Research › Search › Judgment

Tripura High Court · body

2014 DIGILAW 291 (TRI)

Raiharan Datta v. Parimal Chandra Baidya

2014-07-24

S.C.DAS

body2014
JUDGMENT S.C. Das, J. 1. This civil first appeal under Section 96 of the Code of Civil Procedure is directed against the judgment and decree dated 26.04.2011 passed by learned Civil Judge (Sr. Division), South Tripura, Udaipur, incase No. T.S. 19 of 2009 whereunder the suit instituted by the plaintiffs for specific performance of contract with consequential relief has been dismissed. Heard learned Sr. counsel Mr. A.K. Bhowmik assisted by learned counsel Mr. R. Datta for the plaintiff appellants (herein-after mentioned as plaintiffs) and learned Sr. counsel Mr. S.M. Chakraborty assisted by learned counsel Mr. S. Bhattacharjee for the defendant-respondent No. (hereinafter mentioned as defendant No. 1) and learned counsel Mr. D.R. Chowdhury for the defendant-respondents No. 2 and 3 (hereinafter mentioned as defendants No. 2 and 3). 2. Let us first have a glimpse to the pleadings of the parties. 2.1 The plaintiffs' inter alia, contended that the suit land measuring .240 acres, described in the schedule of the plaint belonged to defendant No. 1 and the defendant while in urgent need of money in the last part of October, 2008 made a proposal to the plaintiffs to sell the suit land at a market price of 21,00,000/- and the plaintiffs agreed to the proposal to purchase the suit land. In terms of such oral agreement, the plaintiffs on 13.11.2008 along with 3(three) witnesses namely Haradhan Das, Swapan Kr. Chowdhury and Kamal Krishna Saha went to the house of the defendant No. 1 and an amount of 18,65,000/- was paid in cash as part of consideration money, out of the settled price of 21,00,000/- and an Advocate Clerk namely Tajir Islam was called who prepared an agreement in writing (computer typed) and the agreement was read by both side and it was also read over by the scribe Tajir Islam and thereafter the plaintiffs and defendant No. 1 signed the said agreement in presence of witnesses Haradhan Das, Swapan Kr. Chowdhury and Kamal Krishna Saha. It was stipulated in the agreement that the defendant No. 1 will execute registered sale deed on receipt of the balance consideration money of 2,35,000/- within 7 months from the date of agreement. Chowdhury and Kamal Krishna Saha. It was stipulated in the agreement that the defendant No. 1 will execute registered sale deed on receipt of the balance consideration money of 2,35,000/- within 7 months from the date of agreement. It is also stated by the plaintiffs that as per the agreement, the defendant No. 1 handed over physical possession of the suit land with the terms and conditions that the defendant No. 1 since has no other homestead will temporarily continue to reside on the suit land pending execution of the sale deed. On 19.04.2009, the plaintiffs along with witness Swapan Kr. Chowdhury and Adhir Dey requested defendant No. 1 to receive the balance amount of 2,35,000/- in cash and to execute a registered sale deed in respect of the suit land in favour of the plaintiffs pursuant to agreement dated 13.11.2008 and to vacate the suit land but the defendant No. 1 refused to receive the balance consideration money and further demanded an amount of 3,00,000/- in addition to the agreed consideration of 21,00,000/- which the plaintiffs refused to agree. At that time, the defendant No. 1 told the plaintiffs to return the advance amount of 18,65,000/- and to hand over possession of the suit land to the defendant No. 1 to which the plaintiffs protested to such illegal demand of defendant No. 1 and the plaintiffs demanded a written document as regards the reason of his denial to execute and registration of the sale deed in terms of the agreement but the defendant No. 1 refused to give any written document. The plaintiffs duly fulfilled the condition of contract on their part and they were/are always ready and willing to perform their part of the contract by making payment of residue amount of 2,35,000/- as per the agreement dated 13.11.2008 but the defendant illegally violated the terms of contract on his part. Finding no other alternative, the plaintiffs issued a legal notice through their Advocate Mr. Subhra Majumder on 24.04.2009 by registered post with A.D. to the defendant No. 1 asking the defendant No. 1 to execute sale deed receiving the rest amount of 2,35,000/- as per agreement dated 13.11.2008 within 7 days from the date of receipt of the notice and the defendant No. 1 received the notice on 27.04.2009 but failed to oblige the notice. To avoid litigation, the plaintiffs again on 09.05.2009 met defendant No. 1 at his residence with cash money of 2,35,000/- and requested the defendant to receive the same and to execute registered sale deed but the defendant No. 1 disclosed that he already on 20.04.2009 by registered sale deed sold .059 acres of land to Prasanta Saha (defendant No. 2) and by another sale deed sold .058 acres of land to Suranjan Das (defendant No. 3) and also executed a registered agreement with the defendant Nos. 2 and 3 for a path way for their movement from the sold out land. After hearing the version of the defendant No. 1, the plaintiffs collected certified