1. Suit for specific performance of agreement for sale of property — Counterclaim for declaration of title and recovery of possession. (Para 2 , 5 )
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2026 Supreme(Gau) 1389
THE GAUHATI HIGH COURT AT GUWAHATI, (THE HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
(PRINCIPAL SEAT AT GUWAHATI)
ROBIN PHUKAN, J.
Sri Chandra Mohan Jha, S/o. Sri Hari Dev Jha – Appellant
Versus
Sri Alok Ghosh, S/o. Sri Khetramohan Ghosh – Respondent
RFA No. 73 of 2019 With RFA No. 111 of 2019
Decided On : 07-08-2026
Important Points
In a suit for specific performance, the plaintiff must prove execution of the agreement; mere production is insufficient. Admissions in pleadings are binding and can form the basis for decreeing a counterclaim for declaration of title.
Subject
Contract Law - Specific Performance of Contract
Act Referred
CIVIL PROCEDURE CODE: O.41 R.27, S.96, S.O.41 R.27
BHARATIYA SAKSHYA ADHINIYAM: S.63
INDIAN PENAL CODE: S.34, S.427, S.447, S.506
ASSAM LAND GRABBING ACT: S.5
EVIDENCE ACT: S.58, S.73
BHARATIYA SAKSHYA ADHINIYAM: S.63
INDIAN PENAL CODE: S.34, S.427, S.447, S.506
ASSAM LAND GRABBING ACT: S.5
EVIDENCE ACT: S.58, S.73
Headnote
(A) Specific Relief Act, 1963 - Sections 16(c), 20, 21, 22, 23 - Indian Evidence Act, 1872 - Sections 58, 73, 101, 102 - Bharatiya Sakhya Adhiniyam, 2023 - Section 63 - Civil Procedure Code, 1908 - Order XLI Rule 27 - Suit for specific performance of contract - Counterclaim for declaration of title and possession - Burden of proof - Admission of ownership - Proof of execution of agreement - Proof of payment - Discretionary relief - Judicial admissions binding - Appellate court's scope.
(B) The requirements for granting specific performance are: (i) existence of a valid and concluded contract; (ii) plaintiff's readiness and willingness; (iii) actual performance by plaintiff; (iv) whether equitable to grant relief; (v) entitlement to alternative relief. These must be pleaded and proved. (Para 12, citing Kamal Kumar vs. Premlata Joshi).
Facts of the case:
The plaintiff filed a suit for specific performance of an alleged agreement dated 10.10.2013, claiming payment of Rs.90,00,000/- to the defendant and possession of the suit property. The defendant denied the agreement, asserted that the plaintiff forcibly dispossessed him, and filed a counterclaim for declaration of his title and recovery of possession. The trial court dismissed the plaintiff's suit and partly allowed the counterclaim by declaring the agreement void but declining to declare the defendant's title. Both parties appealed.
Findings of Court:
The High Court upheld the dismissal of the plaintiff's suit, finding that the plaintiff failed to prove due execution of the agreement (no witness saw the defendant sign) and failed to prove payment (inconsistent evidence). However, the trial court erred in not decreeing the counterclaim in full because the plaintiff had categorically admitted in the plaint that the defendant was the absolute owner of the suit property. Such judicial admissions are binding under Section 58 of the Evidence Act and need no further proof. Additionally, the defendant produced an e-copy of the sale deed (allowed in appeal under Order 41 Rule 27 CPC) and a certificate under Section 63 of the BSA, which were not disputed. Hence, the counterclaim was decreed in full, declaring the defendant's right, title and interest and entitling him to recovery of possession.
Issues: The main issues were (I) whether the plaintiff proved execution of the agreement; (II) whether the plaintiff proved payment of earnest money; (III) whether the trial court erred in not decreeing the counterclaim in full despite the plaintiff's admission of the defendant's ownership.
