JUDGMENT 1. The judgment, dtd. 16/3/2018, in Original Suit No.12 of 2010, on the file of the Court of II Additional District Judge, Kurnool at Adoni (for short, 'the learned Additional District Judge') is under challenge in this Appeal filed by the appellant. 2. The appellant in the capacity of the plaintiff filed the aforesaid Suit with a prayer to grant specific performance of agreement of sale, dtd. 3/8/2009, so as to direct the defendants 1 to 3 to execute a regular sale deed in his favour in pursuance of the said agreement of sale and in alternative prayed for a direction to the defendants 1 and 2 to pay an amount of Rs.10,00,000.00, which was paid to them by the plaintiff as advance sale consideration, with interest at the rate of 24% per annum from 3/8/2009 till the date of payment. 3. The learned Additional District Judge, granted alternative relief of refund of advance sale consideration by directing the defendants 1 and 2 to refund the advance sale consideration amount of Rs.10,00,000.00 to the plaintiff with interest at the rate of 6% per annum from the date of agreement of sale i.e., 3/8/2009 till the date of realization and further directed that in the circumstances of case each party shall bear their own costs. 4. Aggrieved of the said judgment, declining to grant the relief of specific performance and inclining to grant the alternative relief of refund of advance sale consideration, the plaintiff filed the present Appeal challenging the judgment, as above, by contending that he is entitled to the relief of specific performance of agreement of sale, dtd. 3/8/2009. 5. Interlocutory Application No.1 of 2023 is filed by the petitioner/appellant seeking to receive the documents annexed to the Application as additional evidence in the present Appeal. 6. The case of the plaintiff, in brief, before the learned Additional District Judge, as set out in the averments of the plaint, is that defendants 1 and 2 agreed to sell the plaint schedule property in favour of the plaintiff for a sum of Rs.21,00,000.00. After receiving the advance amount of Rs.10,00,000.00 from the plaintiff, they executed an agreement of sale on 3/8/2009. They have to execute the regular registered sale deed in favour of the plaintiff after receiving the balance sale consideration of Rs.11,00,000.00 on or before 2/11/2009. After receiving the advance amount of Rs.10,00,000.00 from the plaintiff, they executed an agreement of sale on 3/8/2009. They have to execute the regular registered sale deed in favour of the plaintiff after receiving the balance sale consideration of Rs.11,00,000.00 on or before 2/11/2009. As per the recitals of the agreement of sale, defendants 1 and 2 have to get the land measured on or before 2/11/2009. When the plaintiff approached defendants 1 and 2 and requested them to receive the balance sale consideration to execute regular sale deed in his favour, they postponed the issue on one pretext or the other. Plaintiff has been always ready and willing to perform his part of contract. Therefore, he sent a notice, dtd. 31/10/2009, through telegram as well as by courier service calling upon the defendants 1 and 2 to execute regular sale deed in his favour after receiving the balance sale consideration of Rs.11,00,000.00 on 2/11/2009. The defendants 1 and 2 received the said notice. The plaintiff was present in the Sub-Registrar's Office (SRO), Adoni on 2/11/2009 with cash but the defendants 1 and 2 did not come forward to execute the regular sale deed. On the other hand, they sent a reply notice, dtd. 2/11/2009, admitting execution of the agreement of sale in favour of the plaintiff and receipt of Rs.10,00,000.00 cash as advance but in the said reply, they requested the plaintiff to pay the balance sale consideration amount by way of a Demand Draft drawn in the name of 1st defendant. In the said reply, the defendants further stated that the 3rd defendant, who is the daughter of the 1st defendant and elder sister of the 2nd defendant, would join in execution of the regular sale deed in favour of the plaintiff along with the defendants 1 and 2. Hence, the 3rd defendant is added as a party to the Suit. Plaintiff has been always ready and willing to perform his part of contract. 7. The plaintiff sent another notice on 28/1/2010 calling upon the defendants 1 and 2 to execute regular sale deed in his favour on 4/2/2010 after receiving the balance sale consideration of Rs.11,00,000.00 by way of demand draft. Plaintiff informed them in the said notice that he will be present before the SRO, Adoni on that day. Plaintiff called upon the defendants 1 and 2 to get the land measured in the meanwhile. Plaintiff informed them in the said notice that he will be present before the SRO, Adoni on that day. Plaintiff called upon the defendants 1 and 2 to get the land measured in the meanwhile. The defendants received the said notice but failed to comply the demand. On the other hand, they sent a reply notice, dtd. 30/1/2010, with false and frivolous allegations. Elders tried to settle the issue but in vain. Hence, the plaintiff is constrained to file the Suit for specific performance of agreement of sale, dtd. 3/8/2009. 8. The first defendant got filed a written statement denying the averments in the plaint. Her contention in substance is that the defendants demanded the plaintiff to pay the balance sale consideration by way of demand draft in her favour but the plaintiff did not bring the demand draft on 2/11/2009 to the SRO, Adoni. That goes to show that plaintiff is not having the capacity to pay the balance sale consideration to the defendants. If at all the plaintiff was present at the SRO, Adoni with cash, pay order or demand draft, and if the defendants 1 and 2 are not present, nothing prevented the plaintiff to send another demand notice immediately demanding the defendants 1 and 2 to execute the regular sale deed by receiving the balance sale consideration. Therefore, the claim of the plaintiff that he is always ready and willing to perform his part of contract is absolutely false. With regard to the notice, dtd. 28/1/2010, when the time is stipulated for executing the agreement of sale as 2/11/2009, the plaintiff did not choose to pay the balance sale consideration on or before 2/11/2009. On the other hand, plaintiff set-up a false plea that the land has to be measured and all necessary documents like encumbrances, link documents etc., have to be delivered to the plaintiff. In fact, at the time of entering into the agreement itself, plaintiff verified all relevant documents, encumbrances over the property and entered into the agreement. It is not the case of the plaintiff that the property is not free from all encumbrances and that the land is less than Ac.1.00 cents. In fact, at the time of entering into the agreement itself, plaintiff verified all relevant documents, encumbrances over the property and entered into the agreement. It is not the case of the plaintiff that the property is not free from all encumbrances and that the land is less than Ac.1.00 cents. In fact, defendants 1 and 2 sent a reply to the earlier legal notice demanding the plaintiff to bring the demand draft in favour of 1st defendant on 2/11/2009 with a specific intention to establish that the plaintiff has no capacity to perform his part of contract. It was alleged by the plaintiff mala-fidely that he was present at the SRO, Adoni on 2/11/2009 with cash. It is not the case of the plaintiff that plaintiff offered to pay remaining balance sale consideration of Rs.11,00,000.00 on 2/11/2009 at the SRO, Adoni and that they refused to execute the regular sale deed. To show the bona fides, defendants 1 and 2 on 2/11/2009 were present at the SRO, Adoni and 2nd defendant also attested a registered gift deed, dtd. 2/11/2009, executed by one Uppara Chinna Yellappa in favour of U. Saroja vide document No.7071 of 2009. 9. When the time is made as essence of the contract, mere sending of notice expressing readiness and willingness by the plaintiff will not serve any purpose. Showing the balance amount in the account of the plaintiff on 2/11/2009 and withdrawal of the same thereafter will not serve any purpose. The plaintiff was incapable of performing his part of contract. It is false that elders involved to settle the dispute. Neither the plaintiff is entitled for specific performance nor entitled for refund of the earnest money for his own violation. Under any stretch of imagination, the plaintiff is not entitled to any relief. Hence, the Suit is liable to be dismissed. 10. 2nd defendant, who is no other than the son of the 1st defendant and younger brother of the 3rd defendant, filed a written statement adopting the written statement of 1st defendant contending with specific averments that the Suit is bad in law and facts and not maintainable and that he denied all the allegations. 11. 10. 2nd defendant, who is no other than the son of the 1st defendant and younger brother of the 3rd defendant, filed a written statement adopting the written statement of 1st defendant contending with specific averments that the Suit is bad in law and facts and not maintainable and that he denied all the allegations. 11. The 3rd defendant, who is the daughter of 1st defendant and elder sister of 2nd defendant, got filed a written statement denying the case of the plaintiff and her contention, in brief, is that the plaint schedule property is her absolute property after defendants 1 and 2 sold away their 2/3rd share to her husband. Defendants 1, 2 and 3 are having specific respective shares in the plaint schedule property which is totally in an extent of Ac.3.74 cents in Survey No.560/C. The Government of Andhra Pradesh acquired an extent of Ac.0.70 cents for laying a bypass road as such there remained Ac.3.04 cents out of which Ac.2.04 cents was sold to Kuruva Linganna, who is no other than the husband of 3rd defendant, for a valuable sale consideration by the 1st defendant with the consent of 2nd defendant. Therefore, after defendants 1 and 2 sold away 2/3rd share to Kuruva Linganna, her husband, Ac.1.00 cents of land remained towards the share of 3rd defendant. So, she is the absolute owner of the plaint schedule property. Therefore, defendants 1 and 2 have no right, title or interest over the plaint schedule property. The plaint schedule property is the ancestral property of defendants 1, 2 and 3. It originally belonged to Kuruva Thippanna. Kuruva Thippanna died leaving behind 5 sons. One Harischandrappa is the father of the 3rd defendant, who got the schedule mentioned property and another Ac.2.00 cents in the same survey number and another Ac.0.70 cents was acquired by the Government. Thereby Harischandrappa possessed Ac.3.74 cents in Survey No.560/C. Harischandrappa died intestate leaving behind defendants 1 to 3 where the 3rd defendant is having 1/3rd share. The 1st defendant with the consent of 2nd defendant sold 2/3rd share to one Kuruva Linganna under a registered sale deed. The defendants 1 and 2 sold their share in the plaint schedule property. Therefore, they were not having any share in the remaining extent, which is mutually agreed upon between the defendants 1, 2 and 3. The 1st defendant with the consent of 2nd defendant sold 2/3rd share to one Kuruva Linganna under a registered sale deed. The defendants 1 and 2 sold their share in the plaint schedule property. Therefore, they were not having any share in the remaining extent, which is mutually agreed upon between the defendants 1, 2 and 3. Ac.1.00 cents of land is left towards the share of the 3rd defendant. Defendants 1 and 2 are not entitled to enter into the agreement of sale in respect of the plaint schedule property. Without verifying the ownership of the property, plaintiff was alleged to have entered into an agreement with defendants 1 and 2. Even the 3rd defendant did not join in the registered sale deed executed by 1st defendant with the consent of 2nd defendant in favour of her husband i.e., Kuruva Linganna. Defendants 1 and 2 left over the plaint schedule property towards the share of 3rd defendant. When defendants 2 and 3 were small children, Harischandrappa died. Therefore, 1st defendant obtained pattadar passbook in her name. It does not mean that she is the absolute owner of the plaint schedule property. Admittedly, there is no registered partition deed or partition decree from competent civil Court in respect of their family properties. As per the amendment of Hindu Succession Act, 1956, 3rd defendant is having specific share in the property of Harischandrappa. Defendants 1 and 2 sold away their respective share already. The left over property is only the property of the 3rd defendant. The so called agreement of sale is not for any family necessities. On the date of agreement of sale, 3rd defendant is major aged 46 years and she is not residing with defendants 1 and 2. She was married about 30 years ago and was staying with her husband. Even though there are family necessities, defendants 1 and 2 cannot bind the 3rd defendant as the share of 3rd defendant is specifically defined under the Hindu Succession Act. So, the plaintiff is not entitled for specific performance of agreement of sale in respect of the plaint schedule property as such the Suit is liable to be dismissed. 12. Basing on the above pleadings, the learned Additional District Judge settled the following issues for trial: 1) Whether the agreement of sale deed dtd. 3/8/2009 is true, valid and binding on the defendants? 12. Basing on the above pleadings, the learned Additional District Judge settled the following issues for trial: 1) Whether the agreement of sale deed dtd. 3/8/2009 is true, valid and binding on the defendants? 2) Whether the plaintiff is entitled for specific performance of contract directing the defendants to execute the registered sale deed in pursuance of the agreement of sale dtd. 3/8/2009? 3) Whether the plaintiff is entitled to recover an amount of Rs.10,00,000.00 with interest from D1 and D2 as an alternative relief? 4) To what relief? 13. During the course of trial, on behalf of the plaintiff before the trial Court, PWs.1 to PW.3 were examined and Exs.A-1 to A-11 were marked. Second defendant examined himself as DW.1 and further examined DW.2 and 3rd defendant examined herself as DW.3. The first defendant was not examined as a witness before the trial Court. Through the examination of DW.1, Exs.B-1 and B-2 were marked. The learned Additional District Judge after conclusion of trial, on hearing both sides and on considering the evidence available on record answered first and third issues in favour of the plaintiff and second issue against the plaintiff as such granted an alternative relief of refund of advance sale consideration amount. 14. Felt aggrieved of the same, the appellant filed the present Appeal. 15. Insofar as I.A. No.1 of 2023, it is filed by the petitioner/appellant under Order XLI Rule 27 and Sec. 151 of the Civil Procedure Code, 1908 (for short, 'the CPC') with a prayer to receive the documents annexed to the Application as additional evidence in the present Appeal. The contention of the petitioner insofar as this Application is concerned is to the effect that the suit agreement of sale was executed for Rs.21,00,000.00 in respect of Ac.1.00 cents of the plaint schedule property on 3/8/2009. The 1st defendant executed a registered sale deed, dtd. 10/11/2009, in respect of remaining Ac.2.04 cents of land to the husband of the 3rd defendant and it appears that it is a sham document. 