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2023 DIGILAW 1683 (ALL)

Ram Deo v. Paras Nath Singh

2023-07-14

JASPREET SINGH

body2023
JUDGMENT : 1. This is the plaintiff's second appeal assailing a judgment of reversal passed by the lower appellate Court in Civil Appeal No. 39 of 1982 dated 28.04.1986 whereby the suit bearing R.S. No. 167 of 1980 for specific performance of contract of the plaintiff, which was decreed by the trial Court by means of judgment and decree dated 23.12.1981 was set aside and dismissed by the lower appellate Court. 2. The instant second appeal was admitted by the Court on 15.07.1986 and on the application for interim relief moved by the plaintiff-appellant, it was provided that in case, if the plaintiff is in possession, it shall not be disturbed in execution of the decree. During pendency of the instant second appeal, the original plaintiff, namely, Ram Dev and the defendants-respondents Paras Nath and Raj Karan Verma expired and the legal heirs have been brought on record. 3. The Court has heard Shri Mukesh Sharma, learned counsel for the appellant and Ms. Atiya Abid, learned counsel for the respondents. 4. Before adverting to the substantial questions of law, it will be appropriate to take a glance at the facts giving rise to the instant appeal. 5. Shri Ram Dev, the original plaintiff instituted a suit for specific performance of contract registered as regular suit No.167 of 1980 pleading that Shri Raj Karan Singh, father of Paras Nath Singh had executed a registered agreement to sell in favour of the plaintiff on 29.11.1979 in respect of the property in question which was morefully described in the agreement as situate on Chak No.232 measuring 1 bigha, 6 biswa and 15 dhur situate in Mauja Asharafpur Barwa, Pargana-Minjhaura, Tehsil-Akbarpur, District-Faizabad (now District Ambedkar Nagar). 6. In pursuance of the aforesaid agreement to sell, the plaintiff had paid a sum of Rs.2,000/-as earnest money and a sum of Rs. 1,600/-was agreed to be paid at the time of the execution of the sale deed. It was also agreed that the defendant Raj Karan Singh would seek the permission for executing the sale deed as the consolidation operations were in progress in the village and thereafter, the sale deed would be executed. It was also pleaded that the plaintiff had requested Raj Karan Singh to seek the permission, however, he delayed and evaded the same. It was also agreed that the defendant Raj Karan Singh would seek the permission for executing the sale deed as the consolidation operations were in progress in the village and thereafter, the sale deed would be executed. It was also pleaded that the plaintiff had requested Raj Karan Singh to seek the permission, however, he delayed and evaded the same. However, it is also pleaded that in April, 1980, the plaintiff came to know that Raj Karan Singh had received the permission and then again he was requested to execute the sale deed. This was again ignored, consequently, the plaintiff sent a notice on 28.04.1980 to execute the sale deed and that the plaintiff is ready and willing to pay remaining sum of Rs.1,600/-, however, the defendant did not reply to the said notice and later on 13.05.1980, the plaintiff became aware that Raj Karan Singh has already executed a sale deed in favour of defendants No.2 and 3, namely, Raj Karan Verma And Ram Charan Verma. It is in the aforesaid backdrop that the plaintiff instituted the suit of specific performance of contract also pleading that the defendants No.2 and 3 may be directed to join the said sale deed to convey the proper title to the plaintiff. 7. The defendants No.2 and 3 filed their joint written statement and denied the averments of the plaint. It set up the case that the original vendor, namely, Raj Karan Singh had already entered into an agreement with the defendants No.2 and 3 on 10.01.1975 for a total sale consideration of Rs.10,000/-out of which Rs.8,000/-was paid and Rs.2,000/-was to be paid at the time of execution of the sale deed. It is in view thereof that the defendant No.1 had taken the permission and executed the sale deed in favour of the defendants No. 2 and 3 on 28.03.1980 and as such the defendants No.2 and 3 are bona fide purchasers for valuable consideration, without notice of the agreement and their rights could not be defeated at the behest of the plaintiff on the basis of his agreement. 8. Upon exchange of the pleadings, the trial Court framed seven issues, however, the relevant issues upon which suit came to be contested were:- (i) Whether the defendant No.1 had executed any agreement on 29.11.1979 in favour of the plaintiff? 8. Upon exchange of the pleadings, the trial Court framed seven issues, however, the relevant issues upon which suit came to be contested were:- (i) Whether the defendant No.1 had executed any agreement on 29.11.1979 in favour of the plaintiff? (ii) Whether the defendant No.1 had executed any agreement in favour of the defendants No.2 and 3 as stated by the defendants in their written statement? (iii) Whether the defendants No.2 and 3 are bona fide purchasers for valuable consideration without notice? (iv) Whether the defendant No.1 had executed the sale deed in favour of the defendants No.2 and 3 in pursuance of the agreement dated 10.01.1975 and if so, its effect? 9. The trial Court considered the issue regarding the agreement dated 29.11.1979 in favour of the plaintiff and the alleged agreement dated 10.01.1975 which was unregistered and in favour of the defendants No.2 and 3 was held to be fraudulent. Thereafter, the trial Court considered the issue regarding the fact as to whether the defendants No.2 and 3 were bona fide purchasers for valuable consideration without notice and held that in view of the statement given by the P.W.