JUDGMENT AND ORDER : 1. This is an appeal filed under Section 100 of the CPC from the judgment dated 29.09.2011 delivered in Title Appeal No.59 of 2006 by the Addl. District Judge, Court No.4, West Tripura, Agartala. 2. For hearing of the appeal the following substantial questions of law were framed by the order dated 03.04.2012: (i) Whether the first appellate Court has misread the pleadings of the parties while arriving at the conclusion as to the voidability of the agreement for sale? (ii) Whether the findings of fact as recorded by the first appellate Court as to the readiness and willingness of the appellant to purchase the suit property and as to the payment of earnest money and the existence of agreement for sale suffers from non-reading and mis-appreciation of the evidence as recorded by the learned trial Court? 3. The essential fact that would be relevant for appreciating the challenge may be introduced at the beginning. The appellant filed a suit for specific performance of a contract for sale being Title Suit No.11 of 1999 in the court of the Civil Judge (Senior Division), Court No.1, West Tripura, Agartala. 4. As pleaded by the plaintiff, the defendants No. 1, 2 and 3 are the joint owners of the Schedule-A land including the suit land as described in the Schedule-B of the plaint. In the month of September, 1993 the defendant No.4, the respondent No.4 herein informed the plaintiff, the appellant herein, that the defendants No.1, 2 and 3, now represented by the respondents No.1a, 1b, 1c, 1d, 1e, the respondent No.2 and respondents No. 3a, 3b and 3c proposed to sell the entire A-Schedule land and the defendant No.4 intended to purchase a plot of land therefrom. The defendant No.5 in the suit, namely Pulin Behari Majumder is the representative of the defendants No. 1, 2 and 3. The defendant No.5, the respondent No.5 in the original memorandum of appeal has been deleted at the risk of the appellant. Having received such information, the plaintiff met the defendant No.5 and expressed his intention to purchase a plot of land from the Schedule-A land. The plaintiff collected the address of the original defendant No.1, 2 and 3 from the defendant No.5 and met the defendant No.1 at his shop at Central Road, Agartala. 5. Having received such information, the plaintiff met the defendant No.5 and expressed his intention to purchase a plot of land from the Schedule-A land. The plaintiff collected the address of the original defendant No.1, 2 and 3 from the defendant No.5 and met the defendant No.1 at his shop at Central Road, Agartala. 5. At that time the defendant No.1 categorically stated that he would sell the entire A-Schedule land to a single purchaser or to the different purchasers but simultaneously. As such the plaintiff was asked to wait till the purchasers for the entire A-Schedule land are found. Thereafter, the plaintiff did not maintain contact with the defendant No.5. However, in the month of August, 1994, the plaintiff met the defendant No.1 again, but there was no clear assurance. On 07.06.1996, the plaintiff met the defendant No.1 at his shop at Central Road, Agartala being accompanied by the defendant No.5 and his neighbour Shri Narayan Majumder. The defendant No.5 discussed the matter, regarding sale and purchase of the A-Schedule land with the defendant No.1 in presence of the plaintiff and said Narayan Majumder. 6. From the discussion, the plaintiff came to learn that the A-Schedule land was divided into 4(four) plots. Out of which plot No.2 from the south was sold to one Shri Tapan Kumar Paul and others in 1994 and the eastern part of the plot was allegedly sold to one Nalini Debnath and plots No. 1, 3 and the western part of the plot No.4 remained unsold. The defendant No.1 on his behalf and on behalf of his sons, the defendants No. 2 and 3, proposed to sell the plot No.3 from the south with an area of 430 sq.ft. corresponding to 1 kara 2 krantas 19½ according to the local measurement to the plaintiff at a consideration of Rs.75,000/-. What is necessary to note that the plaintiff accepted to the proposal. corresponding to 1 kara 2 krantas 19½ according to the local measurement to the plaintiff at a consideration of Rs.75,000/-. What is necessary to note that the plaintiff accepted to the proposal. But he had no ready money for purchasing the suit land and the plaintiff proposed to enter into an agreement with the defendants No. 1, 2 and 3 on payment of a sum, being the earnest money, on stipulating a period within which the transfer would be affected by the registered instrument and in the same sitting on 07.06.1996, the defendant No.1 on his behalf and on behalf of his sons, the defendants No.2 and 3 was agreed to enter into agreement for sale as proposed by the plaintiff on payment of Rs.25,000/- being the earnest money. On the next day that is on 08.06.1996, at