Rajni Kumar Mahto Vs. Smt. Uma Devi Budhia and ors. - Court Judgment

Vishnudeo Narayan, J.

1. This appeal at the instance of appellant-defendant No. 1 has been preferred against the impugned judgment and decree dated 01.09.1993 and 13.09.1993 respectively passed in Title Suit No. 282 of 1987 by Shri Azad Chandra Shekhar Prasad Singh, 6th Subordinate Judge, Ranchi whereby and whereunder the said suit for specific performance of the contract was decreed directing defendant Nos. 1 to 8 (i.e. appellant-defendant No. 1 and defendant-respondent Nos. 3 to 9 here in this appeal) to execute and register the sale deed in favour of the plaintiffs-respondent in respect of the suit land mentioned in the schedule at the foot of the plaint after taking balance amount of consideration from them.

2. The plaintiffs-respondent No. 1 and 2 have filed the said suit for specific performance of the agreement dated 30.12.1986 in respect of the suit land detailed in the schedule of the plaint directing the defendant Nos. 1 to 8 to execute and register the sale deed in favour of the plaintiffs-respondent within a time to be fixed by the Court failing which the said sale deed may be executed and registered by the Court and for permanent injunction restraining the defendants for entering into in agreement with and/or disposing of the suit land either by sale, gift, exchange or otherwise to any other person.

3. The case of the plaintiffs-respondent is that defendant-respondent Nos. 3 to 9 (defendant No. 2 to 8 in the suit) are the owners of the suit land bearing R.S. plot Nos. 2 and 3 situate in village Dumardagga P.S. and district Ranchi and plot Nos. 602, 603 and 610 situate in village Booty, P.S. Sadar, District Ranchi and appellant-defendant No. 1 is their duly constituted attorney empowered to deal with the suit properties and to execute agreement with prospective purchasers and to receive advance and to deliver possession to the prospective purchasers and to do all necessary things in connection therewith including execution and registration of the deed of sale in favour of the prospective purchasers or their nominee or nominees. The appellant-defendant No. 1 has offered to sell 0.38 acres of land out of plot No. 2, 1.12 acres of land out of plot No. 3 situate in village Dumardagga and also the levelled land out of plot No. 602, plot Nos. 603 and 610 situate in village Booty @ Rs. 60,000/-per acre and he obtained Rs. 3001/- as earnest money from the plaintiff-respondent No. 1 through her husband plaintiff-respondent No. 2 on 30.12.1986 and in part performance of the agreement dated 30.12.1986 put the plaintiffs-respondent in possession of the suit land on 30.12.1986 and since then the plaintiffs-respondent are in possession thereof in part performance of the said agreement. Allegedly according to the terms of the agreement dated 30.12.1986 the appellant-defendant agreed to deliver all relevant papers and documents relating to the suit land to the plaintiffs-respondent and also made an endorsement on the agreement on receipt of further advance of Rs. 67,500/-which was paid to him by the plaintiff-respondent No. 1, through her husband and thus the defendants-appellant has received a total sum of Rs. 70,501/- in connection with the said agreement. It is alleged that the plaintiffs-respondent also invested a further sum of Rs. 29,500/-from time to time as per the instructions; of defendant-appellant in getting the name of defendants-respondent Nos. 3 to 9 mutated in the office of the State of Bihar and clearing the dues with respect to the arrears of rent of the suit plots and in meeting other expense in connection therewith and the defendant-appellant as well as the defendants-respondent No. 3 to 9 aforesaid had agreed that the amount so spent by the plaintiffs-respondent would be treated as further advance and shall be adjusted against the consideration amount and thus the plaintiffs-respondent have invested a total sum of Rs. 1,00,000/- in relation to the agreement aforesaid. It is also alleged that defendant-appellant had assured the plaintiffs-respondent that necessary provision of land through PWD road to the suit plots agreed to be sold to them would be made by him and inspite of repeated request in respect thereof necessary provision for at least 100 feet approach road from PWD road to the suit land be sold to the plaintiffs-respondent for ingress or egress has not been made by the defendant-appellant and further the defendant-appellant also did not deliver the documents of title with respect to the suit lands to the plaintiffs-respondent. The further case of the plaintiffs-respondent is that they were always ready and willing and are still ready and willing to perform their part of the agreement and to pay the balance of the consideration money for getting the sale deed executed in their favour whereas the defendant-appellant and defendant-respondent Nos. 3 to 9 have failed and neglected to perform their part of the agreement and have also not carried out their contractual obligations bound under the law and they have also not cared to apply for necessary permission for sale of the suit land before the competent authority under the Urban Land (Ceiling and Regulation) Act, 1976. The plaintiffs-respondent came to know that the defendant-appellant and other defendants-respondent with a malafide intention are bent upon to sell the suit land to some other person or agency and plaintiff-respondent No. 1 immediately got a notice published through her lawyer in the daily newspaper. The Ranchi Express on 10.09.1987 mentioning therein that plaintiff-respondent No. I is the prospective purchaser of the suit land as per the subsisting agreement dated 30.12.1986 and thus the plaintiffs-respondent alone have the right to purchase the suit land and non-else has got any right to enter into an agreement of sale in respect thereof and inspite of the said notice the plaintiffs-respondent have come to know that defendant-respondent Nos. 3 to 9 through defendant-appellant have executed a registered agreement on 17.09.1987 in favour of defendant-respondent No. 10 through its Secretary defendant-respondent No. 11 in respect of 10.90 acres of land out of R.S. plot No. 602 aforesaid which was the subject matter of the agreement dated 30.12.1986 aforesaid and defendant-respondent Nos. 10 and 11 were in full know of the agreement dated 30.12.1986 between the plaintiffs-respondent and the defendant-appellant along with other defendants-respondent and the action of the defendant-appellant is malafide and defendant-respondent Nos. 10 and 11 had no right whatsoever to purchase any portion of plot No. 602 aforesaid and the agreement dated 17.09.1987 is illegal, void and not binding upon the plaintiffs-respondent. Lastly it has been alleged that the plaintiffs-respondent were always willing and ready to perform their part of the agreement and to pay the balance of the consideration money and to get the sale deed executed and registered in their favour but defendant-appellant and defendant-respondent Nos. 3 to 9 have failed to perform their part of the agreement with malafide motive and the Advocate's notice served upon defendant-respondent Nos. 10 and 11 also did yield no result and hence the necessity of this suit.