-2 that he had spoken to the defendant No.2 that he was going to witness the agreement being executed by the defendant No.1 and the plaintiff. This indicated that the defendants No.2 and 3 had knowledge of the agreement, hence, they were not bona fide purchasers for valuable consideration, without notice and consequently, by means of judgment and decree dated 23.12.1981, the suit for specific performance was decreed in favour of the plaintiff. 10. The defendants No.2 and 3 preferred a regular civil appeal under Section 96 C.P.C. and the appellate Court reversed the findings and dismissed the suit on the ground that the plaintiff had failed to prove that they were ready and willing to perform their part of contract and this being a essential condition, hence, without the same being proved, the suit could not have been decreed. The lower appellate Court also reversed another finding and held that the evidence of P.W.-2 was not clear to suggest that the defendants No.2 and 3 were not bona fide purchasers for valuable consideration without notice and with the aforesaid two findings being reversed, the judgment and decree passed by the trial Court was set aside and consequently, the suit was dismissed. 11. 11. In the instant second appeal the questions of law, which have been urged by the learned counsel for the appellant upon which the appeal was admitted, are:- (i) Whether the plaintiff-appellant was ready and willing to perform their part of contract and that the lower appellate Court was not justified in reversing the said finding by carving out a new case especially when no issue regarding readiness and willingness was framed by the trial Court. (ii) Whether the lower appellate Court has erred in misreading the evidence of P.W.-1 and P.W.-2 in coming to the conclusion that the defendants No. 2 and 3 were bona fide purchasers for valuable consideration without notice and thus, the suit has been wrongly dismissed by the lower appellate Court? 12. Shri Mukesh Sharma, learned counsel for the appellant has vehemently argued that the plaintiff had instituted the suit for specific performance of contract in respect of a registered agreement to sell dated 29.11.1979 in pursuance whereof Rs.2,000/-had already been paid as earnest money and Rs. 1,600/-was to be paid at the time of execution of the sale deed. It was the duty of the defendant No.1 to seek permission as the consolidation operations were going on in the village. It was pleaded in the plaint that the plaintiff had requested the defendant No.1 to seek the permission and all necessary help, which may be required from the plaintiff, he was ready to cooperate, however, the defendant No.1 evaded to obtain the permission. 13. It is further urged that even in the plaint specifically it was averred that the plaintiff was ready and willing to perform his part of contract and it was actually the defendant No.1, who had violated and breached the terms of the agreement. There is no denial of the fact by the original vendor that the plaintiff was not ready and willing to perform his part of contract, moreover, the defendant No.1 did not appear before the Court at all and in this view of the fact, the averments made by the plaintiff remain uncontroverted. There is no denial of the fact by the original vendor that the plaintiff was not ready and willing to perform his part of contract, moreover, the defendant No.1 did not appear before the Court at all and in this view of the fact, the averments made by the plaintiff remain uncontroverted. The conduct of plaintiff was unblemished and as such as soon as he became aware in the month of April that the defendant No.1 has obtained the permission, he had issued a notice to the defendant on 28.04.1980, which was not complied with and though, the defendant No.1 in breach of the terms and conditions of the agreement to sell in favour of the plaintiff executed a sale deed in favour of defendants No.2 and 3 and soon thereafter, the plaintiff filed a suit for specific performance of contract. This all indicates that the plaintiff was ready and willing to perform his part of contract and there was no lethargy on the part of the plaintiff which could be seen as an impediment for the grant of the decree for specific performance of contract dated 29.11.1979. 14. The learned counsel for the appellant has further urged that the trial Court had returned a finding that the alleged agreement set up by the defendants No.2 and 3 was found to be forged and as such categorical averment as well as evidence of the P.W.-2 clearly reflected that the defendants No.2 and 3 were aware of the registered agreement in favour of the plaintiff. Hence, they were not bona fide purchasers for valuable consideration, without notice and in the given facts and circumstances, the suit was rightly decreed by the trial Court, but the lower appellate Court has reversed the finding on the issue of readiness and willingness, which was not even in controversy as no issue was framed by the trial Court in this regard. Even otherwise, the lower appellate Court has taken a technical view as the issue of readiness and willingness is not to be construed in a strait jacket formula and has to be ascertained in light of the averments in the plaint and the surrounding circumstance and evidence which has not been done resulting in the findings being vitiated. 15. Even otherwise, the lower appellate Court has taken a technical view as the issue of readiness and willingness is not to be construed in a strait jacket formula and has to be ascertained in light of the averments in the plaint and the surrounding circumstance and evidence which has not been done resulting in the findings being vitiated. 15. The learned counsel for the appellant has further urged that it was the burden on the defendants No.2 and 3 to establish that they were bona fide purchasers for valuable consideration without notice, however, the lower appellate Court has failed to appreciate that this burden could not have been shifted on the plaintiff and by doing so, it has completely given an incorrect complexion to the entire litigation and the defendants No.2 and 3, in any case, could not establish that they were bona fide purchasers for valuable consideration without notice and therefore, the findings returned by the lower appellate Court are not sustainable in law and as such the said judgment deserves to be set aside. 