JUDGMENT :

Soumen Sen, J.

1. I have the benefit of reading the judgment of my brother the Hon’ble Justice Siddhartha Roy Chowdhury. While I concur with the views expressed by His Lordship, I briefly indicate my reasons for affirming the judgment and decree of the trial court.

2. To avoid prolixity I have not referred to the facts in detail as the facts have been summarized by Justice Roy Chowdhury in his Lordship’s separate judgment.

3. The appeal is arising out of the judgment and decree passed by the learned Civil Judge, (Sr. Div.) at Alipore on 30th January, 2013. On 11th February, 2013 since corrected on 30th January 2013 in a suit for specific performance and injunction.

4. The learned trial Judge decreed the suit for specific performance and directed the execution of the deed of sale in respect of the flat in question in favour of the plaintiffs within one month from the date of the decree, failing which the plaintiffs were given liberty to get the same executed through the Court and to recover the cost of execution and registration from the defendants.

5. The defendants being aggrieved by the said decree preferred the instant appeal. The learned Counsel for the appellant assailed the said judgment and decree on two fold grounds:-

6. Firstly, the suit is barred under Section 69(2) of the Partnership Act, 1932 and secondly, the plaintiff has failed to prove the oral agreement for sale.

7. The learned Counsel for the appellant has fairly conceeded that the suit is barred under Section 69(2) of the Partnership Act, 1932 was not pleaded in their written statement or raised before the trial court. However, it is argued that since it goes to the very root of the matter the appellant may be permitted to raise the said issue in the first appeal.

8. Shorn of details, I briefly state only those facts that are relevant for my conclusions on the aforesaid two issues. The plaintiffs filed a suit for specific performance of an oral agreement. The plaintiffs rely upon a written document and few receipts to show evidence of payment of the agreed consideration. The defendants contested the suit by filing written statement denying all material allegations made against them in the plaint. It is the case of the defendants that the suit as framed is bad for non-joinder of necessary parties. Madhab Prosad Banerjee intimated the defendants that he would continue as the partner of the firm wherefrom he resigned earlier. Madhab Prosad Banerjee also told the defendants not to register flat in the name of the plaintiff no.3. On the contrary it should be registered in the name of plaintiff no.1. According to the defendants the agreed consideration for the sale of the said flat was settled at Rs. 13 lacs out of which a sum of Rs.9.50 lacs have been paid by the plaintiff firm. The plaintiffs dubiously obtained possession of the flat through Madhab Prosad Banerjee taking advantage of the good relationship of Madhab and the defendants. However, with the intervention of Madhab, one of the partners of plaintiff no.1 it was agreed that the partnership firm would occupy the said flat temporarily upon payment of occupational charges at the rate of Rs.4000/-per month along with KMC taxes and several charges till they get a suitable place. The possession of the plaintiff no.1 in respect of this suit flat is illegal, and not pursuant to part performance of contract as claimed by the plaintiffs. It is contended further that a sum of Rs. 3.5 lacs are lying due together with arrears of rent and other charges. The defendants further contended that neither they had nor do they have any obligation to execute any deed in favour of plaintiff no.3 under any circumstances. The defendants prayed for dismissal of the suit.

9. Learned Court below after considering the pleadings of the parties framed six issues. On the issue relating to the maintainability of the suit the learned Advocate for the respondents have relied upon Exhibit 15 which is the certificate of registration of the