Gauhati High Court
RFA/52/2023 on 17 March, 2026
GAHC010183732023
2026:GAU-AS:4027
IN THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM & ARUNACHAL PRADESH)
RFA NO.52 OF 2023
Sri Sarudhan Ali @ Asirot Ali,
S/o- Late Abdul Ali
R/o- Ward No. 1, Nakari,
P.O. & P.S: North Lakhimpur,
District: Lakhimpur (Assam),
Pin- 787001.
.......Appellant
-Versus-
Smt. Padumi Phukan,
W/o- Sri Prahlad Kumar Phukan,
R/o- Village Solal Gaon,
P.O & P.S. Panigaon,
District: Lakhimpur (Assam),
PIN: 787052.
.......Respondent
-BEFORE-
HON'BLE MR. JUSTICE KAUSHIK GOSWAMI
Advocate for the appellant : Mr. S.K. Ghosh.
Advocate for the respondent : Mr. S. Dutta.
Date on which judgment is reserved : N/A
Date of pronouncement of judgment : 17.03.2026
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Whether the pronouncement is of the
Operative part of the judgment : No
Whether the full judgment has been
Pronounced : Yes
JUDGMENT & ORDER (ORAL)
Heard Mr. S.K. Ghosh, learned counsel for the
appellant. Also heard Mr. S. Dutta, learned counsel appearing
for the respondent.
2. The present Regular First Appeal is directed against
the judgment and decree dated 15.05.2023, passed by the
learned Court of Civil Judge, Lakhimpur, North Lakhimpur in
Title Suit No. 12/2019, whereby the trial court decreed the
suit in favour of the respondent.
3. The dispute arises out of a suit for specific
performance of a contract dated 02.02.2017, relating to the
sale of 2 Katha 7 Lecha of land for a consideration of Rs.
47,00,000/-. The trial court decreed the suit on 15.05.2023,
holding that the plaintiff was ready and willing to perform his
part of the contract, whereas the defendant failed to obtain
the necessary sale permission and execute the sale deed.
4. During the pendency of the appeal, 5.45 Lecha of
land was acquired by the Government, giving rise to the
question as to whether specific performance can still be
granted for the remaining portion. The central issue before
this Court is whether part-specific performance is permissible
under Section 12 of the Specific Relief Act, when a small
portion of the suit land has been acquired.
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Submissions on behalf of the Appellant
5. Mr. S.K. Ghosh, learned counsel for the appellant,
contends:
(i) that the contract has become incapable of
performance due to partial acquisition of the land;
(ii) that the agreement dated 15.02.2019 resulted in
cancellation of the earlier agreement;
(iii) that the plaintiff has failed to establish readiness
and willingness under Section 16(c) of the Specific
Relief Act;
(iv) that the contract is indivisible and hence not
capable of part performance; and
(v) that, at best, compensation under Section 21 may
be awarded.
6. In support of the aforesaid submissions, reliance is
placed on the following decisions:
i) Sangita Singha vs. Bhawana Bharadwaj,
reported in AIR 2025 (SC) 1806
ii) Ram Awadh vs. Achhaibar Dubey, reported in
(2000) 2 SCC 428
iii) Smt. Katta Sujatha Reddy vs. Siddamsetty
Infra Project Pvt. Ltd., reported in (2023) 1 SCC 355
iv) Sunil Kumar Jain vs. Kishan & Ors., reported in
(1995) 4 SCC 1995
v) Smt. Pillamma & Anr. vs. P. Rangaraju, reported
in AIR 1996 Kant 330Page 3 of 11
vi) Vijay Prabhu vs. S.T. Lajapathi & Ors., reported
in (2021) 6 SCC 54Submissions on behalf of the Respondent
7. Per contra, Mr. S. Dutta, learned counsel appearing
for the respondent, submits:
(i) that the subsequent agreement is conditional and
does not cancel the original contract;
(ii) that the plaintiff has proved readiness and
willingness;
(iii) that Section 12 of the Specific Relief Act permits
part performance; and
(iv) that the value of the acquired portion can be
adjusted from the consideration.
