JUDGMENT & ORDER : These appeals are filed under Section 100 of the CPC and clustered for purpose of disposal by a common judgment inasmuch as these appeals have emerged from the suit being Title Suit No. 51 of 2006 instituted by the respondent No.1, in both these appeals, for specific performance of contract. By the common judgment dated 07.05.2012 delivered in Title Appeal No. 31 of 2008 and Title Appeal No. 32 of 2008 by the District Judge, North Tripura, Kailashahar [as he then was], the judgment dated 26.06.2008 delivered in Title Suit No. 51 of 2006 has been reversed. 2. The suit filed by the respondent No.1 was dismissed by the trial court [the Court of the Civil Judge, Sr. Divn., Kailashahar, North Tripura] so far the specific performance of contract dated 15.12.2005 for purchase of suit land is concerned. However, the suit was partly decreed in favour of the plaintiff-respondent to the effect that he would get back the earnest money of Rs.20,000/- with 10% simple interest per annum from the appellant herein calculating interest from 20.12.2005 till realization with cost of the suit. 3. Two separate appeals were filed. One by the appellant herein being Title Appeal No.31 of 2008 [Md. Abdul Sattar vs. Md. Maruf Ali] challenging the money decree as stated and the other appeal was filed by the respondent No.1 herein being Title Appeal No.32 of 2008 [Md. Maruf Ali vs. Md. Abdul Sattar and another]. 4. The plaintiff-respondent filed the said appeal being Title Appeal No.32 of 2008 for obvious purpose so that he could get a decree of specific performance. The appellate court by the impugned judgment dated 07.05.2012 has decreed the suit by reversing the finding of the trial court on the specific performance of contract. However, as consequence of that finding, the title appeal being TA No.31 of 2008 was dismissed. Against the said reversal finding, the appellants have filed these appeals. At the time of admitting these appeals identical substantial questions of law have been framed by this court for hearing and those are as under: “(1) Whether the learned first appellate court can pass any decree in favour of the plaintiff on the basis of the agreement marked as Ext.1 which is not enforceable in aw in view of the transfer of suit land by the defendant No.1-appellant in favour of the defendant No.2? (2) Whether a registered sale deed bearing No.1-341 executed by the defendant No.1 in favour of the defendant No.2 can be looked into by the lower appellate court when such registered sale deed was not under challenge?” 5. For appreciating the substantial questions of law as stated, the essential facts may briefly be introduced at the outset. The appellant being the owner and the possessor of the suit land, as described in the plaint, entered into a written agreement [unregistered bainapatra] for sale of the suit land to the plaintiff-respondent. It was agreed that the appellant would execute the sale deed within 20.12.2005 in favour of the respondent No.1. The plaintiff-respondent paid the earnest money being Rs.20,000/- out of the total consideration money of Rs.40,000/- by a bank cheque. The plaintiff-respondent has also pleaded that while preparing the agreement a mistake crept in recording khatian number of the land, that was proposed to be sold out. Khatian No.188 was recorded in place of khatian No.953. One deed writer, namely, Quesh Ahmed had written that bainapatra. Despite repeated requests for executing the sale deed in terms of the said bainapatra on accepting the remainder of Rs.20,000/-, the appellants did not perform their part. As a result, the plaintiff-respondent on 18.01.2006 issued a demand notice on the appellant in RSA No. 45 of 2012. Despite the contract to sale was in force, the appellant sold out the land to the defendant No.2-respondent, the appellant in RSA No.46 of 2012. But no step was taken to perform the said contract for sale. In that circumstance, the suit for specific performance was instituted. The following issues were framed since the defendant-appellants entirely denied such claim: “1. Whether there is any cause of action? 2. Whether there was any contract for sale of the suit land entered into by the plaintiff and defendant no.1 on 05-12-05? 3. Whether defendant no.1 received Rs.20,000/- as advance from the plaintiff out of total agreed consideration of Rs.40,000/-? 4. Whether the signature put in unregistered bainapatra, dated 05-12-2005 is that of defendant No.1? 5. Whether defendant no.2 had knowledge of any such contract between the plaintiff and defendant no.1 in respect of the suit land? 6. Whether plaintiff is entitled to get the decree as prayed for? 7. To what other relief/reliefs the parties are entitled?” 6. 4. Whether the signature put in unregistered bainapatra, dated 05-12-2005 is that of defendant No.1? 