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2005 DIGILAW 664 (ORI)

OMPRAKASH NANGALIA v. BINOD KU. GOENKA

2005-11-19

A.K.PARICHHA, P.K.TRIPATHY

body2005
A. K. PARICHHA, J. ( 1 ) THE First Appeal arises out of the judgment dated 30-4-2003 and the decree dated 15-5-2003 passed in T. S. No. 262 of 1995 by the 2nd Additional Civil judge (Sr. Div.), Cuttack dismissing the suit of the plaintiff-appellant. ( 2 ) INITIALLY, the appellant and his father gobardhan Das Nangalia were plaintiffs in the above noted suit, but Gobardhan Das Nangila having died during pendency of the suit, plaintiff no. 2 became the sole plaintiff and accordingly is now the sole appellant in this appeal. ( 3 ) THE case of the plaintiffs was that the deceased defendant No. 1, Nanda Kishore goenka had a row of five shop rooms standing over Schedule 'a' land and in one of the shop rooms, plaintiff No. 1 Gobardhan Das nangalia, the deceased father of the appellant was a monthly tenant since 1945 paying rent to the landlord. When the matter stood thus, nanda Kishore Goenka entered into an oral agreement with the appellant and his father on 3-11-1994 to sell those five shop rooms to them for a consideration of Rs. 3,50,000/-and accepted a part consideration of Rs. 5,000/- undertaking to obtain clearance from the Income Tax and Urban Land Ceiling Authorities and then to execute registered sale deed on receiving the balance consideration. It is alleged that the said defendant No. 1, nanda Kishore Goenka neither obtained the promised clearance deed nor took any step to execute the registered sale deed and when the plaintiffs approached him in presence of the local gentries, he disclosed that he has received an offer of Rs. 3,75,000/- for the five shop rooms from defendant Nos. 2 to 4 and has accordingly applied for permission to sell the shop rooms to those persons. The plaintiffs thereafter offered Rs. 3,75,000/- and insisted that defendant No. 1 executed the sale deed in their favour by accepting the rest consideration of Rs. 3,70,000/-, but defendant No. 1 did not oblige and surreptitiously executed the sale deeds in favour of defendant Nos. 2 to 4. Plaintiffs, therefore, filed the suit praying for a decree for specific performance of contract against defendant No. 1, for a declaration that the sale deeds executed by defendant No. 1, in favour of defendant Nos. 2 to 4 are invalid and illegal and for injunction restraining the defendants no. 2 to 4. Plaintiffs, therefore, filed the suit praying for a decree for specific performance of contract against defendant No. 1, for a declaration that the sale deeds executed by defendant No. 1, in favour of defendant Nos. 2 to 4 are invalid and illegal and for injunction restraining the defendants no. 1 to 4 from interfering with the peaceful possession of the plaintiffs with respect to the shop room in their occupation as tenant. An alternative prayer was also made for a direction to defendant Nos. 2 to 4 not to evict the plaintiffs from the shop house without taking due resource to law. ( 4 ) DEFENDANT filed separate written statements denying the plaintiff's plea of oral contract and payment of any advance consideration of Rs. 5,000/ -. Their specific plea was that defendant No. 1, who was the owner of the suit shop rooms, sold the same to defendant nos. 2 to 4 for valid consideration under registered sale deeds after obtaining due permission from the Urban Land Ceiling authorities and so, the sales are legal and valid in very respect. Defendant Nos. 2 to 4 also pleaded, inter alia, that they are the bond fide purchasers without knowledge of any oral contract between the plaintiffs and defendant No. 1 and therefore, they are protected under law. They also denied the allegation that they are trying to evict the appellant from the shop room by force. ( 5 ) FROM the pleadings of the parties, the learned Civil Judge (SR. Div.) framed the following issues : (i) Is the suit maintainable. (ii) Have the plaintiff any cause of action to file the suit. (iii) Is the suit bad for non-joinder and mis-joinder of parties. (iv) Was the plaintiff No. 1 monthly tenant under defendants. (v) Are the sale deeds executed by defendant No. 1 in favour of defendant nos. 2 to 4 on 26-6-1995, 27-6-1995 illegal, invalid and void documents. (vi) Is there any oral agreement for sale of suit land on 16-11-1994 between the plaintiffs and defendant no. 1 and defendant No. 1 received Rs. 5,000/- towards part consideration of money. (vii) Are the defendants entitled to relief under Section 53-A of transfer of Property Act. (viii) To what relief/reliefs the plaintiffs are entitled to. ( 6 ) PARTIES led oral and documentary evidence in support of their respective cases. 