The main legal point established in the judgment is the requirement for the plaintiff to prove the existence of a concluded oral agreement and to be ready and willing to perform the essential terms of the contract in a suit for specific performance.

T. Nandakumar Singh, J.

1. The present Second Appeal against the judgment and decree dated 20.12.1999 passed by the learned Civil Judge (Sr. Division), Kamrup in Title Appeal No. 13 of 1991 allowing the appeal by setting aside the judgment and decree dated 8.4.1991 passed by the learned Munsiff-1 Karimganj in T.S. No. 108 of 1983, was admitted for hearing on 14.6.2000 on the following three substantial question of law of laws, which read as under:

1. Whether the suit was bad in law in absence of any pleadings and proof that the plaintiff was ready and willing to perform his part of the contract;

2. Whether the learned appellate court was justified in decreeing the suit for specific performance only on the finding of presumption that there was an oral agreement between the parties; and

3. Whether any presumption under the law can be drawn up regarding existence of any verbal contract.

2. Heard Mr. B.C. Das, learned senior counsel appearing for the appellant/defendant as well as Mr. M. Singh, learned Counsel appearing for the respondent/plaintiff, Nagendra Kr. Nath.

3. Shri Nagendra Kr. Nath, respondent/plaintiff filed T.S. No. 108 of 1983 in the Court of Munsiff-1 Karimganj against the present appellant/defendant, Shri Sunamoni Nath and 3 others in the Court of Munsiff at Karimganj and the reliefs sought in the plaint are that (a) the appellant/defendant, Shri Sunamoni Nath, be directed to execute a registered sale deed in favour of the respondent/plaintiff, Shri Nagendra Kr. Nath in respect of the land measuring 6 Kedars, 1 Powa, 1 Jasthi out of the land measuring one Hal ½ Kedar, 2 Jasthi, for the price of Rs. 5,500 out of which defendant No. 1 had received Rs. 825, (b) confirmation of the respondent/plaintiff's possession in respect of the entire land prescribed in Schedule to the plaint and (c) also for issuing injunction, both temporary and permanent, against the appellant/defendant and three others. The respondent/plaintiff pleaded in the plaint that the respondent/plaintiff; Sri Nagendra Kr. Nath and the appellant/defendant, Sunamani Nath, jointly purchased the land prescribed in the Schedule from Sri Rabindra Kumar Nath and others of village Ambakla under registered sale deed dated 16.6.1982 and after their purchase, the respondent/plaintiff and also the appellant/defendant were enjoying possession of their respective share of the said land. When the appellant/defendant proposed to sell his ½ share of the said land, i.e., the land prescribed in Schedule to the plaint, the respondent/plaintiff, Shri Nagendra Kr. Nath, agreed to purchase the same. The price of the land was fixed at Rs. 5,500. On 5.9.1982 the respondent/plaintiff, Nagendra Kr. Nath, paid a sum of Rs. 825 out of the total price to the appellant/defendant, Sunamani Nath, as advance and having received the amount, the appellant/defendant, Shri Sunamani Nath, agreed to execute a registered deed of sale subject to receipt of Rs. 4,675 by the month of Baisakh, 1390. When the respondent/plaintiff, Sri Nagendra Kr. Nath, requested the appellant/defendant, Sri Sunamoni Nath, to accept the rest of the money, at ill advice of the defendant Nos. 2 to 4, refused to do so and instead tried to cause hindrance to the respondent/plaintiff's possession and this had compelled the respondent/plaintiff, Nagendra Kr. Nath, to file a Criminal case in the Criminal Court, Karimganj which is still pending.

4. The respondent/plaintiff, Sri Nagendra Kr. Nath, further, pleaded that he had deposited through challan the said remaining amount of Rs. 4,675 in the court. On plain perusal of the plaint of the T.S. No. 108 of 1983 filed by the respondent/plaintiff, Nagendra Kr. Nath, it is clear that the respondent/plaintiff had not specifically pleaded in the plaint that he was ready and willing to perform his part of the contract. The appellant/defendant, Sri Sunamoni Nath, filed his written statement wherein he categorically denied that the appellant/defendant, Sunamoni Nath, proposed to