Ratio Decidendi: The court ruled that admissions in pleadings are the best proof of facts admitted and constitute a waiver of proof; they can form the foundation of the rights of parties. A plaintiff seeking specific performance must prove execution of the agreement, not merely produce it. Where the plaintiff admits the defendant's absolute ownership, the defendant is entitled to a declaration of title and recovery of possession without further evidence.
Result: RFA No. 111/2019 (plaintiff's appeal) dismissed. RFA No. 73/2019 (defendant's appeal) allowed; counterclaim decreed in full. The receiver appointed was discharged. (Paras 18-20)
(B) The requirements for granting specific performance are: (i) existence of a valid and concluded contract; (ii) plaintiff's readiness and willingness; (iii) actual performance by plaintiff; (iv) whether equitable to grant relief; (v) entitlement to alternative relief. These must be pleaded and proved. (Para 12, citing Kamal Kumar vs. Premlata Joshi).
Facts of the case:
The plaintiff filed a suit for specific performance of an alleged agreement dated 10.10.2013, claiming payment of Rs.90,00,000/- to the defendant and possession of the suit property. The defendant denied the agreement, asserted that the plaintiff forcibly dispossessed him, and filed a counterclaim for declaration of his title and recovery of possession. The trial court dismissed the plaintiff's suit and partly allowed the counterclaim by declaring the agreement void but declining to declare the defendant's title. Both parties appealed.
Findings of Court:
The High Court upheld the dismissal of the plaintiff's suit, finding that the plaintiff failed to prove due execution of the agreement (no witness saw the defendant sign) and failed to prove payment (inconsistent evidence). However, the trial court erred in not decreeing the counterclaim in full because the plaintiff had categorically admitted in the plaint that the defendant was the absolute owner of the suit property. Such judicial admissions are binding under Section 58 of the Evidence Act and need no further proof. Additionally, the defendant produced an e-copy of the sale deed (allowed in appeal under Order 41 Rule 27 CPC) and a certificate under Section 63 of the BSA, which were not disputed. Hence, the counterclaim was decreed in full, declaring the defendant's right, title and interest and entitling him to recovery of possession.
Issues: The main issues were (I) whether the plaintiff proved execution of the agreement; (II) whether the plaintiff proved payment of earnest money; (III) whether the trial court erred in not decreeing the counterclaim in full despite the plaintiff's admission of the defendant's ownership.
Ratio Decidendi: The court ruled that admissions in pleadings are the best proof of facts admitted and constitute a waiver of proof; they can form the foundation of the rights of parties. A plaintiff seeking specific performance must prove execution of the agreement, not merely produce it. Where the plaintiff admits the defendant's absolute ownership, the defendant is entitled to a declaration of title and recovery of possession without further evidence.
Result: RFA No. 111/2019 (plaintiff's appeal) dismissed. RFA No. 73/2019 (defendant's appeal) allowed; counterclaim decreed in full. The receiver appointed was discharged. (Paras 18-20)
Legal Category Hierarchy
-
property law
- sale of property (Para 5)
- title and possession
- contract law
- practice and procedure
Advocates Appeared:
For the Appellant : Mr. A. Singh
For the Respondent: Mr. I.S. Mazumdar
For the Appellant : Mr. A. Singh
For the Respondent: Mr. I.S. Mazumdar
Table of Contents
2. Plaintiff claimed valid agreement and payment of earnest money; defendant denied and claimed forged document and illegal possession. (Para 5 , 6 , 7 , 8 , 9 )
3. Plaintiff's appeal dismissed; defendant's appeal allowed; counterclaim decreed in full; receiver discharged. (Para 18 , 19 , 20 , 21 )
4. What is the requirement to prove due execution of an agreement in a suit for specific performance?
Plaintiff must prove due execution of the agreement; mere production of original document is insufficient. The initial burden lies on the plaintiff to show the defendant signed it. (Para 12 , 13 , 14 )
5. What evidence is required to prove payment of earnest money in a suit for specific performance?
Plaintiff must produce credible evidence such as bank statements or receipts. Contradictory statements and failure to produce documentary evidence lead to failure of proof. (Para 15 )
6. Can a court declare title based on an admission in the plaint under Section 58 of the Evidence Act?
Yes, judicial admissions are binding and constitute waiver of proof. They can form the foundation of rights, and the court should declare title accordingly. (Para 16 )
JUDGMENT :
ROBIN PHUKAN, J.