16. Lastly, it has been stated that the plaintiff has been in possession of the disputed property since the date of execution of the agreement, accordingly, in the aforesaid circumstances as the possession of the plaintiff was protected by the interim order granted by this Court and about 40 years have gone by in the aforesaid circumstances, the discretion also must be exercised in favour of the appellant who is still ready and willing to perform his part of contract and consequently, the appeal deserves to be allowed. In support of his submissions, the learned counsel for the appellant has relied upon the decisions of the Apex Court in 'Aniglase Yohannan vs. Ramlatha and others (2005) 7 SCC 534 ; R.K. Mohammed Ubaidullah and others vs. Hajee C. Abdul Wahab (D) by Lrs. and others (2000) 6 SCC 402 ; Sargunam (dead) by Lr. vs. Chidambaram and another (2005) 1 SCC 162; Dattu Sakharam Khairnar @ Sutar vs. Punja Laxman Shinde, 1997 lawsuit (Bombay) 95; Sathy vs. Sayed Mohamed Ali Usmanali, 1997 lawsuit (KER) 279; Salamatullah & another vs. Charittar Doeri, 2017 (9) ADJ 37 ; Ram Yagga vs. Ram Niwaz 2021 (39) LCD 1512'. 17. Ms. Atiya Abid, learned counsel appearing for the respondents combating the aforesaid submissions has urged that the entire contention of the counsel for the appellant is misfounded. 17. Ms. Atiya Abid, learned counsel appearing for the respondents combating the aforesaid submissions has urged that the entire contention of the counsel for the appellant is misfounded. It is urged that in a suit for specific performance of contract, it is a duty cast upon the plaintiff not only to aver the readiness and willingness as required in terms of Section 16 (c) of the Specific Relief Act, but the same also has to be proved by cogent evidence and not only it must be present and proved at the time of institution of the suit, but this readiness and willingness must continue throughout the proceedings in the Court. In support of her submission she has relied upon a decision of this Court in Hari Om and others vs. Shri Gopal 1997 (15) LCD 351. It is submitted that even if at all, the issue has not been framed yet, the fact remains that this was the duty of the plaintiff to have averred and proved this fact, without which, he was not entitled to any decree of specific performance. The plaintiff by making a bald averment in the plaint but not substantiating the same by proof already missed the boat and was not entitled to the decree of specific performance, however, this aspect was not considered by the trial Court. The lower appellate Court took note of this fact and finding that the plaintiff was not able to prove his readiness and willingness, rightly reversed the decree of the trial court which cannot be faulted. 18. Learned Counsel for the respondents has further urged that the defendant No.1 had already executed an unregistered agreement in the year 1975 in terms whereof he had accepted a sum of Rs.8,000/-as earnest money and a sum of Rs.2,000/-was to be paid at the time of the execution of the sale deed after the defendant No.1 had obtained the permission. Since the permission had been obtained in April, accordingly, the defendant No.1 executed the sale deed in favour of the defendants No.2 and 3 in pursuance of the agreement to sell and therefore, there was no requirement for the defendants No.2 and 3 to establish that they were bona fide purchasers of valuable consideration without notice as the sale deed was in pursuance of an earlier agreement of 1975 and the plaintiff is claiming on the basis of a subsequent agreement. 19. 19. It is further submitted that even otherwise, if the statements of the P.W.-1 and P.W.-2 are seen, then it cannot be said that there was any averment which could construe notice to the defendants No.2 and 3 regarding the registered agreement to sell of the plaintiff dated 29.11.1979. It is urged that there is a difference between the word "knowledge" and "notice". The word "notice" has a wider implication and unless and until it was shown that the defendant had notice of the agreement, it cannot be said that the defendant had committed any error in getting the sale deed executed. In support of her submission regarding the issue of notice and knowledge, she has relied upon a decision of the Apex Court in case of Ram Niwas (dead) through LRS. vs. Bano (Smt) and others (2000) 6 SCC 685 . 20. Lastly, it has been urged that the plaintiff has not been in possession of the property in question nor there was any evidence to the aforesaid fact, hence, to state that the plaintiff has been in possession for last 40 years is incorrect. It is also urged that the findings returned by the lower appellate Court are based on proper appreciation of evidence. Accordingly, the findings of fact are not liable to be distributed in exercise of powers under Section 100 C.P.C. Consequently, the appeal deserves to fail. 21. The Court has considered the rival submissions and also perused the material on record. 22. The first issue which arises for consideration is regarding the readiness and willingness of the plaintiff and its nuances in a suit for specific performance of contract. The primary submission of the learned counsel for the appellant is that the plaintiff had averred in his plaint that he was ready and willing to perform his part of the contract and even in the evidence, it was stated that the plaintiff had issued a notice and as soon as he became aware that the defendant No.1 had executed a sale deed in favour of the defendants No.2 and 3, he promptly filed the suit for specific performance, all this indicates his readiness and willingness and that in absence of an issue, the lower appellate Court had erred in reversing the decree for the aforesaid point. 