Page No.# 1/23 GAHC010214212019 2026:GAU-AS:8387 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : RSA/79/2021 ON THE DEATH OF MD. NASIR KHAN HIS LEGAL HEIRS REPRESENTED BY, 1.1: GULENA BEGUM W/O LATE MD. NASIR KHAN R/O VILLAGE- DIMOROGURI KALIBARI PATH NAGAON MOUZA NIZSAHAR DIST. NAGAON ASSAM 1.2: AMZAD KHAN S/O LATE MD. NASIR KHAN R/O VILLAGE- DIMOROGURI KALIBARI PATH NAGAON MOUZA NIZSAHAR DIST. NAGAON ASSAM 1.3: RASED KHAN S/O LATE MD. NASIR KHAN R/O VILLAGE- DIMOROGURI KALIBARI PATH NAGAON MOUZA NIZSAHAR DIST. NAGAON ASSAM 1.4: BIKI KHAN S/O LATE MD. NASIR KHAN R/O VILLAGE- DIMOROGURI KALIBARI PATH Page No.# 2/23 NAGAON MOUZA NIZSAHAR DIST. NAGAON ASSAM 1.5: NESIMA BEGUM D/O LATE MD. NASIR KHAN R/O VILLAGE- DIMOROGURI KALIBARI PATH NAGAON MOUZA NIZSAHAR DIST. NAGAON ASSAM 1.6: RANI KHAN D/O LATE MD. NASIR KHAN R/O VILLAGE- DIMOROGURI KALIBARI PATH NAGAON MOUZA NIZSAHAR DIST. NAGAON ASSA VERSUS MD. NURUL AMIN S/O- LATE SIRAJUL HAQUE, R/O- VILL.- DIMOROGURI, KALIBARI PATH, NAGAON, MOUZA- NIZSAHAR, DIST.- NAGAON, ASSAM. Advocate for the appellants : Mr. M.U. Mahmud Advocate for the respondent : Mr. M. Dutta, Sr. Adv.; Mr. J. Mahanta Date on which judgment is reserved : N/A Date of pronouncement of judgment : 12.06.2026 Whether the pronouncement is of the operative part of the judgment? : N/A Whether the full judgment has been pronounced? : Yes Page No.# 3/23 BEFORE HONOURABLE MR. JUSTICE ROBIN PHUKAN JUDGMENT & ORDER (ORAL) Heard Mr. M.U. Mahmud, learned counsel for the appellants. Also heard Mr. M. Dutta, learned Senior Counsel, assisted by Mr. J. Mahanta, learned counsel for the respondent. 2. This appeal, under Section 100 of the CPC, is directed against the judgment dated 20.05.2019 and decree dated 01.06.2019, passed by the learned Civil Judge, Nagaon, in Title Appeal No. 1/2018. 3. It is to be noted here that vide judgment dated 20.05.2019 and decree dated 01.06.2019, the learned Civil Judge, Nagaon (‘first appellate Court’, for short) had reversed and set aside the judgment and decree dated 29.11.2017, passed by the learned Munsiff No. 1, Nagaon (‘trial Court’, for short), in Title Suit No. 138/2011. 4. For the sake of convenience and to avoid confusion, the status of the parties hereinafter will be referred as indicated in the title suit before the learned trial Court. 5. The background facts, leading to filing of the present appeal, are briefly stated as under: “The defendant/appellant No. 1 herein (since deceased) was the owner of the suit land, described in the schedule of the plaint and he had offered to sell the said suit land belonging to him to the plaintiff/respondent herein as he was in need of money. The plaintiff accepted the offer and sale consideration was fixed at Rs.1,12,500/-. Thereafter, the defendant Page No.# 4/23 executed a deed of agreement for sale (bainanama), bearing registration No. 1762/2005, on 17.05.2005, in favour of the plaintiff and received a sum of Rs.87,500/- from the plaintiff as earnest money. As per terms of the said bainanama, the remaining amount of Rs. 25,000/- was to be paid by the plaintiff within next three months and it was also agreed upon by the parties that the defendant was to obtain sale permission and thereafter, he was to execute a registered sale deed, on receipt of balance consideration of Rs.25,000/-. However, the defendant did not obtain sale permission as agreed upon till 31.12.2005, even though the plaintiff had made several requests to him. The defendant, however, put the plaintiff in possession of the suit land and he assured the plaintiff that he had no reason to worry since he was in possession of the suit land. The plaintiff was enquiring about the sale permission on several occasions from the defendant. And on 01.09.2008, the plaintiff went to the defendant to enquire about the sale permission. However, the defendant refused to sell the suit land to the plaintiff. Being aggrieved, the plaintiff had instituted Title Suit No. 138/2011, seeking a decree for specific performance of the said bainanama i.e. deed of agreement for sale, executed on 17.05.2005. The defendant/appellant No. 1 herein (since deceased) had contested the suit of the plaintiff/respondent herein, by filing written statement, wherein he had taken a stand that he had not offered to sell the suit land to the plaintiff and never entered into and executed the agreement for sale and that he did not receive an amount of Rs.87,500/- as advance as claimed. His further stand was that the suit property is a joint property of the defendant and his siblings and he alone has no right to sell the same, Page No.