Decree of specific performance passed by the learned trial court in Title Suit No. 19 of 2003 by judgment dated 21.7.2005 has been challenged in this first appeal by the defendants.

2. Plaintiff Mamoni Baruah filed Title Suit No. 8 of 1996 in the Court of Assistant District Judge, Jorhat stating that a plot of land measuring 1 katha covered by Dag No.5128 of P.P. No.102 old 49 new of Block No.2 in Jorhat is owned by defendants No. 1 to 5. They entered into a written agreement with the plaintiff on 28.1.1995 for sale at a total consideration of Rs.4,00,000/- and received Rs.2,00,000/- as advance on the date of execution of the agreement. As per terms of the agreement, the defendants were supposed to execute sale deed in favour of the plaintiff on receipt of the balance amount of money but plaintiff approached the defendants time and again, however, to no avail. Defendants appeared to be avoiding the plaintiff for performing their part of the contract and so a pleader’s notice was issued to the defendants asking them to execute and register sale deed as per the agreement dated 28.1.1995 upon receipt of Rs.2,00,000/-. Said notice was served on 23.5.1995 and 18.7.1995 but even thereafter, the defendants did not come forward to perform their part of the agreement. Under such circumstances, plaintiff instituted the suit praying for a decree of specific performance of contract and in the alternative it was prayed that in the event sale deed is found to be not executable in that event the suit be decreed with cost and interest @ 18 % per month from 28.1.1995 till realization.

3. On being summoned, defendants No. 1 to 5 appeared and contested the suit by filing joint written statement. According to these defendants, the suit is premature one and vitiated for non impleading necessary party. It was further contended that the contract was not a concluding and complete one and unless the defendants No. 6 and 7 vacate the hotel situated on the suit land, no sale deed could be executed by defendants. Defendants No. 6 and 7 entered appearance by filing written statement and contended that they are not remotely associated with the contract in question and so they have been wrongly impleaded as defendants in the suit. Defendant No. 6 was only attesting witness to the agreement and he had nothing to do in regard to the performance of the contract. These defendants also prayed that suit is liable to be dismissed with cost.

4. Upon such contention of the parties, the learned trial court has framed as many as seven issues which are quoted below:

(i) Whether there is any cause of action for the suit?

(ii) Whether the contract for sale is a contingent contract and not enforceable in law?

(iii) Whether the suit is bad for non-joinder of necessary parties?

(iv) Whether the contract for sale is a Benami transaction?

(v) Whether the contract for sale is an invalid contract?

(vi) Whether the plaintiff is entitled to any decree for specific performance of the contract?

(vii) To what relief/reliefs the parties are entitled to ?

5. In course of trial, plaintiff examined herself, her husband and four other witnesses who are duly cross-examined by defendants. Plaintiff also exhibited documents. Defendants on the other hand did not examine any witness and did not produce any documents.

6. Learned trial court after consideration of the materials available on record and after hearing the learned counsel for the parties passed the impugned judgment and decree holding, inter-alia, that the agreement is contingent one but enforceable in law and is not invalid in any way. It is held that suit is not bad for defect of parties and it is also not vitiated under Benami transaction. The trial court so found that there was cause of action for the suit and also decided issue No.1 in favor of the plaintiff. Coming to issue No. 6, trial court considered exhibit-1 agreement and arrived at the finding that plaintiff made payment of Rs.2,00,000/- to the defendants No. 1 to 5 on 28.1.19