4. The case of the defendant-appellant and defendant-respondent Nos. 3 to 9 inter alia, is that defendant-respondent No. 3 to 9 have no concern whatsoever with R.S. plot Nos. 2 and 3 situated in village Dumardagga rather the sons of defendant-respondent No. 3 Narayan Nath Ohdar have acquired 1.12 acres out of 2.24 acres of R.S. plot No. 2 and plot No. 603 and 610 situate at Booty are the raiyati land of Aghin Mahto and Lalu Mahto as well as Bal Govind Baitha and Janki Baitha respectively and recorded in their names in the Cadestral Survey and they are not at all connected with these defendants-respondent and the descendants of Aghin Mahto and Lalu Mahto have sold plot No. 603 by virtue of the registered sale deed dated 30.12.1987 to Sudeshwar Prasad and Shyam Nandan Prasad who are in possession over the same. The total area of plot No. 602 situate in village Booty is 10.90 acres recorded as gair mazarua malik land in the Survey Records of Right. Defendant-respondent No. 4 Narayan Nath Ohdar and defendant-respondent No. 5 Machindra Nath Ohdar took settlement of 5.45 acres out of plot No. 602 by virtue of hukumnama dated 21.02.1952 and defendant-respondent Nos. 6 to 9 got settlement of 2.72 acres out of the said plot by virtue of hukumnama dated 12.02.1952 and defendant-respondent No. 3 Chotan Choudhary also took settlement of 2.72 acres of land out of the said plot by virtue of hukumnama dated 10.12.1952. It is alleged that defendant-respondent Nos. 3 to 9 had executed a registered Power-of-Attorney empowering defendant-appellant only to deal with the land in plot No. 602 of village Booty allotted to them by a decree of title partition suit No. 119 of 1946 of the Court of Special Judge, Ranchi. It is alleged that defendant-appellant has never offered to sell any land to the plaintiffs-respondent but the plaintiff-respondent No. 2 cajoled defendant-appellant to help him in acquiring and developing a site for establishing a building complex and outlined a plan for the same involving R.S. plot No. 602 and other nearby plots and defendant-appellant agreed to help him in his plan and accordingly, a memorandum might have been prepared and the defendant-appellant No. 1 was paid Rs. 3001/- by way of his remuneration and it is false to say that the defendant-appellant has offered to sell the suit plots to plaintiff-respondent No. 1 @ Rs. 60,000/-per acre and has received Rs. 3001/- as earnest money and it is equally false to say that the plaintiffs-respondent have been put in possession over the suit plots by them. It is also alleged that there is in fact no agreement dated 30.12.1946 as alleged by the plaintiffs-respondent and question of putting them in possession in part performance of the agreement does not arise at all. Their case further is that defendant-respondent Nos. 3 to 9 have sold 8.18 acres out of plot No. 602 to defendant-respondent No. 10 vide registered sale deed dated 26.04.1988 and defendant-respondent No. 10 are in possession thereof and the remaining area of plot No. 602 is still in possession of defendant-respondent Nos. 3 to 9. It is also alleged that a sum of Rs. 67,500/- was deposited with defendant-appellant by plaintiff-respondent No. 2 for investment and in furtherance of his plan of acquisition of the suit plots but since in spite of the best efforts of defendant-appellant the plan could not be given a concrete shape, the said amount is still lying in deposit with the defendant-appellant and in spite of repeated requests of the defendant-appellant the plaintiff-respondent No. 2 did not take back the entire sum of Rs. 70,501/- on various pretexts and has filed the suit on frivolous grounds and defendant-appellant was and is still willing and ready to refund the sum of Rs. 70,501/- to plaintiff-respondent No. 2 and a cheque to that effect is being deposited in the Court. It is also alleged that a sum of Rs. 67,500/-and Rs. 3001/- was never received by way of earnest money against any agreement. Their specific case is that no concluded and definite agreement for sale was ever entered into between defendant-appellant and the plaintiffs-respondent and writing, if at all any, cannot but a memorandum for chalking out the roles to be played and actions to be taken for entering into a definite agreement for sale in respect of definite land in future. It is further alleged that defendant-appellant and defendant-respondent Nos. 3 to 9 have never instructed the plaintiffs-respondent to invest any sum for mutation or for clearing the dues of arrears of rent or for any other purpose, whatsoever, and question of agreement and assurance to treat a sum of Rs. 29,500/-allegedly spent by the plaintiffs-respondent as further advance does not arise at all. Since there was no agreement for sale, there is no obligation cast of the defendant-appellant and either defendants-respondent to make any application for permission from the competent authority under the Urban Land (Ceiling and Regulation) Act, 1976 and without prejudice to the said contention the performance of the alleged agreement for sale being totally dependent upon the contingency of grant or refusal of permission by the competent authority is not enforceable in law. Neither any assurance about road was given by the defendant-appellant to any of the plaintiffs-respondent as alleged nor any approach was made by them to defendant-appellant or defendant-respondent Nos. 3 to 9 for 150 feet road as alleged. It is also alleged that defendant-respondent Nos. 3 to 9 in absence of a concluded and definite agreement for sale have transferred 8.18 acres out of plot No. 602 aforesaid by virtue of a registered sale deed in favour of defendant-respondent No. 10 without having any knowledge of the alleged notice dated 10.09.1987 published in the Ranchi Express and the plaintiffs-respondent had knowledge regarding the existence of agreement between defendant-respondent Nos. 3 to 9 and defendant-respondent No. 10. Lastly it has been alleged that no agreement for sale was entered into with the plaintiffs-respondent by the defendant-appellant or defendant-respondent Nos. 3 to 9 and the alleged writing dated 30.12.1986 annexed to the plaint as Annexure 1 is not an agreement for sale enforceable by law.

5. Defendant-respondent Nos. 10 and 11 have filed their separate written statement supporting the case of the other defendants-respondent and the defendant-appellant.

6. In view of the pleadings of the parties the learned Trial Court has framed the following issues for adjudication :--

(a) Is the suit as framed maintainable ?

(b) Have the plaintiffs valid cause of action ?

(c) Is the suit barred by limitation ?

(d) Have the defendants entered into an agreement with the plaintiffs for the sale of the land ?

(e) Are the plaintiffs ready and willing to perform their part of agreement ?

(f) What other relief or reliefs the plaintiffs are entitled to ?

7. While deciding issues No. (d), (e) and (f) the learned Trial Court has held that defendant-appellant No. 1 has entered into a written agreement with plaintiffs-respondent No. 1 on 30.12.1986 and received a sum of Rs. 3001/- and Rs. 67,500/- from plaintiff-respondent No. 1 through her husband plaintiff-respondent No. 2 and defendant-appellant was required to execute and register a sale deed within 3-1/2 months which he failed to do and without giving any notice to the plaintiffs-respondent the defendant-respondent Nos. 3 to 9 have entered into an agreement with defendant-respondent Nos. 10 and 11 who were fully aware of the agreement dated 30.12.1986 in respect of which a reference has been made in the said agreement and the defendant-respondent Nos. 10 and 11 have got the sale deed executed and registered during the pendency of this suit and their sale deed is hit by the rule of lis pendens and respondent Nos. 10 and 11 are equally bound by the agreement executed in favour of plaintiffs-respondent. It has further been held that the suit plots are agricultural land and as such no notice under Section 26 of the Urban Land (Ceiling and Regulation), Act is required and the agreement dated 30.12.1986 is enforceable in law. It has also been held that in a suit for specific performance of the agreement the title of third party cannot be decided and it is the purchasers risk to purchase the property irrespective of the fact whether the defendants-respondent Nos. 3 to 9 have got title or not. It has also been held that plaintiffs-respondent were and are still ready and willing to perform their part of the agreement and to get the sale deed executed and registered. In view of the findings aforesaid the suit of the plaintiffs-respondent was decreed directing defendant-appellant and defendant-respondent Nos. 3 to 9 to execute and register the sale deed in favour of the plaintiffs-respondent in respect of the suit plots aforesaid after taking rest of the consideration amount from the plaintiffs-respondent.

