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2008 DIGILAW 726 (CAL)

Rajeswar Prosad Bhakat v. Murari Lal Bhakat

2008-07-22

S.P.TALUKDAR

body2008
Judgment :- S.P. TALUKDAR, J. (1.) THE instant appeal is directed against the judgment dated 24th November, 1984 passed by Learned Second Court of additional District Judge, Birbhum. Learned First Appellate Court by the said judgment allowed the appeal being Title Appeal No. 11 of 1981 in part which was directed against the judgment dated 20th September, 1980 passed by the learned first Court of Munsif, Bolpur, District Birbhum in Title Suit no. 84 of 1973. Appellant, as plaintiff, filed the said suit for Specific Performance of contract. The case, as made out in the plaint, is as follows: -Defendant No. 1, Murari Lal Bhakat, by a registered deed of agreement for sale dated 30th Jaistha, 1379 B. S. , corresponding to 13th June, 1972, on receipt of Rs. 2,000/-from the plaintiff as advance, agreed to transfer the suit property, as described in the schedule of plaint. It was thus agreed that plaintiff would pay the balance amount of Rs. 5,000/- before the expiry of the month of Chaitra, 1379 B. S. and on receipt of the same, defendant No. 1 would execute a deed of sale in his favour. Plaintiff after collecting the said amount approached the defendant No. 1 to complete the transaction. But defendant No. 1 on various pretexts deferred the same. On 29th Chaitra plaintiff came to know that the defendant was pursuing a deal with one Sripati Choudhury, who reportedly offered a higher price. Defendant No. 1 confirmed the same on 30th Chaitra, 1379 b. S. and so, refused to transfer the suit property in favour of the plaintiff. Immediately thereafter, the plaintiff rushed to the said Sripati Choudhury but failed to prevent him from purchasing. 02 decimals of land appertaining to the suit property in the name of his wife. Plaintiff alleged that wife of Sriupati choudhury had no income of her own. She was not a purchaser for value without notice. Consideration amount of Rs. 4,000/- was inflated and the transaction in her favour was collusive and illegal. Plaintiff in such circumstances approached the learned Civil Court for redressal. (2.) DEFENDANT No. 1 filed a written statement denying, inter alia, the material allegations made in the plaint. Defendant Nos. 2 and 3 being Sripati Choudhury and his wife, Smt. Kalyani Choudhury, by filing a separate written statement, contested the suit. Plaintiff in such circumstances approached the learned Civil Court for redressal. (2.) DEFENDANT No. 1 filed a written statement denying, inter alia, the material allegations made in the plaint. Defendant Nos. 2 and 3 being Sripati Choudhury and his wife, Smt. Kalyani Choudhury, by filing a separate written statement, contested the suit. It was claimed that defendant No. 1 did not know about the suit being Title Suit No. 30 of 1973 of the said learned Court. Defendant No. 1 claimed that plaintiff in a designed manner filed the said suit knowing fully well that the learned Court had no jurisdiction to try the same. He further alleged that the plaintiff despite being repeatedly approached failed to perform his part since he could not collect the balance amount. It was claimed that time was the essence of contract. Being left with no choice, defendant No. 1 subsequently transferred the same in favour of the defendant No. 3, during the middle of baisakh, 1380 B. S. and Jaistha, 1380 B. S at a total consideration money of Rs. 6,000/ -. (3.) DEFENDANT Nos. 2 and 3 claimed to be bonafide purchasers. Upon the pleadings, learned Trial Court framed as many as six issues and by the judgment dated 20th September, 1980, decreed the suit in favour of the plaintiff. Such judgment was assailed by filing an appeal, which was allowed in part by the learned First Appellate Court by its judgment dated 24th November, 1984. Plaintiff, as appellant, then filed the present appeal alleging misappreciation of the evidence and the law. The following substantial points of law were formulated for adjudication in the present appeal: - (1) Was the leaned Lower Appellate Court justified in holding that the first transfer of the disputed property was not hit by the doctrine of lis pendens ? (2) In the facts and circumstances of the case, was the learned lower appellate Court justified in allowing the appeal in part after setting aside the decree passed by the learned Trial court? Mr. S. P. Roychowdhury, learned Senior Counsel, appearing on behalf of the appellant first referred to the decision in the case of Santosh Hazari vs. Purushottam Tiwari (deceased) by Lrs. , reported in (2001) 3 SCC 179 . This was in the context of the scope of a second appeal. Mr. S. P. Roychowdhury, learned Senior Counsel, appearing on behalf of the appellant first referred to the decision in the case of Santosh Hazari vs. Purushottam Tiwari (deceased) by Lrs. , reported in (2001) 3 SCC 179 . This was in the context of the scope of a second appeal. It cannot be denied that improper functioning of first appellate court may give rise to substantial question of law. It is perhaps needless to mention that the judgment of the first appellate court must display conscious application of mind and record findings supported by reasons on all issues and contentions. In the case of Santosh Hazari (supra), the Apex Court held that the High Court is not bound to confine itself to dealing only with the question initially framed by