ORDER : Heard Mr. Prashant Pallav, counsel appearing on behalf of the appellant. 2. Heard Mr. Mahesh Tewari, counsel appearing on behalf of the respondents. 3. This first appeal is directed against the judgement and decree passed in Title Suit No. 55 of 2006 dated 30.05.08 (decree signed on 11.06.08) passed by learned Sub-Judge-1, Dhanbad. The suit was for specific performance of contract in respect of agreement dated 07.12.2005 which was decreed in favour of the plaintiffs and the defendant were directed to execute and register sale deed for the suit land within three months after receiving the balance consideration amount of Rs.4,50,000/- from the plaintiffs failing which the plaintiffs may enforce such decree through the process of the court. 4. There were altogether 5 plaintiffs in the title suit and one defendant. As per the plaint, the scheduled property belonged to the sole defendant which was acquired by her by a deed of gift dated 09.09.1981. The defendant was in peaceful possession of the property and intended to sell and transfer the same for a total consideration of Rs. 7 lakhs to the intending purchasers. The plaintiffs jointly approached the defendant to purchase the suit land. After negotiation, it was decided that the defendant will sell and transfer the suit land @ Rs.1897.02 per decimal and accordingly total consideration of the land measuring 3.69 acres came to Rs. 7,00,000/-. The plaintiffs agreed to purchase the land at the said consideration amount. The agreement for sale was reduced into writing and the defendant put her signature on 07.12.2005 in presence of her husband namely Bhola Prasad Chourasia and received an advance amount Rs.71,000/- from the plaintiffs. It was mentioned in the agreement that a sum of Rs.1,79,000/- was to be paid within 23.12.2005 as advance and the balance amount was to be paid by 15.04.2006. It was also stated in the plaint that the defendant had agreed to get the land measured before 30.12.2005 and after measurement, the report of the Amin was required to be shown to the purchasers. The defendant had agreed to execute and register the sale deed of the land mentioned in the schedule within the specified period and to receive balance consideration amount from the plaintiffs and if she failed to execute or register the sale deed, the plaintiffs had right to file suit for enforcement of the agreement. The defendant had agreed to execute and register the sale deed of the land mentioned in the schedule within the specified period and to receive balance consideration amount from the plaintiffs and if she failed to execute or register the sale deed, the plaintiffs had right to file suit for enforcement of the agreement. It was also stated in the plaint that the defendant had also delivered possession of the suit land to the plaintiffs after execution of the agreement for sale, the plaintiffs further paid a sum of Rs. 1,79,000/- through 6 (six) demand drafts to the husband of the defendant after deducting the bank commission and this was done on 24.12.2005. Thus, the plaintiffs had paid a total sum of Rs. 2,50,000/- against the total consideration amount of Rs.7,00,000/-, the balance remaining Rs.4,50,000/-. The plaintiffs were throughout ready to make this payment for the purposes of execution and registration of sale deed, but the defendant did not perform her part of the contract, which resulted in sending a notice to the defendant on 25.03.2006, through lawyer and in spite of receipt of notice, the defendant did not intend to receive the balance consideration amount from the plaintiffs and register the sale deed, which ultimately led to filing of the suit for specific performance of the contract/agreement dated 07.12.2005. 5. A written statement was filed by the defendant, wherein, an objection was raised regarding non-filing of the original sale agreement and a point was also raised that the suit was barred under Indian Registration Act, 1908 in view of the Section 53-A of Transfer of Property Act read with Section 17 of the Indian Registration Act, 1908 and accordingly, no reliance can be made on the unregistered sale agreement. The statements of the plaint regarding intention to sell and transfer of property for a consideration amount of Rs. 7,00,000/- was denied by the defendant. It was the case of the defendant that the plaintiffs had approached the defendant for purchase of the suit property for Rs. 17,00,000/- and it was also stated that out of total consideration of Rs. 17,00,000/-, only Rs.2,00,000/- was paid to the defendant and in spite of repeated demands by the defendant, the plaintiffs did not pay the remaining amount of Rs.15,00,000/-. It was the specific case of the defendant that the defendant had agreed to sell the property for Rs. 17,00,000/- and it was also stated that out of total consideration of Rs. 17,00,000/-, only Rs.2,00,000/- was paid to the defendant and in spite of repeated demands by the defendant, the plaintiffs did not pay the remaining amount of Rs.15,00,000/-. It was the specific case of the defendant that the defendant had agreed to sell the property for Rs. 17,00,000/- for which agreement was reduced into writing and on 7.12.2005 and an amount of Rs. 21,000/- was paid as a part payment. The specific case of the defendant was that on all the four pages of the agreement, she had put her signature and the original agreement remained in possession of the plaintiffs, which was not filed by the plaintiffs. The plaintiffs were also advised to get the agreement registered on or before 28.02.2006, but the plaintiffs avoided to complete the legal formalities. At para-11 of the written statement, it was categorically mentioned by the defendant that the total land is 3.33 acres having its value at the rate of Rs.5,100/- per decimal being the prevailing rate of the land of that area. It was also mentioned in para-12 of the written statement filed by the defendant that the agreement was reduced