1 and defendant No. 1 received Rs. 5,000/- towards part consideration of money. (vii) Are the defendants entitled to relief under Section 53-A of transfer of Property Act. (viii) To what relief/reliefs the plaintiffs are entitled to. ( 6 ) PARTIES led oral and documentary evidence in support of their respective cases. Learned Trial Court after analysing the said evidences concluded that there was not oral contract between the plaintiffs and defendant no. 1 for sale of the suit land and shop room, the plaintiffs are not protected under the provisions of Section 53-A of the Transfer of Property act; the sale deeds in favour of defendant nos. 2 to 4 are legal and valid and accordingly rejected the prayers of the plaintiffs and dismissed the suit. Appellant has challenged the said findings of the Trial Court. ( 7 ) MR. B. Mishra, Learned Counsel appearing for appellant submitted that existence of oral contract between plaintiffs and defendant no. 1 is clearly established from the evidence of P. W. 1 and the admission of D. Ws. 1 and 2 and because the oral contract for sale of immovable properties is recognised by law, the plaintiffs were entitled to specific performances of contract under the provisions of Section 9 of the Transfer of Property Act and Section 10 of the Specific Relief Act. He also submitted that the physical possession of the shop room by the appellant being the admitted case of the parties in the worst case he is entitled to a decree that he cannot be evicted by the defendants without due process of law. In support of his contention, Mr. Mishra cited the cases of Rakapalli Raja Rama Gopala Rao v. Naragani Govinda Sehararo and another, samir Sobhan Sanyal v. Trades Trade Put. Ltd. and others, M/s. Rana Academy of Arts, music and Dance and another v. Smt. Ratnamoni Chaudhury, Naba Diganta Educational trust v. Managing Director, IDCO and another and Debendra Jha v. Smt. Minakshi Das. ( 8 ) MS. S. Patnaik, Learned Counsel appearing for Respondent Nos. Ltd. and others, M/s. Rana Academy of Arts, music and Dance and another v. Smt. Ratnamoni Chaudhury, Naba Diganta Educational trust v. Managing Director, IDCO and another and Debendra Jha v. Smt. Minakshi Das. ( 8 ) MS. S. Patnaik, Learned Counsel appearing for Respondent Nos. 1 to 6, who are the legal heirs of the deceased-defendant No. 1 submitted that no documentary evidence regarding the alleged contract for sale of the suit shop rooms being there and the oral evidence led by the appellant being shaky and unreliable, the plea of the plaintiffs about oral contract and payment of part consideration as advance was rightly rejected by the Trial Court. Supporting the impugned judgment, Ms. Patnaik further submitted that sale of the suit shop rooms to Respondent Nos. 7 to 9 (defendant Nos. 2 to 4)being for bona fide consideration and permission of the concerned ceiling authorities having been obtained for such sale, the sales are legal and valid in every respect and there was no scope for the Trial court to declare those sales invalid. ( 9 ) MR. R. K. Mohanty, Learned Counsel appearing for the defendants-respondent Nos. 7 to 9 argued that the deceased-defendant no. 1 was admittedly the owner of the suit shop rooms and when he sold those shop rooms to respondent Nos. 7 to 9 for due consideration after obtaining permission from the Urban land Ceiling Authorities, the sales are legal and valid in every respect. He further submitted that evidence led by the plaintiffs in no way establishes existence of any contract between defendant No. 1 and plaintiffs for the sale of the shop rooms and so, there was no scope of granting any decree for specific performance of contract. According to him even otherwise the right of Respondent Nos. 7 to 9, who purchased the suit property without any knowledge of the alleged oral contract is protected under law as they are bona fide purchasers. In essence, Mr. Mohanty strongly supported the finding of the Trial Court. According to him even otherwise the right of Respondent Nos. 7 to 9, who purchased the suit property without any knowledge of the alleged oral contract is protected under law as they are bona fide purchasers. In essence, Mr. Mohanty strongly supported the finding of the Trial Court. ( 10 ) FROM the submissions of the Learned counsel for the respective parties, it appears that the findings on issues relating to the ownership of deceased defendant No. 1 over the suit shop rooms, the tenancy of the deceased plaintiff No. 1 in one of those rooms, the possession of that room by the