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2010 DIGILAW 520 (CAL)

Uma Nath v. Bina Rani Majumder

2010-05-13

DEBASISH KAR GUPTA, KALYAN JYOTI SENGUPTA

body2010
JUDGMENT:- K.J. Sengupta, J.:- The appellants herein were the first, third, fourth, fifth and sixth defendant in the suit have impugned the decree passed by the learned Civil Judge, (Senior Division), 7th Court, at Alipore in Title Suit No.182 of 1991 by which the learned Trial Judge granted decree for specific performance of the agreement for sale of the suit property. The fact for which the suit was filed and subsequently appeal is preferred is briefly stated hereunder:- First respondent Smt. Bina Rani Majumdar filed a suit for specific performance against appellants herein and one Smt. Minu Guha Roy, who is the respondent No.2 herein and one Manju Debnath being the defendant no.7, Smt. Puspa Chowdhury, Smt. Purnima Majumdar, Smt. Usha Das and thereafter one Smt. Rina Gomesh respsondent No.6 herein also filed suit for specific performance of an agreement for sale dated 16th February 1991 of an immovable property comprising of more or less 5 cottahs of land together with structure having 9 rooms and one shop room, two privies and two electrical meters at a consideration of Rs.2,25,000/-. The said agreement was written one. At the time of execution of the said agreement a sum of Rs.90,000/-out of Rs.2,25,000/- was paid as an advance and part consideration amount. It is alleged that original documents relating to the title of the property namely deed of conveyance executed by the vendor of the predecessor-in-interest of the defendants and the Records of Rights were handed over to the plaintiff. On careful scrutiny of those documents it was detected that there has been wrong recording as to the Dag number in relation to the said land in the original title Deed. So, it was demanded that the steps should be taken for rectification of such mistake incorporated in the conveyance. The defendants took away the said documents promising to do the needful for rectification, however, the same was not done. Therefore, the possession of the 7 rooms out of 9 rooms and two privies were given to the plaintiff. The portion of the said suit property was occupied by some tenants. It is alleged by the plaintiff that defendants through one of their relation who is not having any interest in the suit property, being a muscle-man is trying to forcibly possess two of the 9 rooms with an intention to make it over to one Mrs. Gomesh. The portion of the said suit property was occupied by some tenants. It is alleged by the plaintiff that defendants through one of their relation who is not having any interest in the suit property, being a muscle-man is trying to forcibly possess two of the 9 rooms with an intention to make it over to one Mrs. Gomesh. In spite of repeated demands and requests the defendants each of them failed to execute and register necessary deed of conveyance nor took any step for rectification of the said mistake in the original title Deed. After the said suit was filed the defendant No.11 being the respondent No.6 had been added as a party respondent on the allegation that in breach of the order of status quo in respect of the suit property on or about 16th March 1993 defendants Smt. Uma Nath, Smt. Jhunu Nath, Tunu Nath, Dipak Nath and Haren Nath out of nine joint owners by registered deed of conveyance dated 16th April 1992 sold their share of right, title and interest in the said property to said Smt. Gomesh. In the suit, the appellants along with the respondent No.2 filed a joint written statement. The defendant Nos.2, 8, 9 and 10 also filed a joint written statement whereas defendant No.11 being the respondent No.6 herein also filed written statement on plaint being amended. In the written statement of the appellants and the respondent No.2 herein it appears that they have not denied and disputed the agreement. However, they alleged that defendant No. 7 Smt. Manju Debnath had died before the suit was instituted as such the suit is bad for misjoinder of the party. It is further alleged in the written statement that at no point of time there was any agreement for taking step by the vendor defendants for rectification of the original title Deed, rather it was made to understand to the plaintiff that property was to be sold with this defect. It was contended by defendants that the defendant No.7 was not a signatory to the agreement and further the original agreement was manipulated, fabricated. It appears from the written statement of the defendant Nos. 2, 8, 9 and 10 that they have admitted everything the plaintiff had said. It was contended by defendants that the defendant No.7 was not a signatory to the agreement and further the original agreement was manipulated, fabricated. It appears from the written statement of the defendant Nos. 2, 8, 9 and 10 that they have admitted everything the plaintiff had said. However, it is alleged that two cottahs of land which is not the subject matter of the agreement was agreed to be sold to the defendant No. 11 and subsequently, it was sold by executing a conveyance by their undivided interest. The defendant No.11 (respondent No.6 herein) in her written statement said that there has been prior agreement of sale of two cottahs of land and the suit property is not the subject matter of the land which was agreed to be sold by the predecessor-in-interest of the defendants. Subsequently, by deed of conveyance dated 16th April 1992 two cottahs of land together with two rooms were sold to the extent of the share held by the defendant Nos. 2, 8, 9, 10 and the defendant No.5. Remaining parties are yet to execute the conveyance hence she has filed a suit for specific performance. She has also alleged in her written statement that she did not have the knowledge of the agreement of sale of the suit property nor she had knowledge of passing of the order of injunction. On the face of the aforesaid contention made out by the respective parties in their respective pleadings learned Trial Judge framed the following issues: (i) Is the suit maintainable? (ii) Is the agreement to sell dated 15th February 1991 enforceable? (iii) Is the plaintiff entitled to the decree as prayed for? (iv) To what other reliefs, if any, is the plaintiff entitled? The core issue was the issue No.