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2008 DIGILAW 570 (CAL)

Sukumar Samanta v. Sibdas Roy

2008-06-04

BHASKAR BHATTACHARYA, RUDRENDRA NATH BANERJEE

body2008
Judgment : BHASKAR BHATTACHARYA, J. (1) THIS first appeal is at the instance of the defendants nos. 3 and 4, the subsequent purchasers, in a suit for specific performance of contract and alternatively, for a decree for pre-emption and is directed against the judgement and decree dated August 26, 1997 passed by the learned Civil Judge, Senior division, Second Court, Howrah, in Title Suit No. 173 of 1992, thereby passing not only a decree for specific performance of contract but also a decree for preemption by exercising power under Section 8 of the West Bengal Land Reforms Act. (2) THE plaintiffs/respondents filed the abovementioned suit being Title Suit no. 173 of 1992 against their adjoining neighbours, the defendants nos. 1 and 2, for specific performance of an alleged oral agreement of sale of the suit property, which is a part of a house as described in the schedule of the plaint, on the allegation that the defendant no. 2, on his own behalf and on behalf of his brother, the defendant no. 1, orally agreed to sell the suit property at the price of Rs. 95,000/- after accepting a sum of Rs. 200/- as earnest money with the stipulation that a written agreement for sale would be subsequently prepared. According to the plaintiffs, for the preparation of such agreement for sale, the parties jointly approached one Mr Subrata Banerjee, a lawyer of the Howrah judges Court, who prepared a draft agreement. The defendant no. 2, according to the plaintiffs, even corrected the said draft agreement but for the reason best known to him, transferred the suit property along with the other part of the building to the defendant nos. 3 and 4, who had full knowledge of the earlier agreement for sale between the plaintiffs and the defendant nos. 1 and 2. The plaintiffs, thus, prayed for specific performance of the oral agreement of sale and alternatively, for a decree of preemption on the ground of adjoining ownership in exercise of their purported right under Section 8 of the West Bengal Land Reforms Act. (3) THE suit was contested by the defendant no. 2 (the defendant no. 1 died during the pendency of the suit) and the defendant nos. 3 and 4 separately by filing two sets of written statements thereby denying the material allegations made in the plaint. According to the defendant no. (3) THE suit was contested by the defendant no. 2 (the defendant no. 1 died during the pendency of the suit) and the defendant nos. 3 and 4 separately by filing two sets of written statements thereby denying the material allegations made in the plaint. According to the defendant no. 2 there was no agreement whatsoever between the parties for sale of the property and no earnest money was taken by the defendant no. 2. The defendant nos. 3 and 4 took the plea of bona fide purchase without prior notice of any agreement between the plaintiffs and the defendant nos. 1 and 2. (4) AT the time of hearing, the plaintiff no. 1 and Subrata Banerjee, the lawyer who allegedly drafted the agreement, gave evidence on behalf of the plaintiffs in support of their plaint case while the defendant nos. 2 and 3 deposed in opposing the claim of the plaintiffs. (5) THE learned Trial Judge, as indicated earlier, believed the case of oral agreement between the parties and disbelieved the claim of the defendant nos. 3 and 4 that they were bona fide purchasers for value without the notice of the prior oral agreement and granted a decree for specific performance of the oral agreement. In addition to the said decree, the learned Trial Judge also passed a decree for pre-emption by exercising his purported power under the West Bengal land Reforms Act. (6) BEING dissatisfied, the defendant nos. 3 and 4 have come up with the present first appeal. (7) AFTER going through the averments made in the plaint, we find that it is the definite case of the plaintiffs that they entered into an oral agreement for sale of the property with the defendant no. 2 who allegedly entered into such agreement on behalf of the defendant no. 1 by virtue of a power of attorney executed by the said defendant no. 1 in favour of the defendant no. 2. In evidence, the plaintiff no. 1 has stated that the draft agreement for sale was entered into in the month of march, 1992 and five days prior to such date, he gave the earnest money of Rs. 200/-to the defendant no. 2. However, it is found from the power of attorney executed by the defendant no. 1 in favour of the defendant no. 2 that the same was executed on May 2, 1992. 