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2002 DIGILAW 68 (CAL)

Sumita Sharma v. Dharmendra Nath Mondal

2002-02-01

JOYTOSH BANERJEE

body2002
JUDGMENT This appeal from the appellate decree is directed against the judgment dated 18.8.97 passed by the Additional District Judge, 24-Parganas(S) at Alipore in T.A. No. 141/85, through which he confirmed the judgment and order of dismissal passed by the Assistant District Judge, 3rd Court, Alipore on 9th January, 1995 in T.S. No. 28/86. 2. Briefly stated the facts and circumstances leading to the present appeal are as follows:- The plaintiff/appellant brought a suit for specific performance of contract and for other reliefs alleging, inter alia, that the suit property that is to say more or less 3 cottahs of land together with one storeyed pucca building, bearing municipal premises No. 177A, Sarat Ghosh Garden Road, P.S. Kasba, more fully described in the schedule of the plaint belonged to Dr. Pratap Chandra Banerjee and his two sisters, viz. Lakshmi Banerjee and Santi Banerjee who were defendants Nos. 1 and 2 in the suit. The said Pratap Banerjee at the time of institution of the suit was dead. It is the specific allegation made in the plaint that on 29.7.80 the aforesaid sisters, namely, defendants Nos. 1 and 2 executed a general power of Attorney in favour of their brother Dr. Pratap Chandra Banerjee and the said Pratap Banerjee for self and on behalf of defendants Nos. 1 and 2 executed an unregistered agreement for sale of the suit property on 6.4.1985 in favour of the plaintiff and the consideration for sale was settled at Rs. 25,000/- and out of the same plaintiff paid Rs. 10,001/- as earnest money to said Pratap Banerjee who would execute a register sale deed in respect of the suit property in favour of the plaintiff/appellant with a reasonable time on payment of the balance consideration, as per agreement. It was further alleged that plaintiff/appellant paid a further sum of Rs. 16,000/- towards the balance consideration and cost of registration of the conveyance to the said Pratap Banerjee and defendants Nos. 1 and 2 on 27.9.85, and they in their turn would deliver possession of the suit property to the plaintiff and since then the plaintiff has been possessing the suit property. It was the further case made out in the plaint that after the execution of the said agreement for sale defendants Nos. 1 and 2 on 27.9.85, and they in their turn would deliver possession of the suit property to the plaintiff and since then the plaintiff has been possessing the suit property. It was the further case made out in the plaint that after the execution of the said agreement for sale defendants Nos. 1and 2 became very intimate with the members of the plaintiff's family and the defendants and their brother Pratap Banerjee sold their other properties through the husband of the plaintiff. Such cordial relation between the members of the two families grew day by day. It was further alleged in the plaint that on several occasions plaintiff requested defendants Nos. 1 and 2 and Pratap Banerjee to execute and register a deed of conveyance in favour of the plaintiff and at the time, the plaintiff had intimated then that she had purchased non-judicial stamp paper for preparation of the document but the defendants and Pratap Banerjee deferred the matter on different pretexts, although they assured the plaintiff that they would execute the document. It is the further case, that the said Pratap Banerjee died on 17.1.86 leaving behind defendants Nos. 1 and 2 as his legal heirs. It is also the further case of the plaintiff/appellant that defendant No. 3 Dr. Dharmendra Mandal disclosed to the plaintiff that he had purchased the part of the suit property from defendants nos. 1 and 2 and Pratap Banerjee by a registered sale deed dated 22.1.85 and he also asked the plaintiff to vacate the suit property immediately. On enquiry plaintiff came to learn about the transaction and asked defendants Nos. 1 and 2 to execute a proper deed of conveyance as per terms of the agreement. But, the defendants Nos. 1 and 2 refused to do so. In that background, the plaintiff/appellant filed the suit, alleging also that she was still ready and willing to perform her part of the contract and also prayed for a declaration that the said sale deed dated 22.1.85 in favour of defendant No.3 was not binding upon the plaintiff. But, the defendants Nos. 1 and 2 refused to do so. In that background, the plaintiff/appellant filed the suit, alleging also that she was still ready and willing to perform her part of the contract and also prayed for a declaration that the said sale deed dated 22.1.85 in favour of defendant No.3 was not binding upon the plaintiff. Defendant No.3 alone contested the suit by filing a written statement denying all the material allegations raised in the plaint, and also alleged that Kaliprosad Sharma, the husband of the plaintiff during his lifetime was looking after the litigation on behalf of Pratap Banerjee and ultimately, the said Pratap Banerjee came under control of said Kaliprosad Sharma. It was further alleged by the contesting defendant that the said Kaliprosad Sharma, by manipulation for the purpose of grading the said property, might have prepared the alleged agreement illegally. It was the specific defence contention that the sisters of Pratap Banerjee never executed any power of attorney in favour of said Protap Banerjee for the purpose of getting their shares in the suit property transferred. It was further contended that son after the execution of the sale deed in favour of the defendant No.3, Pratap Banerjee suddenly died owing to a heart attack and soon after his death the suit was filed. 