Gauhati High Court
Sri Ananta Prasad Sahu @ Sri Ananta Lal ... vs Sri Gopal Sahu @ Sri Golao Lal Sahu on 24 September, 2019
Equivalent citations: AIR 2021 (NOC) 423 (GAU.), AIRONLINE 2019 GAU 797
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GAHC010017742017
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : RFA 32/2017
1:SRI ANANTA PRASAD SAHU @ SRI ANANTA LAL SAHU
SON OF LATE SANTHA PRASAD SAHU, VILLAGE-SUDARSHANPUR PT-III,
P.S. LALA, DISTRICT-HAILAKANDI
VERSUS
1:SRI GOPAL SAHU @ SRI GOLAO LAL SAHU
SON OF LATE MOHAN LAL SAHU, VILLAGE-SUDARSHANPUR PT-III, P.S.
LALA, DISTRICT-HAILAKANDI
Advocate for the Appellant : P. S. Deka, MR.A H ALAMGIR
Advocate for the Respondent : Ms. R.Choudhury
BEFORE HONOURABLE MR. JUSTICE MIR ALFAZ ALI JUDGMENT & ORDER (CAV) Date : 24-09-2019 This regular first appeal is by the defendant against the judgment and decree passed by learned Civil Judge, Hailakandi in T.S. No. 21/2013, whereby the suit of the plaintiff for specific performance of contract was decreed.
2. The respondent herein, as plaintiff filed a suit for specific performance of contract for sale, possession and permanent injunction. The case of the plaintiff was that the defendant Page No.# 2/17 and plaintiff were cousin by relation. Defendant, who was in need of money for his business of wine shop, intended to sell the suit land described in the schedule of the plaint at a consideration amount of Rs. 12 lakhs. Accordingly, a deed was executed by the defendant for selling the suit land for consideration of Rs. 12 lakhs, out of which, Rs. 1,50,000/- was paid on 29-07-12, when the deed of agreement was executed between the parties and balance amount of Rs. 10,50,000/- was paid on the next day. It was agreed by the defendant, that registered sale deed shall be executed after obtaining necessary permission from the district authority. Accordingly, permission was obtained on 13-08-12 for selling the land in favour of the plaintiff. Upon issuance of the permission on 13-08-12 by the Deputy Commissioner, the plaintiff purchased the necessary stamp papers and requested the defendant to execute the sale deed. However, the defendant did not execute the sale deed and ignored the request of the plaintiff. The plaintiff issued a notice on 21-09-2013 demanding the defendant to execute the registered sale deed, which was denied by the defendant. Hence, the suit was filed.
3. Defendant in his written statement took the plea that the suit land was joint property, for the enjoyment of all the co-sharers. It was also stated in the written statement, that the defendant did not execute the "saralipi" (agreement) or the application for NOC for transferring the suit land. It was also the pleaded case of the defendant, that signatures in deed of agreement were forged and it was a false and concocted document. On the basis of the above pleadings, the learned trial court framed the following issues :
1. Whether there is any cause of action for the suit ?
2. Whether the suit is maintainable in its present form and manner ?
3. Whether the suit is barred by the law of limitation ?
4. Whether the defendant is bound to execute and register a valid sale deed in favour of the plaintiff in respect of the suit scheduled land as per the terms and conditions of "Swaranlipi" (Agreement), dated 29/07/2012 ?
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5. To what other relief/relief (s) the plaintiff is entitled to get ?
4. Plaintiff examined five witnesses. However, no evidence was adduced by the defendant. After hearing the parties, the learned trial court decreed the suit in favour of the plaintiff.
5. Aggrieved, the defendant filed the instant appeal.
6. I have heard Mr. P.S. Deka, learned counsel for the appellant and Ms. R.Choudhury, learned counsel for the respondent.