# 5/23 and that the agreement for sale is a manufactured and fraudulent document, created by the plaintiff for unlawful gain, and on such count, the same was liable to be dismissed. Thereafter, the learned trial Court, upon pleading of the parties, had framed the following issues: 1. Whether the suit is maintainable ? 2. Whether the defendant made contract to sale the land mentioned in schedule (A) to the plaintiff and also executed a deed of agreement for sale bearing no.1762/05? 3. Whether the defendant breached the terms and conditions of the deed of agreement ? 4. Whether the plaintiff is entitled to any relief/reliefs as sought for? 5. To what other relief/reliefs the plaintiff is entitled to? Thereafter, the learned trial Court had examined as many as seven witnesses of the plaintiff and one witness of the defendant and thereafter, considering the evidence and documents adduced by both the parties, decided the issues in favour of the plaintiff and partly decreed the suit on contest with cost by holding that the plaintiff is entitled to a part decree and he is not entitled to a decree for specific performance of contract. However, he is entitled to the recovery of a sum Rs.87,500/- only from the defendant, along with @ 6% interest per annum from the date of filing of the suit till recovery with cost of the suit. Being aggrieved, the plaintiff/respondent herein preferred an appeal, being Title Appeal No. 1/2018, before the learned first appellate Court. Page No.# 6/23 Thereafter, upon hearing learned counsel for both the parties and considering the evidence adduced by them, the learned first appellate Court had reversed and set aside the judgment and decree, dated 29.11.2017, passed by the learned trial Court and held that the plaintiff/respondent herein is entitled to a decree as follows: a) A decree for specific performance of agreement for sale (registered bainanama dt.17-05-05 bearing registration No. 1762/05) in respect of the suit schedule ‘A’ land; b) A decree declaring that the respondent (defendant) is liable to execute a registered sale deed in favour of the appellant (plaintiff) in pursuance of agreement for sale dated 17-05-05 by obtaining sale permission immediately on receipt of balance consideration amount of Rs. 25,000/- from the appellant (plaintiff) on any day within next sixty days; c) A decree that in the event of failure of the respondent (defendant) to execute registered sale deed in favour of the appellant (plaintiff) within the aforesaid period of sixty days, the same (sale deed) will be executed and registered by the Court in favour of the appellant (plaintiff) on behalf of the respondent (defendant), on deposit of balance consideration amount of Rs. 25,000/- by the appellant (plaintiff) in Court, within next 30 days, as per provision of Rule 34 of Order 21 CPC. d) A decree for cost of the suit. Them, being aggrieved by the aforesaid judgment, dated 20.05.2019 and decree dated 01.06.2019, so passed by the learned first appellate Court, the defendant has preferred the present appeal before this Court, Page No.# 7/23 which was admitted on the following substantial questions of law: (i) Whether, the First Appellant court committed grave errors of law and facts in not discussing and deciding all the issues framed by Ld. Trial Court, being the final court of facts though reiterated in the appeal? (ii) Whether, the defendant/appellant had the legal right to execute a registered agreement for sale in respect of land, measuring 2 katha 5 leecha, covered by Dag No. 316/356/360, Patta No. 62 of Dimoroguri Kissam, Mouza- Nizsahar, Dist- Nagaon, Assam, when there are many other co-pattadars/ owners in the record of right/ zamabandi without making them as parties? (iii) Whether, the appellant/ defendant, who executed the alleged agreement with the plaintiff/ respondent, can be asked to register the sale deed in favor of the respondent/ plaintiff, when the land does not retain absolutely only in his own name and without making the other legal heirs of Abdul Kader as parties and also without determining his individual shares over the suit land? (iv) Whether, in absence of any findings by the Ld. Courts below, regarding the genuiness of the agreement for sale and signatures of the appellant on Exhibit 1, i.e. Bainanama (Agreement for sale) can direct the defendant/ appellant to execute the sale deed in favour of respondent?” 