8. Assailing the impugned judgment Mr. Manjul Prasad, learned counsel for the defendant-appellant has submitted that the learned Court below has committed a manifest error in assuming the alleged agreement dated 30.12.1986 (Ext. 1) as a concluded agreement executed by defendant-appellant as constituted attorney of defendant-respondent Nos. 3 to 9 in favour of plaintiffs-respondent without considering the terms of the said agreement. Elucidating it further it has been submitted that where it is contemplated as per the terms of the agreement that further document of agreement shall follow the offer and acceptance, the effect of such a stipulation depends on whether the parties referred the offer and acceptance as sufficient to conclude the contract and intend the document to be record of the contract or they regard it as incomplete and did not intend to be legally binding until the terms of the formal document are agreed and the document is duly executed in accordance with the terms of the agreement. In support of his contention he has referred the terms of the alleged agreement (Ext. 1) in which it has been stated that relevant documents such as purcha, patta, hukumnama rent receipts of the suit plots have been handed over to the plaintiffs-respondent so that they may verify and satisfy themselves in respect of the title and possession of defendant-respondent Nos. 3 to 9 after going to the suit plots and measuring the suit plots by Amin and the plaintiffs-respondent may obtain legal opinion from their counsels in respect of the title of the defendant-respondent Nos. 3 to 9 so that this agreement may be finally confirmed on the first day of January, 1987 and the said agreement further recites that after satisfying themselves in respect thereof the plaintiffs-respondent shall pay Rs. 35,000/- by cheque for payment to the erstwhile two proposed purchasers by virtue of earlier two agreements and, thereafter, at the time of the final agreement to be executed the plaintiffs-respondent shall hand over a cheque of Rs. 1,13,000/- and after the execution of the subsequent agreement on 01.01.1987 the sale deed shall be executed within 3-1/2 months from that day and the said agreement further recites that after the execution of the said 'pucca' agreement the defendant-respondent Nos. 3 to 9 shall deliver possession over the suit plots to the plaintiffs-respondent so that the plaintiffs-respondent shall become sanguine regarding non interference in their possession over the same from any person. It has been contended that the terms recited in the alleged agreement (Ext. 1) clearly stipulates therein that a subsequent 'pucca' agreement is to be executed on 1st January, 1987 on payment of Rs. 35,000/- and Rs. 1,13,000/- by cheque and in this view of the matter Ext. A is a provisional agreement and it cannot be said to be a concluded agreement and as such the agreement Ext. 1 is not enforceable in law and it is not a contract enforceable by law and the suit of the plaintiffs-respondent is not maintainable on this score alone. In support of his contention reliance has been placed upon the ratio of the case of Punit Beriwala v. Suva Sanyal and Anr., AIR 1998 Calcutta 44, and Ganesh Shet v. Dr. C.S.G.K. Setty and Ors., 1998 (2) All PLR 114 (SC), and thus the finding of the learned Trial Court is erroneous that the agreement (Ext. 1) is a concluded contract enforceable in law. It has also been submitted that Section 15 of the Specific Relief Act, mandates that a suit shall lie for the specific performance of contract by any parties thereto. But in this case Ext. 1 being not a concluded agreement enforceable in law is not a contract between the parties in respect of the suit plots and no decree for specific performance of contract may be obtained by the plaintiffs-respondent on the basis of unconcluded agreement Ext. 1. It has further been submitted that the learned Court below has erroneously held that possession over the suit plots has been delivered to the plaintiffs-respondent which is not at all established as per the terms of Ext. 1 aforesaid. It has also been submitted that the subject matter of the provisional agreement (Ext. 1) is plot numbers 2 and 3 of village Dumardagga and plot Nos. 602. 603 and 610 of village Booty but the defendant-appellant has been vested with the right to deal with plot No. 602 only as per the registered Power-of-Attorney (Ext. A) and the defendant-appellant has no authority at all to deal with plot Nos. 2, 3, 603 and 610 and furthermore all the plots aforesaid except plot No. 602 do not at all belong to defendant-respondent Nos. 3 to 9 and the parties to the said agreement were not ad idem and have mutually suffered from material mistake of fact in respect of the matter which was essential to the said agreement and as such the said agreement is itself a void agreement and that being so a void agreement cannot be split up and none of the parties to the agreement can be permitted to seek enforcement of a part only of the contract in accordance with due process of the law. In support of his contention reliance has been placed upon the ratio of the case of Tersem Singh v. Sukhminder Singh, AIR 1998 SC 1400. It has also been submitted that where the agreement for sale for property is made by a person who is not having title to sell the same such claim cannot be sustained in the Court in a suit for specific performance of contract and the Court cannot direct such person to execute the sale deed and for this a reference has been made to the ratio of the case of Baudhu Mahton v. Bhagwat Ram and Ors., 2000 (3) BLJ 114. It has. also been contended that the provisional agreement suffers with uncertainty and ambiguity as the specific area of plot No. 602 has not been mentioned therein and for the removal of the said uncertainty and inambiguity it was impressed upon the plaintiffs-respondent to get the land measured by Amin and, thereafter, another 'pucca' agreement was to be executed and in this view of the matter the provisional agreement (Ext. 1) is not a concluded agreement which cannot be enforced by a suit for specific performance of contract.

It has also been contended that the learned Court below has also committed a manifest error in drawing the form of decree in which defendant-respondent Nos. 10 and 11 have not been directed to join in the execution of the sale deed with defendant-respondent Nos. 3 to 9 or the defendant-appellant so as to pass on the title which resides in them and the Apex Court in the case of Durga Prasad and Anr. v. Deep Chand and Ors., AIR 1954 SC 75, has observed that the proper form of decree is to direct specific: performance of contract between the vendor and the plaintiff and direct the subsequent transferee to join in the conveyance so as to pass in the title which resides in him to the plaintiff. It has been contended that there is no legal evidence on the record also that the plaintiffs-respondent have performed or are always ready and willing to perform the essential terms of the provisional contract which are to be performed by them and the learned Court below has misconstrued the evidence on the record in coming to the finding in respect thereof. Lastly it has been contended that the relief of specific performance is an equitable relief and the jurisdiction of the Court to decree specific performance is discretionary and the Court is not bound to grant such relief merely because it is lawful to do so and the principle stated in Section 22 of the Specific Relief Act, are not exhaustive and the Court's discretion in order to grant specific performance is not confined to them and in special cases when there are some good and reasonable grounds for not exercising this discretion in favour of the plaintiffs-respondent the Court will not hesitate to exercise that discretion against them and in this case the defendant-appellant has already deposited a cheque of Rs. 70,501/-along with the written statement filed in the suit. In support of his contention reliance has been placed upon the ratio of the case of Parakunnan Veetill Joseph's Son Mathew v. Nedumbara Kuruvila's Son and Ors., AIR 1987 SC 2328, Ram Sworup Singh v. Mahabir Mahton and Anr., AIR 1960 Pat 235, and Ghosh Shet v. Dr. C.S.G.K. Setty and Ors., 1998 (2) All PLR 114 (SC). Therefore the impugned judgment is unsustainable.

9. The learned counsel for the defendant-respondent Nos. 3 to 9 has adopted the contention put forward on behalf of the defendant-appellant and they have also placed reliance upon the ratio of the cases of John v. Chandy Philip and Anr., AIR 1988 Kerala 122, Sohan Lal (dead) by L.Rs. v. Union of India and Anr., AIR 1991 SC 955, Mayawanti v. Kaushalya Devi, (1990) 3 SCC 1, and Md. Khalil v. Hamida and Ors., 2000 (1) PLJR 841.

10. In contra, it has been submitted by the learned counsel for the plaintiffs-respondent that the learned Court below on the basis of the evidence on the record has rightly construed the agreement dated 30.12.1986 (Ext. 1) as a concluded agreement enforceable by law and has rightly decreed the suit for specific performance of the contract. It has also been submitted that the agreement aforesaid has been made by the free consent of the parties who were competent to contract and the consideration of the said agreement is a lawful one with lawful object and on the touchstone of Section 10 of the Contract Act, the agreement (Ext. 1) is a lawful agreement which is enforceable by law and thus a valid contract was arrived at between the parties and both the parties were also and item In respect of the subject matter of the said contract and it is equally evident that nothing more was required as per the terms of the said agreement for determining the rights and obligation of the parties and the recital of execution of a 'pucca' agreement therein is nothing but a mere surplusages or a clause meaning nothing. It has also been submitted that a mere reference to a future formal agreement contained in the agreement (Ext. A) will not prevent a binding bargain between the parties and the fact that the parties referred to the preparation of a 'pucca' agreement by which the terms agreed upon are to be put in a mere formal shape does not prevent the existence of a binding contract and the mere fact that the parties wish to have a 'pucca' agreement drawn up does not establish the proposition that they cannot be bound by the previous agreement i.e. Ext. 1 and here in this case as per the terms of Ext. 1 the price, area of the land to be sold and the time of the completion of the sale stand specified therein and in this view of the matter the agreement (Ext. 1) is a concluded agreement enforceable by law. It has further been submitted that the ratio of the case of Tarsem Singh (supra) relied upon by the defendant-appellant rather supports the case of the plaintiffs-respondents in view of the fact that neither parties to the said agreement was under a mistake as to the fact essential to the agreement and in this case it has been clearly stipulated in the agreement that the entire land of plot No. 602 excluding 'dhodha' (ditch) is the subject matter for execution of the sale deed besides other plots. It has further been contended that the plaintiffs-respondent have clearly averred in paras 11 and 18 of their plaint regarding their willingness and readiness to perform their part under the agreement and the defendant-appellant and defendant-respondent Nos. 3 to 9 in paras 11 and 29 of their written statement have not controverted the said fact and in this view of the matter there is no dispute in respect thereof and no oral evidence is required of the fact admitted in respect thereof and the plaintiffs-respondent were always willing and ready to perform their part under the agreement. It has also been submitted that Ext. 1 clearly stipulates that a sum of Rs. 3001/- was paid to the defendant-appellant by the plaintiffs-respondent on 30.12.1986 as earnest money and, thereafter, a sum of Rs. 67,500/- was further paid on 06.02.1987. Lastly it has been contended that the ratios of the cases relied upon either by the defendant-appellant or defendant-respondent Nos. 3 to 9 have no application in the facts and circumstances of this case. Therefore, there is no illegality in the impugned judgment requiring an interference therein.

