JUDGMENT AND ORDER : 1. Heard Mr. D. Chakraborty, learned senior counsel assisted by Mr. H. Laskar, learned counsel appearing for the appellant as well as Mr. S.M. Chakraborty, learned senior counsel assisted by Mr. Soumen Saha, learned counsel appearing for the respondents. 2. These appeals being RSA No. 3 of 2015 and RSA No. 4 of 2015 arise from the common judgment dated 29.10.2014 delivered in Title Appeal No. 7 of 2013 and Title Appeal (Cross) No. 8 of 2013. Title Appeal No. 7 of 2013 emerged from the judgment dated 05.10.2012 delivered in Title Suit No. 17 of 2010 by the Civil Judge, Sr. Division, No. 1, West Tripura, Agartala and Title Appeal (Cross) No. 8 of 2013 emerged from the counter claim being T.S. (Counter Claim) No. 82 of 2011 as instituted in respect of Title Suit No. 10 of 2010. The trial court by the judgment and decree dated 05.10.2012 decreed the suit, whereas the said counter claim was dismissed by the judgment dated 05.10.2012. But by the common judgment dated 29.10.2012, the judgment dated 05.10.2012 as delivered in Title Suit No. 17 of 2010 was reversed and the suit was dismissed and the counter claim was decreed directing the plaintiff-appellant to perform in terms of the oral agreement as executed in the first week of March, 1989 for sale of land measuring 0.32 acres of land to the defendant No. 1 as the plaintiff had already received the entire consideration money. For purpose of better elucidation, the operative part of the said judgment is reproduced hereunder: “Defendant no. 1 shall pay the balance amount of Rs. 10,000/- to the plaintiff within three months from today which shall be received by the plaintiff with receipt in writing. Immediately, he shall execute the sale deed in favour of the defendant no. 1 relating to 0.32 acre of land as recorded in her name in Exbt.2 Failing this, defendants shall be entitled to get the decree executed in due process of law.” 3. Against the said common judgment, when these appeals were admitted, the following substantial question of law was formulated by this court by the order dated 03.08.2015: “Whether the judgment and decree passed by the learned District Judge in Title appeal No. 07 of 2013 suffers from perversity.” 4. The fundamental facts, relevant for these appeals may be noted at the outset. The fundamental facts, relevant for these appeals may be noted at the outset. The plaintiff-appellant instituted the suit being Title Suit No. 17 of 2010 for declaration of right, title and interest over the suit land as described in the schedule of the plaint measuring 0.25 acres. There is no dispute that the plaintiff-appellant was the owner of the land measuring 0.49 acres. The plaintiff-appellant permitted the defendant No. 1 to live on a part of the land about 30 years back. According to him, such arrangement was completely temporary. When Raghunathpur Gaon Panchayet provided the fund and materials for construction of a room on the said land under Indira Abash Yojona [IAY], the defendant No. 1 raised objection on 04.12.2012 and because of that objection, the benefit was not given to the plaintiff-appellant. The defendants contested the suit by filing the written statement and set up a counter claim being Title Suit (Counter Claim) No. 82 of 2011. In the said counter claim, the defendant No. 1 projected a case that in the last week of March, 1981, the plaintiff-appellant proposed to sell the part of the suit land, measuring 0.32 acres and after accepting that proposal, the defendant No. 1 paid a sum of Rs. 40,000/- as the entire consideration money and it was agreed that the plaintiff-appellant shall execute the sale deed. Thereafter, on 15.08.2009 for purpose of execution of the sale deed, the defendant No. 1 paid Rs. 2,000/- for expenditure of registration. The plaintiff-appellant demanded a further sum of Rs. 10,000/-. The defendant No. 1 agreed to pay that additional amount. On 22.09.2009, the plaintiff- appellant refused to execute the sale deed and hence, the counter claim has been formed. In para-6 of the plaint, the plaintiff-appellant has categorically averred as follows: “6. That, the plaintiff also sold out 0.24 acres land from aforesaid purchased land measuring 0.49 acres to one Shri Shankar Ch. Bhattacharjee, S/o Lt. Manindra Ch. Bhattacharjee of Karaimura, P.S. K.K. Nagar, P.S. Bishalgarh, District, West Tripura and said purchaser Shri Shankar Ch. Bhattacharjee has been residing in the said purchased land as a bona-fide purchaser by constructing dwelling huts etc. since the date of purchase from plaintiff.” 5. In response to Para-6 of the plaint, the defendants in their written statement have averred as follows:- “12. Bhattacharjee has been residing in the said purchased land as a bona-fide purchaser by constructing dwelling huts etc. since the date of purchase from plaintiff.” 