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2008 DIGILAW 522 (GAU)

Sunamani Nath v. Sukumari Deb

2008-07-22

T.NANDAKUMAR SINGH

body2008
JUDGMENT T. Nandakumar Singh, J. 1. The present Second Appeal against the judgment and decree dated 20.12.1999 passed by the learned Civil Judge (Sr. Division), Kamrup in Title Appeal No. 13 of 1991 allowing the appeal by setting aside the judgment and decree dated 8.4.1991 passed by the learned Munsiff-1 Karimganj in T.S. No. 108 of 1983, was admitted for hearing on 14.6.2000 on the following three substantial question of law of laws, which read as under: 1. Whether the suit was bad in law in absence of any pleadings and proof that the plaintiff was ready and willing to perform his part of the contract; 2. Whether the learned appellate court was justified in decreeing the suit for specific performance only on the finding of presumption that there was an oral agreement between the parties; and 3. Whether any presumption under the law can be drawn up regarding existence of any verbal contract. 2. Heard Mr. B.C. Das, learned senior counsel appearing for the appellant/defendant as well as Mr. M. Singh, learned Counsel appearing for the respondent/plaintiff, Nagendra Kr. Nath. 3. Shri Nagendra Kr. Nath, respondent/plaintiff filed T.S. No. 108 of 1983 in the Court of Munsiff-1 Karimganj against the present appellant/defendant, Shri Sunamoni Nath and 3 others in the Court of Munsiff at Karimganj and the reliefs sought in the plaint are that (a) the appellant/defendant, Shri Sunamoni Nath, be directed to execute a registered sale deed in favour of the respondent/plaintiff, Shri Nagendra Kr. Nath in respect of the land measuring 6 Kedars, 1 Powa, 1 Jasthi out of the land measuring one Hal ½ Kedar, 2 Jasthi, for the price of Rs. 5,500 out of which defendant No. 1 had received Rs. 825, (b) confirmation of the respondent/plaintiff's possession in respect of the entire land prescribed in Schedule to the plaint and (c) also for issuing injunction, both temporary and permanent, against the appellant/defendant and three others. The respondent/plaintiff pleaded in the plaint that the respondent/plaintiff; Sri Nagendra Kr. Nath and the appellant/defendant, Sunamani Nath, jointly purchased the land prescribed in the Schedule from Sri Rabindra Kumar Nath and others of village Ambakla under registered sale deed dated 16.6.1982 and after their purchase, the respondent/plaintiff and also the appellant/defendant were enjoying possession of their respective share of the said land. Nath and the appellant/defendant, Sunamani Nath, jointly purchased the land prescribed in the Schedule from Sri Rabindra Kumar Nath and others of village Ambakla under registered sale deed dated 16.6.1982 and after their purchase, the respondent/plaintiff and also the appellant/defendant were enjoying possession of their respective share of the said land. When the appellant/defendant proposed to sell his ½ share of the said land, i.e., the land prescribed in Schedule to the plaint, the respondent/plaintiff, Shri Nagendra Kr. Nath, agreed to purchase the same. The price of the land was fixed at Rs. 5,500. On 5.9.1982 the respondent/plaintiff, Nagendra Kr. Nath, paid a sum of Rs. 825 out of the total price to the appellant/defendant, Sunamani Nath, as advance and having received the amount, the appellant/defendant, Shri Sunamani Nath, agreed to execute a registered deed of sale subject to receipt of Rs. 4,675 by the month of Baisakh, 1390. When the respondent/plaintiff, Sri Nagendra Kr. Nath, requested the appellant/defendant, Sri Sunamoni Nath, to accept the rest of the money, at ill advice of the defendant Nos. 2 to 4, refused to do so and instead tried to cause hindrance to the respondent/plaintiff's possession and this had compelled the respondent/plaintiff, Nagendra Kr. Nath, to file a Criminal case in the Criminal Court, Karimganj which is still pending. 4. The respondent/plaintiff, Sri Nagendra Kr. Nath, further, pleaded that he had deposited through challan the said remaining amount of Rs. 4,675 in the court. On plain perusal of the plaint of the T.S. No. 108 of 1983 filed by the respondent/plaintiff, Nagendra Kr. Nath, it is clear that the respondent/plaintiff had not specifically pleaded in the plaint that he was ready and willing to perform his part of the contract. The appellant/defendant, Sri Sunamoni Nath, filed his written statement wherein he categorically denied that the appellant/defendant, Sunamoni Nath, proposed to sell his share of the said land, i.e., the land prescribed in the Schedule to the plaint and that he had received a sum of Rs. 825 on 5.8.1992 as advance and also that the price of the said land, i.e., his share of the land, was settled at Rs. 5,500 and also that the appellant/defendant, Sunamoni Nath, agreed to execute a registered sale deed for the sale of his share also on receiving the total amount of Rs. 5,500 by Baisakh, 1390. 