it. It may hear the appeal on any other such question so long as it is satisfied that the case involves the question and records its reasons for such satisfaction. Here in the present case, no such substantial question of law was formulated at the time of admission of the appeal by the learned Division Bench. Subsequently however, this aspect was taken care of at the time of hearing of the instant appeal. (4.) TO be substantial, a question of law must be debatable, one which has not been settled earlier by statute or binding precedent, and must have a material bearing on the outcome of the case. The Apex Court held that "substantial" in context means having substance, essential, real, of sound worth, important or considerable. Such question however, need not be one "of general importance". Mr. S. P. Roychowdhury while assailing the judgment of the First Appellate court submitted that there had been total misappreciation of the legal position and so far the return of the plaint was concerned, limitation runs from the date the plaint is returned and not from the date of the order by which the plaint is directed to be returned. (5.) MR. S. P. Roychowdhury, sought to derive inspiration from the decision in the case of Ram Ujarey vs. Union of India. , reported in (1999) 1 SCC 685 in this regard. (5.) MR. S. P. Roychowdhury, sought to derive inspiration from the decision in the case of Ram Ujarey vs. Union of India. , reported in (1999) 1 SCC 685 in this regard. He, thereafter, referred to Section 19 of the Specific Relief Act while submitting that it is for the plaintiff to prove agreement, the vendor-defendant to prove his case and the subsequent purchaser has to prove that he is a bonafide purchaser for value without notice of the agreement. Relying upon the decision in the case of Meena Bibi vs. Halda Glady Sylus. , reported in 2006 (2) CHN, 24, it was submitted by Mr. S. P. Roychowdhury that it is the settled principle that onus is on the person claiming protection under Section 19 (b) of the Specific relief Act, that he had no notice of the prior agreement. Section 19 (b) clearly lays down that Specific Performance of Contract may be enforced against any other person claiming under him by a title arising subsequently to the contract, except a transferee for value who has paid his money in good faith and without notice of the original contract. Emphasis was laid on the word "and" in Section 19 (b) of the Specific Relief Act and it was categorically mentioned that both the ingredients must combine. Deriving inspiration from the decision of the learned Single Bench in the case of Joginder Singh and Ors vs. Nidhan Singh and Ors. , reported in AIR 1996 Punjab and Haryana, 120, Mr. S. P. Roychowdhury submitted that if there is evidence indicating that subsequent transferee had notice of the agreement before execution of the sale deed in his favour, he cannot be said to be a bonafide transferee. (6.) WHILE analyzing the judgment under challenge in the context of the aforesaid legal position, I find it difficult to brush aside the grievances as raised on behalf of the appellant. On the other hand, the learned Trial Court appears to have measured the evidence with coffee spoon while concluding that the plaintiff was ready and willing to perform his part of the contract and the defendant No. 2, smt. Kalyani Choudhury could not be said to be a bonafide purchaser for value without notice. On the other hand, the learned Trial Court appears to have measured the evidence with coffee spoon while concluding that the plaintiff was ready and willing to perform his part of the contract and the defendant No. 2, smt. Kalyani Choudhury could not be said to be a bonafide purchaser for value without notice. The evidence on record, particularly, the date of the order directing return of the plaint, the date of actual return and the subsequent steps taken by the plaintiff harmoniously combine so as to indicate that the learned first Appellate Court was not justified in leaving the first transaction out of the ambit of the doctrine of lis pendens. There is no evidence to the satisfaction of the judicial conscience of the court so as to establish that the respondent-defendant was a bonafide purchaser for value without notice. The respondent failed to discharge the onus in that regard. It is worth mentioning that no other point was raised at the time of hearing of the instant appeal. (7.) HAVING regard to the aforesaid discussion, I find it difficult, if not impossible, to affirm the judgment of the learned First Appellate Court. It cannot be denied that the learned Appellate Court rather approached the matter from a different perspective resulting in misappreciation of the points in controversy. In the result, the present second appeal being S. A. No. 186 of 1987 succeeds and be allowed. Stamp paid correct. (8.) THE judgment passed by the learned Second Court of Additional District judge, Birbhum dated 24. 11. 1984 in Title Appeal No. 11 of 1981 be accordingly set aside and that of the learned Trial Court dated 20th September, 1980 passed in Title Suit No. 84 of 1973 be affirmed. There is no order as to costs. (9.) SEND a copy of this judgment to the learned First Appellate Court and another to the learned Trial Court for information and necessary action. The Lower Court Records be also sent back. Urgent Xerox certified copy of the of the judgment be supplied to the parties, if applied for, as expeditiously as possible.