The plaintiff's entitlement to rescind the agreement and seek recovery of possession based on the defendant's failure to perform the contract and the provisions of the Specific Relief Act, 1963.

1. This appeal under Section 96 read with Order XLI Rule 1 CPC is directed against the judgment and decree dated 05.05.2009 passed by the learned Civil Judge, Jorhat in T.S. No. 31/2007, thereby dismissing the suit filed by the appellant. The appellant/plaintiff had filed T.S. No. 31/2007 before the learned Civil Judge, Jorhat for breach of the agreement of purchase, confirmation of right, title and interest, for ejectment and recovery of possession, compensation, injunction etc.

2. The case of the appellant as per the plaint is that he was the owner of having right, title and interest over the plot of land measuring 4 Katha 16 Lessas, covered by Dag No. 1294 of Periodic Patta No. 338 of Kumar Kaibartagaon under Gurmur Mouza, Jorhat, which is described in Schedule-1 of the plaint. There is an Assam type “L” designed house comprising nine rooms standing on the said suit land. The appellant at the relevant time was 70 years old was in urgent need of money and wanted to sale his land to the defendant at the sale consideration of Rs.7,50,000/- (Rupees Seven Lakh fifty thousand only). The defendant paid Rs.1,00,000/- (Rupees One lakh only) as advance and the parties entered into an unregistered agreement for sale dated 04.07.2005. The balance sale consideration of Rs.6,50,000/- (Rupees Six Lakh fifty thousand only) was to be paid within one month and the registration of the sale deed and balance amount was required to be paid at the time of deed of conveyance. It is submitted that in the Agreement for Sale, the Dag number of land was wrongly written as Dag No. 614 instead of Dag No. 1294. Pursuant to the agreement, the plaintiff handed over the possession of the suit land described in Schedule-1 of the plaint to the defendant. However, the sale could not be completed within the stipulated period of one month. It is projected that the plaintiff handed over the signed forms for sale permission for the suit land along the photocopy of jamabandi, land revenue receipt, etc. to the defendant to enable him to apply for the sale permission. Although the plaintiff expressed his willingness and readiness to perform his part of contract to execute the proposed sale deed but the defendant did not come forward to make the payment and therefore, the sale could not be completed.

3. Although the sale was not completed, the defendant had not returned the possession of the suit land. It was projected that the defendant refused to vacate and handed over the suit property described in Schedule-2 and requested the plaintiff to allow some more time to purchase the suit property. It was stated that in the meanwhile, the plaintiff had taken back about 11 Lessas of land from the defendant and therefore, instead of Schedule-1, the land described in Schedule-2 was to be sold. Therefore, the parties entered into another Agreement on 07.09.2005 (Exbt.5) with a condition that if the defendant was agreeable to pay the entire sale consideration, then even the 11 Lessas of land would be also sold and, as such, the Agreement of Sale continued to remain in respect of the land described in Schedule-1 of the plaint. At the time of entering into the said second agreement, the defendant paid a further sum of Rs.2,75,000/- (Rupees Two Lakh Seventy Five Thousand only) to the plaintiff and, as such, the sale was required to be completed on receipt of the balance sale consideration of Rs.3,75,000/- (Rupees Three Lakh Seventy Five Thousand only). The plaintiff applied for the sale permission in terms of agreement dated 07.09.2005 and accordingly, the competent authority issued the requisite sale permission on 01.03.2006 (Exbt.7). After the sale permission was obtained the defendant did not come over to get the sale registered and therefore, on 13.04.2006 the plaintiff sent a letter (Exbt.9), by registered post to the defendant to intimate about his readiness and willingness and asked the defendant to complete the sale of the suit property. Thereafter, by an