7. Learned counsel for the appellant Mr. PS Deka submitted that the agreement was not duly proved and no issue was framed by the trial court as to genuineness of the agreement, though the execution of the agreement was denied by the defendant and therefore, the decree is required to be set aside and the matter needs to be remanded back for fresh disposal after framing necessary issue. Further contention of the learned counsel for the appellant was that the suit property being a joint property, the defendant could not sell such property, without consent of the other co-sharers or unless partition was made amongst the co-sharer, and as such, learned trial court ought not to have granted the decree for specific performance of contract. Thus the appellant, while assailing the impugned judgment and decree basically challenged the finding of the learned trial court with regard to the issue no. 4 & 5.
8. Per contra, learned counsel for the respondent submits that the plaintiff has adduced sufficient evidence to prove the execution of the contract and such evidence of the plaintiff remained unrebutted. Therefore, there was no question of the agreement being not proved, inasmuch as, no rebuttal evidence was adduced by the defendant.
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9. Having regard to the pleadings of the parties and the rival contentions raised by the learned counsel for the appellant and the respondent during the course of hearing of this appeal, following points emerged for adjudication of this appeal.
i) Whether the execution of the agreement was duly proved or in other words, whether there was a valid contract ? If not, whether the trial court was justified in passing the decree for enforcement of the contract for specific performance ?
ii) Whether the defendant was competent to sell the suit land being a joint property without partition or without consent of other co-sharers ?
iii) Whether because of non-framing of a specific issue as to the genuineness of the contract/agreement for sale, the impugned judgment is liable to be set aside and/or the suit be remanded back for fresh disposal ?Point No. 1
10. It is the settled principle, that in a suit for specific performance of contract, the burden is on the plaintiff to prove the contract between the parties. The plaintiff examining himself as PW -1 reiterated the averment of the plaint and stated that the defendant agreed to sell the suit land at a cost of Rs. 12 lakhs, out of which Rs. 1,50,000/- was paid on 29-07- 12, on which date, the agreement was executed and remaining amount of Rs. 10,50,000/- was paid on the next day, by withdrawing the same from his bank account. The plaintiff also stated that Rs. 10,50,000/- was paid on 30-07-12 in the LICI office in presence of PW-2, Nirmal Kumar Sahu, PW-4, Monoj Kr. Yadav and PW-6, Rafijul, the scribe. The plaintiff also proved the deed executed by the defendant as Ext. -1, whereby, the defendant undertook to execute the registered sale deed in respect of the suit land after obtaining permission.
11. PW-2, Nirmal Kr. Sahu, who was one of the attesting witness to the Ext.-1 stated, that the defendant executed the Ext. -1 and on the next day Rs. 10,50,000/- was paid to the plaintiff by withdrawing the same from the bank account. He also proved the signature of the Page No.# 5/17 defendant in the sale deed as Ext.-1(1) and Ext.-1(2) as well as his own signature as Ext. 1(3) and 1(4). During cross-examination of this witness also, it was elicited, that on 29-7-12, Rs. 1,50,000/- was paid by the plaintiff in his shop and Rs. 10,50,000/- was paid on the next day, i.e. 30-7-12 in the LICI office. The PW-2 is the cousin of both the plaintiff and defendant. PW-3, Gopal Sharma, who was also an attesting witness to the Ext. 1, corroborated the evidence of PW-1 and PW-2 and proved the signature of the defendant as well as his own signature in the Ext-1. PW- 6, who was the scribe of the Ext.-1 deposed that he wrote the Ext.-1, "saralipi" in the shop of Nirmal Kr. Sahu (PW-2). He also testified that on the day of writing the Ext-1, plaintiff paid Rs. 1,50,000/- to the defendant and on the following day another amount of Rs. 10,50,000/- was paid to the defendant by the plaintiff in the LICI Office premises. This witness also proved the signature of the defendant as well as the signature of the attesting witnesses in Ext.-1. Though suggestions were put to all these witnesses, that the defendant did not put his signature in Ext. 1, all of them have denied such suggestion. Rather, positive evidence of all these witnesses was that the defendant executed Ext.-1 in their presence.
