JUDGMENT : (ROBIN PHUKAN, J.) Heard Mr. P. Borah, learned counsel for the appellants and also heard Mr. N. Alam, learned counsel for the respondent/plaintiff. 2. This appeal, under Order 41 Rule 1 of the Code of Civil Procedure, 1908, is directed against the judgment and decree, dated 30.06.2018 and 05.07.2018, respectively, passed by the learned Civil Judge No.1, Kamrup(M), Guwahati, ( trial court hereinafter) in Title Suit No.230/2014. It is to be noted here that vide impugned judgment and decree dated 30.06.2018 and 05.07.2018, the learned Trial Court has decreed the suit of the plaintiff directing the appellants herein, to execute and register the final sale deed for the suit land as described in the schedule of the plaint, on receipt of balance payment of Rs.32,00,000/- within 60 days or in alternate, if the defendant refused to execute the sale deed, the same shall be executed by the said Court, on behalf of the defendant and thereafter, the defendant/appellant shall handover the vacant possession of the suit land measuring 1 katha 12‰ lechas to the plaintiff/respondent. 3. For the sake of convenience, herein this appeal, the designation of the parties, used by the Trial Court is adopted. 4. The background facts leading to filing of the present appeal is briefly stated as under:- “The defendant is the owner of a plot of land measuring 1 katha 12‰ lechas with one Assam type house standing thereon. He entered into an agreement with the plaintiff on 14.08.2013, for selling the land with the house fixing the sale consideration at Rs.73,00,000/-. The plaintiff plaid a sum of Rs.38,00,000/- in advance on the day of execution of the agreement for sale and prior to the said agreement, she paid another sum of Rs.3,00,000/- and it was also agreed that rest of the amount will be paid at the time of execution and registration of the sale deed. In view of the terms and conditions in the agreement, the defendant shall have to obtain the sale permission from the concerned authorities on 28.05.2014. Thereafter, on repeated request made by the plaintiff, the defendant did not apply for permission before the Guwahati Metropolitan Development Authority (GMDA). In view of the terms and conditions in the agreement, the defendant shall have to obtain the sale permission from the concerned authorities on 28.05.2014. Thereafter, on repeated request made by the plaintiff, the defendant did not apply for permission before the Guwahati Metropolitan Development Authority (GMDA). Then left with no other option, the plaintiff has instituted the suit for specific performance of the contract of the agreement, dated 14.08.2013, directing the defendant to execute a registered sale deed in her favour after receipt of the balance consideration of Rs.32,00,000/- along with recovery of possession and other relief and cost of the suit. Alternatively, it is also prayed for a decree for refund/compensation of Rs.73,000,00/- which is the value of the suit land and the house along with interest @ 24% per annum from 14.08.2013 till realization. On receipt of the notice, the defendant entered appearance and contested the suit by filing written statement stating that the suit is barred by the law of limitation and that for non-joinder of necessary parties, the suit is bound to fail and that the plaintiff refused to abide by the terms and conditions so laid down in Clause No.9 of the agreement. Upon the aforementioned pleadings, the learned Trial Court has framed as many as 5(five) issues:- 1. Whether the suit is maintainable in law as well as on facts? 2. Whether the suit is barred by the law of limitation? 3. Whether the plaintiff has been ready and willing to perform her part of the deed of agreement, dated 14.08.2013? 4. Whether the plaintiff failed to perform the duty cast upon her by clause 1 of the said deed of agreement? 5. Whether the plaintiff is entitled to any relief as prayed for? Thereafter, taking evidence of both the parties and after hearing learned Advocates of both sides; the learned Trial Court has decided the Issue No.1, 2, 3 in affirmative and 4 in negative, but, in favour of the plaintiff and also decided Issue No. 5 in affirmative and thereafter, decreed the suit as aforesaid.” 5. Being aggrieved, the defendant approached this Court by filing the present appeal on the following grounds:- (i) The learned Trial Court had erred in law and in fact in passing the impugned judgment and decree dated 30.06.2018 and 05.07.2018 and failed to appreciate the averment of the defendant in its proper perspective. Being aggrieved, the defendant approached this Court by filing the present appeal on the following grounds:- (i) The learned Trial Court had erred in law and in fact in passing the impugned judgment and decree dated 30.06.2018 and 05.07.2018 and failed to appreciate the averment of the defendant in its proper perspective. (ii) The learned Trial Court had failed to appreciate the evidence in its proper perspective. (iii) The learned Trial Court had also failed to appreciate the law of limitation. (iv) The learned Trial Court also failed to take into account the agreement for sale, being Deed No.7061/2013, dated 14.08.2013 (Exhibit 1), which clearly stipulates various terms and conditions and as per terms of the agreement, permission for sale of the schedule land from the Deputy Commissioner, Kamrup(M) and