JUDGMENT [ENTITY], J.
1. This second appeal has been preferred by the defendants Nos. 2 and 3 of [CASE NUMBER] challenging the judgment and decree dated [SECTION].02.1976 passed by the learned Additional District Judge, Second Court, Hooghly in [CASE NUMBER] affirming the judgment and decree dated 31.03.1975 passed by the learned Munsif, Second Court, Chandernagore in [CASE NUMBER].
2. The case as has been made out by the plaintiff in the plaint is inter alia as follows:
The suit property originally belonged to defendant No. 1 [ENTITY]. The defendant No. 4 [ENTITY] is her husband. The defendant No. 1 [ENTITY] through her husband and one [ENTITY] made negotiation and a talk of sale took place and the plaintiff [ENTITY] expressed his desire to purchase the suit property. The price was settled at Rs. 4000/-The defendant Nos. 1 and 4 accordingly informed the plaintiff to visit Calcutta (where they lived) on 11th [ENTITY], 1377 B.S. for execution and registration of the sale deed. Accordingly the plaintiff went to Calcutta with money on the said date but the deed could not be executed or registered on that date as defendant No. 1 was ill. The plaintiff however handed over the consideration money in presence of the witnesses as the defendant Nos. 1 and 4 repeatedly insisted on payment of the consideration money. The defandant No. 1, however, promised to execute and register the sale deed by visiting Haripal within 4/5 days. The defendant Nos. 1 and 4 that means [ENTITY] and her husband, however, permitted the plaintiff to possess the land from that very date. The plaintiff accordingly started possessing that land from that date and he is still in possession. On return back from Calcutta, the plaintiff as per instruction from the defendant Nos. 1 and 4 get a draft deed of sale prepared. On 16 [ENTITY] the plaintiff waited at Haripal Registry office for their arrival, but defendant No. 2 [ENTITY] did not turn up and instead of defendant No. 1 her husband [ENTITY] the defendant No. 4 came and informed that the defendant No. 1 had become very much ill and was not in a position to come. Defendant No. 4 that is [ENTITY], however, took the draft deed with him and told the plaintiff that he would got the same executed and registered on commission. Thereafter the plaintiff approached several times for execution and registration of the deed. But they delayed the matter and told the plaintiff not to worry as possession had already been delivered. The plaintiff in fact continued to possess the land undisturbed. The defendant No. 3 [ENTITY] threatened to take possession and revealed that a deed in respect of the suit property would be registered by [ENTITY] in his favour very soon. Immediately the plaintiff went to the Hooghly Registry Office and submitted objection. The plaintiff also went to Calcutta and asked the defendant Nos. 1 and 4 for clarifications when they denied to have executed any deed in favour of [ENTITY], the plaintiff then took back the draft from them and after coming back sent a registered notice to the defendant Nos. 1 and 4 asking them to execute and register the deed. [There the deed.] Thereafter, the plaintiff was left with no option but to file this suit when the defendant No. 1 refused to execute the deed. The defendants Nos. 1 and 4 submitted a joint written statement after entering appearance, but, they did not contest the suit at the time of trial. They denied to have made any verbal contract with the plaintiff for sale of the land and also denied the receipt of Rs. 4000.00 by them. In the written statement they also denied that the plaintiff never approached them for that purpose at Calcutta or they had promised to execute and register a deed in his favour on commission or in Haripal Registry Office. They also alleged that the present suit had been filed by the plaintiff with entirely false allegations with a view to grabing their land.
3. The defendants Nos. 2 and 3 actually contested the suit and they denied the plaintiffs alleged contract for sale with defendant No. 1 [ENTITY] and payment of Rs. 4000.00 for that purpose. The defendant Nos. 2 and 3 stand that it was they who purchased the property from [ENTITY] at Rs. 4000.00 and a deed was executed in their favour though the said deed has not yet been registered. As the defendant No. 1 did not register the deed, they had filed case before the registry office which is pending. They also stated that it was at the instigation and non-collaboration of the defendant No. 1, the present suit has been filed by the plaintiff.