11. The following points arise for adjudication in this appeal :--

(1) Is the agreement dated 30.12.1986 (Ext. 1) a concluded contract enforceable by law ?

(2) Is the agreement dated 30.12.1986 a void agreement due to mistake as to a matter of fact essential to the agreement as well as for uncertainty ?

(3) Have the plaintiffs-respondent proved that they had performed or have always been ready and willing to perform the essential terms of the agreement which are to be performed by them ?

FINDING

POINT NO. 1 :

12. There is no denying the fact that plot No. 602 appertaining to Khata No. 139 having an area of 10.90 acres under Khewat No. 2 is a gair mazarue malik land and Bhuneshwar Nath Ohdar and others are the landlords of Khewat No. 2 aforesaid and by virtue of the final decree in partition suit No. 119 of 1946, 5.45 acres i.e. half in plot No. 602 was allotted in the takhta of Ramnath Mahto whereas Baldeo Nath Ohdar and Tirat Nath Mahto were each allotted 2.72 acres of land in the said plot. Ext. C/3 and Ext. B corroborate the said fact. Defendant-respondent Nos. 6 to 9 has acquired 2.72 decimals out of plot No. 602 by virtue of hukumnama dated 12.02.1952 and defendant-respondent Nos. 4 and 5 claim to have acquired 5.45 acres of land of the said plot by virtue of hukumnama dated 21.02.1952 and defendant-respondent No. 3 also claims to have acquired 2.72 acres of the said plot by virtue of hukumnama dated 10.12.1952 from the respective landlords aforesaid and they have right title and interest therein and they are also in possession thereof. Defendant-appellant is admittedly a constituted attorney of defendant-respondent Nos. 3 to 9 who have executed the registered Power-of-Attorney (Ext. A) in his favour to deal only with plot No. 602 as per the terms incorporated in the said Power-of-Attorney. It is essential to mention here that the said Power-of-Attorney (Ext. A) executed in favour of defendant-appellant is only in respect of plot No. 602 situate in village Booty. It is equally relevant to mention here that defendant-respondent Nos. 3 to 9 have no concern whatsoever with plot Nos. 2 and 3 of village Dumardagga and plot Nos. 603 and 610 of village Booty. Ext. C, Ext. C/1 and Ext. C/2, the Survey Records of Right, do corroborate the aforesaid fact as the aforesaid plots stand recorded in the name of other persons and not in the name of defendant-respondent Nos. 3 to 9. The Power-of-Attorney (Ext. A) nowhere mentions therein in respect of plots Nos. 2,3,603 and 610 and it is thus apparent that the defendant-appellant had no right vested in him by virtue of the Power-of-Attorney aforesaid to deal with the aforesaid four plots for and on behalf of respondent Nos. 3 to 9. However, the defendant-appellant entered into an agreement with plaintiff-respondent No. 2 acting on behalf of his wile plaintiff-respondent No. 1 for sale of land of plot No. 602 deducting the area of the 'dhodha' land of the said plot besides a portion of plot No. 2 to be ascertained on measuring adjacent the PWD road and which is also adjacent to the western half of plot No. 3 as well as adjacent back portion of plot No. 3, southern half 1.12 decimals of plot No. 3 and plot Nos. 603 and 610 @ Rs. 60,000/- per ace and unregistered agreement (Ext. 1) on a plain paper was executed between defendant-appellant on the one hand and plaintiff-respondent No. 2 on behalf of his wife on the other hand and a sum of Rs. 3001/- was paid by plaintiff-respondent No. 2 of the defendant-appellant on that very day and the said agreement bears the signature of the defendant-appellant and of defendant-respondent No. 2 acting on behalf of his wife witnessed by DW 1 Md. Yusuf and one Ram Kumar Sahu. For proper appreciation of the matter in controversy as to whether the said agreement is a contract of sale enforceable by law or it is an unconcluded agreement not enforceable as such in view of the rival contentions of the parties referred to above we have to look into the terms and recitals contained in the said agreement, the English transliterated version of which runs thus :--

'Pucca, patta, hukumnama and rent receipts etc. of the aforesaid plots have been handed over to proposed purchaser Smt. Uma Devi Budhia (plaintiff-respondent No. 1) wife of Sheo Prasad Budhia (plaintiff-respondent No. 2) Bariatu road Ranchi so that the proposed purchaser may verify and ascertain the title and possession over the same of the proposed seller through Amin and her counsel so that a 'pucca' agreement is brought into existence on the 1st of the month and after being satisfied with the papers aforesaid and on enquiry by going over the said plots the proposed purchaser shall pay Rs. 35,000/- by cheque for payment to the earlier proposed purchasers for cancellation of the two previous agreements in respect thereof and, thereafter, the proposed purchaser shall deliver a cheque of Rs. 1,13,000/- to the seller at the time of the execution of the 'pucca' agreement and the proposed purchaser shall get the sale deed executed and registered either in her name or in the name of the other person within 3-1/2 months from 1st of January, 1987 on payment of the remaining consideration amount. This agreement has been executed between the parties after proper deliberation and consultation amicably. In case the proposed purchaser comes to know regarding any defect in title and possession of the aforesaid plots the proposed seller shall refund the amount of earnest money and after the execution of the 'pucca' agreement, the proposed seller shall deliver the possession of the aforesaid plots to the proposed purchase so that the proposed purchaser shall come to know about any obstacle in respect of their possession over the same till the date of the registration of the proposed sale deed. Having agreed the terms aforesaid by the parties this agreement has been brought into existence.'

13. The following facts emerge from the perusal of the agreement (Ext. 1) :--

(a) Area of plot No. 2 and of plot No. 602 which is the subject matter of the agreement is not definite rather it is uncertain which has to be ascertained by enquiry/measurement by the Amin;

(b) The title and possession of defendant-respondent Nos. 3 to 9 in respect of all the plots aforesaid have to be verified by enquiry from the Amin and also as per the opinion of the counsel of the proposed purchaser on the basis of the documents already handed over to the proposed purchaser.

(c) On being satisfied regarding the perfect title and possession of defendant-respondent Nos. 3 to 9 in respect of the aforesaid plots, an agreement is to be executed on the 1st of the month so that this agreement dated 30.12.1986 may be concluded;

(d) On being satisfied the proposed purchaser shall deliver a cheque of Rs. 35,000/- for payment to the erstwhile proposed purchasers by virtue of the two earlier agreements in respect thereof for their cancellation and, thereafter, a sum of Rs. 1,13,000/- shall be paid by cheque on the day when a 'pucca' agreement is executed on 1st day of January, 1987;

(e) The possession shall be delivered over the aforesaid plots to the proposed purchaser simultaneously with the execution of the 'pucca' agreement so that the proposed purchasers shall come to know regarding any obstacle or defect in their possession over the aforesaid plots till the date of the registration of the proposed sale deed;

(f) The proposed sale deed shall be executed and registered within 3-1/2 months from 1st January, 1987.

(g) In case the proposed purchaser shall came to know regarding any defect in the title of defendant-respondent Nos. 3 to 9 and their possession over the same the earnest amount of Rs. 3001/- shall be refunded to him.

