JUDGMENT AND ORDER : Prasanta Kumar Deka, J. Heard MS. R. Choudhury, learned counsel appearing on behalf of the appellant. So far the respondents are concerned, none has appeared. From the case record, it is seen that the sole respondent Bhupen Ch. Chanda died and the appellant filed applications for substitution of the sole respondent by his legal heirs. However, there was delay in filling the substitution petition including setting aside the abatement and as such a petition U/s 5 of the Limitation Act, 1963 was also filed which was numbered as I.A. 877/2015. From the office note in I.A. No. 877/2015, more specifically office note dated 03/10/2015 it is apparent that due notices were served upon the substituted legal heirs of Late Bhupen Ch. Chanda. Though, the said legal heirs were not represented in the said I.A. No. 877/2015 even then this Court considering the office note dated 03/10/2015 allowed to condone the delay in preferring the substitution petition and for setting aside the abatement thereof. Accordingly, the names of the legal heirs of the sole respondent Late Bhupen Ch. Chanda have been recorded in the present second appeal. As the said substituted legal heirs failed to enter appearance in this appeal and considering this appeal to be an old pending one this matter has been taken up for hearing and disposal thereof. 2. Late Bhupen Ch. Chanda, the plaintiff/respondent filed Title Suit No. 43/1988 in the then Court of the learned Civil Judge (J.D) No. 1, Karimganj, against the predecessor-in-interest of the appellant Late Renubala Dhar and her sister, Smti Archana Chakraborty (Dhar) for specific performance of contract of an oral agreement dated 03/01/1996 with respect to sale of a plot of land mentioned in the Schedule of the plaint. The plaintiff/respondent stated that the appellant/defendants were the owners of the suit land and both the plaintiff/respondent and the defendant/appellant jointly entered into an agreement for sale of the suit land verbally in presence of Binoy Krishna Chanda and others and price of suit land was fixed at Rs. 11,000/- which the defendant/appellants had already received on 05/01/1996 in presence of the said Binoy Krishna Chanda and others. On receipt of the consideration the defendant/appellant delivered possession of the suit land on the same date i.e on 05/01/1996 in presence of the persons aforesaid. 11,000/- which the defendant/appellants had already received on 05/01/1996 in presence of the said Binoy Krishna Chanda and others. On receipt of the consideration the defendant/appellant delivered possession of the suit land on the same date i.e on 05/01/1996 in presence of the persons aforesaid. Further, it is pleaded that the suit land which is agricultural one and for the purpose of obtaining sale permission both the parties i.e plaintiff/respondent and the defendant/appellants signed the permission application form on 05/01/1996 which was handed over to the scribe one Hafiz Abdul Jalil. Subsequently, the defendant/appellants failed to act as per oral contract dated 03/01/1996 and as such the suit was filed with the following prayers :- (a) For a declaration that the defendants are bound to execute proper sale deed in respect of landed property as described in the schedule below in favour of plaintiff in pursuance of verbal contract dated 03/01/1996 and also in pursuance of receipt of total consideration money amounting to Rs. 11,000/- by the defendants as well as delivery of possession of the suit land on 05/01/1996 by the defendants in favour of the plaintiff. (b) For execution and registration of the sale deed in respect of suit land as described in the schedule below, a direction to be issued upon the defendants and in case of failure of the defendants to do so, the above named plaintiff is entitled to get proper sale deed of the Suit land as described in the schedule below through above learned Court. (c) For a permanent injunction restraining the defendants from alienating the suit property as described in the schedule below to any other person and also to restrain the defendants not to handover the said land to any other person and also not to disturb the peaceful possession of the plaintiff over the suit land as described in the schedule below and also to confirm the plaintiff's possession thereon. (d) For awarding full cost of the suit. (e) For such other further relief as the learned Court deem fit and proper. 3. The defendant/appellants contested the suit by filling joint written statement and pleaded that there was no cause of action for the suit and the suit was not maintainable. (d) For awarding full cost of the suit. (e) For such other further relief as the learned Court deem fit and proper. 