3rd defendant did not claim any right in that property. Husband of the 3rd defendant executed a registered sale deed, dtd. 27/6/2016, in respect of Ac.1.63 cents in favour of one V. Vijay Kumar for Rs.56,24,000.00 and 3rd defendant is one of the attestors to the said sale deed. Husband of the 3rd defendant executed another registered sale deed, dtd. 3rd defendant did not claim any right in that property. Husband of the 3rd defendant executed a registered sale deed, dtd. 27/6/2016, in respect of Ac.1.63 cents in favour of one V. Vijay Kumar for Rs.56,24,000.00 and 3rd defendant is one of the attestors to the said sale deed. Husband of the 3rd defendant executed another registered sale deed, dtd. 27/6/2016, in respect of Ac.0.41 cents in favour of Kurava Nagamma for Rs.14,15,000.00 and 3rd defendant is one of the attestors to that sale deed. So, the 3rd defendant has no semblance of right in the plaint schedule property and also in the remaining Ac.2.04 cents. The trial Court erroneously held that 3rd defendant is having right in the plaint schedule property. Hence, this Application to receive the additional documents. 16. Counter is filed on behalf of 1st and 2nd respondents/defendants resisting the prayer of the petitioner/appellant on the ground that prayer is misconceived and it is not maintainable either on law and facts and there is no dispute that the 1st defendant executed registered sale deed, dtd. 10/11/2009, in respect of an extent of Ac.2.04 cents to the husband of 3rd defendant and it is not at all a sham document and filing of those documents at this stage is not maintainable as such the Application is to be dismissed. 17. The contention of the 3rd respondent/defendant in her counter is that 1st respondent executed a registered sale deed, dtd. 10/11/2009, in respect of Ac.2.04 cents of land to her husband and it is not a sham document as such Application is to be dismissed. 18. Now, in deciding this Appeal, the points that arise for consideration are as follows: 1) Whether the petitioner/appellant is entitled to adduce additional evidence as sought for in I.A. No.1 of 2023? 2) Whether time is the essence of the contract in respect of the suit agreement of sale? 3) Whether the plaintiff before the trial Court proved his entitlement to get a decree of specific performance of an agreement of sale by showing his readiness and willingness to perform his part of contract pursuant to the terms and conditions in Ex.A-1 - agreement of sale and his right to claim such a decree from the defendants 1 to 3? 4) Whether judgment of the learned II Additional District Judge, Kurnool at Adoni dtd. 4) Whether judgment of the learned II Additional District Judge, Kurnool at Adoni dtd. 16/3/2018, in O.S. No.12 of 2010 refusing to grant the decree of specific performance of agreement of sale and in granting alternative relief of refund of advance sale consideration amount is sustainable under law and facts and whether there are any grounds to interfere with the said judgment? 5) To what relief? POINT No.1: 19. I.A. No.1 of 2023 is the application filed under Order XLI Rule 27 and Sec. 151 of CPC by the petitioner/appellant so as to receive the documents by way of additional evidence. The documents that are sought to be received as additional evidence are the copy of registered sale deed, dtd. 10/11/2009, executed by the 1st defendant in favour of the husband of the 3rd defendant, copies of registered sale deeds two in number bearing registration Nos.5828 and 5829 of 2016, dtd. 27/6/2016, said to be executed by the husband of the 3rd defendant conveying the property covered under the sale deed, dtd. 10/11/2009, in favour of third parties, copy of Dr. Y.S.R. Arogya Sree Health Card with translation, copy of Encumbrance Certificate, copy of title deed issued by the A.P. Government and copy of Adangal with translation. 20. Learned counsel appearing on behalf of the petitioner, learned counsels appearing on behalf of the respondents 1 and 2 and 3, at the time of hearing of this Appeal, represented that this Interlocutory Application may be considered appropriately at the time of judgment. 21. There is no dispute about execution of Ex.A-1 - agreement of sale by defendants 1 and 2 in favour of the plaintiff in respect of plaint schedule property. As seen from Ex.A-1, the plaint schedule property is an extent of Ac.1.00 cents in Survey No.560/C, which is out of total extent of Ac.3.04 cents in the same survey number. The schedule of Ex.A-1 is east - 80 feet road and land belongs to Sainath Reddy, west - 100 feet road, north - small canal and land belongs to K. Sivanna and south - land of the executants i.e., 1st and 2nd defendants. 22. The specific contention of the 3rd defendant is that the total extent in the above said survey number is about Ac.3.74 cents, out of which Ac.0.70 cents was acquired by the Government. 22. The specific contention of the 3rd defendant is that the total extent in the above said survey number is about Ac.3.74 cents, out of which Ac.0.70 cents was acquired by the Government. The rest is Ac.3.04 cents in which defendants 1 and 2 and she i.e., the 3rd defendant had equal shares therein and that 1st and 2nd defendants already sold away Ac.2.04 cents in favour of one Kuruva Linganna, who is no other than the husband of the 3rd defendant. Whatever the land available in the above said survey number is that of the land of the 3rd defendant. 23. It is to be noticed that during the course of crossexamination of DW.1, Ex.B-2 was marked. Ex.B-2 is no other than the copy of sale deed, dtd. 10/11/2009, executed by the 1st defendant in favour of husband of 3rd defendant, for an extent of Ac.2.04 cents. It is also admitted by the 3rd defendant as DW.3 in cross-examination. So, the 1st document i.e., sought to be produced as additional evidence is no other than Ex.B-2. It is immaterial now as to what the husband of the 3rd defendant did about the property covered under Ex.B-2 after his acquisition. There is no dispute that on 10/11/2009, the 1st defendant executed sale deed in favour of husband of the 3rd defendant conveying an extent of Ac.2.04 cents. So, there is no dispute about the existence of the sale deed under Ex.B-2 executed by 1st defendant which reads that she transferred an extent of Ac.2.04 cents by way of sale in favour of husband of 3rd defendant. It is altogether a different aspect as to whether such an action on the part of 1st defendant is permissible or not. So, what the husband of 3rd defendant did under the two sale deeds, dtd. 27/6/2016, is not a matter to be considered in this Appeal. Apart from this, when there was transfer of property literally under Ex.B-2, it is quite natural with regard to the existence of the pattadar passbook in the name of husband of 3rd defendant in respect of the property covered under Ex.B-2. So, the documents that are sought to be produced i.e., 5, 6 and 7 are of no importance while deciding this Appeal. According to the petitioner/appellant, he has enclosed a copy of Dr. So, the documents that are sought to be produced i.e., 5, 6 and 7 are of no importance while deciding this Appeal. According to the petitioner/appellant, he has enclosed a copy of Dr. Y.S.R. Arogyasree Health Card with translation to show that 3rd defendant and her husband are residing together. The obvious intention of the petitioner/appellant in producing such documents appears to be that 3rd defendant has knowledge of the acts of her husband getting the property under the above said two sale deeds. Here, DW.3 in cross-examination admitted that she and her husband are residing together. So, having regard to the above, I am of the considered view that the proposed documents absolutely are not necessary for decision of this Appeal. Apart from this, when this Application is filed under Order XLI Rule 27 CPC, it is the duty of the petitioner/appellant to plead that in spite of exercise of due diligence, he could not produce these documents and further the existence of these documents are not within his knowledge. So, legally, the case of the petitioner/appellant as regards the I.A. No.1 of 2023 is bereft of necessary details. Even otherwise, the proposed documents are absolutely not necessary to decide the Appeal as such I.A. No.1 of 2023 is liable to be dismissed. POINT Nos.2 to 4: 24. Plaintiff examined himself as PW.1 by filing his chiefexamination affidavit. PW.1 in his chief-examination affidavit adverted to the facts as averred in the plaint and through his examination, Exs.A-1 to A-11 are marked. Ex.A-1 is the original agreement of sale, dtd. 3/8/2009, executed by 1st and 2nd defendants in his favour. Ex.A-2 is the copy of telegraphic notice, dtd. 31/10/2009, got issued by him to the defendants 1 and 2. Ex.A-3 is the office copy of lawyer's notice, dtd. 31/10/2009, got issued by him to the 1st and 2nd defendants. Ex.A-4 is the Lawyer's reply notice, dtd. 2/11/2009, got issued to him by the defendants 1 and 2. Ex.A-5 is the office copy of Lawyer's notice, dtd. 28/1/2010, got issued by him to the defendants 1 and 2. Ex.A-6 is the Lawyer's reply notice, dtd. 30/1/2010, got issued to him by the defendants 1 and 2 and Ex.A-7 is his original savings account passbook issued by the SBI, Market Yard Branch, Adoni. Ex.A-8 is the certified copy of Demand Draft dtd. 28/1/2010, got issued by him to the defendants 1 and 2. Ex.A-6 is the Lawyer's reply notice, dtd. 30/1/2010, got issued to him by the defendants 1 and 2 and Ex.A-7 is his original savings account passbook issued by the SBI, Market Yard Branch, Adoni. Ex.A-8 is the certified copy of Demand Draft dtd. 27/1/2010 for Rs.11,00,000.00 obtained by him in the name of 1st defendant. Ex.A-9 is the certified copy of statement of account of his Savings Bank Account No.00000030128385051 of SBI, Market Yard Branch, Adoni. Ex.A-10 is the office copy of letter, dtd. 10/12/2015, addressed by him to the Manager of SBI, Market Yard Branch. Under Ex.A-10 the plaintiff requested the Manager, SBI to issue Ex.A-9. Ex.A-11 is the office copy of letter, dtd. 10/12/2015, addressed by him to the Manager of Vijaya Bank, Adoni to issue Ex.A-8. 25. Turning to the evidence of PW.2, who is one of the attestors of Ex.A-1, his evidence in substance is that he knows the plaintiff and defendants. He is the real estate broker. Defendants 1 and 2 approached him to bring the purchaser to sell the schedule property. He informed the same to the plaintiff. Defendants 1 and 2 agreed to sell the plaint schedule property in favour of the plaintiff for Rs.21,00,000.00. After receiving a sum of Rs.10,00,000.00, they executed the agreement of sale on 3/8/2009 in favour of the plaintiff in respect of the plaint schedule property. As per the terms and conditions stated in the agreement, they have to execute a regular sale deed after receiving balance sale consideration of Rs.11,00,000.00 on or before 2/11/2009 and defendants 1 and 2 have to get the land measured on or before 2/11/2009. He (PW.2) attested the agreement of sale as one of the attestors. In their presence 1st defendant put her left thumb mark and 2nd defendant put his signature. Plaintiff informed him that though he is ready to perform his part of contract by paying the balance sale consideration to the defendants 1 and 2 but they are postponing the same on one pretext or the other. Plaintiff also informed to him that he issued the legal notice and legal proceedings etc., against the defendants 1 and 2. At request of plaintiff on 2/11/2009, he went to the SRO, Adoni for registration of sale deed in favour of the plaintiff. Plaintiff came there with cash of Rs.11,00,000.00. Plaintiff also informed to him that he issued the legal notice and legal proceedings etc., against the defendants 1 and 2. At request of plaintiff on 2/11/2009, he went to the SRO, Adoni for registration of sale deed in favour of the plaintiff. Plaintiff came there with cash of Rs.11,00,000.00. Defendants 1 and 2 did not come forward to receive the balance sale consideration and to execute the registered sale deed. 26. Coming to the evidence of PW.3, the scribe of said agreement of sale, he deposed in support of the case of the plaintiff with regard to execution of Ex.A-1 by the defendants 1 and 2 in favour of the plaintiff and the terms and conditions therein. So, according to him, defendants 1 and 2 have to execute the regular registered sale deed after receiving the balance sale consideration from the plaintiff and further they have to get the land measured on or before 2/11/2009. He scribed Ex.A-1. 1st defendant put her left thumb mark on Ex.A-1 and 2nd defendant put his signature on Ex.A-1. Defendants 1 and 2 took an amount of Rs.10,00,000.00 from the plaintiff. M. Sadiq Basha and four others also put their signatures as attestors on Ex.A-1. Plaintiff also put his signatures along with the defendants 1 and 2. Plaintiff intimated to him that though he is ready to perform his part of contract but the defendants are postponing the same. Plaintiff and attestors used to come to the SRO, Adoni for registration of the document. On 2/11/2009 plaintiff and some attestors came to the SRO, Adoni for registration of sale deed in his favour with balance sale consideration of Rs.11,00,000.00 but the defendants 1 and 2 did not come forward. Plaintiff has always been ready and willing to perform his part of contract. 27. The 2nd defendant got filed his chief-examination affidavit as DW.1 by adverting to the contents of written statement of first defendant. Through his examination-in-chief for marking of documents Ex.B-1 is marked. Ex.B-1 is the certified copy of registered gift settlement deed, dtd. 2/11/2009, executed by one U. Govindappa in favour of his wife U. Saroja. He deposed that he is the 1st attestor to Ex.B-1. During cross-examination of DW.1, the plaintiff got marked Ex.B-2 by way of confrontation. It is true that his mother sold an extent of Ac.2.04 cents of land to his brother-in-law on 10/11/2009 for Rs.62,000.00. 2/11/2009, executed by one U. Govindappa in favour of his wife U. Saroja. He deposed that he is the 1st attestor to Ex.B-1. During cross-examination of DW.1, the plaintiff got marked Ex.B-2 by way of confrontation. It is true that his mother sold an extent of Ac.2.04 cents of land to his brother-in-law on 10/11/2009 for Rs.62,000.00. Witness has admitted that sale deed, dtd. 10/11/2009, was marked as Ex.B-2. 