5. Whether defendant no.2 had knowledge of any such contract between the plaintiff and defendant no.1 in respect of the suit land? 6. Whether plaintiff is entitled to get the decree as prayed for? 7. To what other relief/reliefs the parties are entitled?” 6. Both the trial court and the appellate court have returned the concurrent finding of fact that the defendant appellant received Rs.20,000/- as the earnest money from the plaintiff out of total agreed consideration of Rs.40,000/-. Again both the trial court and the first appellate court had returned the concurrent finding that the plaintiff-respondent by adducing adequate evidence has established that the defendant appellant in RSA No.45 of 2012 executed the bainapatra in presence of the attesting witness and by the agreement, the defendant-appellant was made obligated to transfer a piece of land measuring 0.01 acre appertaining to khatian No.188 [according to the plaintiff, which No. was incorrectly written] plot No.1243 butted and bounded by North: Tairun Nessa, South: Government Road, East: Faruk Ali and West: Maruf Ali. But on a close scrutiny of the record, the trial court has observed that ‘but the suit land is recorded in khatian No.953 whereas the scheduled land is recorded in khatian No.188.’ But that description was not corrected at all following the due process of law. The trial court has observed that: “If I accept the plea taken by the plaintiff mistakenly khatian number was quoted as 188 instead of khatian no.953 then also the agreement under challenge is not enforceable as because the plot no.1243 and plot no.1243/3058 are different from each other. Plaintiff in his pleading also stated that khatian no.188 related to 3rd parties and as to some other C.S. Plot number and of course not at all belonging to the defendant no.1. But during trial no such khatian no.188 was produced to justify that it relates to 3rd parties. Under the above circumstances I have no hesitation to hold that though there was an agreement in between the plaintiff and defendant no.1 on 05.12.2005 but that agreement not related to the suit land.” 7. Based on the said finding the trial court denied to decree specific performance of the contract in respect of the suit land as described in the plaint. Based on the said finding the trial court denied to decree specific performance of the contract in respect of the suit land as described in the plaint. However, on the face of the finding that the plaintiff-respondent has paid Rs.20,000/-, it has been decreed that the defendant-appellant shall pay Rs.20,000/- with interest @ 10% per annum from 20.12.2005 till realization. The appellate court has reversed that finding that for mentioning the khatian number wrongly, the plaintiff respondent is not entitled to the decree as prayed for and observed as under: “Learned Court below rightly decided that the agreement was signed. Description of the property is given in the deed and it is written that the land appertains to khatian No.188, dag No.1243. It was a dokanbhiti land. Boundary of the land was also given for the land measuring 1 satak. There is no khatian corresponding to khatian No.188, but there is a khatian No.954 in the name of the defendant-respondent No.1 (Ext.8). Learned Court below observed that during the trial no khatian No.188 was produced to justify that it relates to the 3rd party. Survey Commissioner in the report (Ext.1 series) viewed that under dag No.1243, .02 acre of land was earlier purchased by the appellant plaintiff and that land is under khatian No.954 marked as Ext.8. The rest land of dag No.1243 appertains to khatian No.953 and it is marked as 1243/3058. In the map dag was not divided as per the opinion of the Survey Commissioner Basanta Kumar Das. Boundary of the khatian No.953 is given. Dag No.1243 written in the unregistered bainapatra appertains to khatian No.953 for dokanbhiti land measuring .01 acre of land. As per the Survey Commissioner’s report the description of the suit land given in the unregistered bainapatra for the land measuring .01 acre tally with the land under khatian No.953 dag No.1243/3058. That land was sold out to the defendant respondent No.2 and khatian was prepared showing the division of the dag No. 1243. So, if the Survey Commissioner’s report is taken into consideration, then it is very clear that the description of the land given in the bainapatra is the suit land, which the defendant-respondent No.1 promised to sell to the appellant-plaintiff.” 8. So, if the Survey Commissioner’s report is taken into consideration, then it is very clear that the description of the land given in the bainapatra is the suit land, which the defendant-respondent No.1 promised to sell to the appellant-plaintiff.” 