no objection certificate has to be obtained by the defendant herein and all requisite expenses for the same has to be borne by him and that the statement and averment made in the plaint, by the plaintiff, is false and he failed to comply with the terms and conditions of the sale agreement and also did not cooperate with the defendant to take permission from GMDA within stipulated time and as such, no cause of action arose. (v) The learned Trial Court had failed to appreciate the evidence of PW-1, wherein the plaintiff is not ready to solve the dispute that arose prior to filing of the suit after execution of the agreement for sale, wherein it was agreed that if any dispute arises over the schedule plot of land, the plaintiff shall resolve the same and Exhibit-1 clearly goes to show that the plaintiff is not ready and willing to abide by the terms and conditions of the agreement for sale and this aspect was not considered by the learned Trial Court for which the impugned judgment and decree is bad in law. (vi) The evidence of the plaintiff shows that in the event of accrual of any dispute in respect of the schedule plot of land, it was the plaintiff who was to take care and resolve the same and she also admitted that in clause 9 of Exhibit-1, stipulates that at the time of delivering the khas possession, if the area of the schedule property increases or decreases after proper demarcation, then the value of the schedule property will be mutually decided by the parties themselves, but the plaintiff did not comply with the same and failed to resolve the dispute amicably. (vii) The learned Trial Court had failed to take note of the clause 9 of the Exhibit-1 and that the plaintiff had failed to comply with the terms and condition in clause 9 of the agreement (Exhibit-1). (viii) The learned Trial Court had also failed to take note of the evidence of the plaintiff, who admitted that as per clause 9 of the Exhibit-1, it was agreed that at the time of delivering the khas possession, if area of the schedule property increases or decreases after proper demarcation, then the value of the schedule property will be mutually decided by the parties themselves, but the plaintiff herself failed to comply with the terms and condition of the sale agreement and the learned Trial Court had failed to take notice of the same, for which the impugned judgment and decree is bad in law. (ix) The learned Trial Court had erred in law by holding that the plaintiff had failed to perform her part of the agreement for sale dated 14.08.2013, as per clause 9 of the said agreement (Exhibit-1) and also failed to take note of the fact mentioned in paragraph 9 of the written statement and the plaintiff has suppressed the material fact that as the parties in the suit demarcated the suit property and came to know that actual measurement of the suit property is 1 katha 16‰ lechas, which is more than 1 katha 12‰ lechas, as mentioned in the plaint as well as in the sale agreement and as per clause 9 of the agreement for sale dated 14.08.2013, it was specifically stipulated that if the area of schedule property increases or decreases after proper demarcation, then the value of the schedule property will mutually be decided by the parties themselves and therefore, the plaintiff had failed to perform her part of contract as per clause 9 of the agreement for sale dated 14.08.2013. (x) The plaintiff had never approached the defendant to sign any document for obtaining permission from the authorities concerned, which clearly goes to show that she is not ready and willing to perform her part of the contract. (xi) The learned Trial Court had also erred in law and in facts in decreeing the suit, as the agreement was entered into by the parties on 14.08.2013 and in the year 2018 without taking into consideration the price of the schedule land which has increased manifold and also not considered the value of surplus land of 4 lecha of the defendant, which is the main dispute between him and the plaintiff and the plaintiff had failed to perform her part of contract as per clause 9 of the Exhibit-1 and it was not equitable to grant a decree of specific performance. 6. Under such circumstances, it is contended to set aside the impugned judgment and decree passed by the learned Trial Court. 7. Mr. Borah, learned counsel for the appellants, submits that the impugned judgment and decree suffers from non-consideration of the fact that has been stipulated in clause 9 of the agreement (Exhibit-1) and also the cross-examination of the plaintiff in its proper perspective. Taking this Court through the Exhibit-1, Mr. 7. Mr. Borah, learned counsel for the appellants, submits that the impugned judgment and decree suffers from non-consideration of the fact that has been stipulated in clause 9 of the agreement (Exhibit-1) and also the cross-examination of the plaintiff in its proper perspective. Taking this Court through the Exhibit-1, Mr. Borah submits that at clause 9 there is a specific stipulation to the effect that if at the time of demarcation of the schedule land, if any increase or decrease of the area is found, then the same has to be resolved by mutually deciding the value of the same. But, Mr. Borah submits, at the time of demarcation, the actual land was found to be 1 katha 16‰ lechas, which is more than 4 lechas then the land mentioned in the Schedule i.e. 1 katha 12‰ lechas of land. Mr. Borah also submits that while the agreement was entered into on 14.08.2013, the suit was decreed in the year 2018 and in the meantime the price of the land increased in manifold and the plaintiff is not willing to settle the issue of 4 lechas of land and that the learned Trial Court had failed to consider this aspect and on such count, the impugned judgment and decree is liable to be set aside and quashed. 