into writing on 07.12.2005 in presence of her husband and plaintiff nos. 1 to 4 and the price was fixed at Rs. 17,00,000/- only and an amount of Rs.21,000/- was paid to her in cash and subsequently Rs. 1,79,000/- was paid by 6 (six) bank drafts taking the total payment to 2,00,000/- leaving a balance of Rs. 15,00,000/- to be paid. It was specifically alleged in para-13 of the written statement that the plaintiffs have removed two internal pages of the agreement and incorporated 7,00,000/- in place of 17,00,000/- with a view to defeat the legitimate dues of the defendant and that the defendant had received Rs.21,000/- on the date of the agreement and not Rs.71,000/- and the defendant admittedly received the subsequent drafts. In para-14 of the written statement, it was mentioned that the land under the agreement was duly measured by the plaintiffs through Amin before the agreement was concluded and there was no subsequent measurement needed, as the plaintiffs were duly satisfied with the proper measurement before the agreement was reduced into writing. In para-14 of the written statement, it was mentioned that the land under the agreement was duly measured by the plaintiffs through Amin before the agreement was concluded and there was no subsequent measurement needed, as the plaintiffs were duly satisfied with the proper measurement before the agreement was reduced into writing. So far as the possession is concerned, a specific averment was made in the written statement that the property involved in this case is in exclusive possession of the defendant. In the written statement, the defendant insisted that the plaintiffs should be directed to file the original agreement bearing the signature of the defendant on all the pages. It was alleged that the agreement filed by the plaintiffs was a forged document. So far as receipt of notice dated 25.03.2006 is concerned, it was specifically denied. In para-24 of the written statement, the defendant had stated that the plaintiffs were never ready and willing to pay the amount of Rs. 15,00,000/- which they had agreed to pay in terms of the agreement dated 07.12.2005, which had the signature of the defendant in all the pages. 6. The following issues were framed by the learned trial Court: - (i) Is the suit as framed maintainable? (ii) Whether the plaintiffs have valid cause of action for the suit? (iii) Whether the suit is barred under the provisions of Indian Registration Act? (iv) Whether Ext.2, the agreement dated 07.12.2005 is a valid, concluded and enforceable contract in between the parties? (v) Whether the plaintiffs have been willing and ready to perform their part of the Contract as agreed between the parties as per Ext. 2? (vi) Are the plaintiffs entitled to get a decree for specific performance of agreement dated 07.12.2005? (vii) Whether the plaintiffs are entitled to get any other relief or reliefs? 7. The plaintiffs have produced altogether three witnesses. P.W-1 is the plaintiff no. 1 himself; P.W.-2 is Lal Mohan Agarwal and P.W.-3, Sunil Agarwal is the plaintiff no. 5. There is only one witness on behalf of the defendant i.e D.W.-1, Bhola Prasad Chourasia, the husband of the defendant. Copy of two sale deeds one dated 16.01.1998 (Exhibit-1) and other dated 11.06.2004 (Exhibit-1/A) was filed on behalf of the plaintiffs to demonstrate the rate of property prevalent at the relevant point of time. 5. There is only one witness on behalf of the defendant i.e D.W.-1, Bhola Prasad Chourasia, the husband of the defendant. Copy of two sale deeds one dated 16.01.1998 (Exhibit-1) and other dated 11.06.2004 (Exhibit-1/A) was filed on behalf of the plaintiffs to demonstrate the rate of property prevalent at the relevant point of time. The agreement dated 07.12.2005 was marked as Exhibit-2 (with objection); the postal receipt was marked as Exhibit-3 (with objection) and the advocate’s notice dated 25.03.2006 was marked as Exhibit-4 (with objection). The two documents which have been exhibited by the defendant is two sale deeds both dated 02.12.2005 to demonstrate the then prevailing rate of the property in the area. 8. The learned trial court came to followings findings:- (i) The learned trial court by referring to the deposition of D.W.-1 at para 41 held in para 6 of the impugned judgement that it is admitted that the agreement was prepared in two copies and out of two, one was given to the defendant and another was kept with the plaintiffs. (ii) The learned trial court first took up the issue no. 3 and held that the amendment in Section 17 of the Indian Registration Act, 1908 was in connection with Section 53-A of Transfer of Property Act, 1882 which deals with part performance. However, the present suit was relating to specific performance of contract of sale which comes with the Section 54 of the Transfer of Property Act, 1882 and as per Section 54 of the Transfer of Property Act, 1882, registration of contract for sale is not required as the agreement by itself does not transfer any right, title and interest in connection with any property. Accordingly, the issue no.-3 was decided in favor of the plaintiffs. (iii) So far as the issue no. 4 relating to validity and enforceability of the agreement of sale dated 07.12.2005 (Exhibit-2) is concerned, the learned court below totally disbelieved the stand of the defendant regarding the allegation of two internal pages of the agreement having been changed by the plaintiffs on the ground that the husband of the defendant, who deposed as D.W.