JUDGMENT : NARESH KUMAR CHANDRAVANSHI, J. 1. This First Appeal has been filed under Section 96 of the Code of Civil Procedure, 1908 (henceforth “CPC”) against the impugned judgment and decree dated 29.01.2008 passed by the 2nd Upper District Judge (F.T.C.) Janjgir, District Janjgir-Champa (C.G.) in Civil Suit No. 36-A/2007, whereby the suit filed by the appellant for specific performance of contract, has been dismissed by the learned trial Court. (Hereinafter parties shall be referred as per their status before the trial Court) 2. Facts of the case in brief are that, suit for specific performance of contract was filed by the plaintiff before the trial Court, pleading inter alia that, original defendant/Chhatram Yadav had entered into the contract to sell out his suit land bearing Khasra No. 26/1 area 1.00 acre and Khasra No. 16/1 area 0.26 acre with the plaintiff, after receiving the advance amount, he executed ‘Mahadanama-Bikripatra’ on 30.06.2003 in favour of the plaintiff. Subsequently, defendant also received some part of the consideration. But ultimately, he refused to execute the sale deed in favour of the plaintiff, therefore, plaintiff filed civil suit for specific performance of contract to get registered sale deed in his favour. 3. Despite service of notice, defendant Chhatram Yadav neither entered his appearance before the learned trial Court, nor filed written statement, hence, ex-parte proceeding was done against him. Defendant No. 2 is said to be formal party in the suit. 4. On the basis of pleading of plaintiff, learned trial Court framed as many as 7 issues. After providing opportunity to the plaintiff to adduce the evidence. After considering the evidence, vide impugned judgment and decree dated 29.01.2008, learned trial Court has held that, although agreement to sell of suit land was made by the defendant/Chhatram Yadav with plaintiff, but plaintiff has failed to prove his readiness and willingness, therefore, learned trial Court had declined to grant decree in respect of execution of sale deed in favour of the plaintiff, rather it held that plaintiff is entitled to get back advance amount of Rs.38,680/- from defendant/Chhatram Yadav along with interest of 9% per annum. Being aggrieved and dissatisfied from the judgment and decree, plaintiff preferred the instant appeal. 5. Being aggrieved and dissatisfied from the judgment and decree, plaintiff preferred the instant appeal. 5. Learned counsel for the appellant would submit that, learned trial Court has held to prove that, agreement to sell Ex.P/1 of suit land was executed by defendant Chhatram Yadav by receiving advance amount of Rs.10,000/- on 30.06.2003 at the time of agreement and subsequent to execution of agreement to sell, he received Rs.10,000/- on 11.09.2003 and Rs.5,000/- on 19.02.2004. Thereafter, he requested plaintiff to deposit his remaining loan amount of Rs.13,680/- in the Raipur Chetriye Gramin Bank, Branch Nariyara, which was deposited by plaintiff’s brother under his instruction. Thus, in this way he received total Rs.38,680/- from the plaintiff, as advance amount in respect of the aforesaid agreement to sell, despite that, learned trial Court has held that, plaintiff has failed to prove his readiness and willingness in respect of the performance of his part of contract, whereas plaintiff has not only pleaded, but also proved by adducing oral and documentary evidence that, he was always ready and willing to perform his part of contract. In this regard, plaintiff had also sent legal notice vide Ex.P/3 to the defendant, even then, learned trial Court has dismissed the suit, which is against the law and evidence, available on record. Therefore, it is prayed that appeal may be allowed by setting aside the judgment and decree passed by the learned trial Court and decree may be granted in favour of the appellant/plaintiff. 6. Per Contra, learned counsel for the respondents would submit that, alleged agreement was executed by original defendant/Chhatram Yadav, who has died. He further submits that during the pendency of civil suit, Chhatram Yadav had sold the land to Aniwesh Singh vide registered sale deed. In these changed circumstances, earlier, the plaintiff had impleaded subsequent purchaser Aniwesh Singh as defendant No. 3 in plaint, but later on, it was deleted from the plaint. It is further submitted that, presently Aniwesh Singh is holding the title and possession over the suit land, despite that, he has neither been impleaded as party respondent before the trial Court, nor before this Court in instant appeal. He further submits that, as per agreement (Ex.P/1) dated 30.06.2003, sale deed was to be executed in January, 2004 after payment of remaining consideration, but plaintiff neither paid remaining sale consideration, nor made any effort in this regard. He further submits that, as per agreement (Ex.P/1) dated 30.06.2003, sale deed was to be executed in January, 2004 after payment of remaining consideration, but plaintiff neither paid remaining sale consideration, nor made any effort in this regard. Therefore, learned trial Court has rightly held that, plaintiff was not ready and willing to perform his part of contract, hence, he is not entitled to get decree of specific performance of contract. Therefore, instant appeal is liable to be dismissed. 7. I have heard learned counsel for the parties and perused the material available on record along with the record of trial Court with at-most circumspection. 