JUDGMENT : 1. Heard Mr. S. K. Ghosh, learned counsel for the appellant. Also heard Mr. B. C. Das, learned Senior counsel assisted by Ms. I. Das, learned counsel for the respondents. 2. The judgment and decree dated 27.9.2006 passed in Title Appeal No. 2/2006 by the learned Civil Judge, Goalpara is put under challenge in this second appeal. The present appellant is the plaintiff in Title suit No. 24/2002 in the court of learned Civil Judge (Jr.Div.), Goalpara. The suit was filed for specific performance of contract entered into by the plaintiff appellant and the defendant respondent No. 4 vide written agreement (Ext.1) executed by the said defendant respondent No. 4 on 17.7.1992. The suit land is measuring 3 bighas covered by Patta No. 72 Khatian No. 22 of Dag No. 185(old) and 215 (new) out of total land measuring 5 bighas 4 kathas 19 lechas. The total consideration of Rs.13,000/-was paid and accepted by the defendant respondent No.4 alongwith an additional sum of Rs 300/-for the purpose of obtaining requisite sale permission. Prior to the said execution of the agreement for sale(Ext.1), the land was under mortgage which was redeemed by the plaintiff appellant paying a sum of Rs.3,000/-and the possession was thereafter delivered to the plaintiff appellant in the month of May,1993. Since then, it is pleaded that the plaintiff appellant had all along been in possession of the said land which forms the suit land. The plaintiff performed his part as per the terms of the agreement for sale and he has been requesting defendant respondent No.4 to complete the sale transaction after obtaining the requisite permission. As there was no move/response, Advocate notice dated 1.3.2002 was sent to the said defendant respondent No.4. On receipt of the said notice, it is pleaded by the plaintiff appellant that the defendant respondent No.4 entered into agreements for sale separately with rest of the defendants respondents. The plaintiff appellant on receipt of the said information approached the defendant respondent Nos. 1 to 3 with a request not to purchase the land which was accordingly agreed by them. The plaintiff appellant on receipt of the said information approached the defendant respondent Nos. 1 to 3 with a request not to purchase the land which was accordingly agreed by them. Later on it came to the knowledge of the plaintiff appellant that by way of three sale deeds, the said defendants respondents No. 1 to 3 purchased land measuring 1 bigha 1 katha 14 lechas each, out of land promised to be sold to the plaintiff appellant by the defendant respondent No. 4. After obtaining the certified copies of said registered sale deeds bearing No. 258 dated 22.3.2002, 259 dated 22.3.2002, 275 dated 30.3.2002, it came to the knowledge that the entire land included in the aforesaid sale deeds is within the suit land including 1 katha 12 lecha in the sale deed No. 259. The suit land is under the possession of the plaintiff appellant and the said agreement dated 17.7.1992 is a valid one and as the defendants respondents are not willing to execute the sale deed in favour of the plaintiff appellant, as such the plaintiff appellant filed the suit seeking for declaration that the sale deed Nos. 275 dated 30.3.2002, 258 and 259 dtd. 22.3.2002 are fraudulent, void, ab-initio and inoperative alongwith a direction to the defendants respondents to execute a sale deed in favour of the plaintiff respondent in respect of the suit land. 3. The defendant respondent No. 4 who was impleaded as defendant No.1 in the suit filed his written statement which is exhibited as Ext.6. In the said written statement it is admitted about the existence of said agreement for sale with the plaintiff appellant. However playing fraud on the said defendant respondent No.4, the rest of the defendants respondents got the registered sale deeds executed inasmuch as the said defendant respondent No.4 informed about the agreement for sale with the plaintiff appellant and thereafter agreed to sale the remaining portion of the land measuring 2 bigha 1 katha 16 lechas leaving aside 3 bighas. The defendants respondents No. 1 to 3 also filed written statement wherein they specifically denied about the knowledge of the agreement for sale entered into by the plaintiff appellant and the defendant respondent No.4. It is the stand taken by the defendant respondent Nos. The defendants respondents No. 1 to 3 also filed written statement wherein they specifically denied about the knowledge of the agreement for sale entered into by the plaintiff appellant and the defendant respondent No.4. It is the stand taken by the defendant respondent Nos. 1 to 3 that they were bonafide purchasers without notice of the said agreement between the plaintiff appellant and the defendant respondent No.4. 