6. Having heard the submissions of learned counsel for both the parties, this court has carefully gone through the memo of appeal, grounds mentioned therein and also gone through the impugned judgment and decree so passed by the learned first appellate Court as well as the judgment and decree of the Page No.# 8/23 learned trial Court. 7. The substantial question of law No. (i) concerned with Order 41 Rule 31 CPC, which reads as under: “31. Contents, date and signature of judgment.—The judgment of the Appellate Court shall be in writing and shall state— (a) the points for determination; (b) the decision thereon; (c) the reasons for the decision; and (d) where the decree appealed from is reversed or varied, the relief to which the appellant is entitled, and shall at the time that it is pronounced be signed and dated by the Judge or by the Judges concurring therein.” 8. Mr. Mahmud, learned counsel for the appellants, has pointed out that in the impugned judgment, dated 20.05.2019, the learned first appellate Court had neither formulated any point for determination nor it had discussed the evidence adduced by the parties in issue-wise, though mandated by the Order 41 Rule 31 CPC, and as such, the substantial question of law No. (i) is involved in this appeal and the finding, so recorded by the learned first appellate Court, is liable to be interfered with. 9. The counter submission of Mr. Dutta, learned Senior Counsel for the respondent, is that though no point for determination was formulated by the learned first appellate Court at the time of hearing of the title appeal, yet, it had discussed the evidence in respect of all the issues and recorded findings concerning all the issues and thus in substance, the requirement of Order 41 Rule 31 CPC has been complied with, and as such, the substantial question of law No. (i), as formulated by this Court, is not at all involved in this appeal. In support of his submission, Mr. Dutta has referred to a decision of Hon’ble Page No.# 9/23 Supreme Court in the case of Mrugendra Indravadan Mehta vs. Ahmedabad Municipal Corporation, in Civil Appeal No. 16965-16957 of 2017. 10. The submissions of learned counsel for both the parties, received due consideration of this Court. And having carefully gone through the decision, so referred by Mr. Dutta, learned Senior Counsel for the respondent in the case of Mrugendra Indravadan Mehta (supra), this Court finds sufficient force in his submission. In the said case, considering its earlier decisions on the issue, Hon’ble Supreme Court has held as under: “Thus, even if the first appellate Court does not separately frame the points for determination arising in the first appeal, it would not prove fatal as long as that Court deals with all the issues that actually arise for deliberation in the said appeal. Substantial compliance with the mandate of Order 41 Rule 31 CPC in that regard is sufficient. In this regard, useful reference may be made to G. Amalorpavam and others vs. R.C. Diocese of Madurai and others, wherein this Court held as under: - ‘9. The question whether in a particular case there has been substantial compliance with the provisions of Order 41 Rule 31 CPC has (2017) 2 SCC 415 (2006) 3 SCC 224 to be determined on the nature of the judgment delivered in each case. Non-compliance with the provisions may not vitiate the judgment and make it wholly void, and may be ignored if there has been substantial compliance with it and the second appellate court is in a position to ascertain the findings of the lower appellate court. It is no doubt desirable that the appellate court should comply with all the requirements of Order 41 Rule 31 CPC. But if it is possible to make out from the judgment that there is Page No.