5. In response to Para-6 of the plaint, the defendants in their written statement have averred as follows:- “12. That the statements made in Para-6 that the plaintiff also sold out 0.24 acres of land from the said purchased land measuring 0.49 acres to one Shri Sankar Chandra Bhattacharjee, S/o Lt. Manindra Chandra Bhattacharjee of Karaimura, P.O. K.K. Nagar, P.S. Bishalgarh, West Tripura and the said purchaser has been residing in the purchased land as bona-fide purchaser by constructing dwelling hut etc. are also denied.” It has been also asserted further that in the Khatian opened in respect of the said land, the defendant No. 1 has been shown as the permissive occupier. The said fact of entry has been acceded by the defendants but subject to the following statement: “The said recording as it appears now, might have been at the instance of the plaintiff for deriving ulterior gain.” Thus, the defendants have denied to be the permissive possessor. According to them, as part performance of the said oral agreement to sell, they came into possession. In regard to this aspect, on 22.06.2018 this court has framed the following additional substantial question of law: Whether the first appellate court has acted legally while reversing the judgment delivered in T.S. No. 07 of 2013 without considering the aspect that the benefit of the part performance as claimed by the defendant cannot be granted in their favour as for deriving the benefit of the part performance, agreement must be in writing in terms of Section 53A of the Transfer of Property Act? 6. That aspect of the matter was not taken into consideration by the first appellate court. The first appellate court, as regards of sale in respect of the sell to one Shankar Chandra Bhattacharjee has observed as follows: “Exbt.2, the khatian was created on 16.6.1988 reflecting the possession of the land under plot no. 6140 measuring 0.32 acre by Smti. Suniti Banik. That being so, it has remained unexplained how in the year 2003 land measuring 0.24 acre out of 0.49 acre was sold to Sankar Bhattacharjee and possession was delivered. 6140 measuring 0.32 acre by Smti. Suniti Banik. That being so, it has remained unexplained how in the year 2003 land measuring 0.24 acre out of 0.49 acre was sold to Sankar Bhattacharjee and possession was delivered. It should not have escaped the notice of the learned Court below that the plaintiff in his plaint or in his written statement in the counter claim did not mention the date of sale of the land to Sri Sankar Bhattacharjee and no document whatsoever in this regard is proved He is also silent as to what quantum of land was sold from which plot of land. In his affidavit in chief, it was for the first time he mentioned that he sold 0.24 acre of land to Sri Sankar Bhattacharjee in 2003 but he did not explain how the possession was delivered to him. This is very important because it is his case that the possession of the land was with defendants from around the year 1981. Since Exbt.2 reflected that 0.32 acre of land out of the total land of 0.49 acre was under possession of his sister, failure to prove any document regarding the sale and handing over of possession to Sankar Bhattacharjee leaves no room for doubt that the plaintiff failed to prove that the land was actually sold. So, the very basis of the findings of the learned court below that entering any oral agreement by the defendant no. 1 with the plaintiff and subsequent acts for enforcement of the oral agreement leading to holding of the meeting were an impossibility was without any basis. It is on this specific point that the learned Court below decreed the suit of the plaintiff and dismissed the case of the defendants' counter claim.” 7. Having noted that part of the observation in Para-13 of the impugned judgment, this court is really flabbergasted when the entry contains an entry in respect of a permissive possession, how that can bar a legal owner from selling the said land. Whether the delivery was actually made of the land is a matter of fact in respect of the possession which also as it surfaces may affect the interest of the person who purchased the land. Whether the delivery was actually made of the land is a matter of fact in respect of the possession which also as it surfaces may affect the interest of the person who purchased the land. That apart, when in Para-6 of the plaint, the plaintiff was categorically stated of such fact of sale how the first appellate court could observe observe that for the first time the plaintiff-appellant stated in the examination-in-chief that the part of the land measuring 0.24 acre was sold to one Shankar Chandra Bhattacharjee. These emanates from inappropriate reading and perverse reading of the evidence. This court has come across that a time frame for execution of the