28. The defendants examined DW.2. His chief-examination affidavit is to the effect that he intended to gift his house property to his wife. On 2/11/2009, he went to the SRO, Adoni at 10:00 a.m. He met one H.M. Veeresh, document writer, Adoni. He gave instructions to prepare the gift deed. At about 10:15 a.m. Mr. K. Srinivasulu along with his mother came to the SRO, Adoni. H.M. Veeresh, enquired them as to why they came there. They informed him that they have sold their landed property to Sofi of Adoni and on 2/11/2009 Sofi intended to obtain registered sale deed as such they came there. DW.2 further deposed that at about 03:00 p.m. his document was submitted to the Sub-Registrar, Adoni and at about 04:00 p.m. they were called into the office for signatures. K. Sreenivasulu attested the gift deed as one of the attestors. From 10:15 a.m. onwards K. Sreenivasulu and his mother were with him and they were waiting for their vendee but their vendee did not turn up till 05:00 p.m. and they left the SRO, Adoni at 05:00 p.m. 29. Coming to the evidence of DW.3, who is no other than the 3rd defendant being the daughter and sister of the defendants 1 and 2, she filed her chief-examination affidavit by adverting to the contents of her written statement. 30. Sri N. Sriram Murthy, learned counsel for the appellant/plaintiff, would contend that the defendants 1 and 2 executed Ex.A-1 agreement of sale by agreeing to sell away the plaint schedule property for a sum of Rs.21,00,000.00 and received a sum of Rs.10,00,000.00 as advance sale consideration. There is no dispute about the execution of Ex.A-1 by the defendants 1 and 2 in favour of plaintiff. According to the terms of Ex.A-1, plaintiff has to pay the balance sale consideration and obtain the sale deed on or before 2/11/2009. There is no dispute about the execution of Ex.A-1 by the defendants 1 and 2 in favour of plaintiff. According to the terms of Ex.A-1, plaintiff has to pay the balance sale consideration and obtain the sale deed on or before 2/11/2009. There is also a condition in Ex.A-1 to the effect that the defendants by the time of registration of the sale deed have to measure the land with their own expenses and prepare necessary documents and to deliver the same at the time of registration to the plaintiff. According to the terms and conditions in Ex.A-1, if the plaintiff fails to pay the rest of the balance sale consideration within the time stipulated, agreement shall stand cancelled and advance amount shall be forfeited and if the defendants fail to register the sale deed, the plaintiff has power to deposit the amount into the Court and to avail the legal remedies. He would further contend strenuously that the reciprocal obligations are put in Ex.A-1. Though the plaintiff was duty bound to pay the balance sale consideration and to get the registration on or before 2/11/2009 but the defendants are also duty bound to get the land measured with their own expenses by the time of registration of the sale deed and to handover necessary documents to the plaintiff. So, the obligations that were incorporated in Ex.A-1 were mutual. In other words, if the defendants fail to get the land measured with their expenses and not ready with necessary documents by 2/11/2009, there is no possibility for the plaintiff to pay the advance sale consideration. So, the time stipulated in Ex.A-1 enjoining with the plaintiff to get the sale deed executed on or before 2/11/2009 can only be subject to the performance of reciprocal obligation by the defendants 1 and 2. When the defendants were dodging the issue, the plaintiff got issued a legal notice to the defendants under Exs.A-2 and A-3 i.e., telegram notice and lawyers notice on 31. 10.2009. Defendants could have issued the reply either on 31/10/2009 or on 1/11/2009. There was a clear whisper in Exs.A-2 and A-3 asking the defendants to come to the SRO, Adoni to execute the sale deed in his favour. 10.2009. Defendants could have issued the reply either on 31/10/2009 or on 1/11/2009. There was a clear whisper in Exs.A-2 and A-3 asking the defendants to come to the SRO, Adoni to execute the sale deed in his favour. Purposefully the defendants issued a reply on the ultimate day i.e., on 2/11/2009 asking the plaintiff to get a demand draft in the name of 1st defendant and when the plaintiff went to the SRO, Adoni on 2/11/2009 morning, he did not notice the defendants 1 and 2. Plaintiff could know about the reply issued by the defendants on 2/11/2009 by the evening from his counsel. Defendants did not prove that the plaintiff had knowledge of the contents of reply in the morning of 2/11/2009. There is evidence of PWs.2 and PW.3 in support of the evidence of PW.1 that plaintiff went to the SRO, Adoni and waited there with cash of Rs.11,00,000.00. Purposefully the 2nd defendant attested Ex.B-1 with an ulterior motive to contend that he was present at the SRO, Adoni but he was not within the reach of the plaintiff. His evidence is that when he along with first defendant went there, he (2nd defendant) attested Ex.B-1. In the reply, when the defendants asked the plaintiff to get the draft for Rs.11,00,000.00 in the name of the 1st defendant by assuring that they will come along with the 3rd defendant also to execute the sale deed, why they did not bring the 3rd defendant to the SRO, Adoni. Even the so called act of 2nd defendant in signing Ex.B-1 was under a veil of secrecy without notice to the plaintiff. Purposefully defendants 1 and 2 in their written statement denied that they have an obligation to get the land measured prior to registration of sale deed. Even DW.1 adverted to the same in his chief-examination affidavit but in his crossexamination he admitted his obligation to measure the land and answers spoken by him that already the land was measured and he handed over the documents to the plaintiff cannot stand to any reason. It is not his reply that he measured the land. It is not his defence in the written statement or in his chief-affidavit that he already measured the land. So, the defendants failed to fulfill their obligation to get the land measured. 31. It is not his reply that he measured the land. It is not his defence in the written statement or in his chief-affidavit that he already measured the land. So, the defendants failed to fulfill their obligation to get the land measured. 31. He would contend that there are various decisions of the Hon'ble Apex Court as to whether the time is essence of the contract or not is to be ascertained by looking into the conduct of the parties, intention of the parties and further the overall surrounding circumstances. Hence, time is not at all the essence of the contract and defendants failed to discharge their obligation in measuring the land. The property covered under Ex.A-1 is with the specific boundaries and it is Ac.1.00 cents out of total extent of Ac.3.04 cents. Why the defendants 1 and 2 made a mention in Ex.A-4 reply that they will bring 3rd defendant to execute the sale deed. Purposefully they introduced a defence through 3rd defendant as if the total extent of Ac.3.74 cents was of ancestral property out of which Ac.0.70 cents was acquired by the Government and in the rest of Ac.3.04 cents 3rd defendant has a share in the property. He would contend strenuously that execution of the sale deed under Ex.B-2 was on 10/11/2009 by which time the 3rd defendant had knowledge about Ex.A-1. She admitted in cross-examination about Ex.A-1. If really defendants 1 to 3 had equal shares, how the 1st defendant could convey Ac.2.04 cents in favour of the husband of 3rd defendant. 2nd defendant was not an executant to Ex.B-2. The property covered under Ex.B-2 was not the plaint schedule property though it was in the plaint schedule survey number. When DW.3 admitted that she and her husband are residing together how she allowed her husband to purchase the property from 1st defendant alone, if really 2nd defendant had a share in the property. All this goes to show that the defendants 1 to 3 are in collusive course to defeat the claim of the plaintiff. The claim, if any, of the 3rd defendant would be against 1st and 2nd defendants alone. She ought to have questioned her husband how he purchased the property without the sale deed being executed by 2nd defendant. She should have questioned her husband how he purchased the property when she had also a share in the property. The claim, if any, of the 3rd defendant would be against 1st and 2nd defendants alone. She ought to have questioned her husband how he purchased the property without the sale deed being executed by 2nd defendant. She should have questioned her husband how he purchased the property when she had also a share in the property. Ex.A-1 is much prior to Ex.B-2 sale deed. The 3rd defendant and her husband are residing together as admitted by DW.3. As there is a reply in Ex.A-4 that the defendants 1 and 2 will bring 3rd defendant to execute the sale deed, plaintiff filed the suit against 3rd defendant also. Now, the defendants cannot defeat the right of the plaintiff to claim specific performance by contending that the plaint schedule property is of ancestral property in which the 3rd defendant has a share. If defendants 1 to 3 are having equal shares, even for a moment, the defendants 1 and 2 have offered to execute Ex.A-1 because even according to them they had Ac.1.00 cents each in the total extent of Ac.3.04 cents. When they have executed such a document, 1st defendant had no right to execute a sale deed, without 2nd defendant, in favour of the husband of 3rd defendant. So, the claim of 3rd defendant, if any, should be against the defendants 1 and 2 and further her husband in respect of the property covered under Ex.B-2 but not against the property covered under Ex.A-1. When the plaintiff has raised all these contentions before the trial Court, the learned Additional District Judge on the ground that the plaintiff did not prove his presence at the SRO, Adoni on 2/11/2009 went on to dismiss the relief of specific performance of agreement of sale. He did not consider that there was an obligation on the part of the defendants to measure the land, which DW.1 admitted categorically in his cross-examination. The whole judgment of the trial Court is by overlooking the case of the plaintiff on crucial aspects and by overlooking the admissions made by DW.1 and DW.3 in their cross-examination. When the trial Court found that time is the essence of the contract with erroneous reasons, it is not understandable how a decree is there to refund the advance sale consideration. The relief granted by the trial Court does not reconcile with its findings. When the trial Court found that time is the essence of the contract with erroneous reasons, it is not understandable how a decree is there to refund the advance sale consideration. The relief granted by the trial Court does not reconcile with its findings. At any rate, the judgment of the learned Additional District Judge declining to grant the relief of specific performance and granting the alternative relief of refund of advance sale consideration is not sustainable under law and facts. 32. Learned counsel for the appellant in support of his contentions would rely upon the decisions of the Hon'ble Apex Court in Ramathal v. Maruthathal and others, (2018) 18 SCC 303 P. Ramasubbamma v. V. Vijayalakshmi and others,2022 LiveLaw (SC) 375 Rathnavathi and another v. Kavita Ganashamdas, (2015) 5 SCC 223 Prakash Chandra v. Narayan, (2012) 5 SCC 403 Zarina Siddiqui v. A. Ramalingam @ R. Amarnathan, (2015) 1 SCC 705 Boramma v. Krishna Gowda and others, (2000) 9 SCC 214 Messrs Trojan and Company v. RM.N.N. Nagappa Chettiar, AIR 1953 SC 235 Siddik Mahomed Shah v. Saran and others,1929 SCC OnLine PC 79 Sughar Singh v. Hari Singh (dead) through LRs and others,2021 LawSuit (SC) 662 Syscon Consultants Private Limited v. Primella Sanitary Products Private Limited and another, (2016) 10 SCC 353 Mrs. Umadevi Nambiar v. Thamarasseri Roman Catholic Diocese, Rep. by its Procurator Devssia's son Rev. Father Joseph Kappil, AIR 2022 SC 1640 and a decision of this Court in T. Bheem Reddy and another v. P. Laxmi Bai and others., 2012 (4) ALD 618 33. Sri K. Rajanna, learned counsel for the respondents 1 and 2, would contend that there was a stipulation in Ex.A-1 that the plaintiff shall obtain the registered sale deed within three months i.e., by 2/11/2009. PW.1 stated in cross-examination that he was supposed to pay the sale consideration amount in three definite installments but he failed to pay the same. Even otherwise, there was an obligation on the part of the plaintiff to get the sale deed registered on or before 2/11/2009. By 2/11/2009, the plaintiff has no financial capacity to pay the balance sale consideration to the defendants 1 and 2. Even otherwise, there was an obligation on the part of the plaintiff to get the sale deed registered on or before 2/11/2009. By 2/11/2009, the plaintiff has no financial capacity to pay the balance sale consideration to the defendants 1 and 2. When the plaintiff issued Exs.A-2 and A-3, the defendants 1 and 2 issued a suitable reply under Ex.A-4 demanding the plaintiff to get the demand draft in the name of the 1st defendant as they have every apprehension that plaintiff may contend that he attended the SRO, Adoni though he may not attend. Though the defendants 1 and 2 waited at the SRO, Adoni for the arrival of the plaintiff, plaintiff did not attend there. In cross-examination, PW.1 stated that he purchased stamp papers from the SRO, Adoni and that is the proof to show that he was present there on 2/11/2009 but he failed to produce such a crucial document. So, except the oral say of PW.1, PW.2 and PW.3 there remained nothing in support of the plaintiff that he attended the SRO, Adoni to get registered the sale deed. In fact, though the defendants 1 and 2 issued Ex.A-4 reply in the morning, the Advocate, who issued Exs.A-2 and A-3, communicated the same to the plaintiff that he has to take a demand draft. So, the plaintiff had knowledge about the contents in Ex.A-4 reply that he had to get a demand draft for Rs.11,00,000.00 in the name of the 1st defendant. So, if he had the cash, he would have obtained the demand draft in the morning itself. To prove the presence of defendants 1 and 2, they examined DW.2 who supported their cause. DW.2 executed a gift deed in the name of his wife by going to the SRO, Adoni in the morning and he testified the presence of DW.1 and 1st defendant and further testified that the DW.1 attested Ex.B-1 gift deed. So, Ex.B-1 proves the presence of DW.1 i.e., 2nd defendant in the SRO, Adoni. Though 1st defendant was also present but there was no necessity for her to sign any document. So, there is evidence of DW.2 and Ex.B-1 to probabilize the presence of the defendants 1 and 2. Though the time is essence of the contract, the plaintiff miserably failed to stick on the same. Though 1st defendant was also present but there was no necessity for her to sign any document. So, there is evidence of DW.2 and Ex.B-1 to probabilize the presence of the defendants 1 and 2. Though the time is essence of the contract, the plaintiff miserably failed to stick on the same. In fact, at the time of execution of Ex.A-1 itself the plaintiff had knowledge that the plaint schedule property is covered under specific boundaries and he verified the Encumbrance Certificate etc., and then only decided to purchase the property. Apart from this, according to DW.1 in cross-examination he got the land measured with the help of Surveyor much before 2/11/2009 and handed over the required documents to the plaintiff. So, when DW.1 completed even survey of land, which he deposed in cross-examination, there was no further obligation to be performed by the defendants. So, the plaintiff was a defaulting party to comply the terms and conditions of Ex.A-1. According to Ex.A-1, if the plaintiff fails to comply the terms and conditions by paying balance sale consideration to get the sale deed executed, advance amount shall be forfeited. However, the learned Additional District Judge exercising his discretion ordered to refund the advance sale consideration amount to the plaintiff. 