# 10/23 substantial compliance with the said requirements and that justice has not thereby suffered, that would be sufficient. Where the appellate court has considered the entire evidence on record and discussed the same in detail, come to any conclusion and its findings are supported by reasons even though the point has not been framed by the appellate court there is substantial compliance with the provisions of Order 41 Rule 31 CPC and the judgment is not in any manner vitiated by the absence of a point of determination. Where there is an honest endeavour on the part of the lower appellate court to consider the controversy between the parties and there is proper appraisement of the respective cases and weighing and balancing of the evidence, facts and the other considerations appearing on both sides is clearly manifest by the perusal of the judgment of the lower appellate court, it would be a valid judgment even though it does not contain the points for determination. The object of the rule in making it incumbent upon the appellate court to frame points for determination and to cite reasons for the decision is to focus attention of the court on the rival contentions which arise for determination and also to provide litigant parties opportunity in understanding the ground upon which the decision is founded with a view to enable them to know the basis of the decision and if so considered appropriate and so advised to avail the remedy of second appeal conferred by Section 100 CPC.” 11. In the instant case, upon going through the impugned judgment and decree, so passed by the learned first appellate Court, this Court finds that it is a fact that the learned first appellate Court had not formulated any point for determination in the impugned judgment and decree. However, it appears that the learned first appellate Court had directed its discussion in respect of all the Page No.# 11/23 issues and recorded findings to that effect. And in that view of the matter, the requirement of Order 41 Rule 31 CPC appears to be substantially complied with. Thus, in view of the decision of Hon’ble Supreme Court in the case of Mrugendra Indravadan Mehta (supra), the substantial question of law No. (I), so formulated in this appeal, appears to be not flowing out of the impugned judgment and decree, so passed by the learned first appellate Court, and accordingly, the same stands answered. 12. Moving forward to the substantial question of law Nos. (II) and (III), it appears that both the questions are interconnected. The contention of Mr. Mahmud, learned counsel for the appellants is that the defendant/appellant No. 1 herein (since deceased) had no land in his name and he has several brothers and sisters and the land in question is ejmali. By referring to Ext. ‘Ka’ i.e. a copy of jamabandi and also to the entries made therein, Mr. Mahmud submits that from the total parcel of the land, several plots have been sold to different persons, at different points of time and that it is the burden of the plaintiff to establish that the defendant has sufficient land in his name and in his possession to execute the agreement for sale. He further submits that the plaintiff has not initiated any steps for partition of the suit land and under such circumstances, the substantial question of law Nos. (ii) and (iii), both are involved herein, and as such, he has contended to interfere with the finding so recorded by the learned first appellate Court in the impugned judgment and decree. 12.1. In support of his submission, Mr. Mahmud has referred to the following decisions of Hon’ble Supreme Court: (i) Balwinder Singh vs. National Fertilizers Limited and Ors., reported in (2014) 13 SCC 277. Page No.# 12/23 (ii) Sk. Golam Lalchand vs. Nandu Lal Shaw and Ors., reported in 2024 INSC 676. (iii) Fateh Chand vs. Balkishan Dass, reported in 1963 AIR SC 1405. 12.2. Mr. Mahmud has also referred to a decision of a Co-ordinate Bench of this Court in RFA No. 42/2019 (Sri Anil Brahma @ Anil Kumar Wary vs. Smt. Sabita Saha and 2 Ors.) and submits that in the said case, this court has directed to refund the earnest money to the plaintiff and the said decision is binding upon this Court, in view of the decision of Hon’ble Supreme Court in the case of National Insurance Company Limited vs. Pranay Sethi and Ors., reported in (2017) 16 SCC 680, and as such, Mr. Mahmud has contended to pass similar order in the present case also, directing the defendant to return the amount received as earnest money. 