14. Ext. 1/A is the endorsement dated 06.02.1987 per pen of defendant-appellant at the foot of Ext. 1 aforesaid and it appears from the said endorsement that a sum of Rs. 67,500/- has been paid in cash to defendant-appellant by plaintiff-respondent No. 2 and it further contains that documents of title of the aforesaid plots shall be handed over to the plaintiffs-respondent at the earliest so that a 'pucca' agreement may be executed.

15. PW 4, Sheo Prasad Budhia who is defendant-respondent No. 2 has deposed that defendant-appellant is the constituted Power-of-Attorney holder for and on behalf of defendant-respondent Nos. 3 to 9 and the defendant-appellant executed a written agreement of sale of the suit plots in favour of plaintiff-respondent No. 1 @ Rs. 60,000/- per acre and he received a sum of Rs. 3001/- as earnest money. He has further deposed that, thereafter, he has paid Rs. 67,500/- to defendant-appellant on 06.02.1987. His evidence is further to the effect that defendant-appellant had to hand over to him the relevant papers of title in respect of the suit plots but he did nor do so. He has also deposed that he has incurred an expenditure of Rs. 29,500/- in connection with the mutation in respect of the aforesaid plots and there has also been a talk between them for providing a road for ingress and egress to the aforesaid plots from the PWD road but the defendant-appellant did not abide by that the said term and the defendant-appellant also did not apply for requisite permission from the Urban Ceiling Authorities for the sale of the suit plots. The evidence of PW 4 that the relevant papers were not handed over to him by the defend ant-appellant lacks credence in view of the recitals made in Ext. 1, the agreement, which is to the effect that purcha, patta, hukumnama and rent receipts of the suit plots have been handed over to the proposed purchaser. Ext. 1 further shows that there was no term arrived at between the parties regarding mutation of the defendant-respondent Nos. 3 to 9 in respect of the plots aforesaid at the cost of the defendant-respondent as well as for providing a road to the suit plots from the PWD road and for taking requisite permission from the land ceiling authorities. Therefore, the evidence of PW 4 in respect thereof has no bearing to the matter in controversy. PW 4 has not deposed to have paid Rs. 35,000/- and Rs. 1,13,000/- by cheques to the defendant-appellant as per terms of the agreement (Ext. 1) for getting a 'pucca' agreement to be executed in respect thereof. PW 4 is also conspicuously silent in his evidence regarding his satisfaction on verification of the title and possession of the defendant-respondent Nos. 3 to 9 in respect of the plots in question on the basis of the documents as well as on enquiry by the Amin or by his counsel in respect thereof. PW 4 has also not stated to have taken any further steps as per terms of the agreement (Ext. 1) for bringing into existence a 'pucca' agreement on the fulfilment of the conditions enumerated in the said agreement. PW 4 has also not deposed to have sent any legal notice either to defendant-appellant or defendant-respondent Nos. 3 to 9 in pursuance of the terms of the said agreement. It also appears that no 'pucca' agreement in terms of the agreement (Ext. 1) has seen the light of the day PW 4 in his evidence on oath has not also whispered regarding handing over possession by defendant-appellant to him over the aforesaid plots on 30.12.1986 i.e. the day the agreement has been executed in part performance of the agreement in question and it appears that he has falsely set up a case to that effect in para 4 of his plaint contrary to the terms of the agreement (Ext. 1). I have already stated above that possession was to be delivered on execution of the 'pucca' agreement on 01.01.1987 on payment of Rs. 1,13,000/-besides Rs. 35,000/- by cheques. It is equally relevant to mention here that as per the terms of the agreement Ext. 1 a 'pucca' agreement was to be executed on 01.01.1987 on fulfilment of the terms mentioned therein and, thereafter, the sale deed was to be executed within 3-1/2 months from 01.01.1987. The plaintiffs-respondent did nothing in furtherance of the terms of the agreement (Ext. 1) for execution of a 'pucca' agreement on 01.01.1987 though he has made a payment of Rs. 67,500/- on 06.02.1987. No step has also been taken by the plaintiffs-respondent in part performance of the said agreement for the execution of the sale deed for a considerable period, thereafter. Time appears to be an essence of the agreement in question in the facts and circumstances of this case. The plaintiff-respondent No. 2 on getting information of negotiation for sale of plot No. 602 took steps against defendant-respondent Nos. 10 and 11. PW 4 has deposed that on getting information that the defendant-appellant is negotiating for the sale of plot No. 602 with defendant-respondent No. 10 he got a notice (Ext. 4) published in the newspaper and Ext. 5 and Ext. 5/A are the bills regarding the publication of the said notice in the Ranchi Express. He has also deposed to have sent a notice (Ext. 3) to defendant-respondent Nos. 10 and 11 in respect thereof and Ext. 7 shows that the said notice was sent under Certificate of Posting. He has further deposed that inspite of the notice aforesaid an agreement for sale was executed in favour of defendant-respondent Nos. 10 and 11 by the defendant-appellant. The said agreement (Ext. 6) is dated 17.09.1987 executed by defendant-appellant PW 4, however, at page 4 of his cross-examination has deposed that he has not seen the khatiyan of plot Nos. 2 and 3 of village Dumardagga and he has also not seen the Power-of-Attorney (Ext. A) and has also not verified in respect thereof from defendant-respondent No. 3. He has also deposed that he has not verified the fact as to how the defendant-appellant has right to dispose of plot Nos. 2 and 3. His evidence is very specific that he has not inquired or verified regarding the title and possession of the defendant-appellant and respondent Nos. 3 to 9 in respect of the aforesaid plots. He has very categorically deposed that there was a term stipulated in the agreement regarding the execution of a 'pucca' agreement after handing over of all the relevant papers to him but no 'pucca' agreement was subsequently brought into existence and he has treated the agreement (Ext. 1) as the 'pucca' agreement. From the evidence of PW 4 it is, therefore, crystal clear that as per the terms of the agreement (Ext. 1) a 'pucca' agreement was to be executed between defendant-appellant and the plaintiffs-respondent on fulfilment of the conditions mentioned in the said agreement (Ext. 1). DW 4 is defendant-respondent No. 5. He has deposed that Power-of-Attorney has been executed in favour of the defendant-appellant only in respect of plot No. 602. He has further deposed that plot Nos. 2 and 3 of village Dumardagga and plot No. 603 and 610 do not belong to the defendant-respondent Nos. 3 to 9. DW 5, the defendant-appellant, has deposed that defendant-respondent No. 2 had come to him and had asked for plot No. 602 besides other plots. His evidence is further to the effect that there is no road for egress or ingress to plot No. 602 and one has to go to the said plot through ridge and there was also no talk for sale between them.