23. 23. If the aforesaid contention is noticed, it would be found that first and foremost Section 16(c) of Specific Relief Act clearly indicates that the plaintiff must aver in his plaint that he is ready and willing to perform his part of the contract. Taking a glance at the plaint, it would indicate that definitely the plaintiff has averred that he was ready and willing to perform his part of the contract, but perhaps that is not enough. The issue of readiness and willingness has two separate connotations. The same not only has to be averred but it has to be even proved. The readiness and willingness has to be present throughout the proceedings. The issue of readiness and willingness was considered recently by this Court in Arjun Prasad and others vs. Ganesh Prasad and others 2023:AHC-LKO:43190: 2023 SCC Online Allahabad 364 in the following paragraphs:- “29. The plea of readiness and willingness is an important and essential ingredient in relation to Section 16(c) of the Specific Relief Act, 1963 and it has been held that it is not a straight jacket formula. In R.C. Chandiok v. Chuni Lal Sabharwal (1970) 3 SCC 140 , the Hon'ble Apex Court observed as under:- “readiness and willingness cannot be treated as a straitjacket formula and the issue has to be decided keeping in view the facts and circumstances relevant to the intention and conduct of the party concerned” 30. In Narinderjit Singh v. North Star Estate Promoters Limited, (2012) 5 SCC 712 , in para 21 to 23 held as under:- "20. In our view, the concurrent findings recorded by the trial court and the lower appellate court on the issues of execution of the agreement by the appellant's father and the respondent's readiness and willingness to perform its part of the agreement were based on correct evaluation of the pleadings and evidence of the parties and the learned Single Judge of the High Court did not commit any error by refusing to upset those findings. The argument of the learned Senior Counsel for the appellant that in the absence of specific pleading about continued readiness and willingness of the respondent to perform its part of the agreement and availability of funds necessary for payment of the sale consideration, the High Court should have set aside the concurrent finding recorded by the courts below sounds attractive but on a careful scrutiny of the record we do not find any valid ground to entertain the same. 21. In R.C. Chandiok v. Chuni Lal Sabharwal [ (1970) 3 SCC 140 ] this Court observed that “readiness and willingness cannot be treated as a straitjacket formula and the issue has to be decided keeping in view the facts and circumstances relevant to the intention and conduct of the party concerned”. The same view was reiterated in P. D'Souza v. Shondrilo Naidu [ (2004) 6 SCC 649 ]. 22. In N.P. Thirugnanam v. R. Jagan Mohan Rao [ (1995) 5 SCC 115 ] the Court found that the appellant was dabbling in real estate transaction without means to purchase the property and observed: (SCC pp. 117-18, para 5) “5. … Section 16(c) of the Act envisages that the plaintiff must plead and prove that he had performed or has always been ready and willing to perform the essential terms of the contract which are to be performed by him, other than those terms the performance of which has been prevented or waived by the defendant. The continuous readiness and willingness on the part of the plaintiff is a condition precedent to grant the relief of specific performance. This circumstance is material and relevant and is required to be considered by the court while granting or refusing to grant the relief. If the plaintiff fails to either aver or prove the same, he must fail. To adjudge whether the plaintiff is ready and willing to perform his part of the contract, the court must take into consideration the conduct of the plaintiff prior and subsequent to the filing of the suit along with other attending circumstances. The amount of consideration which he has to pay to the defendant must of necessity be proved to be available. Right from the date of the execution till date of the decree he must prove that he is ready and has always been willing to perform his part of the contract. The amount of consideration which he has to pay to the defendant must of necessity be proved to be available. Right from the date of the execution till date of the decree he must prove that he is ready and has always been willing to perform his part of the contract. As stated, the factum of his readiness and willingness to perform his part of the contract is to be adjudged with reference to the conduct of the party and the attending circumstances. The court may infer from the facts and circumstances whether the plaintiff was ready and was always ready and willing to perform his part of the contract.” 23. In J.P. Builders v. A. Ramadas Rao [ (2011) 1 SCC 429 : (2011) 1 SCC (Civ) 227] the Court has merely reiterated the principles already laid down and no new proposition has been laid down which may help the cause of the appellant." 24. In the aforesaid decision of Arjun Prasad (supra), this Court had the occasion to consider various nuances relating to a suit for specific performance and in respect of readiness and willingness, it also noticed an earlier decisions of this Court in Ramzan Ali and another vs. Altafur Rahman 2023:AHC-LKO:30146 wherein with the aid of decisions of the Apex Court, the issue of readiness and willingness has been considered in the following paragraphs:- "27. In the Corpus Juris Secundum, vol. 81 pp.950-951, the readiness and willingness has been interpreted to mean, a general principle of law that a person seeking specific performance must show that he has performed or offered to perform or is ready, able and willing to perform, all the essential acts required by the contract and he must not remain quiet or hold himself aloof so as to enforce or abandon the contract as events may prove advantageous. The plaintiff is entitled to specific performance where he alleges and proves that he has complied substantially with the conditions of the contract or is able, ready and willing to perform the contract. (See also Satya Jain v Anis Ahmed Rushdie AIR 2013 SC 434 ). 