13. Per contra, Mr. Dutta, learned Senior Counsel for the respondent, submits that the substantial question of law Nos. (ii) and (III) are similar and interconnected and as such, they can be dealt with together and that the question of identifying the land and the question of partitioning of the suit land does not arise herein this case as after execution of the bainanama, the defendant had already handed over possession of the suit land to the plaintiff and the plaintiff is in possession of the same, and that the dispute relates to non-execution of the sale deed only. By referring to Section 44 of the Transfer of Property Act, 1882, Mr. Dutta submits that though the suit land was not partitioned between the defendant and his siblings, yet in view of Section 44 of the said Act, the defendant can transfer his share of the property without the same being partitioned. 13.1. Mr. Dutta has also pointed it out that there is a clear finding of fact by Page No.# 13/23 the learned trial court in respect of handing over of possession of the suit land to the plaintiff and the finding, so recorded by the learned trial Court, was not challenged before the learned first appellate Court by the defendant, and the learned first appellate Court in the impugned judgment and decree, in paragraph No. 18, recorded a finding to that effect that the trial Court had held that the defendant did execute and register the agreement for sale in question in favour of the plaintiff and did receive a sum of Rs.87,500/- from the plaintiff, as earnest money and that the defendant had failed to prove his plea that the agreement for sale in question was executed fraudulently and that the respondent did not raise his grievance by filing any cross-objection in the said appeal challenging the said finding of the learned trial Court in Issue No. 2 or for that matter and did not challenge the decree so passed by the learned trial Court asking the defendant to refund Rs.87,500/- to the plaintiff. He also pointed it out that there is concurrent finding of fact in this regard by both the learned courts below. 13.2. Mr. Dutta also submits that the agreement for sale was executed by the defendant in favour of the plaintiff by putting his signature over the same and there is also concurrent finding of fact by both the learned Courts below in respect of the same. By referring to a decision of Hon’ble Supreme Court in the case of Aloka Bose vs. Parmatma Devi and Ors., reported in AIR 2009 SC 1527, he submits that though the signature of the plaintiff is not there in the agreement for sale, yet it is not vital in view of the aforesaid decision and that handing over of possession and payment of Rs.87,500/- is the testament of the intention of the parties to sale the land, which has a bearing upon the suit. 13.3. Mr. Dutta has also pointed out that the other siblings of the defendant have not challenged the agreement for sale of 2 kathas 5 lechas of land in Page No.# 14/23 favour of the plaintiff by the defendant and it is the defendant, who having entered into the agreement and having received the amount, handed over the possession to the plaintiff and later on refused to execute the sale deed. His further submission is that though Mr. Mahmud, learned counsel for the appellants, has relied upon a decision of a Co-ordinate Bench of this Court in RFA No. 42/2019, yet the said case is factually different from the present case and as such, the said decision would not come into the assistance of Mr. Mahmud, learned counsel for the appellants. 13.5. Mr. Dutta has further pointed out that the decision of Hon’ble Supreme Court in the case of Sk. Golam Lalchand (supra) so referred by Mr. Mahmud, is also factually different from the case in hand and as such, the same would also not help Mr. Mahmud, learned counsel for the appellants. And under the given facts and circumstances, Mr. Dutta submits that none of the substantial question of law Nos. (II) and (III) are involved in this appeal and as such, the same are to be answered in negative. 13.6. In support of his submission, Mr. Dutta has referred to the following decisions: (i) Kasturi vs. Iyyamperumal and Ors., reported in (2005) 6 SCC 733. (ii) Md. Fakrul Islam Beg vs. Abul Gafur Borbhuiyan, reported in 2023 0 Supreme(Gau) 1393. (iii) Daulat Singh (D) Thr. LRs vs. State of Rajasthan, reported in AIR 2021 SC 394. 14. The submissions of learned counsel for both the parties are considered in the light of the fact and circumstances on the record and also this Court has Page No.# 15/23 carefully gone through the decisions referred by both the counsel and also gone through the relevant provision of law. 14.1. It is no more res-integra that co-owner of an immovable property is legally competent to transfer his share of interest in view of Section 44 of the Transfer of Property Act, 1882. The said Section reads as under: “44. Transfer by one co-owner.