present appellant, the sale of the shop rooms to defendant Nos. 2 to 4 for due consideration are not in dispute. The dispute mainly relates to the finding on the issues regarding the existence of the oral contract for sale of the shop rooms between the deceased plaintiff No. 1 and the deceased defendant No. 1, the right of the appellant to claim protection under Section 53-A of the Transfer of Property Act and Specific performance of Contract and the legality of the sale deeds Exts. B/1 and C/1. Section 53-A of the Transfer of Property act reads thus :"53a. Part Performance:-Where any person contracts to transfer for consideration any immovable property by writing signed by him or on his behalf from which the terms necessary to constitute the transfer can be ascertained with reasonable certainty, and the transferee has, in part performance of the contract, taken possession of the property or any part thereof, or the transferee, being already in possession, continues in possession in part performance of the contract and has done some act in furtherance of the contract. and the transferee has performed or is willing to perform his part of the contract. and the transferee has performed or is willing to perform his part of the contract. then, notwithstanding that the contract, though required to be registered, has not been registered, or, where there is an instrument of transfer that the transfer has not been completed in the manner prescribed therefore by the law for the time being in force, the transferer or any person claiming under him shall be debarred from enforcing against the transferee and persons claiming under him any right in respect of the property of which the transferee has taken or continued in possession, other than a right expressly provided by the terms of the contract; provided that nothing in this section shall affect the rights of a transferee for consideration who has no notice of the contract or of the part performance thereof. "a plain reading of this section shows that benefit of Section 53-A of the Transfer of Property act is available only when the contract for transfer of immovable properties is in writing signed by the concerned parties. Mr. Mishra, learned Counsel for the appellant also fairly concedes that unless an agreement is in writing signed by the parties, the provision of Section 53-A of the Transfer of Property Act will not be attracted. He, however, argued that oral agreement for transfer of immoral properties is permissible under law and since there was oral contract between the appellant and the deceased-defendant No. 1 for sale of the suit shop rooms, the said agreement is enforceable by way of decree for specific performance of contract. In this connection, he specifically relied on the case of Rakapalli Raja rama Gopala Rao v. Naragani Govinda sehararo and another. The fact of the said case was totally different from the present case, inasmuch as there the issue was grant of opportunity to the tenant to pay the arrear rent in a circumstance where default in payment of rent by the tenant to the landlord was under a bona fide belief that he had right to purchase the property in view of prior agreement for sale with the predecessor of the landlord. The ratio of the said case thus does not apply to the circumstances of the present case. Be that as it may, Section 2 (e), 2 (h) and 10 of the Indian contract Act recognises oral agreement/contract for transfer of properties including immovable property. The ratio of the said case thus does not apply to the circumstances of the present case. Be that as it may, Section 2 (e), 2 (h) and 10 of the Indian contract Act recognises oral agreement/contract for transfer of properties including immovable property. Law in this regard is also settled by several judicial pronouncements and so, there cannot be any doubt that oral contract between the parties for transfer of immovable properties is permissible under law. Now the moot question is whether there was an oral contract by the appellant and his deceased father with the deceased-defendant No. 1 and whether part consideration had been paid in furtherance of the said agreement. ( 11 ) ACCORDING to Mr. Mishra, Learned counsel for the appellant, the oral contract for sale of the suit shop rooms is clearly established from the statements of P. Ws. 1 and 2 and the admissions of D. W. 1, but the Learned Trial court failed to appreciate those evidence and also failed to give any specific finding about existence or non-existence of the oral contract. Trial Court dealt the evidence on issue Nos. 4, 5 and 6 together in Paragraphs 5 to 8 of the judgment wherein it discussed the evidence of p. Ws. 1, 2, D. W. 1 etc. and disbelieved the oral contract. Be that as it may, in view of the submission of Mr. Mishra, the evidence of P. Ws. 1, 2 and D. W. 1 is perused to find out as to whether was in fact an oral contract. ( 12 ) APPELLANT as P. W. 1 stated that deceased-defendant no. 1, on 30-11-1994 came along with one Paban Babu and offered to sell five shop rooms for a consideration of Rs. 5 lakhs, but he and his father considered the price very high and showed their reluctance whereafter some negotiation took place and the price of the shop rooms was fixed at Rs. 3. 