Bhagaban Bhuniya v. Sarala Bala Dhar — 1978 DIGILAW 134 (CAL)

JUDGMENT Amar Nath Banerjee, J. 1. This appeal at the instance of the plaintiff arises out of a suit for specific performance of contract. It appears that the plaintiff sold the disputed land as described in the schedule A to the plaint to the defendant by a registered kobala dated 14.1.1963 (Ext. 6A) with a separate deed of agreement of reconveyance executed and registered on the same day (Ext. 5). After such sale, the defendant No.1 filed an application under section 24 of the West Bengal Non-agricultural Tenancy Act, 1949 claiming preemption of such transferred land. It was filed on 19.2.1963 and was allowed on 30.4.1964. During the pendency of such proceeding, the defendant No.2 executed a deed of reconveyance dated 8.10.1963 vide Ext. 6A in favour of the plaintiff. His defence in the preemption proceeding was that the sale to the defendant No.2 was a benami one and that the deed of reconveyance was without consideration and it was only executed in support of the benami character of the transaction. The trial court negatived such defence and allowed the preemption to the defendant No.1. An appeal was taken as against such order of the trial court but without success (Ext. 7-7A). 2. After the appeal was dismissed on 1.12.1964, the plaintiff filed the present suit for specific performance of contract against the defendant preemptor alleging that the preemptor was bound by the agreement for reconveyance of the disputed land and that as such, the plaintiff was entitled to have a decree for specific performance of contract against her. It was contested by the defendant on the ground that she had no knowledge of tae contract and that in any event, the contract was no longer in existence having been discharged by the execution of the deed of reconveyance by the defendant No.2 in favour of the plaintiff. The trial court allowed the plaintiff's claim for specific performance of contract and, accordingly, decreed the suit. 3. As against such judgment and decree of the trial court, the defendant No.1 preferred an appeal, the learned Additional District Judge allowed it on a finding that since the defendant No.2 had executed a deed of reconveyance on 8.10.1963 in favour of the plaintiff, nothing remained of the contract and that as such, the plaintiff was not entitled to a decree for the said contract. The suit was dismissed by the learned lower appellate court. As against the judgment and decree of the lower appellate court, the plaintiff preferred this appeal. 4. It was contended by the learned advocate for the appellant that the lower appellate court went wrong in thinking that the agreement for reconveyance of the disputed land during the pendency of the preemption proceedings came to an end with the execution of such a document by the defendant No.2 in favour of the plaintiff. 5. Mr. Ray Chowdhury learned advocate appearing for the defendant/respondent No.1 not only supported the judgment of the lower appellate court but also took some other objections. His first contention was that having regard to the nature of the defence set up by the plaintiff in the preemption proceeding and also having regard to the nature of the order passed by the learned Munsif in the said proceeding, it could be said that the rights and obligations between the parties were adjudged in that proceeding and as such it was no longer open to the plaintiff to bring a suit of the present nature. 6. His second branch of argument was that in order to enforce a contract it must be existing and enforceable but in the present case, there was no existence of the contract not only on the ground as staled above but also on the fact that the defendant No.2 had executed a deed of reconveyance in favour of the plaintiff in pursuance of the terms of the contract. 7. The third branch of argument as advanced by Mr. Roy Chowdhury was that there had been a frustration of contract inasmuch as the very foundation of the contract disappeared by the orders passed in the preemption case. 8. Mr. Roy Chowdhury also contended that there had been a waiver of the plaintiff's right, if any inasmuch as it was open to him to take the plea in the preemption proceeding regarding the agreement for reconveyance but not having done so it must be deemed that he had waived his right, if any to enforce the alleged contract. 9. Lastly, Mr. Roy Chowdhury submitted, in any event, the discretion should not be used in favour of the plaintiff appellant. 10. In support of his above contentions Mr. 9. Lastly, Mr. Roy Chowdhury submitted, in any event, the discretion should not be used in favour of the plaintiff appellant. 10. In support of his above contentions Mr. Roy Chowdhury relied on some decisions out of which reference may be made to the cases reported in 57 CWN 253 relevant page at 256, 263 CWN 939 and AIR 1965 SC 1405 . 