copy of the registered sale deed No. 693 and 694 as well as the registered agreement No. 704 from the Office of the Sub-Registrar and thereafter came to know that by registered sale deed No. 693, the defendant No. 1 sold .059 acres of land to defendant No. 2 and by registered sale deed No. 694, the defendant No. 1 sold .058 acres to defendant No. 3 for consideration and also given away another .022 acres of land for the purpose of path way to the defendant Nos. 2 and 3. The plaintiffs asserted that the sale deed and agreement dated 20.04.2009 were a sham transaction and the defendant No. 1 having knowledge about the agreement of sale created those sham transactions with a view to frustrate the agreement of sale dated 13.11.2008. The defendant Nos. 2 and 3 acquired no right, title and interest and possession of the land purchased by them and those sale deeds and the agreement were/are liable to be declared as illegal, void and inoperative and liable to be cancelled. The cause of action for the suit arose on 19.04.2009 when defendant No. 1 refused to execute sale deed accepting the balance amount of the consideration money and thereafter on 04.05.2009 i.e. after expiry on 7 (seven) days of the legal notice, dated 24.04.2009 and ultimately on 09.05.2009, when the defendant No. 1 disclosed that he sold out part of the suit land to the defendant Nos. 2 and 3 and lastly arose on 14.05.2009 i.e. the date on which the plaintiffs obtained certified copy of the sale deeds and the agreement between the defendant No. 1 and defendant Nos. 2 and 3. 2 and 3 and lastly arose on 14.05.2009 i.e. the date on which the plaintiffs obtained certified copy of the sale deeds and the agreement between the defendant No. 1 and defendant Nos. 2 and 3. The plaintiffs, therefore, prayed for the following reliefs:- (a) for specific performance of contract, directing the Defendant No. 1 to transfer the suit land by executing and registering sale deed to the plaintiffs on receipt of rest amount of consideration money of Rs. 2,35,000/- (two lakh thirty five thousand) within the period to be fixed by this Ld. Court; AND In the event of failure on the part of the Defendant No. 1 to transfer the suit land to the Plaintiffs by making register instrument on receipt of rest amount of consideration money within a period to be fixed by this Ld. Court, Ld. Court would be graciously pleased to make regd. Sale deed for the suit land on behalf of Defendant No. 1 in favour of the Plaintiffs U/O-XXI Rule-34(4) C.P.C.; (b) Ld. Court would be graciously pleased to deliver possession of the suit land to the Plaintiffs after making sale deed for the suit land in favour of the Plaintiffs by evicting the Defendants and their men or agent there from by removing all sorts of obstruction/construction thereat; (c) to declare that regd. Sale deed bearing No. 693 and regd. Sale deed bearing No. 694 for the year 2009 A.D. of the office of Sub-Registrar, Udaipur alleged to has been executed by Parimal Chandra Baidya (Defendant No. 1) on 20.04.2009 A.D. in favour of Prasanta Saha (Defendant No. 2) and Suranjan Das (Defendant No. 3) respectively and another regd. Deed of agreement bearing No. 704 for the year 2009 A.D. alleged to has been executed by Defendant No. 1, 2, 3 jointly on 24/04/2009 A.D. of the office of Sub-Registrar, Udaipur are illegal, void, inoperative and sham transaction and liable to be cancelled; (d) for direction upon the Sub-Registrar, Udaipur to make an endorsement on the body of each Registered Sale deeds which were entered in Book No. 1, Vol-8, Page No. 37-38, being No. 693, for the year 2009 and Book No. 1, Vol-8, Page No. 39-41, being No. 694, for the year 2009 and said regd. Deed of agreement which was entered in Book No. 1, Vol-8, Page No. 75-76, being No. 704, for the year 2009, that those regd. Deed of agreement which was entered in Book No. 1, Vol-8, Page No. 75-76, being No. 704, for the year 2009, that those regd. Sale deeds and said regd. Deed of agreement are illegal, void, inoperative and cancelled and to restrain the Sub-Registrar, Udaipur from issuing any certified copies of those regd. Sale deeds and agreement from his office to anybody; (e) for perpetual injunction restraining the Defendant Nos. 2 & 3 from executing and registering any kind of transfer deed in favour of many body on the strength of registered Deed of sale, bearing Nos. 693 & 694 dated 20/04/2009 A.D. alleged to has been executed by Defendant No. 1 and from giving effect of those sale deeds before any competent authority and restraining the Defendant No. 1 from executing and registering further any kind of transfer deed in favour of anybody in respect of any portion of suit land; Book No. 1, Vol-8, Page No. 37-38, being No. 693, for the year 2009 and Book No. 1, Vol-8, Page No. 39-41, being No. 694, for the year 2009 and said regd. Deed of agreement which was entered in Book No. 1, Vol-8, Page No. 75-76, being No. 704, for the year 2009, that those regd. Sale deeds and said regd. Deed of agreement are illegal, void, inoperative and cancelled and to restrain the Sub-Registrar, Udaipur from issuing any certified copies of those regd. Sale deeds and agreement from his office to anybody; (e 1) for a direction upon defendant No. 1 to refund the earnest money amounting to Rs. 18,65,000/- to the Plaintiffs along with interest at the rate of 10% P.A. w.e.f. 13.11.2008 as an alternative/additional relief. Sale deeds and agreement from his office to anybody; (e 1) for a direction upon defendant No. 1 to refund the earnest money amounting to Rs. 18,65,000/- to the Plaintiffs along with interest at the rate of 10% P.A. w.e.f. 13.11.2008 as an alternative/additional relief. (f) cost of the suit; (g) any other relief/reliefs your honour deems fit and proper be granted to the Plaintiffs for the fair ends of justice." 