5 lakhs and deceased-plaintiff No. 1 gave rs. 5,000/- to deceased-defendant No. 1 as advance towards the consideration, P. W. 1 further stated that deceased-defendant No. 1 after accepting the advance, promised that he would execute and register a sale deed after obtaining due permission from the Urban Land ceiling and the Income Tax authorities and to accept the remaining consideration money on the date of registration of the sale deed. P. W. 1 alleged that defendant No. 1 played hide and seek to execute the sale deed and when he and witness Krushna Chandra Behera confronted him, he (defendant No. 1) simply expressed that he has already got an offer of rs. 3. 75 lakhs for the shop rooms from other persons. P. W. 1 stated that he then offered rs. 3. 75 lakhs and requested defendant No. 1 to execute the sale deed in his favour, but defendant no. 1 did not accept his request; on the contrary he filed a Misc. Case seeking permission of the Urban Land Ceiling Authority in favour of defendant Nos. 2 to 4. P. W. 1 stated that his father raised objection before the said Ceiling authority, but the objection was rejected and permission was granted in favour of defendant Nos. 2 to 4, whereafter defendant No. 1 executed registered sale deeds ext. B/l and C/l in favour of defendant Nos. 2 to 4. According to P. W. 1, Krushna Chandra behera (P. W. 2) was present when the oral agreement was entered into and also when defendant No. 1 was confronted at his residence about non-execution of the sale deed. P. W. 2 stated that he was present when the discussion between the deceased-plaintiff No. 1 and deceased-defendant No. 1 took place at the shop of the appellant. According to him. defendant No. 1 quoted the price of Rs. 5 lakhs, but after discussion it was mutually agreed that the sale would be for Rs. 3. 5 lakhs and the appellant paid Rs. 5,000/- to defendant no. 1 as advance with assurance that the rest consideration amount would be paid at the time of registration of the sale deed. P. W. 2 further stated that two days after the said discussion, appellant informed him that defendant no. 1 is not willing to sell the suit property to him and that he is going to sell the same to some other persons. He stated that he and the appellant went to the house of the defendant no. 1 for discussion and there they learnt that the appellant has already got an offer of rs. 3. 75 lakhs form other persons. Accordingly to P. W. 2, the appellant offered Rs. 3. He stated that he and the appellant went to the house of the defendant no. 1 for discussion and there they learnt that the appellant has already got an offer of rs. 3. 75 lakhs form other persons. Accordingly to P. W. 2, the appellant offered Rs. 3. 75 lakhs for the suit property, but defendant No. 1 did not agree and on the contrary sold the suit property, to some other persons after obtaining permission from the Cuttack Development Authority. ( 13 ) D. W. 2, the son of deceased-defendant no. 1, clearly denied about any contract between the plaintiffs and deceased-defendant no. 1 and claimed that several litigations were going on between deceased-defendant No. 1 and the plaintiffs for the shop room where father of appellant was a tenant and there was no occasion for any contract for sale of the shop rooms as alleged. D. W. 1, who is one of the purchasers of the suit shop premises also denied existence of any oral contract for sale of the suit shop rooms. He has nowhere admitted about the alleged oral contract but has simply stated that the shop rooms had been tenanted to different persons and that father of appellant was one of those tenants in occupation of the shop rooms of deceased defendant No. 1. It has been clearly admitted by appellant (P. W. 1) that no document was executed or written in support of the alleged contract between the deceased-defendant No. 1 and plaintiff no. 1 and that no money receipt was also kept for payment of the advance amount of rs. 5,000/ -. He also admitted that when he and his father learnt