8. Having returned such finding and on discussions of the other grounds of objection as raised by both the appellants, by the impugned judgment, the judgment returned by the trial court has been set aside and it has been held that the plaintiff respondent had and has readiness and willingness. The plaintiff entered in the contract with the defendant. The plaintiff respondent has not violated rather performed all the terms and conditions of that contract for sale. The appellant, the defendant No.1 in the suit, did not perform his part as obligated by the said contract to sale. As a result, the appeal filed by the plaintiff-respondent has been allowed decreeing that the defendant-appellant in RSA No.45 of 2012 is bound by the contract to sale and the plaintiff-respondent is entitled to get the decree for specific performance of the contract to have the suit property transferred in his favour, not the money. It has been further observed that the plaintiff-respondent shall deposit a sum of Rs.20,000/- [the remainder beyond the earnest money out of Rs.40,000/- the consideration money for purchasing the land as agreed by the said contract] to the plaintiff-respondent within a period of two months from the date of the judgment. The appellate court has specifically observed and directed as under: “The sale of the land to respondent defendant No.2, Raich Ali cannot be acted upon and respondent-defendant No.2 will be entitled to get back the money in due course of law.” 9. The defendant-respondent No.2 purchased the suit land to hibernate with a voidable instrument. Whatever that might be, he cannot be subjected to further co-lateral damage. The defendant-respondent No.2 shall get return of the entire money he had invested for purchasing the suit land from the defendant-appellant, the appellant in RSA No.45 of 2012. The defendant-appellant as stated has been directed to execute the sale deed on receiving the remainder of the amount within a period of two months. 10. Mr. The defendant-respondent No.2 shall get return of the entire money he had invested for purchasing the suit land from the defendant-appellant, the appellant in RSA No.45 of 2012. The defendant-appellant as stated has been directed to execute the sale deed on receiving the remainder of the amount within a period of two months. 10. Mr. P. Chakraborty, learned counsel appearing for the appellant in both the appeals has strenuously argued that the plaintiff-respondent has failed to establish that the suit land has any connection with the contract to sale (Exbt.1) inasmuch as there is substantial difference or discrepancy between the khatian number as inserted in the schedule for describing the suit land and the description of the land as proposed, acted for sale by means of that ‘bainapatra’. It is an admitted position that in the schedule of the suit land, the khatian number has been shown as 953, Dag No.1243 with their physical boundaries but in Exbt.1, the khatian number has been written as 188 where other description like Dag number, Mouja etc. are similar and identical. The defendant-appellant’s case is based on this discrepancy in the khatian number as recorded in the bainapatra (Exbt.1) and the schedule of the suit land. According to the appellants, these are two different lands. The land as described in the bainapatra (Exbt.1) has not been established as the land of the defendant-appellant and as such merely on the basis of an unregistered bainapatra, a decree of specific performance in respect of the said land cannot be passed. But it has not been denied that the defendant appellant has a land within the physical boundaries as described in the schedule for the suit land, pertaining to khatian No.953 (Exbt.8). The Dag number, Mouja number and the area of land do not have any difference with what has been described as the land to be purchased by the plaintiff respondent. Even on comparison of the physical boundaries of the land as provided in the schedule of the bainapatra (Exbt.1) and the schedule of the plaint, it is apparent on the face of records that a human error has crept into in the description of the suit land [in the bainapatra]. In the bainapatra, khatian number should have been 953 (Exbt.8), not khatian No.188. It is true that the said mistake has not been corrected at any point of time. Mr. In the bainapatra, khatian number should have been 953 (Exbt.8), not khatian No.188. It is true that the said mistake has not been corrected at any point of time. Mr. Chakraborty, learned counsel for the appellants has conceded that the khatian number and the Dag number (plot number) are the tools for scientific identification of the land in dispute. Even sometime physical boundaries do not identify the small area of land and those create lot of confusion. This court is not in full agreement with the submission advanced by Mr. Chakraborty, learned counsel. 