morning, the plaintiff alongwith the defendant No.5 and said Narayan Majumder went to the shop of the defendant No.1 at Central Road, Agartala and paid him Rs.25,000/- being the earnest money for purchasing the suit land in their presence. The defendant No.1 acknowledged the receipt of the said amount from the plaintiff on his behalf and on behalf of the defendants No. 2 and 3, accordingly the plaintiff and the defendants No. 1, 2 and 3 entered into an agreement for sale stipulating that the plaintiff would pay the rest amount of consideration money of Rs.50,000/- to the defendant No.1 within 6(six) months from 8th June 1996 and on receipt of the rest amount of the consideration money, the defendant No.1 would transfer the suit land to the plaintiff absolutely by making registered instrument and he would deliver possession thereof to the plaintiff immediately after making of the sale deed. The defendant No.5 and said Narayan Majumder were present at the time of entering in the said oral agreement for sale. 7. The defendant No.5 and said Narayan Majumder were present at the time of entering in the said oral agreement for sale. 7. Later on, the plaintiff had proposed to reduce the terms of agreement for sale into writing, but at that time no deed writer was available and the defendant No.1 assured the plaintiff that oral agreement would be sufficient and no written agreement would be necessary for the short stipulated period of 6(six) months and the defendant No.5 and said Narayan Majumder also assured the plaintiff that as the transaction was made in their presence and at the instance of the defendant No.5, there would be no necessity to reduce the terms of the oral agreement into writing and on good faith relying upon the assurance given by the defendants No. 1, 5 and said Narayan Majumder, the plaintiff did not insist on the written agreement any further. 8. The plaintiff again has stated that on 14.11.1996, he met the defendant No.1 at his shop at Central Road, Agartala and expressed his readiness to purchase the suit land and he requested the defendant No.1 to go to the registration office with his two sons, the defendants No. 2 and 3, to execute the registered sale deed for transferring the suit land to the plaintiff absolutely on receipt of the rest consideration money of Rs.50,000/-. The defendant No.1 told the plaintiff at that point of time that since he was a man of 84 years it would not be possible for his physical weakness to go to the registration office time and again and he requested the plaintiff to wait for some time and he would execute and register all the sale deeds for the remaining part of the A-Schedule land at a time and in compliance with the request made by the defendant No.1, the plaintiff agreed to wait for some more time. Thereafter, the plaintiff had been maintaining regular contact with the defendant No.1. and in the month of November he requested the plaintiff for having the sale deed executed. Again on 05.01.1999, the plaintiff repeated the same request for executing the sale deed. At that point of time the defendant No.1 informed the plaintiff that he would enter into an agreement for sale with the defendant No.4 for transferring the suit land. 9. and in the month of November he requested the plaintiff for having the sale deed executed. Again on 05.01.1999, the plaintiff repeated the same request for executing the sale deed. At that point of time the defendant No.1 informed the plaintiff that he would enter into an agreement for sale with the defendant No.4 for transferring the suit land. 9. Since the dispute emerged, there was an attempt for amicable settlement between the plaintiff and the defendant No.4. But the defendant No.4 refused to abandon his claim over the suit land and in this circumstances, the defendant No.1 had no scope to make any sale deed in favour of the plaintiff. In the last week of January, 1999 the plaintiff met the defendant No.5 at his residence with Narayan Majumder and Nalini Debnath for settlement of the dispute. On 09.02.1999, the defendant No.1 clearly stated that he could not remember whether any transaction between the plaintiff and his had ever taken place. The plaintiff got the information from the reliable source that the defendant No.4 by that time had prepared the sale deed in respect of the suit land, in collusion with the defendants No.1, 2 and 3. On receipt of the such information, the plaintiff rushed to the registration office and on 16.02.1999 he could gather that on 15.02.1999 the defendants No. 1, 2 and 3 made two sale deeds bearing No.1-1493 and 1-1494 transferring the suit land and the western part of plot No.4 to the defendant No.4 absolutely and he also learnt that the sale deed bearing No.1- 1494 dated 15.02.1999 was valued at Rs.70,000/- in respect of the land the plaintiff proposed to purchase. The plaintiff was ready and willing to purchase the suit land on payment of the rest of the consideration money and, the plaintiff has always been ready and willing to perform his part by purchasing the suit land from the defendants No. 1, 2 and 3 on payment of the remainder of the consideration sum. 10. On the basis of the pleaded fact the plaintiff asked the following reliefs: (i) For declaration that the sale deed No.1-1494 dated 15th February, 1999 executed by the Defendants No. 1, 2 and 3 in favour of the defendant No.4 in respect of the suit land is void and not binding and operative against the plaintiff. 