2.2 Defendant No. 1 contested the suit by filing written statement denying all the averments made in the plaint except the fact that the suit land belonged to him and further contended that he is a Contractor by profession and for the purpose of his professional business, he used to borrow money from the plaintiffs often who were friendly with him and also he used to return the money as per convenience and for last few months he was facing extreme financial hardship and therefore, he was in a difficult situation and as a result was not in a position to return the borrowed sum to the plaintiffs which he took as individual loan from the plaintiffs and requested them to allow him some time to refund the sum but the plaintiffs who are having with a common interest made a common platform under leadership of plaintiff No. 1 and the plaintiff No. 1 brought a stamp paper and came to the house of defendant No. 1 and asked him to put his signature on it and since the defendant No. 1 had no moral strength to confront with the plaintiffs and therefore he obliged the plaintiffs putting his signature in the blank stamp paper and at the time of signing blank stamp papers some other persons Satyagopal Banik, Sunil Ch. Saha, Sekhar Das and Parimal Sen were present. It was assured by the plaintiffs that the stamp paper will not be utilized against the defendant No. 1 if he can refund the borrowed sum to the plaintiffs within a period of one year from the date of obtaining signature. It is also stated that the plaintiffs asked the defendant No. 1 to keep the matter secret as otherwise he will be in trouble. It is also stated that the plaintiffs asked the defendant No. 1 to keep the matter secret as otherwise he will be in trouble. The defendant No. 1, thereafter started taking steps to arrange money for refunding the loan money to the plaintiffs according to their individual share within a period of one year but to his utter surprise and dismay, the plaintiffs manufactured the loan agreement for sale of the suit land which is a forged document created on the blank stamp paper. The plaintiffs being in the common platform with common interest fraudulently and illegally obtained signature of the defendant No. 1 giving false assurance and since they are not in clean hand, they are not entitled to get any relief against the defendant. The defendant, therefore, prayed for dismissal of the suit with cost. 2.3 Defendant Nos. 2 and 3 submitted a written statement inter alia, stating that the defendant No. 2 is a businessman and the defendant No. 3 is a Govt. employee and they were well acquainted with each other and for their bona fide need for making a house of their own, they were searching for a suitable plot of land at Udaipur and at that time the defendant No. 1 who owns and possesses a plot of land at Udaipur town, approached them for purchasing a part of the suit land at market price and accordingly, the defendants purchased a piece of homestead land covering an area of .059 acres and .058 acres respectively by two separate registered deed Nos. 693 and 694, executed and registered on 20.04.2009 i.e. apart of the suit land instituted by the plaintiffs. Before purchase they have enquired and searched in different source to ascertain whether the suit land is otherwise free of encumbrances or not but they did not find anything to suggest or hint that the suit land is in anyway encumbered and that they found the land free from any encroachment other than the possession of the defendant No. 1 i.e. the owner of the land. At the time of execution of the title deeds, the defendant No. 1 specifically handed over possession of the sold out land to the defendants and the defendants got possession of their purchased land and thereafter both the defendants developed the purchased land and erected structure upon it for the purpose of making dwelling huts and homes for both of them in near future. It is further stated by the defendants that neither before their purchase nor after the purchase nobody told them the fact that the suit land has already been under an agreement of sale between the plaintiffs and defendant No. 1. It is stated that the defendants are in active possession of their purchased land and that the defendant No. 2 erected a hut with GCI sheet roof and storing material in his plot of land and defendant No. 3 possessing the land by growing vegetables and they have placed boundary fencing round their purchased land. They have also stated that they have got a common path way by dint of an agreement between them and defendant No. 1. They are bona fide purchasers of the part of the suit land and so their purchased land is liable to be protected from any agreement of sale between the plaintiffs and defendant No. 1. 