JUDGMENT : Goutam Bhaduri, J. Heard. 1. At the very outset, learned counsel for the appellants would submit that the appellant do not want to press I.A.No.03 of 2023 i.e. application under Order 41 Rule 27 CPC. 2. No objection from other side. 3. Accordingly, the application (I.A.No.3 of 2023) is dismissed as not pressed. 4. The present appeal is by the plaintiffs against the judgment and decree passed by the First Additional District Judge, Bilaspur in Civil Suit No. 05-A/2013 wherein a suit for specific performance was dismissed. 5. According to the plaint allegation, the plaintiffs had entered into an agreement of purchase on 20.12.2010 (Ex. P-1) in respect of the part of the land of Khasra No.874/2 and out of that 0.42 acres was agreed to be purchased. As per the plaintiffs, the part of the said land which was subject of sale was acquired by the defendant Nos.1 to 7 i.e. Vikas Goswami (Defendant No.1), Smt. Durga Goswami (Defendant No.2), Minor Ritu (aged about 17 years) (Defendant No.3), Minor Neha (aged about 15 years) (Defendant No.4) {both defendant Nos. 3 & 4 represented by their natural guardian mother Smt. Durga Goswami}, Smt. Urmila (Defendant No.5), Smt. Pramila (Defendant No.6) & Smt. Nirmala Giri Goswami (Defendant No.7), by way of an oral partition in between their family. The plaintiffs further averred that initially the property was in the joint name of Vijay Kumar, Shiv Kori, Shivendra Kori, Shailendra Kori and Smt. Mongra Kori but after the oral partition 0.42 acres fell in share of Shiv Kori, Shivendra Kori, Shailendra Kori and Smt. Mongra Kori and remaining 0.42 acres of land fell into the share of Vijay Kumar. 6. The plaintiffs averred that the part of the land which was subject of agreement only the defendants arrayed were the owners and as per the agreement the total sale consideration was of Rs.25 Lakhs and out of that Rs. 2 Lakhs was paid as earnest money. 7. According to the plaintiffs, the agreement further purport that if the sale is not executed within a period of six months from 20.12.2010 then defendant Nos.1 to 7 were entitled to receive further Rs.3 Lakhs, inasmuch as, a litigation was pending before the Court. The plaintiffs stated that the said litigation came to an end on 05.08.2011 and despite the fact this was brought to the notice of the defendants/respondents Nos. The plaintiffs stated that the said litigation came to an end on 05.08.2011 and despite the fact this was brought to the notice of the defendants/respondents Nos. 1 to 7, they failed to abide by terms of agreement. The plaintiffs averred that the defendants since were trying to sale out the land in favour of third party, as such paper publication and the notices were exchanged in between the parties and suit for specific performance was filed. 8. During the trial separate set of written statements were filed. One set was filed by Vikas Goswami, Smt. Durga Goswami, Minor Ritu and Minor Neha. Whereas Defendant Nos. 5 to 7 namely Smt. Urmila, Smt. Pramila and Smt. Nirmala Giri Goswami filed another set of written statement. The plaintiffs further averred that they are ready and willing to perform their part of contract and further served the notices. According to the defence, defendant Nos. 1 to 7 stated that they are not the sole owners of the subject property as Geetanjali Goswami and her daughter Ku. Sonal also have a share in the property, therefore, by segregating their share, the sale deed could not have been executed. The defendants further stated that the signatures on the agreement were obtained on a false assurance to get the property divided from the joint ownership, as such they put their signatures and the agreement is out come of fraud. They also stated that the plaintiffs since did not show any sign to get the sale deed executed by payment of the subsequent sale consideration, they were not entitled to get the sale deed executed. Another defence was raised that Geetanjali Goswami has entered into an agreement of sale but was not a party to the agreement and after receiving part of the sale consideration of Rs.25 Lakhs another agreement was executed with one Shivam Real Estate and agreement was entered on 25.07.2011. It was further stated that the possession of the said land is also handed over to the said purchaser. Defendant No.6 repeated the averments as also Defendant Nos.5 & 7 stated the similar facts challenging the authenticity of the agreement. 9. Learned trial Court framed the issues about execution of the agreement of 20.12.2010 and finding was given in affirmative along with the fact that advance of Rs.2 Lkahs was paid. Defendant No.6 repeated the averments as also Defendant Nos.5 & 7 stated the similar facts challenging the authenticity of the agreement. 9. Learned trial Court framed the issues about execution of the agreement of 20.12.2010 and finding was given in affirmative along with the fact that advance of Rs.2 Lkahs was paid. With respect to the existence of agreement, the trial Court held it in affirmative that the agreement was not sham & bogus, however, with respect to the non-joinder of Geetanjali Goswami and Ku. Sonal Goswami as necessary party, the learned trail Court held they are necessary party and on that count the suit was dismissed. No issues were framed about readiness & willingness of the parties. 