4. On the above pleadings the following issues were framed by the learned Trial Judge:
1. Is the suit maintainable in its present form and in law ?
2. Is the suit barred by principle of estoppel, waiver and acquiescence?
3. Is the suit barred under [SECTION] of [ACT] ?
4. Is the plaintiff entitled to get decree prayed for ?
5. To what other relief, if any, is the plaintiff entitled ?
5. The said suit was decreed on contest with costs against defendant Nos. 2 and 3 and ex parte without costs against the rest. The defendant No. 1 was directed to execute and register a sale deed in favour of the plaintiff in respect of the suit property within one month from the date at the costs of the plaintiff. By the said order the learned Trial Judge also observed that if the defendant refused or neglected to execute or register the said conveyance within the time, the Court will execute and register the same on behalf of the defendant. The defendants were also restrained permanently from interfering with the plaintiffs possession in respect of the suit property.
6. Challenging the said judgment and decree passed by the learned Trial Judge the defendant Nos. 2 and 3 that is Sk. [ENTITY] and another file preferred title as [CASE NUMBER]. the learned Addl. District Judge, Second Court, Hooghly dismissed the appeal on contest and affirmed the decision of the learned Trial Judge.
7. Hence this second appeal.
8. Before hearing this second appeal finally, this Court is to see as to whether any substantial questions of law is involved in this case.
9. On consideration of the judgment delivered by both the Courts below as well as on consideration of the evidence on records as it appears the following questions need be decided in this second appeal as substantial questions of law:
1. Whether on the basis of an oral agreement and on payment of consideration money, without any receipt and proper execution of a deed of conveyance and without registration an alleged contract can be termed as concluded contract and can the Court pass a decree for specific performance.
2. Whether both the Courts below were correct in coming to conclusion that the defendant Nos. 2 and 3 have no locus standi and/or whether the Courts below were correct in not considering the subsequent agreement on the basis of which appellant herein being the defendant Nos. 2 and 3 therein alleged to claim their right and whether the provision of [SECTION] of the [ACT] is attracted here.
3. Whether both the Courts below were correct in not considering the point of delay in considering the prayer for decree for specific performance when because of such delay the defendant Nos. 2 and 3 have claimed to have acquired right in and over the suit property.
10. The learned Counsel for the appellant submitted that both the Courts below went on wrong by not considering the agreement and/or contract executed by and between the plaintiff and defendant Nos. 2 and 3. The learned Counsel for the appellant submitted that the learned Trial Judge granted relief to the plaintiff beyond the claim. The learned Counsel for the appellant in this regard relied on the prayers made out in the plaint and submitted that it would ex facie appear from the judgments and decree of the Courts below that the relief has been granted by the Trial Court more than as had been prayed in the plaint. The learned Counsel for the appellant further submitted that the plaintiff would not get any relief under the [ACT] and if the plaintiff claims any relief he can at best claim under [ACT] and not under the [ACT]. The learned Counsel for the appellant also submits that unless Courts come to finding that there is a valid contract, there cannot be a decree for the specific performance. The learned Counsel for the appellant drew attention of this Court to the fact that from the evidence on record and from the judgments it appears that the consideration money has been paid, as claimed by the plaintiff to the husband of the defendant No. 1, though admittedly the defendant No. 1 is the owner of the suit property.
11. The learned Counsel for the appellant submitted that from the plaint itself it would appear that the alleged cause of action arose on 25.05.1970 whereas the suit was filed on 29.05.1973. But the learned Trial Judge neither framed any issue on the point of limitation nor decided the question of limitation. The learned Counsel for the appellant submitted that the learned Trial Judge should have come to the conclusion that the suit is time barred.