-1 was also a witness to the agreement by himself and in his deposition, he has stated that the agreement was prepared in two copies, one of which was given to the plaintiffs and other was retained by the defendant. The learned court below has drawn adverse inference against the defendant on account of non-production of the defendant’s copy of the agreement. The learned court below while considering the agreement held that from bare perusal of the agreement to sell (Ext. 2), it transpires that all the four pages have been typed from the same typewriter machine and noted that in page no. 2 recent survey plot and khata number have not been mentioned and registration number of the gift deed has also not been mentioned and at page no. 3 of the agreement, there are cuttings, which suggests that, had the page nos. 2 & 3 been manufactured, in that case, the said defects could have been removed by the plaintiffs. Thus, it was held that all the four pages of the agreement were prepared as part of the same transaction. The learned court below also held that the defendant had not given possession of the suit land to the plaintiffs as no specific evidence was led by the plaintiff with regards to the possession of the suit property. It was also held that the other sale deeds as exhibited by the parties to demonstrate their respective claim regarding consideration of the suit property have no relevance as inadequacy of consideration has no bearing upon the unfair advantage to the plaintiff or hardship to the defendant. The learned court below held that the agreement of sale (Ext. 2) is a valid, concluded and enforceable contract between the parties with regard to the suit property and decided the issue no.4 in favour of the plaintiffs. (iv) So far as the issue no. 5 is concerned, the learned court below held that the plaintiffs have been able to prove the requirement of Section 16 (c) read with Explanation II of Specific Relief Act, 1963 and held that the plaintiffs have been willing and ready to perform their part of the contract as agreed between the parties as per Ext. 2 and also held that the remaining balance consideration amount of Rs. 4,50,000/- was still payable by the plaintiffs to the defendant. Thus, this issue was also decided in favour of the plaintiffs. (v) The learned court below while deciding the issue nos. 1 & 2, held that the plaintiffs had valid cause of action and the suit was maintainable. (vi) So far as issue nos. 4,50,000/- was still payable by the plaintiffs to the defendant. Thus, this issue was also decided in favour of the plaintiffs. (v) The learned court below while deciding the issue nos. 1 & 2, held that the plaintiffs had valid cause of action and the suit was maintainable. (vi) So far as issue nos. 6 & 7 are concerned, the same were also decided in favour of the plaintiffs and the suit was decreed with a direction upon the defendant to execute registered sale deed and hand over possession with respect to the suit land within three months from the date of the judgment after receiving the balance consideration amount of Rs. 4,50,000/-, failing which the plaintiffs may enforce the decree through the process of Court. 9. Counsel appearing on behalf of the appellant submits as under:- (a) While assailing the impugned judgment, he has referred to the agreement dated 07.12.2005 (Exhibit-2) and has submitted that the agreement contains the signature of the defendant, signature of her husband as a witness and signature of only two plaintiffs i.e. Plaintiff Nos. 1 & 4. He further submits that the agreement to sell cannot be said to be a concluded contract and one of the reasons is that the other plaintiffs, who claimed to be a party to the agreement, did not put their respective signatures and they never deposed before the learned court below. (b) Without prejudice to the aforesaid submissions, it is submitted that from perusal of the agreement, it appears that neither the consideration was final nor the area for which the agreement was entered into, was final in as much as the area which was mentioned in the agreement was 3.69 acres and the same was also subject to final measurement. Further, the consideration amount was also dependent upon the actual measurement of the property and the rate of land per decimal was mentioned in the agreement. He submits that this agreement continued to be at the stage of negotiation only and was yet to reach a final shape. (c) Counsel for the appellant further submits that it was specifically stated by the defendant in the written statement that the area of land was measured prior to the agreement and upon measurement by the plaintiffs through Amin the area of the land was found to be 3.33 acres and the agreement was for 3.69 acres. (c) Counsel for the appellant further submits that it was specifically stated by the defendant in the written statement that the area of land was measured prior to the agreement and upon measurement by the plaintiffs through Amin the area of the land was found to be 3.33 acres and the agreement was for 3.69 acres. The plaintiffs had filed specific performance of contract for the entire 3.69 acres in connection with the schedule property whose area was only 3.33 acres. (d) He submits that even if this agreement (Exhibit-2) is assumed to have been executed, on the face of it, the said agreement (Exhibit-2) was non-executable, in as much as the area was 3.33 acres and not 3.69 acres and the consideration amount was also subject to adjustment upon proper measurement. He submits that the fact about actual measurement of property, which was measured and claimed to be 3.33 acres in the written statement was not disclosed by the plaintiffs in the plaint. (e) He also submits that if this agreement is directed to be executed by making payment of the balance consideration amount of Rs. 4,50,000/- for total area of 3.69 acres, the same would amount to substituting the agreement itself in as much as the actual area of the property is 3.33 acres and based upon this area the consideration of land based on the rate mentioned as per Exhibit 2 would be less than Rs.7,00,000/-. (f) Counsel for the appellant further submits that in view of these facts, the agreement for sale itself cannot be said to be a concluded contract between the parties as neither area is definite and nor consideration is certain. (g) The counsel for the appellant has also referred to the oral evidence of P.W.