that defendant No. 1 was going to sell the suit shop rooms to defendant nos. 2 to 4, they did not issue any notice to defendant No. 1 asking him to refrain from selling the suit shop rooms to defendant Nos. 2 to 4 and to execute the sale deed in their (plaintiffs') favour. He also admitted that when his father filed objection before the Urban Land ceiling authorities, he did not mention in the objection petition about the alleged oral contract and after the objection was rejected, he or his father did not prefer any appeal against the order of rejection P. W. 1 then admitted that he and his father are income tax assessees and file income tax returns. The advance of rs. 5,000/- allegedly paid to defendant No. 1 was not shown in such return.-It is manifest from the evidence of D. Ws. 1 and 2 that litigations were going on between defendant No. 1 and plaintiffs for the shop rooms in occupation of the plaintiffs and term between the parties was far from cordial. It is not prudent to believe that in such a situation plaintiffs would enter into such a contract with defendant No. 1 without obtaining any written document, particularly when the value of the suit property was considerable. Admittedly, appellant and his father are businessmen and they maintain accounts and records. It does not appeal to common sense that such persons would enter into a contract for purchase of shop rooms for a huge sum of Rs. 3. 5 lakhs without insisting for written contract and would pay advance of Rs. 5,000/- without obtaining any receipt or without making any entry in the account records about such payment. It is also worthwhile to note from the evidence of P. W. 1 that the deceased-plaintiff No. 1 was seriously ill and was confined to bed for many years and was not even able to come down the stair of his residence. If that was so then the evidence of P. Ws. 1 and 2 that the oral contract was entered into between plaintiff No. 1 and defendant No. 1 at the shop of plaintiff No. 1, which is situated at a considerable distance from the residence is also not believable. P. Ws. 1 and 2 no doubt speak about the oral contract and payment of advance, but there are glaring contradictions in their statements about the place and time of the alleged contract and subsequent discussion with defendant No. 1 Their statements are not strong enough to over-ride all the above noted facts, circumstances and conduct. So, the Learned Trial Court had every justification of disbelieving the oral contract. ( 14 ) MR. Mishra claims that defendant Nos. 2 to 4 were aware that the shop rooms are in possession of the plaintiffs and others, but they did not give notice to those persons in occupation before purchasing the property. So, the Learned Trial Court had every justification of disbelieving the oral contract. ( 14 ) MR. Mishra claims that defendant Nos. 2 to 4 were aware that the shop rooms are in possession of the plaintiffs and others, but they did not give notice to those persons in occupation before purchasing the property. According to him, when no notice was given to the persons in occupation of the shop rooms prior to the execution of the registered sale deeds, protection under Section 19 (b) of the Specific relief Act is not available to defendant Nos. 2 to 4 and they cannot evict the persons in possession of the shop rooms. In support of this contention, he cited the case of R. K. Mohammed ubaidullah and others v. Hajee C. Abdul waheb (D) by L. Rs. and others. ( 15 ) ADMITTEDLY, no notice was given to the plaintiffs by defendant Nos. 2 to 4 prior to the execution of the registered sale deeds Exts. B/1 and C/1, but it is borne from the evidence of D. Ws. 1 and 2 that they have no specific knowledge about any contract between plaintiff No. 1 and defendant No. 1 for sale of the suit property and that they gave the notice regarding transfer of ownership of the shop rooms in their favour to the tenants including the plaintiffs after execution of Exts. B/l and c/l asking them to recognise them (defendant Nos. 2 to 4)as the owner and landlord of the shop houses. Section 19 (b) of the Specific relief Act says that contract can be enforced against either party to the contract or any other person claiming under him by a title assigned subsequent to the contract but not against a transferee for a value, who has paid his money in good faith and without notice of the original contract, it is pertinent to note that the evidence on record does not establish existence of any contract between the deceased defendant No. 1 and deceased-plaintiff No. 1 for sale of the suit shop rooms. Since there was no contract