contract has been given. Section 10 of the Specific Relief Act provides that the agreement must be valid in the eye of law. The plaintiff-appellant has raised during the argument, as noted by the first appellate court that there was no agreement but the said statement of the defendant No. 1 was a unilateral declaration. However, from the purported appreciation of the fact, the first appellate court has arrived at a decision that an agreement can be presumed because of holding of the meeting subsequently in 2009 and the area of the land as claimed has been mentioned on the basis of the entry in the Khatian which has been doubted even by the defendant No. 1 herself. While issuing a decree of specific performance, in absence of any proof of a particular date of execution of the sale deed can the court set up such date for performance of such agreement, is a substantial question of law and according to this court that the court cannot set up a date unless such date is agreed by the parties in the agreement. This court has already framed additional substantial question of law. For purpose of reference, Section 53A of the Transfer of Property Act may be reproduced:- “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. For purpose of reference, Section 53A of the Transfer of Property Act may be reproduced:- “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. 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. The transferee has performed or is willing to perform his part of the contract. Then, notwithstanding that - where there is an instrument of transfer, that the transfer has not been completed in the manner prescribed therefor 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.” Is it amply clear that for purpose of causing delivery of possession as part-performance, the agreement shall be reduced in the writing? The defendant No. 1 has projected that the agreement is oral. The plaintiff has squarely denied existence of such agreement. 8. When this court had been hearing the learned counsel for the parties, particularly on the basis of the averment made in Para-6 of the plaint and its unequivocal denial, it came to the mind of this court that how the right of the parties, the plaintiff and the defendants can be decided in absence of Shankar Chandra Bhattacharjee who has purchased the land measuring 0.24 acres as the suit land overlaps the purchased land? Hence, it would affect the title and possession of the land covered by the purported oral agreement. Moreover, the defendants have denied that Shankar Chandra Bhattacharjee was not delivered possession. Hence, it would affect the title and possession of the land covered by the purported oral agreement. Moreover, the defendants have denied that Shankar Chandra Bhattacharjee was not delivered possession. It has been contended by the defendants that they surveyed the land by a surveyor when it revealed that Shankar Chandra Bhattacharjee was in possession of 0.16 acres of land under Plot No. 6148, out of the suit land. 9. Having noticed all these aspects relating to the suit and the counter claim, this court is of the view that the trial court as well as the first appellate court ought not have adjudicated or decided the suit in absence of Shankar Chandra Bhattacharjee, who appeared in the proceeding as PW-2 inasmuch as a substantial right of his otherwise would be eclipsed without affording any scope to that person. No court can decide rights of the other parties when such decision would affect the third party’s right or if such decision might affect the registered instrument by which the third party purchased the land. As such, Shankar Chandra Bhattacharjee is a necessary party both in the suit and in the counter claim. 10. Having observed thus, it shall be apposite for this court to set aside the judgments of both the trial court as well as of the first appellate court and remit the matter for fresh adjudication. It is ordered accordingly. The trial court shall make Shankar Chandra Bhattacharjee a defendant in the suit as well as in the counter claim on its own motion and thereafter, issue summon asking him to file his written statement. On submission of the written statement by Shankar Chandra Bhattacharjee, if it is required, an additional issue shall in this regard be framed by the trial court in its discretion. Thereafter, the parties be allowed to adduce evidence, if required, and thereafter, the fresh decision has to be taken by the trial court in respect of both the suit and the counter claim. Since the matter is pending for long, the trial court shall take all efforts to dispose the suit and the counter claim as expeditiously as practicable. 11. In the result, these appeals are allowed to the extent as indicated above. 12. Prepare the decree accordingly. 13. Transmit the records thereafter.