10. On the basis of the pleaded fact the plaintiff asked the following reliefs: (i) For declaration that the sale deed No.1-1494 dated 15th February, 1999 executed by the Defendants No. 1, 2 and 3 in favour of the defendant No.4 in respect of the suit land is void and not binding and operative against the plaintiff. (ii) For declaration that the oral agreement for sale dated 8th June 1996 entered into between the plaintiff and the defendants No. 1, 2 and 3 in respect of the suit land is valid and enforceable against the defendants No.1, 2 and 3 as well as against the defendant No.4. and (iii) For specific performance of contract directing the defendants No.1, 2 and 3 to transfer the suit land to the plaintiff by registered instrument on receipt of the rest amount of consideration money of Rs.50,000/- from the plaintiff and to deliver possession of the suit land to the plaintiff immediately after the making of the sale deed. 11. For purpose of reference, the suit land as described in Schedule-B is a part of the Schedule-A land which is comprised in Khatian No.7807 of Mouja Badharghat, C.S. Plot No.7131/15757 measuring 1 kara 1 krantas 19½ dhurs [430 sq. ft.]. The defendants No. 1, 2 and 3, [the defendants No. 2 and 3 did not sign the written statement] by filing a written statement denied the entire claim of the plaintiff. The defendant No.1 denied of receiving the earnest money as claimed by the plaintiff. For purpose of reference, the para-10 of the plaint is extracted hereunder: “That, with reference to averments made under para 11 of the plaint is vehemently denied and disputed and very specifically it is submitted that neither any money being earnest money was paid by the plaintiff to the defendant No.1, 2 and 3 or acknowledged receipt of any earnest money by this defendant No.1 or any defendants i.e. defendant No.2 and 3. Besides the above it is also very specifically denied and disputed and submitted that no oral agreement for sale of the suit land was made between the plaintiff and the defendant No.1, 2 and 3.” 12. In other paragraphs also the defendant No.1 categorically denied that he had ever entered in any oral agreement for sale of the Schedule-B land. Besides the above it is also very specifically denied and disputed and submitted that no oral agreement for sale of the suit land was made between the plaintiff and the defendant No.1, 2 and 3.” 12. In other paragraphs also the defendant No.1 categorically denied that he had ever entered in any oral agreement for sale of the Schedule-B land. On the face of such total and gross denial, the following issues were framed by the trial court: (i) Is the suit maintainable? (ii) Was the defendant No.5 appointed representative by defendants No.1, 2 and 3 for the purpose of selling their suit land and had the defendant No. 2 and 3 knowledge about the negotiation of selling the suit land between the plaintiff and the defendant No.5? (iii) Did the defendant No. 1, 2 and 3 entered into oral contract with the plaintiff on 08.06.1996 for selling the suit land at Rs.75,000/- on receipt of earnest money of Rs.25,000/- to sell the suit land within a period of 6(six) months? (iv) Is the sale dated 15.01.1999 executed by the defendants No.1, 2 and 3 in favour of the defendant No.4 for the suit land void? (v) Is the plaintiff entitled to get a decree for specific performance contract? (vi) What other relief/reliefs the parties are entitled to in this suit? 13. The plaintiff examined himself as PW-1, Narayan Majumder as PW-2 and Shri Pulin Behari Majumder, defendant No.5 as PW-3. The plaintiff prove that the money was received by the defendant No.1 on different dates ranging from 22.09.1993 from 12.03.1994. The defendant No.1 examined himself as DW-1. But no documentary evidence on behalf of the defendant has been adduced. On appreciating the evidence as led by the parties, the trial court, pursuant to the judgment dated 28.01.2002, decreed the suit holding that the oral agreement of sale for the B-Schedule land as entered on 08.06.1996 between the plaintiff and the defendants No.1, 2 and 3 is valid and enforceable against the defendants No.1, 2 and 3 as well as against the defendant No.4 who had purchased the suit land during continuance and existence