12. PW-4, Monoj Kumar Yadav stated that he was present in the LICI office premises on 03-07-12 when the plaintiff paid Rs. 10,50,000/- to the defendant. It was elicited during cross-examination, that he came to the LICI office on 30.7.12 on request of both the plaintiff and the defendant. It was further elicited during cross-examination of this witness, that on 30.7.12, when the plaintiff paid the money to the defendant, PW-2, Nirmal Kr. Sahu, PW-3, Gopal Sharma and the defendant Gopal Lal Sahu were present. PW-5 Liakat Ali Laskar testified that he knew about the agreement for sale of the suit land. He also stated that on 29-7-12 the defendant took Rs. 1,50,000/- by executing the deed and on the next day, the Page No.# 6/17 plaintiff paid Rs. 10,50,000/- to the defendant. He also stated that the payment was made in the LICI office. Plaintiff also proved the Ext.-2, his bank account, Ext. 3, the no objection certificate issued by the Additional Deputy commissioner in respect of sale of the suit land, the non-judicial stamp papers stated to have been purchased for registration of the sale deed, as Ext. 4 and Ext. 5 series and the relevant treasury challan for purchasing such non- judicial stamp papers as Ext. 8 and Ext 9. Thus the evidence of PW-1 supported by PW-2, PW-3, PW-4, PW-5 and PW-6, more particularly, the PW-2 and PW-3, the attesting witnesses to the Ext.-1 and the scribe (PW-6) clearly established that the Ext.-1 was executed by the defendant, inasmuch as, all the witnesses withstood the extensive cross-examination by the counsel for the defendant.
13. Section 67 of the Evidence Act provides, that if a document is alleged to be signed or to have been written wholly or in part by any person, the signature or the handwriting of so much of the document as is alleged to be in that person's handwriting must be proved to be in his handwriting. Thus, the requirement of section 67 of the Evidence Act is that if a document is alleged to have been signed or written by a person, the party seeking to prove such document has to prove, that the signature or the handwriting in the document was of the person, who is alleged to have signed or written the document. Section 67 does not prescribe or require any specific mode of proof. There are various modes or manner of proving handwriting or signature. The ordinary and most common modes of proving handwriting or signature are to call the person (persons), who has signed or written the document or call the person, in whose presence, the document was signed or written or to call any person, who knows the handwriting of the person, or by comparison of the handwriting or signature with admitted signature or handwriting of the executant in some Page No.# 7/17 other documents, besides the manner provided in sections 45 and 47 or 47-A of the Evidence Act. In the present case, the plaintiff (PW-1) stated specifically that the Ext.-1 agreement was written by the PW-6 Riazul and it was signed by the defendant in his presence and also proved his signature. PW-6 the scribe of Ext. 1, who had written the Ext. 1 as well as the attesting witnesses PW-2 and PW-3 have also deposed in unequivocal terms that the defendant executed the agreement, Ext. 1 and he put his signature in the Ext. 1 in their presence. The testimony of all these witnesses could not be shaken and in fact, remained uncontroverted. Therefore, from the evidence on record it is abundantly clear, that the plaintiff has proved the execution of the Ext.-1 as per requirement of law by adducing sufficient evidence. The defendant, however, did not adduce any evidence to rebut the evidence adduced by the plaintiff. Though, the defendant took a plea in the written statement, that Ext.- 1 was a forged document and he did not sign the same, no evidence was adduced to prove or establish such averment. In fact, the defendant himself avoided the witness box raising an adverse presumption that the plea of the defendant was false (see (1999) 3 SCC 573, Vidhyadhar -Vs- Manik Rao and Ors.). The evidence of plaintiff's witnesses with regard to payment of consideration money and issuance of no objection certificate also lent support to the claim of the plaintiff as to the execution of the Ext.-1 by the defendant. In view of the overwhelming evidence adduced by the plaintiff and in absence of any evidence by the defendant, the findings of the learned trial court, that the contract or for that matter, the execution of Ext.-1 by the defendant was duly proved, cannot be faulted.