5. 825 on 5.8.1992 as advance and also that the price of the said land, i.e., his share of the land, was settled at Rs. 5,500 and also that the appellant/defendant, Sunamoni Nath, agreed to execute a registered sale deed for the sale of his share also on receiving the total amount of Rs. 5,500 by Baisakh, 1390. 5. The appellant/defendant also categorically pleaded in the written statement that the respondent/plaintiff and the appellant/plaintiff are closely related. Appellant/defendant, Sunamoni Nath, was an Army man and for the purpose of raising a house ensuring a living the appellant/defendant and the respondent/plaintiff had purchased the land prescribed in Schedule to the plaint from Rabindra Kr. Nath under a registered sale deed dated 16.6.1982 at a consideration amount of Rs. 10,000 and took possession of the said land at the extent of half each. He further pleaded in the written statement that the appellant/defendant is possessing his half share of the said land. 6. The learned trial court, after taking into consideration of the rival contentions of the parties in T.S. No. 108 of 1983, had framed three issues, which are quoted below: 1. Is there any cause of action for the suit? 2. Whether there was an agreement between the plaintiff and defendant No. 1 for disposal of the suit land to the plaintiff and whether a sum of Rs. 825 was paid by the plaintiff to defendant No. 1 as part of the consideration money? 3. What relief or relief, if any, is the plaintiff entitled to? 7. The respondent/plaintiff, Nagendra Kr. Nath, adduced 3 PWs including himself, viz., - (i) PW 1, Nagendra Kr. Nath (respondent/plaintiff), (ii) PW2, Aswini Kr. Goswami and (iii) Khitish Chandra Debnath. The appellant/defendant adduced only one witness, i.e. DW1, Sunamoni Nath (appellant/defendant himself). The trial court, i.e., the learned Munsiff, by passing the judgment and decree dated 8.4.1991, dismissed the Title Suit No. 108 of 1983. On perusal of the judgment of the trial court dated 8.4.1991, it appears that the learned trial court had meticulously considered the statement of the PWs and DWs while deciding the core issue, i.e., issue No. 2, "whether there was an agreement between the plaintiff/defendant No. 1 for disposal of the suit land to the plaintiff and whether a sum of Rs. 825 was paid by the plaintiff to the defendant No. 1 as part of the consideration money." 8. 825 was paid by the plaintiff to the defendant No. 1 as part of the consideration money." 8. Sufficient reasons had been given in deciding issue No. 2 against the respondent/plaintiff by the learned Munsiff in the judgment and order dated 8.4.1991. The reason given by the trial court (learned Munsiff) for deciding issue No. 2 against the respondent/plaintiff reads as follows Issue No. 2 : - PW1 Shri Nagendra Kr. Nath states in his deposition that the agreement between the plaintiff and the defendant, defendant No. 1 took place at the plaintiff's residence at Vill. Ambakla one or two days before the payment of consideration money. PW 1 further deposes that it was agreed that the payment will be made at the residence of Khitish Ch. Nath. PW 1 further states that he paid Rs. 825 to the defendant No. 1 as advance in presence of Khitish, Aswini Bimala Prasad and Jamini. Again PW 2, Shri Aswini Kr. Goswami, states in his deposition that the agreement took place on 19th Bhadra, 1389 B.S. at the residence of Khitish Ch. Nath. PW 2 further deposes that Khitish Was the mediator of everything i.e. the agreement and the payment of consideration money etc. PW 2 further states that he heard about the proposal of the sale of the land 3/4 months ago. He heard that price (p-a) was fixed at Rs. 5,000 and Rs. 825 would be paid as advance at the residence of Khitish. He heard this from PW 1 about 3/4 months ago. PW 1, in his deposition stated that Khitish Aswini, Bimala Prasad and Jamini were present at the time of payment of advance money amounting to Rs. 825. But in his deposition in C.R. Case No. 839/83, he stated that nobody was present at the time of payment of the said money. Now, from the evidence on record Discussed as aforesaid, the fact that there was an agreement or contract between the plaintiff and the defendant No. 1 casts a shadow of doubt in my mind. Law says that an agreement enforceable in law is a contract (See 2(h) Contract Act). An agreement, which is not a valid contract, is not specifically enforceable. In order to enable the court to