10. Learned counsel for the appellants would submit that three issues about the existence of agreement, payment of advance and finding of correctness of the agreement have been held in favour of the appellants/plaintiffs, which cannot be disturbed as no cross-appeal has been filed. He further submits that the dismissal is on the ground of non-joinder of the necessary party namely Geetanjali Goswami and Ku. Sonal Goswami to hold that they have a share in the property and further went on to decide the readiness and willingness without there being an issue in this regard. Referring to the law laid down in the case of Kasturi Vs. Iyyamperumal and Others { (2005) 6 SCC 733 } he would submit that the principle which is laid down that in a suit for specific performance, the parties to the agreement are the necessary parties and if the part of the property includes the right of a co-parcener and undivided share is taken into account the vendee has a right to apply for partition of the property, therefore, the dismissal on this ground would be improper. He would further submit that the admission on the part of the defendant exists about partition of the property, which has been completely ignored by the learned Court below. The scathing attack was made to the dismissal on the ground of readiness and willingness wherein it has been held otherwise, which is held against the plaintiff to say that findings are without an issue. He would further submit that no issues were framed in this regard and in a suit for specific performance, the issue of readiness and willingness is a must. He would further submit that no issues were framed in this regard and in a suit for specific performance, the issue of readiness and willingness is a must. He placed his reliance in the judgment rendered by the Supreme Court in the case of V.S. Ramakrishnan Versus P.M. Muhammed Ali {Civil Appeal Nos.8050-8051 of 2022} and would submit that the appeal in hand is required to be remanded back before the trial Court with a direction to frame issues and allow the parties to lead evidence and also allow them to amend the pleading accordingly. 11. Per contra, learned counsel for the respondents would submit that the appellants/plaintiffs having known the fact the share of the other members of undivided family exists did not array them in the suit, therefore, non-joinder of necessary parties, the dismissal would be proper. He would further submit that though the issues were not framed about readiness & willingness, no prejudice was caused to the appellants. He placed his reliance in the case of Moreshar S/o Yadaorao Mahajan Versus Vyankatesh Sitaram Bhedi (D) Thr. Lrs. And others {Civil Appeal Nos.5755-5756 of 2011} to support the impugned judgment and decree and would submit that the order is well merited which do not call for any interference. 12. We have heard learned counsel for the parties at length and perused the pleading and the evidence. 13. Primary fact about existence of the agreement in respect of 0.42 acres of land out of Khasra No.874/2 situated at Mangla, Tehsil & District Bilaspur on 20.12.2010 for a sale consideration of Rs.25 Lakhs has been held to be in favour of the appellants/plaintiffs along with the fact the amount of Rs.2 Lakhs was paid as an earnest money. The defence raised that the agreement is a sham & bogus has been accepted which was raised by the defendants/respondents. No cross-appeal has been filed against this finding. Consequently, the existence of agreement vide Ex. P-1 on 20.12.2010 and payment of earnest money remains unchallenged. 14.Reading of the order would show that the dismissal is primarily on the count that necessary parties i.e. Geetanjali Goswami and Ku. Sonal Goswami were not arrayed as a party defendant, which followed the dismissal. The dismissal is also with a finding that there is no proof of readiness and willingness on the part of the plaintiffs to execute the sale deed. 15. Sonal Goswami were not arrayed as a party defendant, which followed the dismissal. The dismissal is also with a finding that there is no proof of readiness and willingness on the part of the plaintiffs to execute the sale deed. 15. The Supreme Court in the matter of V.S. Ramakrishnan Versus P.M. Muhammed Ali {Civil Appeal Nos.8050-8051 of 2022, decided on November 9, 2022} while adjudicating the case of specific performance has laid down that the issue is required to be framed by the trial Court on readiness and willingness on the part of plaintiffs and without that the plaintiffs cannot be non-suited. It held that the trial Court in a suit for specific performance without putting the plaintiff to the notice without framing an issue on the readiness and willingness could not have non-suited the parties. The Supreme Court further held that the object and purpose of framing of issue is that the parties to the suit can lead specific evidence on the same and quashed the order of dismissal. 16. Likewise the Supreme Court in the case of Shenbagam and Others v K.K. Rathinavel 2022 SCC OnLine SC 71 laid down the emphasis on issue with respect to the readiness & willingness to perform the part of contract would be a necessary ingredient and separate specific finding are required to be placed. In this case, since the specific issue is absent about readiness and willingness, we deem it appropriate to set aside such finding which has observed against the plaintiffs about the readiness and willingness. 17. With respect to the non-joinder of the parties, the plaintiffs in the averments of plaint have claimed that an oral partition was effected in between the parties and after partition, the respective part of the property fell to the share of the defendants, with whom they entered into contract of purchase. 