3. The defendant/appellants contested the suit by filling joint written statement and pleaded that there was no cause of action for the suit and the suit was not maintainable. Further defence of defendant/appellant was also that the suit land along with some other land was inherited by the defendant/appellant from their father and that the defendant/appellant got the suit land cultivated by the engaged labour for cultivation of 'Sali' paddy thereon. Further defence of the appellant/defendants was that the plaintiff/respondent who was a retired BSF jawan entered into his service through the father of the appellant/defendants. After death of the father of the appellant/defendant the plaintiff/respondent acted as a mediator in transfer of land of the defendant/appellants and at that time the plaintiff/respondent handled documents of defendant/appellants properties. It was also pleaded that there was no agreement with the plaintiff/respondent and the defendant/appellants for sale of suit land and that the agreement for sale or transaction of money or delivery of possession to the plaintiff/respondent were totally false and as such the suit was liable to be dismissed. 4. On consideration of the pleadings of both the parties, the learned trial Court framed the following issues :- (a) Is there any cause of action for the suit ? (b) Whether the plaintiff is entitled to get a decree as prayed for ? (c) To what relief if any the plaintiff is entitled ? Additional issue : (I) Whether there was any oral contract between plaintiff and defendants for sale of a suit land ? 5. The plaintiff/respondent side examined 2 witnesses and submitted 2 exhibits i.e exhibit-1, the land record of the suit land and exhibit-2, the prescribed form for application for obtaining sale permission. Defendant side also examined 2 witnesses. The learned trial court after hearing the parties, vide Judgment and decree dated 28/06/2002 decreed the suit in favour of the plaintiff/respondent. 6. Being aggrieved, the defendant/appellant preferred Title Appeal No. 69/2002 in the Court of the learned Civil Judge (Senior Division), Karimganj. The learned First appellate Court upon hearing the parties in the first appeal also dismissed the appeal upholding the judgment and decree passed by the learned Civil Judge (Junior Division). 6. Being aggrieved, the defendant/appellant preferred Title Appeal No. 69/2002 in the Court of the learned Civil Judge (Senior Division), Karimganj. The learned First appellate Court upon hearing the parties in the first appeal also dismissed the appeal upholding the judgment and decree passed by the learned Civil Judge (Junior Division). The appellant/defendants thereafter has preferred this Second appeal against the judgment and decree passed in Title appeal No. 69/2002 dated 14/07/2004. 7. The said Second appeal was admitted on 15/12/2004 on the following substantial questions of law :- "(a) Whether the suit is hit by the provisions of section 14,16 and 22 of the Specific Relief Act, 1963. (b) Whether the courts below misread and misconstrued the evidence relating to claim of possession of the suit land by both the parties." 8. Ms. R. Choudhury appearing on behalf of the appellant submits that both the courts below had failed to appreciate the materials on record in the proper perspective. In fact both the Court below failed to consider that in a case wherein the plaintiff prayed for a decree for specific performance of a contract which is a oral one, heavy burden lies upon the plaintiff to proof that there was an agreement for sale of a particular plot of land and both the plaintiff and the defendant were "ad-idem" to the stipulation of the agreement. MS. Choudhury further submits that as per the agreement dated 03/01/1996, the total consideration for the sale transaction was Rs. 11,000/- and the same was handed over to the appellant/defendants by the plaintiff/respondent in presence of various persons including the one, Shri Binoy Ch. Chanda. Not only that, the agreement which is an oral one, was also entered into between the parties to the suits in presence of witnesses including the said Binoy Ch. Chanda and various other persons however, the said Binoy Ch. Chanda who is vital witness to prove the oral agreement was not examined as a witness of the plaintiff side. Not only that, MS. Chanda and various other persons however, the said Binoy Ch. Chanda who is vital witness to prove the oral agreement was not examined as a witness of the plaintiff side. Not only that, MS. R. Choudhury further submits that the fact of possession being delivered to the respondent/plaintiff was a term agreed to by both the parties to the suit as per the oral agreement dated 03/01/1996 and in pursuance of the said agreement and the plaintiff/respondent has claimed that the suit land was delivered possession by the appellant/defendant as per the term of the agreement and that too in presence of witnesses also. However, the plaintiff/respondent failed to prove :- No.1 That there was an oral agreement and there was consensus ad-idem with the terms of the said agreement between the parties to the suit while entering into said agreement. No.2 That the consideration of Rs. 11,000/- was dully acknowledge on receipt of the same by the appellant/defendants. That the signature in the exhibit-2 (permission form) was done by the appellant/defendant. As such the appeal must be allowed in as much as the relief of specific performance of contract for sale is not a routine procedure but it is the discretion of the court and that too in consideration of the various acts performed by the parties to the suit and the burden is on the plaintiff to prove that on his part, he has performed all the stipulations agreed to by the parties and the defendant on his part had failed to carry