34. Learned counsel for the respondents 1 and 2 would further submit that the 3rd defendant, who is daughter of 1st defendant and sister of 2nd defendant, contested the Suit and she examined herself as DW.3 and claimed her share in the property as of equal share i.e., about Ac.1.00 cents and, according to DW.3, there are no cordial relations between her and her parents and family members as such defendants 1 and 2 have no right to sell away the plaint schedule property. It is a fact that the 1st defendant executed Ex.B-2 sale deed in favour of the husband of 3rd defendant with regard to the share of defendants 1 and 2 in the plaint schedule property and rest of the extent is that of the share of 3rd defendant alone. As the plaintiff failed to comply the terms and conditions in Ex.A-1, defendants 1 and 2 cannot be prevented from alienating the property after the stipulated time in Ex.A-1 as such Ex.B-2 was executed by 1st defendant with the consent of 2nd defendant in favour of the husband of 3rd defendant. As the plaintiff failed to comply the terms and conditions in Ex.A-1, defendants 1 and 2 cannot be prevented from alienating the property after the stipulated time in Ex.A-1 as such Ex.B-2 was executed by 1st defendant with the consent of 2nd defendant in favour of the husband of 3rd defendant. The evidence on record goes to prove that time was the essence of the contract. Plaintiff was a defaulting party as he was not at all ready and willing to perform his part of contract as such there are no merits in the Appeal and the Appeal is liable to be dismissed. 35. Learned counsel for the respondents 1 and 2 in support of his contentions would rely upon the decisions of the Hon'ble Apex Court in Desh Raj and others v. Rohtash Singh,2022 LawSuit (SC) 1460 and Katta Sujatha Reddy and others v. Siddamsetty Infra Projects Private Limited and others.,2022 LawSuit (SC) 1001 36. Sri Vangara Kishore, learned counsel for the 3rd respondent, would contend that PW.1 admitted that the plaint schedule property was of ancestral property of the defendants 1, 2 and 3. The husband of the 1st defendant got the property from his ancestors and he died leaving behind defendants 1, 2 and 3. So, when the plaint schedule property was of ancestral property, 3rd defendant had equal right and share along with defendants 1 and 2. With the above said contention, she contested the suit and examined herself as DW.3. In fact, her husband purchased the property covered under Ex.B-2 from 1st defendant and 1st defendant executed the sale deed with the consent of 2nd defendant. So, defendants 1 and 2 sold away their respective share in favour of the husband of 3rd defendant and what all remained there is the share of 3rd defendant and without the consent of 3rd defendant, defendants 1 and 2 executed Ex.A-1 agreement of sale in favour of the plaintiff. They have no right to sell away the share of the 3rd defendant. In fact, there are differences between DW.3 at one hand and defendants 1 and 2 at another hand. They have no right to sell away the share of the 3rd defendant. In fact, there are differences between DW.3 at one hand and defendants 1 and 2 at another hand. Though there was no evidence adduced by the 3rd defendant that she fought for civil litigation to claim her share but the right of 3rd defendant in view of the provisions of Hindu Succession Act is not in dispute and if that be the case, defendants 1 and 2 have no right to execute Ex.A-1 in favour of the plaintiff. Though these contentions are raised before the trial Court, but the learned Additional District Judge dismissed the Suit of the plaintiff on the ground that plaintiff failed to comply the terms and conditions in Ex.A-1 and that plaintiff was not willing to perform his part of contract. This Court has power to reappreciate the case of the 3rd defendant in this Appeal. The 3rd defendant had right in the plaint schedule property as the plaint schedule property is only of her share now as such Appeal is liable to be dismissed. 37. Sri N. Sriram Murthy, learned counsel for the appellant, during the course of reply, would contend that the plaintiff produced his Savings Bank Account passbook under Ex.A-7 and Ex.A-8 - copy of demand draft for Rs.11,00,000.00 and Ex.A-9 - certified copy of statement of Savings Bank account and Exs.A-10 and A-11 etc., to prove his financial capacity. His savings bank account under Ex.A-7 reveals that there was substantial amount in the account of the plaintiff. As the time was not the essence of the contract, as the defendants failed to fulfill their obligation and as the defendants did not turn up on 2/11/2009, plaintiff has every right to issue legal notice as such he issued further legal notice under Ex.A-5 for which defendants issued Ex.A-6 false reply. There is pleading that the plaintiff has always been ready and willing to perform his part of contract and it is the defendants 1 and 2 who are the defaulting parties and they deliberately pressed into the service the 3rd defendant and the 3rd defendant has no right to claim plaint schedule property and her remedies are elsewhere as such the Appeal is liable to be allowed by granting decree of specific performance of agreement of sale. 38. 38. The admitted facts are that the defendants 1 and 2, having received the advance sale consideration amount of Rs.10,00,000.00 under Ex.A-1 - agreement of sale, executed such a document agreeing to sell away the plaint schedule property in favour of the plaintiff. There is no dispute about execution of Ex.A-1 by the defendants 1 and 2 in the manner as pleaded by the plaintiff. The contents of E.A-1 are not at all in dispute. The sum and substance of the contents of Ex.A-1 is that the defendants 1 and 2 in the capacity of the executants of the agreement of sale executed the same professing that K. Nagamma, wife of K. Harischandrappa, had passbook in her name with regard to the plaint schedule property and that both of them i.e., defendants 1 and 2 had rights in the plaint schedule property and that they agreed to sell away the same in favour of the plaintiff for a sum of Rs.21,00,000.00 and that they received advance amount of Rs.10,00,000.00 on 3/8/2009 and from that day within three months time is stipulated to execute the regular sale deed after receipt of the balance sale consideration amount and that on or before 2/11/2009 the plaintiff has to pay the balance sale consideration of Rs.11,00,000.00 and defendants 1 and 2 have to execute the registered sale deed at the expenses of the plaintiff and that in case the plaintiff fails to pay the rest of the balance sale consideration amount within the stipulated time, the advance sale consideration amount stands forfeited and that agreement of sale stands cancelled and that in case the defendants 1 and 2 had any objection to execute the registered sale deed, plaintiff has right to deposit the amount in the Court and to get the sale deed executed. It is further stipulated that at the time of registration of the document, the defendants 1 and 2 have agreed to survey the plaint schedule property with their own expenses and to hand over the necessary documents and encumbrances to the plaintiff. This is the sum and substance of Ex.A-1. 39. The property covered under Ex.A-1 is an extent of Ac.1.00 cents equivalent to Hectors 0.405 situated in Survey No.560/C out of the total extent of Ac.3.04 cents. This is the sum and substance of Ex.A-1. 39. The property covered under Ex.A-1 is an extent of Ac.1.00 cents equivalent to Hectors 0.405 situated in Survey No.560/C out of the total extent of Ac.3.04 cents. The specific boundaries are east - 80 feet road and land belongs to Sainath Reddy, west - 100 feet road, north - small canal and land belongs to K. Sivanna and south - land of the executants i.e., defendants 1 and 2. So Ex.A-1 is relating to the plaint schedule property. The important obligation on the part of the plaintiff is to pay the rest of the balance sale consideration on or before 2/11/2009 so as to get the regular sale deed and the obligation on the part of the defendants is to get the land measured with their own expenses and to deliver necessary documents and encumbrance certificates etc., to the plaintiff at the time of registration of the sale deed. 40. The plaintiff specifically pleaded in the plaint that there is a duty cast upon the defendants to survey the land before execution of the sale deed. The defendants in their written statements denied the same by contending that such a contention on the part of the plaintiff is false and in fact at the time of agreement itself plaintiff verified all the relevant documents and encumbrances over the property as such entered into the agreement of sale. So, the defendants in their written statements disowned the responsibility, if any, on their part to measure the plaint schedule property so as to get the necessary documents to handover to the plaintiff at the time of execution of the registered sale deed. The contention of the plaintiff is that the defendants have to perform certain obligations i.e., undertaking survey and to hand over necessary documents, which they failed to comply and that in fact in pursuance of the legal notices under Exs.A-2 and A-3, he made himself available at the SRO, Adoni with the balance sale consideration of Rs.11,00,000.00 and the defendants failed to turn up. On the other hand, the contention of the defendants is that the plaintiff failed to present himself before the Office of SRO, Adoni with the balance sale consideration and there was no need for them to make any survey of the land etc. 41. On the other hand, the contention of the defendants is that the plaintiff failed to present himself before the Office of SRO, Adoni with the balance sale consideration and there was no need for them to make any survey of the land etc. 41. Learned Additional District Judge, as evident from the impugned judgment, proceeded and decided as to whether time is the essence of the contract and whether plaintiff was ready and willing to perform his contract and the learned Additional District Judge made findings that time is the essence of the contract and the plaintiff failed to perform his obligation etc. 42. Though there was no specific issue as to whether time is the essence of the contract, the learned Additional District Judge while adjudicating the issues answered that time is the essence of the contract and that plaintiff failed to prove that he was ready and willing to perform his part of contract. Though there was no separate issue in this regard but the parties with the knowledge about their pleadings proceeded to let in necessary evidence and also advanced written arguments in respect of such a contention and the learned Additional District Judge proceeded to appreciate the same. Even in the present Appeal it is not the contention of learned counsels as to whether such finding given by the learned Additional District Judge without there being any issue caused any prejudice to them in respect of their defence. Even during the course of hearing of the Appeal, the learned counsel appearing on behalf of the respective parties did not plead any prejudice caused on account of non-framing of any issue as to whether time is the essence of the contract or not and as to whether plaintiff was not ready and willing to perform his part of contract. Under the circumstances, I would like to proceed as to whether time is the essence of the contract or not. 43. PW.1 in his chief-examination affidavit, while adverting to the case of the plaint, deposed that as per the recitals of the agreement of sale, defendants have to get the land measured on or before 2/11/2009 and when he approached the defendants and requested them to receive the balance sale consideration to execute sale deed they bent upon to postpone the same on one pretext or the other as such he issued Exs.A-2 and A-3 legal notices. During the course of cross-examination of PW.1, he deposed that the plaint schedule property belonged to the husband of 1st defendant. He does not know if the schedule property is of ancestral property of the husband of 1st defendant or not. Believing that the plaint schedule property belongs to the 1st defendant, he purchased it. The total extent of land in Survey No.560/C is Ac.3.04 cents. The plaint schedule property is Ac.1.00 cents out of Ac.3.04 cents. In Ex.A-1 specific boundaries were clearly given. During his entire cross-examination, nothing is suggested to PW.1 that there was no need or necessity for the defendants to make survey of the plaint schedule property before execution of the sale deed. So, what all that was pleaded in the written statements by the defendants 1 and 2 that they had no need or necessity to survey the land is not suggested to PW.1 during his cross-examination. 44. DW.1, who is the 2nd defendant, in his chief-examination deposed that the contention of the plaintiff that they i.e., the defendants 1 and 2 have to measure the land and to handover the encumbrance certificates etc., is not sustainable because at the time of entering into agreement of sale itself plaintiff verified all the documents. When it comes to cross-examination, DW.1 categorically admitted that it is true that as per Ex.A-1 he himself and his mother have to get the land measured and obtain encumbrance certificate and supply encumbrance certificate and other link documents to the plaintiff before execution of the sale deed. He deposed in cross-examination that after execution of Ex.A-1 - agreement, they got the land measured and supplied all the required documents to the plaintiff. The land was measured with the help of a Surveyor. They had not applied to the Tahsildar for providing Surveyor to measure the land. He denied that they never got the land measured by a Surveyor and he deposed falsely. He denied that no notice in writing was given to the plaintiff asking him to attend the survey. He volunteers that everything was over and even the plaintiff was present at the time of survey. He denied that plaintiff never attended any plaint schedule survey. He denied that he and his mother failed to perform their part of contract and that they never had any intention to perform their part of contract. 45. He volunteers that everything was over and even the plaintiff was present at the time of survey. He denied that plaintiff never attended any plaint schedule survey. He denied that he and his mother failed to perform their part of contract and that they never had any intention to perform their part of contract. 