3. The trial Court considering the pleadings of the parties framed the following issues:- 1) Whether the suit is maintainable in its present form and nature? 2) Whether there is a valid agreement in between the Plaintiffs and Defendant No. 1 for selling of the suit land? 3) Whether the Plaintiffs are all time ready for performing a specific contract entered in between the Plaintiffs and Defendant No. 1? 4) Whether the Plaintiffs are entitled to have a decree directing the Defendant No. 1 to transfer the suit land to the Plaintiffs in performance of specific contract on receipt of the balance consideration money of Rs. 2,35,000/- and also hand over the possession of the suit land to the Plaintiffs with construction thereon within the specific time formulated by the Court? 5) Whether the Plaintiffs are entitled to have full performance of contract of payment of the balance consideration money of Rs. 2,35,000/- and also hand over the possession of the suit land to the Plaintiffs with construction thereon within the specific time formulated by the Court? 5) Whether the Plaintiffs are entitled to have full performance of contract of payment of the balance consideration money of Rs. 2,35,000/- only payable to the Defendant No. 1 by the Court in case of the failure of performance of the sale deed of the suit land by Defendant No. 1 in favour of the Plaintiffs? 6) Whether the sale deeds executed by the Defendant No. 1 in favour of Defendants No. 2 and 3 in regard to any portion of the suit land is illegal, void and inoperative and or liable to be cancelled? 7) Whether the Plaintiffs are entitled for recovery of the possession of the suit land from the Defendants? 8) To what relief/relieves the parties are entitled to? 4. In course of trial, plaintiff No. 5 examined himself as P.W. 1, plaintiff No. 8 examined himself as P.W. 2 and plaintiff No. 7 examined himself as P.W. 4. Plaintiffs also examined Tajir Islam, the writer of agreement between the plaintiffs and defendant No. 1 as P.W. 3 and also examined other 3(three) witnesses to the agreement namely Haradhan Das, Swapan Kr. Chowdhury and Adhir Ch. Dey as P.Ws 5, 6 and 7. In support of their case, the plaintiffs also proved the following documents:- Ext. 1 (Series): Certified copy of R.S. Khatians bearing No. 1918 & 1927 of Mouja Udaipur town in respect of the suit land; Ext. 2: Certified copy of RS Map in respect of RS plots No. 5936 & 5937/8008 and some other plots of Mouja Udaipur town No. 13, Sheet No. 5 (part); Ext. 3: Original of the unregistered deed of agreement for sale of the suit land executed between the plaintiffs on the one hand and the defendant No. 1 on the other hand; Ext. 4: Copy of the legal notice dated 24.04.09 issued by one Shri Subhra Majumder, Advocate, Udaipur for and on behalf of the plaintiffs asking the defendant No. 1 to execute and register the sale-deed in respect of the suit land on receipt of the balance consideration money of Rs. 2,35,000/- within 7 days from the date of receipt of the notice; and postal receipt and the acknowledgement; Ext. 2,35,000/- within 7 days from the date of receipt of the notice; and postal receipt and the acknowledgement; Ext. 5: Certified copy of the registered saledeed bearing No. 693, dated 20.04.09 executed by the defendant No. 1 in favour of the defendant No. 2 in respect of 0.059 sahashrangsha of land forming part of the suit land; Ext. 6: Certified copy of the registered saledeed bearing No. 694, dated 20.04.09 executed by the defendant No. 1 in favour of the defendant No. 3 in respect of 0.058 sahashrangsha of land forming part of the suit land; and Ext. 7: Certified copy of the registered deed of agreement bearing No. 704, dated 20.04.09 executed between the defendants No. 2 & 3 on the one hand and the defendant No. 1 on the other hand in respect of 0.022 sahashrangsha of land forming part of the suit land; and Ext. 8 (Series'): Photocopy of the land valuation certificates dated 27.01.09 & 02.02.09 issued by the Tehashilder, Radhakishorepur T.K., Udaipur in respect of part of the suit land. 5. Defendant No. 1 examined himself as D.W. 1 and also examined two more witnesses on his behalf namely D.W. 2 Satya Gopal Banik and D.W. 3 Sunil Kr. Saha. Defendant No. 1 adduced no documentary evidence. 6. On behalf of defendant Nos. 2 and 3, the defendant No. 3 examined himself as a witness and they also adduced no documentary evidence. 7. The trial Court decided issue Nos. 1 and 3 in favour of the plaintiffs but decided issue Nos. 2, 6 and 8 against the plaintiffs. Since issue Nos. 2, 6 and 8 were decided against the plaintiffs, the trial Court consequently decided issue Nos. 4, 5 and 7 against the plaintiffs and accordingly, dismissed the suit. 8. Felt aggrieved, the present appeal is filed by the plaintiffs. 