—Where one of two or more co- owners of immoveable property legally competent in that behalf transfers his share of such property or any interest therein, the transferee acquires as to such share or interest, and so far as is necessary to give effect to the transfer, the transferor’s right to joint possession or other common or part enjoyment of the property, and to enforce a partition of the same, but subject to the conditions and liabilities affecting, at the date of the transfer, the share or interest so transferred. Where the transferee of a share of a dwelling-house belonging to an undivided family is not a member of the family, nothing in this section shall be deemed to entitle him to joint possession or other common or part enjoyment of the house.” 15. It is not in dispute that the land in question is ejmali land and it has not been partitioned between the siblings of the defendant. However, it appears that the defendant, after execution of the agreement for sale, had handed over the possession of the suit land in question to the plaintiff and the plaintiff is in possession of the same, and as discussed in the foregoing paragraphs there is concurrent finding of fact in respect of entering into the agreement for sale by the plaintiff and the defendant and also regarding handing over of possession of the land in question to the plaintiff, by the defendant. In paragraph No. 18 of the impugned judgment and decree, the learned first appellate Court had Page No.# 16/23 recorded a finding to that effect and the same has not been challenged. Though, Mr. Mahmud, learned counsel for the appellants has disputed in handing over the possession, yet the same left this Court unimpressed, as the finding of the learned trial court in respect of handing over of possession of the suit land to the plaintiff has not been challenged by filing cross-objection. And the finding of the learned trial court is endorsed by the learned appellate court also. 16. In view of the provision of Section 44 of the Transfer of Property Act, 1882, there is no bar on the part of the defendant in selling his part of share to the plaintiff and as such, the submission of Mr. Mahmud, learned counsel for the appellants cannot be accepted. 17. Further, it is well settled in plethora of decision of Hon’ble Supreme Court that in a case for specific performance of contract, there are only two parties to the contract and only they are the necessary parties. Since the siblings of the defendant are not party to the agreement, they cannot be necessary party in the suit. Reference in this context can be made to a decision of Hon’ble Supreme Court in the case of Kasturi (supra). Relevant paragraphs, in the said decision, are extracted herein below:- “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 Page No.# 17/23 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. 8. We may look to this problem from another angle. Section 19 of the Specific Relief Act provides relief against parties and persons claiming under them by subsequent title. Except as otherwise provided by Chapter II, specific performance of a contract may be enforced against: “19. (a) either party thereto; (b) any other person claiming under him by a title arising subsequently to the contract, except a transferee for value who has paid his money in good faith and without notice of the original contract; (c) any person claiming under a title which, though prior to the contract and known to the plaintiff, might have been displaced by the defendant; (d) when a company has entered into a contract and subsequently becomes amalgamated with another company, the new company which arises out of the amalgamation; (e) when the promoters of a company have, before its incorporation, entered into a contract for the purpose of the company and such contract is Page No.# 18/23 warranted by the terms of the incorporation, the company: Provided that the company has accepted the contract and communicated such acceptance to the other party to the contract.” 