JUDGMENT : Admit. Service of notice of admission is waived by Ms.Kruti M.Shah, learned advocate for the respondents. 1. Heard learned advocate Mrs.Ketty A.Mehta for the appellant and Ms.Kruti M.Shah for the respondents. Perused the record and proceedings received from the trial Court, which are called for pursuant to order dated 11.02.2013 passed by this Court (Coram:Hon'ble Mr.Justice Rajesh H.Shukla) with a direction that the notice is issued upon respondents for final disposal of the appeal at admission stage. 2. Pursuant to such direction, on receipt of record and proceedings of trial Court, both the parties have agreed to dispose of the First Appeal at admission stage and, therefore, argued at length. 3. Appellant is the plaintiff and respondents are the defendants before the Trial Court in Special Civil Suit No.355 of 2002, which is dismissed by the impugned judgment and order dated 07.01.2013 passed by Additional Senior Civil Judge, Surat. For the sake of convenience, parties are referred with reference to their nomenclature in the suit. 4. The sum and substance of plaintiff suit's is very well explained in the impugned judgment. The suit is for specific performance of an unregistered agreement to sell dated 21.10.1974. According to such agreement to sell, which is produced on record at Exh.-96, the original defendant No.1 and defendant No.2 had executed such document, confirming that they have received an amount of Rs.2,100/-towards sale price of the suit property. However, since suit land being survey No.570 of Village-Suvali, Talluka-Choryasi, District-Surat was having restrictions to sell because of the size of the land, which was agreed by the defendants to sale to the plaintiff, sale deed was to be executed after getting permission from the Collector to enter into sale transaction of such piece of land. The prohibition was to sell such property is due to restrictions under the Fragmentation Act as well as under Tenancy Act. It is further contended in the plaint that after getting permission under the Fragmentation Act and Tenancy Act, when plaintiff has called upon the defendants to execute the sale deed by submitting a draft sale deed on a valid stamp paper, the defendants have refused to execute the sale deed and, therefore, after such refusal in the year 2001, a suit is filed on 30.08.2002 for Specific Performance of the agreement to sell dated 21.10.1974. 5. 5. The plaintiff has alternatively prayed for an amount of Rs.5,00,000/-(Rupees Five Lac) towards sale price of the suit property as per existing market price on the date of the suit as damages with ancillary relief to restrain the defendants from disturbing the possession and costs of the suit etc. 6. Unfortunately, though the agreement to sell is dated 21.10.1974, and though such date is disclosed in paragraph Nos. 1 & 6 of the plaint, in prayer clause the date of such agreement to sell is stated as on 01.10.1974 with a prayer to pass a decree for execution of such agreement to sale. Thereby, though this may be a typographical and clerical error, technically unless such prayer is not corrected properly, the relief as prayed for in Para-8(1) of this plaint may not be material since there is no agreement to sell dated 01.10.1974 agreeing to sell the property in favour of the plaintiff by the defendants, so far as, the suit property is concerned. 7. The averments in the plaint, thereby pleading in the suit is to the extent of execution of such agreement to sell on 21.10.1974, upon accepting the full sale price and after handing over the possession of the suit property being agricultural land bearing Survey No.570 of Village-Suvali, Talluka-Choryasi, District-Surat defendants have to get the permission for executing sale deed from the competent authority both under the Fragmentation Act and under the Tenancy Act. For the purpose necessary proceedings were initiated, whereby permission under Fragmentation Act was available on 20.06.1999, whereas tenure of the land is changed from new tenure to old tenure by an order dated 18.06.2001 for which necessary entry in the records of right being Entry Nos.3661 and 3735 were endorsed and thereupon plaintiff becomes entitled to get the suit property transferred in his name and defendants were liable to execute the sale deed pursuant to agreement to sell under reference. It is further contended that at such point of time the intention of the defendants were changed and thereby defendants refused to execute the sale deed and thereupon plaintiff has to initiate such litigation at the earliest. It is further contended that at such point of time the intention of the defendants were changed and thereby defendants refused to execute the sale deed and thereupon plaintiff has to initiate such litigation at the earliest. It is further contended that plaintiff was always ready and willing to perform his part of contract which is practically over by paying full sale price and by getting possession and even thereafter, all the expenditures for getting approval and sanction under the Fragmentation Act and Tenancy Act, plaintiff has spent for everything and plaintiff has even paid revenues of the suit property throughout years. Therefore, plaintiff has filed the suit for the prayers as referred to hereinabove. 8. Thus the base of the suit can be summarized:- (i) Agreement to sell dated 21.10.1974 in favour of the plaintiff which is at Exh.