200/-to the defendant no. 2. However, it is found from the power of attorney executed by the defendant no. 1 in favour of the defendant no. 2 that the same was executed on May 2, 1992. Therefore, even if we accept the case of the plaintiffs that the oral agreement between the plaintiffs and the defendant no. 2 had taken place in the month of March, 1992, the same was not binding upon the defendant no. 1 who had 8 annas share in the property. Moreover, if really any agreement was entered into by taking the earnest money of Rs. 200/-, it is expected that such fact should have reflected in the draft prepared by Mr subrata Banerjee. However, in the xerox copy of the draft, which has been proved on behalf of the plaintiffs, there is no indication that any price was fixed for the proposed sale or that any amount had already been taken by way of earnest money. Therefore, all that has been proved is that a mere talk of sale of the property had commenced between the plaintiffs and the defendant no. 2 which did not materialise but neither any price was fixed nor was any amount taken by way of earnest money. Moreover, there is no evidence to show that the defendant no. 1, at any point of time, took part in such talk of sale and that there was existence of any power of attorney in favour of the defendant no. 2 at that point of time authorising the latter to enter into any oral agreement for sale on behalf of the former. (8) WE, therefore, find that the plaintiffs have miserably failed to prove that there was any complete oral agreement for sale of the property in question between the plaintiffs in one hand and the defendant nos. 1 and 2 on the other, enabling the plaintiffs to maintain the suit for specific performance of contract for sale of the property in question. The learned Trial Judge totally overlooked the abovementioned important aspects appearing from the evidence on record and erroneously concluded that there was a valid oral agreement for sale, which was binding upon the defendant nos. 1 and 2. The learned Trial Judge totally overlooked the abovementioned important aspects appearing from the evidence on record and erroneously concluded that there was a valid oral agreement for sale, which was binding upon the defendant nos. 1 and 2. (9) SIMILARLY, the suit property having been already sold to the appellants before the institution of the suit, the Court can grant a decree for specific performance of contract against the subsequent purchasers only if it is established that the subsequent purchasers were not bona fide purchasers for value without the notice of the earlier agreement between the plaintiffs and the original owners from whom they purchased. (10) MR Dasgupta, the learned senior advocate appearing on behalf of the plaintiffs/respondents, in this connection, laboriously contended before us that the onus to show that they are bona fide purchasers for value without notice of the earlier agreement is upon those subsequent purchasers and according to him, in this case, the appellants have failed to prove such fact. Mr Dasgupta contends that the appellants in their written statements did not deny the fact that they had prior notice of the agreement for sale with the plaintiffs and consequently, no evidence was admissible to controvert such fact by filling up the lacuna arising out of the pleadings. In support of such contention, Mr Dasgupta relies upon the following decisions:- (a) Bhup Narayab Singh vs. Gokul Chand Mahton reported in LXI I. A. 115; (b) Kashi Nath vs. Jaganath reported in (2003) 8 SCC 740 (11) FIRST, let us consider whether the appellants before us have failed to deny in their pleadings that they are not bona fide purchasers for value without the notice of any earlier agreement between the plaintiffs and the defendant nos. 1 and 2 as alleged in the plaint. (12) IN paragraph 14 of the plaint, such allegation was made and in paragraph 18 of the written statements, such fact has been denied in general form. Apart from such denial, in paragraph 19 of the written statements the appellants made the following averments:- it is denied that the defendants Nos. 3 and 4 were fully aware of the alleged contracts between the plaintiffs and the defendants Nos. 1 and 2. . again, in paragraph 21 of the written statements, the appellants made the following statements:-the defendants Nos. 3 and 4 are the bonafide purchasers for value. 3 and 4 were fully aware of the alleged contracts between the plaintiffs and the defendants Nos. 1 and 2. . again, in paragraph 21 of the written statements, the appellants made the following statements:-the defendants Nos. 3 and 4 are the bonafide purchasers for value. (13) WE, therefore, find no substance in the contention of Mr Dasgupta that there was no pleading of the appellants denying the allegation that they purchased the suit property with full knowledge of the agreement and therefore, they are precluded from leading any evidence on the abovementioned question. The decision of the Supreme Court in the case of Kashi Nath (supra), relied upon by Mr Dasgupta, thus, has no application to the facts of the present case where there is specific denial on the part of the appellants against the allegation of the plaintiffs that the appellants had full knowledge of the contract. (14) THE next question is whether the appellants have been able to establish that they were bona fide purchasers for value without notice of the alleged agreement, if any. (15) THERE is no dispute that the onus is upon the subsequent purchasers to prove that they are bona fide purchasers for value without the notice of the earlier agreement between the plaintiff and the owner of the property as laid down in the decision of the Privy Council in the case of Bhup Singh (supra), relied upon by Mr Dasgupta. (16) THE question, whether such onus has been discharged, depends upon the fact of each case. There is no hard and fast rule laying down any standard of proof of such fact in a given situation. (17) IN the case before us, the plaintiffs have alleged an oral agreement of sale, which is invisible in nature. Apart from the evidence of the plaintiff no. 1 and suggestion given to the appellant no. 1, no other evidence has been adduced to indicate that any of the appellants ever had expressed their knowledge of such agreement to anybody or that such knowledge is reflected in any written documents to which the appellants are parties. Even this is not a case where the plaintiffs had any possession over the suit property so that it could be reasonably argued that the appellants had a duty to enquire about the nature of possession of the plaintiffs in the suit property. Even this is not a case where the plaintiffs had any possession over the suit property so that it could be reasonably argued that the appellants had a duty to enquire about the nature of possession of the plaintiffs in the suit property. In this type of a case where the alleged agreement for sale is an oral one and at the same time, the plaintiff is not even in possession of the property, in our opinion, the initial onus of the appellants to prove such negative fact is easily shifted by an assertion on oath that they had no such notice. In this connection, we may profitably refer to the following observations of the Supreme Court in the case of Jagan Nath vs. Jagdish Rai and others reported in AIR 1998 SC 2028 :- however, it has to be kept in view that once evidence is led by both the sides the question of initial onus of proof pales into insignificance and the court will have to decide the question in controversy in the light of the evidence on record. Even this aspect of the matter is well settled by a decision of Privy Council in the case of Mohammad Aslam Khan v. Feroze shah, AIR 1932 PC 228 wherein it was observed with reference to the very same question arising under Section 27 (b) of the earlier Specific Relief Act of 1877 that it is not necessary to enter upon a discussion of the question of onus where the whole of the evidence in the case is before the Court and it has no difficulty in arriving at a conclusion in respect thereof. Where a transferee has knowledge of such facts which would put him on inquiry which if prosecuted would have disclosed a previous agreement, such transferee is not a transferee without notice of the original contract within the meaning of the exception in Section 27 (b). (18) WE, therefore, find that in this case, even if there was any valid oral agreement for sale, such agreement would not have affected the title of the appellants, as they are bona fide purchasers for value without the notice of such agreement. (18) WE, therefore, find that in this case, even if there was any valid oral agreement for sale, such agreement would not have affected the title of the appellants, as they are bona fide purchasers for value without the notice of such agreement. (19) THE learned Trial Judge, therefore, erred in holding that there was valid agreement for sale of the property in favour of the plaintiffs and at the same time erroneously arrived at the conclusion that the appellants purchased the property with notice of any earlier agreement although there is no trace of any cogent evidence in support of such fact. (20) WE, accordingly, set aside the decree for specific performance of contract passed by the learned Trial Judge. (21) THE last question is whether the learned Trial Judge was also justified in granting a decree for pre-emption in favour of the plaintiffs by exercising a power conferred under Section 8 of the West Bengal Land Reforms Act. (22) IN this case, the plaintiffs prayed for a decree of pre-emption by way of an alternative relief before a Civil Judge, Senior Division, based on their purported right under Section 8 of the West Bengal Land Reforms Act. As provided in the said Section of the Statute itself, such relief of pre-emption can be availed of not by filing any suit before a Civil Court as prescribed under Bengal, Agra, Assam civil Courts Act but by way of an application filed before the munsif having territorial jurisdiction (now designated as Civil Judge, Junior Division) irrespective of valuation of the property. Therefore, the Civil Judge, Senior division had no inherent jurisdiction to pass a decree for pre-emption by deriving power from the West Bengal Land Reforms Act in a regular civil suit for specific performance of contract either as an alternative relief or in addition to the main relief as granted in this case. The decree for pre-emption passed by the learned Trial Judge was, therefore, on the face of it, without jurisdiction and consequently, we set aside such decree passed by a Civil Court in exercise of its original civil jurisdiction. (23) THE judgement and decree passed by the learned Trial Judge, impugned in this appeal, are therefore set aside. The appeal is thus allowed with costs, which we assess at Rs. 10,000/-, payable by the plaintiffs to the defendant nos. 3 and 4.