ORDER : 1. Heard Mr. B. Banerjee, learned senior counsel for the appellants. None appears for the respondents. 2. This appeal by the plaintiff is preferred against the judgment and decree dated 29.6.2005 passed by the learned Civil Judge (Senior Division), Golaghat in Title Appeal No. 16/2004 reversing the judgment and decree dated 18.10.2004 passed by the learned Civil Judge (Junior Division), Golaghat in Title Suit No. 10/2002, whereby suit of the plaintiff was decreed. 3. Though it was not specifically mentioned in the judgment of the learned trial court that the counter-claim was rejected, in view of the decision in issue No. 7 rejecting the claim of the defendant for compensation, it must be taken that the counter-claim was dismissed. 4. The plaintiff filed the suit for specific performance of contract for sale of a plot of land for a consideration amount of Rs. 10,000/-. The plaintiff had sold to the defendant said plot of land measuring 1 bigha 1 katha described in the schedule to the plaint by executing and registering a sale deed dated 26.5.1997. On the very same day, an agreement was executed by the defendant whereby he agreed that on return of the said sum of Rs. 10,000/- by the plaintiff within a week of expiry of five years, the defendant will execute a re-conveyance deed in respect of the suit property. It is pleaded that the plaintiff, after arranging the sum of Rs. 10,000/-, went to the defendant’s house on 12.5.2002 and expressed his readiness and willingness to perform his part of the contract and requested the defendant to accept the money but the defendant expressed his unwillingness to perform his part of the contract by raising some flimsy grounds. A registered notice dated 14.5.2002 was issued through an Advocate informing the defendant that the plaintiff would be ready with the consideration amount at the office of the Bar Association on 28.5.2002 and asking the defendant to be present there to receive the money and to execute the deed of re-conveyance in favour of the plaintiff. The defendant, instead, sent a reply to the Advocate of the plaintiff on 23.5.2002 levelling some false allegations against the plaintiff and demanded compensation. It is also pleaded that on the appointed date, i.e., on 28.5.2002, the plaintiff, accompanied by Gaonbura and other villagers, went to office of the Bar Association but the defendant failed to turn up. The defendant, instead, sent a reply to the Advocate of the plaintiff on 23.5.2002 levelling some false allegations against the plaintiff and demanded compensation. It is also pleaded that on the appointed date, i.e., on 28.5.2002, the plaintiff, accompanied by Gaonbura and other villagers, went to office of the Bar Association but the defendant failed to turn up. 5. A written statement alongwith a counter-claim was filed by the defendant stating that on 1.6.2001 the plaintiff along with his son trespassed into the suit land and therefore, he had no alternative but to file a case under Section 145 Cr. P.C. and therefore, the plaintiff is bound to pay compensation in view of breach of agreement. It is also averred that because of the wrongful act of the plaintiff, the defendant had sustained loss and damage to the tune of Rs. 4,000/- as he was deprived of the produce of the land. A declaration was prayed for that the agreement dated 26.05.1997 is not enforceable in law. A sum of Rs. 3,000/- was also claimed towards expenditure incurred in connection with filing of Misc. Case No. 37/2001 which had to be initiated by the defendant. The plaintiff also filed a written statement against the counter-claim of the defendant stating that a false case was lodged by the defendant as the plaintiff did not resort to any act of dispossessing the defendant. 6. On the basis of the pleadings, the learned trial court framed the following issues: “(i) Whether there is any cause of action for the suit? (ii) Whether the suit is barred by law of estoppel? (iii) Whether on 12.5.2002 the plaintiff approached the defendant to perform his part of contract in terms of agreement dated 26.5.1997? (iv) Whether the defendant refused to perform the re-conveyance of the suit land in favour of the plaintiff? (v) Whether the plaintiff along with his son, on 1.6.2001, trespassed into the suit land by breaching of contract? (vi) Whether the plaintiff has extinguished his right over the suit land by trespassing into it before expiry of the contract dated 26.5.1997? (vii) Whether the defendant is entitled to get compensation of Rs. 4,000/- from the plaintiff by way of counter-claim? (viii) Whether the plaintiff is entitled to get khas possession of suit land by evicting the defendant? (vi) Whether the plaintiff has extinguished his right over the suit land by trespassing into it before expiry of the contract dated 26.5.1997? (vii) Whether the defendant is entitled to get compensation of Rs. 4,000/- from the plaintiff by way of counter-claim? (viii) Whether the plaintiff is entitled to get khas possession of suit land by evicting the defendant? (ix) Whether the defendant is liable to execute a registered sale deed in favour of the plaintiff for specific performance of contract for re-sale? (x) To what relief/reliefs, the parties are entitled to?” 7. During trial, plaintiff examined four witnesses while the defendant examined two witnesses. Both the parties exhibited a number of documents. 