28. The plaintiff is entitled to specific performance where he alleges and proves that he has complied substantially with the conditions of the contract or is able, ready and willing to perform the contract. (See also Satya Jain v Anis Ahmed Rushdie AIR 2013 SC 434 ). 28. In the case of Bijai Bahadur v. Shri Shiv Kumar AIR 1985 All 223 , this Court held that so far as the question of readiness and willingness is concerned while 'willingness' is merely a mental process, 'readiness' is something to do with translating that will into action and is preceded by a necessary preparation for being in a position to be ready. As to the averments about this continuous readiness and willingness the law never insists on any particular form and the necessary averment may be made in any language the plaintiff may choose to employ. The language is not important. The crucial thing is that the totality of the averments made in the plaint must indicate the readiness and willingness of the plaintiff, even though by necessary inference. 29. This Court also notices the decision of the Apex Court in His Holiness Acharya Swami Ganesh Dassji Vs. Sitaram Thapar; 1996 (4) SCC 526 wherein the concept of readiness and willingness has been noticed and has been held as under:- "2. There is a distinction between readiness to perform the contract and willingness to perform the contract. By readiness may be meant the capacity of the plaintiff to perform the contract which includes his financial position to pay the purchase price. For determining his willingness to perform his part of the contract, the conduct has to be properly scrutinised. There is no documentary proof that the plaintiff had ever funds to pay the balance of consideration. Assuming that he had the funds, he has to prove his willingness to perform his part of the contract. According to the terms of the agreement, the plaintiff was to supply the draft sale deed to the defendant within 7 days of the execution of the agreement, i.e., by 27-2-1975. The draft sale deed was not returned after being duly approved by the petitioner. The factum of readiness and willingness to perform plaintiff's part of the contract is to be adjudged with reference to the conduct of the party and the attending circumstances. The draft sale deed was not returned after being duly approved by the petitioner. The factum of readiness and willingness to perform plaintiff's part of the contract is to be adjudged with reference to the conduct of the party and the attending circumstances. The court may infer from the facts and circumstances whether the plaintiff was ready and was always ready and willing to perform his part of the contract. The facts of this case would amply demonstrate that the petitioner/plaintiff was not ready nor had the capacity to perform his part of the contract as he had no financial capacity to pay the consideration in cash as contracted and intended to bide for the time which disentitles him as time is of the essence of the contract." 30. Similarly, In J.P. Builders and Another Vs. A. Ramadas Rao and Another; 2011 (1) SCC 429 wherein the Apex Court in paragraph nos. 22 to 27 has observed as under:- "22. The words "ready" and "willing" imply that the person was prepared to carry out the terms of the contract. The distinction between "readiness" and "willingness" is that the former refers to financial capacity and the latter to the conduct of the plaintiff wanting performance. Generally, readiness is backed by willingness. 23. In N.P. Thirugnanam v. Dr. R. Jagan Mohan Rao [ (1995) 5 SCC 115 ] at SCC para 5, this Court held: (SCC pp. 117-18) "5. ... Section 16(c) of the Act envisages that the plaintiff must plead and prove that he had performed or has always been ready and willing to perform the essential terms of the contract which are to be performed by him, other than those terms the performance of which has been prevented or waived by the defendant. The continuous readiness and willingness on the part of the plaintiff is a condition precedent to grant the relief of specific performance. This circumstance is material and relevant and is required to be considered by the court while granting or refusing to grant the relief. If the plaintiff fails to either aver or prove the same, he must fail. To adjudge whether the plaintiff is ready and willing to perform his part of the contract, the court must take into consideration the conduct of the plaintiff prior and subsequent to the filing of the suit along with other attending circumstances. If the plaintiff fails to either aver or prove the same, he must fail. To adjudge whether the plaintiff is ready and willing to perform his part of the contract, the court must take into consideration the conduct of the plaintiff prior and subsequent to the filing of the suit along with other attending circumstances. The amount of consideration which he has to pay to the defendant must of necessity be proved to be available. Right from the date of the execution till date of the decree he must prove that he is ready and has always been willing to perform his part of the contract. As stated, the factum of his readiness and willingness to perform his part of the contract is to be adjudged with reference to the conduct of the party and the attending circumstances. The court may infer from the facts and circumstances whether the plaintiff was ready and was always ready and willing to perform his part of the contract." 