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2006 DIGILAW 225 (ORI)

BASANTI BAL v. PRAFULLA KUMAR ROUTRAI

2006-03-24

A.K.PARICHHA

body2006
A. K. PARICHHA, J. ( 1 ) THIS appeal is directed against the appellate judgment passed by learned Additional District Judge, Bhubaneswar in t. A. No. 17/25 of 1983/1982 confirming the judgment and decree passed by learned Munsif, Bhubaneswar in O. S. No. 78 of 1980 (I) dismissing the plaintiff's suit. ( 2 ) THE appellant, as plaintiff, filed a suit for specific performance of contract against the defendant No. 3 for declaration that the sale deeds executed by defendant No. 3 in favour of defendant Nos. 1 and 2 are illegal, for permanent injunction against defendant Nos. 1 and 2, for confirmation of possession over the suit property and in the alternative for recovery of possession of the same if she is found to be dispossessed. The case of the plaintiff, in nutshell, was that she purchased Ac. 0. 85 dec. of land of plot No. 2946 from defendant no. 3 for constructing a house thereon, but finding that there was no approach road to that land, she wanted to buy the suit land out of plot No. 2942 to use the same as approach road. On her approach, defendant No. 3 agreed and entered into an agreement to sell the suit land to her for a consideration of rs. 1,500/- received Rs. 750 as advance part consideration and put her in possession of the suit land with an understanding that as soon as that land would be settled in his favour he would execute formal sale deed receiving the rest amount of Rs. 750/ -. The plaintiff accordingly raised some construction and compound wall on a portion of the suit land leaving aside ac. 0. 20 dec. on the northern side of her house to be used as approach road. When the matter stood thus, defendant No. 1 dumped some boulders on the suit land on dated 20-8-1980 and tried to demolish the structure of the plaintiff on plot No. 2942. On enquiry the plaintiff learnt that defendant No. 3 in collusion with defendant Nos. 1 and 2 has executed two separate sale deeds in favour of defendant Nos. 1 and 2 selling away the suit land to them. So, finding no alternative, she filed the suit seeking the aforementioned reliefs. On enquiry the plaintiff learnt that defendant No. 3 in collusion with defendant Nos. 1 and 2 has executed two separate sale deeds in favour of defendant Nos. 1 and 2 selling away the suit land to them. So, finding no alternative, she filed the suit seeking the aforementioned reliefs. ( 3 ) DEFENDANTS 1 and 2 in their written statement while denying the entire claim and the allegation of the plaintiff-appellant, pleaded, inter alia, that they purchased the suit land from defendant No. 3 as bona fide purchasers and have accordingly derived right and title over the same. They denied that there was never any agreement between the plaintiff and defendant No. 3 for the suit land and that plaintiff was ever in possession of the suit land pursuant to that agreement. Defendant No. 3 in his separate written statement also denied that there was any agreement between him and the plaintiff for sale of the suit land or that he received rs. 750/- from the plaintiff or ever put her in possession of the suit land. Defendants also challenged the maintainability of the suit and prayed for its dismissal. ( 4 ) CONSIDERING the pleadings of the parties, learned trial Court framed as many as six issues and received evidence of the parties. Plaintiff examined 5 witnesses and defendants examined 4 witnesses. The parties also produced documents in support of their respective cases. After persuing those oral and documentary evidence, the trial Court came to hold that there was no agreement between the plaintiff and defendant No. 3 as alleged and the plaintiff is not entitled to any specific performance of contract. The trial Court also held the sale of the suit land in favour of defendant Nos. 1 and 2 are legal, genuine, and for valid consideration and as such, those sales cannot be declared invalid. Challenging the order of the trial Court, the plaintiff filed the above noted appeal arraying the defendant Nos. 1 to 3 as respondent Nos. 1 to 3. During pendency of the appeal, defendant-respondent No. 3 died leaving no legal heir and so his name was struck off. Learned Addl. District Judge, Bhubaneswar on consideration of the materials on record and the respective submissions of the parties, confirmed the findings of the trial Court, further held that after the death of respondent no. 1 to 3. During pendency of the appeal, defendant-respondent No. 3 died leaving no legal heir and so his name was struck off. Learned Addl. District Judge, Bhubaneswar on consideration of the materials on record and the respective submissions of the parties, confirmed the findings of the trial Court, further held that after the death of respondent no. 3, the prayer for specific performance of contract has become unenforceable. Consequently, he dismissed the appeal. Aggrieved by such order of the Courts below, appellant has filed the present appeal. ( 5 ) AT the time of admission, the following grounds were accepted as substantial questions of law for consideration:1. For that, the learned lower appellate Court erred in law in holding that there can be no decree for specific performance of contract when the contacting party dies without any personal heir, even when the transferees are on record. There is no frustration of the contract in such case. 2. For that, the learned lower appellate Court has not given any independent finding on the fact of existence of the agreement to sale. 3. For that, the learned Munsif has wrongly imported the ingredients of Section 53-A of the T. P. Act in holding that the agreement not being in writing is not enforceable in law. " ( 6 ) MR. B. N. Mishra, learned counsel appearing on behalf of Mr. S. N. Mishra, Advocate for the appellant argued that the trial Court and the first appellate Court misread the evidence and the provision of law and