12. The learned Counsel for the appellants then submitted that the plaint contained alternative prayer and in view of the provisions of [SECTION] of the [ACT] such a contract cannot be specifically enforceable. The learned Counsel for the appellant also submitted that the Courts below did not at all formulate any point regarding existence of any contract between the plaintiff and the defendant No. 1 nor came to any definite conclusion on the basis of evidence on record that there is existence of such a contract and in absence of such definite conclusive finding the Court cannot grant a decree for specific performance. The learned Counsel for the appellant submitted that [SECTION] provides that the Court may enforce specific performance where the plaintiff has a substantial interest in the performance of the contract and the interest is of such nature that compensation in money for non-performance of the contract is not an adequate relief. The learned Counsel for the appellant submitted that the plaintiff has prayed for execution of sale deed or in the alternative refund of money and in that view of the matter the plaintiff cannot claim specific performance in view of the provision of [SECTION]. The learned Counsel for the appellant then submitted that it appears from the evidence on record that there was a talk of possession and physical possession, was not actually handed over to the plaintiff and this talk of possession cannot entail specific performance. The learned Counsel for the appellant, further submitted that in the above view there is no concluded contract and the Court should not grant any relief under [ACT] which is a discretionary and/or equitable relief. The learned Counsel for the appellant further submitted that the Trial Court wrongly held that the defendant Nos. 2 and 3 have no locus standi since they are not parties to the agreement or contract between plaintiff and the defendant No. 1. The learned Counsel for the appellant submitted that the subsequent purchaser has got a substantial right and the registration case of the defendant Nos. 2 and 3 is still pending. The learned Counsel for the appellant also submitted that both the Courts below did not consider the question of limitation inasmuch as [SECTION] of the [ACT] provides that the suit is to be filed within four months from the date of execution of the deed. The said deed was allegedly signed on 31st May, 1970 and title suit was filed on 11th June, 1973. The learned counsel for the appellant submitted emphatically that the plaintiff is at the right for three years and then filed the suit which has become time barred by that time. The learned Courts below did not consider at all those aspects of the suit. The learned Counsel for the appellant further submitted that in the written statement the defendant Nos. 2 and 3 specifically denied any talk of contract and to prove the existence of the contract no independent witness has been examined by the plaintiff and from the alleged deed it would appear that it was only signed by the purchaser and witness and such an execution cannot be said to have been made the alleged transaction a concluded contract. According to the learned Counsel for the appellant to avoid registration and/or to avoid the limitation aspects of the [ACT], this title suit has been filed to defeat the registration case of the defendant Nos. 2 and 3. The learned Counsel for the appellant submitted that [SECTION] of the [ACT] stands as a bar in granting specific performance in such a case. The learned Counsel for the appellant also submitted that the Trial Court and/or the lower Appellate Court did not at all consider [SECTION] & [SECTION] which are math khasra records in its proper perspective. The learned counsel for the appellant also submitted that the evidence of [ENTITY], P.W. 1 is totally contradictory to his averments made in the plaint. The learned counsel for the appellant submitted that the learned Trial Judge for no reason at all disbelieved the evidence of [ENTITY]. The learned Counsel for the appellant submitted that as per the provision of [SECTION] and [SECTION] of the [ACT], the decree for specific performance is a discretionary decree and in such a case discretion should not have been exercised. The learned Counsel then reiterated her submission by saying that in view of the provision of [SECTION] of the [ACT] subsequent purchaser has got substantial right and in this regard both the Courts below did not consider and wrongly observed that the defendant Nos. 2 and 3, the appellant herein have no locus standi. The learned Counsel for the appellant laid stress on [SECTION] of the [ACT] and submitted that this suit is bit by the provision of said [SECTION] of the Act. The learned Counsel for the appellant also laid stress on the provision of [SECTION], [SECTION] and [SECTION] of the [ACT] and submitted that to avoid the limitation as prescribed in [SECTION] of the [ACT], the instant suit has been filed.