24. In P. D'Souza v. Shondrilo Naidu [ (2004) 6 SCC 649 ] this Court observed: (SCC p. 654, paras 19 and 21) "19. It is indisputable that in a suit for specific performance of contract the plaintiff must establish his readiness and willingness to perform his part of contract. The question as to whether the onus was discharged by the plaintiff or not will depend upon the facts and circumstances of each case. No straitjacket formula can be laid down in this behalf. *** 21. ... The readiness and willingness on the part of the plaintiff to perform his part of contract would also depend upon the question as to whether the defendant did everything which was required of him to be done in terms of the agreement for sale." 25. Section 16(c) of the Specific Relief Act, 1963 mandates "readiness and willingness" on the part of the plaintiff and it is a condition precedent for obtaining relief of grant of specific performance. It is also clear that in a suit for specific performance, the plaintiff must allege and prove a continuous "readiness and willingness" to perform the contract on his part from the date of the contract. The onus is on the plaintiff. 26. It is also clear that in a suit for specific performance, the plaintiff must allege and prove a continuous "readiness and willingness" to perform the contract on his part from the date of the contract. The onus is on the plaintiff. 26. It has been rightly considered by this Court in R.C. Chandiok v. Chuni Lal Sabharwal [ (1970) 3 SCC 140 ] that "readiness and willingness" cannot be treated as a straitjacket formula. This has to be determined from the entirety of the facts and circumstances relevant to the intention and conduct of the party concerned. 27. It is settled law that even in the absence of specific plea by the opposite party, it is the mandate of the statute that the plaintiff has to comply with Section 16(c) of the Specific Relief Act and when there is non-compliance with this statutory mandate, the court is not bound to grant specific performance and is left with no other alternative but to dismiss the suit. It is also clear that readiness to perform must be established throughout the relevant points of time. "Readiness and willingness" to perform the part of the contract has to be determined/ascertained from the conduct of the parties."" 25. Thus, taking note of the aforesaid aspect of the matter in context with the averments and material available on record, this Court finds that though, the plaintiff had stated in the plaint that he was ready and willing to perform his part of the contract but unfortunately, while he examined himself as a witness, there is no averment to the aforesaid effect in his deposition. Even though, if the issue of readiness and willingness is not to be taken as a strait jacket formula, yet it still needs to be seen as to whether there has been sufficient compliance in light of the averments and the statement made on oath. It would be found that the plaintiff in his examination-in-chief has merely stated that the defendant No.1 had entered in a registered agreement to sell with the plaintiff in pursuance whereof he had paid a sum of Rs.2,000/-and Rs. 1,600/-was to be paid at the time of the execution of the sale deed. It would be found that the plaintiff in his examination-in-chief has merely stated that the defendant No.1 had entered in a registered agreement to sell with the plaintiff in pursuance whereof he had paid a sum of Rs.2,000/-and Rs. 1,600/-was to be paid at the time of the execution of the sale deed. Permission was required to be obtained by the defendant No.1, which he evaded and later, as soon as the plaintiff became aware that he had obtained the permission, he had sent a notice and thereafter, once the defendant No.1 has sold the property to the defendants No.2 and 3, he immediately filed the suit. Despite having made a statement in his examination-in-chief as noted above, what this Court finds is that there is no averment in the examination-in-chief regarding the plaintiff being ready and willing to perform his part of the contract. There is no averment in the plaint and in the evidence that the plaintiff had the requisite funds or that he had offered the same to the defendant who refused it. There is no details regarding the date or any other such particular to substantiate that he had requested the defendant to accept the balance sale consideration and execute the sale deed or to obtain the permission. There has been no averment regarding any overt act done by the plaintiff to suggest his readiness and willingness. 26. There is another issue which has to be seen in respect of readiness and willingness i.e. to say, that it was incumbent upon the plaintiff-appellant to not only aver the readiness and willingness and prove the same, but it was also required to substantiate the same by the financial capacity. In this regard, this Court finds that mere self-serving statement of the plaintiff regarding his income and readiness and willingness, without its actual proof may not come to the aid of the plaintiff. In Ritu Saxena vs. J.S. Grover and another (2019) 9 SCC 132 , the Apex Court in respect of the financial capacity of the plaintiff held that mere self-serving statement of income without proof of financial resources is not sufficient to prove that the plaintiff was ready and willing to perform his part of the contract. 27. In Ritu Saxena vs. J.S. Grover and another (2019) 9 SCC 132 , the Apex Court in respect of the financial capacity of the plaintiff held that mere self-serving statement of income without proof of financial resources is not sufficient to prove that the plaintiff was ready and willing to perform his part of the contract. 27. Applying the aforesaid dictum and string of judgments noticed in Arjun Prasad (supra) and Ramzan Ali (supra) to the instant case, it would be evident that there is no averment at all in the evidence regarding readiness and willingness and as already noticed above, there is no detail regarding the date or time when the amount was offered to the defendant. Thus, for all the aforesaid reasons, this Court does not find that the plaintiff was able to establish his readiness and willingness by cogent evidence. 