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2010 DIGILAW 291 (GAU)

Shankar Chandra Paul v. Makhan Bala Das

2010-04-27

H.N.SARMA

body2010
JUDGMENT H.N. Sarma, J. 1. Being aggrieved by the judgment and decree passed in T.A. No. 47/96 by the learned Civil Judge (Senior Division) No. 2, Cachar at Silchar dismissing the appeal and affirming the judgment and decree passed in Title Suit No. 86/92 by the learned Civil Judge (Junior Division) No. 2, Silchar at Cachar vide order dated 30.7.96, the present appeal has been preferred by the Defendant. 2. I have heard Mr. N. Choudhury, learned Counsel for the Defendant Appellant as well as Mr. M. Singh, learned Counsel appearing for the Plaintiff Respondent. 3. The pleaded case of the Plaintiff inter alia is that he sold the suit land to the Defendant on 15.7.87 by executing a sale deed in consideration of Rs. 10,000/- and handed over the possession of the same. On the same date, however, a separate agreement was executed between the Plaintiff and the Defendant to the effect that the Defendant would transfer the said land in favour of the Plaintiff, if he return back the consideration money of Rs. 10,000/- within five years and Defendant would deliver the possession of the same. In the said agreement it was also stipulated that in terms of the agreement it would be binding upon the heirs of the respective parties. The said agreement was registered as Deed No. 3938 dated 16.7.87 in the office of the Sub-Registrar, Sadar Silchar. In terms of the aforesaid agreement the Plaintiff demanded the Defendant to sale the schedule land within the stipulated time on receipt of the consideration money of Rs. 10,000/- and retransfer the land. But the same having been refused to return a pleader notice was served upon the Defendant but the in spite of the said notice the Defendant did not come to execute the sale deed nor the Defendant paid any heed to the same. Ultimately, the Plaintiff filed a suit for specific performance of the said agreement and to execute the sale deed in terms of the agreement. Upon receipt of the consideration money of Rs. 10,000/- summons have been served to the Defendant. 4. The Defendant contested the suit by filing written statement contending inter alia that the Plaintiff, being in need of money, approached the Defendant to sale his right of conveyance under the agreement (Ekrarnama) and accepted a sum of Rs. Upon receipt of the consideration money of Rs. 10,000/- summons have been served to the Defendant. 4. The Defendant contested the suit by filing written statement contending inter alia that the Plaintiff, being in need of money, approached the Defendant to sale his right of conveyance under the agreement (Ekrarnama) and accepted a sum of Rs. 5000/- and proposed to execute the necessary agreement to that effect but in the meantime he, having been expired, the predecessor-in-interest filed a suit for recovery of the same. It is specifically stated that the agreement executed on 15.7.87 stood modified by oral contract between the parties and accordingly, the Plaintiff is not entitled to any relief. On the basis of the pleadings of the parties, the following issues are framed. 1. Is there any cause of action for the suit? 2. Whether the suit land is properly described? 3. Whether the predecessor in-interest of the Plaintiffs sold a portion of his homestead that to the Defendant by executing a registered sale deed on 15.7.87 and if so, whether the Defendant also executed an Ekrarnama on the same day promising to re-transfer the said land and if so whether the Defendant is legally bound to re-transfer the suit land or not? 4. Whether the predecessor-in-interest of the Plaintiff sold his right of reconveyance in respect of the suit land to the Defendant? 5. Whether the Plaintiffs are entitled to get a decree as prayed for? 5. In support of the case, the Plaintiff examined two P.Ws. whereas Defendant examined three D.Ws. At the end of the trial, the learned trial Court decreed the suit in favour of the Plaintiff vide judgment and decree dated 30.7.96 which was carried into an appeal and the same was registered as T.A. No. 47/96 in the Court of learned Civil Judge (Senior Division), No. 2, Cachar at Silchar and the learned appellate Court vide impugned judgment and decree dated 10.11.2000 dismissing the appeal affirmed the order passed by the learned trial Court. 6. The appeal was admitted to be heard on the following substantial question of law. Whether the right of the Plaintiffs to get reconveyance has been extinguished due to subsequent oral agreement for sale of the said right of reconveyance upon receipt of the full consideration of Rs. 5000/- in presence of D.W. 2 and D.W. 3? 7. In support of his contention, Mr. Whether the right of the Plaintiffs to get reconveyance has been extinguished due to subsequent oral agreement for sale of the said right of reconveyance upon receipt of the full consideration of Rs. 5000/- in presence of D.W. 2 and D.W. 3? 7. In support of his contention, Mr. Choudhury submits that while discussing related issue No. 4, learned Court below having been found that the Defendant could prove by clear and cogent evidence that the Plaintiff received a sum of Rs. 5,000/- and agreed to execute a deed of agreement in favour of the Defendant, both the Court below committed error of law in passing the impugned judgment and decree on the agreement dated 15.7.87 superseding the subsequent agreement. The learned Counsel further submits that the Plaintiff having received an amount of Rs. 5,000/- thereby selling the right of reconveyance in favour of the Defendant, the present suit is filed inasmuch as he has waived his right reserved by the agreement dated 15.7.87. 