9. We have carefully considered sub-sections (a) to (e) of Section 19 of the Act. From a careful examination of the aforesaid provisions of clauses (a) to (e) of the Specific Relief Act we are of the view that the persons seeking addition in the suit for specific performance of the contract for sale who were not claiming under the vendor but they were claiming adverse to the title of the vendor do not fall in any of the categories enumerated in sub-sections (a) to (e) of Section 19 of the Specific Relief Act. 10. That apart, from a plain reading of Section 19 of the Act we are also of the view that this section is exhaustive on the question as to who are the parties against whom a contract for specific performance may be enforced. 18. Over and above, the other co-owners i.e. the siblings of the defendant have not challenged the authority of the defendant in selling his share of the ejmali land. And it also appears that the decision of a Co-ordinate Bench of this Court in RFA No. 42/2019, so referred by Mr. Mahmud, learned counsel for the appellants, would not advance his argument in view of the fact that the present case is factually distinguishable from the facts of the said RFA No. 42/2019, and the clear finding of fact by the learned trial court in respect of handing over possession of the land after execution of the agreement and receipt of sum of Rs. 87,500/- has not been agitated in the first appeal by the defendant herein. Page No.# 19/23 Further, it appears that the decision of Hon’ble Supreme Court in the case of Sk. Golam Lalchand (supra), so referred by Mr. Mahmud, is also factually distinguishable from the present case. In the said case the prayer was for declaration of right, title and interest and permanent injunction. But, in the case in hand, the prayer was for specific performance of the contract. And in the case of Balwinder Singh(supra) Hon’ble Supreme Court has dealt with the issue of deciding the second appeal without formulating any substantial question of law. Since herein this case substantial question of law, as discussed herein above, has been formulated at the time of admission of appeal, the ratio laid down in the said case has no application to the case in hand. 19. Under the given factual and legal matrix, the substantial question of law Nos. (ii) and (iii), cannot be said to be flows out of the impugned judgment and decree, so passed by the learned first appellate Court. And accordingly, the same stands answered. 20. It is also to be noted here that in view of the concurrent finding fact that the parties had entered into an agreement for sale and the defendant had received a sum of Rs.87,500/-, from the plaintiff and thereafter, handed over the possession of the suit land to the plaintiff, this Court is of the view that sitting in second appeal, this Court is not entitled to re-appreciate the facts again. Reference in this context can be made to the following decisions of Hon’ble Supreme Court:- (i) Thiagarajan and Ors. vs. Sri Venugopalaswamy B. Koil and Ors., reported in (2004) 5 SCC 762. (ii) Commr., Hindu Religious & Charitable Endowments vs. P. Shanmugama and Ors. , reported in (2005) 9 SCC 232. (iii) State of Kerala and Anr. vs. Mohd. Kunhi (Dead) by LRs. Page No.# 20/23 And Ors., reported in (2005) 10 SCC 139. (iv) Madhavan Nair vs. Bhaskar Pillai (Dead) by LRs., reported in (2005) 10 SCC 553. 21. Now, moving forward to the substantial question of law No. (IV), this Court finds that the learned trial Court has framed one issue i.e. Issue No. 2 and dealt with the same in para No. 6 and 7 and recorded its finding in para No.8 as under:- “8. But from the evidence tendered by the plaintiff side, whether oral and documentary, in respect of the agreement for sale in question it is safely established that the defendant agreed to sale the Schedule –‘A’ land to the plaintiff and received Rs. 87,500/-, as advance amount from the consideration amount and thereby executed the registered deed of agreement for sale the said land in favour of the plaintiff. On the other hand the defendant had failed to prove that said Bainanama was executed fraudulently.” 21.1. It also appears from the impugned judgment and decree of the learned first appellate court that it had dealt with the Issue No. 2 and the finding of the learned trial court in para No. 16,17, 18 and 19. In para No. 16 it had held as under:- “16. On close scrutiny of the impugned judgment what transpires is that the core issue involved in the suit was the Issue No.2 as has been reproduced above. The said issue has been decided in favour of the plaintiff (appellant) by the L.d. Court Below. It held that from the evidences tendered by the plaintiff side in respect of the agreement for sale it is safely established that the defendant agreed to sell the suit schedule land to the plaintiff and received Rs. 87,500/- from the plaintiff as advance money and executed and registered Page No.