of the said oral contract. It has been declared that the sale deed dated 15.02.1999 executed by the defendants No.1, 2 and 3 in favour of the defendant No.4 for the suit land is void, not binding and inoperative against the plaintiff. It has been declared that the sale deed dated 15.02.1999 executed by the defendants No.1, 2 and 3 in favour of the defendant No.4 for the suit land is void, not binding and inoperative against the plaintiff. The defendants No.1, 2 and 3 are directed to transfer the suit land as described in the Schedule-B to the plaint by registered instrument on receipt of the balance consideration money of Rs.50,000/- as, the part consideration sum to the extent of Rs.25,000/- was received by the defendant No.1 on 08.06.1996 and further to deliver the possession of the suit land to the plaintiff following the sale deed. It has been directed that in the event of failure of the defendants No.1, 2 and 3 in executing the sale deed of the suit land in favour of the plaintiff, the plaintiff shall be entitled to get the registered instrument for the suit land as described in the Schedule-B on deposit of the balance consideration money by the process of the court and to get the delivery of the possession of the said land. 14. The said judgment had been challenged by filing an appeal the Gauhati High Court which had jurisdiction over the state of Tripura at the relevant time, under Section 96 by the defendant No.1. Later on, the defendant No.1 was represented by the respondents No.1a, 1b, 1c, 1d and 1e in the said first appeal, being RFA No.13 of 2009. The said appeal was remanded on the basis of re-location of the pecuniary jurisdiction to the court of the District Judge, West Tripura, Agartala who had transferred the appeal being Title Appeal No. 59 of 2006 to the court of the Addl. District Judge, Court No.4, West Tripura, Agartala who by his judgment dated 29.09.2011, as challenged in this appeal, allowed the first appeal and dismissed the suit. For purpose of dismissing the suit, it has been observed that there is no clear cut evidence for proving the terms of the oral contract, which is alleged to have been entered into by the plaintiff and all the defendants. This finding alone would have been sufficient to non-suit of the plaintiff. According to the first appellate court, a suit for specific performance has to conform to the forms No. 47 and 48 of the first Schedule in the CPC. This finding alone would have been sufficient to non-suit of the plaintiff. According to the first appellate court, a suit for specific performance has to conform to the forms No. 47 and 48 of the first Schedule in the CPC. In a suit for specific performance, it is incumbent upon the plaintiff, not only to set out the agreement, upon which the suit is structured. The plaintiff must go further and lay that he had approached the defendants to perform the agreement pleaded by him, but the defendants have not done so. He should have pleaded that he had been ready and willing to perform his part of the agreement. Neither in the plaint nor at the subsequent stage of the suit, the plaintiff has taken those pleas. It is well-settled that in a suit for specific performance the plaintiff must aver and prove that he is ready to perform his averment and proof, part of the contract and in the absence of such the suit is not maintainable. Importantly what is noted by the first appellate court is that: “In the deposition of PW-1 date, time of oral agreement were not specified but he stated that on the following day i.e. 08.06.1996 he paid Rs.25,000/- to the appellant No.1 as part consideration but place, time about the part payment not stated in his deposition.” 15. Finally, the first appellate court interfered with the judgment of the trial court and passed the consequential order. That finding of the said judgment has been challenged by the plaintiff. Mr. D. Chakraborty, learned senior counsel has seriously criticized the judgment of the first appellate court contending that all particulars of the oral agreement has been laid in the plaint including details of the place, date and time of the contract and payment of the earnest money along with the stipulated day for execution of the sale deed on payment of the remainder of the consideration sum. That apart, the said agreement was partly performed in presence of the respondent No.5(now deleted) and another Narayan Majumder who appeared in the trial and stated in favour of the plaintiff. That apart, the said agreement was partly performed in presence of the respondent No.5(now deleted) and another Narayan Majumder who appeared in the trial and stated in favour of the plaintiff. Even the appellant has clearly deposed that he approached the defendant No.1 much before the expiry of the stipulated time to pay the remainder of the consideration sum for execution