decree specific performance, the terms of the contract must be clear, certain, specific and complete. Law says that an agreement enforceable in law is a contract (See 2(h) Contract Act). An agreement, which is not a valid contract, is not specifically enforceable. In order to enable the court to decree specific performance, the terms of the contract must be clear, certain, specific and complete. (P-5) the contract must be free from doubt, vagueness and ambiguity so as to leave nothing to conjecture. In the instant suit, the evidence on record does not enlighten that there was a contract between the plaintiff and the defendant No. 1. In the light of the above discussion, I am constrained to answer this issue in the negative and against the defendant. 9. Being aggrieved by the judgment and decree of the trial court, i.e. Munsiff-1 dated 8.4.1991 for dismissing the T.S. No. 108/83, the respondent/plaintiff, Nagendra Kr. Nath, preferred an appeal being Title Appeal No. 13 of 91 in the Court of Civil Judge (Sr. Division), Karimganj. The learned first appellate court, i.e., Civil Judge (Sr. Division), Karimganj decided the issue No. 2 in favour of the respondent/plaintiff, Nagendra Kr. Nath after coming to the presumption that there was an oral agreement between the parties. The finding of the first appellate court, while deciding issue No. 2 in his judgment and decree dated 20.12.1999, reads as follows: This being the evidence, it can safely be presumed that there was an Oral agreement between the parties. As evidence reveals, this oral agreement was very clear and specific showing definite period and condition and DW 1 failed to perform his part of the contract. The learned court below did not go through deep into the record. The learned court below also did not at all discuss or appreciate the evidence in its true perspective and wrongly decided the suit which is liable to be set aside which I do accordingly. In the result, the appeal is allowed on contest with costs and the suit is decreed. 10. There is diverse finding of facts by the trial court and the first appellant court while deciding issue No. 2 as Discussed above. The Apex Court in Surain Singh (dead) by LRs. and Ors. v. Mehenga (dead) by LRs. In the result, the appeal is allowed on contest with costs and the suit is decreed. 10. There is diverse finding of facts by the trial court and the first appellant court while deciding issue No. 2 as Discussed above. The Apex Court in Surain Singh (dead) by LRs. and Ors. v. Mehenga (dead) by LRs. (1996) 2 SCC 624 held that interference by the High Court in second appeal With the finding of facts would be when there is diverse finding of facts recorded by the trial court and the first appellate court. The apex Court also reiterated in Mehrunnisa and Ors. v. Visham Kumari and Anr. (1998) 2 SCC 295 that interference in finding of the first appellate court in the Second appeal by the High Court would be called for when the first appellate court reversed the judgment of the trial court without reading the entire evidence. 11. Mr. M. Singh, learned Counsel appearing for the respondent/plaintiff strenuously contends that substantial question of law No. 1, i.e., whether the suit was bad in law in absence of any pleading and proof that the plaintiff was ready and willing to perform his part of the contract? Cannot be agitated for the first time by the appellant/plaintiff in the Second Appeal inasmuch as the appellant/defendant never pleaded in his written statement that the respondent/plaintiff did not plead in his plaint that the respondent/plaintiff was ready and willing to perform his part of the contract. 12. To the contra, Mr. B.C. Das, learned senior counsel appearing for the appellant/defendant contends that substantial question of law No. 1 could be formulated and agitated by the appellant/defendant in the present second appeal. In support of his contention, Mr. B.C. Das heavily relies on the decision of the Apex Court in Santosh Hazari v. Purushottm (2001) 3 SCC 179 wherein the Apex Court held that an entirely new point raised for the first time before the High Court is not a question involved in the case unless it goes to the root of the matter. B.C. Das heavily relies on the decision of the Apex Court in Santosh Hazari v. Purushottm (2001) 3 SCC 179 wherein the Apex Court held that an entirely new point raised for the first time before the High Court is not a question involved in the case unless it goes to the root of the matter. It will, therefore, depend on the facts and circumstances of each case whether a question of law is a substantial one involved in the case or not: the paramount overall consideration being the need for