JUDGMENT : Mridul Kumar Kalita, J. [1] Heard Mr. J. C. Gaur, the learned counsel for the appellant. This appeal was heard ex parte against the respondents since, in spite of due service of summons. None appeared on behalf of the respondents when the matter was called on for hearing. [2] This appeal, under Section 96 , read with Order 41, Rule 1 of the Code of Civil Procedure, 1908 has been filed by the appellant, Sri Pawan Kumar Sethi, impugning the judgment and decree dated 22.07.2019, passed by the Court of learned Civil Judge No.1, Kamrup(Metro), Guwahati, in Title Suit No. 311/2011, whereby the prayer of the present appellant, as plaintiff, for specific performance of contract in respect of the suit land was rejected, and the alternative prayer for realization of Rs. 12,00,000/- (Rupees Twelve Lakhs only), which was the advance consideration amount paid by the appellant to the respondent No. 1 was allowed. [3] The facts relevant for consideration of the instant appeal, in brief, are that present appellant had filed a suit for specific performance of contract against respondents before the Court of learned Civil Judge No.1, Kamrup(Metro), at Guwahati, which was registered as Title Suit No. 311/2011. In the plaint filed by the present appellant before the trial court in the aforesaid suit, it was contended by him that the present respondent No.1 approached him and introduced himself as the co-owner with respondent Nos. 2 and 3 of a plot of land measuring 2 kathas, 16 lechas, i.e. 7.47 Are, together with a godown and other structures standing thereon, situated in Sahar, Guwahati part 2, falling under Guwahati Mauza. It was contended in the plaint that the respondent No. 1 with the consent of other co- owners offered to sell 1 katha, 8 lechas of land, out of the aforesaid land, to the appellant and he agreed to purchase the same. It was further contended that thereafter they executed an agreement to sell on 11.07.2011. It was further contended that at the time of execution of the aforesaid agreement dated 11.07.2011 the appellant had paid an amount of Rs. 12,00,000/-(Rupees Twelve Lakhs only) as advance to the respondent No. 1, out of which Rs. 8,00,000/-(Rupees Eight Lakhs only) was in cash, which was acknowledged by the respondent No. 1 by issuing a money receipt and the remaining amount was paid by account payee cheque. 12,00,000/-(Rupees Twelve Lakhs only) as advance to the respondent No. 1, out of which Rs. 8,00,000/-(Rupees Eight Lakhs only) was in cash, which was acknowledged by the respondent No. 1 by issuing a money receipt and the remaining amount was paid by account payee cheque. [4] It was further contended in the plaint that later on, on 18.07.2011, the present appellant had paid an amount of Rs. 5,00,000/- (Rupees Five Lakhs only) and thereafter on 22.07.2011 paid another amount of Rs.3,20,000/- (Rupees Three Lakhs Twenty Thousand only) to the defendant and as such the appellant had already paid an amount of Rs. 20,20,000/-(Rupees Twenty Lakhs Twenty Thousand only) out of the agreed sale consideration amount of Rs. 21,00,000/-(Rupees Twenty-One Lakh only). [5] It was further contended that the defendant No.1 (respondent No. 1) on behalf of all the respondents had handed over the possession of a godown measuring approximately 550 square feet to the appellant on 11.07.2011 and subsequently the remaining portion of the scheduled property was also handed over to the present appellant on 01.08.2011. [6] It was also contended in the plaint that as per the agreement dated 11.07.2011.It was agreed between the parties that registered sale deed will be executed by the defendants(respondents)by obtaining necessary permission from the Deputy Commissioner and GMDA. [7] It was further contended in the plaint that on 11.08.2011, the respondent Nos. 2 and 3 came to the suit property and forcibly ousted the plaintiff (appellant) from the suit land and the godowns and the present appellant lodged an FIR in Panbazar Police station in this regard. [8] It was also contended by the appellant in his plaint that he has always ready and willing to pay the balance consideration amount of Rs. 80,000/- (Rupees Eighty Thousand only) to the defendants, but the defendants failed to perform their part of the agreement and were intending to alienate the suit property to some other persons. [9] It was also contended that on 09.09.2011, when the appellant visited the suit land, he found the respondent No.1 with some other persons taking measurements and therefore, he apprehended foul play and approached the court by filing the aforesaid title suit. Present respondents contested the suit by filing written statement, wherein all the averments made by the appellant in his plaint was denied. Present respondents contested the suit by filing written statement, wherein all the averments made by the appellant in his plaint was denied. [10] On the basis of pleadings of the parties, the trial court framed following issues:- 1. “Whether the suit is maintainable in its present form? 2. Whether the plaintiff in course of purchasing the schedule land paid Rs.12,000,00/- on 11/07/11, Rs. 5,00,000/-on 22/07/11, Rs.3,20,000/-defendant no. 1 as advance money? 3. Whether the defendants subsequently dispossessed the plaintiff from the schedule land and did not register the sale deed as per agreement? 4. Whether the plaintiff has performed his part by making advance payment? 5. Whether the defendants more particularly defendant No.1 violated the terms of the agreement? 