8. Per contra, Mr. Alam, learned counsel for the respondent/plaintiff has supported the impugned judgment and decree so passed by the learned Trial Court. Mr. Alam submits that there is no infirmity or illegality in the impugned judgment and decree and the learned Trial Court has considered the evidence and the materials placed on record in its proper perspective and rightly decreed the suit and as such, Mr. Alam has contended to dismiss the appeal. 9. Having heard the submission of learned counsel for both the parties, I have carefully gone through the memo of appeal and the grounds mentioned therein and also perused the impugned judgment and decree, dated 30.06.2018 and 05.07.2018 passed by the learned Trial Court. 10. Being the First Appellate Court, this court has to decide the appeal after formulating points for determination. 10. Being the First Appellate Court, this court has to decide the appeal after formulating points for determination. Accordingly, taking note of the submission of learned counsel for both the parties and also considering the facts and circumstances on the record, the points to be determined by this Court are formulated as under:- (i) Whether the learned Trial Court had taken note of the pleadings of the parties and the evidence adduced by them in true perspective in deciding the issues? (ii) Whether the learned Trial Court had misread the evidence of P.W.1 in deciding the Issue No. 3 and 4 ? 11. For the sake of convenience for the points, so formulated above, are taken up together for discussion. 12. It is to be noted here that before the learned Trial Court, the plaintiff had examined as many as five witnesses, including herself, and also exhibited as many as seven documents in support of jer case. The defendant had examined as many as two witnesses, including him and exhibited no documents. I have carefully gone through the evidence and the documents so exhibited. 13. That from the submission of learned counsel for the parties and also from a careful perusal of the impugned judgment and decree as well as the pleadings of the parties and the documents so exhibited, it appears that there is no dispute regarding the terms and conditions, so set out in the Agreement for sale i.e. Exhibit-1, which relates to selling of a plot of land, measuring 1 katha 12‰ lechas, covering Dag No.214 of K.P. Patta No.446, situated at revenue village No. 1, Madhgharia, under Beltola Mouza, with an Assam type house standing thereon. It is also not in dispute that the sale consideration of the land of 1 katha 12‰ lechas was fixed at Rs.73,00,000/- and admittedly, the defendant has received a sum of Rs.41,00,000/- and it is also not in dispute that as per terms and conditions in Exhibit-1, the defendant had agreed to obtain the sale permission from the GMDA. It also appears that and the balance consideration of Rs.32,00,000/- has to be paid by the plaintiff at the time of execution of the registered saloe deed. 14. That, a careful perusal of the clause 9 of the agreement (Exhibit-1) dated 14.08.2013, reveals that there is a clause, being clause 9, which read as under:- 9. It also appears that and the balance consideration of Rs.32,00,000/- has to be paid by the plaintiff at the time of execution of the registered saloe deed. 14. That, a careful perusal of the clause 9 of the agreement (Exhibit-1) dated 14.08.2013, reveals that there is a clause, being clause 9, which read as under:- 9. “That, it is hereby agreed by both the parties that at the time of delivering the khas possession, if the area of the schedule property increases or decreases after proper demarcation, then the value of the schedule property will be mutually decided by the parties themselves.” 15. There is no dispute in respect of the aforesaid stipulation in clause No.9. Further, from the written statement, filed by the defendant, it appears that a specific plea was taken by him in para No.9, that while the schedule land was demarcated, the actual measurement of the land was found to be 1 katha 16‰ lecha, which is more than 1 katha 12‰ lechas, as mentioned in the plaint and there was an increase of 4 lechas of land and as per clause 9 of the agreement for sale dated 14.08.2013, (registered Deed No.7061), if the area of the schedule property increases or decreases, after proper demarcation, then the value of the schedule property will be mutually decided by the parties themselves, is suppressed by the plaintiff and that she had tried to mislead the Court. 16. In his evidence-on-affidavit also, the defendant had made a categorical statement at paragraph No.3 that the plaintiff had suppressed material fact that while the parties in the suit had demarcated schedule land, the actual measurement of the land was found to be 1 katha 16‰ lechas, which is more than 1 katha 12‰ lechas, as mentioned in the plaint and there was an increase of 4 lecha of land and as per clause 9 of the agreement for sale dated 14.08.2013, if the area of the schedule property increases or decreases, after proper demarcation, then the value of the schedule property will be mutually decided by the parties themselves. This piece of evidence of the defendant remained un-impeached in cross-examination. 