-1, who is one of the signatories to the agreement and refers to para-3 of the deposition and submits that as per P.W-1, five persons entered into agreement dated 07.12.2005 with the defendant. The counsel has also referred to para-11 of the deposition of P.W-1, wherein, he has deposed that on 23.12.2005, the property was measured, and the entire area was found to be 3.32 acres and upon such measurement, he asked the husband of the defendant that the amount is now required to be deducted from the consideration amount of Rs. The counsel has also referred to para-11 of the deposition of P.W-1, wherein, he has deposed that on 23.12.2005, the property was measured, and the entire area was found to be 3.32 acres and upon such measurement, he asked the husband of the defendant that the amount is now required to be deducted from the consideration amount of Rs. 7,00,000/-, but the husband of the defendant insisted that the amount should continue to remain at Rs. 7,00,000/- as some land relating to the portion of pond was also required to be sold, to which the purchaser had agreed. (h) By referring to para-11 of the evidence of P.W.-1, he submits that as per evidence of this witness, the agreement itself stood modified after the measurement on 23.12.2005. Accordingly, it appears that from the deposition of P.W.-1 that the parties had agreed to sell 3.32 acres, and in addition to that some more property was also to be sold to which parties had agreed but the suit property has been shown as 3.69 acres. So far as the P.W.-3 is concerned, who is also the defendant no. 5 in this case, the counsel for the appellant had referred to para-5 of his deposition to submit that as per his deposition also, the land was measured on 23.12.2005 and instead of 3.69 acres, the property was found to be 3.32 acres. He stated that above 3.32 acres, further land of the pond was also agreed to be sold. (i) Counsel for the appellant further referred to deposition of P.W.-2, who has stated that after negotiation, it was also decided that for the purposes of executing the agreement, the plaintiffs would have to go to the in-law’s house of the defendant at Deoghar. It has been deposed by P.W-2 that on 07.12.2005, the Plaintiff Nos. 1 & 4 had gone to Deoghar for executing the agreement. (j) By referring to the deposition of the D.W.-1, the only witness on behalf of the defendant, the counsel submits that D.W.-1, is also the husband of the defendant, who has acknowledged the signature of the defendant as well as the two of the plaintiffs i.e. Plaintiff Nos. 1 & 4, appearing on the last page of the agreement and he acknowledged receipt of Rs. 1 & 4, appearing on the last page of the agreement and he acknowledged receipt of Rs. 2,00,000/-, but he insisted that the defendant had signed on all the four pages of the agreement and that the consideration amount was Rs. 17,00,000/-. The counsel for the appellant submits that accordingly, two internal pages of the agreement as filed by the plaintiffs were not genuine. He further submits that two sale deeds bearing nos.10717 and 10718 were also exhibited before the learned court below to show that the property was valued @ Rs.7,000/- per decimal. 10. Counsel for the respondents on the other hand submits as under: (i) No adverse inference can be drawn against the plaintiffs on account of non-signing of agreement by the remaining plaintiffs. (ii) He submits that there is no requirement in law that the agreement of sale be signed by the purchasers also. (iii) He further submits that had the agreement been signed merely by the defendant, the same was enough for the purposes of filing a case under Specific Relief Act. (iv) He also submits that it is the admitted case of the parties that agreement of sale was entered into between the parties, accordingly, it is not open to the appellant to contend that there was no concluded agreement between the parties. (v) He submits that the only dispute which was raised by the defendant before the learned court below was that two internal pages of the agreement was changed and rest of it stood admitted. (vi) He submits that as per the deposition of D.W.-1 itself, the agreement was prepared in two copies and it was for the defendant to produce her copy before the Court, but neither the defendant has deposed before the learned court below nor the defendant’s copy of the agreement has been produced before the learned court below and rather the D.W.-1, her husband, clearly stated that he shall not produce the agreement, which was the copy given to the defendant. Accordingly, he submits that the learned court below has rightly drawn an adverse inference against the defendant and has decreed the suit in favour of the plaintiffs. In support of his arguments, the counsel for the respondents has referred two judgments passed by Hon'ble Supreme Court reported in (2009) 2 SCC 582 (Aloka Bose Vs. Accordingly, he submits that the learned court below has rightly drawn an adverse inference against the defendant and has decreed the suit in favour of the plaintiffs. In support of his arguments, the counsel for the respondents has referred two judgments passed by Hon'ble Supreme Court reported in (2009) 2 SCC 582 (Aloka Bose Vs. Parmatma Devi & Ors.) and (2010) 7 SCC 717 (Laxman Tatyaba Kankate and Anr. Vs. Taramati Harish chandra Dhatrak). (vii) The counsel has further referred to Section 101, 103 & 115 of the Indian Evidence Act, to submit that as per Section 101 of the Indian Evidence Act, it is for the plaintiffs to make out a case and the burden of proof is upon the person who asserts any legal right. He submits that this burden of proof was duly discharged by the plaintiffs by establishing the execution of the agreement between the parties and by duly exhibiting the same. He further submits that under the provisions of Section 103 of the Indian Evidence Act, the burden of proof of any particular fact who wishes the