First Appeal No.393 OF 1984 (Against the judgment and decree dated 30.11.1983 passed by Shri Aditya Sharan, 2nd Additional Sub- Judge, Chapra, in T.S. No. 70 of 1978). SATYA NR.MAHTO, son of Baban Mahto, resident of Mohall Shyam Chak, P.O.Chapra Pragna manjhi, P.S. Bhagwan Bazar, District-Saran - --(Appellant) Versus 1. BIBI BHUNERA KHATOON, wife of Sekh Fazale Haque and daughter of Late Kanoongo, resident of Mohalla- Salawat Ganj Gudari Bazar, Pargna Manjhi, P.S. Bhagwan Bazar, District-Saran 2. Dilip Kumar Singh 3. Bipin Kumar Singh 4. Binay Kumar Singh, all sons of Bishwa Nath Singh, all residents of village-Mukrere P.O.-Ribilganj, District-Saran. --(Respondents) ----------------- P R E S E N T THE HON'BLE MR. JUSTICE PRAKASH CHANDRA VERMA P.C. Verma, J. The fact of this case, in brief, is that the plaintiff/petitioner filed suit for specific performance of contract against defendant respondent. It was pleaded by petitioner that defendant No.1 was in need of money and so she approached the plaintiff for advancing a loan of Rs. 20,800/- and in lieu of that she agreed to sell Schedule-1 land with the plaintiff and everything was finalized on 5.1.1976 in presence of the husband of the defendant. Rs. 1000/- was also paid as advance and on that day, for some reasons, the sale deed could not be executed and so a Mahadanama was executed and it was agreed that the defendant would execute the sale deed by 31.3.1976. After 2 taking the balance which amounted to Rs. 19,800/- and in case she defaulted, then the plaintiff was at liberty to enforce the contract in court and get the sale deed executed. Thereafter, the plaintiff wanted to pay the balance to the defendant on several occasions within the stipulated period but the defendant avoided to execute the sale deed or to accept the amount. Thereafter, a legal notice was sent on 23.5.78 which was returned unserved. The plaintiff is willing to perform his part of the contract and he also performed some part of the contract but the defendant is not willing to execute the sale deed and therefore, the necessity of the filing of the suit has arisen. The defendant denied the claim of plaintiff and pleaded that plaintiff’s suit is liable to be dismissed. The learned 2nd Additional Sub- ordinate Judge, Chapra dismissed the suit against the defendant dated 30.11.1983. Upon hearing the learned counsel for the appellant, it reveals that the plaintiff has specifically set up a case for claiming benefit under Section 53A of the Transfer of Properties Act as the possession was handed over to the petitioner and the petitioner was in possession before filing of the suit. No issue was framed on this score and no finding has been recorded, therefore, it is a fit case for remand. Accordingly, the judgment, in this appeal is set aside. The trial court is directed to frame the issue and this issue shall be decided along with the issue of maintainability of the suit on the ground raised by the defendant that she was incompetent to 3 Patna High Court, Patna dated 19th April, 2011. N.A.F.R./Ravi/- sell the property for want of title, the alleged agreement to sell fictitious and fraudulently manufactured. The trial court shall conclude the trial within a period of six months from the date on which the certified copies of this order is produced. With the aforesaid observation, this appeal is disposed off. (Prakash Chandra Verma, J.)