striking a judicious balance between indispensable obligation to do justice to all stages and impelling necessity of avoiding prolongation in the life of any lis. Para 14 of the Santosh Hazari (supra) reads as follows: 14. A point of law which admits of no two opinions may be a proposition of law but cannot be a substantial question of law of law. To be "substantial" a question of law must be debatable, not previously settled by law of the land or a binding precedent, and must have a material bearing on the decision of the case, if answered either way, in so far as the rights of the parties before it are concerned. To be a question of law " involving in the case" there must be first a foundation for it laid in the pleadings and the question should emerge from the sustainable findings of fact arrived at by court of facts and it must be necessary to decide that question of law for a just and proper decision of the case. An entire new point raised for the first time before the High Court is not the question involved in the case unless it goes to the root of the matter. It will, therefore, depend on the facts and circumstances of each case whether a question of law is a substantial one and involved in the case, or not; the paramount overall consideration being the need for striking a judicious balance between the indispensable obligation to do justice at all stages and impelling necessity of avoiding prolongation in the life of any lis. 13. 13. This Court is of the considered view that the substantial question of law of law No. 1 formulated in the present second appeal could be raised by the appellant/defendant for the first time in the High Court in the facts and circumstances of the present case as it will go to the root of the matter. For deciding substantial question of law No. 1, Mr. B.C. Das, learned senior counsel appearing for the appellant/defendant has taken this Court to Section 16 of the Specific Relief Act, 1963 and also Appendix A, Form Nos. 47 and 48 of the First Schedule to the Code of Civil Procedure, 1908. For easy reference, Section 16 of the Specific Relief Act, 1963 and Form Nos. 47 and 48 in the Appendix A to the First Schedule to CPC, 1908 are quoted hereunder: 16. Personal bars to relief. - Specific performance of a contract cannot be enforced in favour of a person (a) who would not be entitled to recover compensation for its breach; or (b) who has become incapable of performing, or violates any essential term of, the contract that on his part remains to be performed, or acts in fraud of the contract, or willfully acts at variance with, or in subversion of, the relation intended to be established by the contract; or (c) who fails to aver and prove that he has performed or has always been ready and willing to perform the essential terms of the contract which are to be performed by him, other than terms the performance of which has been prevented or waived by the defendant. Explanation. - For the purpose of Clause (c), (i) where a contract involves the payment of money, it is not essential for the plaintiff to actually tender to the defendant or to deposit in court any money except when so directed by the court; (ii) the plaintiff must aver performance of, or readiness and willingness to perform, the contract according to its true construction. Appendix A of the First Schedule to CPC No. 47 Specific Performance (No. 1) (Title) A.B., the above-named plaintiff, states as follows: 1. By an agreement dated the...Day of... and signed by the defendant, he contracted to buy of [or sell to] to the plaintiff certain immovable property therein described and referred to, for the sum of...rupees. 2. Appendix A of the First Schedule to CPC No. 47 Specific Performance (No. 1) (Title) A.B., the above-named plaintiff, states as follows: 1. By an agreement dated the...Day of... and signed by the defendant, he contracted to buy of [or sell to] to the plaintiff certain immovable property therein described and referred to, for the sum of...rupees. 2. The plaintiff has applied to the defendant specifically to perform the agreement on his part, but the defendant has not done so. 3. The plaintiff has been and still is ready and willing specifically to perform the agreement on his part of which the defendant has had notice. [As in paras 4 and 5 of Form No. 1.] 6. The plaintiff claims that the court will order the defendant specifically to perform the agreement and to do all acts necessary to put the plaintiff in full possession of the said property [or to accept a transfer and possession of the said property] and to pay the costs of the suit. No. 48 Specific Performance (No. 2) (Title) A.B., the above-named plaintiff, states as follows: 1. On the...day of...19.../20..., the plaintiff and defendant entered into an agreement, in writing, and the original document is hereto annexed. The defendant, was absolutely entitled to the immovable property described in the agreement. 