He has further deposed that defendant-respondent has told that the matter shall be finalized when all the plots aforesaid are to be sold though an agreement was executed on 30.12.1986 and Rs. 3001/- was paid as earnest money. He has also deposed that he has shown the paper of plot No. 602 to plaintiff-respondent No. 2. He has also deposed that plaintiff-respondent No. 2 has paid him Rs. 68,500/- for sale of the other plots but owner of all the plots except plot No. 602 were not willing to dispose of their land and defendant-respondent No. 2 was, accordingly, informed and he attempted to refund the entire aforesaid amount to defendant- respondent No. 2 which he declined to accept. His evidence is further to the effect that he has deposited the cheque in respect thereof in the Court along with written statement in this case. In para 5 of his evidence he has deposed that Ext. 1 was scribed at his house. In para 6 of his evidence he has deposed that no 'pucca' agreement was executed till January, 1987 though he was given Rs. 67,500/- on 06.02.1987. His evidence is further to the effect that, thereafter, he has executed a sale deed in respect of a portion of plot No. 602 in favour of defendant-respondent No. 10 through the Secretary defendant-respondent No. 11. DW 1 is a witness on the agreement (Ext. 1). He has deposed that negotiation has taken place between the defendant-appellant and plaintiff-respondent No. 2 in his presence and an agreement Ext. 1 was executed in his presence. He has further deposed that a 'pucca' agreement was to be executed later on but possession was not handed over to the plaintiff-respondent No. 2. He has also deposed that Rs. 70,500/- was given by plaintiff-respondent No. 1 to defendant-appellant but in spite of the attempt of the defendant-appellant the said amount was not taken back by plaintiff-respondent No. 2. DW and DW 3 have also deposed that the plaintiffs-respondent are not in possession over plot No. 602. DW 3 has further deposed that it was settled in the negotiation that when all the owners of the aforesaid plots shall be agreeable to sell the land, there shall be a final talk of the sale of the aforesaid land. From the evidence aforesaid it is crystal clear that as per the terms of the agreement (Ext. 1) a subsequent 'pucca' agreement was to be executed on 01.01.1987 on payment of Rs. 35,000/- and Rs. 1,13,000/- by cheques after the plaintiffs-respondent are satisfied in respect of the title and possession over the plots aforesaid of defendant-respondent Nos. 3 to 9 and within 3-1/2 months of the execution of the 'pucca' agreement the sale deed shall be executed and registered on payment of the balance of the consideration amount and on execution of the 'pucca' agreement possession shall be delivered to the plaintiffs-respondent for confirmation of the fact that their possession is not disputed by any other person till the execution of the registered deed in respect thereof. Now the pertinent question is as to whether Ext. 1 is a concluded agreement enforceable by law for its specific performance at the instance of the plaintiffs-respondent. There is a specific term in the agreement (Ext. 1) that a 'pucca' agreement shall be executed on 1st January, 1987 on the fulfilment of certain conditions in respect of which I have stated above. Where it is contemplated that a formal document shall follow the offer and acceptance the effect of such stipulation depends on whether the parties regard the offer and acceptance as sufficient to conclude the contract and intend the document to be a record of contract, or they regard it as incomplete and do not intend to it to be legally binding until the terms of the formal document are agreed and the document is duly executed in accordance with the terms of the provisional or earlier agreement. In deciding whether the contract is a concluded contract or not, the essential question is to find out whether the formal document is of such a nature that it was the very condition of the contract or whether it was commemorative of the evidence on the point. It is a matter of construction whether the execution of a further contract is a condition of the contract or a mere expression of a desire of the parties as to the manner in which the transaction already agreed to will go through. Where the execution of a further formal agreement is made a condition or term of the bargain and if the formal agreement is not executed or brought into existence there is no concluded contract. Here in this case in construing the terms of agreement in question, the deed of agreement (Ext. 1) is to be read as a whole in order to ascertain the true meaning of its several clauses and the words of each clause should be interpreted so as to bring them into harmony with other provisions of the said agreement if that interpretation does no violence to the meaning of which they are naturally susceptible and all terms in the agreement must be given effect rather deprive some of them of the effect because of the fact that while drafting the agreement the parties would not use the words with no purpose. Although the parties may have reached an agreement by the process of offer and acceptance, the contract may not be concluded because the terms are uncertain or the parties have left some points unresolved or they contemplate another future agreement between them and unless all material terms of the contract are agreed there is no binding obligation between the parties. The Apex Court in the case of Kallipara Sriramulu (dead) by his L.R. v. T. Aswatha Narayana (dead) by his L.R. and Ors., AIR 1968 SC 1028, has observed which runs thus :--

'.........A mere reference to a future formal contract in an oral agreement will not prevent a binding bargain between the parties. The fact that the parties referred to the preparation of an agreement by which the terms agreed upon are to be put in a more formal shape does not prevent the existence of a binding contract. There are, however cases where the reference to a future contract is made in such terms as to show that the parties did not intend to be bound until a formal contract is signed. The question depends upon the intention of the parties and the special circumstance of each particular case. The fact of a subsequent agreement being prepared may be evidence that the previous negotiation did not amount to a concluded agreement, but the mere fact that persons wish to have a formal agreement drawn up does not establish the proposition that they cannot be bound by a previous agreement.'

The Privy Council in the case of Currimbhoy and Co. Ltd. v. L.A. Creet and Ors., AIR 1933 PC 29, has observed that :--

'........where the documents or letters relied on as constituting a contract contemplate the execution of a further contract between the parties, it is a question of construction whether the execution of the further contract is a condition of term of the bargain or whether it is a mere expression of the desire of the parties as to the manner in which the transaction already agreed to will in fact go through. In the former case there is no enforceable contract either because the condition is unfulfilled or because the law does not recognize a contract to enter into a contract. In the latter case there is binding contract and the reference to the more formal document may be ignored.'

In the case of H.G. Krishna Reddy and Co. v. M.M. Thimmiah and Anr., AIR 1983 Madras 169, it has been observed that :--

'..........If a document which is entered into between two parties and which is relied on as constituting a contract contemplates the execution of a further regular agreement between the parties, it is a matter of construction whether the execution of a further contract is a condition of the terms of the bargain or whether it is a mere expression of the desire of the parties as to the manner in which the original agreement should be performed. In the former case, there cannot be any enforceable contract unless the condition is fulfilled or on the ground that law does not recognize a contract to enter into a contract. The fact of a subsequent agreement being prepared may be evidence that the previous negotiations did not amount to a agreement, but the mere fact that persons wish to have a formal agreement drawn up does not establish the proposition that they cannot be bound by a previous agreement. When there is a written document which is followed by further negotiations in the form of correspondence, the entirety of the correspondence has to be looked into to find out whether there has been a completed contract or not.'

In the case of Punit Beriwala (supra) it has been observed in para 7 that :--

'........the plaintiff, therefore, in our opinion by necessary implication has admitted that no concluded agreement had been entered into. A mere agreement to agree is not enforceable in a Court of law. Further more, it is a trite law, that in order to enforce an agreement, the same must constitute a 'contract' within the meaning of Section 2(g) of the Indian Contract Act.'

In the case of Baijnath v. Kshetrahari Sarkar and Ors., AIR 1955 Calcutta 210, it has been observed that :--

'.............Under Section 25 a lessor is bound to give the lessee a title free from reasonable doubt, and where a prospective lessee demands title deeds from the prospective lessor for his investigation and approval, it cannot be said that there has been a final and concluded agreement between them, although most other material terms may have been agreed upon by them. In such a case the lessee is free to back out of the contract if he is not satisfied about the lessor's title, and so long as one party is left free to back out of a contract at his choice, it cannot be said that any binding contract has been arrived at between the parties.'

On the touchstone of settled principle of law referred to above when the agreement (Ext. 1) is critically analysed and scrutinized it appears that the plaintiffs-respondent has to perform certain acts such as to ascertain the marketable title of defendant-respondent Nos. 3 to 9 as well as their possession over the aforesaid plots and to ascertain the specific portion of plot No. 602 of village Booty and plot No. 2 of village Dumardagga and further to pay by cheques a sum of Rs. 35,000/- and Rs. 1,13,000/- for executing a 'pucca' agreement on 01.01.1987. Therefore, execution of a future agreement in pursuance to agreement (Ext. 1) is a material condition of the terms of the bargain. The future 'pucca' agreement has not been followed as per the terms of the earlier agreement (Ext. 1) and thus the agreement dated 30.12.1986 (Ext. 1) cannot be said to be a concluded agreement enforceable by law. It cannot be said that the terms contained in Ext. 1 is a mere expression of the desire of the parties and surplusages or a clause meaning nothing rather the execution of a 'pucca' agreement on 01.01.1987 is a condition of the terms of the bargain in question. Thus Ext. 1 cannot be held to be a concluded agreement giving right to the plaintiffs-respondent for specific performance on the basis of the said agreement. The ratio of the case of John (supra) and Ganesh Shet (supra) supports the contention of the learned counsel of the defendant-appellant. The learned Court below has not viewed the nature of Ext. 1 in proper perspective and has wrongly assumed that it is a concluded agreement enforceable by law and has accordingly committed a manifest error in respect thereof. This point is, therefore, decided in favour of the defendant-appellant and defendant-respondent Nos. 3 to 9 and against plaintiff-respondent Nos. 1 and 2.