4. On the basis of the said pleadings following issues were framed: “(a) Whether there is cause of action for institution of this suit by the plaintiff? (b) Whether the suit is barred by limitation ? (c) Whether the agreement dated 17.7.1992 executed by the defendant No.1 in favour of plaintiff for sale of the suit land is fraudulent and not genuine? (d) Whether defendant No.1 had received full price of the suit land from the plaintiff in pursuance of agreement for sale dated 17.7.92 and had delivered the possession of the suit land to the plaintiff? (e) Whether defendant Nos.2, 3 and 4 had knowledge about plaintiff’s possession over the suit land and about said agreement for sale of the suit land to the plaintiff by the defendant No.1 ? (f) Whether the defendant No. 2, 3 and 4 are bonafide purchaser of the suit land for value without notice of agreement for sale to the plaintiff? (g) Whether the sale deeds No. 275 dt. 30.3.2002 sale deed No. 258 dt. 22.3.02 and sale deed No. 259 dt. 22.3.02 are fraudulent void ab initio and inoperative? (h) Whether the plaintiff is entitled to decree for specific performance of contract against the defendant ? (i) Whether the plaintiff is entitle to reliefs claimed by him? AND (j) To what other reliefs the parties are entitled to ?” 5. The plaintiff appellant in all adduced evidence of six witnesses including himself as PW 1. On the other hand, defendant respondent side more specifically defendant respondent Nos. 1 to 3, adduced evidence of six witnesses including the defendant respondent Nos. 1 and 2. The defendant respondent No. 4 though filed his written statement did not appear in the witness box in order to support his statement made in the written statement. The learned trial court vides judgment and decree dated 28.9.2005 decreed the suit in favour of the plaintiff appellant. 6. 1 and 2. The defendant respondent No. 4 though filed his written statement did not appear in the witness box in order to support his statement made in the written statement. The learned trial court vides judgment and decree dated 28.9.2005 decreed the suit in favour of the plaintiff appellant. 6. The learned trial court held the agreement entered into by the plaintiff appellant and the defendant respondent No. 4, Ext.1, to be a valid agreement. The learned trial court also held the issue No. 4 in favour of plaintiff appellant holding that on receipt of the full consideration amount, the defendant respondent No.4 delivered possession of the suit land to the plaintiff. While deciding the said issue learned trial court had given due consideration to the evidence of PW 3 and PW 6. It also took into consideration the admission of defendant respondent No.4 who as the defendant No.1 in the suit filed in the written statement. The trial court further discussed the issue Nos.5, 6 and 7 jointly and took note of the statement made in the written statement of the defendant respondent No.4 regarding the alleged fraud and misrepresentation made to the defendant respondent No.4 by the rest of the defendants respondents. Accordingly, it held that the registered sale deeds Exts. Ka, Kha and Ga executed by the defendant respondent No. 4 in favour of the defendant respondent Nos. 1, 2 and 3 are vitiated by fraud. Referring to the issue No.4 affirming the possession of the plaintiff appellant, over the suit land, learned trial court held that there were lack of enquiry on the part of the defendant respondent Nos.1, 2 and 3 inasmuch the suit land was under the possession of the plaintiff appellant and the said possession itself amounts to constructive notice on the part of the defendants respondents 1, 2 and 3 that there exists an agreement for sale between the plaintiff appellant and the defendant respondent No.4. Consequently sale deed Nos. 275, 259 and 258 were held to be null and void. The suit was decreed with a direction to the defendants respondents to execute a registered sale deed in favour of plaintiff delivering possession evicting defendants respondents No. 1 to 3 alongwith declaration that the registered sale deed of the defendants respondents are inoperative to the extent which encroaches the suit land. 7. The suit was decreed with a direction to the defendants respondents to execute a registered sale deed in favour of plaintiff delivering possession evicting defendants respondents No. 1 to 3 alongwith declaration that the registered sale deed of the defendants respondents are inoperative to the extent which encroaches the suit land. 7. The present defendants respondents leaving defendant respondent No.4 being aggrieved filed title appeal No. 2/2006 in the Court of Civil Judge, Goalpara which was allowed vide judgment and decree dated 27.9.2006. The first appellate court examined as to whether the statements made in the written statement (Ext.6) of the defendant respondent No.4 and the admission made therein binds the rest of the defendants respondents. 8. The first appellate court held that though the written statement of the defendant respondent No.4 is exhibited as Ext.6 however the said written statement cannot be accepted as evidence. It is further held that the plaintiff respondent was never in possession of the suit land during the relevant period i.e. prior to the institution of the suit. The written statement marked as Ext.6 of the defendant respondent No.4 is a collusive one and cannot be used as evidence against the rest of the respondents defendants. On the basis of the said finding the first appellate court held that defendant respondent Nos. 1 to 3 are bonafide purchasers of the suit land without notice of agreement for sale between the plaintiff appellant and the defendant respondent No.4. 