-96 which confirms payment of full price and handing over the possession. (ii) Removal of restrictions under the Fragmentation Act on 20.06.1999 and under the Tenancy Act on 18.06.2001. (iii) Plaintiff has spend for such clearance and paid revenue also. 9. Defendants had resisted the suit by filing a written statement at Exh.-16 on 05.02.2003, wherein it is contended that suit is filed after a long lapse of 28 years and therefore, plaintiff is not entitled to any equitable relief. Pursuant to the provision of Section 213 of Tenancy Act even agreement to sell of such land of new tenure is not permissible. Hence, such agreement to sell cannot be executed by order of specific performance. Suit land is fragment and since, there are restrictions under Sections 7 & 9 of the Fragmentation Act to deal with such land and even enter into sale for such land cannot be accepted in evidence. It is further submitted that son of the plaintiff, was Surpanch of the Village, and therefore, in collusion with Talati of the Village, plaintiff has permitted forgery with the record of rights and disclosed false information. It is further submitted that son of the plaintiff, was Surpanch of the Village, and therefore, in collusion with Talati of the Village, plaintiff has permitted forgery with the record of rights and disclosed false information. It is further submitted that the purpose of agreement to sell as disclosed in the document that defendants were financially unsound and needs financial help and therefore, they entered into such agreement is absolutely incorrect and having no force since they were never in financial difficulty at any point of time and that even possession of suit property is only with them and that plaintiff had only with a view to snatch away the suit land from the defendants created agreement to sell which is forged one and that based upon such forged agreement to sell, plaintiff is not entitled to any relief as claimed for in the suit as well as in the injunction application. It is further contended that execution of agreement to sell has never been disclosed by the plaintiff before any authority, either revenue or civil in any proceeding for all these 28 years and therefore, when plaintiff is well aware about the tenancy and revenue loss, they would not have sit idle for all these 28 years and the possession of the suit property can be confirmed by the record of cultivation of the suit property in revenue record, which is being recorded by Talati every year after personal verification. Therefore, if plaintiff was in possession for all these 28 years, then they would have certainly entered their names in record of rights. It is further contended that because of the escalation in price of land, plaintiff has got up the agreement to sell so as to snatch away the valuable property of the defendants. It is further contended that value of the suit property was more than Rs.20,000/-in the year 1974, which has become clear from the reading of agreement to sell itself and even thereafter, meager amount has been disclosed as a price of the land in same document, which confirms the intention of the plaintiff and that such deed was got up and bogus. 10. 10. In the meanwhile, pending decision in First Appeal, the appellant has preferred Civil Application No.13292 of 2013 with a prayer to allow the correct date of agreement to sell in Para-8(1) i.e. prayer clause of the plaint as 21.10.1974 instead of 01.10.1974. Though such discrepancy may be corrected because of clerical and typographical error or mistake which touches to the root of the matter and, therefore, respondents/defendants have resisted such application by filing an affidavit-in-reply on 23.12.2013. 11. Both the parties are heard on such Civil Application also. 12. However, irrespective of such prayer to amend the prayer clause at such stage, the perusal of impugned judgment and order makes it clear that though there is alternative prayer for compensation, the trial Court has failed to frame specific or proper issue so far as such alternative relief is concerned, though it can be argued that such issue is included in issue No.-(vii) which is to the effect that whether plaintiff is entitled to relief as claimed for, or not? To that extent even there is no discussion in the impugned judgment also. However, in Para-16 of the judgment, in last unnumbered para on page-20, the trial Court has stated that there is no dispute regarding execution of agreement by the defendants in favour of the plaintiff, though the trial court has decided issue No.1 regarding execution of sale deed in negative. The careful perusal shows that the trial Court has relied upon the position that plaintiff has remained silent from 1974 till the date of suit regarding the agreement to sell in question, and therefore, it can not be believed that defendants had ever executed agreement to sell in question. However, though such issue is discussed in the impugned judgment, the suit is mainly decided upon technical and legal ground viz, whether plaintiff was agriculturalist at the relevant point of time or not and whether suit property can be alienated in such manner, pursuant to legal restriction in view of provision of Tenancy Act and Fragmentation Act. 13. Therefore, so far as execution of sale is concerned, the finding of the trial Court is two folded. Though trail Court has said that there is no dispute regarding execution of agreement to sell in favour of the plaintiff, the trial Court did not conclude issue No.1 in favour of the plaintiff for some surmises and presumption. 14. 