between the plaintiffs and defendant No. 1, there was no question of any notice of the said contract by defendant Nos. 2 to 4 who purchased the suit shop rooms for value in good faith. Since there was no contract between the plaintiffs and defendant No. 1, there was no question of any notice of the said contract by defendant Nos. 2 to 4 who purchased the suit shop rooms for value in good faith. In such a situation, the ratio of the case cited by the appellant is not applicable and the submission made by Mr. Mishra is not tenable. ( 16 ) D. W. 2 has clearly stated that his deceased father sold the suit property to defendant nos. 2 to 4 under registered sale deeds for due consideration after obtaining permission from the Urban Land Ceilling authorities. D. W. 1 has also given similar statement and has proved the registered sale deeds, which have been marked as Exts. B/l and C/l. Payment of consideration and execution of registered sale deed in favour of defendant Nos. 2 and 4 are also not disputed by the appellant. The evidence and admission on record establish that the sale in favour of defendant Nos. 2 to 4 was effected for due consideration and under valid registered documents and that after such sale notices were also given to the tenants in occupation of the suit shop rooms about the transfer. In such a situation, the sale deeds in favour of defendant Nos. 2 to 4 were valid and legal in every respect and there was no scope for the learned Trial Court to declare them as illegal or invalid. ( 17 ) THE oral contract alleged by plaintiffs having not been established, the appellant is not entitled to specific performance of contract as prayed for. The sale of the suit shop rooms in favour of defendant Nos. 2 to 4 having been effected for due consideration and under valid and legal documents with due permission of the Urban Land Ceiling authorities, the transactions are not liable to be declared invalid. So, the Learned Trial Court was justified in rejecting these prayers of the appellant. ( 18 ) IN course of hearing, as noted earlier, appellant argued that if he is not entitled to enforce the oral contract, then at least his admitted possession of one shop-room be protected by granting a decree for permanent injunction and not to evict him from that premises without due process of law. Both the sets of defendants in their written statement alleged that such prayers are not maintainable. Both the sets of defendants in their written statement alleged that such prayers are not maintainable. On perusal of the plaint, we find that there is absolutely no pleading about any forcible dispossession of the plaintiff having been attempted by any of the defendants. Admittedly the deceased defendant No. 1 was the landlord till alienation of the property by registered sale deeds in favour of the purchaser defendants. After institution of the suit, by the interim order passed plaintiff is continuing in possession of the one shop-room, which was tenanted to his father. By virtue of the sale deed the purchaser-defendants have become the owners of that property. In course of hearing of this appeal, two other litigations between the parties vide W. P. (C) No. 9044 of 2004 and A. H. O. No. 220 of 2001 were also taken up for hearing, in which it was seen that orders have been obtained for demolition of the house on the ground of it being 'unsafe'. Such facts did not come to the leading in the suit by amendment of plaint during pendency of this appeal with the allegation that such steps were being taken in connivance amongst the defendants to dispossess the plaintiff. Therefore, we cannot read that circumstance into the suit as a part of the pleading or evidence. A person in possession of a property is entitled to protection by grant of temporary or permanent injunction depending on the facts and circumstances of such case. In the present case when there is no pleading or proof on record regarding any attempted dispossession or use of force or otherwise, plaintiff is entitled to the relief of permanent injunction nor for a declaratory decree not to evict him without due process of law. In other words, it is seen that in the absence of pleading and proof such a prayer is not available to be made by the plaintiff or was to be considered by the Trial Court. This also does not find any change scenario while remaining confined to the pleadings and proof to take a different view in the matter for refusing such prayer. ( 19 ) FOR the reasons indicated above, there is no merit in the appeal and the same is accordingly dismissed-with cost all throughout against the plaintiff. Appeal dismissed. .