9. The plaintiff appellant filed this second appeal which was admitted on 5.4.2007 on the following substantial questions of law: “Whether the learned lower Appellate Court erred in dismissing the suit of the appellant plaintiff by misconstruing the purport of Order XII Rule 6 of the CPC?” 10. At the time of hearing of the present appeal, Mr. Ghosh learned counsel prays for formulating another substantial question of law which was accordingly formulated on 28.8.2018. It was agreed by the learned counsel for the parties to this appeal that answer to the subsequent substantial question of law is sufficient to decide the appeal which I also concur. The substantial question of law formulated on 28.8.2018 for consideration is as follows: “Whether the plaintiff/appellant is entitled for the relief of specific performance of contract against the defendants/ respondents in the light of Section 19(b) of the Specific Relief Act, 1963?” 11. Mr. The substantial question of law formulated on 28.8.2018 for consideration is as follows: “Whether the plaintiff/appellant is entitled for the relief of specific performance of contract against the defendants/ respondents in the light of Section 19(b) of the Specific Relief Act, 1963?” 11. Mr. S. K. Ghosh learned counsel for the plaintiff appellant submits that the fact of possession of the plaintiff appellant was wrongly decided by the first appellate court. Accordingly he relied the evidence of PW 3 and PW 6 namely, one Amir Sheikh and Bedeshi Sheikh respectively. Further the evidence of PW 2 one Anser Ali, the Scribe of Ext.1 is also relied alongwith the evidence of DW 6, one of the purchasers Nizamuddin. The said witnesses admitted the fact of possession of the PW 3 and PW 6 over the suit land who were the Adhiars under the plaintiff appellant since the year, 1992. The DW 6 in his cross-examination deposed that about 6/7 years back from the date of deposition PW 6 was possessing the suit land. Further it is submitted by Mr. Ghosh referring to the written statement of the defendant respondent No.4 which was exhibited as Ext.6 that the defendant respondent No.4 admitted execution of the Ext.1 and acceptance of the total sale consideration. Further from the written statement it can be inferred that though he agreed to sale land to the defendant respondent Nos. 1 to 3 but the same was leaving aside land measuring 3 bighas, the subject matter of Ext.1. As the possession of the plaintiff was admitted by the witnesses more specifically PW 2 wherein he had specifically deposed that plaintiff was possessing the suit land on the strength of Ext.1 coupled with the other evidence of PW 3 and PW 6 including the admission on the part of DW 6 about the possession of PW 3 and PW 6, the fact of possession of the plaintiff appellant was well established and the learned court below ought to have taken note of the said evidence on record. Further as there is an admission by defendant respondent No. 4 about the execution of Ext.1 which goes to the root of the issue involved between the parties, it is submitted that the plaintiff appellant was able to prove his possession over the suit land, under such circumstances as held by the learned trial court a duty was cast upon the defendant respondent Nos. 1 to 3 at least to enquire with respect to the possession inasmuch as admittedly the owner of the suit land is defendant respondent No.4. As there was no such enquiry under such circumstances defendants respondents No. 1 to 3 cannot be termed to be bonafide purchasers without notice and protected u/s 19 sub-Section 1(b) of the Specific Relief Act, 1963. 12. Mr. Das, learned Senior counsel on the other hand, submits that original defendant No.1 who is the defendant respondent No.4 in the second appeal filed his written statement and stated that he entered into an agreement vide sale deed Ext.1 at a total consideration of Rs.13,000/-and he accepted the said consideration. On a proposal to purchase by defendant respondent Nos. 1 to 3 he informed about the existence of an agreement with plaintiff appellant for sale of 3 bighas of suit land and as such leaving aside the land measuring 3 bighas which is the subject matter of Ext.1, he agreed to sale the rest of the area of land measuring 2 bighas and odd in favour of defendant respondent Nos. 1 to 3. The said statement cannot be accepted as evidence though the said written statement was exhibited as Ext.6. The learned trial court misconceived the law and passed the decree which was rightly set aside by the first appellate court. As per Mr. Das, learned Senior counsel if the admission in the written statement cast adverse affect on the other parties to the suit, the same cannot be accepted and the defendant respondent No.4 ought to have come to the witness box in order to undergo the test of cross-examination by the adverse party. But the said defendant respondent No.4 did not turn up as witness. The first appellate court rightly passed the judgment reversing the findings of the trial court. 