RAM PRASANNA SHARMA, J.

1. This appeal is preferred under Section 96 of the Code of Civil Procedure, 1908 against the judgment/decree dated 28-9-1995 passed by the Additional District Judge, Jashpurnagar, District Raigarh in Civil Suit No. 2A/88 wherein the said court dismissed the suit filed by the appellants/plaintiffs for specific performance of the contract dated 1-7-1987 for land measuring 9.56 acres mentioned in Schedule-A of the plaint situated at village Pathratoli, Patwarni Halka No. 16, Revenue Circle Kunkuri, Tahsil Kunkuri, Dist. Raigarh now Jashpur (CG).

2. Deceased Gokula Sao was owner of the suit land and he entered into an agreement to sale the said land in favour of the appellants/plaintiffs for a sum of Rs.60,000/-. Rs. 40,000/- was paid to Gokul Sao on 1-7-1987 and it was agreed that sale deed will be executed after payment of balance consideration of Rs.20,000/-. It is alleged by the appellants that Gokula Sao delivered the possession of the land on 1-7-1987 itself, out of balance consideration of Rs.20,000/-, amount of Rs.15,000/- was paid to Gokula Sao on 28-8-1987. The said Gokula Sao executed the receipt. The appellants were already willing to make payment of the balance consideration of Rs.5000/-, but due to ill-health of said Gokula Sao, sale deed could not be executed. Gokula Sao died at village Pathratoli on 10-9-1987. He was issue-less and his wife Sumitra Devi left the village and her whereabouts were not known since 1987. The appellants filed a suit for specific performance of the agreement dated 1-7-1987. Respondents obstructed and tried to interfere in the appellants' possession over the suit land after death of Gokula Sao. Respondent No.24/defendant namely Shyam Shankar Prasad filed a counterclaim on the basis of will dated 20-3-86 and prayed for declaration that he is entitled to receive sale proceeds of the auction of the usurpt of the suit land which was auctioned by the Tahsildar, Kunkuri. The name of the said respondent was mutated on 31-3- 1990 during pendency of the suit and during pendency of the proceeding under Section 145 of the Code of Criminal Procedure. At present the suit land is under attachment under Section 146(1) of the Cr.P.C., 1973.

3. The trial Court after hearing both sides recorded a finding that the document Exhibits.P/1 and P/2 are not documents of agreement to sale, but it appears that documents which are in nature of sale is unregistered and possession of the appellants is also not established. The trial Court further opined that the sale deed in favour of the appellants cannot be executed because the property is transferred to respondent No.24 namely Shyam Shankar Prasad on the basis of a will executed by Gokula Sao and he is now owner of the property. The trial Court while dismissing the suit of the land declared that Shyam Shankar Prasad / respondent No. 24 is owner of the property in question on the basis of will and declared his title over the property.

4. Learned counsel for the appellants would submit as under;

(i) Though Gokula Sao died issue-less and his wife Sumitra Devi also died, but balance amount of agreement will be paid to the State Government as per provisions of Section 29 of the Hindu Succession Act, 1956 (for short, the Act, 1956").

(ii) The agreement was entered in the year 1987 and as per Section 17(1)(a) of the Registration Act, 1908, (for short, "the Act, 1908") registration of agreement was not required at the time of agreement. It is required only after amendment in the year 2001 and enforced on or after 24-9-2001.

(iii) As per revenue record, possession of the property is shown of appellants though it is mentioned that it is illegal possession but said opinion in the revenue record is irrelevant.

(iv) Counter claim on the basis of will by respondent No.24 could not have been entertained in the suit for specific performance of the contract as per Order 8 Rule 6-A of the C.P.C.

(v) Will has not been proved as per Section 63 of the Indian Su