14. It was submitted by the learned counsel for the appellant that withdrawal of Rs.10,50,000/- from the bank, by the plaintiff on 30-07-2012, raises a doubt about the payment of Rs. 10,50,000/- inasmuch as, the Ext-1 was executed on 29-07-2012 i.e., on the Page No.# 8/17 previous day. In view of the consistent and uncontroverted evidence of witnesses of the plaintiff, including the PW-1, that though, the Ext.-1 was written on 29-07-12 and Rs. 1,50,000/- was paid on that day, the balance amount of Rs. 10,50,000/- was paid by the plaintiff to the defendant on the next day, i..e. 30-07-2012 by withdrawing the same from the bank account, which is also supported by Ext. -2, the bank statement. Therefore, withdrawal of Rs. 10,50,000/- on 30-07-12, as evident from the Ext.-2, rather, lent support to the oral testimony adduced by the plaintiff and other PWs as regards payment of consideration money to the defendant.
15. As per the Ext.-1, the defendant promised to execute the registered sale deed after obtaining the no objection certificate. It is also evident from the oral testimony of the plaintiff and also the pleaders notice, Ext.-10, that after obtaining the no objection certificate from the district authority, when the plaintiff issued a notice demanding the defendant to execute the registered sale deed, the defendant refused to execute the registered sale deed by taking a plea, that he did not execute the Ext. -1 and send a reply to that effect. The overwhelming evidence adduced by the plaintiff, establishing that defendant executed the Ext.-1 (agreement), to sell the suit land at a consideration amount of Rs. 12 lakhs, payment of the entire consideration money in advance, taking all initiative promptly to obtain no objection from the district authority, purchasing necessary stamp papers for registration of the sale deed, issuing notice to the defendant demanding him to execute the registered sale deed as per agreement and filing of the suit without delay, clearly proved the readiness and willingness on the part of the plaintiff to perform his part of the contract. It is the trite law, that the legality and enforceability of a contract is not the sole criteria for granting the relief of specific performance of contract, in view of the equitable nature of relief as well as the Page No.# 9/17 discretion given to the court by section 20 of the Specific Relief Act. Therefore, besides the legality and enforceability of the contract or willingness and readiness of the plaintiff, the court is also under the obligation to see whether reasonableness, fairness and equity demands the court to pass a decree for specific performance in the facts and circumstances of the case.
16. Section 20 of the Specific Relief Act provides that decree of specific performance is discretionary. Obviously the discretion must be judicious and reasonable based on and guided by judicial principle and not arbitrary. Therefore, the court is not bound to pass a decree merely because, it is lawful to pass a decree for specific performance of a contract. Since a suit for specific performance of contract is a suit for equitable relief, court is also duty bound to see that, whether it is fair and reasonable to enforce the contract by taking into account, the comparative hardship of the parties in enforcing the contract. Apparently no plea of hardship or unfair advantage was raised by the defendant. Therefore, when the plaintiff has proved the contract, and that the defendant committed breach by denying to execute the registered sale deed as per contract, whereas the plaintiff performed his part of the contract, the exercise of discretion by the learned trial court to enforce the contract cannot be faulted. In view of what has been discussed above, the point No. 1 is answered in affirmative decided in favour of the plaintiff/respondent.
Point No. 2
17. Pleaded case of the defendant was that father of the defendant was the owner of the land measuring 7B 10K 12 Ch. and the suit land was a part of the said land. It was also admitted position that after death of the father of the defendant, the said land measuring 7Bighas 10Kathas 12Chataks was inherited by his two sons, four daughters and wife. That Page No.# 10/17 the property inherited by the defendant and other co-sharers remained unpartitioned or joint property was also not in dispute. In view of the above admitted position, learned counsel for the appellant contended, that the suit land being a joint property and no partition having taken place, learned trial court ought not to have passed the decree for specific performance of the contract, as, the defendant was not competent to sell the suit land being undivided share in the joint property, without partition or without consent of the other co-sharers. I find in this submission of the learned counsel extremely fragile, in view of the provision laid down in section 44 of the Transfer of Property Act, which reads as follows :
"Section 44. Where one of two or more co-owners of immoveable property legally competent in that behalf transfers his share of such property or any interest therein, the transferee acquires as to such share or interest, and so far as is necessary to give, effect to the transfer, the transferor's right to joint possession or other common or part enjoyment of the property, and to enforce a partition of the same, but subject to the conditions and liabilities affecting at the date of the transfer, the share or interest so transferred. Where the transferee of a share of a dwelling-house belonging to an undivided family is not a member of the family, nothing in this section shall be deemed to entitle him to joint possession or other common or part enjoyment of the house."