9. Learned Sr. counsel Mr. Bhowmik appearing for the plaintiff-appellants submitted that the trial Court neither discussed pleadings nor discussed evidence and simply invoking the provision of Section 53A of the Transfer of Property Act, 1882 (for short, T.P. Act) dismissed the suit of the plaintiffs though the Court has decided issue No. 3 in favour of the plaintiffs that the plaintiffs were already willing to perform their part of the contract as per the agreement. It is emphatically submitted by learned Sr. counsel Mr. It is emphatically submitted by learned Sr. counsel Mr. Bhowmik that Exhibit 3, the agreement of sale is an evidence of contract in a suit for specific performance under Chapter-II of the Specific Relief Act, 1963 (for short, S.R. Act) and the document is permissible in evidence under Section 49 of the Registration Act, 1908. The plaintiffs never pleaded a case under Section 53A of the T.P. Act inasmuch as the provision of Section 53A of the T.P. Act is not a sword but a shield and the benefit of Section 53A of the T.P. Act is available only for the purpose of defence and as such, the pleadings made by the plaintiffs that they have been inducted into suit land in a case of part performance on payment of part of the consideration money, is of no consequence and further that the plaintiffs produced unregistered written agreement of sale under Section 53A of the T.P. Act as an evidence of contract in the suit for specific performance and as such the learned court below ought to have held that Exhibit-3 (agreement) was duly proved as the conclusive evidence of contract between the plaintiffs and the defendant No. 1 for sale of the suit land and consequently the defendant No. 1 was legally bound to execute sale deed in favour of the plaintiffs on receipt of the balance consideration money since the contract was for specific performance under the S.R. Act. It is further submitted by learned Sr. counsel Mr. Bhowmik that since the agreement was an unregistered one and the defendant No. 1 as well as the defendant Nos. 2 and 3 stated that the defendant Nos. 2 and 3 had no knowledge about the agreement of sale, and the plaintiffs could not prove that the defendant Nos. 2 and 3 being bona fide purchasers their rights may be protected but the defendant No. 1 is bound to execute sale deed in respect of the rest of the suit land and also bound to return rest amount of the advance payment with 10% interest thereon. Learned counsel, Mr. Bhowmik, therefore, prayed for allowing the appeal and for a decree as per the prayer of the plaintiffs. 10. Learned Sr. counsel Mr. Learned counsel, Mr. Bhowmik, therefore, prayed for allowing the appeal and for a decree as per the prayer of the plaintiffs. 10. Learned Sr. counsel Mr. Chakraborty appearing for the defendant No. 1 has submitted that the trial Court rightly decided the issues and rightly dismissed the suit without granting any relief to the plaintiffs. The plaintiffs since did not pray for any relief in respect of return of alleged advance made by them, even if the plaint is amended at the appellate stage, the relief cannot be granted to the plaintiffs and the plaintiffs may claim their relief otherwise than in the present appeal since neither any issue was framed nor any evidence was led regarding the refund of the alleged advance claimed by the plaintiffs. 11. Learned counsel Mr. D.R. Chowdhury appearing for the respondent Nos. 2 and 3 simply stated that the defendant respondent Nos. 2 and 3 are the bona fide purchasers. So, their right is protected by law and the plaintiffs are not entitled to get any decree in respect of the land purchased by the defendant Nos. 2 and 3. 12. The trial Court decided issue No. 2 against the plaintiffs simply invoking the provision of Section 53A of T.P. Act. I find no relevance of Section 53A in the context of the pleadings and evidence of this suit. Neither the plaintiffs nor the defendants pleaded on the doctrine of part performance. No evidence also adduced by the parties on the context. The plaintiffs in their pleadings and evidence stated that on 13.11.2008, the date of execution of Exhibit-3, the unregistered written agreement, the defendant No. 1 handed over possession to the plaintiffs. That pleadings and evidence cannot make out a case to invoke the provision of Section 53A of the T.P. Act. For ready reference, let us reproduce here section 53A which reads as follows:- "53A. That pleadings and evidence cannot make out a case to invoke the provision of Section 53A of the T.P. Act. For ready reference, let us reproduce here section 53A which reads as follows:- "53A. Part performance.--Where any person contracts to transfer for consideration any immoveable property by writing signed by him or on his behalf from which the terms necessary to constitute the transfer can be ascertained with reasonable certainty, And the transferee has, in part performance of the contract, taken possession of the property or any part thereof, or the transferee, being already in possession, continues in possession in part performance of the contract and has done some act in furtherance of the contract, And the transferee has performed or ism willing to perform his part of the contract, Then, notwithstanding that [The words "the contract, though required to be registered, has not been registered, or," omitted by Act 48 of 2001, sec. 10 (w.e.f. 24-9-2001)] where there is an instrument of transfer, that the transfer has not been completed in the manner prescribed therefore by the law for the time being in force, the transferor or any person claiming under him shall be debarred from enforcing against the transferee and persons claiming under him any right in respect of the property of which the transferee has taken or continued in possession, other than a right expressly provided by the terms of the contract; Provided that nothing in this section shall affect the rights of a transferee for consideration who has no notice of the contract or of the part performance thereof." 