6. To what other relief / reliefs the parties are entitled to?” [11] In support of his contentions plaintiff examined two plaintiff's witnesses. Though the defendants also submitted the evidence-on- affidavit of their witnesses, however,the defendant's witnesses did not turn up to face cross-examination, therefore, the evidence of DW's were expunged from the record. [12] Though, by the impugned judgment the trial court decided all the issues in favour of the present appellant, however, while deciding issue No. 2, it held that the appellant could prove payment of only Rs. 12,00,000/- (Rupees Twelve Lakhs only) to defendant No. 1, therefore, the decree for realization of Rs.12,00,000/- (Rupees Twelve Lakhs only) with interest @ of 24% per annum from the date of institution of the suit till realization only from the defendant No. 1 was passed by the trial court. [13] By the impugned judgment no liability was attributed on defendant No. 2. Moreover, as the defendant No. 3 died during the pendency of the suit, it abated against her. [14] Mr. J. C. Gaur, the learned counsel for the appellant, has submitted that the trial court had erred in not decreeing the suit for specific performance of contract and also not considering the materials available on records. He submits that the trial court, in the impugned judgment, had erred in observing that the plaintiff could not succeed in showing that he had paid Rs. 5,00,000/- (Rupees Five Lakhs only) on 22.07.2011 and Rs.3,20,000/-(Rupees Three Lakhs and Twenty Thousand only)to the defendant No. 1 and accordingly, decided the said issue against the plaintiff. He submits that the trial court, in the impugned judgment, had erred in observing that the plaintiff could not succeed in showing that he had paid Rs. 5,00,000/- (Rupees Five Lakhs only) on 22.07.2011 and Rs.3,20,000/-(Rupees Three Lakhs and Twenty Thousand only)to the defendant No. 1 and accordingly, decided the said issue against the plaintiff. [15] The learned counsel for the appellant has submitted that the present appellant, in his plaint as well as in his evidence-on- affidavit, which remained uncontroverted, had categorically stated therein that on 18.07.2011, the respondent No. 1 had telephoned himregarding serious illness of his mother and requested the appellant to deposit a sum of Rs. 5,00,000/-(Rupees Five Lakhs only) in his bank account No. 20039444477 and the appellant accordingly deposited the said amount in the bank account of the respondent No. 1 and had also exhibited the counter folio of the pay-in-slip as Exhibit-7. He submits that the trial court had erred in not taking into consideration the said counter folio. [16] The learned counsel for the appellant has also submitted that the trial court also erred in not taking into consideration the oral testimony of PW-1 as well as Exhibit-8, which is the counter-folio of the pay-in slip of depositing Rs 3,20,000/- by the appellant, on 22.07.2011 to the respondent No. 1's bank account on his request. [17] The learned counsel for the appellant has also submitted that the trial court has also erred in not allowing the relief of recovery of possession of the suit premises as well as the registration of sale deed merely by holding that the present appellant is a resident of State of Imphal. He submits that apart from Imphal, the appellant also stays at Guwahati. He has been enrolled in the voter list of Assam and otherwise also, being an Indian citizen, he cannot be discriminated on the ground that he is a resident of Imphal and thereby, denying the relief of specific performance of contract when the appellant was willing and ready to perform his part of the contract. [18] The learned counsel for the appellant has also submitted that the trial court also erred in dismissing the suit of the appellant against defendants No 2 and 3, who are the mother and sister of the respondent No 1 without any cogent reasons. [18] The learned counsel for the appellant has also submitted that the trial court also erred in dismissing the suit of the appellant against defendants No 2 and 3, who are the mother and sister of the respondent No 1 without any cogent reasons. [19] He submits that the appellant has made categorical statement in his plaint as well as in the evidence that the respondent No 1 had executed the agreement for sale dated 11.07.2011 with the consent of respondent Nos. 2 and 3, who have forcefully dispossessed him from the suit land. The learned counsel for the appellant, therefore, submits that the impugned judgment and decree dated 22.07.2019 passed by the trial court is liable to be set aside and the respondents may be directed to execute a sale deed in respect of the suit property in terms of agreement dated 11.07.2011 on payment of balance advance amount to them by the appellant. [20] I have considered the submissions made by the learned counsel for the appellant and have gone through the materials on records, including the records of the Title Suit No. 311/2011 which was requisitioned in connection with this appeal. [21] The point for determination in this appeal is as to whether the trial court was correct by not directing the respondents for executing a sale deed in terms of the agreement dated 11.07.2011, when the appellant was ready to perform his part of contract. [22] Though, this court is not in agreement with the trial court that merely because the appellant was found to be resident of Manipur, he is not entitled to get a decree of specific performance of contract regarding the registration