2. On the... Day of... 19/20..., the plaintiff tendered...rupees to the defendant, and demanded a transfer of the said property by a sufficient instrument. 3. On the... Day of... 19/20..., the plaintiff again demanded such transfer. [Or the defendant refused to transfer the same to the plaintiff.] 4. The defendant has not executed any instrument of transfer. 5. The plaintiff is still ready and willing to pay the purchase-money of the said property to the defendant. [As in paras 4 and 5 of Form No. 8. The plaintiff claims. (1) that the defendant transfers the said property to the plaintiff by a sufficient instrument [following the terms of the agreement]; (2)...rupees compensation for withholding the same. 14. As Discussed above, on careful perusal of the plaint of the T.S. No. 108 of 1983 filed by the respondent/plaintiff, it is clear that the respondent/defendant did not plead in the plaint that he was ready and willing to perform essential term of the said oral contract which are to be perform by him. 15. Mr. M. Singh, learned Counsel appearing for the respondent/plaintiff, Nagendra Kr. 15. Mr. M. Singh, learned Counsel appearing for the respondent/plaintiff, Nagendra Kr. Nath, contends that from the deposit of the amount of Rs. 4,075 in the court through challan by the Respondent/plaintiff, it can be inferred that the respondent/plaintiff, Nagendra Kr. Nath, is still ready and willing to perform the essential term of the oral contract. Mr. B.C. Das, in order to substantiate the case of the appellant/defendant for deciding the substantial question of law No. 1 in favour of the appellant/defendant, has relied on the decision of the Apex Court (1) Prem Raj, Appellant v. The D.L.F. Housing and Construction (P.) Ltd. and Anr. AIR 1968 SC 1355 : V 55C 262, (2) Ouseph Verghese v. Joseph Aley and Ors. 1969 (2) SCC 539 . 16. The Apex Court in Prem Raj (supra) held that it is well settled that in a suit for specific performance the plaintiff should allege that he is ready and willing to perform his part of the contract. In the present case, no such averment is made in the plaint. In absence of such averment, it must be held that the plaintiff has no cause of action so far as the relief for specific performance is concerned. The Apex Court in Ouseph Verghese (supra) held that the plaintiff did not plead either in the plaint or at subsequent stage that he was ready and willing to perform agreement. A suit for specific performance is to conform to the requirement prescribed in Forms 47 and 48 of the First Schedule in the CPC. In a suit, for specific performance, it is incumbent on the plaintiff not only to set out the agreement on the basis of which he sues in all its details, he must go further and plead that he has applied to the defendant specifically to perform the agreement pleaded by him but the defendant has not done so. He must further plead that he has been and is still ready and willing to specifically perform his part of the agreement. In absence of such allegation, the suit is not maintainable. 17. He must further plead that he has been and is still ready and willing to specifically perform his part of the agreement. In absence of such allegation, the suit is not maintainable. 17. After meticulously applying mind of this Court, in the materials available on record, i.e., the plaint of the T.S. No. 108 of 1983, the judgment and decree of both the courts below, keeping in view the ratio laid down by the Apex Court in the cases Discussed above, Section 16 of the specific Relief Act, 1963 and Forms 47 and 48 of the App. A of the Schedule to the Civil Procedure Code, is of the considered view that the substantial question of law No. 1 should be decided in favour of the appellant/defendant and accordingly decides in favour of the appellant/defendant No. 1. 