8. It is trite law that, in a suit for specific performance of contract, it is incumbent upon the plaintiff to prove his readiness and willingness to perform his obligations under the agreement. Where a certain amount has been paid in advance and balance is required to be paid within stipulated time, it is for the plaintiff to show that he was in a position to pay the balance amount. The plaintiff has to prove that, he had the money or had alternatively made necessary arrangements to get the money. In instant case, the question for determination is where the plaintiff has proved his readiness and willingness to perform his part of the contract or not? This issue has been answered in negative by the learned trial Court. 9. Before adverting to the facts of the case, it is apt to be noted here, the relevant provisions of Section 16 of the Specific Performance of Contract Act, 1963 (for short ‘the Act of 1963’) as it stood at the time of alleged agreement to sell (prior to amendment with effect from 01.10.2018) and case laws in this regard. Section 16 of the aforesaid Act provides as under: “16. Personal bars to relief - Specific performance of a contract cannot be enforced in favour of a person: (a) who would not be entitled to recover compensation for its breach. (b) who has become incapable of performing, or violates any essential term of, the contract that on his part remains to be performed, or acts in fraud of the contract, or willfully acts at variance with, or in subversion of, the relation intended to be established by the contract. (b) who has become incapable of performing, or violates any essential term of, the contract that on his part remains to be performed, or acts in fraud of the contract, or willfully acts at variance with, or in subversion of, the relation intended to be established by the contract. (c) who fails to aver and prove that he has 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 terms the performance of which has been prevented or waived by the defendant. Explanation - For the purposes of clause (c): (i) where a contract involves the payment of money, it is not essential for the plaintiff to actually tender to the defendant or to deposit in court any money except when so directed by the court. (ii) the plaintiff must aver performance of, or readiness and willingness to perform, the contract according to its true construction.” 10. Section 16(c) of the Act of 1963, bars the relief of specific performance of a contract in favour of a person, who fails to aver and prove his readiness and willingness to perform his part of contract. In view of Explanation (i) to clause (c) of Section 16, it may not be essential for the plaintiff to actually tender money to the defendant or to deposit money in Court, except when so directed by the Court, to prove readiness and willingness to perform the essential terms of a contract, which involves payment of money. However, explanation (ii) says, the plaintiff must aver performance or readiness and willingness to perform the contract according to its true construction. 11. In the case of U.N. Krishnamurthy vs. A.M. Krishnamurthy, (2023) 11 SCC 775 , Hon’ble Supreme Court has held in Paras 24, 25, 26 & 30, as under: “24. To aver and prove readiness and willingness to perform an obligation to pay money, in terms of a contract, the plaintiff would have to make specific statements in the plaint and adduce evidence to show availability of funds to make payment in terms of the contract in time. In other words, the plaintiff would have to plead that the plaintiff had sufficient funds or was in a position to raise funds in time to discharge his obligation under the contract. In other words, the plaintiff would have to plead that the plaintiff had sufficient funds or was in a position to raise funds in time to discharge his obligation under the contract. If the plaintiff does not have sufficient funds with him to discharge his obligations in terms of a contract, which requires payment of money, the plaintiff would have to specifically plead how the funds would be available to him......... 25. In Man Kaur vs. Hartar Singh Sangha, (2010) 10 SCC 512 , Hon’ble Supreme Court has held that: (SCC p.531, Para 40) “40.......A person who fails to aver and prove that he has 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 the terms the performance of which has been prevented or waived by the defendant) is barred from claiming specific performance. Therefore, even assuming that the defendant had committed breach, if the plaintiff fails to aver in the plaint or prove that he was always ready and willing to perform the essential terms of contract which are required to be performed by him (other than the terms the performance of which has been prevented or waived by the plaintiff), there is a bar to specific performance in his favour. Therefore, the assumption of the respondent that readiness and willingness on the part of the plaintiff is something which need not be proved, if the plaintiff is able to establish that the defendant refused to execute the sale deed and thereby committed breach, is not correct......... 