45. The above admissions made by DW.1 during his crossexamination admitting their duty to get the land measured and to obtain Encumbrance Certificate and supply Encumbrance Certificate and other link documents to the plaintiff comes contra to the contents of the written statements of defendants 1 and 2. So, the defendants 1 and 2 in their written statements having denied their liability and responsibility to make survey of the land on the ground that plaintiff had knowledge of the measurements and everything was done before execution of agreement of sale but during cross-examination DW.1 admitted their responsibility in this regard. During cross-examination, he put forth a version as if after execution of Ex.A-1 they got the land measured and they supplied everything to the plaintiff. These things are not at all pleaded in their written statements. As admitted by DW.1, they did not make any application to the Tahsildar for providing a Surveyor to measure the land but his evidence in crossexamination was that the land was measured with the help of a Surveyor. There is no denial of the fact that just at the oral request of a party, a Surveyor would not come and measure the land. So, without making any application to the Tahsildar, to depute a Surveyor to measure the land and without securing the presence of the plaintiff to witness the survey, the so called survey as deposed by DW.1 could not have been done. So, the admissions made by DW.1 during his cross-examination negatives the defence of the defendants 1 and 2 that they have no responsibility, whatsoever, to measure the land before executing a sale deed. If really there was a survey by the surveyor as deposed by DW.1 in his cross-examination, without there being any basis in the pleadings, certainly, that would have been born out by the record. So, what all the defence of the defendants 1 and 2 disowning their responsibility to undertook survey is contra to the contents of Ex.A-1. If really there was a survey by the surveyor as deposed by DW.1 in his cross-examination, without there being any basis in the pleadings, certainly, that would have been born out by the record. So, what all the defence of the defendants 1 and 2 disowning their responsibility to undertook survey is contra to the contents of Ex.A-1. Execution of Ex.A-1 by the defendants is voluntary and they had the knowledge of the contents of Ex.A-1 which casts an obligation on their part to get the land measured and to handover necessary documents to the plaintiff at the time of execution of the sale deed. As evident from the written statements, they did not discharge the said obligation undoubtedly on the ground that there was no necessity for doing so as the plaintiff had knowledge of the extents and he was delivered with everything at the time of execution of Ex.A-1 itself. If that is the case, there would not have been any occasion for both the parties to mention the same in Ex.A-1. PW.1 during his cross-examination deposed that when he insisted the defendants 1 and 2 to measure the land at the time of Ex.A-1 itself, they promised to do it at a later time before execution of the sale deed. It is elicited from the cross-examination of PW.1 and the same defence is suggested to DW.1 during cross-examination which he denied. So, it is clear that though Ex.A-1 contemplates that the plaintiff has to pay the balance sale consideration on or before 2/11/2009 to get the sale deed executed and that if the plaintiff fails to do so, the advance amount stands forfeited and the agreement stands cancelled but at the same time, it contemplates a further obligation on the part of the defendants 1 and 2 to undertook a survey to ascertain the measurements of the land and to deliver the necessary documents to the plaintiff at the time of execution of the sale deed. In my considered view, the obligation cast upon the plaintiff to get the sale deed on or before 2/11/2009 is dependent upon the reciprocal obligation to be performed by the defendants to measure the land and to deliver necessary documents at the time of sale deed to the plaintiff. 46. Learned counsel for the appellant would rely upon a decision of the Hon'ble Apex Court in Ramathal (1st supra). 46. Learned counsel for the appellant would rely upon a decision of the Hon'ble Apex Court in Ramathal (1st supra). The factual matrix in the above said case was as to whether the survey was conducted in accordance with the stipulations contained in the agreement of sale or not. Though the vendor made a pleading that subsequent to execution of the agreement the survey was conducted but the vendor failed to substantiate his pleadings. Viewing the same, the Hon'ble Apex Court held that whether time is the essence of contract would depend upon the facts and circumstances of each case. The Hon'ble Apex Court further held therein that after taking into consideration the terms of the contract, the conduct of the parties and other material placed before them that contention of the seller that time is the essence of the contract is negated. 47. Now, coming to the present case on hand, according to the written statements of the defendants, time is the essence of the contract and the advance amount stands forfeited and the agreement of sale stands cancelled. They denied their liability and responsibility to measure the plaint schedule property at the time of execution of the sale deed. They did not deny the evidence of PW.1 in cross-examination in this regard. On the other hand, DW.1 admitted the contents of Ex.A-1 and their liability and responsibility to make survey of the land. The case on hand depicts that the time fixed as 2/11/2009 as the date for getting execution of the sale deed by the plaintiff can only be possible if the defendants had come forward to handover the survey report and necessary documents to the plaintiff with regard to measurements of the plaint schedule property. Absolutely, there is no positive pleading from the defendants to prove that they discharged their obligation in this regard. 48. Though PW.1 deposed in cross-examination that under Ex.A-1 agreement he agreed to pay the sale consideration in three definite installments which the trial Court also referred to disbelieve the case of the plaintiff but in fact as evident from Ex.A-1 no such stipulation is there. At the time of crossexamination of PW.1, PW.1 absolutely mistook Ex.A-1. Even the learned Additional District Judge did not look into Ex.A-1 properly. Ex.A-1 reveals that the rest of the balance sale consideration has to be paid on or before 2/11/2009. At the time of crossexamination of PW.1, PW.1 absolutely mistook Ex.A-1. Even the learned Additional District Judge did not look into Ex.A-1 properly. Ex.A-1 reveals that the rest of the balance sale consideration has to be paid on or before 2/11/2009. It never discloses that the plaintiff had to pay the balance sale consideration in three definite installments from the date of Ex.A-1. So, what was not there in Ex.A-1 was not supposed to be spoken by PW.1 and to be appreciated by the learned Additional District Judge. So, the learned Additional District Judge to negative the case of the plaintiff relied upon the evidence of PW.1 as above without looking into the contents of Ex.A-1. The stipulation as against the plaintiff cannot be unilateral but it is reciprocal. Having regard to the above, I am of the considered view that as the plaintiff and the defendants have to perform their obligations mutually pursuant to the terms and conditions laid down in Ex.A-1, the contention of the defendants that time is the essence of contract and that the advance amount paid by the plaintiff stands forfeited and that the agreement stands cancelled is not at all tenable. 49. Learned counsel for the respondents 1 and 2 relied upon two decisions in support of his contention. Turning to the decision in Katta Sujatha Reddy (14th supra), a suit was filed by the plaintiff before the trial Court seeking specific performance of agreement of sale. The trial Court held that vendor never intended to treat the time as the essence of contract and that the vendor made a false plea but it does not benefit the case of the purchaser because the purchaser also acted with all laches and while holding so the trial Court dismissed the suit of the plaintiff. When an Appeal was preferred before the High Court of Telangana, Appeal was allowed in part granting the relief of specific performance of agreement of sale. Challenging the same, an Appeal was filed before the Hon'ble Apex Court wherein the Hon'ble Apex Court appreciated the facts in the light of the evidence on record and allowed the Appeal by setting-aside the judgment of the High Court of Telangana. Challenging the same, an Appeal was filed before the Hon'ble Apex Court wherein the Hon'ble Apex Court appreciated the facts in the light of the evidence on record and allowed the Appeal by setting-aside the judgment of the High Court of Telangana. The finding given by the Hon'ble Apex Court was that the contract was breached due to conduct of the plaintiff-purchaser, who was not willing to perform the contract after entering into a time sensitive agreement. 50. Turning to the other decision relied upon by learned counsel for the respondents 1 and 2 in Desh Raj (13th supra), Second Appeal came before the Hon'ble Apex Court as against the judgment of the first appellate Court i.e., from Punjab and Haryana High Court confirming the judgment of the trial Court that decreed the suit for recovery of the earnest money. The trial Court made findings that it was not possible to grant a decree for specific performance of agreement of sale but directed for refund of the advance amount though the respondent neither pleaded for refund of the earnest money nor claimed any damages. The Hon'ble Apex Court held that the decree granted by the Court below was hinged on a logical fallacy where the appellants were held to be unjustly enriched on the premise that the contract was rendered impossible to perform due to acquisition proceedings. On the contrary, the contract automatically stood terminated as per the stipulated contractual terms. While holding so, the Hon'ble Apex Court allowed the Appeal. 51. Even the factual matrix in the above said case stood on a different footing for the reason that DW.1 categorically admitted about their obligation to be performed pursuant to Ex.A-1 which they failed to perform. Hence, the aforesaid two decisions are of no use to the case of respondents/defendants 1 and 2 to contend that on account of non-compliance of the stipulations in Ex.A-1 the advance amount and the agreement stands cancelled. 52. Hence, the aforesaid two decisions are of no use to the case of respondents/defendants 1 and 2 to contend that on account of non-compliance of the stipulations in Ex.A-1 the advance amount and the agreement stands cancelled. 52. As evident from the impugned judgment, the learned Additional District Judge proceeded to negative the contention of the plaintiff on the ground that the plaintiff has to get the sale deed executed on or before 2/11/2009 and the learned Additional District Judge mistook the contents of Ex.A-1 as if there was an occasion for the plaintiff to pay the sale consideration within three definite installments on or before 2/11/2009, which fact is incorrect according to Ex.A-1. The learned Additional District Judge proceeded to decide the case against the plaintiff on the ground that plaintiff failed to prove his presence on 2/11/2009 before the SRO, Adoni so as to get the sale deed executed and failed to prove his willingness to perform his part of contract. The learned Additional District Judge did not look into the terms and conditions in Ex.A-1 casting an obligation on the part of the defendants to measure the land at the time of sale deed and the admissions made by DW.1 in his cross-examination. Insofar as the finding that time is the essence of the contract, the judgment of the learned Additional District Judge is not on proper lines. There was no appreciation of the evidence looking into the admissions made by DW.1 in cross-examination and further looking into the terms and conditions of Ex.A-1 regarding the things to be complied by the defendants. 53. Having regard to the above, I am of the considered view that the terms and conditions in Ex.A-1 are to be mutually performed by both the parties. In the absence of the defendants showing that they performed their part of contract as regards the survey and ready with necessary documents, their contention that time is the essence of the contract and that the advance amount is forfeited and that agreement of sale shall stand cancelled cannot stand to any reason. 54. Now, I would like to appreciate the evidence as to whether the plaintiff before the trial Court proved that he has always been ready and willing to perform his part of contract in the manner as set out. 54. Now, I would like to appreciate the evidence as to whether the plaintiff before the trial Court proved that he has always been ready and willing to perform his part of contract in the manner as set out. Plaint averments contain a pleading that the plaintiff has been always ready and willing to perform his part of contract. On the other hand, the contention of the defendants 1 and 2 is that the plaintiff was never ready and willing to perform his part of contract. 55. PW.1 in his chief-examination affidavit adverted to the contents of the plaint averments as such he spoke to the fact that he was always ready and willing to perform his part of contract. Though he was present on 2/11/2009 at SRO, Adoni defendants 1 and 2 did not turn up along with 3rd defendant as replied in Ex.A-4. As seen from Ex.A-2, it is the telegram notice issued by the plaintiff to the defendants 1 and 2 on 31/10/2009 demanding the defendants to execute a regular sale deed on 2/11/2009 after receiving the balance sale consideration and that the plaintiff will be present before the SRO, Adoni on 2/11/2009. Ex.A-3 is the replica of legal notice to Ex.A-2 but the mode of sending Ex.A-3 was by way of courier service. There is no dispute that the defendants 1 and 2 received Exs.A-2 and A-3. Ex.A-4 is the legal notice issued by the defendants, to the plaintiff's counsel who issued the legal notice, raising counter allegations that the plaintiff was not willing to perform his part of contract and ultimately demanding the plaintiff to get a demand draft in the name of the 1st defendant for the rest of the balance sale consideration and the defendants 1 and 2 along with 3rd defendant will be present to execute the sale deed. It is apparent from Ex.A-4 that the Advocate for the plaintiff who issued Exs.A-2 and A-3 received Ex.A-4 on 2/11/2009 at 11:15 a.m. as evident from the endorsement thereof. 