POINT NO. 2:

16. It is essential to mention at the very out set that subject matter of Ext. 1 the agreement, is plot Nos. 2 and 3 of village Dumardagga and plot No. 602, 603 and 610 of village Booty. It is the specific case in the written statement jointly filed by the defendant-appellant and defendant-respondent Nos. 3 to 9 that plot Nos. 2,3,603 and 610 do not belong to defendant-respondent Nos. 3 to 9 and they have no concern, whatsoever, with these plots. Ext. C, Ext. C/1 and Ext. C/2 substantiate the said fact. DW 4 and DW 5 in their evidence on oath have also deposed that the aforesaid plots do not belong to defendant-respondent Nos. 3 to 9. No evidence has been brought on the record on behalf of the plaintiffs-respondent to substantiate the fact that the aforesaid four plots belong either to defendant-respondent Nos. 3 to 9 or the defendant-appellant. Furthermore the defendant-appellant was authorized as per the terms of the registered Power-of-Attorney to deal with plot No. 602 only on behalf of defendant-respondent Nos. 3 to 9. It is the settled principle of law that an agreement is void if it is caused by a mistake as to the fact which is essential to the agreement and the mistake is bilateral. Here in this case plaintiff-respondent No. 2on behalf of plaintiff-respondent No. 1 and the defendant-appellant as constituted attorney of defendant-respondent Nos. 3 to 9 have entered into an agreement (Ext. 1) under a mutual mistake and misapprehension of the fact of the title in respect of the aforesaid plots which in fact does not vest in the defendant-respondent No. 3 to 9 but it, in fact, stands vested in some other person, then in that case the only legal consequence that shall follow is that the agreement is liable to be set aside as having proceeded upon a common mistake. Here in this case the interest of the title holder of plot Nos. 2, 3, 603 and 610 are adversely affected in the case of Baudhu Mahto (supra) it has been observed that where a contract for sale for properties made by a person who is not having title to transfer the same, such claim cannot be sustained and the Court cannot direct such person to execute the sale deed. In the case of Tarsem Singh (supra) the Apex Court has observed which runs thus :--

'.....The remedies available underSection 73 and 74 for the breach ofcontract contemplate a valid and binding agreement between the parties. Ifthe forfeiture clause is contained in anagreement which is void on account ofthe fact that the parties were not adidem and were suffering from mistakeof fact in respect of a matter which wasessential to the contract, it cannot beenforced as the agreement itself is voidunder Section 20 of the Contract Act. Avoid agreement cannot be split up. Noneof the parties to the agreement can bepermitted to seek enforcement of a partonly of the contract through a Court oflaw. If the agreement is void, all itsterms are void and none of the terms,except in certain known exceptions,specially where the clause is treated toconstitute a separate and independentagreement, severable from the mainagreement, can be enforced separatelyand independently.'

In the case of Mayawanti (supra) the Apex Court has observed that the jurisdiction to order specific performance of a contract is based on the existence of a valid and enforceable contract. Where a valid and enforceable contact has not been made, the Court will not make a contract for them. Specific performance will not be ordered if the contract itself suffers from some defect which makes the contract invalid or enforceable. It has also been observed that the specific performance of the contract is the actual execution of the contract according to its stipulations and terms, and the Courts direct the party in default to do the very thing which he contracted to do. The stipulations and terms of the contract have, therefore, to be certain and the parties must have been consensus ad idem. The acceptance must be absolute, and must correspond with the terms of the offer. The burden of showing the stipulations and the terms of the contract and that the minds were ad idem is, of course, on the plaintiff. If the stipulations and terms are uncertain, and the parties are not ad idem, there can be no specific performance, for there was no contract at all. In this connection reference is also made to the ratio of the case of Sahan Lal (supra). In the case of Smt. Annapoorani Ammal v. G. Thangapalam, (1989) 3 SCC 287, it has been observed by the Apex Court that the specific performance of contract can be decreed only against executant of the contract having right to dispose of the suit property. It is needless to say that a relief for specific performance is an equitable relief under Section 20 of the Specific Relief Act. The jurisdiction to decree specific performance is discretionary and the Court is not bound to grant such relief merely because it is lawful to do so. The principles stated in Section 20 of the said Act are not exhaustive and the Court's discretion in order to grant specific performance is not confined to them and in special cases where there are some good and reasonable grounds for not exercising this discretion in favour of the plaintiffs-respondent the Court will not hesitate to exercise that discretion against them. In the case of Parakunnan Veetill Joseph's Son Mathew (supra) the Apex Court has observed that :--

'.....Section 20 preserves judicial discretion to Courts as to decreeing specific performance. The Court should meticulously consider all facts and circumstances of the case. The Court is not bound to grant specific performance merely because it is lawful to do so.'

In this connection a reference is also made to the ratio of the case of Ram Sworup Singh (supra). Furthermore no specific area of plot No. 602 of village Booty and plot No. 2 of Dumardagga has been disclosed in the agreement (Ext. 1) in respect of which the sale deed is to be executed. I have already stated in respect thereof above. There is no evidence on the record that the area of the aforesaid plots for which the sale deed is to be executed have been ascertained by the plaintiffs-respondent on measurement by the Amin for execution of a 'pucca' agreement on 01.01.1987. PW 4 in his evidence; has also not deposed the specific area of the aforesaid plots for which the agreement Ext. 1 has been executed by the defendant-appellant. The agreement Ext. 1, however, discloses that the land shall be sold @ Rs. 60,000/- per acre. In the absence of the specified area of the aforesaid plots coupled with the non-execution of the 'pucca' agreement as agreed between the parties it is crystal clear that the agreement (Ext. 1) suffers with uncertainty and it is impossible to come to the conclusion that what area of the aforesaid plots and for what consideration the claim of the plaintiffs-respondent shall be acceded to. Thus the agreement Ext. A is ab initio void on this score also and it cannot be enforced. The agreement Ext. 1 in the facts and circumstances of this case being void one also cannot be split up and the plaintiffs-respondent cannot be permitted to seek enforcement of a party only of the contract through the process of the Court of law. The learned Court below in para 10 at page 12 of the impugned judgment has stated that in the suit for specific performance of the agreement the adjudication of the title of any other person with respect to the land which are the subject matter of the agreement is a 3rd party having his right, title and interest in the land is neither a necessary nor a proper party in the suit and in a suit for specific performance of the agreement the title of the 3rd party cannot be decided and it is the purchaser's risk to purchase the property irrespective of the fact whether the defendant-appellant got title or not appears to be erroneous in the facts and circumstances of this case for the reasons that all the relevant papers have been handed over to the plaintiffs-respondent for ascertaining the title and possession of defendant-respondent Nos. 3 to 9 on enquiry by the Amin as well as by obtaining legal opinion in respect thereof but having not done so and admittedly the four plots belonging to different persons in respect of which neither defendant-respondent Nos. 3 to 9 nor defendant-appellant has any semblance of title and coupled with the fact that no 'pucca' agreement as stipulated has come to exist between the parties, the said agreement (Ext. 1) is not legally capable of being given effect to as a basis for the claim of specific performance of the said agreement as sought by the plaintiffs-respondent. In view of the evidence oral and documentary on the record discussed above I hold that the agreement Ext. 1 is a void agreement due to a mutual mistake as to the matter of fact essential to the said agreement as well as for uncertainty in respect of the area of plot Nos. 2 and 602 and on this score the said agreement is not enforceable by law. This point is, therefore, decided in favour of the defendant-appellant and defendant-respondent Nos. 3 to 9 and against the plaintiffs-respondent.