26. In Prem Raj vs. DLF Housing Co. Construction (P) Ltd. 1968 SCC Online SC 151 : AIR 1968 SC 1355 cited by Mr. Venugopal, Hon’ble Supreme Court speaking through Ramaswamy J. held that: (AIR p. 1357, Para 5) “5.........it is well-settled that in a suit for specific performance the plaintiff should allege that he is ready and willing to perform his part of the contract......” And if the fact is traversed, he is required to prove a continuous readiness and willingness from the date of the contract to the time of the hearing, to perform the contract on his part. For such conclusion the learned Judge relied upon the opinion of Lord Blanesburgh, in Ardeshir Mama vs. Flora Sassoon, 1928 SCC Online PC 43 : (1927-28) 55 IA 360 : AIR 1928 PC 208 . For such conclusion the learned Judge relied upon the opinion of Lord Blanesburgh, in Ardeshir Mama vs. Flora Sassoon, 1928 SCC Online PC 43 : (1927-28) 55 IA 360 : AIR 1928 PC 208 . 30. In Umabai vs. Nilkanth Dhondiba Chavan, (2005) 6 SCC 243 , Hon’ble Supreme Court held that a finding as to whether the Plaintiffs were all along and still ready and willing to perform their part of the contract, was a mandatory requirement under Section 16(c) of the Specific Relief Act. The Court would necessarily have to arrive at the finding that the Plaintiff all along were, and still are ready and also willing to perform their part of the contract, taking into account the entirety of the pleadings as also the evidence brought on record. To quote this Court (SCC p. 258 Para 38): “38............ “5.......So far there being a plea that they were ready and willing to perform their part of the contract is there in the pleading, we have no hesitation to conclude, that this by itself is not sufficient to hold that the appellants were ready and willing in terms of Section 16(c) of the Specific Relief Act. This requires not only such plea but also proof of the same. Now examining the first of the two circumstances, how could mere filing of this suit, after exemption was granted be a circumstance about willingness or readiness of the plaintiff. This at the most could be the desire of the plaintiff to have this property. It may be for such a desire this suit was filed raising such a plea. But Section 16(c) of the said Act makes it clear that mere plea is not sufficient, it has to be proved.” 12. Hon’ble Supreme Court in the case of U.N. Krishnamurthy (supra), while considering the issue of specific performance of contract has observed in Paras 32, 33, 34 & 45, as under: “32. In a suit for Specific Performance of a contract, the Court is required to pose unto itself the following questions, namely: 32.1 Whether there is a valid agreement of sale binding on both the vendor and the vendee. 32.2 Whether the Plaintiff has all along been and still is ready and willing to perform his part of the contract as envisaged under Section 16(c) of the Specific Relief Act, 1963. 33. 32.2 Whether the Plaintiff has all along been and still is ready and willing to perform his part of the contract as envisaged under Section 16(c) of the Specific Relief Act, 1963. 33. There is a distinction between readiness and willingness to perform the contract and both ingredients are necessary for the relief of Specific Performance. In Acharya Swami Ganesh Dassji vs. Sita Ram Thapar, (1996) 4 SCC 526 cited by Mr. Venugopal, this Court said that there was a difference between readiness and willingness to perform a contract. While readiness means the capacity of the Plaintiff to perform the contract which would include his financial position, willingness relates to the conduct of the Plaintiff. The same view was taken by the Hon’ble Supreme Court in Kalawati vs. Rakesh Kumar, (2018) 3 SCC 658 . 34. Even in a first appeal, the first Appellate Court is duty bound to examine whether there was continuous readiness and willingness on the part of the Plaintiff to perform the contract. This proposition finds support from Balraj Taneja vs. Sunil Madan, (1999) 8 SCC 396 and H.P. Pyarejan vs. Dasappa, (2006) 2 SCC 496 where the Hon’ble Supreme Court approved the views taken by the Privy Council in Ardeshir Mama (supra). 45. It is settled law that for relief of specific performance, the Plaintiff has to prove that all along and till the final decision of the suit, he was ready and willing to perform his part of the contract. It is the bounden duty of the Plaintiff to prove his readiness and willingness by adducing evidence. This crucial facet has to be determined by considering all circumstances including availability of funds and mere statement or averment in plaint of readiness and willingness, would not suffice.” 13. In the case of Chand Rani vs. Kamal Rani, (1993) 1 SCC 519 Constitution Bench of the Hon’ble Supreme Court, while considering the time period for filing suit for specific performance of contract has observed in Para 25 as under: “25.........it is clear that in the case of sale of immovable property there is no presumption as to time being the essence of the contract. Even if it is not of the essence of the contract, the Court may infer that it is to be performed in a reasonable time if the conditions are (evident): (1) from the express terms of the contract. Even if it is not of the essence of the contract, the Court may infer that it is to be performed in a reasonable time if the conditions are (evident): (1) from the express terms of the contract. (2) from the nature of the property. (3) from the surrounding circumstances, for example, the object of making the contract.” In other words, the court should look at all the relevant circumstances including the time-limits specified in the agreement and determine whether its discretion to grant specific performance should be exercised.” 