13. The learned Counsel for the appellant relied on a decision reported in 42 CWN page 97, [PRECEDENT]. The learned Counsel for the appellant submitted that in this case specific performance was claimed by lessor. The learned Counsel for the appellant submitted that in this judgment the Hon'ble Division Bench of this High Court observed:
"Where specific performance is claimed by the lessor under this section, the lessor must show
a) That the contract to lease is in writing;
b) That it is signed by both the parties;
c) That it is required to be registered under the law but has not been registered;
d) That there has been delivery of possession of the property by lessor to the lessee in a part performance of the contract."
14. In this judgment, the Hon'ble Division Bench also observed:
"If an agreement to lease creates a present demise and operates as a lease, it is required to be in writing and registered".
The learned Counsel for the appellant laid stress on the observation made by the Hon'ble Division Bench in this judgment which is as follows:
"There can be, in law, an oral contract to lease, provided it does not create a present demise and operate as a lease."
The learned Counsel for the appellant then relied on a decision , [PRECEDENT]. In this judgment the Hon'ble Apex Court observed that there is difference between suit for specific performance and other suits. The Hon'ble Apex Court quashing [SECTION] of the [ACT] observed in the manner as follows:
"[SECTION] of the Act reads as follows:
20. Discretion as to decreeing specific performance (1) The jurisdiction to decree specific performance is discretionary, and the Court is not bound to grant such relief merely because it is lawful to do so; but the discretion of the Court is not arbitrary but second and reasonable, guided by judicial principles and capable of correction by a Court of Appeal.
(2) to (4) It is well-settled that the circumstances referred to in Sub-clauses (2) to (4) in regard to exercise of discretion for granting a decree for specific performance are not exhaustive. The relief for specific performance is discretionary and is not given merely because it is legal but it is governed by sound judicial principles, (see [PRECEDENT] and [PRECEDENT])"
It is again well-settled that in a suit for specific performance, the evidence and proof of the averment must be absolutely clear and certain.
It appears to us that while normally it is permissible to grant relief on the basis of what emerges from the evidence if not pleaded, provided there is no prejudice to the opposite party, such a principle is not applied in suits relating to specific performance. In [PRECEDENT], the Calcutta High Court has considered the same question. There the agreement pleaded was not proved but the plaintiff wanted to prove an antecedent agreement based on correspondence. It was held that the plaintiff, in a suit for specific performance, could not be permitted to abandon the case made out in the plaint and to invite the Court to examine whether a completed agreement may or may not be spelt out of the antecedent correspondence. In that connection, Sir [ENTITY] observed:
"The Court would not in a case of this description permit the plaintiffs to depart from the case made in the plaint as the Court discourage, as a rule, variance between pleading and proof. The test, applied in such cases is whether if that variance were permitted in favour of the plaintiffs, defendants would be taken by surprised and be prejudiced thereby This rule is applied with special strictness in case of specific performance of contracts. In [PRECEDENT] one contract was alleged and another was proved with the result that the bill was dismissed. No doubt where there has been a part performance, the Court may struggle with apparently conflicting evidence rather than dismiss the suit. This appears to have been the view adopted by Lord [ENTITY] in [PRECEDENT], In the case before us there is no question of part performance."
15. Fry on Specific Performance (6th Edn.) (pp-298-302) deals with the exact point in issue before us. The author refers to four types of cases:
1. Where the defendant admits the contract alleged;
2. Where the defendant denies the contract as alleged and the plaintiff supports his case by one witness only;
3. Where the defendant denies the contract as alleged and the evidence proves a contract but different from that alleged by the plaintiff; and
4. Where the defendant denies the contract as alleged and admits another contract."
16. The learned Counsel for the appellant placing reliance on this decision submitted that in the instant case also there is variance between the pleading and the proof and the existence of contract between the plaintiff and the defendant No. 1 has not been conclusively proved and in such a case in view of the ratio of the above judgment of the Hon'ble Apex Court, the learned Trial Judge should not have granted decree for specific performance and the learned Appellate Court below should not have affirmed the said judgment of the learned Trial Judge.
