Page No.# 1/9 GAHC010286422025 2026:GAU-AS:13740 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : RSA/90/2026 JOYNAL HUSSAIN BARBHUIYA AND ANR S/O LATE AHMED ALI BARBHUIYA, VILL- BARNAGAD, P.S.- ALGAPUR, DIST- HAILAKANDI, P.O.- KALIBARI BAZAR, PIN-788150 2: ALI HUSSAIN BARBHUIYA S/O LATE AHMED ALI BARBHUIYA VILL- BARNAGAD P.S.- ALGAPUR DIST- HAILAKANDI P.O.- KALIBARI BAZAR PIN-78815 VERSUS BASIR UDDIN LASKAR AND ANR S/O LATE RASHID ALI LASKAR, R/O VILL- ALGAPUR PART-I, P.S.- ALGAPUR, P.O.- KALIBARI BAZAR, DIST- HAILAKANDI, PIN-788150 2:MUSSSTT. SUFIA BEGUM LASKAR W/O BASIR UDDIN LASKAR R/O VILL- ALGAPUR PART-I P.S.- ALGAPUR P.O.- KALIBARI BAZAR DIST- HAILAKANDI PIN-78815 Advocate for the Petitioner : MR. A CHOUDHURY, MR. R A CHOUDHURY,MR. R A MAZUMDER Advocate for the Respondent : MR N A MAZARBHUIYA(R1,2), MR. A K AZAD(R1,2),MR M HUSSAIN(R1,2),MR. N HAQUE(R1,2) Page No.# 2/9 BEFORE HONOURABLE MR. JUSTICE ROBIN PHUKAN ORDER 16.09.2026 Heard Mr. A. Choudhury, learned counsel for the appellant and Mr. N. Haque, learned counsel for the respondents. 2. This appeal, under Section 100 of the Code of Civil Procedure, is directed against the Judgment and Decree, dated 01.08.2025, passed by the learned Civil Judge (Sr. Div.), Hailakandi (hereinafter, ‘First Appellate Court’), in Title Appeal No. 08/2024, whereby, the appeal filed by the appellant/defendant has been dismissed and thereby, upheld the Judgment and Decree, dated 25.04.2024, passed by the learned Civil Judge (Jr. Div.) No. 2, Hailakandi (hereinafter, ‘Trial Court’), in T.S. No. 113/2006. 3. For the sake of conveyance, the status of parties hereinafter will be referred to as indicated in the Title Suit No. 113/2006. 4. Mr. Choudhury, learned counsel for the appellants/defendants submits that the defendants, being the owner of the suit schedule land, agreed to sell it to the plaintiffs on a consideration of Rs. 48,000/- and executed an agreement for sale on 01.10.2003, in favour of the plaintiffs and received a sum of Rs. 25,000/- as advance. They promised to execute a registered sale deed in favour of the plaintiffs, if the plaintiff pays the remaining sum of Rs. 23,000/- within one month from the date of execution of the bainanama/agreement. Page No.# 3/9 Thereafter, the defendants, in need of money, within the period fixed in the bainanama, i.e., on 30.10.2003, again received Rs. 10,000/- from the plaintiffs and executed a fresh bainanama/agreement (agreement for sale), extending the period of the earlier executed bainanama, and also accepted that they have received Rs. 35,000/- in total on the two dates, and upon receipt of the remaining amount of Rs. 13,000/- from the plaintiffs within 31.12.2004, they would execute and register the sale deed in favour of the plaintiffs. It was also agreed that in the event of failing to execute the sale deed on their own, the plaintiffs would be entitled to get it executed and registered through the Court, and that after expiry of the stipulated period, the plaintiffs will not be entitled to demand the money paid by them, etc. Thereafter, being ready with the remaining amount of consideration, the plaintiffs asked the defendants verbally to execute the sale deed by accepting the remaining amount of sale consideration. But, when they observed that the defendants were delaying the process, the plaintiffs had served one legal notice to the defendants on 20.12.2004, thereby asking them to execute and register the Sale Deed on 29.12.2004, by appearing before the deed writer, namely, Samsul Haque Laskar, at Hailakandi Bar, within 10 AM to 4 PM. But, the defendants failed to turn up on the said date. Then, being aggrieved, the plaintiffs had instituted a suit, being Title Suit No. 113/2006, for specific performance of the agreement and for execution of the Sale Deed, through the Court, in the event of failure of the defendant to execute the sale deed; and for delivery of khas possession of the title suit. 4.1 Mr. Choudhury further submits that the defendants have filed their joint Page No.