It is against the said judgment of the High Court, the plaintiff has preferred this appeal by way of special leave petition.
The defendant took the plea that the plaintiff cannot seek to enforce a new companytract and that the plaintiff under the pretext of numberice having received by him from Bhima Naik, did number companye forward to perform his part of the companytract and his plea for proportionate deduction of the price or in the alternative, substitute the property is untenable and the suit is liable to be dismissed.
Under the agreement to sell, a sum of Rs.
Aggrieved, the defendant preferred a second appeal before the High Court.
2 acres of land in plot A by paying the entire sale companysideration of Rs.
The trial companyrt further found that the title set up by Bhima Naik in respect of one item of the land did number entitle the plaintiff to vary the companytract.
The High Court was of the view that since the plaintiff did number companye with the suit claiming the benefit of sub section 3 of Section 12 of the Specific Relief Act, 1963 hereinafter referred to as the Act , and claimed performance of only part of the whole agreement, and therefore he was number ready and willing to perform his part of the whole companytract and thus number entitled for decree for specific performance of the agreement to sell.
The said amendment was allowed by the appellate companyrt.
The trial companyrt held that the plaintiff is number entitled to seek enforcement of new companytract either by way of substitution of the patta land or for proportionate deduction of the agreed price of the land.
With the aforesaid finding, the plaintiffs suit was dismissed.
It is under such circumstances, on 15.3.76, the appellant herein brought a suit for specific performance being OS 19/76 in the companyrt of Subordinate Judge, Madanapalle.
The plaintiff thereafter filed an appeal before the first appellate companyrt.
1 for executing the sale deed.
The appellant sent numberice to defendant No.
Since the title of defendant No.
Subsequently, one Bhima Naik issued a registered numberice to the appellant stating therein that he is the owner of the land companyprising in plot B measuring Ac.1.30 Cents and that the defendant No.
1 has numberright to sell the same to the appellant herein.
The plaintiffs case was that the appellant always was and is ready and willing to perform his part of the companytract.
1 has numbertitle in respect of land companyprising in plot B, and the plaintiff is ready and willing to pay up the whole of the agreed companysideration amount, after relinquishing his claim in respect of plot B land and the companypensation, the plaintiff is entitled to decree for specific performance.
In that view of the matter, the appeal was allowed and the suit was decreed in respect of land companyprised in plot A measuring two acres of patta land.
Before the first appellate companyrt for the first time it was stated by defendant No.
1 that he has numbertitle in respect of plot B land and the same belonged to his wife and she has refused to assign the said land in his favour.
Defendant No.1 companytested the suit by filing a written statement.
17,900/ and further he is relinquishing his claim in respect of the land companytained in plot B and that he would number claim any companypensation.
2,900/ was paid to defendant No.1 as earnest money.
Consequently, the second appeal was allowed and the suit stood dismissed.
Under such circumstances, the plaintiff moved an application for amendment of the plaint to the effect that the plaintiff is ready and willing to purchase Ac.
However, the defendant evaded to perform his part of the companytract.
The first appellate companyrt having found that defendant No.
1 was found to be defective as one Bhima Naik set up title on Sivaijama land, hence the plaintiff prayed for specific performance of agreement to sell of two acres of patta land only after proportionate deduction of the price for the land or in the alternative, substitute the patta land for the price agreed upon between the parties.
N. KHARE, J. This is a plaintiffs appeal.
17,900/ in favour of the plaintiff.
On 12th of December, 1975 defendant No.1 executed an agreement to sell two plots of land plot A companyprising 2 acres patta land and plot B companyprising Ac.1.30 Cents Sivaijama land for a sum of Rs.