3. The learned trial Court dismissed the suit on a clear, finding that the deed of agreement for sale dated 6.4.85 which was the very basis of the plaintiff's suit for specific performance of contract (Ext. 1) was of questionable character in view of the fact that the recitals of the document did not signify that it was a recital of 3 persons that is to say Pratap Banerjee and his two sisters defendants Nos. 1 and 2 of the suit. On the other hand, the recitals indicated that on account of purchase of medicine, money was needed and as such agreement was made and evidently there was no evidence of illness. At the same time, the said document (Ext. 1) indicated the alleged payment of advance of Rs. 11,001/- on the date of agreement. But, the plaintiff alleged that she paid a further sum of Rs. 16,000/- to the first party on 27.9.85 of which there was no receipt, nor any endorsement to that effect on the evidence itself. At the same time, the said document (Ext. 1) indicated the alleged payment of advance of Rs. 11,001/- on the date of agreement. But, the plaintiff alleged that she paid a further sum of Rs. 16,000/- to the first party on 27.9.85 of which there was no receipt, nor any endorsement to that effect on the evidence itself. That apart, there was excess payment through such allegation and the explanation offered by the plaintiff that such excess payment was cost of registration and conveyance, was inconsistent with the evidence led as the plaintiff herself in her evidence stated that she had purchased non-judicial stamp amounting to Rs. 2456/- on 20.8.85, that is to say before the date of alleged payment of a further sum of Rs. 16,000/-. The learned trial Court further pointed out that the moot question involved in the suit was whether purchaser defendant No.3 had any knowledge about the existence of any alleged agreement for sale dated 6.4.85 as claimed by the plaintiff and came to a firm finding on perusal of the evidence on record that it could not be held with reasonable certainly that defendant No.3 had knowledge about existence of any agreement for sale in respect of the property he was going to buy. The learned trial Judge further noted that the defendant No.3 might have been an old acquaintance of the said Pratap Banerjee, but such fact did not ipso facto signify that defendant No.3 had any knowledge of existence of any prior agreement for sale in respect of the same property which he was going to buy. With this findings, the learned trial Court dismissed the suit. In appeal, the learned Appellate Court below affirmed the finding of the trial Court that the deed of agreement was not genuine and that the contesting defendant No.3, the purchaser of the property was not aware of any previous deed of agreement for the transfer of the suit property and in this way he was a bona fide purchaser for value without notice. With this findings, he dismissed the appeal and affirmed the judgment and decree passed by the trial Court. 4. With this findings, he dismissed the appeal and affirmed the judgment and decree passed by the trial Court. 4. At the time of admission of the appeal, the learned Division Bench of this Court by an order dated 28.1.99 did not formulate the substantial question of law but indicated that the appeal would be heard on the grounds stated in the memo of appeal as the same raises substantial• questions of law. In this background, at the time of hearing of the appeal, after going through the judgments of both the Courts below the memo of appeal, and also after hearing the learned Advocate for the appellant I have formulated the following question as the substantial question of law involved in the present appeal:- Whether the Courts below based their decisions on conjectures, surmises or on evidence not admissible? 5. I have heard learned Advocate for both sides, the learned Advocate for the appellant wanted assail the judgments of the Courts below by submitting that very approach of those Courts was erroneous as constructive notice was sufficient under the provisions of Specific Relief Act and here the Courts below noted that the onus that the defendant No.3 was not a purchaser without notice should be on the plaintiff/respondent. The learned Advocate for the plaintiff/respondent on the other hand has pointed out that both the Courts below doubted the genuineness of the agreement, which was the very basis of the plaintiff/respondents case and in second appeal the same could not be interferred with specially when both the Courts assigned sufficient reasons for coming to such a conclusion which were relevant and which were not based on conjectures, surmises etc. 6. In the instant case, the plaintiff/appellant wanted a decree for specific performance of contract alleging that defendant Nos. 1 and 2 and their deceased