13. The provision of Section 53A is popularly known as doctrine of part performance. This Section is based on principles of equity and it applies to a contract to transfer immovable property for consideration. Section 53A safeguards a valid and lawful possession to an immoveable property transferred pursuant to a registered instrument. The doctrine of part performance can be applied where it is shown that there is a contract to transfer for consideration of immoveable property and the contract is evidenced by a writing signed by the person sought to be bound by it and registered as per the provisions of the Indian Registration Act and from which the terms necessary to constitute the transfer can be ascertained with reasonable certainty. These are pre-requisites to invoke the equitable doctrine of part performance and it must also be shown that a transferee had in part performance of the contract either taken possession of the property or any part thereof or the transferee being already in possession continues in possession in part performance of the contract and has done some act in furtherance of the contract. 14. The plaintiffs by their pleadings and by adducing overwhelming evidence proved the fact that defendant No. 1 in the last part of October, 2008 proposed to sell the suit land at a market price of ` 21,00,000/- and the plaintiffs agreed to the proposal and accordingly on 13.11.2008 an agreement was prepared and signed by the plaintiffs and the defendant No. 1 and the plaintiffs also asserted that they paid 18,65,000/- as a part of the consideration money of 21,00,000/- and that has been clearly mentioned in the deed of agreement and that deed of agreement was executed in presence of P.Ws 5, 6 and 7 in the house of the defendant No. 1. P.W. 3 is the Scribe of Exhibit-3. He clearly stated that he is an Advocate's Clerk by profession and that on 13.11.2008 plaintiff No. 5 (P.W. 1) and defendant No. 1 approached him to prepare an agreement of sale for the land belonged to the defendant No. 1 which defendant No. 1 proposed to sell to the plaintiffs at a price of 21,00,000/- and accordingly, he asked defendant No. 1 to purchase a stamp paper and the defendant No. 1 accordingly purchased a non-judicial stamp and handed over it to him and thereafter he accompanied plaintiff No. 5 and defendant No. 1 to the house of defendant No. 1 where he prepared the draft deed of agreement of sale and thereafter when both party agreed, he got it computer typed and returned to the house of defendant No. 1 and the defendant No. 1 as well as the plaintiffs thereafter signed the deed and the plaintiffs paid cash amount of 18,65,000/- to defendant No. 1 and the deed was also signed by the witnesses i.e. P.Ws. 5, 6 and 7. 5, 6 and 7. On perusal of Exhibit-3, I find that the agreement was prepared in vernacular clearly stipulating therein the terms of the agreement of sale of the suit land a price of 21,00,000/- and an advance payment of 18,65,000/- was paid to meet then urgent need of money of defendant No. 1 and it was clearly stipulated in the deed that within 7 months from the deed of agreement, the defendant No. 1 on receipt of rest amount of 2,35,000/- will execute the sale deed. On perusal of Exhibit-3, the agreement, I find that the non-judicial stamp was purchased by defendant No. 1 since the Stamp Vendor made an endorsement writing the name of defendant No. 1 in the back page of the non-judicial stamp. The assertions of defendant No. 1 that he knew nothing about the purchase of stamp, therefore, fall flat. The defendant No. 1 in his pleadings and evidence brought a story that he time to time borrowed money from the plaintiffs for the purpose of his contract work business and the money was lying due to be paid and that the plaintiff No. 1 with a stamp paper came to his house and obtained his signature proposing that it will be used as a security towards the money due to be paid and the plaintiffs fraudulently created a deed of agreement on that stamp paper. The defendant No. 1 while admitted his signature in the stamp paper and while did not take any step thereafter even after issuance of Advocate's Notice, had he signed in blank paper, makes it evident that the defendant set up a cock and bull story to avoid execution of sale deed. In his cross examination, the defendant No. 1 stated that in his written statement or in his evidence he has not mentioned the date, time and place about his putting of signature in blank stamp paper. He has not issued any notice upon the plaintiffs for returning the stamp paper and semi paper on which he had alleged that he put his signature on blank paper. He did not give any reply and did not initiate any proceeding on receipt of lawyer's notice for execution of deed in favour of the plaintiffs