14. In view of aforesaid proposition of laws, if facts of the instant case is considered, then it is found that defendant/Chhatram Yadav had agreed to sell the suit land, to meet his domestic expenditure (Gharelukharch) and for repayment of bank loan, as has been stated by the plaintiff and his witnesses, therefore, it was stipulated in agreement Ex.P/1 that, registration of sale deed shall be got executed in the month of January, 2004, at that time remaining amount of sale consideration will be paid, but in the month of January, 2004, sale deed was not got executed. Why it was not got executed, has not been explained by the plaintiff. Although, after 30.06.2003 defendant received some amount from plaintiff, but only on this count, it cannot be accepted that defendant was liable for not executing the sale deed, as plaintiff himself sent the legal notice Ex.P/3 after about 1½ year from January, 2004 when registered sale deed ought to have been executed. 15. Plaintiff has also not proved in his deposition that, after execution of agreement (Ex.P/1), he was always having remaining sale consideration to be paid by him or he had arranged the amount from other person or means. Only on the basis of registered notice Ex.P/3 sent by the plaintiff to defendant that, he was ready to perform his part of contract, his readiness and willingness cannot be held to be proved. Only on the basis of registered notice Ex.P/3 sent by the plaintiff to defendant that, he was ready to perform his part of contract, his readiness and willingness cannot be held to be proved. If, plaintiff would have sufficient fund to get executed the sale deed in the month of January, 2004 or near about, then instead of paying meagre amount of Rs.10,000/- on 11.09.2003 and Rs.5,000/- on 19.02.2004 to the defendant, he would have asked the defendant to execute the registered sale deed and received all the remaining consideration, but plaintiff did not do so, rather he remained inactive only by paying Rs.10,000/- on 11.09.2003 & Rs.5,000/- on 19.02.2004 to the defendant. This conduct of plaintiff not only frustrate the purpose of defendant to sell his suit land, rather it also shows that, plaintiff was not ready and willing to perform his part of contract. Hence, it is found that, learned trial Court has rightly gave negative finding against the plaintiff in this regard. 16. It is also apt to be noted here that, although defendant had agreed to sell suit land claiming himself to be owner of the same, his witnesses have also deposed in their deposition that, he is the owner of the suit land and after execution of agreement Ex.P/1, he had handed over the possession to the plaintiff, but no document has been filed by the plaintiff to show that, defendant was the owner of the suit land and he had handed over the possession to the plaintiff. Thus, except verbal fact, there is no other evidence/document held to be proved that, defendant was the owner of the suit land and he was having right to sell it. 17. The general rule of law is that, no one can transfer a better title, then what he himself possess. If, defendant/Chhatram Yadav was the owner of the suit land, then valid document to show his title over the suit land ought to have been filed & proved, but no such document has been filed and proved by the plaintiff. 17. The general rule of law is that, no one can transfer a better title, then what he himself possess. If, defendant/Chhatram Yadav was the owner of the suit land, then valid document to show his title over the suit land ought to have been filed & proved, but no such document has been filed and proved by the plaintiff. For the sake of argument, if it is held that, if plaintiff is entitled to get registered sale deed in his favour through Court, then whether Court can execute valid registered sale deed in favour of the plaintiff, particularly in a situation when no document has been filed/proved by the parties to show that defendant is owner of the suit land. In the opinion of this Court, only on the verbal fact, neither such decree can be granted to the plaintiff, nor sale deed can be executed. Only on the mere ground of defendant being ex-parte, aforesaid question cannot be answered affirmatively. 18. In instant case, since plaintiff has not filed any valid document to prove the fact that, defendant/Chhatram Yadav was the owner of the suit land and he was competent to execute agreement to sell of suit land, therefore, it cannot be held to prove that, there was valid agreement of sell between the plaintiff and original defendant/Chhatram Yadav. On this count also, this Court finds that, plaintiff is not entitled for specific performance of contract by getting sale deed registered in his favour. But, since on the basis of uncontroverted statement of plaintiff’s witnesses, it is proved that, defendant/Chhatram Yadav had received total amount of Rs.38,680/- from plaintiff on the basis of agreement (Ex.P/1), therefore, learned trial Court has rightly held that plaintiff is entitled to get back the aforesaid amount from the defendant/Chhatram Yadav. 19. In view of above discussions, I do not find any illegality or infirmity in the impugned judgment and decree dated 29.01.2008 passed by the learned trial Court, therefore, the same is upheld. 20. Accordingly, instant appeal is liable to be and is hereby dismissed. No order as to costs. 21. A decree be drawn accordingly.