out the transactions stipulated in the said agreement. MS. R. Choudhury has relied K. Nanjappa (dead) by L.R. v. R.A. Hameed Alias Ameersab (dead) by L.R. and another reported in 2016 (1) SCC 762 and take this Court to para 22 which is reproduced herein below :- A decree for specific performance can be granted on the basis of oral contract. However, in a case where the plaintiff comes forward to seek a decree for specific performance of contract of sale of immovable property on the basis of an oral agreement or a written contract, heavy burden lies on the plaintiff to prove that there was consensus ad-idem between the parties for the concluded agreement for sale of immovable property. However, in a case where the plaintiff comes forward to seek a decree for specific performance of contract of sale of immovable property on the basis of an oral agreement or a written contract, heavy burden lies on the plaintiff to prove that there was consensus ad-idem between the parties for the concluded agreement for sale of immovable property. Whether there was such a concluded 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 of sale of immovable property were concluded between the parties. 9. MS. Choudhury, further relied Brij Mohan and others v. Sugra Begum and others reported in 1990 (4) SCC 147 and pointed out to para 20 of the said judgment which is reproduced herein below :- 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. As such MS. Chourdhury prays for allowing the present second appeal. 10. As such MS. Chourdhury prays for allowing the present second appeal. 10. Thus in a case of oral agreement for sale of immovable property put in for Specific performance of the said agreement for immovable property a duty is cast upon each and every court to enter into the facts of the case and to examine the materials therein for application of the discretion as required U/s 20 of the Specific Relief Act, 1963 in granting and/or decreeing Specific performance. 11. Perused the case record and the evidence of the witnesses of both the parties. From the cross-examination of PW-1(Gopendra Chanda) it is found that in his cross-examination he deposed that defendant No.2 (Archana Rani Dhar) called him to the house of Monju Chanda at village Deotali on 03/01/1996 and she told him that she wanted to sell the land and whether he wanted to purchase the same. Further the PW-1 deposed that the matter of selling the suit was settled in presence of Monju Chanda @ Binoy Krishna Chanda. The said PW-1 further deposed that the appellant/defendant No.2 demanded Rs. 11,000/- which the PW-1 was not ready to pay but due to intervention of Binoy Krishna Chanda, the PW-1 agreed to pay the appellant/defendant No. 2 Rs. 11,000/- which he paid on 05/01/1996 and after putting her signature in the permission form took her, appellant/defendant to Karimganj Sub-Registry office. The said deposition is not in conformity with the pleadings in the plaint of the plaintiff/respondent as apparent in para 6. The pleaded case of the plaintiff/respondent is that the defendant/appellants jointly entered into a contract for sale verbally on 03/01/1996 in presence of Binoy Krishna Chanda and others and the defendant/appellants jointly accepted the total consideration of Rs.11,000/- on 05/01/1996 in presence of Binoy Krishna Chanda, Gobinda Das and Manik Das of village Deotali from the Plaintiff/respondent and the said defendant/appellants jointly delivered possession of the suit land to the plaintiff/respondent on 05/01/1996 in presence of the aforesaid persons namely Binoy Krishna Chanda, Gobinda Das and Manik Das. 12. PW-1 In his cross-examination further deposed that he took the form of exhibit-2 from Abdul Jalil on the same day but he did not informed any time when he would submit the same for obtaining the permission. This is also in contra to the pleadings in para 7 of the plaint. 12. PW-1 In his cross-examination further deposed that he took the form of exhibit-2 from Abdul Jalil on the same day but he did not informed any time when he would submit the same for obtaining the permission. This is also in contra to the pleadings in para 7 of the plaint. In the plaint the plaintiff/respondent pleaded that on 05/01/1996 the signed application form for transfer of agricultural land was handed over to the engaged Moharer Abdul Jalil for submission in the office of the Deputy Commissioner, Karimganj, therefore the following day defendant No.2 went to the house of the engaged Moharer and requested him to defer submission of permission form as because the defendants would not be available for one month for personal affairs. The PW-2 Mohammad Hafiz Abdul Jalil in his cross-examination denied the suggestion that exhibit-2 contains writings of different persons. This denial is on the face of his deposition in the cross-examination that in exhibit-2, he found the names of Gopendra Ch. Chanda, Renubala Dhar and Archana Rani Dhar were written and the plaintiff as PW-1 in his cross-examination deposed that he after paying the sale consideration of Rs. 11,000/- took the signature of defendant No.2 whereafter she was taken to the Karimganj Sub-Registry office. The evidence of the PW-2 has dislodged the pleadings of the plaint that both the appellant/defendants and the plaintiff/respondent had signed the form of application for transfer of agricultural land on 05/01/1996. 