the sale deed in terms of the said contract, but he delayed the matter on the pretext that he would execute all the sale deeds in favour of the intending purchasers at a time, but later on he resiled from his own commitment and executed the sale deed in respect of the suit land in favour of the defendant No.4. Only thereafter, the suit was instituted by the plaintiff seeking the reliefs as stated. Mr. Chakraborty, learned senior counsel has submitted that there was no infirmity in the judgment passed by the trial court and the reasons assigned by the first appellate court in its judgment are so fragile in nature those will not survive in the scrutiny of law. 16. From the other side, Mr. S.M. Chakraborty, learned senior counsel appearing for the respondent No.2 has submitted that the case of the plaintiff is visited by absence of proper pleading in respect of the oral agreement by the persons competent to transfer or towards the sale of the suit land inasmuch as even the plaintiff did not state that the defendants No.2 and 3 expressed their acceptance to sell the suit land. Mr. Chakraborty, learned senior counsel has further submitted that the design of the plaintiff would spring out when some circumstances are clubbed together. What is interesting is that the plaintiff did not even insist for taking a money receipt when he purportedly handed over a sum of Rs.25,000/- as the so called earnest money from the defendant No.1 nor did he issue any notice when he observed that the defendant No.1 was either dillydallying the matter or was preparing to execute the sale deed in favour of the defendant No.4. The plaintiff has created no document for the said transaction even after getting constructive knowledge of the transaction between the defendants No.1, 2, 3 and 4. The plaintiff has created no document for the said transaction even after getting constructive knowledge of the transaction between the defendants No.1, 2, 3 and 4. From the documents as produced by the plaintiff(Exhibit-1 series), it transpires clearly that the defendant No.1 used to issue the money receipt in acknowledgment of receipt of any amount from any person and the plaintiff did not clarify why the defendant No.1 did not issue any such receipt for him. There is no explanation whatsoever. 17. Mr. Chakraborty, learned senior counsel has drawn attention of this court to the plaint showing for purpose of that the agreement as arrived is not only oral but also it is not revealing definite terms in respect of which land, the said agreement was entered into. Nowhere, the plaintiff has submitted that he visited the suit land and he had identified the boundaries of the suit land for purpose of purchase. That apart, the authorization by the defendants No.2 and 3 though has been pleaded but could not be established by the plaintiff while discharging his burden of proof for the relief as sought for. Mr. Chakraborty, learned senior counsel has thereafter submitted that it is very difficult to prove the oral agreement unless the material particulars the details of transaction are properly proved. In support of his contention, Mr. Chakraborty, learned senior counsel has referred to a decision of the apex court in Pukhraj D Jain and others v. G. Gopalakrishna reported in AIR 2004 SC 3504 , wherein the apex court has categorically observed that : “Section 16(C) of the Specific Relief Act lays down that specific performance of a contract cannot be enforced in favour of a person who fails to aver and prove that he has performed or has always been ready and willing to perform the essential terms of the contract which are to be performed by him, other that terms the performance of which has been prevented or waived by the defendant.” It has been further observed that: “Therefore, not only there should be such an averment in the plaint but the surrounding circumstances must also indicate that the readiness and willingness continue from the date of the contract till the hearing of the suit. It is well settled that equitable remedy of specific performance cannot be had on the basis of pleadings which do not contain averments of readiness and willingness of the plaintiff to perform his contract in terms of Forms 47 and 48 of CPC.” 18. Mr. Chakraborty, learned senior counsel has also referred a decision of the apex court in Parakunnan Veetill Joseph's Son Mathew v. Nedumbara Karuvila's Son and others reported in AIR 1987 SC 2328 . In that decision, the apex court has observed that: “The Court should meticulously consider all facts and circumstances of the case. The Court is not bound to grant specific performance merely because it is lawful to do so. The motive behind the litigation should also enter into the judicial verdict. The Court should take care to see that it is not used as an instrument of oppression to have an unfair advantage to the plaintiff.” 