56. Now, it is relevant to look into the cross-examination part of PW.1. During cross-examination, PW.1 deposed that on 2/11/2009 they were present at SRO, Adoni keeping the balance sale consideration with them to obtain the registered sale deed but the defendants 1 and 2 did not come. 56. Now, it is relevant to look into the cross-examination part of PW.1. During cross-examination, PW.1 deposed that on 2/11/2009 they were present at SRO, Adoni keeping the balance sale consideration with them to obtain the registered sale deed but the defendants 1 and 2 did not come. He denied that by 31/10/2009 they were not in possession of the balance sale consideration amount and only as an eye wash they issued Exs.A-2 and A-3. He admitted that in Ex.A-4 reply, defendants 1 and 2 asked them to present at the SRO, Adoni with a demand draft for balance sale consideration amount. Witness volunteers that his Advocate told him about the receipt of Ex.A-4 on the evening of 2/11/2009. He denied a suggestion that his Advocate told him on phone about the receipt of Ex.A-4 legal notice immediately after 11:00 a.m. Either on 2/11/2009 or on 3/11/2009 he did not issue any notice to the defendants 1 and 2 stating that he will be present at the SRO, Adoni on 2/11/2009 with balance of sale consideration. On 2/11/2009 they purchased the stamp papers for the purpose of obtaining a sale deed and they are the proof that on 2/11/2009 they went to the SRO, Adoni. He volunteers that scribe of Ex.A-1 agreement of sale is a witness about their presence at the SRO, Adoni on 2/11/2009 and they have not filed the said stamp papers in this case. He can identify the signature of the 2nd defendant. Copy of the gift deed bearing document No.7071/2009 of SRO, Adoni shown to him contains the signature of the 2nd defendant. He denied that on 2/11/2009 defendants 1 and 2 were present at the SRO, Adoni and that they (PW.1) did not come to SRO, Adoni. He deposed that as the defendants did not come to the SRO on 2/11/2009, they deposited the amount of Rs.11,00,000.00 in his Ex.A-7 bank account on 3/11/2009 in two spells i.e., Rs.9,00,000.00 and Rs.2,00,000.00 respectively. He denied that on 3/11/2009, they did not deposit the amount in two spells as above but they have withdrawn the amount of Rs.9,00,000.00 on 3/11/2009 and Rs.2,00,000.00 on 4/11/2009 in two spells. He did not withdraw any amount from Ex.A-7 account on 2/11/2009. On 27/1/2010 they obtained a pay order for Rs.11,00,000.00. He denied that he is deposing false. He denied that on 3/11/2009, they did not deposit the amount in two spells as above but they have withdrawn the amount of Rs.9,00,000.00 on 3/11/2009 and Rs.2,00,000.00 on 4/11/2009 in two spells. He did not withdraw any amount from Ex.A-7 account on 2/11/2009. On 27/1/2010 they obtained a pay order for Rs.11,00,000.00. He denied that he is deposing false. Plaintiff examined PW.3, the so called scribe of Ex.A-1, in support of his contention that on 2/11/2009 he was present at the SRO, Adoni along with PW.3. 57. DW.1 in his chief-examination affidavit put forth his case in tune with the written statement averments by deposing that along with the 1st defendant he was physically present at the SRO, Adoni on 2/11/2009 but the plaintiff did not turn up. Defendants 1 and 2 relied upon Ex.B-1 the gift deed said to be attested by the 2nd defendant i.e., DW.1. It is no doubt true that in view of the admissions made by PW.1 in cross-examination and further as evident from the evidence of DW.2 coupled with Ex.B-1 DW.1 i.e., the 2nd defendant attested Ex.B-1 registered gift deed of a third party acting as a witness to Ex.B-1. He was also an identifying witness. So, the defendants 1 and 2 sought to rely upon Ex.B-1 to probabilize their presence on 2/11/2009. 58. Now coming to the evidence of DW.1 in cross-examination, he deposed that it is true that the plaintiff got issued Exs.A-2 and A-3 notices to them and they gave reply. May be the date 2/11/2009 was the final day for execution of the registered sale deed with regard to Ex.A-1 transaction. It is true that in their reply notice they stated that he, his mother and his sister would be present at the SRO, Adoni. He denied that on 2/11/2009 he and other defendants were not present at the SRO. He denied that plaintiff, Srinivasulu and document writer were alone present. He denied that wantonly they did not give reply notice on 31/10/2009 and 1/11/2009 and they got issued reply on 2/11/2009 to mislead the plaintiff. It is true that the plaintiff gave them half of the sale consideration amount as advance. He denied that plaintiff was present along with the document writer on 2/11/2009 at SRO keeping cash of Rs.11,00,000.00 with him. It is true that the plaintiff gave them half of the sale consideration amount as advance. He denied that plaintiff was present along with the document writer on 2/11/2009 at SRO keeping cash of Rs.11,00,000.00 with him. After 2/11/2009 they did not issue any notice to the plaintiff stating that they were ready to execute a sale deed after receiving the balance sale consideration. He denied that the plaintiff got issued notice on 28/1/2010 stating that he took demand draft for Rs.11,00,000.00 in the name of his mother (D-1). He further deposed in cross-examination that as there was no necessity, defendants 1 and 3 did not sign Ex.B-1. He denied that only for the purpose of defence in this case, he signed Ex.B-1 at the SRO, Adoni on that day and that it was executed with a pre-plan for his defence. During the cross-examination of DW.2 there is no dispute that DW.1 signed Ex.A-1 as a witness. According to the evidence of DW.2, the preparation of Ex.B-1 was happened at 03:00 p.m. and it was submitted to the Sub-Registrar at 04:00 p.m. and that after that the attestors attested Ex.B-1. It is also his evidence that from 10:15 a.m. onwards K. Srinivasulu and his mother (D-1 and D-2) were present. During cross-examination, he admitted that 1st defendant is not the attestor to the original of Ex.B-1. He denied that original of Ex.B-1 was purposefully brought into existence to use it in this case. 59. Admittedly, in support of the case of the plaintiff that he was physically present on 2/11/2009 at SRO, Adoni there was only the evidence of PW.3. Defendants 1 and 2 elicited during cross-examination of PW.1 that plaintiff purchased stamp papers to show his presence at the SRO, Adoni. It is no doubt true that the so called stamp papers purchased by PW.1 as deposed by him in cross-examination were not filed before the trial Court. The trial Court made negative comments against the plaintiff on the ground that if really the plaintiff was present at SRO, Adoni and purchased the stamp papers to show his presence, he would have filed the same during the course of his evidence. It was the solitary reason for the learned Additional District Judge to disbelieve the presence of PW.1 at the SRO, Adoni on 2/11/2009. 60. It was the solitary reason for the learned Additional District Judge to disbelieve the presence of PW.1 at the SRO, Adoni on 2/11/2009. 60. The simple question that falls for consideration is as to whether mere non-filing of the so called stamp papers purchased by PW.1 to show his presence at the SRO, Adoni would warrant the Court to make adverse findings. It is to be noticed that plaintiff relied upon various circumstances by way of necessary confrontation during the course of cross-examination of DW.1 that he had no knowledge about the contents of Ex.A-4 reply till the evening of 2/11/2009 and that Ex.A-4 reply was given on the ultimate day of 2/11/2009 to mislead the plaintiff etc. The judgment of the trial Court did not disclose that the trial Court duly considered the cross-examination part of DW.1. 61. So now this Court has to see as to whether there are strong circumstances to probabilize the presence of the plaintiff on 2/11/2009 at the Sub-Registrar's Office, Adoni. 62. Both the parties had knowledge about the contents of Ex.A-1 regarding the stipulation that plaintiff has to pay the balance sale consideration on or before 2/11/2009 so as to obtain a regular registered sale deed and that defendants 1 and 2 have to get the land measured and they have to get ready with the necessary documents to hand over the same to the plaintiff at the time of registration of the sale deed. As seen from Exs.A-2 and A-3, they were dtd. 31/10/2009. There was no dispute about the receipt of Exs.A-2 and A-3 by the defendants 1 and 2 on 31/10/2009. So, the defendants kept quiet without responding on 31/10/2009. Even they kept quiet without issuing a suitable reply on 1/11/2009 requiring the plaintiff to be present along with a draft or pay order in the name of the 1st defendant in respect of the balance sale consideration on 2/11/2009. There is no denial of the fact that defendants 1 and 2 got issued reply on the last day i.e., on 2/11/2009 where the parties were supposed to comply their obligations arising from Ex.A-1. As pointed out, the reply under Ex.A-4 was received by the learned Advocate for the plaintiff on 2/11/2009 at 11:15 a.m. There was a specific endorsement made to that effect by the learned counsel. As pointed out, the reply under Ex.A-4 was received by the learned Advocate for the plaintiff on 2/11/2009 at 11:15 a.m. There was a specific endorsement made to that effect by the learned counsel. Defendants 1 and 2 had knowledge that they demanded the plaintiff to obtain a demand draft in the name of the 1st defendant on 2/11/2009. So, the defendants 1 and 2 on 2/11/2009 alone demanded the plaintiff to obtain a demand draft in the name of the 1st defendant. The contents of Exs.A-1 and A-2 are that both the defendants jointly received the advance amount. Another content in Ex.A-4 that the defendants 1 and 2 will bring 3rd defendant also to execute the sale deed was nothing but surprise. Contents of Ex.A-1 were that defendants 1 and 2 professing that they had rights in the plaint schedule property executed the same. There was no whisper in Ex.A-1 that the 3rd defendant has any share in the plaint schedule property. They have got knowledge that according to Exs.A-2 and A-3 plaintiff undertaken to present himself before the SRO, Adoni on 2/11/2009. So, virtually they were within the knowledge that plaintiff would have no probability or possibility to know the contents of Ex.A-4 especially when it was sent to the Advocate for the plaintiff, who issued Exs.A-2 and A-3, at about 11:15 a.m. PW.1 volunteers in cross-examination that he came to know the contents of Ex.A-4 only in the evening of 2/11/2009. He denied that his Advocate told him by phone about the contents in Ex.A-4. So, except the self serving suggestion put to PW.1 there remained nothing in support of the contention of the defendants 1 and 2 that plaintiff had knowledge of the contents of Ex.A-4 immediately after 11:15 a.m. Apart from this, it is not understandable as to why the defendants kept quiet on 31/10/2009 and 1/11/2009 without making the demand to the plaintiff like Ex.A-4 contents to obtain a demand draft and to present himself on 2/11/2009. It is the contention of the plaintiff that defendants 1 and 2 purposefully kept quiet on 31/10/2009 and 1/11/2009 so as to mislead the plaintiff. So, the contention of the plaintiff is that he was physically present on 2/11/2009 along with the cash of Rs.11,00,000.00. Except the testimony of PW.3 there is nothing in support of the above in the form of direct evidence. So, the contention of the plaintiff is that he was physically present on 2/11/2009 along with the cash of Rs.11,00,000.00. Except the testimony of PW.3 there is nothing in support of the above in the form of direct evidence. As pointed out, the contents of Ex.A-4 cannot be attributed to PW.1 by the time he went to the SRO, Adoni on 2/11/2009. The defendants failed to substantiate their contention that the advocate for the plaintiff communicated to the plaintiff about the demand in Ex.A-4 immediately after 11:15 a.m. 63. It is to be noticed that even according to the defendants 1 and 2 in Ex.A-4 they undertook to bring the 3rd defendant i.e., daughter of the 1st defendant and sister of the 2nd defendant respectively so as to execute a sale deed. Throughout the evidence of DW.1 there is no explanation as to why he did not bring DW.3 to the SRO, Adoni on 2/11/2009 along with them i.e., defendants 1 and 2. It is not the case of the defendants that the 1st defendant signed Ex.B-1 as attestor thereof. So, when the defendants 1 and 2 are of such persons that they had taken every precaution to see that their presence would be borne out by the record it is not understandable as to why the 1st defendant could not sign Ex.B-1 as an attesting witness. So, except the self serving evidence of DWs.1 and 2 even there remained nothing in support of the contention of the defendants that the 1st defendant was also present on 2/11/2009 throughout along with the 2nd defendant. So, obviously the allegation of the defendants that the 1st defendant was also present along with DW.1 at the SRO, Adoni was not at all probabilized. No explanation is forthcoming as to why 1st defendant did not sign Ex.A-1 as one of the attesting witnesses. According to DW.1, there is no need or necessity for the 1st defendant to sign Ex.B-1. The said explanation is totally non-convincing especially when the 2nd defendant to probabilize his presence signed Ex.B-1 as one of the attesting witnesses. As pointed out, the very act of defendants 1 and 2 keeping quiet till 2/11/2009 and putting PW.1 in surprise by making a demand for pay order or draft in the name of the 1st defendant is nothing but an improbability. As pointed out, the very act of defendants 1 and 2 keeping quiet till 2/11/2009 and putting PW.1 in surprise by making a demand for pay order or draft in the name of the 1st defendant is nothing but an improbability. In such circumstances, defendants 1 and 2 were supposed to put their demand in writing so as to enable the plaintiff to look into their demand. Failure to respond either on 31/10/2009 or 1/11/2009 to Exs.A-2 and A-3 on the part of the defendants is coming in their way to contend that they acted with all diligence and bona fide. 64. It is to be noticed that substantial part of the amount was received by the defendants 1 and 2 under Ex.A-1. Rest of the balance sale consideration was Rs.11,00,000.00. Both the parties had knowledge about the terms and conditions in Ex.A-1. Plaintiff had knowledge about the default clause that in case if he deliberately fails to pay the rest of the balance sale consideration, it shall stand forfeited and agreement stands cancelled. In such circumstances, it is improbable to assume that plaintiff failed to present himself on 2/11/2009 at SRO, Adoni. If he fails to present himself at SRO, Adoni he will be a losing party. The contention of the defendants is that they made such a demand against the plaintiff as he had no financial capacity and the plaintiff failed to pay the balance sale consideration whenever the defendants 1 and 2 were requesting. It is to be noticed that the plaintiff had the limitation till 2/11/2009 to pay the balance sale consideration amount. The mode of payment of advance sale consideration was not there in Ex.A-1. In the absence of any whisper in Ex.A-1 the supposition is that defendants 1 and 2 received the advance amount by hand from the plaintiff at the time of Ex.A-1. 