8. At this stage, it may be noted that the deposition of the witnesses examined on behalf of the plaintiff was expunged as they did not turn up for cross-examination. The learned trial court held that there was admission on the part of the defendant that the plaintiff was present in the office of the Bar Association on 28.5.2002 and, accordingly, it was held that the plaintiff wanted to perform his part of the contract as per the agreement dated 26.5.1997. The learned trial court held that the DW1 admitted in his cross-examination that he was in possession of the suit land and was taking the produce of the land. 9. The learned lower appellate court held that Ext. 1, introduced by the plaintiff, which is the agreement dated 26.5.1997 for return of the land, could not have been taken into consideration as the same was not a registered document, despite the admission by the defendant regarding existence of such an agreement. The learned lower appellate court also held that the defendant is entitled to get Rs. 4,000/- as compensation. It was held that the defendant is also entitled to compensation of Rs. 3,000/- under Section 35(A) of the CPC. 10. This Second Appeal was admitted to be heard by an order dated 25.11.2005 on the following substantial questions of law: “(i) Whether the learned court below is justified in reversing the judgment and decree passed by the learned lower appellate court on the ground that Exhibit-1 is compulsorily registerable document under Section 17(b) of the Registration Act, on the face of an admission of existence of the said document by the parties. (ii) Whether the learned lower appellate court erred in law while considering the counter claim running counter to the admission of the defendant/respondent.” 11. Mr. Banerjee, learned senior counsel for the appellant has submitted that the learned lower appellate court was not correct in rejecting Ext. 1 on the face of admission by the defendant on the ground that Ext. 1 was required to be registered. It is submitted that the agreement dated 26.5.1997 does not come within the purview of Section 17(b) of the Registration Act, 1908. It is submitted that the plaintiff being ready and willing, the learned lower appellate court committed manifest error of law in reversing the judgment of the learned trial court. It is also submitted that the defendant, in his cross-examination, had admitted that he was in possession of the suit land till 2002 and, if that be so, there was no question of his being dispossessed in the year 2001 as claimed by him. According to Mr. Banerjee, the learned lower appellate court wrongly allowed the counter-claim and also granted compensation of Rs. 3,000/- under Section 35 (A) CPC without giving any reason. 12. I have considered the submission of Mr. Banerjee, learned Senior counsel and also perused the records. 13. On the first substantial question of law, I am inclined to agree with Mr. Banerjee. The document in question, Ext. 1, is not a document which falls within the ambit of Section 17(b) of the Registration Act, requiring compulsorily registration as Ext. 1 does not purport or operate to create, declare, assign, limit or extinguish, whether in present or in future, any right, title or interest, whether vested or contingent, of the value of one hundred rupees, and upwards, to or in immovable property. As the evidence of the plaintiff was expunged, in normal course, Ext. 1 could not have been taken into consideration at all. But the defendant, in the written statement cum counter-claim as well as in the evidence adduced, had admitted the execution of Ext. 1 and existence of the agreement. On that count, even if it is held that Ext. 1 can be looked into, it will have to be seen as to whether the plaintiff performed his part of the contract in order to entitle him to a decree of specific performance. 