The main legal point established in the judgment is the discretion of the court in granting specific performance, guided by judicial principles and equitable considerations, and the requirement of partition for delivery of separate possession in cases involving joint property.

JUDGMENT :

Mir Alfaz Ali, J.

This regular first appeal is by the defendant against the judgment and decree passed by learned Civil Judge, Hailakandi in T.S. No. 21/2013, whereby the suit of the plaintiff for specific performance of contract was decreed.

2. The respondent herein, as plaintiff filed a suit for specific performance of contract for sale, possession and permanent injunction. The case of the plaintiff was that the defendant and plaintiff were cousin by relation. Defendant, who was in need of money for his business of wine shop, intended to sell the suit land described in the schedule of the plaint at a consideration amount of Rs. 12 lakhs. Accordingly, a deed was executed by the defendant for selling the suit land for consideration of Rs. 12 lakhs, out of which, Rs. 1,50,000/- was paid on 29-07-12, when the deed of agreement was executed between the parties and balance amount of Rs. 10,50,000/- was paid on the next day. It was agreed by the defendant, that registered sale deed shall be executed after obtaining necessary permission from the district authority. Accordingly, permission was obtained on 13-08-12 for selling the land in favour of the plaintiff. Upon issuance of the permission on 13-08-12 by the Deputy Commissioner, the plaintiff purchased the necessary stamp papers and requested the defendant to execute the sale deed. However, the defendant did not execute the sale deed and ignored the request of the plaintiff. The plaintiff issued a notice on 21-09-2013 demanding the defendant to execute the registered sale deed, which was denied by the defendant. Hence, the suit was filed.

3. Defendant in his written statement took the plea that the suit land was joint property, for the enjoyment of all the co-sharers. It was also stated in the written statement, that the defendant did not execute the "saralipi" (agreement) or the application for NOC for transferring the suit land. It was also the pleaded case of the defendant, that signatures in deed of agreement were forged and it was a false and concocted document. On the basis of the above pleadings, the learned trial court framed the following issues :

1. Whether there is any cause of action for the suit ?

2. Whether the suit is maintainable in its present form and manner ?

3. Whether the suit is barred by the law of limitation ?

4. Whether the defendant is bound to execute and register a valid sale deed in favour of the plaintiff in respect of the suit scheduled land as per the terms and conditions of "Swaranlipi" (Agreement), dated 29/07/2012 ?

5. To what other relief/reliefs the plaintiff is entitled to get?

4. Plaintiff examined five witnesses. However, no evidence was adduced by the defendant. After hearing the parties, the learned trial court decreed the suit in favour of the plaintiff.

5. Aggrieved, the defendant filed the instant appeal.

6. I have heard Mr. P.S. Deka, learned counsel for the appellant and Ms. R.Choudhury, learned counsel for the respondent.

7. Learned counsel for the appellant Mr. PS Deka submitted that the agreement was not duly proved and no issue was framed by the trial court as to genuineness of the agreement, though the execution of the agreement was denied by the defendant and therefore, the decree is required to be set aside and the matter needs to be remanded back for fresh disposal after framing necessary issue. Further contention of the learned counsel for the appellant was that the suit property being a joint property, the defendant could not sell such property, without consent of the other co-sharers or unless partition was made amongst the co-sharer, and as such, learned trial court ought not to have granted the decree for specific performance of contract. Thus the appellant, while assailing the impugned judgment and decree basically challenged the finding of the learned trial court with regard to the issue no. 4 & 5.

8. Per contra, learned counsel for the respondent submits that the plaintiff has adduced sufficient evidence to prove the ex