18. For deciding the substantial question of laws Nos. 2 and 3, Mr. B.C. Das, learned senior counsel appearing for the appellant strenuously contends that the first appellate court cannot decide the issue No. 2, i.e., whether there was an agreement between the plaintiff and the defendant No. 1 for disposal of the suit land to the plaintiff and whether a sum of Rs. 825 was paid by the plaintiff to the defendant No. 1 as a part of the consideration money or not? On presumption and he also further contends that as the alleged agreement Mentioned in the plaint is an oral agreement, heavy burden lies on the plaintiff to prove the existence of an concluded oral agreement. In support of his contention Mr. Das, has Relied On the decision of the Apex Court in (1) Brij Mohan and Ors. v. Suugra Begum and Ors. (1990) 4 SCC 147 and (2) Kulwant Kaur and Ors. v. Gurdial Singh Mann (dead) by LRs. and Ors. (2001) 4 SCC 262 . The Apex Court in Brij Mohan (supra) held that there is no requirement of law that an agreement or contract or sale of immovable property should only be in writing. However, in a case where the plaintiff come forward to seek a decree for specific performance of a contract of sale of moveable property (sic) on the basis of the oral agreement alone, heavy burden lies on the plaintiffs to prove that there was consensus ad idem between the parties for a concluded oral agreement for sale of immovable property. However, in a case where the plaintiff come forward to seek a decree for specific performance of a contract of sale of moveable property (sic) on the basis of the oral agreement alone, heavy burden lies on the plaintiffs to prove that there was consensus ad idem between the parties for a concluded oral agreement for sale of immovable property. Whether there was such a concluded oral contract or not would be a question of fact to be determined in the facts and circumstances of each individual case. Para 20 of the decision in Brij Mohan (supra) reads as follows: 20. We have given our careful consideration to the arguments advanced by learned Counsel for the parties and have thoroughly perused the record. We agree with the contention of the learned Counsel for the appellants to the extent that there is no requirement of law that an agreement or contract of sale of immovable property should only be in writing. However, in a case where the plaintiffs come forward to seek a decree for specific performance of contract of sale of immovable property on the basis of an oral agreement alone, heavy burden lies on the plaintiffs to prove that there was consensus ad idem between the parties for a concluded oral agreement for sale of immovable property. Whether there was such a concluded oral contract or not would be a question of fact to be determined in the facts and circumstances of each individual case. It has to be established by the plaintiffs that vital and fundamental terms for sale of immovable property were concluded between the parties orally and a written agreement if any to be executed subsequently would only be a formal agreement incorporating such terms which had already been settled and concluded in the oral agreement. 19. The Apex Court in Kulwant Kaur (supra) held that in a Second Appeal a finding of fact, even if erroneous, will not generally be disturbed, but where it is found that the findings stand vitiated on wrong test and on the basis of assumption and conjecture resulting there is an element of perversity involved therein, the High Court will be within its jurisdiction to deal with the issue. Para 34 of the decision in Kulwant Kaur (supra) reads as follows.: 34. Para 34 of the decision in Kulwant Kaur (supra) reads as follows.: 34. Admittedly, Section 100 has introduced a definite restriction on to the exercise of jurisdiction in a second appeal so far as the High Court is concerned. Needless to record that the Code of Civil Procedure (Amendment) Act, 1976 introduced such an embargo for such definite objectives and since we are not required to further probe on that score, we are not detailing out, but the fact remains that while it is true that in a second appeal a finding of fact, even if erroneous, will generally not be disturbed but where it is found that the findings stand vitiated on wrong test and on the basis of assumptions and conjectures and resultantly there is an element of perversity involved therein, the High Court in our view will be within its jurisdiction to deal with the issue. This is, however, only in the event such a fact is brought to light by the High Court explicitly and the judgment should also be categorical as to the issue of perversity vis-à-vis the concept of justice. Needless to say however, the perversity itself is a substantial question of law worth adjudication what is required is a categorical, finding on the part of the High Court as to perversity. In this context reference be had to Section 103 of the Code which reads as below: 103. In any second appeal, the High Court may, if the evidence on the record is sufficient, determine any issue necessary for the disposal of the appeal, (a) which has not been determined by the lower appellate court or by both the court of first instance and the lower appellate court, or (b) which has been wrongly determined by such court or courts by reason of a decision on such