28. In view of the aforesaid, this Court does not find that the lower appellate Court has committed an error in reversing the finding on the aforesaid issue of readiness and willingness. Insofar as the submission of the learned counsel for the appellant that no issue of readiness and willingness was framed by the trial Court and therefore, the lower appellate Court could not have entered into the issue is misconceived for the reason that it is now well settled that irrespective of the fact whether the defendant raises a defence regarding the non-willingness and readiness of the plaintiff yet, it is the duty of the plaintiff not only to aver but also to prove his readiness and willingness and this must continue throughout the proceedings. The Court will not exercise its jurisdiction and discretion to grant a decree of specific performance without recording a finding on readiness and willingness. 29. The Court will not exercise its jurisdiction and discretion to grant a decree of specific performance without recording a finding on readiness and willingness. 29. It can be argued that since the plaintiff had averred in the plaint that he was ready and willing and the defendant No.1 who did not appear to contest the suit and remained ex-parte, while the defendants No.2 and 3 raised their defence, but did not deny the readiness and willingness in their written statement and therefore, for that reason, an issue may not have been framed, but nevertheless in order to decree the suit, the Court is required to return a finding on readiness and willingness and this aspect of the matter was lost sight of by the trial Court and has been correctly and appropriately noticed by the lower appellate Court. 30. Even the submission of the learned counsel for the appellant that there was ample evidence to suggest the readiness and willingness of the plaintiff does not find favour with this Court for the reasons that have already indicated hereinabove, the plaintiff did not make a single statement in his examination-in-chief nor it could be pointed out that there were any overt acts done by the plaintiff to prove his readiness and willingness. Vague averments or indirect inferences cannot be construed to arrive at and recond any cogent and positive finding regarding readiness and willingness of the plaintiff. In this regard, if the decisions cited by the learned counsel for the appellant is seen, it would indicate that in Aniglase Yohannan (supra), the Apex Court has reiterated the proposition which has been already noticed above and the proposition is not disputed. Insofar as the fact that the plaintiff's conduct has been blemishless and entitles him to relief of specific performance has to be seen in context with Section 20 of the Specific Relief Act. It is nobody's case that the conduct of the plaintiff suffers from any blemish rather the issue before the Court is regarding the readiness and willingness. Insofar as the fact that the plaintiff's conduct has been blemishless and entitles him to relief of specific performance has to be seen in context with Section 20 of the Specific Relief Act. It is nobody's case that the conduct of the plaintiff suffers from any blemish rather the issue before the Court is regarding the readiness and willingness. In light of the detailed discussion as well as the reference to the decisions of the Apex Court as well as this Court in Arjun Prasad (supra), Ramzan Ali (supra), the proposition is crystal clear that the plaintiff has to aver and prove with cogent evidence his readiness and willingness and for the reasons recorded above, the plaintiff has not been able to establish the same. Hence, it cannot be said that the lower appellate Court has committed an error. The first issue is answered accordingly. 31. The second question whether the defendants No.2 and 3 are bona fide purchasers for valuable consideration without notice is concerned, the same was to be established by the defendant. P.W.-2 has categorically stated that he had met the defendant No.2 and informed that he was going to Akbarpur for witnessing an agreement between the defendant No.1 and the plaintiff. However, this statement was the sheet anchor for the trial Court while it returned the finding that the defendant No.2 and 3 were not bona fide purchasers for valuable consideration without notice. However, the lower appellate Court reversed the finding of fact after taking note of the evidence of the P.W.-2 as well as the P.W.-1 in this regard. The fact was clearly disputed by the defendant in its statement. The lower appellate Court has taken note of the evidence of P.W.-1 himself who stated that the defendant No.2 was aware of the agreement between the plaintiff and the defendant No.1 as the defendant No.2 was present during the said conversation when the terms for the agreement were being settled. This is in direct contradiction and contrast to the statement of the P.W.-2, who stated that while he was going to Akbarpur for witnessing the agreement, the defendant No.2 had asked him where he was going and for the said statement, it is inferred that the defendant No.2 became aware that there was an agreement between the plaintiff and the defendant No.1. From the perusal of the aforesaid, it would indicate that there is clear variance in the statements and the version of both the P.W.1 and P.W.2 ascribing knowledge/notice to the defendant No.2 regarding the agreement to sell. On the other hand, this fact is disputed by the defendant No.2 stating that they were not aware of the agreement moreso, when they already had an agreement in their favour from the defendant No.1 relating to the year 1975 and prior in time. 32. Be that as it may, the finding given by the lower appellate Court that the defendants No.2 and 3 were bona fide purchasers for valuable consideration without notice is based on appreciation of evidence and has been recorded after taking note of the statement of the witnesses, which cannot be said to be perverse. This Court in exercise of powers under Section 100 C.P.C. is not required to reappraise the evidence unless it is found to be perverse. It cannot be said that the view taken by the lower appellate Court is based on no evidence or on the evidence, which is not admissible or has been recorded relying upon incorrect reading of the statement and the view formed is such which no reasonable person could form in the given facts and circumstances. 