# 4/9 statement, wherein, they have taken a plea of no cause of action and non- maintainability of the suit and denied the contention of the plaintiffs. They had stated that the plaintiffs had violated the terms of the bainanama, dated 01.10.2003, and as such, the suit is liable to be dismissed. They also stated that in order to supress their failure, the plaintiffs had prepared the second agreement, being in collusion with the witnesses, and have filed the instant suit against them falsely. They had also stated that they had executed a bainanama/agreement on 01.10.2003, whereby, they promised to execute and register the sale deed in favour of the plaintiffs, if the plaintiffs pay the remaining amount of Rs. 23,000/- to them, within one month from the date of execution of that bainanama. And if the plaintiffs did not pay the remaining amount within the period of one month, and the sale deed is not executed, the plaintiffs will not be entitled to receive the amount that they have already paid. During the period of the said bainanama, they approached the plaintiffs to execute the sale deed and to get the remaining amount of consideration from them, but they failed to do so and as such, they did not receive the remaining amount of consideration from the plaintiffs. 4.2 Upon the aforementioned pleadings, the learned Trial Court has framed the following issues – “1. Whether the defendants on receiving another amount of Rs.10,000/- in advance on 30/10/2003 executed another bainapatra by enhancing the stipulated period of earlier bainapatra dated 01/10/2003 ? 2. Whether the suit is barred by limitation? Page No.# 5/9 3. To what relief or reliefs plaintiff is entitled to?” And thereafter, the learned Trial Court has answered all the issues in affirmative and decreed the suit of the plaintiffs, vide impugned Judgment and Decree, dated 25.04.2024. 4.3 It is the further submission of Mr. Choudhury that being aggrieved; the respondents herein have preferred an appeal, being Title Appeal No. 8/2024, on several grounds and the learned First Appellate Court had formulated the following points for determinationꟷ “(1) Whether the defendants on receiving another amount of Rs.10,000/- in advance on 30.10.2003, executed another bainapatra by enhancing the stipulated period of earlier bainapatra dated 01.10.2003? (2) Whether the suit is barred by limitation? (3) To what relief or reliefs plaintiffs are entitled to?” And thereafter, hearing the learned counsel for both the parties, the learned First Appellate Court had decided all the points in affirmative in favour of the plaintiffs and thereby, upheld the Judgment and Decree, dated 25.04.2024, passed by the learned Trial Court, in Title Suit No. 113/2006. 4.4 Mr. Choudhury also submits that being aggrieved, the appellants have approached this Court by filing the present appeal, under Section 100 of the Code of Civil Procedure, mainly on the ground that both the learned Courts below, while deciding the title suit and the title appeal, had not formulated any Page No.# 6/9 issue on the point of continuous readiness and willingness on the part of the plaintiffs. And accordingly to Mr. Choudhury, this issue is a vital issue and for non-framing of any issue on this point, and also due to not directing any discussion to the issue, and also due to absence of any conclusion to that effect; the appellants herein suffer serious prejudice and therefore, he has contended to set aside the impugned Judgment and Decree, passed by the learned First Appellate Court and to remand the matter, by formulating an issue on the point of continuous readiness and willingness, as required under Section 16(c) of the Specific Relief Act, 1963. 4.5 In support of his contention, Mr. Choudhury has referred to a decision of the Hon’ble Supreme Court in the case of Kamal Kumar Vs. Premlata Joshi and Others, reported in (2019) 3 SCC 704. He submits that in paragraph No. 7 of the aforesaid judgment, the Hon’ble Supreme Court has held that ꟷ “7. It is a settled principle of law that the grant of relief of specific performance is a discretionary and equitable relief. The material questions, which are required to be gone into for grant of the relief of specific performance, are: 7.1. First, whether there exists a valid and concluded contract between the parties for sale/purchase of the suit property. 7.2. Second, whether the plaintiff has been ready and willing to perform his part of contract and whether he is still ready and willing to perform his part as mentioned in the contract. 7.3. Third, whether the plaintiff has, in fact, performed his part of the contract and, if so, how and to what extent and in what manner he has performed and whether such performance was in Page No.