside and the case is sent back to the learned first appellate Court to pass a fresh decision in the appeal in terms of directions given herein above in this order. 22. Parties are directed to appear before the learned first appellate Court on 21st November, 2011. No fresh notice shall be issued to either of the parties for this date. The learned first appellate Court shall pass a fresh judgment after hearing the parties. This Court hopes and trusts that before commencement of the winter vacation of this year, the learned First Appellate Court shall decide the appeal. 23. Since the judgment of the first appellate Court is being set aside and matter is remanded back court fee be refunded to appellant in terms of section 15 of the Court Fees Act. 24. This appeal is accordingly allowed with no order as to costs.