13. Therefore, so far as execution of sale is concerned, the finding of the trial Court is two folded. Though trail Court has said that there is no dispute regarding execution of agreement to sell in favour of the plaintiff, the trial Court did not conclude issue No.1 in favour of the plaintiff for some surmises and presumption. 14. So far as other relevant evidence is concerned, it seems that plaintiff could not agitate that issue and could not get sale deed executed because of restrictions under the Tenancy Act and Fragmentation Act, which are to be cleared by the defendants. It is also clear that once defendant has cleared such restrictions, the plaintiff has raised the demand for execution of sale deed and on failure to do so, the defendants initiated legal proceedings. 15. However, so far as final determination in the impugned judgment is concerned, since decree of specific performance is otherwise discretionary as provided under the Specific Relief Act, I do not see any illegality in the decision of the trial Court in dismissing the suit, which is based upon unregistered agreement to sell before 26 years. 16. However, considering the Civil Application No.13292 of 2013 on 17.12.2013 and non framing of issue regarding alternative remedy and not discussing about alternative relief, if at all execution of agreement to sell is considered to be proved, it would be appropriate to give reasonable opportunity to the plaintiff to get appropriate decision on such point/issue for the purpose. In absence of appropriate discussion and decision in the impugned judgment, it could not be decided in such appeal at this stage, which would otherwise prejudice right of both the parties to challenge such order in First Appeal. 17. In view of the above facts and circumstances, I perused the entire record and came to the conclusion that there is nothing on record which confirms that plaintiff is entitled to the relief of specific performance, therefore, there is no substance in the appeal which deserves to be dismissed by confirming the determination on issue Nos.-1 to 6. So far as issue No.7 is concerned, when there is no discussion for the specific alternative relief regarding compensation, I am of the opinion that for such limited purpose, matter requires consideration afresh by the trial Court. 18. So far as issue No.7 is concerned, when there is no discussion for the specific alternative relief regarding compensation, I am of the opinion that for such limited purpose, matter requires consideration afresh by the trial Court. 18. Though nobody has noticed clerical or typographical mistake/error in the prayer clause in Para-8(1) of the plaint and though suit is not dismissed solely on such grounds, considering the fact that appellant has prayed to correct such date at such appellate stage and that too in the pleading before the trial Court, more particularly prayer clause, the same can not be allowed/amended at such stage. It would be appropriate to dismiss such application but with a liberty to the plaintiff to apply for such relief before the trial Court when suit is remanded back. 19. Needless to say that though matter requires to be remanded back, as discussed hereinabove, it is made clear that remand is for limited purpose so far as prayer in Civil Application No.13292 of 2013 is concerned and it is for the trial Court to scrutinize the record and to determine that whether alternative relief can be granted or not. It is made clear that the trial Court has to decide such issue on merits of the case independently and without being prejudiced by the present order. However, remand is limited for such purpose only thereby, determination issue Nos.1 to 6 are hereby is confirmed. 20. However, before parting with the matter and before passing final order it would be appropriate to record here that such decision and determination is also based upon an attempt by this Court to settle the dispute between the parties so as to put an end to such litigation and dispute between the parties, who are not only agriculturalist in nearby village, but are in fact relatives. Thereby, it would be appropriate for the trial Court to have one more attempt to settle the issue amicably between the parties before deciding the matter as directed hereinafter. 21. For such attempt to compromise the disputed facts, which require consideration, are to the effect that agreement to sell is of the year 1974, suit is filed in the year 2001, by passage of such long time, price is increased. Sale price in the year 1974, was only Rs.2,100/-, claim for alternative relief is Rs.5 Lac and status of the parities. Sale price in the year 1974, was only Rs.2,100/-, claim for alternative relief is Rs.5 Lac and status of the parities. Thereby, both the parties are also at liberty to disclose their offer before the trial Court to settle the dispute. 22. In view of the above facts and circumstances, the appeal is partly allowed, thereby, though refusal/rejection of relief for a decree of specific performance, is confirmed, the suit is remanded back for a limited purpose to ascertain and determine, based upon the available record, that whether plaintiff is entitled to alternative relief of compensation or not. 23. The trial court shall decide the issue after hearing both the parties within 4 months from the receipt of this order. Till then status quo to be maintained. There is no order as to costs. 24. The record and proceeding shall be sent back to the trial Court immediately with writ of this order. Direct service is permitted. 25. Civil Application No.13292 of 2013 stands disposed of accordingly.