based on the notice issued by the plaintiffs. He did not complain to any legal forum on receipt of the legal notice from the plaintiffs. He did not give any reply and did not initiate any proceeding on receipt of lawyer's notice for execution of deed in favour of the plaintiffs based on the notice issued by the plaintiffs. He did not complain to any legal forum on receipt of the legal notice from the plaintiffs. In his written statement and in his evidence, he did not deny that he had taken 18,65,000/- from the plaintiffs in cash. 15. In his pleadings defendant No. 1 stated that plaintiff No. 1 with one blank stamp paper obtained his signature but he has signed not only on one stamp paper but also on 3 (three) more semi papers on which Exhibit-3, the agreement, was written. The defendant No. 1 further stated that at the time when he signed the blank papers, Satya Gopal Banik, Sunil Ch. Saha, Sekhar Das and Parimal Sana were present. Out of them, he examined Satya Gopal Banik and Sunil Ch. Saha and they stated a most interesting story that the defendant No. 1 brought money from them and to ask defendant No. 1 to return the money both of them were on way to the house of defendant No. 1 and they met on the way and thereafter they went to the house of defendant No. 1 and found defendant No. 1 to sign in blank paper. The story narrated by D.Ws. 1 and 2 in support of defendant No. 1 appears to be a concocted story only to make out a case in favour of the defendant No. 1 and nothing else. 16. Exhibit-3, the agreement of sale has been proved with overwhelming evidence. The story set up by defendant No. 1 that he borrowed money from the plaintiffs and therefore, certain amount was due to be paid for which as a matter of security he was alleged to have asked to sign blank stamp papers seems to be a false story since neither in his pleadings, nor in his evidence the defendant No. 1 stated anything as to what was the amount due to the particular plaintiffs since the defendant categorically stated that he took individual loan from all the plaintiffs and therefore, all the plaintiffs were in a common platform. Since the defendant No. 1 neither in his pleadings nor in his evidence stated a single word as to what was the amount due to be paid to the particular plaintiffs and since in his cross examination he clearly admitted that he neither pleaded nor given evidence denying receipt of 18,65,000/-, his story of signing blank papers appear to be a downright falsehood and nothing else. The plaintiffs by adducing both oral and documentary evidence proved the agreement of sale and the trial Court as it appears utterly failed to construe the same in its true perspective. 17. The plaintiffs instituted the suit for specific performance of contract with consequential relief. The plaintiffs nowhere set up any claim under Section 53A of T.P. Act since such a claim is not legally entertainable to a plaintiff. Simply because the plaintiffs stated that they were put in possession, it will be totally out of place to draw the provision of Section 53A and to out suit the plaintiffs. 18. Section 17(1A) of the Registration Act prescribes thus:- "(1A) The documents containing contracts to transfer for consideration, any immovable property for the purpose of section 53A of the Transfer of Property Act, 1882 (4 of 1882) shall be registered if they have been executed on or after the commencement of the Registration and Other Related laws (Amendment) Act, 2001 and if such documents are not registered on or after such commencement, then, they shall have no effect for the purposes of the said section 53A.]" 19. The trial Court drawing inference to the above provision has arrived at a conclusion that Exhibit-3 is a void document and it has got no value. This decision of the trial Court is without any merit and contrary to law. A specific performance of contract may be claimed based on even an oral agreement. It is not necessary that an agreement for sale is always required to be written and registered. Based on oral agreement also a decree of specific performance is permissible by law. Here in this case the plaintiffs proved with material evidence that the written agreement signed on 13.11.2008 i.e. Exhibit-3. The trial Court utterly failed to construe that document and the evidence on record. The trial Court though quoted Section 49 of the Registration Act but has totally ignored the same. 20. Section 49 of the Registration Act reads as follows:- "49. The trial Court utterly failed to construe that document and the evidence on record. The trial Court though quoted Section 49 of the Registration Act but has totally ignored the same. 20. Section 49 of the Registration Act reads as follows:- "49. Effect of non-registration of documents required to be registered.--No document required by section 17[or by any provision of the Transfer of Property Act, 1882 (4 of 1882)], to be registered shall-- (a) affect any immovable property comprised therein, or (b) confer any power to adopt, or (c) be received as evidence of any transaction affecting such property or conferring such power, unless it has been registered: [Provided that an unregistered document affecting immovable property and required by this Act or the Transfer of Property act, 1882 (4 of 1882), to be registered may be received as evidence of a contract in a suit for specific performance under Chapter II of the Specific Relief Act, 1877 (3 of 1877), or as evidence of any collateral transaction not required to be effected by registered instrument.] 