17. The learned Counsel for the appellant then relied on a decision reported in [PRECEDENT], [PRECEDENT]. In this judgment the Hon'ble Division Bench of this High Court observed in the context of a particular case citing an example that an agreed property to X and subsequently conveyed it to B who took with notice of the prior contract. X obtained a decree for specific performance against A but did not make B party to the suit. X then sued B to recover possession. The Hon'ble Division Bench held that X had no enforceable right as against B, because at the date of the institution of the suit, his equitable right had been barred by limitation. The learned Counsel for the appellant submitted that in the instant case also the plaintiff cannot claim any right against the defendants Nos. 2 and 3 since the right of the plaintiff has become time barred.
18. The learned Counsel for the appellant then relied on a decision reported in 61 CWN page 775, [PRECEDENT]. In this decision the Hon'ble Division Bench of this High Court observed "[SECTION] of this [ACT] lays stress upon payment of money by the transferee without notice and in good faith and does not go further and require registration of the document without notice. There is no difficulty in reconciling this view with either [SECTION] of the [ACT] or [SECTION] read with [SECTION] of the [ACT] which appears to be cognate or allied statutory provision. The three statues read together, may well mean and contemplate a transferee who has got the document executed and paid money in good faith, without notice and who eventually get the said document delay registered, this giving it effect retrospectively from the date of its execution under [SECTION] of the [ACT]. The later provision is enough to make such a transferee, a transferee in law from the date of execution of the particular document and reconciles all the said statutes with the equitable of the situation."
19. The learned Counsel for the appellant then submitted that specific performance of a contract cannot be enforced in favour of a person as provided in [SECTION] of the [ACT] if Clauses (a), (b) & (c) have not been performed or fulfilled. The learned Counsel for the appellant in this regard relied on a decision , [ENTITY] (dead) by LRs. and Ors. v. Acchaibar Dubey and Anr. In this decision the Hon'ble Apex Court laid down that the obligation imposed upon the Court not to grant specific performance to a plaintiff who has not met the requirement of [SECTION] thereof and the second proposition is that this plea can be raised also by subsequent purchaser of the property or his LRs. who were defendants in suit. The learned Counsel for the appellant submitted that here the plaintiff could not fulfil the terms laid down in [SECTION] of the Act and the defendant Nos. 2 & 3 are entitled to raise this plea. According to the learned Counsel for the appellant the same principle has been reiterated in another decision of the Hon'ble Apex Court (Three-Judge Bench) , [PRECEDENT].
20. The learned Counsel for the appellant then relied on another decision of the Hon'ble Apex Court reported in [PRECEDENT], [PRECEDENT]. The learned Counsel for the appellant laid stress on the observations made in paragraphs 5 and 11 of this decision which are quoted hereinbelow:
'5. Another line of authority is the decision of the Division Bench of the Madras High Court in [PRECEDENT], , observed as follows:
"It is true that the purchaser can resort to proceedings under the [ACT] and the special statutory remedy under [SECTION] of that Act to obtain registration of executed document. But, if for any reason it becomes impossible to obtain registration after resort to such proceedings or because of other circumstances which prevent any resort to such proceedings under the Act then undoubtedly the vendee is entitled to bring a suit for specific performance of the agreement to sell in his favour. This does not, however, mean that every such suit should be decreed."