13. I have considered the submissions of learned counsel. But the said defendant respondent No.4 did not turn up as witness. The first appellate court rightly passed the judgment reversing the findings of the trial court. 13. I have considered the submissions of learned counsel. On perusal of the evidence of PW 2, Anser Ali Munshi who is the scribe of the agreement for sale dated 17.7.1992 Ext.1 in his cross-examination as against the suggestion the said witness denied the fact that plaintiff appellant was not possessing the suit land for 10 years. On the other hand, PW 1(the plaintiff appellant) in his cross-examination deposed that he was serving as UDA in the State Transport Corporation, Meghalaya and posted at Nongpoh for last four years and prior to that he was posted at Shillong for 12 years. Even prior to that he was at Umrangsu for about one year. Before 1984 he was at Guwahati with his family. He further deposed that he did not personally cultivated /ploughed land. If the evidence of PW 3 and PW 6 are to be believed it would be proper to take note of the pleadings in the plaint by the plaintiff appellant. There is no mention that the land was cultivated by any Adhiar more specifically PW 3 and PW 6. If the evidence of DW 6 is considered i.e. his deposition in the cross-examination he stated that about seven years back from the date of deposition one Amir Sheikh was possessing the suit land. If the evidence of Amir Seikh, PW 3 is taken into consideration, then it is specific that about 9/10 years back, he started to work as Adhiar over the suit land of the plaintiff which continued for next three years. This deposition if taken into consideration infers that from the date of deposition i.e. 10 years back he was Adhiar of the plaintiff appellant which continued for next three years i.e. it started from 1995 and continued till the year 1998. The sale transaction between the defendants respondents took place in the year 2002. The plaintiff appellant failed to prove that in the year, 2002 he was maintaining his possession over the suit land inasmuch as, in the cross examination he himself deposed on 28.6.2004 that for the past four years he was posted at Nongpoh. Since the year, 1984 he was at Guwahati with his family. The plaintiff appellant failed to prove that in the year, 2002 he was maintaining his possession over the suit land inasmuch as, in the cross examination he himself deposed on 28.6.2004 that for the past four years he was posted at Nongpoh. Since the year, 1984 he was at Guwahati with his family. If the said evidence is considered with that of DW 6 who simply admitted that Amir Sheikh possessed the suit land, same is not sufficient to hold that there was omission on the part of defendants respondents to enquire the possession of Amir Sheikh as the sale transaction took place in the year 2002 and the plaintiff appellant is bound to show his continuous possession over the suit land at least till the date of execution of the sale deed in order to deprive the benefit under Section 19(b) of the Specific Relief Act, 1963 to the defendants respondents No. 1 to 3. 14. The relief in a suit for specific performance of contract is the discretion of the court. The first appellate court reversed the finding of the learned trial court mainly on the ground that the trial court accepted the statements in the written statement as evidence while deciding the issues moreso on the face of the fact that the said defendant respondent No.4 did not even grace the witness box as a witness. The first appellate court rightly did not take into consideration the statements of the written statement. From the discussion of the evidence as cited by Mr. Ghosh I am of the considered opinion that the plaintiff appellant failed to prove his possession over the suit land at least till the date of execution of sale deed in favour of the defendant respondent Nos. 1 to 3. The first appellate court also held that plaintiff appellant was not possessing the suit land during the relevant period i.e. prior to institution of the suit land. 15. In view of discussion hereinabove, I am of the opinion that the substantial question of law has to be decided against the plaintiff appellant inasmuch he failed to disprove the fact that the defendant respondent Nos. 1 to 3 had no knowledge of the agreement existing prior to the filing of the suit including the possession thereon. 15. In view of discussion hereinabove, I am of the opinion that the substantial question of law has to be decided against the plaintiff appellant inasmuch he failed to disprove the fact that the defendant respondent Nos. 1 to 3 had no knowledge of the agreement existing prior to the filing of the suit including the possession thereon. Accordingly, I do not find any merit in this second appeal and the substantial questions of law is decided against the plaintiff appellant. The Second appeal stands dismissed. 16. Send back the LCR. No cost.