POINT NO. 3 :

17. The plaintiffs-respondent No. 1 and 2 have made out a case in paras 11 and 18 of their plaint that they were always ready and willing and are still ready and willing to perform their part of the agreement and to pay the balance of consideration money and to get the deeds of sale executed in favour of plaintiff-respondent No. 1 or her nominee or nominees but the defendant-appellant and defendant-respondent Nos. 3 to 9 have failed and neglected to perform their part of the agreement and have not carried out the contractual obligation which they were bound to carry and they have with malafide intention executed an agreement in favour of defendant-respondent Nos. 10 and 11 which is illegal, void and without any authority, whatsoever, and the same is not binding upon the plaintiffs-respondent. In reply to the aforesaid averments it has been stated by defendant-appellant and defendant-respondent Nos. 3 to 9 in paras 19 and 23 of the written statement that the plaintiff-respondent No. 3 was always aware of the details regarding ownership and possession of plot Nos. 2 and 3 of village Dumardagga and plot Nos. 602, 603 and 610 of village Booty and the relevant documents in respect thereof have been perused by them and since there was no agreement for sale between the parties the question of readiness and willingness on the part of the plaintiffs-respondent does not arise at all and also the question of failure and neglect on the part of the defendant-appellant and defendant-respondent Nos. 3 to 9 also do not arise. It has also been alleged that there was no concluded agreement for sale between the parties and in this view of the matter the question of plaintiffs-respondent's readiness and willingness to perform their part as per the terms of the agreement does not at all arise. I have already stated in para 12 the relevant fact emerging from perusal of the agreement (Ext. 1) and the facts mentioned at (a), (b), (c) and (d) in para 12 are to be complied with by the agreement respondent for execution of a concluded agreement. There is no evidence on the record that the plaintiffs-respondent have done anything in pursuance thereto. PW 4 in his evidence is conspicuously silent in respect thereof. He has no even whispered in his evidence that he had performed or has always been ready or willing to perform the essential terms of the agreement which are to be performed by him or his wife for the execution of a concluded agreement. In para 3 at page 4 he has admitted that there was a condition for execution of a 'pucca' agreement. He has also admitted that he did not enquire about the title and possession over the aforesaid plots and no subsequent agreement was executed. He has also deposed that he accepted the agreement (Ext. 1) as a 'pucca' agreement. It is, therefore, crystal clear that the plaintiffs-respondent did not perform his part as per the terms of the said agreement. I have already stated above regarding the uncertainty in respect of the area to be sold and the amount of consideration which is to be paid by the plaintiffs-respondent to defendant-appellant. Even in the evidence PW 4 has not disclosed the specific area of plot Nos. 602 and 2. It, therefore, means that payment of consideration amount in respect of the said plots is also not definite and certain which clearly negates the fact of readiness and willingness to perform their part as per the terms of the agreement (Ext. 1). A Bench of this Court in case of Md. Khalil (supra) has observed that, it is well settled that in order to sustain a decree for specific performance it is not only necessary for the plaintiff to plead readiness and willingness but to prove the same by sufficient evidence that he was always ready and willing to perform his part of the agreement till the date of institution of the suit. Clause (c) of Section 16 of the Specific Relief Act, 1963 mandates that specific performance of a contract cannot be enforced in favour of 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.

It, therefore, appears that a person seeking specific performance of the contract must file a suit wherein he must aver and prove that he has performed or has been ready and willing to perform the essential terms of the contract which are to be performed by him. The words 'ready and willing' implied that the plaintiff was prepared to carry out those parts of the contract to their logical end so far as they depend upon his performance. As per the terms of the agreement Ext. 1 the part which was to be performed by the plaintiffs-respondent are of two kinds, firstly, those that have to be performed before the other side can be called upon to fulfill his promise and secondly, others that may have to be subsequently performed. The actual performance of or readiness to perform the former must be shown and an offer to perform the latter must be made. It is needless to say that plaintiffs-respondent's readiness and willingness must be in accordance with the terms of the agreement (Ext. 1) and in considering whether the plaintiffs-respondent are willing to perform their part of the contract, the sequence in which the obligations under the agreement are to be performed must be taken into account and if under the terms of the agreement the obligation of the parties have to be performed in a certain sequence and one of the parties to the agreement cannot require compliance with the obligation by the other party without, in the first instance, performing his own part of the agreement which in the sequence of obligation is performable by him earlier. As per the terms of the agreement in question the plaintiffs-respondent has to ascertain the title and possession of the defendants-respondent Nos. 3 to 9 over the aforesaid plots by inspection and enquiry by the Amin and as per legal opinion of their counsel and, thereafter, to pay Rs. 35,000/- and Rs. 1,13,000/- by two cheques respectively for the execution of the 'pucca' agreement to be executed on 01.01.1987. Here in this case there is no iota of evidence on the record to show that the plaintiffs-respondent have performed their part in respect thereof. Question of the performance of the other terms by the defendant-respondent and defendant-appellant is dependent upon the performance of the terms of the agreement by the plaintiffs-respondent. Therefore, in the facts and circumstances of this case read with the evidence oral and documentary on the record it cannot be said that the plaintiffs-respondent have performed or have always been ready and willing to perform the essential terms of the plaintiffs which are to be performed by them. The contention advanced on behalf of the learned counsel for the plaintiffs-respondent that the defendant-appellant and defendants-respondent 3 to 9 have admitted in their written statement regarding the readiness and willingness of the plaintiffs-respondent to perform their part as per the terms of the agreement is basically misconstrued and misconceived and it has no substance. The learned Court below has erred, accordingly, in the impugned judgment in respect thereof. I, therefore, hold that the plaintiffs-respondent have not proved by legal evidence on the record that they had performed or have always been ready and willing to perform the essential terms of the agreement which are to be performed by them. Viewed thus the plaintiffs-respondent cannot maintain a suit for specific performance of the agreement (Ext. 1) in their favour. This point is, therefore, decided in favour of defendant-appellant and defendants-respondent Nos. 3 to 9 and against the plaintiffs-respondent.

18. To sum up, the agreement Ext. 1 in the facts and circumstances of this case is not a concluded contract enforceable by law and at the same time the said agreement suffers with uncertainty with respect to the specific area of plot Nos. 602 and 2 coupled with the fact that parties to the agreement are under a mutual mistake as to the matter of fact essential to the agreement and thus the agreement (Ext. 1) is void one and furthermore the plaintiffs-respondent have failed to prove that they had performed or have already been ready and willing to perform the essential terms of the agreement (Ext. 1) which are to be performed by them. A registered agreement of sale Ext. 6 has been entered into between defendant-respondent Nos. 3 to 9 through the defendant-appellant on the one hand and defendant-respondent No. 10 through defendant-respondent No. 11 on the other hand on 17.09.1987 in respect of entire area i.e. 10.90 acres of plot No. 602 in which there is a reference of the agreement (Ext. 1) aforesaid. DW 5 at page 6 of his deposition has admitted regarding the execution of the registered agreement by him in favour of defendant-respondent No. 10 and also execution of a sale deed in favour of respondent No. 10 after three or four months of the said agreement. The suit for specific performance of contract has been filed on 17.12.1987 by the plaintiffs-respondent. The decree awarded in the suit by the Trial Court suffers with illegality also in view of the fact that there is no direction to defendant-respondent No. 10 to join in the conveyance so as to pass on the title which resides in him to the plaintiffs-respondent. However, in view of my finding that the agreement (Ext. 1) is not a concluded agreement enforceable by law, the suit of the plaintiffs-respondent for its specific performance is not maintainable. However, the defendant-appellant has received Rs. 70,501/- from the plaintiffs-respondent. He is willing to refund the said amount to the plaintiffs-respondent and has already deposited a cheque of the said amount with the Court. In this view of the matter the plaintiffs-respondent are entitled to get back the said amount. The defendant-appellant is directed to refund a sum of Rs. 70,501/- to the plaintiffs-respondent forthwith failing which the plaintiffs-respondent shall recover the said amount in accordance with the due process of the law.

19. There is substance in the contention put forward on behalf of the defendant-appellant and defendant-respondent Nos. 3 to 9. The learned Trial Court did not properly consider the agreement Ext. 1 besides the evidence oral and documentary on the record in proper perspective and has committed a manifest error in decreeing the suit. Viewed thus the impugned judgment cannot be sustained.

20. There is merit in the appeal and it succeeds. The impugned judgment and decree of the Trial Court are hereby set aside and the appeal is allowed. The defendant-appellant is directed to refund Rs. 70,501/- to the plaintiffs-respondent forthwith failing which the plaintiffs-respondent shall have right to recover the said amount from him in accordance with the due process of the law. No order as to costs in the fact and circumstances of this case.