Heard Mr. A. Singh, learned counsel for the appellant in RFA No. 73/2019, and respondent in RFA No. 111/2019. Also heard Mr. I.S. Mazumdar, learned counsel for the respondent in RFA No. 73/2019, and appellant in RFA No. 111/2019.
2. In these appeals, under Section 96 of the CPC, the appellant/respondent has put to challenge the correctness or otherwise of the judgment and decree, dated 12.06.2019, passed by the learned Civil Judge No. 2, Kamrup (M) at Guwahati (trial court hereinafter), in Title Suit No. 205/2014.
3. As both the appeals are arising out of the same judgment and decree and the parties involved are also same and as agreed upon by learned counsel for both the parties, it is proposed to dispose of both the appeals by a common judgment and order.
4. For the sake of convenience and also to avoid confusion, the parties herein after will be referred to by their original status in the Title Suit No.205/2014.
Background Facts:-
5. The background facts, leading to filing of the present appeals, are adumbrated herein below:-
“The defendant is the absolute owner and possessor of a plot of land, measuring 1 Katha 17 Lechas, covered by Dag No. 200 of KP No. 87 of revenue village Khanapara, under Beltola Mouza, in the district of Kamrup (M) at Guwahati and he had constructed one G+3 storied RCC building, over the said plot of land, but he could not complete the same.
Thereafter, in the month of September, 2013, the defendant had approached the plaintiff with a request to sell the suit property. Then, on 10.10.2013, the plaintiff and the defendant had entered into an agreement for sale of the aforesaid property, fixing the price at Rs. 1,00,00,000/-(Rupees One Crore). The plaintiff had paid a sum of Rs. 90,00,000/-
(Rupees Ninety Lacs) to the defendant on the date of execution of the agreement for sale and then, the defendant had handed over the possession of the property to the plaintiff.
As per stipulation, made in the agreement, the defendant had to take necessary sale permission from the authority for execution of sale deed. But, on various pretext he avoided to obtain the same. Thereafter, on 06.01.2014, when the plaintiff had approached the defendant, the defendant assured the plaintiff that the sale permission would be obtained shortly and the sale deed will be executed. But, in fact he never made any attempt to obtain the sale permission. When the plaintiff had inquired at the office of the Deputy Commissioner, Kamrup (M) at Guwahati (DC hereinafter) and Guwahati Municipal Development Authority (GMDA herein after), he found that the defendant had not applied for any sale permission. Then, seeing the conduct of the defendant and being left with no option, the plaintiff had filed a title suit, being Title Suit No.205/2014, before the learned trial court, for specific performance of contract and also for decree for execution of the sale deed or for recovery of Rs. 90,00,000/(Rupees Ninety Lacs).
Thereafter, summon was issued to the defendant and the defendant had entered appearance and filed his written statement cum counter claim, wherein the defendant, amongst others, had taken a plea that the suit is not maintainable and there is no cause of action for the suit and also that the suit is barred by limitation.
The defendant had also taken the plea that he is the absolute owner of the suit property as stated in the plaint, but he denied that he had ever approached the plaintiff for sale of the suit property and also denied entering into any agreement for sale of the suit property with the plaintiff on 10.10.2013, and also denied that he had received a sum of Rs. 90,00,000/ (Rupees Ninety Thousand)- as an advance from the plaintiff, and also denied handing over the possession of the suit land to the plaintiff. The defendant had also stated that as there was no agreement for sale of the suit property between him and the plaintiff, the question of obtaining sale permission from the concerned authority does not
