JUDGMENT/ORDER : Sanjay S. Agrawal, J. 1. This appeal has been preferred by the Plaintiff under Section 96 of the Code of Civil Procedure, 1908 (hereinafter referred to as the 'CPC') questioning the legality and propriety of the judgment and decree dated 02.04.2014 passed by Second Additional District Judge, Balod, District Balod (C.G.) in Civil Suit No.09-A/2013, whereby the learned trial Court has dismissed the Plaintiff's claim for specific performance of contract. The parties to this appeal shall be referred hereinafter as per their description before the Court below. 2. The facts, which are essential to be stated for adjudication of this appeal, are that a claim for specific performance of contract was made by the Plaintiff by submitting, inter alia, that Defendant No.1 has agreed to alienate the land in question bearing Khasra No.621/2 admeasuring 1.75 acres in his favour under an agreement to sale dated 18.12.2010 for a consideration of Rs.50,00,000/- upon receiving an earnest amount of Rs.25,000/-. According to the Plaintiff, a cheque bearing No.803619 of State Bank of India for Rs.2,75,000/- was issued by him on 21.12.2010 as per the terms and conditions stipulated therein and which was received by the said Defendant and the registered deed of sale was to be executed by or before 31.05.2011 upon receiving the balance amount of Rs.47,00,000/- in cash. However, despite receiving the said cheque, it was not executed and instead the said Defendant was trying to alienate the land in question to someone else, therefore, he got the paper notice published in daily newspaper “Nayi Duniya” on 29.12.2010 and issued a notice to the concerned Patwari and Deputy Registrar on 05.01.2011 with a request for not to get the sale deed registered in favour of anyone else in respect of the property in question. It is pleaded further by way of amendment that the actual area of the property available on the spot is 1.25 acres (0.507 hectare) instead of 1.75 acres and he is still ready to get the same in the said rate agreed by him upon the alleged agreement. It is pleaded further that when the said Defendant has failed to execute the registered deed of sale despite the issuance of notice dated 23.05.2011, the Plaintiff has been constrained to institute the suit in the instant nature, instituted on 23.06.2011. 3. It is pleaded further that when the said Defendant has failed to execute the registered deed of sale despite the issuance of notice dated 23.05.2011, the Plaintiff has been constrained to institute the suit in the instant nature, instituted on 23.06.2011. 3. While denying the aforesaid claim, it is pleaded by Defendant No.1 that since he is not the owner of the property in question, i.e., Khasra No.621/2 admeasuring 1.75 acres and has never agreed to alienate the same, therefore, no agreement as such was executed by him and the Plaintiff, while suppressing the material facts in this regard, has obtained the alleged agreement to sale by playing fraud upon him and in so far as the land in question bearing Khasra No.621/2 admeasuring 1.25 acres is concerned, the same is, however, the ancestral property and he alone is not the owner of it. It is contested further on the ground that the amounts were required to be paid by cash according to the terms and conditions of the alleged agreement, therefore, issuance of alleged cheque dated 21.12.2010 instead of depositing the said amount of Rs.2,75,000/- by cash has frustrated the alleged agreement and the Plaintiff has, thus, failed to perform his part of the contract and would, therefore, be not entitled to get the decree for specific performance of contract based upon the alleged agreement to sale. 4. The trial Court, after considering the evidence led by the parties, arrived at a conclusion that Defendant No.1 has executed the alleged agreement to sale dated 18.12.2010 agreeing to alienate the land in question bearing Khasra No.621/2 admeasuring 1.75 acres to the Plaintiff. It held further that the Plaintiff has tendered the alleged cheque to Defendant No.1 and was found to be ready and willing to perform his part of the contract. It held further, while entertaining Issue Nos. 5 & 6, that the said Defendant was not competent to transfer the suit property as the same was the ancestral property, and therefore, the Plaintiff is not entitled to get the sale deed executed in his favour. As a consequence of it, the suit for specific performance of contract has been dismissed which has been questioned by way of preferring this appeal. 5. As a consequence of it, the suit for specific performance of contract has been dismissed which has been questioned by way of preferring this appeal. 5. Learned counsel appearing for the Appellant/Plaintiff submits that the finding of the Court below holding that Defendant No.1 was not competent to execute the registered deed of sale is apparently contrary to law. It is contended further that the Court below ought to have granted a decree of specific performance of contract to the extent of the share of the said Defendant. Having failed to do so, the Court below has committed an illegality in dismissing the Plaintiff's entire claim. 