MUNGESHWAR SAHOO, J.:–This Second Appeal had been filed by the original defendant, Smt. Lalti Devi against the judgment and decree dated 15.09.1992 passed by the learned 5th Additional District Judge, Patna in Title Appeal No.161 of 1989 whereby the learned Lower Appellate Court dismissed the appeal and thereby confirmed the judgment and decree of the trial court dated 26.09.1989 passed by the learned Execution Munsif, Patna in Title Suit No.60 of 1987/2 of 1989.

2. The plaintiffs-respondents filed the aforesaid suit for a decree for specific performance of contract dated 01.12.1986. According to the plaintiffs, it was agreed between the parties that the suit property was to be sold by original appellant, Lalti Devi(died during pendency of Second Appeal and substituted) for Rs.20,000 out of which Rs.6,000 was paid as advance and agreement was executed on 01.12.1986. The parties further agreed that the registered deed was to be executed and registered within 01.11.1987. The plaintiffs were always ready and willing to pay the balance consideration amount.

3. The defendants filed contesting written statement mainly contending that the agreement to sale dated 01.12.1986 is forged and fabricated document and the defendants had not executed the same.

4. The trial court after considering the evidences recorded the finding that the agreement is genuine document and was executed by the original defendant, Lalti Devi in favour of the original plaintiff, Chandrabaso Devi. The trial court also recorded the finding that the plaintiff was always ready and willing and was still ready and willing to perform her part of the contract. Accordingly, the plaintiff’s suit was decreed. On appeal, the Lower Appellate Court confirmed the finding of the trial court and dismissed the appeal.

5. On the date of admission of the appeal on 21.06.1993, the following two substantial questions of law were formulated:–

(A) Whether the court below was bound to consider the evidence adduced by the parties concerning the fact that the house in question was a joint family property although there is no such pleading taken in the written statement filed by the defendant-appellant?

(B) Whether non-consideration of the said evidence would be a ground for setting aside the impugned judgment/decree?

6. In support of the aforesaid two substantial questions of law, the learned senior counsel appearing on behalf of the appellants submitted that during the course of trial, the evidences were produced by the defendants to the effect that the suit property is joint family property and four sons of the original defendant had also share in the property. The plaintiffs also in the evidence admitted the fact that the property is joint family property but both the courts below did not consider the evidences produced by the defendants to prove the fact that the property is joint family property on the ground that there is no pleading to that effect in the written statement. According to the learned counsel, since the parties were knowing the fact of the dispute between the parties and they went to trial and adduced evidences, in such circumstances, it was the duty of the courts below to have considered the evidences and should have recorded the finding as to whether the property is joint family property or not because the finding on this question will be crucial and if it is found that the property is joint property then the original defendant, Lalti Devi had no right to enter into agreement to sell the whole property i.e. the residential house i.e. even the share of four sons. In support of his contention, the learned counsel relied upon AIR 1989 Supreme Court 1530 (Kali Prasad Agarwala (Dead by LRs.) and others Vs. M/s. Bharat Coking Coal Ltd. and others), AIR 1966 Supreme Court 735(Bhagwati Prasad Vs. Chandramaul), AIR 1958 Patna 550 (Uma Shankar Chowbey Vs. Mt. Dhaneshwari & Ors.) and AIR 1992 Patna 40(Triloki Vishwakarma alias Triloki Mistri Vs. Zaitun Nisa).

7. On the other hand, the

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