Court to believe in its existence, has to be proved by the same person. The defendant had stated in her written statement regarding change of the two pages in the agreement, this fact was required to be proved by the defendant by adducing cogent evidence and the only evidence was the copy of the agreement which was retained by the defendant, that having not been produced, the onus has not been discharged by the defendant. Accordingly, adverse inference has been rightly drawn against the defendant. (viii) By referring to Section 115 of the Indian Evidence Act, counsel for the respondent submitted that defendant having taken a particular stand in the written statement, and is accordingly estopped from denying the contents of the written statement. It is not open to the appellant to argue that there was no concluded agreement dated 07.12.2005 between the parties. (ix) In the instant case, the defendant having disclosed her intention to sell the property and having taken money against the same to the extent of Rs. 2,50,000/- out of 7,00,000/-, it is not open to the defendant to resile from her undertaking as per the agreement itself. It is not open to her to say that the agreement itself is not valid in the eyes of law. 2,50,000/- out of 7,00,000/-, it is not open to the defendant to resile from her undertaking as per the agreement itself. It is not open to her to say that the agreement itself is not valid in the eyes of law. (x) So far as the measurement of the property is concerned, the counsel for the respondents submits that it was already contemplated in the agreement that the area given in the agreement i.e. 3.69 acres was only tentative and it was also subject to final measurement. (xi) He also submits that the actual consideration amount was also dependent upon the final measurement and the actual consideration would be paid in connection with 3.33 acres of land at the time of registration. He further submits that the contention of the appellant that the agreement itself is non-executable, is not correct. (xii) He submits that so far as the deposition of P.W. Nos. 1 & 3, in connection with the actual measurement, and additional land (portion of pond) agreed to be transferred is concerned, the same has no bearing in this case. 11. After hearing counsel for the parties this Court finds that the point for determination in this appeal would be Whether Ext. 2, the agreement dated 07.12.2005, was a valid, concluded and enforceable contract between the parties? 12. After hearing the counsel for the parties and after considering the materials on record, this Court finds as under: (i) Title Suit No. 55 of 2006 was filed on 21.04.2006 by the five plaintiffs against the sole defendant for specific performance of contract, in relation to the scheduled property, for an area of 3.69 acres of land. (ii) The specific case of the plaintiffs was that the total consideration amount for the scheduled property at the time of negotiation was Rs. 7,00,000/- which was reduced into writing through an agreement of sale dated 07.12.2005 and an amount of Rs. 71,000/- was given as an advance. Thereafter, further payment was made on 24.12.2005 making the total payment as Rs. 2,50,000/-. The case is that the plaintiffs were throughout ready and willing to give the remaining amount of consideration to the defendant, but the defendant neither accepted the amount nor executed the sale deed. 71,000/- was given as an advance. Thereafter, further payment was made on 24.12.2005 making the total payment as Rs. 2,50,000/-. The case is that the plaintiffs were throughout ready and willing to give the remaining amount of consideration to the defendant, but the defendant neither accepted the amount nor executed the sale deed. The further case is that the defendant had agreed to get the land measured within 30.12.2005 and after measurement of the land, the measurement report made by the Amin was to be shown to the purchasers. (iii) The agreement which has been filed by the plaintiffs is dated 07.12.2005 (Exhibit-2). From perusal of the agreement of sale, it appears that: (A) The area of the property was 3.69 acres, but the same was subject to final measurement. (B) The total consideration of Rs.7 lakhs was calculated at the rate of Rs.1897.02 per decimal taking the total area of 3.69 acres. (C) It was agreed that the measurement will be done prior to 30.12.2005. (D) The consideration was also subject to adjustment as per actual measurement @ Rs.1897.02 per decimal. (E) The agreement was signed by only two of the plaintiffs and the defendant and the husband of the defendant had signed as a witness. The internal two pages of the agreement was not signed by the defendant. (F) Upon actual measurement of the land, total consideration was to be finalized and only the actual area of land was to be transferred. Thus, neither the area to be transferred nor the total consideration was final in the agreement, but the property was identified which was to be measured prior to 30.12.2005 and the rate of land to be transferred upon actual measurement was clearly mentioned in the agreement. (G) The agreement was related only to the scheduled property and had no stipulation regarding any further property to be included or excluded from the agreement depending upon actual measurement. (G) The agreement was related only to the scheduled property and had no stipulation regarding any further property to be included or excluded from the agreement depending upon actual measurement. FINDINGS ON THE POINT OF LEGALITY AND VALIDITY OF AGREEMENT (EXHIBIT-2) (i) Much arguments have been advanced by the parties on the legality and validity of the agreement (Exhibit-2) as produced by the plaintiffs and the main point as argued by the appellant is that the agreement was signed by only two of the plaintiffs out of five and was not registered and the internal two pages of the agreement as produced by the plaintiffs were changed and were