13. Perusing the cross-examination of DW-1, Archana Chakraborty @ Dhar one of the defendants and appellant, it is apparent that the DW-1 has denied the suggestion that they received Rs. 11,000/- in presence of Binoy Krishna Chanda and others on 05/01/1996. It was also denied by the DW-1 that the plaintiff/respondent has been occupying the suit land. However, she admitted in his cross that Binoy Krishna Chanda is residing at Deotali. Perused the evidence of DW-2, one Shri Kalyan Kanti Dhar who is the cousin of DW-1. In his chief he deposed that he cultivated the suit land for last 8 years and further denied that the plaintiff had possessed and cultivated over the suit land. However, the said fact of possession of Kalyan Kanti Dhar, DW-2 could not be dislodged even in the cross-examination. In his chief he deposed that he cultivated the suit land for last 8 years and further denied that the plaintiff had possessed and cultivated over the suit land. However, the said fact of possession of Kalyan Kanti Dhar, DW-2 could not be dislodged even in the cross-examination. From the perusal of the evidence on record it is pertinent to say that one of the vital witness ought to have been one Binoy Krishna Chanda so far the plaintiff is concerned who as per the pleadings in the plaint had and important role in the agreement entered into by the parties to the suit. As per the deposition of the plaintiff/respondent at the instances of Binoy Krishna Chanda he agreed to purchase the suit land and that too at a consideration of Rs. 11,000/-. The possession was delivered to the plaintiff/respondent by the defendant/appellants in presence of Binoy Krishna Chanda and two others. Binoy Krishna Chanda as deposed by DW-1 was still residing in the village Deotali. On such circumstances, Binoy Krishna Chanda ought to have been brought to the witness box to prove the case of the plaintiff/respondent. PW-1 also deposed in his cross-examination that the price of the paddy land in the said land was Rs. 40,000 to 50,000/- which goes to show that the suit land is a valuable land. 14. Now referring to the decisions relied by MS. Choudhury wherein the Apex Court has held that where the plaintiff came forward for seeking 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 plaintiff 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. 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. Keeping the law laid down by the Hon'ble Apex Court in view in the present case in hand, it appears that the burden of proof which the plaintiff/respondent ought to have discharged in proving that there was an oral agreement and both the parties agreed to term stipulated therein, that the consideration was accepted by the appellant/defendants and the same was acknowledged and the suit land was delivered possession to the respondent/plaintiff had not been discharged. As already concluded that Binoy Krishna Chanda was the vital witness with respect to the aforesaid facts as per the pleading in the plaint and non-examination of the said witness has clearly failed to inspire confidence on the deposition of the plaintiff/respondent and it is also difficult to hold that a concluded oral agreement for sale of immovable properties was entered into between the parties to the suit. Under the said circumstances both the learned court below had failed to adhere to the provisions of Specific Relief Act, 1963, more specifically section 20 of the said Act wherein the discretion lies with the Court in decreeing specific performance of contract. In K. Nanjappa (dead) by L.R. v. R.A. Hameed Alias (supra) the Hon'ble Apex Court has held that in a suit for specific performance of contract, the Court has to keep in mind section 20 of Specific Relief Act, 1963 which section preserve Judicial Discretion to grant decree for specific performance. The Court is not bound to grant specific performance merely because it is lawful to do so. The Court should meticulously consider all facts and circumstances of the case and to see that it is not used as an instrument of oppression to have an unfair advantage not only to the plaintiff but also to the defendant. Keeping the law as laid down by the Hon'ble Apex Court in view from the discussions as herein above mentioned both the learned Court below had wrongly applied the respective discretion in decreeing specific performance of contract of the alleged oral agreement dated 03/01/1996. Keeping the law as laid down by the Hon'ble Apex Court in view from the discussions as herein above mentioned both the learned Court below had wrongly applied the respective discretion in decreeing specific performance of contract of the alleged oral agreement dated 03/01/1996. Accordingly having gone through the facts and circumstances of the case and the materials on record including, the evidence on record I hereby set aside the judgment passed by the first appellate Court impugned herein the appeal. 15. Further the substantial questions of law, both Nos. 1 & 2 are decided in the affirmative and accordingly this appeal is allowed. No Cost. Send back the case record. Interim order if any passed earlier stands vacated.