A.P. Mishra and; D.P. Mohapatra, JJ.
1. Leave granted.
2. In a suit for specific performance of an agreement to sell immovable property the trial court decreed the suit in terms of the plaint. But the District Court in a first appeal filed by the defendant reversed the said decree and dismissed the suit and the plaintiff filed a second appeal before the High Court. A learned Single Judge of the High Court passed the impugned order dismissing the second appeal in which it is observed that in the light of the finding of the first appellate court that the property did not belong to the 2nd defendant he had no authority to execute an agreement to sell the same.
3. Learned counsel for the appellant contended before us that the learned Single Judge of the High Court had misquoted the judgment of the first appellate court since there was no such finding that the 2nd defendant had no title to the property. Our attention had been drawn to paragraph 14 of the judgment of the first appellate court, which is as under:
“Defendant 1 has claimed the property under dispute to be her istridhan. Defendant 1 has not come forward to depose herself in this case. Question of title cannot be decided in a suit for specific performance of contract. The question is left upon to be decided in properly framed suit.”
4. When the first appellate court took the stand that it was unnecessary to decide the question of title of either the 1st defendant or the 2nd defendant the High Court ought not to have gone on a wrong premise that the finding on fact was the other way round. We feel that there was some confusion on that score and that resulted in a wrong premise being adopted by the High Court for disposal of the appeal. We, therefore, set aside the impugned judgment and remand the second appeal back to the High Court for disposal afresh. If any substantial question is discernible the same shall be formulated for the purpose of disposal of the second appeal.
5. We order that till the disposal of the second appeal status quo as of today will be maintained regarding possession of the suit property.
6. This appeal is disposed of accordingly.