6. On the other hand, learned counsel appearing for Respondent/Defendant No.1 submits that although the finding as recorded by the trial Court holding that the Plaintiff is ready and willing to perform his part of the contract as per the terms and conditions stipulated in the alleged agreement, but the same is, however, contrary to the materials available on record. It, however, ought to have seen and held that he was never ready and willing to perform his part of the contract as he failed to make the part payment of Rs.2,75,000/- by cash on 21.12.2010, and therefore, the claim of him ought to have been dismissed on this ground as well. 7. We have heard learned counsel for the parties and perused the entire record carefully. 8. The questions which arise for determination in this appeal are: “'i' Whether the finding of the Court below holding that the Plaintiff was ready and willing to perform his part of the contract, is perverse? 'ii' (a) Whether the trial Court, despite upholding the readiness and willingness of the Plaintiff, was justified in refusing to grant a decree for specific performance of contract on finding that Defendant No.1 was not competent to transfer the land in question? and/or, (b) Whether, under the facts and circumstances of the case, the Court below ought to have granted a decree for specific performance of contract to the extent of his (Defendant No.1) share over the land in question?” Determination of question (i): 9. and/or, (b) Whether, under the facts and circumstances of the case, the Court below ought to have granted a decree for specific performance of contract to the extent of his (Defendant No.1) share over the land in question?” Determination of question (i): 9. In order to consider the aforesaid question, it is necessary to examine the terms and conditions stipulated in the alleged agreement to sale (Ex.P.1) dated 18.12.2010, which read as under: bdjkjukek ÁFke i{kdkj@foØsrk nqxkZjke lkgw vkŒ >hVwjke lkgw] tkfr rsyh vk;q djhc 55 o"kZ] lkfdu okMZ uEcj 5 ikaMsikjk ckyksn] rglhy ckyksn] ftyk nqxZ ¼NŒxŒ½ f}rh; i{kdkj@Øsrk nsohpan th pksiM+k vkŒ LoŒ cuspan pksiM+k ¼tSu½ vk;q djhc 55 o"kZ] fuoklh LVs'ku jksM+ ckyksn rglhy ckyksn] ftyk nqxZ ¼NŒxŒ½ esjs ¼ÁFke i{kdkj½ uke [kkrs] dCts ,oa iw.kZ gd] vf/kdkj esa LVsfM;e ds ikl ckyksn] ftyk nqxZ esa fLFkr d`f"k&Hkwfe [kljk uEcj 621@2 jdck 1-75 ,dM+ HkwfeLokeh gd esa fLFkr gS] tks iw.kZr% ikd&lkQ] fufoZokfnr ,oa lHkh Ádkj ds Hkkjksa@vf/kHkkjksa ls eqDr gSA mDr Hkwfe dks :i;ksa dh vko';drk gksus ij vkt fnukad 18-12-2010 dks f}rh; i{kdkj@Øsrk ds ikl gj⩾'kk ds fy, ,deq'r 50]00]000 ¼ipkl yk[k :i;s½ esa foØ;&lkSnk dj crkSj c;kuk 25]000@& ¼iPphl gtkj :i;s½ xokgksa ds le{k f}rh; i{kdkj@Øsrk ls uxn ÁkIr dj fy;k gaw rFkk 2]75]000@& ¼nks yk[k ipgRrj gtkj :i;s½ fnukad 21-12-2010 dks Øsrk ls ÁkIr d:axk rFkk lkSns dh 'ks"k jkf'k vkxkeh fnukad 31-05-2011 rd f}rh; i{kdkj@Øsrk ls uxn ÁkIr dj jftLVªhdj.k dk;kZy; esa mifLFkr gksdj mlds i{k esa ;k mlds crk, eqrkfcd vU; ds i{k esa foØ; iath;u dj nwaxk] blesa fdlh Hkh Ádkj ls dksbZ pwd ugha d:axkA ;fn eSa lkSns dh 'ks"k jkf'k ÁkIr dj f}rh; i{kdkj@Øsrk ds i{k esa fcØhr Hkwfe dh foØ;&iathu djus esa fdlh Ádkj ls dksbZ vfu;furrk] ghyk&gokyk vFkok badkj d:axk] rks f}rh; i{kdkj@Øsrk esjs fo:} vko';d dkuwuh dk;Zokgh dj fcØhr Hkwfe dk vius i{k esa foØ;&iathu djk ldsxk] ftldh laiw.kZ gtsZ&[kpsZ dh tokcnkjh@nsunkjh ,oa nkf;Ro esjh gksxhA esjs vuqifLFkfr esa esjs xkS=t@larku nkf;Rok/khu jgsaxsA jftLVªh&cSukek ds le; mijksDr fcØhr Hkwfe ls lacaf/kr ,tsaV Jh dey iuikfy;k] fuoklh ckyksn] ftyk nqxZ ¼NŒxŒ½ dks ge nksuksa i{kdkj fu/kkZfjr deh'ku vnk djsaxsA vr% vkt fnukad 18-12-2010 dks eSa vius iw.kZ gks'kksgok'k esa lksp≤>dj] i&#2338dj] lgh Lohdkj] fcuk fdlh Mj] ncko ;k ykyp ds LosPN;k xokgksa ds le{k viuk gLrk{kj dj f}rh; i{kdkj@Øsrk ds i{k esa ;g bdjkjukek nLrkost fu"ikfnr dj fn;k gaw rkfd lun jgs ,oa t:jr ij dke vkosA ÁFke i{kdkj@foØsrk ¼nqxkZjke lkgw½ f}rh; i{kdkj@Øsrk ¼nsohpan th pksiM+k½ xokg%& 1- gLrk{kj--------------------------------------------- uke-------------------------------------------------------- irk-------------------------------------------------------- 2- gLrk{kj--------------------------------------------- uke-------------------------------------------------------- irk-------------------------------------------------------- 10. From perusal of the aforesaid agreement, it appears that it was executed by Defendant No.1 in favour of the Plaintiff agreeing to alienate the land in question as described therein for a consideration of Rs.50,00,000/- upon receiving an earnest amount of Rs.25,000/- on 18.12.2010 in presence of the two witnesses. According to the terms and conditions as stipulated therein, a sum of Rs.2,75,000/- was to be paid by the purchaser to the said Defendant on 21.12.2010 and the rest of the sale consideration was to be made by him at the time of its registration which is required to be registered by 31.05.2011. 