21. The above proviso makes it clear that an unregistered document affecting immoveable property and required by the Registration Act or by the T.P. Act to be registered may be received as evidence of a contract in a suit for specific performance under Chapter-II of the S.R. Act or as evidence of the collateral transaction not required to be effected by registered instrument. 22. In the present case the unregistered written agreement has been proved with overwhelming evidence. It is admissible for the purpose of a suit for specific performance of contract under Chapter-II of the S.R. Act. Section 10 of the S.R. Act prescribes that the specific performance of any contract may in the discretion of the Court be enforced where there exists no standard for ascertaining actual damage caused by the non performance of the Act agreed to be done or when the Act agreed to be done is such that compensation in money for its non-performance would not afford adequate relief. Explanation (i) to Section 10 prescribes that the breach of contract to transfer immovable property cannot be adequately relieved by compensation in money. 23. Here, in the present suit, the plaintiffs brought the suit for specific performance of contract with specific pleadings and evidence. The suit is found to be maintainable by the trial Court also. Explanation (i) to Section 10 prescribes that the breach of contract to transfer immovable property cannot be adequately relieved by compensation in money. 23. Here, in the present suit, the plaintiffs brought the suit for specific performance of contract with specific pleadings and evidence. The suit is found to be maintainable by the trial Court also. The trial Court while deciding issue No. 2 discarded the written agreement (Exhibit-3) only invoking Section 53A of T.P. Act which is found to be totally unwarranted. 24. The judgment and decree of dismissal passed by the trial Court, therefore, is liable to be interfered and set aside. 25. From the pleadings and evidence on record, it is evident that the defendant Nos. 2 and 3 are bona fide purchasers of a part of suit land by dint of Exhibit-5 and Exhibit-6 and also by dint of Exhibit-7, the agreement. By dint of Exhibit-5, the defendant No. 2 purchased .059 acres of the suit land and the defendant No. 3 purchased .058 acres of the suit land by dint of Exhibit-6 with specific boundary. By dint of Exhibit-7, the agreement, signed between defendant No. 1 and the defendant Nos. 2 and 3, the defendant Nos. 2 and 3 further got a path way measuring .022 acres. Since the agreement between the plaintiffs and defendant No. 1 is an unregistered instrument and since the defendant No. 1 as well as defendant Nos. 2 and 3 stated that defendant Nos. 2 and 3 had no knowledge about the agreement between the plaintiffs and defendant No. 1 and further since the plaintiffs failed to prove that the defendant Nos. 2 and 3 had the knowledge of the agreement between them and defendant No. 1, the purchase by the defendant Nos. 2 and 3 is liable to be termed as bona fide purchase and therefore, is liable to be protected. I am, therefore, of the opinion that the trial Court rightly decided issue No. 6 against the plaintiffs and the plaintiffs are not entitled to get any decree for the land already sold and given under agreement to the defendant Nos. 2 and 3. 26. Out of the suit land, the defendant No. 1 already sold .117 acres of land to defendant Nos. 2 and 3. 26. Out of the suit land, the defendant No. 1 already sold .117 acres of land to defendant Nos. 2 and 3 by dint of Exhibit-5 and 6 and by dint of Exhibit-7 another .022 acres of land has been given by the defendant No. 1 to defendant Nos. 2 and 3 as path way. So in total the defendant No. 1 already disposed of .139 acres of land in favour of the defendant Nos. 2 and 3 out of total .240 acres of suit land. The defendant No. 1 is, therefore, bound to execute sale deed for the rest area of .101 acres of suit land in favour of the plaintiffs retaining 8,83,750/- out of the advanced amount of 18,65,000/- and the rest amount of 9,81,250/- the defendant No. 1 is bound to return to the plaintiffs with interest thereon. 27. The suit is accordingly partly decreed. The defendant No. 1 is directed to execute the registered deed of sale in favour of the plaintiffs for. 101 acres of the remaining suit land within 45 days from the date of appellate decree failing which the plaintiffs will be entitled to get the sale deed executed through Court as per law. The defendant No. 1 is further directed to return the remaining amount of 9,81,250/- with 10% interest thereon from 13.11.2008 to the plaintiffs within 45 days from the date of appellate decree failing which the plaintiffs will be entitled to recover the amount from the defendant No. 1 in due process of law. 28. The appeal is accordingly partly allowed with costs throughout. Send back the L.C. record along with a copy of this judgment.