brother had entered into an agreement with the plaintiff/appellant to transfer the suit property before the defendant No.3 respondent purchased such property. Learned Advocate for the appellant in order to show that the Courts below failed to deal with the matter property laid stretch on the findings of the Courts below that the defendant No.3 respondent was a purchaser for value without notice. Learned Advocate for the appellant in order to show that the Courts below failed to deal with the matter property laid stretch on the findings of the Courts below that the defendant No.3 respondent was a purchaser for value without notice. His contention was that in doing so, both the Courts below erroneously held that the onus to prove that such defendant was not a purchaser for value without notice rested on the plaintiff and not on the defendant No. 3 respondent. In the instant case admittedly the agreement which is the very basis of the suit for specific performance of contract filed by the plaintiff was an unregistered document. No doubt under explanation 2 Section 3 of T.P. Act actual possession would operate as a constructive notice to the purchaser but in the instant case both the Courts below came to a concurrent finding with reasons that the unregistered agreement between the plaintiff and defendant Nos. 1 and 2 and their brother Pratap Banerjee was a questionable document. That being so, the only question on which the decision of the present appeal hinges is whether this Court, in the present appeal can disturb such a concurrent finding. The learned Advocate for the appellant has referred the decision of (1) Kulwant Kaur v. Gurdial Singh Mann (dead) by L. Rs. & Ors. reported in AIR 2001 SC 1273 , in support of his contention that the Courts below erroneously held that the onus that the defendant No. 3 was a purchaser without notice should be on the plaintiff. But such onus should be on the contesting defendant No.3 who alleged the.......and in this way, the Courts below mis-placed the onus and came to an erroneous finding. In the aforesaid reported decision, the Hon'ble Apex Court in Para 32 of the judgment observed as follows:- ".............., but the fact remains that while it is true that in a second appeal a finding of fact even if erroneous will generally not be disturbed but where it is found that the findings stands vitiated on wrong test and on the basis of assumptions and conjectures and resultantly there is an element of perversity involved therein, the High Court in our view will be within its jurisdiction to deal with the issue. This is, however, only in the event such a fact is brought to light by the High Court categorical as to the issue' of perversity vis-a-vis the concept of Justice. Needless to say however, that perversity itself is a substantial question worth adjudication-what is required is a categorical finding on the part of the High Court as to perversity." But, unfortunately, the decision cited is not helpful to the appellant. Here, it has been seen that both the Courts suspected the genuineness of the very agreement which was the basis of the plaintiff's suit for specific performance of contract. In doing so both the Courts below assigned sufficient and cogent reasons and there is nothing to show that in coming to such a conclusion they based their findings on a wrong test or such a finding for some reason was tainted with perversity. The reported decision of the Apex Court clearly indicate that the High Court should not only be satisfied about the perversity involved, but its judgment should make a categorical finding pointing out the perversity. 7. It has already been seen that the learned Courts below very clearly pointed out and there was a concurrent finding on this 'point that the unregistered deed of agreement was not genuine and was of suspicious nature and this is the only question relevant for the purpose of disposal of the present appeal as if the agreement itself was not genuine there cannot be any further question whether defendant No.3, the purchaser had any constructive notice through the actual possession of the suit property as a tenant by the plaintiff or not. So the nature of the question clearly indicates that it is essentially a question of fact and it cannot be a question of law, far less a substantial question of law. In the case of (2) Sheel Chand v. Prokash Chand reported in 1998(6) SCC 683 , the Apex Court has categorically observed that the existence of a substantial question of law is the sine qua non for the exercise of jurisdiction by the High Court under the amended provisions of Section 100 C.P. Code. Since no substantial question is involved in the present appeal, it must fail. 8. The appeal is dismissed with a cost of Rs. 500/- to the respondent. Interim order, if any, passed in connection with the second appeal stands vacated with immediate effect. Since no substantial question is involved in the present appeal, it must fail. 8. The appeal is dismissed with a cost of Rs. 500/- to the respondent. Interim order, if any, passed in connection with the second appeal stands vacated with immediate effect. Let a copy of this judgment along with the L.C.R. be sent down to the Court for information and necessary action, if any.