question of law as is referred to in Section 100. The requirements stand specified in Section 103 and nothing short of it will bring it within the ambit of Section 100 since the issue of perversity will also come within the ambit of substantial question of law as noticed above. The legality of finding of fact cannot but be termed to be a question of law. The requirements stand specified in Section 103 and nothing short of it will bring it within the ambit of Section 100 since the issue of perversity will also come within the ambit of substantial question of law as noticed above. The legality of finding of fact cannot but be termed to be a question of law. We reiterate however, that there must be a definite finding to that effect in the judgment of the High Court so as to make it evident that Section 100 of the Code stands complied with. 20. Keeping in view the ratio laid down by the Apex Court in Brij Mohan (supra) and Kulwant Kaur (supra), this Court has given anxious consideration of its mind to the statements of the PWs/DWs and the respective pleadings of the parties. The respondent/plaintiff, in his plaint, did not even plead or mention the date on which the parties had come to a concluded oral agreement for the sale of the suit land to the respondent/plaintiff, Sri Nagendra Kr. Nath by the appellant/defendant, Sri Sunamoni Nath. None of the PWs stated, in their statements, as to date or month on which the appellant/defendant had proposed to sell the suit land to the respondent/plaintiff and also as to when the parties had come to a concluded oral agreement for the sale of the suit land by the appellant/defendant to the respondent/plaintiff. PWs simply adduced that the defendant/plaintiff had paid a sum of Rs. 825 to the appellant/defendant on 19 Bhadra, 1389. This fact of alleged payment of Rs. 825 is not also proved by a high degree of probability inasmuch as the statements of the PWs are contrary regarding the fact of payment of the said amount to the appellant/defendant inasmuch as the PW 1 (respondent/plaintiff himself), in his cross-examination, adduced that four persons were present at the time of the said advance payment, but in his statement in the Criminal case, i.e., C.R. No. 839/83, which was exhibited as "A" stated that none was present at the time of accepting the money of Rs. 825 by the appellant/defendant. The PW2, Aswini Kr. Goswami, who was stated to be present at the time of giving the money of Rs. 825 by the defendant/plaintiff to the appellant/defendant, according to the statement of PW1 (respondent/plaintiff himself) stated that on enquiry he came to know that the amount of money was Rs. 825. 825 by the appellant/defendant. The PW2, Aswini Kr. Goswami, who was stated to be present at the time of giving the money of Rs. 825 by the defendant/plaintiff to the appellant/defendant, according to the statement of PW1 (respondent/plaintiff himself) stated that on enquiry he came to know that the amount of money was Rs. 825. PW 2, Aswini Kr. Goswami, never stated in his statement about the date on which the appellant/defendant had proposed to sell the share of his land to the respondent/plaintiff at the price of Rs. 5,500 Similarly, PW 3, Shri Khitish Ch. Debnath, also did not state in his statement about the date and time on which the appellant/defendant had proposed to sell ½ share of his land to the respondent/plaintiff and also the date on which the parties had come to a concluded oral contract. It appears that in absence of the date on which the parties had come to a concluded oral agreement of sale, the learned first appellate court had come to the presumption that there was an oral agreement between the parties while passing the impugned judgment and decree. As held by the Apex Court in Kulwant Kaur (supra) this Court can certainly interfere with the finding of facts in the present case by the first appellate court on the basis of assumption and conjecture. It is needless to say that the finding of facts on the basis of assumption and conjecture is itself a perversity and perversity itself is a substantial question of law worth adjudication. 21. For the reasons Discussed above, the substantial question of laws Nos. 2 and 3 are also decided in favour of the appellant/defendant. 22. For the foregoing reasons and discussions above, the impugned judgment and decree dated 20.12.1999 passed by the learned Civil Judge (Sr. Division) passed in Title Appeal No. 13 of 1991, is set aside. The need result is that the judgment and decree dated 8.4.1991 passed by the learned Munsiff-1, Karimganj in T.S. No. 108 of 1983, is affirmed. 23. This Second Appeal is allowed. Parties are to bear their own costs. Appeal allowed.