# 7/9 conformity with the terms of the contract; 7.4. Fourth, whether it will be equitable to grant the relief of specific performance to the plaintiff against the defendant in relation to suit property or it will cause any kind of hardship to the defendant and, if so, how and in what manner and the extent if such relief is eventually granted to the plaintiff; 7.5. Lastly, whether the plaintiff is entitled for grant of any other alternative relief, namely, refund of earnest money, etc. and, if so, on what grounds.” Thereafter, in paragraph No. 8 of the aforesaid Judgment, the Hon’ble Supreme Court has held that ꟷ “8. In our opinion, the aforementioned questions are part of the statutory requirements [Sections 16(c), 20, 21, 22, 23 of the Specific Relief Act, 1963 and Forms 47/48 of Appendices A to C of the Code of Civil Procedure]. These requirements have to be properly pleaded by the parties in their respective pleadings and proved with the aid of evidence in accordance with law. It is only then the Court is entitled to exercise its discretion and accordingly grant or refuse the relief of specific performance depending upon the case made out by the parties on facts.” 5. Mr. Haque, learned counsel for the respondents, also conceded to the submission of Mr. Choudhury, learned counsel for the appellants. Mr. Haque has referred to a decision of the Hon’ble Supreme Court in the case of R. Kandasamy (Since Dead) and Others Vs. T.R.K. Sarawathy and Another, reported in (2025) 3 SCC 513, wherein, in paragraph No. 18, the Hon’ble Supreme Court has referred to its earlier decision in the case of Kamal Page No.# 8/9 Kumar (Supra), in paragraph Nos. 7 & 8; and reaffirmed the said proposition in the said case. 5.1 Relying upon the aforementioned decision, Mr. Haque also submits that the learned Courts below ought to have framed one issue on the point of continuous willingness and readiness on the part of the plaintiffs. And since none of the Courts below had framed any issue/point for decision/determination on the aforementioned point, he suggests that an issue may be formulated under Order 41 Rule 25, and the matter may be remanded to the learned First Appellate Court for a fresh decision, by allowing the parties to adduce evidence, if warranted. 6. Having heard the submissions of the learned counsel for both the parties, this Court has carefully gone through the memo of appeal and the grounds mentioned therein, and also gone through the decisions of the Hon’ble Supreme Court, referred to by the learned counsel for both the parties. 7. Indisputedly, no issue on the point of continuous readiness and willingness on the part of the plaintiffs, has been framed by any of the learned Courts below and it appears from the decision of the Hon’ble Supreme Court in the case of Kamal Kumar (Supra), that one issue ought to have been framed to determine the continuous readiness and willingness of the plaintiffs to perform their part of the contract. 8. Accordingly, taking note of the submissions of the learned counsel for both the parties and also taking note of the decisions of the Hon’ble Supreme Court, on the aforesaid legal proposition, this Court is inclined to remand the matter to Page No.# 9/9 the learned First Appellate Court for a fresh decision, by exercising jurisdiction under Order 41 Rule 25 of the CPC; and by formulating the following point for determination ꟷ “Whether the plaintiffs were continuously ready and willing to perform their part of the contract and whether, they are still ready and willing to perform their part, as mentioned in the bainanama/agreement?” 9. It is further provided that the parties may be afforded an opportunity to adduce evidence in support of their case and thereafter, hearing arguments of both the parties, a fresh decision shall be pronounced. 10. In order to facilitate in carrying out of the aforementioned exercise, the impugned Judgment and Decree, dated 01.08.2025, passed by the learned First Appellate Court, in Title Appeal No. 08/2024, stands set aside and quashed. 11. In terms of the above, this RSA stands disposed of, leaving the parties to bear their own costs. It is also provided that both the parties shall appear before the learned First Appellate Court, on or before 10.11.2026. JUDGE Comparing Assistant