18. In view of the above provision of section 44 of the T.P. Act, undivided share in join property before partition can be transferred by a co-sharer or more than one co-sharer and the transferee acquires same right and interest in the property transferred as of the transferor. The only exception is that in case of dwelling house belonging to undivided family, such transferee, when not a member of the family or a stranger, cannot claim joint possession or common enjoyment of the dwelling house with the other co-shares and the remedy is to seek partition. Another condition is that neither the co-sharer can transfer anything greater than his interest in the joint property nor the transferee acquire any right or interest greater than the transferor had in the joint property, or in other words, the transferee steps into the shoes of the transferor/co-sharer or co-sharers. Therefore, when a co-sharer entered into Page No.# 11/17 contract to transfer his interest in the unpartitioned property, such contract can be enforced against such transferee/co-share to the extent of his right and interest in the joint property.
19. In the present case suit property is only 15 Kathas, which is apparently far less than the extent of share and interest of the defendant in the joint property. Therefore, there could not be any difficulty in enforcing the contract for sale of 15 Kathas of land in the joint property, if the contract was otherwise enforceable u/s 10 of the Specific Relief Act. Apparently no material was brought on record to suggest even remotely, that the contract in the present case was not enforceable under Section 14 of the Specific Relief Act or any other provision of law. Therefore the submission of the learned counsel that contract could not be enforced against the defendant co-sharer in respect of the suit property being a joint property is not tenable. The Apex Court, in a catena of decisions laid down the law relating to specific performance of contract for transfer in respect of unpartitioned property.
20. In Kartiar Singh-VS- Harjinder Singh and Ors., (1990) 3 SCC 517, the Apex Court held that "As regards the difficulty pointed out by the High Court, namely, that the decree of specific performance cannot be granted since the property will have to be partitioned, we are of the view, that this is not a legal difficulty. Whenever a share in the property is sold, the vendee has a right to apply for the partition of the property and get the share demarcated ".
21. In A. Abdul Rashid Khan (dead) and Others-VS- P.A.K.A. Sahul Hamid and Ors. (2000) 10 SCC 636, the Apex Court held as under :
"Thus we have no hesitation to hold, even where any property is held jointly, and once any party to the contract has agreed to sell such joint property agreement, then, even if other co-sharer has not joined at least to the extent of his share, he is bound to execute, the sale deed. However, in the absence of other co-sharer, there could not be any decree of any specified part of the property to be partitioned and possession given. The decree could only be to Page No.# 12/17 the extent of transferring the share of the appellants in such property to other such contracting party. In the present case, it is not in dispute that the appellants have 5/6 share in the property. So, the plaintiff's suit for specific performance to the extent of this 5/6 th share was rightly decreed by the High Court which requires no interference."
22. In Gajara Vishnu Gosavi -VS- Prakash Nanasaheb Kamble and Ors., (2009) 10 SCC 654, the Apex Court held in para 13 as under :
"13. Thus, in view of the above, the law emerges to the effect that in a given case an undivided share of a coparcener can be a subject matter of sale/transfer, but possession cannot be handed over to the vendee unless the property is partitioned by metes and bounds, either by the decree of a Court in a partition suit, or by settlement among the co-sharers."