8. In support of the aforesaid submissions, reliance is
placed on the following decisions of the Apex Court:
i) B. Santoshamma & Anr. vs. D. Sarala, reported
in (2020) 19 SCC 80,
ii) Dilip vs. Mohd. Azizul Haq & Anr., reported in
(2000) 3 SCC 607,
iii) Shivanna vs. B.S. Puttamadaiah, reported in
2023 SCC OnLine SC 1969,
iv) Malluru Mallappa vs. Kuruvathappa & Ors.,
reported in (2020) 4 SCC 313,
v) M. Venkataramana Hebbar (D) vs. M. Rajagopal
Hebbar, reported in (2007) 6 SCC 401,Page 4 of 11
Points for Determination
9. Upon hearing learned counsel for the parties and
perusing the material available on record, the following points
arise for determination:
i) Whether the agreement dated 02.02.2017 stood
cancelled by the subsequent agreement dated
15.02.2019?
ii) Whether the plaintiff has established readiness and
willingness under Section 16(c)?
iii) Whether partial acquisition renders the contract
incapable of performance?
iv) Whether specific performance can be granted in part
under Section 12?
v) Whether the impugned decree warrants interference?
Point No. (i): Effect of Subsequent Agreement
10. The contention of the appellant that the agreement
dated 15.02.2019 resulted in cancellation of the earlier
agreement dated 02.02.2017 is misconceived.
11. A careful reading of the document dated 15.02.2019
reveals that it does not unconditionally cancel the earlier
agreement. On the contrary, it records that the defendant had
decided not to proceed with the sale and undertook to refund
the amount of Rs. 31,00,000/- within the month of April,
2019, failing which the earlier agreement would remain
operative and binding. Thus, the document clearly
contemplates a conditional arrangement, whereby the earlier
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agreement would revive and remain enforceable in the event
the defendant failed to refund the amount within the
stipulated time.
12. Admittedly, the amount was not refunded within the
stipulated period. Consequently, the agreement dated
02.02.2017 continued to subsist and remain enforceable.
Therefore, the contention of the appellant that the earlier
agreement stood cancelled cannot be accepted.
Point No. (ii): Readiness and Willingness
13. It is well settled that in a suit for specific
performance, the plaintiff is required to establish continuous
readiness and willingness to perform his part of the contract
in terms of Section 16(c) of the Specific Relief Act, 1963.
14. In the present case, the plaintiff/respondent has
specifically pleaded readiness and willingness in the plaint and
reiterated the same in his evidence. The materials on record
further indicate that the plaintiff issued a legal notice dated
13.05.2019, calling upon the defendant to execute the sale
deed after the defendant failed to return the advance amount
in terms of the second agreement, which was not complied
with.
15. The learned trial court, upon appreciation of the oral
and documentary evidence, arrived at a finding that the
plaintiff had successfully established his readiness and
willingness to perform his obligations under the contract.
Such a finding, being based on evidence, does not suffer from
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any perversity. Accordingly, this Court finds no reason to
interfere with the said finding.
Point Nos. (iii) & (iv): Partial Acquisition and Section 12
16. It is not in dispute that during the pendency of the
appeal, a portion of the suit land measuring 5.45 Lechas has
been acquired by the Government. The appellant contends
that, due to such acquisition, the contract has become
incapable of performance. However, the acquisition pertains
only to a small fraction of the total land agreed to be sold,
and a substantial portion of the contracted property remains
available.
17. Apt at this stage to refer to Section 12 of the Specific
Relief Act, which reads as under:
“12. Specific performance of part of contract —
(1) Except as otherwise hereinafter provided in this
section, the court shall not direct the specific
performance of a part of a contract.
(2) Where a party to a contract is unable to perform
the whole of his part of it, but the part which must be
left unperformed is only a small proportion to the
whole in value and admits of compensation in money,
the court may, at the suit of either party, direct the
specific performance of so much of the contract as can
be performed, and award compensation in money for
the deficiency.
(3) Where a party to a contract is unable to perform
the whole of his part of it, and the part which must be
left unperformed either-
(a) forms a considerable part of the whole, though
admitting of compensation in money; or
(b) does not admit of compensation in money,
he is not entitled to obtain a decree for specificPage 7 of 11
performance; but the court may, at the suit of the other
party, direct the party in default to perform
specifically so much of his part of the contract as he
can perform, if the other party–
(i) in a case falling under clause (a), pays or has paid
the agreed consideration for the whole of the contract
reduced by the consideration for the part which must
be left unperformed and, in a case falling under
clause (b), pays or has paid the consideration for the
whole of the contract without any abatement; and (ii)
in either case, relinquishes all claims to the
performance of the remaining part of the contract and
all right to compensation, either for the deficiency or
for the loss or damage sustained by him through the
default of the defendant.