# 21/23 deed of agreement for sale in favour of the plaintiff. The Ld. Munsiff also held that the defendant has failed to prove that the said bainanama was executed fraudulently.” 21.2. Then in para 17 it had discussed Rule 22 of Order 41 which provides for filing of cross-objection. In para No. 18, it had held as under:- “18. It is pertinent to note that though it was the pleaded case of the defendant (respondent) in the suit that he never ever executed the agreement for sale in question nor did he receive any money in advance as alleged and that the agreement in question is a document manufactured by the plaintiff (appellant) for making unlawful gain yet when the trial court hold that the defendant (respondent) did execute and register the agreement for sale in question in favour of the plaintiff (appellant) and did receive Rs.87,500/- from him (plaintiff) as earnest money and further that the defendant has failed to prove his plea that the agreement for sale in question was executed fraudulently, the respondent did not raise his grievance by filing any cross-objection in the instant appeal disputing or challenging the said finding of the Ld. Court Below in Issue No.2 or for that matter did not challenge the decree passed in part by the trial Court asking the defendant (respondent) to refund Rs.87,500/- to the plaintiff (appellant).” 21.3. Thereafter, in para No. 19 it had recorded a finding as under:- “19. Situated so, it becomes evident that the defendant (respondent) is not disputing the decision rendered by the Ld. Court Below that he (respondent) did execute the agreement for sale in question in respect of the suit land and had also received Rs.87,500/- as advance from the plaintiff (appellant).” Page No.# 22/23 22. Thus, from the aforesaid discussion, it cannot be said that there is absence of any findings by the Ld. Courts below, regarding the genuineness of the agreement for sale and signatures of the appellant on Exhibit 1, i.e. Bainanama (Agreement for sale), thereby giving raise to substantial question of law No.(IV). 22.1. Rather, it becomes apparent that both the learned courts below had arrived at a concurrent finding of fact, in respect of the execution of agreement for sale (bainanama) and the defendant has not challenged the finding of the learned trial court in respect of the agreement and receipt of an advance sum of Rs.87,500/- and handing over the possession of the suit land in question to the plaintiff. It is, however, a fact that the agreement Exhibit – 1 bears no signature of the plaintiff. But, in view of the decision of Hon’ble Supreme Court, in the case of Aloka Bose (supra), so referred by Mr. Dutta, learned counsel for the respondent/plaintiff, absence of signature of the plaintiff in the agreement is not vital. In addition, all these facts, such as execution of agreement for sale and receiving of earnest money and handing over of possession of the land indicates the intention to sale the land to the plaintiffs. 22.2. In that view of the matter, the substantial question of law No. (IV) also appears to be not at all involved in this appeal and Mr. Dutta, learned Senior Counsel for the respondent has rightly pointed this out during his argument, and this Court finds sufficient force in the same, and as such, inclined to record concurrence with the same. 23. This Court has also carefully gone through the other decisions referred by Mr. Dutta, learned Senior Counsel for the respondent and finds that the ratio laid down in the said cases also lends credence to his submissions. However, in Page No.# 23/23 order to decide this appeal, detail discussion of the same is found to be not necessary. 24. In the result, this Court finds that none of the substantial questions of law, as formulated by this Court at the time of admission of the appeal, appears to be flowing out of the impugned judgment and decree, so passed by the learned first appellate Court, and accordingly, this appeal stands dismissed leaving the parties to bear their own costs. 25. Registry shall send back the records to the learned Courts below along with a copy of this judgment and order. JUDGE Comparing Assistant