of sale deed by the respondents in respect of the suit land, however, for other reasons mentioned herein below, this court is of considered opinion that the appellant is not entitled to get a decree of specific performance of contract in this case. [23] It is apparent from the evidence on record that the suit property was jointly owned by all the respondents, namely,respondent Nos.1 to 3, however, the agreement to sale dated 11.07.2011 was executed only between the appellant and the defendant No. 1. Apart from mere statement of the respondent No.1, that other respondents, who are the co-owner of the suit property, have consented for sale of the suit land, there is nothing on record to show their consent. Apart from mere statement of the respondent No.1, that other respondents, who are the co-owner of the suit property, have consented for sale of the suit land, there is nothing on record to show their consent. There is no document or any signatures of the respondent Nos. 2 and 3 which would have indicated that they had consented to alienate the suit property at the consideration amount mentioned in agreement dated 11.07.2011. As such, this court is of considered opinion that the appellant is not entitled to get specific performance of contract in respect of agreement executed between him and the respondent No. 1. [24] It appears that in the impugned judgment, the trial court has made an observation that during the pendency of the trial of Title Suit No. 11/2011, the defendant No. 3, Smt. Sumi Medhi, has expired, therefore, the suit has abated against the said defendant. However, it appears in the instant appeal, the appellant has made the said Sumi Medhi a party in this appeal, which could not have been done. Further, the defendant Nos. 2 and 3 were admittedly the co-owner of the suit property. Hence, without any indication from them regarding their consent to alienate the suit property in favour of the appellant they could not have been made to perform the stipulations contemplated in the agreement dated 11.07.2011, of which they were not a party to. [25] The third point for determination is as to whether the trial court was correct in directing refund of only Rs. 12,00,000/-(Rupees Twelve Lakhs only), when the total amount which was paid by the appellant to the defendant No. 1 was to the tune of Rs. 20,20,000/-(Rupees Twenty Lakhs Twenty Thousand only). [26] As regards the issue as to whether only Rs. 12,00,000/- (Rupees Twelve Lakhs only)was outstanding as advance consideration amount by the appellant, on perusal of the documents available on record, including the agreement to sale executed between the appellant and the respondent No. 1, it appears that the amount of Rs. 8,00,000/- (Rupees Eight Lakhs only) was paid to the appellant, in cashon the date of executing the agreement for sale, i.e. on 11.07.2011 itself and remaining amount of Rs. 4,00,000/-(Rupees Four Lakhs only) was paid by account payee cheques. [27] It appears, that the trial court has not taken into consideration the testimony of PW-1 to the effect that he has paid Rs. 4,00,000/-(Rupees Four Lakhs only) was paid by account payee cheques. [27] It appears, that the trial court has not taken into consideration the testimony of PW-1 to the effect that he has paid Rs. 5,00,000/- (Rupees Five Lakhs only) on 18.07.2011 to the account of the appellant as well as Rs. 3,00,000/- (Rupees Three Lakhs only) to the account of the appellant on 20.07.2011. The trial court also failed to take into consideration the Exhibit-7 and Exhibit- 8 which are the counter-folios of bank pay-in-slips, which shows the deposit of said amount in the bank account and said exhibits also bear the seal of the State Bank of India showing therein the date on which the amount was deposited in the account No. 20039444477 belonging to the respondent No. 1. The said evidence could not be controverted by the respondent side during cross-examination. As regards the payment of Rs. 3,20,000/- (Rupees Three Lakhs Twenty thousand only) to the defendant No. 1 on 22.07.2011, it appears that the evidence-in-affidavit of the PW-1 before the trial court clearly proves the same. If the aforesaid outstanding advance amount of Rs. 8,20,000/-(Rupees Eight Lakhs Twenty Thousand only) is taken into consideration and is added to the earlier outstanding amount of Rs. 12,00,000/- (Rupees Twelve Lakhs only), the total becomes Rs.20,20,000/-(Rupees Twenty Lakhs Twenty Thousand only) which becomes outstanding against defendant No. 1 only. [28] For the reasons stated in the foregoing paragraphs, therefore, the impugned judgment on the trial court is hereby modified to the extent that the defendant No. 1 instead of paying Rs. 12,00,000/- (Rupees Twelve Lakhs only) shall pay an amount of Rs. 20,20,000/- (Rupees Twenty Lakhs Twenty Thousand only) to the present appellant. It also appears that the interest imposed by the trial court of 24% was on a higher side than the prevailing interest rates allowed by banks on fixed deposits, therefore, the decreed amount shall carry an interest of 12% per annum from the date of filing of the suit till realization. [29] In terms of the observations made above, the impugned judgment and decree is modified to the extent that the appellant is entitled to get Rs. 20,20,000/- (Rupees Twenty Lakhs Twenty Thousand only) with an interest @ of 12% per annum from the date of institution of suit till realization from defendant No. 1. [30] Prepare decree accordingly. [31] This appeal is according disposed of.