23. Therefore, there cannot be any hesitation, regarding the enforceability of a contract for transfer of an undivided share in the joint property by a co-sharer. What appears to me in this case is that there is one difficulty in the present case, which escaped the notice of the learned trial court while decreeing the suit for specific performance of contract for sale with delivery of possession of the suit land, inasmuch as, admittedly the suit property was undivided share and no partition took place. When admittedly the property was not partitioned the transferee of a co-sharer could not be given exclusive possession without partition. It is no doubt true, in the present case, the plaintiff sought for the relief of specific performance of contract for sale with delivery of khas possession and permanent injunction. However, no relief of partition was sought. Admittedly the defendant was a co-sharer of unpartitioned property and he entered into agreement to sell the suit land out of his share. Once the sale deed is executed, by way of performance of the contract, and the transfer is effected necessarily the transferee would step into the shoes of his vendor and would become a co-sharer. Therefore, unless partition is made, the transferee shall not be entitled to get exclusive or separate possession of the suit land. It is no doubt true, that in a suit for specific Page No.# 13/17 performance of contract for transfer of immovable property, the plaintiff can also ask for the relief of possession or partition and separate possession of the property in addition to the specific performance of the contract for sale, in view of the express provision laid down in Section 22 (1) (a) of the Specific Relief Act. Section 22 of the Specific Relief Act reads as under :
"22. (1) Notwithstanding anything to the contrary contained in the Code of Civil Procedure, 1908 (5 of 1908), any person suing for the specific performance of a contract for the transfer of immovable property may, in an appropriate case, ask for--
(a) possession, or partition and separate possession, of the property, in addition to such performance; or
(b) any other relief to which he may be entitled, including the refund of any earnest money or deposit paid or 1[made by] him, in case his claim for specific performance is refused. (2) No relief under clause (a) or clause (b) of sub-section (1) shall be granted by the court unless it has been specifically claimed: Provided that where the plaintiff has not claimed any such relief in the plaint, the court shall, at any stage of the proceeding, allow him to amend the plaint on such terms as may be just for including a claim for such relief. (3) The power of the court to grant relief under clause (b) of sub-section (1) shall be without prejudice to its powers to award compensation under section 21."
24. Sub-section (2) of section 22 provides that relief under clause (a) and (b) of sub- section (1) cannot be granted by the court unless such relief is specifically claimed. In the present case, although, the plaintiff sought for the relief of delivery of possession, no relief of partition was sought. Situated thus, even if there might not be any impediment in granting the relief of specific performance of contract for sale, no relief of separate possession by metes and bounds could not be given to the plaintiff in the present suit in absence of partition. Another difficulty in this case is that, otherwise also no decree for partition could be granted, as all the other co-sharers were not made parties in the suit. It is no doubt true, that in a suit for specific performance of contract for transfer, the other co-sharers, who were not parties to the contract, may not be necessary party. But when in a suit, in addition to the Page No.# 14/17 relief of specific performance of contract for transfer, relief of partition and separate possession are also sought, the other co-sharers of the unpartitioned property become the necessary party and no relief of partition and separate possession can be granted in absence of the other co-sharers of the join property. In the present case, neither the relief of partition was sought, nor the co-sharers were made party and therefore, plaintiff shall not be entitled to the relief of separate possession or delivery of possession of the suit land by metes and bound, though, he is entitled to the relief of specific performance of contract for sale on the basis of the agreement entered into between the parties. Therefore, in present suit, decree could be passed only to the extent of executing the sale deed transferring the suit land. This being the position, in my considered view, though, the decree passed by the learned trial court would require little modification, it has to be maintained and cannot be undone in toto reason being that when the plaintiff is entitled to part of the relief sought in the suit, he cannot be deprived of such relief merely for the reason that he is not entitled to other part of the relief, unless there is any statutory bar against granting the part of the relief to which the plaintiff is otherwise entitled. Accordingly, the point no. 2 is answered in affirmative. Point No. 3