65. Though the plaintiff relied upon the entries in the bank passbook i.e., Ex.A-7, his contention is that as the defendants did not come forward to execute the sale deed on 2/11/2009, he redeposited the amount in the bank account. As evident from Ex.A-7, the fact remained is that on 2/11/2009 there was cash deposit of Rs.5,00,000.00 at one hand and another deposit of Rs.4,88,000.00 in the account of the plaintiff. It further shows the cash deposit of Rs.1,10,000.00 on 2/11/2009. As evident from Ex.A-7, the fact remained is that on 2/11/2009 there was cash deposit of Rs.5,00,000.00 at one hand and another deposit of Rs.4,88,000.00 in the account of the plaintiff. It further shows the cash deposit of Rs.1,10,000.00 on 2/11/2009. It further shows the withdrawal amount of Rs.9,00,000.00 on 3/11/2009 and Rs.2,00,000.00 on 4/11/2009 by way of two cheques. During the course of cross-examination, PW.1 deposed that as the defendants did not come to the SRO, Adoni on 2/11/2009 and as they did not receive the balalnce sale consideration, they deposited the amount of Rs.11,00,000.00 in his Ex.A-7 account on 3/11/2009 in two spells i.e., Rs.9,00,000.00 and Rs.2,00,000.00. He denied that they did not make such deposit but in fact they have withdrawn that amount on 3/11/2009 and 4/11/2009 respectively. As pointed out above, there are entries regarding the withdrawal of Rs.9,00,000.00 on 3/11/2009 and Rs.2,00,000.00 on 4/11/2009. Apart from this, the entries reveals that there are three deposits on 2/11/2009 i.e., Rs.5,00,000.00 which is quietly apparent from Ex.A-7. According to the evidence of PW.1 in crossexamination, he did not withdraw any amount from his bank account i.e., Rs.11,00,000.00 so as to pay to the defendants. According to him, he was having cash of Rs.11,00,000.00 with him and he carried the same to the SRO, Adoni. A look at the entries in Ex.A-7 reveals that there were deposit of cash of Rs.4,88,000.00, Rs.5,00,000.00 and Rs.1,10,000.00 and closing balance was around Rs.11,01,407.00 on 2/11/2009 and withdrawal of Rs.11,00,000.00 on 3/11/2009 and 4/11/2009. So by looking into the entries in Ex.A-7, it cannot be held that plaintiff was not having any financial capacity. Entries in Ex.A-7 show that the plaintiff was turning around the cash by way of deposits and withdrawals from his account. The entries relating to 2/11/2009 regarding the deposit of huge amounts probabilize the financial capacity of the plaintiff as on 2/11/2009 to pay Rs.11,00,000.00 to the defendants. Though there was no entry regarding the withdrawal of the amount prior to 2/11/2009, it cannot be held that the plaintiff had no financial capacity. As pointed out, the plaintiff had knowledge that if he fails to present himself at SRO on 2/11/2009, the condition in Ex.A-1 will come into operation thereby he would be the losing party. Though there was no entry regarding the withdrawal of the amount prior to 2/11/2009, it cannot be held that the plaintiff had no financial capacity. As pointed out, the plaintiff had knowledge that if he fails to present himself at SRO on 2/11/2009, the condition in Ex.A-1 will come into operation thereby he would be the losing party. So, when he was having financial capacity, it is quite improbable to assume that he failed to present himself at the SRO, Adoni on 2/11/2009. So, merely because the plaintiff did not file the so called stamp papers said to have been purchased on 2/11/2009, his case cannot be thrown out. As pointed out, there are strong probabilities in support of the case of the plaintiff about his financial capacity and in fact the act of the defendants in issuing Ex.A-4 reply notice on the last date i.e., on 2/11/2009 setting forth new conditions is nothing but improbable. They failed to bring DW.3 which they have undertaken in Ex.A-4. It is for them to explain as to how they would execute the sale deed especially when they undertook to bring DW.3 to execute the sale deed. The presence of DW.2 with the 1st defendant at the SRO, Adoni is highly doubtful as she would have signed as an attestor to Ex.B-1. All these circumstances improbabilize the defendants' theory. In my considered view, there are strong probabilities in support of the case of the plaintiff that plaintiff was ready and willing to perform his part of contract. It is very easy to sign a document like Ex.B-1 by DW.1 i.e., the 2nd defendant without knowledge to the plaintiff at SRO. Though it is the contention of the 1st defendant that he and 2nd defendant were present in the SRO, Adoni throughout on 2/11/2009, it is never their case that they brought the 3rd defendant to the SRO, Adoni and that they brought any documents regarding the survey and other documents pertaining to the plaint schedule property. 66. In the light of the above, I am of the considered view that as on 2/11/2009, the plaintiff was ready and willing to perform his part of contract. 66. In the light of the above, I am of the considered view that as on 2/11/2009, the plaintiff was ready and willing to perform his part of contract. On the other hand, the defendants 1 and 2 are the defaulting parties as they failed to bring DW.3 as undertaken by them and as they failed to probabilize the presence of the 1st defendant and as they deliberately appear to have issued Ex.A-4 on 2/11/2009 without giving any chance to the plaintiff to know the contents of Ex.A-4. If they were bona fide enough they would have replied either on 31/10/2009 or on 1/11/2009 to put forth their demand before the plaintiff so as to enable him to look into the demand and comply their request to obtain the draft in the name of the 1st defendant alone. 67. Learned counsel for the appellant would rely upon a decision of the Hon'ble Apex Court in Sughar Singh (9th supra). It is a case where the plaintiff filed a suit for specific performance before the trial Court. The trial Court found favour with the case of the plaintiff with regard to his willingness and readiness to perform his part of contract and decreed the suit. The 1st appellate Court confirmed the judgment of the trial Court. The High Court reversed the concurrent findings of the Courts below. Ultimately when the matter was canvassed before the Hon'ble Apex Court, the Hon'ble Apex Court looked into the pleadings and evidence on record and held that evidence on record proved that the plaintiff was ready and willing to perform his part of contract. 68. Coming to the present case on hand, there is no dispute as to the averments in the plaint with regard to the compliance of Sec. 16(c) of the Specific Relief Act, 1963 that plaintiff has always been ready and willing to perform his part of contract. As pointed out, Exs.A-2 and A-3 were issued by the plaintiff so as to demand the defendants to comply their obligation. 69. In the light of the above, insofar as the pleading and proof is concerned, plaintiff adduced convincing evidence before the trial Court in my considered view. The learned Additional District Judge simply on the ground that plaintiff did not file the stamp papers purchased in his name to show his presence at the SRO, Adoni disbelieved the case of the plaintiff. The learned Additional District Judge simply on the ground that plaintiff did not file the stamp papers purchased in his name to show his presence at the SRO, Adoni disbelieved the case of the plaintiff. The trial Court did not look into the cross-examination part of DW.1. The trial Court did not look into the fact that defendants 1 and 2 failed to put forth any explanation as to why they did not bring the 3rd defendant. The trial Court did not look into the fact that presence of 1st defendant was not at all probabilized like the presence of the 2nd defendant. The trial Court did not look into the fact that the plaintiff had no knowledge whatsoever about the contents of Ex.A-4 reply with certain new demands by the defendants 1 and 2. The learned Additional District Judge erred in appreciating the evidence on record in proper perspective. In the light of the above, I am of the considered view that the evidence on record proves the fact that the plaintiff was ready and willing to perform his part of contract and the plaintiff made out strong probabilities in support of his case as pointed out above. 70. As there are strong probabilities in favour of the plaintiff's case that PW.1 was present at the SRO, Adoni on 2/11/2009, plaintiff can as well proved his readiness and willingness even subsequent to 2/11/2009. There is no dispute that in pursuance of further reply notice under Ex.A-6, plaintiff obtained a demand draft for Rs.11,00,000.00 in the name of the 1st defendant. There is no dispute about obtaining of demand draft in the name of 1st defendant by the plaintiff subsequent to 2/11/2009 while issuing Ex.A-6 reply notice. So, all this goes to show the further readiness and willingness of the plaintiff to perform his part of contract even subsequent to 2/11/2009. As the defendants 1 and 2 failed to substantiate their contentions regarding their defence on 2/11/2009, that was not the end of the day for both the parties to act further i.e., to execute a sale deed in the name of the plaintiff. PW.1 deposed in cross-examination that either on 2/11/2009 or 3/11/2009 they did not issue any notice to the defendants 1 and 2 stating that they were present at the SRO, Adoni on 2/11/2009 with balance sale consideration. PW.1 deposed in cross-examination that either on 2/11/2009 or 3/11/2009 they did not issue any notice to the defendants 1 and 2 stating that they were present at the SRO, Adoni on 2/11/2009 with balance sale consideration. DW.1 during cross-examination deposed that after 2/11/2009 they did not issue any notice to the plaintiff stating that they were ready to execute the sale deed after receiving the balance sale consideration. Non-issuance of notice by the plaintiff immediately after 2/11/2009 and non issuance of notice by DW.1 immediately after 2/11/2009 have no significance at all in the light of the above circumstances. Therefore, the evidence on record further proves that even on 2/11/2009 and subsequent to that plaintiff was ready and willing to perform his part of contract. 71. Now, this Court has to see whether the fact that the defendants 1 and 2 failed to perform their obligations pursuant to Ex.A-1 and further the plaintiff was ready and willing to perform his part of contract would enable them to get a decree of specific performance of agreement of sale from the defendants 1 to 3 as prayed. 72. There is no dispute that the 3rd defendant was not a party to Ex.A-1. The answers spoken by PW.1 in cross-examination means that he does not know as to whether the plaint schedule property was ancestral property. During cross-examination, PW.1 deposed that the total extent of land in Survey No.560/C is Ac.3.04 cents and the plaint schedule property is Ac.1.00 cents out of Ac.3.04 cents. In Ex.A-1 agreement of sale, the specific boundaries of the schedule property were mentioned. The 1st defendant is owner of the entire Ac.3.04 cents of land. In the entire cross-examination of PW.1 done on behalf of the defendants 1 and 2, there is no whisper that the 3rd defendant had share in the property. During cross-examination of PW.1 on behalf of 3rd defendant, she got suggested to him that Ex.A-3 is not binding on her which PW.1 denied. 73. Coming to the evidence of DW.1, who is the 2nd defendant, he simply adverted to the contents of his written statement. Even his evidence in chief-examination he did not clarify as to how they made a whisper in Ex.A-4 they would bring 3rd defendant so as to execute the sale deed. 73. Coming to the evidence of DW.1, who is the 2nd defendant, he simply adverted to the contents of his written statement. Even his evidence in chief-examination he did not clarify as to how they made a whisper in Ex.A-4 they would bring 3rd defendant so as to execute the sale deed. He deposed during the cross-examination on behalf of 3rd defendant that it is true that the plaint schedule property is their ancestral property and the 3rd defendant has a share in the plaint schedule property. It is true that the said sale agreement does not contain the signature of the 3rd defendant. Plaintiff gave him a notice asking him to register the land. He gave a reply undertaking to attend the SRO, Adoni along with 3rd defendant. It is true that the 3rd defendant had nothing to do with the sale agreement as they executed the agreement without her knowledge and without her consent. So, though DW.1 did not spell out the circumstances under which he along with 1st defendant executed Ex.A-1 without joining 3rd defendant as a party but when it comes to cross-examination, he was sailing with the case of the 3rd defendant. The contention of the plaintiff is that the defendants 1 to 3 were in collusive course to defeat the claim of the plaintiff. 74. Now coming to the cross-examination of DW.1, he deposed that though the total extent of land in survey No.560/C is Ac.3.74 cents, Government acquired Ac.0.70 cents of land out of Ac.3.74 cents to lay a bypass road. Compensation amount was given to his mother by way of cheque. His mother received the entire compensation amount. He knows the issuance of the cheque by the Government in favour of his mother and in turn his mother has withdrawn that amount. His sister does not have knowledge of the said fact. He denied that his sister had knowledge of all those facts. He admitted that his mother executed a sale deed in favour of his brother-in-law by name Linganna who is the husband of Shivamma in respect of Ac.2.04 cents. His sister got knowledge about the execution of the sale deed by his mother in favour of his brother-in-law. He deposed that his sister raised objection for claiming share in respect of the land as well as compensation amount. His sister got knowledge about the execution of the sale deed by his mother in favour of his brother-in-law. He deposed that his sister raised objection for claiming share in respect of the land as well as compensation amount. It is true that his mother sold an extent of Ac.2.04 cents of land to his brother-in-law on 10/11/2009 for Rs.62,000.00. Witness admitted that the deed dtd. 10/11/2009 was marked as Ex.B-2. 