11. In view of the provisions made under Order VII, Rule 3 of the CPC, either descriptions of the property i.e. by physical boundaries or by the numbers of record of settlement or survey, the property can be identified. For purpose of reference, the said provision is extracted herein: “Where the subject-matter of the suit is immovable property.-Where the subject matter of the suit is immovable property, the plaint shall contain a description of the property sufficient to identify it and in case such property can be identified by boundaries or numbers in a record of settlement or survey, the plaint shall specify such boundaries or numbers.” 12. There is no dispute that the physical boundaries as described for the immovable property for sale are same, both in the bainapatra (Exbt.1) and in the schedule for the suit land in the plaint. 13. Mr. D.C. Roy, learned counsel appearing for the plaintiff-respondent has placed reliance on two decisions. One of those in respect of the rectification in the contract as dwelled upon in M/s. Roy and Co. and another vs. Smt. Nani Bala Dey and others reported in AIR 1979 Calcutta 50 where Calcutta High Court has observed as under: “Reference may be made to the cases of Gossain Das in (1913) 18 Cal L.J. 541, 59 Cal LJ 532 at p.534 : (AIR 1934 Cal 851 at p.852) and 52 Cal WN 719 at p.722 : ( AIR 1948 PC 207 at p.209) to show that in case of conflict between the area and the boundary, the description of the boundary will prevail. It will be pertinent to point out that the Bench decision of our Court in (1909) 10 Cal LJ 570 was set aside by the Judicial Committee in the case in (1913) 40 Ind App 223 (PC) on a different point and not on the question of conflict between the area and the boundary. So this branch of the appellant’s arguments is not accepted.” 14. This decision does not support the plea of Mr. Roy, learned counsel appearing for the plaintiff-respondent. What a full bench of Bombay High Court has decided in Jagdish Balwantrao Abhyankar and others vs. State of Maharashtra and others reported in AIR 1994 Bombay 141 has nothing to do with the present controversy. However Mr. D. C. Roy, learned counsel has emphatically submitted that even if the contract to sale (Exbt.1) was not corrected for apparent mistake in khatian number, performance cannot be frustrated, the rights of the plaintiff-respondent to get the specific performance will still subsist. Since there is a concurrent finding regarding the execution of the contract to sale, now no controversy can be raised about the existence of a valid contract for sale of the suit land between the plaintiff and the defendant No.1. The plaintiff-respondent has all the time shown his readiness to pay the remainder of the consideration money within time and persuaded the defendant No.1, the appellant herein, for execution of the sale deed but he did not oblige and hence, according to Mr. D.C. Roy, learned counsel the judgment of the first appellate court does not suffer from any infirmity. It has not been denied that the defendant No.2 has purchased the suit land with or without knowledge but mere purchase cannot eclipse the right of the plaintiff respondent. 15. D.C. Roy, learned counsel the judgment of the first appellate court does not suffer from any infirmity. It has not been denied that the defendant No.2 has purchased the suit land with or without knowledge but mere purchase cannot eclipse the right of the plaintiff respondent. 15. For the embargo created under Section 31 of the Specific Performance Act, since the plaintiff cannot seek cancellation of the registered instrument, he has prayed for a decree in addition to the decree for specific performance of the contract of sale of the suit land on accepting the remainder of the consideration money and injunction to execute the sale conveyance of the suit land in favour of the plaintiff and further declaring the questioned kabala No.1-341 dated 06.03.2006 (Exbt.5 series) as sham, fraudulent and not binding upon the plaintiff with an alternative prayer for directing both the defendants No.1 and 2 to execute the sale conveyance in respect of the suit land in favour of the plaintiff. Hence, this court does not find any infirmity in the impugned common judgment and accordingly both the appeals fail subject to what would be laid as a matter of clarification hereinafter. The defendant No.2-respondent or the appellant in RSA No.46 of 2012 be paid the entire consideration money by the defendant No.1-appellant forthwith. Further, it is decreed that on execution of the sale deed both the defendants shall hand over the vacant possession to the plaintiff-respondent. In the event of default by the defendants in the suit, the plaintiff-respondent shall have the right to recover the suit land by the process of the court after the sale deed is executed in terms of the above decree. Appeals are dismissed subject to above. Draw the decree accordingly. Send down the records thereafter.