1 and existence of the agreement. On that count, even if it is held that Ext. 1 can be looked into, it will have to be seen as to whether the plaintiff performed his part of the contract in order to entitle him to a decree of specific performance. It must be remembered that there was no evidence of the plaintiff on record due to expunging of the evidence to demonstrate readiness and willingness to perform his part of the contract, which alone would have required the defendant to execute the sale deed in favour of the plaintiff. 14. Ext. 1 recited that if within one week of five years from 26.5.1997, the plaintiff returned the sum of Rs. 10,000/- to the defendant, the defendant will execute the sale deed and return back the land to the plaintiff. The learned trial court held that there is an admission on the part of the defendant which demonstrated readiness and willingness of the plaintiff and it is on that premise, specific performance of the contract was decreed. In the evidence of defendants, I do not find any such admission. In order to enable the plaintiff to get a decree of specific performance on the basis of admission of the defendant, notwithstanding the fact that there is no evidence on the side of the plaintiff, the admission has to be clear, unambiguous and categorical. There is no evidence from the side of the defendant that after expiry of five years on 26.5.2002, the plaintiff approached the defendant within a period of seven days with the sum of Rs. 10,000/- and requested him to perform his part of the contract. It is admitted by defendant that a notice was issued on 14.5.2002 before the expiry of the term indicating that the defendant should come to a particular place to receive the money on 28.5.2002. This cannot be construed to be an admission by the defendant that the plaintiff performed his part of the contract. There was no overt action by the plaintiff within the period of seven days after 26.5.2002 in terms of Ext. 1. The statement made by the plaintiff that he along with some others was present in the Bar Association office at Golaghat with the money cannot be taken into consideration as evidence on the side of the plaintiff had been expunged. 1. The statement made by the plaintiff that he along with some others was present in the Bar Association office at Golaghat with the money cannot be taken into consideration as evidence on the side of the plaintiff had been expunged. The plaintiff, in the circumstances, cannot take any advantage of so called admission on the part of the defendant demonstrating plaintiff’s readiness and willingness, which the plaintiff himself had failed to show. 15. In that view of the matter, I am unable to hold that the plaintiff is entitled to a decree for specific performance, not on the ground on which the appeal of the defendant was allowed by the learned lower appellate court but on the grounds mentioned herein above. So far as the counter-claim is concerned, I find from the evidence of DW 1 that he was cultivating the suit land till 2002 and was taking the produce of the land. If the defendant was cultivating the suit land till 2002 and taking the yield, there was no occasion for him to sustain loss on the ground of alleged dispossession by the plaintiff. In that view of the matter, the counter-claim could not have been decreed in favour of the defendant. 16. No reasons have been assigned by the learned lower appellate court for grant of compensatory cost under Section 35(A) of CPC. Failing to prove a case does not mean making of a false or vexatious claim. No finding has been recorded by the learned lower Appellate Court that the claim of the plaintiff is false or vexatious. The defendant had admitted execution of Ext. 1 and, therefore, it cannot be said that the plaintiff had made a false and vexatious claim. It is another matter that the plaintiff could not prove his readiness and willingness to entitle him to get a decree for specific performance. Failure to prove the case cannot be equated with a false and vexatious claim. 17. In that view of the matter, grant of compensation of Rs. 3,000/- under Section 35(A) of the CPC is also set aside. The substantial question of law No. 2 is answered in terms of the above. 18. Accordingly, in view of the above discussions, the appeal is partly allowed. The suit of the plaintiff is dismissed. 17. In that view of the matter, grant of compensation of Rs. 3,000/- under Section 35(A) of the CPC is also set aside. The substantial question of law No. 2 is answered in terms of the above. 18. Accordingly, in view of the above discussions, the appeal is partly allowed. The suit of the plaintiff is dismissed. The impugned judgment of the learned lower appellate court decreeing the counter-claim and grant of compensation under Section 35(A) of the CPC is set aside. Net result is that the suit of the plaintiff as well as the counter-claim of the defendant stands dismissed. No cost. 19. The Registry will send back the records.