75. Coming to the cross-examination of DW.3, she deposed that 40 years ago her marriage took place. One Kuruva Mallaiah is her father-in-law. Linganna is her husband (purchaser under Ex.B-2). She is elder to the 2nd defendant. She denied that defendants 1 and 2 executed Ex.A-1 agreement of sale in favour of the plaintiff with her knowledge. She denied that defendants 1 and 2 sold Ac.1.00 cents of land for Rs.21,00,000.00 to the plaintiff. She admitted again that it is within her knowledge that defendants 1 and 2 informed her prior to execution of Ex.A-1 agreement of sale in favour of the plaintiff. She denied that she is aware of the fact that PW.1 gave Rs.10,00,000.00 as advance sale consideration under Ex.A-1 to the defendants 1 and 2 and that she told to defendants 1 and 2 that she would put her signature on the date of registration. She does not know whether the value of the plaint schedule property increased after execution of Ex.A-1 or not. She does not know as to whether the defendants 1 and 2 got issued a reply to PW.1 by mentioning her name. It is true that her husband purchased Ac.2.04 cents of land from 1st defendant. The said extent was out of Ac.3.04 cents. The plaint schedule property is part of total extent of Ac.3.04 cents. She does not know the amount paid by her husband for purchase of Ac.2.04 cents of land from 1st defendant. She denied her husband paid only Rs.62,000.00 to 1st defendant to purchase Ac.2.04 cents of land. She denied that the sale transaction between her husband and 1st defendant was after the date of Ex.A-1. She denied that she, defendants 1 and 2 created a nominal sale deed in favour of her husband after the date of Ex.A-1 with an intention to evade registration of the plaint schedule property to the plaintiff. She denied that the sale transaction between her husband and 1st defendant was after the date of Ex.A-1. She denied that she, defendants 1 and 2 created a nominal sale deed in favour of her husband after the date of Ex.A-1 with an intention to evade registration of the plaint schedule property to the plaintiff. During her further cross-examination, she admitted that the Government acquired some extent of land out of Ac.3.74 cents of land and she came to know about the fact one month prior to her examination. She and her husband are living together. Since 7 or 8 years there is no cordial relation between her and her parents and her family members. It is true that her mother executed Ex.B-2 in favour of her husband. She does not know whether her mother sold Ac.1.00 cents of land to the plaintiff or not. Nearly 8 years ago, she filed a civil suit against her mother and brother claiming her share over the properties but she does not know the details of that case. She denied that she is deposing false. 76. The contention of the plaintiff is that defendants 1 and 2 colluded together with 3rd defendant and on 10/11/2009 they brought into existence Ex.B-2 sale deed in the name of husband of 3rd defendant which is a nominal sale deed to defeat the claim of the plaintiff. 77. As seen from Ex.A-1, the defendants 1 and 2 narrated that the patta relating to the plaint schedule property was standing in the name of 1st defendant but both defendants 1 and 2 have rights in the schedule property. The contention of the 3rd defendant in her written statement is that defendants 1 and 2 sold away their respective shares to her husband i.e., husband of 3rd defendant and whatever remained there in the plaint schedule property is the property of her i.e., towards her share. The above said defence of 3rd defendant cannot stand to any reason because selling of an extent of Ac.2.04 cents by 1st defendant is on 10/11/2009 i.e., subsequent to Ex.A-1 - agreement of sale and further subsequent to 2/11/2009. The denial made by 3rd defendant during her cross-examination as if defendants 1 and 2 sold away the property in favour of her husband subsequent to Ex.A-1 is not tenable, in my considered view. 78. The denial made by 3rd defendant during her cross-examination as if defendants 1 and 2 sold away the property in favour of her husband subsequent to Ex.A-1 is not tenable, in my considered view. 78. The undisputed facts are that the 1st defendant alone executed Ex.B-2 sale deed in respect of an extent of Ac.2.04 cents in favour of the husband of 3rd defendant on 10/11/2009 with specific boundaries. The boundaries in Ex.A-4 are the east - land belongs to Sainath Reddy, west - 100 feet road, north - rest of the land of the executants and south - Teluga Narasimhulu land. So, if one has compared the boundaries in Exs.A-1 and B-2, it is very clear that though the property covered under Exs.A-1 and B-2 are located in the same survey number but they are with different boundaries. As seen from Ex.A-1, the southern boundary of the schedule property is the rest of the lands of the executants. According to Ex.B-2, the northern boundary of Ac.2.04 cents is no other than the plaint schedule property. So, what is evident is that the 1st defendant sold away an extent of Ac.2.04 cents of land. It has nothing to do with the plaint schedule property. The plaint schedule property is different but in the same survey number. DW.1 and DW.2 failed to probabilize that 3rd defendant was fighting civil litigation against her parents claiming any share in the property. As admitted by DW.3, she and her husband are residing under one roof and she has knowledge that her husband purchased the property under Ex.B-2 from her mother i.e., the 1st defendant. Though she deposed in her cross-examination that there are disputes between her and her parents for the last 7 or 8 years they are not probabilized. Ex.B-2 is silent as to why the 2nd defendant did not execute such a document. When it is the case of the 3rd defendant that defendants 1 and 2 and herself are having equal shares in the property, she did not explain as to how she allowed her husband to purchase the property from 1st defendant alone as if she is the absolute owner of Ac.2.04 cents. DW.3 has every knowledge that her husband purchased the property. The consideration mentioned in Ex.B-2 is only Rs.62,000.00 for Ac.2.04 cents of land. DW.3 has every knowledge that her husband purchased the property. The consideration mentioned in Ex.B-2 is only Rs.62,000.00 for Ac.2.04 cents of land. If really, the 3rd defendant had any differences with her parents on account of her claiming or fighting for share in the property, definitely she would not have allowed her husband to purchase the property covered under Ex.B-2 from the 1st defendant alone. She would have insisted her husband to get the sale deed even from the 2nd defendant. There is no dispute that in respect of Ac.0.70 cents of land, compensation was taken by the 1st defendant alone. All this goes to show that the 1st defendant was treating the property as of her own property. It goes to show that subsequent to Ex.A-1 and after 2/11/2009 alone 1st defendant ventured to execute sale deed under Ex.B-2 in respect of Ac.2.04 cents in favour of the husband of the 3rd defendant as if the property is of her own. Even assuming for a moment, for reasoning sake, that defendants 1 to 3 are having equal rights in the property, defendants 1 and 2 had every power to execute Ex.A-1 jointly for an extent of Ac.1.00 cents. According to the admission made by DW.3 in cross- examination, it is within her knowledge that defendants 1 and 2 intimated to her about Ex.A-1 - agreement of sale. So, Ex.A-1 was much prior to Ex.B-2. The property covered under Exs.A-1 and B2 were different extents though the same is located in the same survey number. Husband of the 3rd defendant was supposed to have knowledge of the so called right of 3rd defendant in the property. It shows that the contention of the plaintiff that defendants 1 to 3 are in collusive course is tenable. In my considered view, the grievance of the 3rd defendant, if any, should be against the defendants 1 and 2 alone for 1st defendant allegedly selling away the extent of Ac.2.04 cents in favour of her husband. In such circumstances, absolutely, contention of the 3rd defendant that as if defendants 1 and 2 already sold away the property under Ex.B-2 as such the rest of the property is of her own cannot stand to any reason. Under the circumstances, I am of the considered view that Ex.A-1 - agreement of sale is certainly binding on the defendants 1 and 2. Under the circumstances, I am of the considered view that Ex.A-1 - agreement of sale is certainly binding on the defendants 1 and 2. As defendants 1 and 2 made a mention in Ex.A-4 reply that they would bring 3rd defendant, plaintiff filed the suit against 3rd defendant. In my considered view, as Ex.A-1 - agreement of sale is binding on defendants 1 and 2 and as already 1st defendant sold away the rest of Ac.2.04 cents in favour of the husband of 3rd defendant and as 3rd defendant has every knowledge about the contents of the said sale deed, plaintiff is not entitled to claim specific performance of agreement of sale against the 3rd defendant. The 3rd defendant cannot seek to defeat the claim of the plaintiff in the light of the above facts and circumstances. There were no findings in the judgment of the learned Additional District Judge with regard to the defence taken by the defendants 1 and 2 as regards the alleged share of 3rd defendant in the plaint schedule property. 79. Coming to the equities, it is not the case of the defendants 1 and 2 that the terms and conditions entered in Ex.A-1 are oppressive. There is no defence from the defendants 1 and 2 that there is any hardship caused to them on account of terms and conditions in Ex.A-1 - agreement of sale. On the other hand, it is the case of the plaintiff that as the valuation of the property was increased the defendants developed an idea to evade the execution of the sale deed. 80. In the decision cited by learned counsel for the appellant, Prakash Chandra (4th supra), it is a case where the defendants did not plead any hardship in performing the specific performance of agreement of sale. Under the above circumstances, the Hon'ble Apex Court held that the Court cannot exercise the discretion not to decree specific performance. Such discretion can be exercised only when the defendants takes a defence of hardship and brings on record evidence in support of such defence. 81. In the present case on hand, absolutely, the defendants 1 and 2 did not take any defence that the terms and conditions in Ex.A-1 caused any hardship to them. Such discretion can be exercised only when the defendants takes a defence of hardship and brings on record evidence in support of such defence. 81. In the present case on hand, absolutely, the defendants 1 and 2 did not take any defence that the terms and conditions in Ex.A-1 caused any hardship to them. So, it is a case where there are no circumstances whatsoever in favour of the defendants not to decree the specific performance of agreement of sale. 82. Learned counsel for the appellant would further rely upon a decision in Zarina Siddiqui (5th supra), where the Hon'ble Apex Court dealing with Sec. 20 of the Specific Relief Act held that the Court has to consider the conduct of the parties. The Hon'ble Apex dealt with a situation that defendants suppressed the material facts and evidence and made distorted statements to mislead the Court. 83. Coming to the present case on hand, defendants 1 to 3 are in collusive course. Defendants 1 and 2 totally misled the plaintiff by issuing Ex.A-4 on the last date i.e., 2/11/2009. They did not discharge their obligations in surveying the land. They did not bring 3rd defendant as stated by them. Defendants 1 and 2 are silent about the rights, if any, of 3rd defendant in the plaint schedule property. On the other hand, defendants 1 to 3 are sailing with each other. So, the conduct of the defendants is not above board basing on the principles of equity. So, the facts and circumstances in this case warrant this Court to give a finding that the conduct of defendants 1 to 3 is not above board basing on the principles of equity and they are not entitled to ask this Court not to decree the specific performance of agreement of sale. 84. Learned counsel for the appellant apart from the above relied on other decisions which are wholly irrelevant in dealing with the present case on hand. In Ramasubbamma (2nd supra), in the light of the specific facts canvassed and looking into the defence of the defendants, the Hon'ble Apex Court held that as the original owner admitted execution of the agreement of sale and admitted the receipt of substantial advance sale consideration amount, nothing further is required to be proved by the plaintiff. 85. In Ramasubbamma (2nd supra), in the light of the specific facts canvassed and looking into the defence of the defendants, the Hon'ble Apex Court held that as the original owner admitted execution of the agreement of sale and admitted the receipt of substantial advance sale consideration amount, nothing further is required to be proved by the plaintiff. 85. In Rathnavathi (3rd supra), the decision of the Hon'ble Apex Court based on Sec. 54 of the Limitation Act, there is no dispute in this case about the period of limitation in filing the suit and the suit is filed within the period of limitation and the above said situation is misquoted to the present situation. Similarly, the decision in Messrs Trojan and company (7th supra), has nothing to do with the present case on hand as it has dealt with a situation where the decision of a case cannot be based on grounds outside the pleadings of the parties and it is the case pleaded that has to be found. 86. Siddik Mahomed Shah (8th supra), cited by the appellant's counsel, it is misquoted to the present situation as it dealt with a situation that no amount of evidence can be looked into upon a plea which was never put forward. 87. Mrs. Umadevi Nambiar (11th supra) cited by learned counsel for the appellant relates to a suit for partition in which there is no need to seek cancellation of the alienations. 88. T. Bheem Reddy (12th supra), cited by learned counsel for the appellant, is also relating to a suit for partition while granting a preliminary decree and it has nothing to do with the present situation. 89. In view of the findings as referred to above, I am of the considered view that the plaintiff/appellant made out a case so as to claim the decree of specific performance of agreement of sale. The judgment of the learned Additional District Judge declining to grant the relief of specific performance of agreement of sale and granting a decree of refund of advance sale consideration is not in accordance with the facts and law. The learned Additional District Judge did not appreciate the evidence in proper manner. POINT No.5: 90. The judgment of the learned Additional District Judge declining to grant the relief of specific performance of agreement of sale and granting a decree of refund of advance sale consideration is not in accordance with the facts and law. The learned Additional District Judge did not appreciate the evidence in proper manner. POINT No.5: 90. In view of the above findings, the impugned judgment and decree of the learned II Additional District Judge, Kurnool at Adoni is liable to be set-aside by granting the relief of specific performance of agreement of sale. 91. In the result, the Appeal Suit is allowed with costs settingaside the judgment and decree, dtd. 16/3/2018, in O.S. No.12 of 2010 on the file of the Court of II Additional District Judge, Kurnool at Adoni thereby decreeing the suit of the plaintiff with costs granting the decree of specific performance of agreement of sale, dtd. 3/8/2009, by directing the defendants 1 and 2 to execute registered sale deed in favour of the plaintiff in respect of the plaint schedule property after receiving the balance sale consideration of Rs.11,00,000.00. The plaintiff is directed to deposit the balance sale consideration before the trial Court within four (4) weeks from the date of this judgment. In case the defendants 1 and 2 fail to comply the terms and conditions of the decree so as to execute a sale deed, as above, the plaintiff is at liberty to get the same executed by due process of law. Insofar as the claim of the plaintiff in the suit against the 3rd defendant is concerned, it stands dismissed but without costs. 92. Interlocutory Application No.1 of 2023 is dismissed accordingly. Consequently, Miscellaneous Applications pending, if any, shall stand closed.