11. The analysis of the provisions of [SECTION] of the Act made by us above would indicate that it would apply if a matter is pertaining to registration of a document and not for a comprehensive suit as in the present case where the relief prayed for is directing the defendant to register the sale deed dated July 2, 1979 in favour of the plaintiff in respect of the plaint schedule property and if he so fails to get a registration in favour of the plaintiff for permanent injunction or in the alternative for delivery of possession of the plaint schedule mentioned property. The document has not been presented by the respondent to the Sub-Registrar at all for registration although the sale deed is stated to have been executed by the appellant as he refuses to co-operate in that regard. Therefore, various stages contemplated under [SECTION] of the Act have not arisen in the present case at all. We do not think in such a case when the vendor declines to appear before the Sub-Registrar, the situation contemplated under [SECTION] of the Act would arise. It is only on presentation of a document the other circumstances would arise. The First Appellate Court rightly took the view that under [SECTION] of the Act the sale deed could be received in evidence to prove the agreement between the parties though it may not itself constitute a contract to transfer the property. The said Court noticed that there was an agreement to transfer the immovable property in the suit by the defendant to the plaintiffs on the terms stated in the sale deed. Such an agreement to sell the immovable property in suit could be specifically enforced under the provisions of the [ACT]. Therefore, the First Appellate Court was of the opinion that the plaintiff was alternatively entitled to base his claim of specific performance on the pleaded oral agreement to sell and, inasmuch as there are further reliefs sought for, it was a comprehensive suit including a relief for specific performance of a contract contained in the sale deed executed, but not registered and, therefore, held that such relief for specific performance could be granted.'
[SECTION]. The learned Counsel for the appellant submitted that [SECTION] of the [ACT] casts duty upon the First Appellate Court to scrutinize and/or consider the judgment of the Trial Court and since this is final Court of fact and law the First Appellate Court should be very much cautious in scrutinizing the judgment and decree of the Trial Court. The learned Counsel for the appellant relied on a decision (Hon'ble 3 Judges Bench) of the Apex Court , [ENTITY] v. Purushottam Tiwari. In this judgment the Hon'ble Apex Court observed:
"The Appellate Court has jurisdiction to reverse or affirm the findings of the Trial Court. First appeal is a valuable right of the parties and unless restricted by law, the sole case is therein open for rehearing both on questions of fact and law. The judgment of the Appellate Court must, therefore, reflect its conscious application of mind and record findings supported by reasons, on all the issues arising along with contentions put forth, and pressed by the parties for decision of the Appellate Court".
The Hon'ble Apex Court in this judgment also observed:
"As a matter of law if the appraisal of the evidence by the Trial Court suffers from a material irregularity or is based or inadmissible evidence or on conjectures and surmises, the Appellate Court is entitled to interfere with the finding of fact".
22. On summing up the learned Counsel for the appellant submitted that both the Courts below went on wrong, there was variance of pleading and evidence on record, the lower Appellate Court did not scrutinize the judgment and decree passed by the Trial Court in its proper perspective, the Trial Court basically went on wrong by not considering that the decree for specific performance is an equitable relief and discretionary relief which cannot be granted in such a case. The Trial Court did not frame any issue relating to the transaction of the vendor that is the owner of the land and the defendant Nos. 2 & 3. The Trial Court wrongly held that the defendant Nos. 2 & 3 have no locus standi and this is only a privity of contract in between the plaintiff and the defendant Nos. 1 & 4. The learned Trial Court did not consider at all or did not frame any issue regarding the limitation aspects and also did not consider that the suit is time barred. The learned Trial Court also did not consider or discuss the question of pendency of the case before the Registrar insofar as the registration of document in between the plaintiff and the defendant Nos. 2 & 3. The learned Trial Judge as well as the Appellate Court did not at all consider that the suit is barred by the provisions of [SECTION] of the [ACT] and for non-compliance of [SECTION] of the [ACT] and the plaintiff is not entitled to get specific performance in view of the above. The learned Counsel for the appellant submitted that the suit should be dismissed in limine and with costs.