11. According to the Plaintiff, as reflected from the plaint para 3, a cheque bearing No.803619 for Rs.2,75,000/- of the State Bank of India was given to the said Defendant on 21.12.2010, which was received by him. It, however, appears that the Plaintiff, in a clever manner, has pleaded that the alleged cheque dated 21.12.2010 was given to him, however, it was deliberately not stated that on which date it was given to him. It appears from para 13 of his (PW1) cross-examination that it was in fact tendered to him. Meaning thereby if the alleged cheque was presented by the said Defendant, he would be able to get the withdrawal of said amount of Rs.2,75,000/- only subsequent to the said date, i.e., 21.12.2010 and not on the said day itself. However, according to the alleged agreement, it was to be paid by him on 21.12.2010 and a bare perusal of it would show further that it was not required to be given by a cheque. It, thus, appears that the Plaintiff on his own even in absence of any terms and conditions of the alleged agreement for making the said amount by cheque, has deliberately tendered the alleged cheque. 12. Be that as it may, the burden to establish the fact that he was ready and willing to perform his part of the contract is upon him. However, I do not find any materials on record as to when the alleged cheque was given to the said Defendant though the said part payment of Rs.2,75,000/- was to be paid by him on 21.12.2010. Even the copy of the said cheque has not been placed on record. However, I do not find any materials on record as to when the alleged cheque was given to the said Defendant though the said part payment of Rs.2,75,000/- was to be paid by him on 21.12.2010. Even the copy of the said cheque has not been placed on record. It appears that the alleged cheque was tendered by the Plaintiff, which was in possession of Defendant No.1, but despite that, no effort whatsoever was made by him for the production of the alleged cheque on record as per the provision prescribed under Order 12 Rule 8 of CPC. The object of the said provision is to facilitate the Plaintiff or any other party to get the document on record which is not in their possession or in possession of the other party. Having failed to exercise the said provision in order to get the said document on record, in order to establish the fact that he was ready and willing to perform his part of the contract, it is difficult to hold that the alleged part payment was made by him on 21.12.2010 as required to be made mandatorily under the alleged agreement to sale dated 18.12.2010 (Ex.P.1). 13. Readiness and willingness is the sine qua non for obtaining the decree for specific performance of contract as required under clause (c) of Section 16 of the Specific Relief Act, 1963. Readiness and willingness of parties to perform their part of contract will have to be adjudged in the context of the agreement executed between the parties. 14. It is to be noted at this juncture that the essential question to be addressed to by the Court, under such circumstances, has always been as to whether, by taking the pleading and the evidence on record as a whole, the Plaintiff has established that he has performed his part of the contract or has always been ready and willing to do so. In this regard, it would be suffice to refer the principles enunciated by the Supreme Court in the matter of Umabai and another vs. Nilkanth Dhondiba Chavan (Dead) by Lrs. and another reported in (2005) 6 SCC 243 , wherein it has been held at paragraph 30 as under:- 30. In this regard, it would be suffice to refer the principles enunciated by the Supreme Court in the matter of Umabai and another vs. Nilkanth Dhondiba Chavan (Dead) by Lrs. and another reported in (2005) 6 SCC 243 , wherein it has been held at paragraph 30 as under:- 30. It is now well settled that the conduct of the parties, with a view to arrive at a finding as to whether the plaintiff-respondents were all along and still are ready and willing to perform their part of contract as is mandatorily required under Section 16(c) of the Specific Relief Act must be determined having regard to the entire attending circumstances. A bare averment in the plaint or a statement made in the examination in-chief would not suffice. The conduct of the plaintiff respondents must be judged having regard to the entirety of the pleadings as also the evidences brought on records. 15. Considering the facts and circumstances of the case, considering further the terms and conditions as stipulated in the alleged agreement to sale dated 18.12.2010, in the light of the principles laid down by the Supreme Court in the above mentioned case, it cannot be said that the Plaintiff has succeeded to establish the fact that he was always ready and willing to perform his part of the contract. The finding of the Court below while determining issue No.2 holding that it was tendered on 21.12.2010 deserves to be and is hereby set aside. The Plaintiff, thus, failed to perform his part of the contract. 16. In view of the determination of the aforesaid question, other questions are not required to be dealt with. 17. Consequently, the appeal being devoid of merits is hereby dismissed. No order as to costs. 18. A decree be drawn accordingly.