18. Learned trial Court has held that one Geetanjali Goswami & Ku. Sonal Goswami are the necessary parties and one of the finding also for dismissal of the suit is on that account. The Supreme Court in the matter of Kasturi Vs. 18. Learned trial Court has held that one Geetanjali Goswami & Ku. Sonal Goswami are the necessary parties and one of the finding also for dismissal of the suit is on that account. The Supreme Court in the matter of Kasturi Vs. Iyyamperumal and Others { (2005) 6 SCC 733 } considered the aspect and held that necessary parties in a suit for specific performance of contract for sale are the parties to the contract and if they are dead through their representatives and the person who has purchased the contracted property from the vender. The Supreme Court at para 7 of the judgment has held thus:- 7. In our view, a bare reading of this provision, namely, second part of Order 1 Rule 10 sub-rule (2) CPC would clearly show that the necessary parties in a suit for specific performance of a contract for sale are the parties to the contract or if they are dead, their legal representatives as also a person who had purchased the contracted property from the vendor. In equity as well as in law, the contract constitutes rights and also regulates the liabilities of the parties. A purchaser is a necessary party as he would be affected if he had purchased with or without notice of the contract, but a person who claims adversely to the claim of a vendor is, however, not a necessary party. From the above, it is now clear that two tests are to be satisfied for determining the question who is a necessary party. Tests are - (1) there must be a right to some relief against such party in respect of the controversies involved in the proceedings (2) no effective decree can be passed in the absence of such party. 19. When the pleading specifically says that there has been an oral partition in between the parties and the subject property fell to the share of the sellers though it has been denied in the written statement and in the cross-examination of Urmila Goswami (DW-1) as well as in the cross-examination of Nirmala Giri (DW-4) certain admission exists about the partition, therefore, it was not specifically proved before the learned trial Court that in respect of the suit property no partition was created, however, the trial Court draws an inference that it being undivided property their right exists being the joint holders. It is not a case that the plaintiffs admitted that Geetanjali Goswami and Ku. Sonal Goswami had a right in the subject property, therefore, the reliance placed by the respondent in the case of Moreshar S/o Yadaorao Mahajan Versus Vyankatesh Sitaram Bhedi (D) Thr. Lrs. And others {Civil Appeal Nos.5755-5756 of 2011} would be different in the facts of this case as in the said judgment despite the admission, in the subject property the right of the co-sharers exists, they were not made a party, whereas in the instant case the plaintiffs had pleaded otherwise. 20. We therefore, in facts of case would follow the principle laid down in the case of Kasturi Vs. Iyyamperumal and Others { (2005) 6 SCC 733 } wherein the Supreme Court stated that in a suit for specific performance, parties to the agreement would be necessary party. It is admitted that the said Geetanjali Goswami and Ku.Sonal Goswami they have undivided share. It is a settled proposition that without there being a physical and formal partition of an undivided property, the co-sharer cannot put the vendee in possession although such a co-sharer may have a right to transfer his undivided share. 21. The respondents No.1 to 7 even if it is held that they have an undivided share along with Geetanjali Goswami & Ku. Sonal Goswami, the cosharer can execute the sale. The proposition has been framed by the Supreme Court in the case of Syscon Consultants Private Limited Versus Primella Sanitary Products Private Limited and another { (2016) 10 SCC 353 } wherein the Supreme Court held that based on the equitable principle which states that even if the undivided share of one of the other heirs of the property cannot be transferred, the remaining share of the other heirs certainly can be transferred. The Supreme Court further in the case of Ramdas Vs. Sitabai & Ors. {AIR 2009 Supreme Court 2735} reiterated the view laid down in the case of Sidheshwar Mukherjee Vs. Bhubneshwar Prasad Narain Singh & Ors. { AIR 1953 SC 487 } and held that vendee purchased undivided interest of coparcener in the joint property, he will not acquire any title to any defined share in the property and was not entitled to joint possession from the date of his purchase. He could work out his rights only by a suit for partition. { AIR 1953 SC 487 } and held that vendee purchased undivided interest of coparcener in the joint property, he will not acquire any title to any defined share in the property and was not entitled to joint possession from the date of his purchase. He could work out his rights only by a suit for partition. The Supreme Court further in the judgment laid down relied on the principle that the co-sharer cannot put a vendee in possession. For sake of brevity para 15 of the judgment is reproduced herein below:- 15. Without there being any physical formal partition of an undivided landed property, a co-sharer cannot put a vendee in possession although such a co-sharer may have a right to transfer his undivided share. Reliance in this regard may be placed to a decision of this Court in M.V.S. Manikayala Rao Vs. M. Narasimhaswami & Ors. [ AIR 1966 SC 470 ], wherein this Court stated as follows: "Now, it is well settled that the purchaser of a co-parcener's undivided interest in the joint family property is not entitled to possession of what he had purchased. His only right is to sue for partition of the property and ask for allotment to him of that which, on partition, might be found to fall to the share of the co-parcener whose share he had purchased." 22. Therefore, in view of the aforesaid discussions, we are of the view that the judgment passed by the learned Court below cannot be sustained, accordingly we set aside the finding of dismissal on the ground of nonjoinder of parties namely Geetanjali Goswami & Ku. Sonal Goswami and since the dismissal is also on the ground that the plaintiffs have not proved their readiness and willingness there being no specific issue to this effect, we remand the case to the learned Court below with a direction to frame specific issue on the readiness and willingness of the contract dated 20.12.2010 (Ex. P-1) and the parties would be allowed to make specific amendment and also may lead further evidence including the factum of partition, if any had taken place in between the parties. 23. Accordingly, the appeal is allowed to the above extent.