25. Learned counsel for the appellant submits, that though the plaintiff sought for specific performance of the contract on the basis of Ext.- 1, allegedly executed by the defendant and the defendant took a specific plea that he did not execute Ext.-1 and/or the Ext. -1 was a forged document, learned trial court ought to have framed a specific issue, as to whether there was a genuine agreement and/or whether there was a contract between the parties. It is no doubt true, that such a specific issue was not framed by the learned trial court. It is the trite law, that non-framing of issue per se, is not always fatal. This Court, in Sanjoy Mitra -Vs-
Page No.# 15/17 Bhupendra Nath Bhattacharjee, AIR 1994 (Gau) 31 held, that omission to frame issue on certain fact is not fatal when both the parties knew the case of each other and go to trial. The Apex Court in Kameswaramma-Vs- Subba Rao, AIR 1963 (SC) 884 held, that when the parties well understand the two cases opposed to each other and lead all evidence in support of their contention, absence of issue cannot be said to be fatal to the case. Therefore, it is well established principle, that when the parties go to trial with full knowledge that a particular question is in issue in the suit and evidence has also been led to that effect, mere non-framing of issue cannot be fatal or non-framing of issue in such a case may not necessitate remand of the case. In the present case, the specific plea of the plaintiff was that the defendant entered into an agreement for sale of the suit land and took the consideration money of Rs. 12 lakhs and undertook to execute the registered sale deed. The defendant in his written statement specifically pleaded that he did not execute the deed (Ext.-1) and that the deed was forged. Therefore, the controversy as to the genuineness of the deed of agreement was well known to both the parties in view of rival plea raised by both the parties against each other. Apparently the plaintiff examined six witnesses and proved certain documents including the agreement (Ext.- 1) to prove his plea that the Ext.-1, agreement, was executed by the defendant and the plaintiff's witnesses were extensively cross-examined by the counsel of the defendant. Therefore, there was no reason to believe that defendant did not have the knowledge of the matter in controversy relating to the agreement. However, for the reason best known to the defendant, no evidence was adduced by the defendant to prove his case pleaded in the written statement. This apart, although a separate issue relating to execution and/or genuineness of the agreement (Ext.-1), was not framed, the trial court, while deciding the issue No. 4, dealt with the question pertaining to execution of the Page No.# 16/17 agreement (Ext.-1) in great detail and came to a positive finding, that the Ext.-1 was duly proved to have been executed by the defendant, and as such, the matter in controversy regarding execution of the agreement (Ext.-1) was covered in the discussion of issue No. 4. Therefore, even if no separate issue was framed, when the parties had full knowledge of the matter in controversy and they had gone to trial being fully aware of the matter in controversy and the learned trial court also gave a reasoned finding on the issue of genuineness of the agreement for sale (Ext.-1), no prejudice can be said to have been caused for non-framing of a separate issue, more particularly when the matter in controversy as alleged, was discussed in another issue. This Court in Sudhangshu Bikash Dutta-Vs- Ramesh Kr. Chakraborty, AIR 1997 (Gau) held that when there is a reasoned finding with proper pleadings made by the parties, no injustice is caused in not framing a particular or specific issue. In view of the above facts and circumstances of the case, when both the parties apparently had gone to trial in the instant case with full knowledge as to the matter in controversy regarding the execution of the Ext.-1 and the learned trial court also decided the said issue on the basis of the pleadings and evidence brought on record, there was no question of any prejudice being caused to the defendant for not framing a separate issue. Above being the position, in my considered view, there is no necessity of remanding the case, and as such, the point No. 3 is answered in negative and decided against the defendant/appellant.
26. For the reason stated above, the impugned judgment and decree passed by the learned trial court granting specific performance of contract exercising judicial discretion, requires no interference. However, the relief granted by the trial court with regard to delivery of possession needs to be modified and molded, in exercise of power conferred under order 7 Rule 7 CPC, inasmuch as, in absence of partition, delivery of separate Page No.# 17/17 possession of the land could not be given to the plaintiff. Thus, the relief is modified and moulded as under :
a) decree for specific performance of contract for sale of the suit property. The defendant shall execute and register the sale deed as per the agreement within two months from the date of decree.
(b) In case of failure of the defendant to register the sale deed within the aforesaid period of two months, decree shall be put into execution and the court shall execute the decree subject to payment of necessary cost and stamp duty for registration, by the plaintiff.
(c) The plaintiff shall have the liberty to seek partition of the property after execution of the sale deed either by bringing appropriate suit or otherwise, if so desires and separate possession shall be subject to the partition.
Decree to be prepared accordingly.
27. In the result, the appeal stands dismissed.
28. Send back the LCR.
JUDGE Comparing Assistant