17. Rather, the plaintiff in her cross-examination in no uncertain terms had admitted the said fact. This piece of evidence of the defendant remained un-impeached in cross-examination. 17. Rather, the plaintiff in her cross-examination in no uncertain terms had admitted the said fact. For ready reference the same is quoted herein below:_ “When the land was measured and 4 lechas of land was found in excess, I was not agreeable to pay the price for that at that time as per clause 9 of the agreement.” 18. But, it appears that this specific plea of the defendant in para No. 9 of the written statement and the evidence of the defendant in paragraph No.3 of the evidence-on-affidavit, eschewed consideration of the learned Trial Court while deciding the Issue Nos.3 and 4, in the impugned judgment and decree. Needless to state that these two issues are vital issues in the title suit. Mr. Borah, learned counsel for the appellant/defendant has rightly pointed this out at the time of hearing. It also appears that the defendant/appellant had taken a specific plea in the memo of appeal in this regard. 19. So, it appears that the schedule land was measured by the parties and 4 lechas of land found in excess. Thus total land is found to be 1 katha 16‰ lechas, through the agreement for sale was for 1 katha 12‰ lechas. But, in view of clause 9 of the Agreement (Exhibit-1) it was agreed by both the parties that at the time of delivering the khas possession, if the area of the schedule property increases or decreases after proper demarcation, then the value of the schedule property will be mutually decided by the parties themselves. But, admittedly, the plaintiff is not agreeable to pay the price for that at that time as per clause 9 of the said agreement. 20. Since the learned Trial Court has failed to consider the pleadings as well as the evidence of the PW-1 as well as of D.W.1, in its proper perspective in deciding the Issue Nos.3 and 4 and since the plaintiff is admittedly not agreeable to pay the price of the excess plot of land as stipulated in clause 9 of the agreement (Exhibit-1), what can be concluded logically is that the plaintiff was, in fact, not ready and willing to perform her part of the contract in terms of the agreement (Exhibit-1). 21. 21. In that view of the matter, the finding, so recorded by the learned Trial Court in respect of Issue Nos.3 and 4 are perverse. And on such count, the same is liable to be set aside and quashed. As the plaintiff admittedly refused to abide the terms and condition as set out in the clause 9, of the agreement, she is not entitled to any equitable relief in the court. And that being so, the impugned judgment and decree is also liable to be set aside and quashed. 22. Thus, the point No.1, i.e. whether the learned Trial Court had taken note of the pleadings of the parties and the evidence adduced by them in true perspective in deciding the issues, has to be decided in negative. Similarly, the point No.2, i.e. whether the learned Trial Court had misread the evidence of P.W.1 in deciding the Issue No. 3 and 4 hand to be decided in affirmative. 23. In the result, this appeal stands allowed. The judgment and decree so passed by the learned Trial Court stands set aside and quashed. Though the plaintiff is not entitled to a decree of specific performance of contract of the agreement for sale dated 14.08.2013, for failing to discharge her contractual obligation under Section 16(c) of the Specific Relief Act, 1963, yet, she is entitled to a decree for alternative relief, being prayed in the plaint., i.e. refund of the amount she had already paid, in view of Section 22(2) of the said Act. 24. Thus, while setting aside the judgment and decree dated 30.06.2018 and 05.07.2018, passed by the learned Civil Judge No.1, Kamrup (M), Guwahati, in Title Suit No.230/2014, this Court is of the opinion that this is a fit case where the plaintiff suit can be decreed by granting alternative relief i.e. refund of the amount already paid by the plaintiff i.e. Rs. 41,00,000/ to the defendant, with interest @ 9% per annum from 14.08.2013, till realization. In holding so, this Court derived authority from the a decision of Hon’ble Supreme Court in the case of K.R. Suresh v. R. Poornima & Ors. , reported in 2025 SCC OnLine SC 1014 25. In the result, the appeal stands allowed. The plaintiff suit is decreed by granting alternative relief i.e. refund of the amount i.e. Rs. In holding so, this Court derived authority from the a decision of Hon’ble Supreme Court in the case of K.R. Suresh v. R. Poornima & Ors. , reported in 2025 SCC OnLine SC 1014 25. In the result, the appeal stands allowed. The plaintiff suit is decreed by granting alternative relief i.e. refund of the amount i.e. Rs. 41,00,000/ which the plaintiff had already paid to the defendant, with interest @ 9% per annum from 14.08.2013, till realization. Decree be prepared accordingly. 26. Send down the record of the learned trial Court with a judgment and order of this court.