forged and fabricated. The counsel for the respondent on the other hand have submitted that the agreement for sale can even be oral agreement and the agreement when put into writing need not be signed by the purchasers, only the signature of the vendor was sufficient which was admittedly there on the last page. The allegation of two internal pages having been changed was also strongly denied on the basis of the evidence on record and it was submitted that even as per the case of the defendant, agreement was entered into between the parties and it was prepared in two copies, but the defendant has not produced the defendant’s copy of the agreement. In the judgment passed by Hon’ble Andhra Pradesh High Court reported in AIR 2004 AP 299 (Mohd. Abdul Hakeem by LRs. Vs. Naiyaz Ahmed and Others), which has been relied upon by the respondents, it has been held that as per Section 2 (b) of the Indian Contract Act, 1872, a proposal becomes a promise only when the person to whom the proposal is made signifies his assent thereto and when the proposal is accepted. As per Section 2 (e) every promise and every set of promises forming the consideration of each other is an agreement. Further, it was held that it is essential for an enforceable contract that there should be consensus ad idem and consensus ad idem between the parties is required to be established for the purpose of enforcing a contract or an agreement of sale as well. Further, it was held that it is essential for an enforceable contract that there should be consensus ad idem and consensus ad idem between the parties is required to be established for the purpose of enforcing a contract or an agreement of sale as well. The suit for specific performance can be maintained even on the strength of oral evidence, when that is so, in law, it cannot be said that merely because the plaintiffs had not signed the agreement of sale, the same cannot be enforced and the suit for specific performance of contract cannot be maintained on the strength of such agreement, on the ground that it is not a concluded contract. (ii) In the judgment passed by Hon’ble Supreme Court reported in (2009) 2 SCC 582 (Aloka Bose Vs. Parmatha Devi and Ors.), it has been held that an agreement of sale comes into existence, when the vendor agrees to sell and the purchaser agrees to purchase for an agreed consideration on agreed terms, it can be oral, it can be by exchange of communication which may or may not be signed, it may be a single document signed by both the parties, it can also be a document in two parts, each party signing one copy and then exchanging the signed copy as a consequence of which the purchaser has the copy signed by the vendor, and the vendor has a copy signed by the purchaser, or it can be by the vendor executing the document and delivering it to the purchaser who accepts it. It has also been held that in India, an agreement of sale signed by vendor alone and delivered to the purchaser and accepted by the purchaser has always been considered to be a valid contract. In the event of breach by the vendor, it can be specifically enforced by the purchaser and that there is however no practice of the purchaser alone signing an agreement of sale. In the event of breach by the vendor, it can be specifically enforced by the purchaser and that there is however no practice of the purchaser alone signing an agreement of sale. In the said case, the Hon’ble Supreme Court found that from the facts of the said case, there was a clear intention of the parties that the agreement should be complete on signature by only the vendor and accordingly the Hon’ble Supreme Court held that even though the draftsman, who prepared the agreement might have used a format intended for execution by both the vendor and purchaser, the manner in which the parties had proceeded clearly demonstrated that it was intended to be executed only by the vendor alone and in such circumstances, the Hon’ble Supreme Court held that the agreement of sale signed by only the vendor was valid and enforceable by the purchaser. (iii) It has been held by the Hon’ble Supreme Court in the judgement reported in (2010) 7 SCC 717 (Laxman Tatyaba Kankate and Anr. Vs. Taramati Harish Chandra Dhatrak) that parties to the suit cannot go beyond the specific plea taken by them in the court. (iv) This Court finds that the learned court below has considered the allegations made by the defendant regarding the change of two middle pages of the agreement (Exhibit-2) and after considering the evidences on record and considering the fact that the defendant has not produced the defendant’s copy of the agreement has held that the agreement dated 07.12.2005 (Exhibit-2) was valid. (v) This Court finds that substantial arguments have been made by the appellant to say that the agreement dated 07.12.2005 was not valid as the same was signed by only two of the plaintiffs and not by all of them. This Court further finds that as per the evidence of P.W.-1, he has clearly stated that all the plaintiffs had entered into a written agreement with the defendant. It has also come in the evidence of P.W.-3 that after negotiation, it was agreed that an agreement will be entered into between the parties and for that purpose the plaintiffs were to go the defendant. It has also come in the evidence of P.W.