33. Thus for the aforesaid reason, this Court is not inclined to interfere in the aforesaid finding of fact which is affirmed. This Court, thus, holds that the defendants No.2 and 3 were the bona fide purchasers for valuable consideration without notice. Having said so, this Court is also required to look into the fact as to whether the plaintiff has been in possession since last 40 years as stated, however, this issue may not detained this Court for long as there is no material evidence in this regard before this Court. The suit was filed in the year 1980 and the instant second appeal has been pending before this Court since the year 1986, but not a single document evidencing the possession of the plaintiff has been brought on record. Since there is no finding by either of the two Courts below on this fact and in absence of any cogent evidence before this Court, this Court is not inclined to return any finding on the issue of possession. Since there is no finding by either of the two Courts below on this fact and in absence of any cogent evidence before this Court, this Court is not inclined to return any finding on the issue of possession. Thus, for the said reason, the Court does not find favour with the submission that the plaintiff is in possession for the last 40 years and for this sole reason, he is entitled to the discretion in terms of Section 20 of grant of decree of specific performance. 34. It will also be relevant to point out that even if, all the ingredients required for grant of specific performance is made out, even then, it is not necessary for the Court to grant a decree of specific performance as it is purely equitable and discretionary in nature. This aspect has also been dealt with in detail by this Court by taking aid of the various decisions of the Apex Court and considered in Arjun Prasad (supra). 35. The decisions which have been cited by the learned counsel for the appellant in context of Section 19 of the Act of 1963 regarding the plea of the defendants being bona fide purchasers for valuable consideration without notice, as a proposition is not disputed. However, at the same time, this being a question of fact is to be ascertained on the basis of the evidence which is available on record and thus, in the light of the discussions made hereinabove, though the proposition in the decisions cited by the learned counsel for the appellant is not disputed but its applicability in the instant case does not aid the appellant. Thus with all humility, this Court is unable to accept the submissions of the learned counsel for the appellant. 36. Thus with all humility, this Court is unable to accept the submissions of the learned counsel for the appellant. 36. Having taken a wholesome view of the facts and situation and also noticing that the appellant has a registered agreement to sell in his favour in terms whereof he had already paid a sum of Rs.2,000/-as earnest money in the year 1979 and has been litigating since last 44 years and considering the fact that the defendant No.1 did not contest the proceedings whereas the defendants No.2 and 3 having purchased the property from the defendant No.1 during the currency of the agreement executed by the defendant No.1 in favour of the plaintiff hence, the defendants No.2 and 3 has stepped into the shoes of the original vendor and accordingly, looking into the circumstances even though, the plaintiff may not be entitled to a decree of specific performance yet, he is entitled to refund of the aforesaid sum. 37. This Court taking note of the decisions of the Apex Court in K. Prakash vs. B.R. Sampath Kumar, (2015) 1 SCC 597 ; Zarina Siddiqui vs. A. Ramalingam (2015) 1 SCC 705 and U.N. Krishnamurthy vs. A.M. Krishnamurthy, 2022 SCC Online SC 840, wherein the issue of escalation in the prices of property and balancing the equities between the parties has been considered and noticing that 40 years have lapsed and the prices of the property have escalated and the value of money on account of inflation has also been affected severely, hence, applying the dictum of the Apex Court in K. Prakash (supra), Zarina Siddiqui (supra) and A.M. Krishnamurthy (supra) and in the given facts and circumstances, this Court deems appropriate that while affirming the judgment and decree dated 28.04.1986 passed in Civil appeal No.39 of 1982 by the Second Additional District Judge, Faizabad, this Court further directs that the defendants No.2 and 3 shall refund a sum of Rs. 3 lacs to the plaintiff-appellant within a period of 60 days from today. In case, if the aforesaid sum is not paid to the plaintiff, the plaintiff-appellant shall be entitled to recover the same from the defendants No.2 and 3 in accordance with law by moving an execution application. 38. 3 lacs to the plaintiff-appellant within a period of 60 days from today. In case, if the aforesaid sum is not paid to the plaintiff, the plaintiff-appellant shall be entitled to recover the same from the defendants No.2 and 3 in accordance with law by moving an execution application. 38. In light of the aforesaid discussions and subject to the aforesaid modification in the judgment and decree dated 28.04.1986 passed in civil appeal No. 39 of 1982, this second appeal is dismissed. In the facts and circumstances, there shall be no order as to costs. The record of the trial court shall be returned.