consequently arrived at wrong conclusions. He alleged that the first appellate Court did not independently assess the factual and legal aspects relating to the existence of the agreement and also mis-spelt the law in observing that the agreement became unenforceable after the death of defendant No. 3, In spite of service of notice on the respondents, no one appeared to offer any submission. ( 7 ) A Court of Second appeal cannot reassess the evidence on record and record its own finding on factual aspects. All that It can do is to examine whether the Courts below. acted with material irregularity or in excess of jurisdiction vested in them and if their conclusions are perverse, unfair or capricious. ( 7 ) A Court of Second appeal cannot reassess the evidence on record and record its own finding on factual aspects. All that It can do is to examine whether the Courts below. acted with material irregularity or in excess of jurisdiction vested in them and if their conclusions are perverse, unfair or capricious. In the present case, the plaintiff-appellant came up with a plea that she had an agreement with defendant No. 3 for the sale of the suit land and that basing on such agreement she paid advance of Rs. 750/-, took over possession of the land and raised construction thereon. It was her specific plea that because there was no approach road to her land in Plot No. 2946, she entered into an agreement with defendant no. 3 for purchase of the suit land to use the same as approach road to her land in Plot No. 2946. She could not produce any document regarding the agreement, any receipt regarding payment of advance of Rs. 750/- and any direct witness in support of the execution of the agreement. On the other hand, the D. Ws. clearly proved the execution of the registered sale deed Exts. 'p' and 'g'. D. W. 1 as well as some of the P. Ws. admitted that the house of persons situated on Plot No. 2946 including that of the plaintiff-appellant face towards south and a road with electric service lines is available on the southern side of those houses, meaning thereby that approach road is available to their house on the southern side and there was no necessity of approach road on the northern side. The plan of the house of the appellant, approved by the Municipality also revealed that the house of the appellant face towards that road on the southern side. The mason, who constructed the house of the appellant also confirmed this fact. With that kind of evidence on record the findings of the trial court and the appellate Court cannot be said to be perverse or contrary to the materials on record. ( 8 ) LEARNED counsel for the appellant indicated that the trial Court failed to appreciate the provisions and the theme of Section 53-A of the Transfer of Property Act and consequently failed to accord legal protection to which the appellant was entitled. ( 8 ) LEARNED counsel for the appellant indicated that the trial Court failed to appreciate the provisions and the theme of Section 53-A of the Transfer of Property Act and consequently failed to accord legal protection to which the appellant was entitled. The provisions of Section 53-A of the Transfer of Property Act, and its bearing on the concerned issue were exahaustively dealt with by the trial court in para 4 of the judgment. Relying on the wordings of the provisions of Section 53-A of the Transfer of Property Act and the ratio laid down in the cases of Murid Khan and others v. Usman Khan and others and Sardar govindrao Mahadik and another v. Devi Sahi and others, learned trial Court held that the alleged agreement not being in writing and the existence of any such agreement and payment of part consideration not having been proved, the appellant was not entitled to protection of her alleged possession. Section 53-A of the transfer of Property Act clearly says that the doctrine of part performance can be invoked only when there is contract to transfer immovable properties for consideration and. the contract is evidenced by a writing signed by the persons sought to be bound by it. Admittedly, no contract in writing is available and no credibile evidence is also there to prove the alleged contract. So, there was no scope for the Courts below to accord protection to the appellant under Section 53-A of the Transfer of Property Act. ( 9 ) MR. Mishra, learned counsel appearing for the appellant further argued that the first appellate Court was incorrect in its finding that the agreement has become unexecutable in view of death of defendant No. 3 leaving no legal heir. In support of his contention, he indicated section 19 of the Specific Relief Act and the decision of Patna High Court reported in the case of Dalmia Jain and Company Ltd. v. Messers. Kalyanpur Lime Works Ltd. and another, wherein it was said that the subsequent transferees having knowledge about the prior contract would be bound by the contract. Though the case law cited is not directly on the point, it has some bearing on the point in issue. Kalyanpur Lime Works Ltd. and another, wherein it was said that the subsequent transferees having knowledge about the prior contract would be bound by the contract. Though the case law cited is not directly on the point, it has some bearing on the point in issue. If the contract is legal, and enforceable, then even if one of the parties to contract dies leaving no heir, yet the persons, who acquired interest over the subject-matter of contract though that deceased party would be bound by the contract and specific performance can be enforced against such persons. However, this legal proposition in no way helps the appellant as she has failed to establish existence of the alleged agreement. ( 10 ) THE questions of law raised in this appeal by the appellant are accordingly answered. Because no illegality, perversity or arbitrariness is there in the judgment and decree of the Courts below, the same are confirmed and the second appeal is dismissed. No cost. Appeal dismissed.