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2002 DIGILAW 664 (PAT)

Mahabir Mandal v. Lakhan Lal Mandal

2002-06-24

S.K.KATRIAR

body2002
Judgment 1. Heard learned counsel for the appellant. 2. The defendant 1st set is the appellant against a judgment of reversal. This appeal is directed against the judgment and decree dated 19.11.1998, passed by the learned Additional District Judge-IV, Munger, in Munsif Title Appeal No. 48 of 1994 (Lakhan Lal Mandal vs. Mahabir Mandal and others), whereby he has reversed the judgment and decree dated 30.8.1994, passed by the learned Addl. Munsif-IV, Munger, in Title Suit No. 65 of 1981 (Lakhan Lal Mandal vs. Mahabir Mandal and others). The trial court had dismissed the suit but decreed by the impugned judgment, Hence the appeal at the instance of the defendants first party. We shall go by the description of the parties stated in the plaint. 3. The plaintiff (respondent no. 1 herein) instituted the suit for a decree that the defendant 1st party should execute the sale-deed in favour of the plaintiff in respect of the property mentioned in sched- ule-B of the plaint on payment of Rs. 2500/- by the plaintiff and further direction to hand over vacant possession of schedule- B property to the plaintiff and if the defendants tail to execute the sale-deed, the same may be executed by the court and possession be given through the process of the court as well for declaration that the plaintiff has got perfect right, title, and interest to perform the contract arrived between the defendant 1st party and 2nd party in view of the registered Ekrarnama dated 24.8.1976. The defendant 2nd party and 3rd party owned and possessed the land mentioned in schedule-A of the plaint having equal share and they executed the two sale-deeds with regard to their respective shares on 24.8.1976 in consideration of Rs. 2500/- each and these were deed of conditional sale as on the same date a registered Ekrarnama was also executed and the defendant 1st party agreed that the representative of the heirs of defendant 2nd party and 3rd party shall have a right to take back the property on payment of Rs. 2500/- each and these were deed of conditional sale as on the same date a registered Ekrarnama was also executed and the defendant 1st party agreed that the representative of the heirs of defendant 2nd party and 3rd party shall have a right to take back the property on payment of Rs. 2500/- uptil September, 1981 by defendant 2nd party and 3rd party and the 1st party and their heirs or legal representative shall return schedule-A property and if the defendant 2nd and 3rd party failed to get the sale deed executed on payment of consideration amount then sale deed shall be executed through the process of the court and possession be taken through the process of the court. The plaintiffs further case is that if the defendant 2nd party and 3rd party failed to make payment by September, 1981 and take back the property by September, 1981, the right to take back the property shall come to an end. The plaintiffs further case is that the defendant 2nd party executed the sale deed in favour of the plaintiff in respect of the property mentioned in schedule-B on 16.10.1980 for consideration of Rs. 5000/- out of which Rs. 2500/- were left with the plaintiff to offer the same to the defendant 1st party according to the terms of the said Ekrarnama and the plaintiff stepped into the shoes of the defendant 2nd party and got right, title and interest. The plaintiff offered Rs. 2500/- on 20.9.1981 to the defendant 1st party and requested to execute the deed but defendant 1st party refused. Hence the suit. 4. The case of the defendant 1st party, inter alia, is that the deed is not a conditional sale but absolute sale-deed and the defendant 1st party acquired absolute right, title and interest and possession over the land. However, execution of registered deeds dated 24.8.1986 has not been denied, but it is instead the case that the subsequent deed of agreement was not for legal necessity and not enforceable, the sale under the 2 kewalas were absolute sale and not conditional sale any agreement made with regard to the vended land is void and inoperative. 5. The trial court framed the following issues : (1). Whether the suit is framed maintainable? (2). Whether the plaintiff has got cause of action? (3). Whether the plaint is barred by mis-joinder and no-joinder? (4). 5. The trial court framed the following issues : (1). Whether the suit is framed maintainable? (2). Whether the plaintiff has got cause of action? (3). Whether the plaint is barred by mis-joinder and no-joinder? (4). Whether the suit is barred by the Specific Relief Act? (5). Whether the sale deed of plaintiff is void, inoperative and not binding upon defendant 1st party? (6). Whether the deed executed on 24.8.1986 are mortgage, conditional sale or absolute sale? (7). Whether the defendant 1st party has got right to execute sale deed in favour of defendant 2nd party? (8). Whether the plaintiff ever noticed to defendant 1st party to execute sale deed and whether the suit is barred by non-compliance of the agreement by plaintiff? (9). Whether the plaintiff has got right on the basis of deed? (10). Whether the plaintiff is entitled to decree? (11). Whether the plaintiff is entitled for any relief or reliefs? The trial court on contest dismissed the suit. The plaintiff appealed which has been allowed by the impugned judgment. 6 The following substantial questions of law have been stated in the memorandum of appeal and pressed during the course of submissions : (i). Can there be an absolute sale deeds executed by the defendant 2nd party and 3rd party with respect of the sched-ule-I land of the plaint in favour of the defendant 1st party and on that basis right, title, interest and possession held by the vendors was extinguished and defendant 1st party (Mahabir Mandal) acquired right, title, interest and possession over kebala lands which is in one block? (ii) Can there be an absolute sale vide exts. 2A & 2B in the light of any subsequent and separate agreement (ext. 1 Ekrarnama) although it was of on the same date is void, without consideration, and inoperative and not binding to the defendant 1st party i.e. Mahabir Mandal? (iii) Whether exts. 1, 2A & 2B can be read together for determination of the parties? (iv) Whether the ext. 2 dated 11.8.1980 executed by Abdul Mazid in favour of the plaintiff creates any right, title and interest in view of the exts. 2A & 2B executed by defendant 1st party and 2nd party in favour of defendants 1st party and Ekrarnama executed by the defendant 1st party in respect of the suit property in favour of defendant 2nd party? 2 dated 11.8.1980 executed by Abdul Mazid in favour of the plaintiff creates any right, title and interest in view of the exts. 2A & 2B executed by defendant 1st party and 2nd party in favour of defendants 1st party and Ekrarnama executed by the defendant 1st party in respect of the suit property in favour of defendant 2nd party? (v) Whether the finding of the lower appellate court with respect of document exts. 2B & 1 along with ext. 2A are sale with condition to repurchase as per ext. 1 contemplates payment if the amount by September, 1981 in consequence to return the land by the vendee is based upon the evidence available on the record of the suit? (vi) Whether the finding of the lower appellate court regarding offering Rs. 2,5007- on 20.9.1981 to the defendant 1st party by the plaintiff on the basis of ext. 2 and request to execute the sale deed is beyond the evidence on the record? (vii) Whether the finding of the lower appellate court, regarding sufficient compliance of section 160 of the Specific Relief Act alongwith form 47 & 47 (sic 48 ?) of the Code of Civil Procedure is based on surmises and without any sufficience evidence on record and the learned appellate court should have accepted the finding of the trial court and ought to have been dismissed the appeal on the score only? 7. It appears to me from a refusal of the impugned judgment that the issues are concluded by findings of facts which bind this Court in second appellate jurisdiction. No substantial question of law seems to arise in this appeal for the consideration of this Court. The appeal is, accordingly, dismissed with costs.