11. Having heard the learned advocates of the respective parties and considering all the materials before me I am of the view that the learned lower appellate court was in error in thinking that the execution of the deed of reconveyance brought an end to the plaintiff's right to get the land back as per terms of the agreement for reconveyance (Ext. 5). It is true that during the pendency of the preemption proceeding a deed of reconveyance was obtained by the plaintiff from the defendant No.2 in respect of the disputed land. But we should remember that his defence in the said proceeding was that the entire transaction was a benami one and that the deed of reconveyance was obtained because of the benami character of the sale. 12. Both the courts found in that proceeding that the sale by the plaintiff to the defendant No.1 was a sale for consideration and that even the deed of reconveyance was not a shame transaction. Having regard to the pendency of the preemption proceeding and also having regard to the fact that the defendant/respondent No.1 had a right to preempt the disputed land irrespective of the question of the deed of reconveyance in pursuance of the agreement of reconveyance, it cannot but be said that the plaintiff's right to get the land back in pursuance of the agreement for reconveyance could and did arise only after the order for preemption of the disputed land was made in favour of the defendant/respondent No.1. That being the position, it cannot be said that the agreement for reconveyance of the disputed land came to an end with the execution of the reconveyance by the defendant No.2 in favour of the plaintiff during the pendency of the preemption proceeding. The decisions to which references were made by Mr. Roy Chowdhury have no application to the facts of the present case. The decisions to which references were made by Mr. Roy Chowdhury have no application to the facts of the present case. On the other hand, the decision in the Case of 58 CWN 1000, upon which reliance was placed by the trial court is very much relevant. In that case it was laid down that a preemptor is bound by such a contract for reconveyance between the preemptee and his vendor. I also do not think that there is any question of waiver in the present case. It cannot be said that the preemptor namely defendant No.1 was induced to do or omitted to do anything in pursuance of the representation or contract of the plaintiff. On the other hand, the very fact that the plaintiff mentioned about the agreement for reconveyance in his petition filed in the proceeding under section 24 of the West Bengal Non-agricultural Tenancy Act, can only indicate that the preemptor had full knowledge and notice of such an agreement for reconveyance. I also do not see how the plea of frustration of contract can be raised in the present case. It is true that the learned Munsif while passing the final order in the proceeding under section 24 of the said Act directed that the deposited money may go to the plaintiff. Evidently, the learned Munsif thought that since the deed of reconveyance (Ext. 6A) was not a shame transaction, the preemptee had got back his money and that in such circumstance the money deposited by the preemptor in the court should go to the vender of the preemptee, that is to say, the plaintiff. But for that it can never be said that the rights and obligations between the parties were adjudged in the aforesaid proceedings or that there was frustration of contract. In a proceeding under section 24 of the Act the question of the plaintiff's right under the agreement for reconveyance was never under consideration and was beyond the scope of such an application. That being so, there can be no question of the rights and obligations between the parties under the agreement for reconveyance being adjudged in the aforesaid preemption proceedings or the disappearance of the foundation of contract by the order made in the preemption proceedings. An agreement for reconveyance does not create any right in the land. That being so, there can be no question of the rights and obligations between the parties under the agreement for reconveyance being adjudged in the aforesaid preemption proceedings or the disappearance of the foundation of contract by the order made in the preemption proceedings. An agreement for reconveyance does not create any right in the land. At the same time, it is an obligation which is binding not only upon the parties to the agreement but also upon a preemptor like the respondent No.1. I have already pointed out that such an agreement for reconveyance did not come to an end with the execution of the deed of reconveyance during the pendency of the preemption proceedings. That being the position, the defendant/respondent No.1 is bound by such an agreement and the plaintiff is entitled to a decree fur specific performance of contract. 13. In the result, this appeal is allowed. The judgment and decree of the lower appellate court are set aside and those of the trial court restored subject to this modification only that the defendant/respondent No.1 would execute and register a kobala in respect of the disputed properties in favour of the plaintiff in terms of the decree of the trial court within two months from this date, failing which it would be open to the plaintiff to have the document executed and registered by the said defendant/respondent No.1 through court in execution of the decree. There will be no order as to costs.