19. Having scrutinized the records and appreciated the submissions made by the learned senior counsel, this court is of the view that the pleadings in respect of the oral agreement is not only very sketchy, inadequate and insufficient to conform to the requirements of Section-10 of the Specific Relief Act, 1963. Even payment of the earnest money is not beyond suspicion as no money receipt has been produced in the trial by the plaintiff, whereas the plaintiff himself has proved that the defendant No.1 in respect of the other prospective buyers had issued money receipt in acknowledgement of receiving payments. Despite having sufficient opportunity to place the demand to the defendant No.1 by way of the notice, the plaintiff did not act accordingly. As such according to this court whether the transaction as referred is in respect of the Schedule-B land or not cannot be gathered from the evidence. This observation has been rendered after scrutinizing the testimonies of PW-1(Shri Narayan Majumder) and PW-3(Shri Pulin Behari Majumder). The defendants No. 2 and 3 were not present when the plaintiff went to tender the remainder. They learnt from the plaintiff that the defendant No.1 had forgotten the contract of sale and contracted to sell the land to the defendant No.4. PW-3 also did not state that he was present when the plaintiff tendered the remainder of the amount, but he has in his examination in chief has categorically stated as under: “The deft. no.1 on behalf of the deft. PW-3 also did not state that he was present when the plaintiff tendered the remainder of the amount, but he has in his examination in chief has categorically stated as under: “The deft. no.1 on behalf of the deft. no.2 & 3 and also on his behalf sold other land of that area through me and on part payment of consideration money for those land defendant no.1 issued receipt. Today I have produced the same. On identification the 5 nos. of cacha receipts and one nos. of scatch map of his land are marked Ext.1 series.” In the cross-examination he has submitted that- “After payment of part consideration of Rs.25,000/- as alleged no receipt was obtained from the deft. no.1. The deft. no.4 the subsequent purchaser of the suit land is my full blooded younger brother. The sale deed was executed in favour of deft. no.4 after lapse of about 2½ years, no letter or notice was issued to the defendant for execution of the sale deed though the period of 6(six) months was lapsed before the sale to the defendant No.4.” He has categorically stated further that Exbt-1 series has no relation with the transaction between the plaintiff and the defendant No.1. 20. The defendant No.1 [as DW-1] deposed in the court that no money was offered by the plaintiff. He has also denied that he had handed over photocopy of the title deed of his land for preparation of the sale deed. Even the plaintiff did not submit such photocopy that he had received. The defendant No.1 has denied to have received any amount as the earnest money from the plaintiff. This court is of the view that the evidentiary materials those have been placed in the trial are not adequate to establish the oral contract to sale, inasmuch as the pleadings in this regard is bereft of material particulars in respect of the land. Nowhere the appellant has pleaded he knew the description of the land. Even he did not state how he had come to know the description of the land. The plaintiff failed to give any explanation why he did not insist for the money receipt. Nowhere the appellant has pleaded he knew the description of the land. Even he did not state how he had come to know the description of the land. The plaintiff failed to give any explanation why he did not insist for the money receipt. If the testimonies of PWs 2 and 3 are believed, then why the plaintiff did not issue a notice giving the details of the oral agreement or about his readiness or of tendering the remainder to the defendant No.1 on his and his sons' [the defendants No. 2 and 3] account. But the plaintiff, the appellant herein, as it is apparent from the records, allowed the stipulated time to lapse. It is also evident from the oral testimonies that the land was sold much after the so called stipulated time expired. As a result, the existence of the oral agreement is shrouded by suspicion. If the contract itself does not appear to be enforceable, after filtering the same through the parameters as laid down in Section-10 and other provisions of the Specific Relief Act, 1963, no suit for specific performance can be maintained. Thus, the findings as returned by the first appellate court do not conform to reasoning all the time, but having regard to the inference, this court is not inclined to interfere with. 21. Having held so, this appeal stands dismissed. Draw the decree accordingly. Send down the LCRs thereafter.