8. Mr. M. Singh, learned Counsel for the Plaintiff Respondents, however, submits that there having no separate written agreement in support of the claim of the Defendant, upon receipt of Rs. 5,000/-, the subsequent agreement would not be binding between the parties. It is further contended that the terms of the agreement dated 15.7.87 having been reduced into writing, it cannot be waived or rescinded by any subsequent oral agreement. 9. I have considered the submissions so made by the learned Counsel for the parties. 10. The basic facts needed for necessary disposal of the appeal appears to be not in dispute. The predecessor-in-interest of the Plaintiffs sold the portion of his homestead land by a registered sale deed in favour of the Defendant on 15.7.87 in consideration of a sum of Rs. 10,000/- and handed over the possession thereof to the Defendant. The Defendant, on the same date, i.e. on 15.7.87 itself, executed the deed of agreement (Ekrarnama) in favour of the Plaintiff promising to re-transfer the said land to the Defendant, if the Defendant pays the consideration amount within five years. The said agreement was exhibited as Exbt. 1. It is specifically mentioned that the terms of the agreement, Ext. 1 would bind the respective heirs of the parties. The original Plaintiff Girindra Mohan Das died on 13.5.88. The said agreement was exhibited as Exbt. 1. It is specifically mentioned that the terms of the agreement, Ext. 1 would bind the respective heirs of the parties. The original Plaintiff Girindra Mohan Das died on 13.5.88. The Plaintiff made demand for getting back the transferred land in their favour by executing a deed accepting the sum of Rs. 10,000/- as per terms and conditions of the agreement. To that effect, the Plaintiff also issued notice to the Defendant which is duly admitted to have been recalled by the Defendant vide Exbt. 3. It is also proved that Defendant paid Rs. 5,000/- to the Plaintiff on the proposition of the Plaintiff to relinquish his right to execute the agreement. However, before the execution of the necessary agreement to that effect the Plaintiff expired and no such deed of agreement could be executed by the Plaintiff in favour of the Defendants in terms of the oral agreement. 11. As indicated above, the Exbt. 1, the deed of agreement (Ekrarnama) was executed on 15.7.87 and the same was duly registered in the Office of the Joint Sub-Registrar, Silchar on 16.7.87. The Plaintiff has sought for execution of the contract entered into between the parties by way of specific performance. No any other deed canceling the Exbt. 1 has been executed or registered. 12. Section 91 of the Evidence Act provides that when the terms of a contract or of a grant, or of any other disposition of property, have been reduced to the form of a document, and in all cases in which any matter is required by law to be reduced to the form of a document, no evidence shall be given in proof of the terms of such contract, grant or other disposition of property, or of such matter, except the document itself, or secondary evidence of its contents in cases in which secondary evidence is admissible under the provisions hereinbefore contained. However, there are exception to Section 91 of the Evidence Act which is not applicable in the instant case. 13. However, there are exception to Section 91 of the Evidence Act which is not applicable in the instant case. 13. Section 92 provided that when the terms of any such contract, grant or other disposition of property, or any matter required by law to be reduced to the form of a document, have been proved according to the Section 91 of the Evidence Act, no evidence of any oral agreement or statement shall be admitted, as between the parties to any such instrument or their representatives in interest, for the purpose of contradicting, varying, addition to, or subtracting from, its terms. Under Section 92 there are five proviso in the form of exception and those provisos are not attracted in the facts of the present case. 14. In view of the above specific statutory provisions, the evidence adduced by the Defendant to the effect that there was a oral contract between the parties to sell the right of reconveyance in favour of the Defendant in derogation to the agreement, Exbt. 1 is admitted, that would amount to varying and or subtracting the terms of the Exbt. 1 and such evidence in the form of oral agreement are not admissible. The Defendant might have proved certain facts orally in his deposition through D.Ws. subtracting from the terms of the agreement contained in Exbt. 1 but in the absence of any written document, the Defendants are not entitled to take aid of the expressed terms contained in Exbt. 1 which is a registered document, in view of the principle laid down in Section 91 of the Evidence Act. 15. In view of the above discussion, the substantial question of law so framed is answer in the negative and in favour of the Respondents. 16. Consequently, appeal stands dismissed. 17. Interim order dated 16.2.01 stands vacated. Appeal dismissed.