The court emphasized the importance of proving the existence of an oral agreement and the legality of the sale deed in cases of specific performance of contract and transfer of unpartitioned property.

S. Talapatra, J.

1. This appeal filed under Section 100 of the Code of Civil Procedure (in short CPC) which is slated for consideration of admission is directed against the judgment and decree dated 01.03.2012 as passed by the learned Additional District Judge, West Tripura, Sonamura in Title Appeal No. 02 of 2011 affirming the judgment and decree dated 07.05.2011 passed by the learned Civil Judge, Senior Division, Court No. 1, Agartala, West Tripura in Title Suit No. 68 of 2007 whereby the suit was dismissed. The suit was instituted by the appellant for specific performance of contract and injunction. Later on, another relief by way of amendment was incorporated for cancellation of the sale deed No. 1-101843 dated 14.11.2005 as executed by the respondent No. 1, namely, Sri Ranjan Barman Choudhury, in favour of the respondent No. 2, namely, Sri Sunil Ch. Sarkar.

2. The appellant and the respondent No. 1 are the joint owners of the suit land as described in the Schedule-A of the plaint. The suit land was purchased by the father of the appellant and the respondent No. 1 measuring 0.21 acre which devolved to the appellant and the respondent No. 1 after death of their father.

3. The appellant pleaded that the respondent No. 1 promised to sell his share in the suit land and stated that whenever the appellant could manage money the respondent No. 1 would sell the suit land to him. On 08.08.1996 the respondent No. 1 informed the appellant suddenly that he was in dire need of money and he would be selling off his share. Since the appellant have no money for payment of the consideration of the share, the defendant entered into an agreement to sale with the respondent No. 2 on 09.08.1996. The appellant attested the said written agreement to sale as the witness. Before the sale could be materialised in terms of the said agreement, the respondent No. 1 had filed a suit for partition being TS(P) 185 of 1996 in the Court of the learned Civil Judge, Sr. Division, West Tripura, Agartala seeking partition of their joint property as described in Schedule-A which comprised of the inherited property minus the acquired land. In that suit an ex parte preliminary decree was passed on 18.07.1998 against which the appellant filed an appeal being Title Appeal No. 24 of 2006 and the said appeal was also dismissed. Thereafter, the matter was before this Court by filing an appeal under Section 100, CPC. The High Court also dismissed the said second appeal. Thereafter, the appellant filed an application for appointment of a Survey Commissioner to determine the shares of both the parties. That proceeding as stated in the bar, is still pending.

4. In the year 2002, the respondent No. 2 filed one suit for specific performance being Title Suit No. 78 of 2002. The agreement to sale was not performed despite his readiness. In that suit, the appellant was the defendant No. 2 as he was the co-sharer of the property covered by the agreement to sale. The suit was decreed on 18.07.1998 and against the said decree an appeal was filed by the respondent No. 1 being Title Appeal No. 24 of 2006 which was also dismissed. Thereafter, a second appeal was filed in which this Court remanded the case to the court of the learned Addl. District Judge, Sonamura. In that appeal the respondent No. 2 and the respondent No. 1 settled the matter by way of compromise and the appeal ended up by a compromise decree. In the petition for recording the compromise etc. the appellant was not a signatory. In the compromise petition, the price of the land was fixed at Rs. 2,25,000/- instead of what was earlier settled at Rs. 1,25,000/- and the earlier agreement as the plaintiff, the appellant herein, pleaded had become inoperative by efflux of time. The plaintiff pleaded further that the sale should have taken place after the partition suit is decided finally. It appears that by the compromise the previous agreement was sought to be made novated.

5. On 06.06.2006, the respondent No. 1 and the pl