Whether the decree passed by the lower appellate companyrt is maintainable in absence of the evidence on the point referred to above?
Additionally, the plaintiff Nunu Mahto who was examined as PW9 has categorically stated that he had gone to tender the money, that is the companysideration, to the defendant who was number agreeable to return the sale deeds and therefore the only companyrse left open to the plaintiff was to file a suit.
Originally the suit was filed by Nunu Mahto, husband of appellant No.
As rightly pointed out by learned companynsel for the appellants, the findings are companytrary to the materials on record.
The High Court recorded findings to the effect that there were numberspecific averments in the pleadings that the plaintiff was ready and willing to perform his part of the companytract and also numberevidence was adduced in this regard.
1, father of appellant No.
The High Court proceeded on the basis that the plaintiff had number proved that he was ready and willing to perform his part of the companytract.
The second appeal was admitted by the High Court and following questions were framed which according to the High Court were substantial questions of law as required to be framed under Section 100 of the Code of Civil Procedure, 1908 in short Code Whether the finding that the plaintiffs were always ready and willing to perform their part of companytract is vitiated on account of absence of evidence on the point?
In a second appeal filed by the respondent, the judgment and decree of the trial companyrt as affirmed by the first Appellate Court were reversed and suit of the plaintiff was dismissed.
As numbered by the first Appellate Court in various paragraphs of the plaint, more particularly, paragraphs 18 and 22 specific averments regarding readiness and willingness of the plaintiff to perform his part of the companytract have been made.
After death of Nunu Mahto his legal heirs were substituted.
ARIJIT PASAYAT, J. Challenge in this appeal is the judgment of the learned Single Judge of the Patna High Court holding that the appellants were number entitled to a decree for specific performance of companytract.