(4) When a part of a contract which, taken by itself,
can and ought to be specifically performed, stands on
a separate and independent footing from another part
of the same contract which cannot or ought not to be
specifically performed, the court may direct specific
performance of the former part.”
18. A reading of the aforesaid provision indicates that
Section 12 permits the Court, in appropriate circumstances, to
grant specific performance of a part of the contract,
particularly where the unperformed portion bears only a small
proportion to the whole and admits of compensation.
19. The Apex Court in B. Santoshamma (supra) has
held as follows:
“87. Section 12 of the SRA is to be construed and
interpreted in a purposive and meaningful manner to
empower the Court to direct specific performance by
the defaulting party, of so much of the contract, as can
be performed, in a case like this. To hold otherwise
would permit a party to a contract for sale of land, to
deliberately frustrate the entire contract by
transferring a part of the suit property and creating
third party interests over the same.
Page 8 of 11
88. Section 12 has to be construed in a liberal,
purposive manner that is fair and promotes justice. A
contractee who frustrates a contract deliberately by
his own wrongful acts cannot be permitted to escape
scot free.”
20. In the present case, the acquired portion constitutes
only a minor part of the contracted property, and its value
can be adjusted from the balance sale consideration payable
by the plaintiff/respondent. It is also well settled that an
appellate court may take note of subsequent events and
mould the relief accordingly to do complete justice between
the parties. Therefore, the subsequent acquisition does not
render the contract wholly unenforceable.
Point No. (v): Interference
21. It is thus established that the agreement dated
02.02.2017 continues to subsist; the plaintiff has duly
established readiness and willingness; and the acquisition of a
small portion of the land does not defeat the contract. In such
circumstances, the decree of specific performance granted by
the learned trial court does not suffer from any legal infirmity.
However, in view of the acquisition of a portion of the suit
land, the decree requires appropriate modification so as to
confine the relief to the remaining portion of the land, with a
corresponding and equitable adjustment of the consideration
payable.
Operative Directions
22. In the result, the appeal stands dismissed, subject
to the following modifications:
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i) The judgment and decree dated 15.05.2023 passed by the
learned Trial Court in Title Suit No. 12/2019 are affirmed,
subject to the modifications indicated herein.
ii) The value of the portion of land acquired shall stand
proportionately deducted from the total sale consideration.
Considering that the sale consideration for 2 Katha 7 Lecha
(47 Lecha) was fixed at Rs. 47,00,000/-, the proportionate
value of the remaining land measuring 41.55 Lecha (after
deducting 5.45 Lecha acquired by the Government) is
recalculated at Rs. 41,55,000/-. Out of the said amount, Rs.
31,00,000/- has already been paid by the respondent/plaintiff
to the appellant/defendant. Accordingly, the balance amount
payable is Rs. 10,55,000/-, which shall be paid by the
respondent/plaintiff within a period of 60 days from the date
of the decree to be drawn thereof.
iii) Upon receipt of the aforesaid balance amount, the
appellant/defendant shall execute and register the sale deed
in favour of the respondent/plaintiff in respect of the
remaining portion of the suit land within a period of 60 days.
In the event of failure to do so, the respondent/plaintiff shall
be at liberty to have the sale deed executed through the
process of the Court in terms of Order XXI Rule 34 of the
Code of Civil Procedure.
iv) It is clarified that the respondent/plaintiff shall not be
entitled to any relief in respect of the portion of land already
acquired; however, the respondent/plaintiff shall be entitled
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to proportionate adjustment of the sale consideration in terms
of the directions contained hereinabove.
23. The parties shall bear their own costs. The decree shall
be drawn accordingly.
24. The appeal stands disposed of.
JUDGE
Comparing Assistant
Pranab Digitally signed
by Pranab
Chand Chandra Das
Date: 2026.03.19
ra Das 16:07:42 +05'30'
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