23. The learned Counsel for the respondents submitted that a verbal contract is also contract. The plaintiff enter into a contract with the defendant Nos. 1 & 4. The learned Counsel for the respondents further submitted that on the basis of the said contract possession was handed over to the plaintiff. It has also been submitted that the defendant Nos. 1 & 4 filed the written statement in the title suit but thereafter did not appear and according to the learned Counsel for the respondent the defendant Nos. 2 & 3 acted in collusion with the defendant Nos. 1 & 4. The learned Counsel for the respondents further submitted that the issue Nos. 2 & 3 that is whether the suit is barred by principle, estoppel, waiver and acquiescence and whether the suit is barred under the provision of [SECTION] of the [ACT] were not pressed. The learned Counsel for the respondents further submitted that in view of the provisions of [SECTION] of the [ACT] the High Court may presume the existence of any fact which it thinks likely to have happened. The learned Counsel for the respondents submitted that the math khasra of the record-of-rights show permissive possession and no objection regarding this math khasra report was given. The learned Counsel for the respondents further submitted that the point of limitation which was not taken in the Trial Court or First Appellate Court cannot be agitated here. The learned Counsel for the respondents also submitted that the High Court should not interfere in this second appeal with the concurrent finding of fact by both the Courts below. The learned counsel for the respondents in this regard relied on a decision , [PRECEDENT]. The learned Counsel for the respondents laid stress on the observations made by the Hon'ble Apex Court in paragraphs 10 and 11 of this judgment. The said paragraphs 10 and 11 are quoted hereinbelow:
"10. The question of law formulated as substantial question of law in the instant case cannot, in any way, be termed to be a question of law much less as substantial question of law. The question formulated in fact is a question of fact. Merely because of appreciation of evidence another view is also possible would not clothe the High Court to assume the jurisdiction by terming the question as substantial of law. In this case issue No. 1, as framed by the Trial Court, was admittedly, an issue of fact which was concurrently held in favour of the appellant-plaintiff and did not justify the High Court to disturb the same by substituting its own finding for the findings of the Courts below, arrived at on appreciation of evidence.
11. When, concededly, the time was not the essence of the contract, the appellant-plaintiff was required to approach the Court of Law within a reasonable time. A Constitution Bench of this Hon'ble Court in [PRECEDENT]., , held that in case of sale of immovable property there is no presumption as to time being the essence of the contract. Even if it is not of the essence of contract, the Court may infer that it is to be performed in a reasonable time if the conditions are (1) from the express terms of the contract; (ii) from the nature of the property; and (iii) from the surrounding circumstances, for example, the object of making the contract. For the purposes of granting relief, the reasonable time has to be ascertained from all the facts and circumstances of the case."
24. The learned Counsel for the respondents submitted that in view of the observations made by the Hon'ble Apex Court in this judgment the issue regarding specific performance of agreement to sale or whether the plaintiff was ready and willing to perform his part of contract is a question of fact and since in this case both the Courts below concurrently held in favour of the plaintiff, the Second Appellate Court should not enter into this question of fact. The learned Counsel for the respondents sought to distinguish the ratio of the decisions cited by learned Counsel for the appellant and submitted that 42 CWN (supra) relates to oral contract or lease and as such it is not applicable in the instant case. The learned Counsel also sought to distinguish the other judgments cited by the learned Counsel for the appellant and submitted in conclusion that the second appeal should be dismissed with costs.