-3 that after negotiation, it was agreed that an agreement will be entered into between the parties and for that purpose the plaintiffs were to go the defendant. This Court finds that it was specifically intended in the facts of the instant case that an agreement was required to be signed by the parties, the same was signed by only two of the plaintiffs and there is no evidence on record and no explanation on the part of the plaintiffs as to why the other plaintiffs did not put their signatures on the agreement. However, as the defendant had taken a specific plea in the written statement that there was an agreement of sale dated 07.12.2005 between the defendant and the plaintiffs, but the same was subject to measurement of land, therefore, it is not open to the appellant/defendant to contend that the agreement itself was invalid on account of having not been signed by three of the plaintiffs out of five. The defendant has not disputed the remaining pages of the agreement (including the last page) but has disputed the internal two pages of the agreement, which was alleged changed and the signature of the parties is reflected only on the last page of the agreement (Exhibit-2) which contains the signature of the defendant, husband of the defendant (as witness) and two of the plaintiffs out of five. Accordingly, the argument of the appellant that the agreement dated 07.12.2005 was not valid as the same was signed by only two of the plaintiffs, and not by all of them, is hereby rejected. This Court uphold the finding of the learned trial court on the point that the agreement dated 07.12.2005 (Exhibit-2) was legal and valid. FINDINGS ON THE POINT OF ENFORCIBILITY OF AGREEMENT (EXHIBIT-2) ON THE DATE OF FILING OF THE SUIT (i) This Court finds that although the plaintiffs have stated in the plaint that measurement of the land was to be done prior to 30.12.2005 but has not mentioned as to whether any measurement of the land was ever done or not. This Court further finds that the suit has been filed for the area 3.69 acres, for a total consideration of Rs. 7 lakhs calculated @ Rs.1897.02 per decimal. This Court further finds that the suit has been filed for the area 3.69 acres, for a total consideration of Rs. 7 lakhs calculated @ Rs.1897.02 per decimal. Thus, the suit has been filed for the area and consideration tentatively mentioned in the agreement which as per the agreement itself was subject to final measurement. Even in the legal notice dated 23.03.2006 (Exhibit-4), it was stated that it was agreed by the defendant that if the total measurement of land was 3.69 acres, the total consideration of land would be Rs.7,00,000/-. (ii) This Court finds that the plaintiff no. 1 himself has deposed in his evidence before the learned court below that the husband of the defendant was throughout negotiating with the plaintiffs in the matter. The P.W.-1 has stated that he along with four plaintiffs entered into a written agreement of sale on 07.12.2005, there were two original agreements prepared, one was given to the defendant and the other was retained with the plaintiffs. P.W.-1 has further deposed in para 11 that on 23.12.2005, the land was measured and it was found to be 3.32 acres and they had asked the husband of the defendant for reducing the consideration amount, but P.W-1 instead of reducing the consideration amount in proportion as agreed in the agreement (Exhibit-2) indicated that the land of pond was also required to be sold to which the plaintiffs had agreed. An amount of Rs.1,79,000/- was also paid vide bank drafts dated 24.12.2005 in the name of husband of the defendant. P.W.-3 also mentioned in para 5 of his evidence that the property was measured on 23.12.2005 and instead of 3.69 acres, the land was found to be 3.32 acres and it was agreed on 23.12.2005 that further property relating to the extent of 10% of pond was also to be sold. (iii) This Court finds that the deposition of P.W.-1 and P.W-3 clearly indicate that as per them on 23.12.2005, the plaintiffs agreed to purchase and defendant’s husband, who was representing the defendant throughout, agreed to sell 3.32 acres of land with some more property (portion of pond) for consideration of Rs.7 lakhs, although as per the agreement (Exhibit-2), Rs.7 lakhs was the consideration for 3.69 acres and upon actual measurement, the consideration was to vary and was to be calculated @ Rs.1897.02 per decimal. This Court is of the considered view that as per the deposition of the plaintiff nos. 1 and 5 who deposed as P.W nos. 1 and 3 respectively, the terms and conditions of the agreement stood modified on 23.12.2005 (when the land was measured) with respect to the lands to be transferred against total consideration of Rs.7 lakhs. This Court also finds that the plaintiffs have not filed suit for specific performance of contract of sale as per agreement dated 07.12.2005 which stood modified upon actual measurement of land on 23.12.2005, but have filed for enforcement of agreement dated 07.12.2005 without referring to the actual measurement of land and final calculation of consideration amount. Accordingly, this Court finds that the agreement dated 07.12.2005, as it is, was not enforceable on the date of filing of the suit on account of subsequent negotiations and modifications on 23.12.2005 which had taken place as deposed by P.W-1 and P.W-3, who are plaintiff nos. 1 and 5 respectively. (iv) In the judgment reported in AIR 1982 Patna 219 (Bishwanath Prasad Vs. Bhagwat Pandey), it has been observed that the grant of decree in specific performance of contract u/s 20 of the Specific Relief Act, rests in discretion of the court and cannot be claimed as a matter of right. While exercising its discretion the Court must keep in mind the conduct of the plaintiffs and the circumstances outside the contract itself, since mere existence of a valid contract is not a circumstance that is conclusive in favour of the plaintiffs, though, discretionary, therefore, jurisdiction of the Court must be exercised on sound and reasonable ground guided by judicial principles, keeping in mind the circumstances in each case. The conduct of the plaintiff is also an important element for consideration. (v) This Court further finds that the plaintiffs on the one hand did not disclose the fact about measurement of land on 23.12.2005 in the plaint, and on the other hand did not disclose about further negotiation with the husband of the defendant, who was admittedly throughout representing the defendant before the plaintiffs, that land of 3.32 acres of land was now to be sold for a