25. Now, in the perspective of the above materials let us discuss the substantial questions of law. It is admitted position that there was no written contract. It is also admitted that there is no document showing payment of consideration money. In his evidence [ENTITY] said: "I never gave them any word for sale. I am possessing the property on behalf of defendant No. 4". [ENTITY], the D, W. 1, also said: "Neither [ENTITY] nor defendant No. 1 never came to his house in the middle of Baishak 1377 B. S. to sell the property to the plaintiffs, said [ENTITY] in his cross-examination said. The defendant Nos. 1 and 4 have no residential house in the suit village. Whenever they visited suit village, they stayed in his house". It is not understandable as to why the Appellate Court below found that [ENTITY] is lying deliberately, more so when the Courts below accepted the position that [ENTITY] was the mediator and the defendants Nos. 1 & 4 had no residence at the suit village. It also appears from the evidence (cross-examination) of [ENTITY] who says that he knows both the parties and also says "Gour Dhanki cultivated on behalf of defendant No. 1." It is also not known as to how and on what basis the learned Trial Judge came to the conclusion that contact was there, consideration was paid, execution was made, and only the registration was due inasmuch as it does not appear from the records that there was concluded contract in between the plaintiff and respondent Nos. 1 & 4. It also does not appear from any evidence that entire consideration money was paid on the very first date without registration and more so money was paid to [ENTITY] whereas the owner was his wife [ENTITY]. In absence of specific issue as to whether there was concluded contract and without specific finding in this regard the learned Trial Court should not have granted a decree for specific performance inasmuch as specific performance is equitable relief. Specific performance is also discretionary relief and to exercise this discretion the Court must be very careful and very definite that there remains a specific case on which such a decree can be granted. In the instant case from the evidence on record, it does not appear that a specific issue was framed as to whether there was concluded contract between the parties or there was conclusive proof or evidence that this concluded contract culminated in specific performance and in that view of the matter the Trial Court should not have passed a decree for specific performance. The first substantial question of law is therefore answered in favour of the appellants. Secondly, as discussed above the appellants hereinbelow were the defendant Nos. 2 & 3 who are the subsequent claimants towards purchase of the suit property, in view of the provisions of [SECTION] of the [ACT], the said defendant Nos. 2 & 3 have got locus standi and have got an well-defined right and both the Courts erred in law in coming to the conclusion that the defendant Nos. 2 & 3 have no locus standi or have no right and suit is only to be decided on the privity of contract in between the plaintiff and the defendant Nos. 1 & 4. In view of the decisions referred to above and in view of the provisions of [SECTION] of the specific [ACT] this finding of both the Courts below are absolutely wrong and this substantial question of law also this in favour of the appellants/ defendant Nos. 2 & 3.
26. The next question which arises is as to the point of limitation. It is a fact that the appellants herein who are the defendant Nos. 2 & 3 should have taken the point of limitation in the Courts below. But, it is also a fact that when the Trial Court granted a decree for a specific performance which is a very delicate issue the learned Trial Court should have been more cautious and should have framed an issue on the point of limitation and at the outset should have found whether the suit is time barred or not. Though normally a new plea cannot be raised in a second appeal. But in the decision , [PRECEDENT]., the Hon'ble Apex Court: observed: "however, the point being essentially a point of law, the learned Judge in second appeal permitted both sides to address on the point and cause to the conclusion that the contractual tenancy had not been duly terminated by notice. In the circumstances we do not think that there is any substance in the submission of the learned Counsel of the appellants before us that the learned Judge should have remanded the case for a determination of the questions."
27. In another decision , [PRECEDENT]. The Hon'ble Apex Court observed: "findings based on surmises and conjectures, perverse finding not based on legally acceptable evidence and which are patently contrary to law declared by Supreme Court, held, cannot have any impunity from interference in the hands of the appellate authority."
28. In the decision of the Hon'ble Apex Court delivered by Hon'ble Judge Bench in the case of [ENTITY], (supra) also the Hon'ble Apex Court observed that a completely new point raised before High Court for the first time, would not be a question involved in the case unless it went to the root of the matter.
29. In the above view of the matter, it can be very well said that the point of limitation is a basic and vital point and it went to the root of the matter and as such in my opinion it is permissible on behalf of the appellants to raise this point in the Second Appellate Court. The Trial Judge and the Appellate Courts below both committed error in not coming to the conclusion insofar as this issue is concerned.
30. In this view also the three substantial questions of law tends to go in favour of the appellants.
31. All the three substantial questions of law are therefore, decided in favour of the appellants, the appeal is, therefore, allowed. The judgment and decree passed by both the Courts below are set aside. Let the decree be drawn up accordingly.
32. The L. C. R. be sent down to the Courts below forthwith. In the circumstances the parties are to bear their own costs.
33. Urgent xerox certified copy, if applied for, will be supplied to the parties expeditiously.