consideration of Rs.7 lakhs and additional property consisting of part of pond was also to be sold. These materials facts have been suppressed by the plaintiffs in the plaint and they have filed the case to enforce the agreement date 07.12.2005 (Exhibit-2) for total area of 3.69 acres and total consideration of Rs. 7 lakhs which were tentatively mentioned in the agreement (Exhibit-2) and was subject to final measurement. (vi) As a cumulative effect to the aforesaid findings, this Court is of the considered view that although the agreement dated 07.12.2005 (Exhibit-2) is valid and concluded contract, the plaintiffs have not been able to demonstrate that the agreement dated 07.12.2005 (Exhibit-2) was an enforceable contract on the date of filing of the suit in the year 2006. In view of the evidence of the plaintiffs themselves, as explained above, the terms and conditions of the agreement stood modified on 23.12.2005 when the actual area of the suit land was found to 3.32 acres and not 3.69 acres and as per plaintiffs, defendant agreed to sell further land instead of proportionately reducing the consideration as per agreement dated 07.12.2005. Even if further modification of the terms and conditions of the agreement on 23.12.2005 (upon final measurement) is ignored, there is no statement or prayer regarding actual measurement of the property and corresponding adjustment of the consideration amount @ Rs.1897.02 per decimal as mentioned in the agreement itself. This Court has found, as mentioned above that there has been material suppression of facts by the plaintiffs in the plaint, this Court is of the considered view that the plaintiffs are not entitled to the reliefs as prayed for in the plaint as neither the actual area was 3.69 acres nor the actual consideration was Rs. 7 lakhs, when calculated for the actual area as mentioned in the agreement (Exhibit-2) itself. (vii) This Court is of the considered view that it was for the plaintiffs to prove his case before the learned court below and considering the evidence of P.Ws.-1 & 3, it cannot be said that the agreement which was entered into between the plaintiffs and the defendant was an enforceable contract on the date of filing the suit. In fact from the facts and circumstances of this case, it is apparent that the agreement itself, was subjected to further modification and negotiation on the date of measurement (on 23.12.2005) as is reflected from the evidence of P.Ws.-1 & 3 and explained above. In fact from the facts and circumstances of this case, it is apparent that the agreement itself, was subjected to further modification and negotiation on the date of measurement (on 23.12.2005) as is reflected from the evidence of P.Ws.-1 & 3 and explained above. Otherwise also, the agreement date 07.12.2005 could not be enforceable without actual measurement of land as per the agreement itself. This Court finds that the aforesaid aspects of the matter have not been considered by the learned trial court while deciding the issue no.4 which is the point for consideration by this Court also as mentioned above. The findings of the learned court below have been summarized above. This Court finds that there is no discussion regarding the statements made by P.W.-1 at para-11 and P.W.-3 at para-5 regarding measurement of land and further agreement on 23.12.2005 in the findings arrived at by the learned court below while holding that the agreement dated 07.12.2005 (Exhibit-2) was enforceable. (viii) Accordingly, this Court finds that in aforesaid circumstances, no order for specific performance of contract could have been passed by the learned court below for execution of the sale of 3.69 acres of land as mentioned in the schedule property for a total consideration amount of Rs. 7,00,000/- as mentioned in the agreement itself. The actual area upon measurement was only 3.32 acres, which was measured prior to filing of the suit, the remaining consideration amount could not have been Rs.4,50,000/- as claimed by the plaintiffs in the suit considering the rate of the land as mentioned in the agreement itself (Exhibit-2). The learned court below could not have directed for execution of sale deed in connection with 3.69 acres of land although the actual measurement of land as per the plaintiffs was only 3.32 acres of land. Thus, the finding of the learned court below that the agreement dated 07.12.2005 was enforceable is perverse, and is hereby set-aside. 13. This Court is of the considered view that the plaintiffs were required to prove that the agreement (Exhibit-2) was not only legal and valid but was also enforceable on the date of filing of the suit. This Court finds that the plaintiffs were able to prove that the agreement (Exhibit-2) was legal and valid on 07.12.2005 but have failed to prove that the agreement (Exhibit-2) was enforceable on the date of filing of the suit. This Court finds that the plaintiffs were able to prove that the agreement (Exhibit-2) was legal and valid on 07.12.2005 but have failed to prove that the agreement (Exhibit-2) was enforceable on the date of filing of the suit. Further, as held above, there was material suppression of facts on the part of the plaintiffs in the plaint. 14. Accordingly, the appeal is allowed and the impugned decree is set-aside. 15. As per the judgement passed by the learned court below, an amount of Rs. 2,50,000/- has been paid by the plaintiffs to the defendant (Rs.71,000/- on 07.12.2005 and 1,49,000/- on 24.12.2005), which the defendant is directed to refund to the plaintiffs within a period of two months from the date of receipt of a copy of this judgement with interest @ 15% per annum from the date of receipt of the money till the date of refund. 16. Let a copy of this judgment be handed over to the counsel for the parties. 17. Office is directed to prepare a decree pursuant to this judgment. 18. Let the records of the learned court below be sent back after preparation of decree.