(ii). The learned Trial Judge after reading respective contention and noting admission of the parties in the pleadings and upon analysis of evidence found that the agreement for sale dated 15th February 1991 is enforceable. However, the claim for decree as against the defendant No.11 with regard to the two cottahs of land was not accepted by the learned Trial Judge. The suit was decreed directing the defendants to execute necessary deed of conveyance in favour of the plaintiff by paying balance consideration of Rs.1,35,000/-, in default the plaintiff would be entitled to execute the deed of conveyance. The suit was decreed directing the defendants to execute necessary deed of conveyance in favour of the plaintiff by paying balance consideration of Rs.1,35,000/-, in default the plaintiff would be entitled to execute the deed of conveyance. It appears from the findings of the learned Trial Judge that the mistake in description of Dag number in the original title Deed has been corrected by substituting the Dag No. 2180 in place of 2100. In spite of service none appears for respondents. Mr. Saha appearing for the appellants submits that the suit should not have been decreed as the learned Trial Judge overlooked that the suit was against the dead person namely defendant No.7 who at the time of institution of the suit as such the suit was bad for nonjoinder of necessary party so also decree. He argued that the learned Trial Judge should have held that agreement was not enforceable as the same is manufactured. Under those circumstances, decree for specific performance of this nature being equitable and discretionary reliefs, in view of the aforesaid factual aspect, should not have been passed. He has drawn our attention to the Supreme Court judgment reported in AIR 1976 SC 2073 (Smt. Shaharyar Bano and another, Appellants v. Sanwal Das, Respondent) and a decision of the Patna High Court reported in AIR (29) 1942 Patna 366 (Dulhin Rajkishore Kuer v. Muhammad Qaiyum and others). The aforesaid two judicial pronouncements in our view do not lay down any special feature, only extent of the power of the Court in granting decree for specific relief has been explained. It is well settled position of law that discretion is to be exercised considering the each and every individual case and no principle can rigidly be adopted nor can be asked to be followed. In any event those decisions cited by Mr. Saha in view of the aforesaid admitted fact are found not to be appropriate in this case. In this case, as we glean through the pleadings of all the parties and we notice that factum of execution of the agreement for sale has been accepted by everyone. Even in their evidence the learned Trial Judge has recorded correctly, they have admitted so. D.W.1 who deposed on behalf of the defendant Nos. In this case, as we glean through the pleadings of all the parties and we notice that factum of execution of the agreement for sale has been accepted by everyone. Even in their evidence the learned Trial Judge has recorded correctly, they have admitted so. D.W.1 who deposed on behalf of the defendant Nos. 2, 8, 9 and 10 has categorically said in the examination-in-chief that they entered into the agreement with plaintiff for sale of the suit property on 15th February 1991 by executing deed of conveyance at Rs. 2,25,000/-. She has also deposed that she received Rs.10,000/-and Dipak Debnath had taken Rs. 15,000/- out of a sum of Rs.90,000/-which was paid to all as earnest money and/or part consideration amount. This deponent namely Smt. Puspa Chowdhury the defendant No.8 has said that she and other defendant Nos.2, 9 and 10 were ready to execute the deed of conveyance in favour of the plaintiff. Her testimony supported the case of plaintiff. She was not cross-examined by plaintiff however, she was cross-examined by defendant Nos.1, 3 to 6 who are the appellants. In the cross-examination she has admitted that defendant No.7 was not a signatory to the party. Her testimony in this cross-examination with regard to execution of the agreement could not be dainted at all. This group of defendants namely defendant Nos.2, 8, 9 and 10 did not come forward to contradict. Hence, we are of the view that the testimony given by her should be accepted as evidence in support of the plaintiff. This has been correctly noted by the learned Trial Judge. One Sri Dipak Nath being the D.W.2 had deposed on behalf of the defendant Nos. 1, 3 and 6 as well as for himself. In his evidence he has said that defendant No.7 had died before the suit was instituted. The heirs and legal representatives of this defendant are not made parties. The said defendant No.7 did not sign the agreement. He admitted execution of the agreement as claimed by the plaintiff. It is said that two cottahs of land which is not within the purview of the suit property, was sold to defendant No. 11 together with one shop-room. The defendant No.11 has come forward to depose saying that she purchased two cottahs of land together with shop-room which is not part and parcel of the suit property. It is said that two cottahs of land which is not within the purview of the suit property, was sold to defendant No. 11 together with one shop-room. The defendant No.11 has come forward to depose saying that she purchased two cottahs of land together with shop-room which is not part and parcel of the suit property. The learned Trial Judge, in our view, has correctly analysed the evidence and we do not find any infirmity in his findings. When the execution of agreement is admitted and payment of part consideration money is also admitted so also the possession, what remains to be proved by the plaintiff is the factum of readiness and willingness of the plaintiff to make payment of the balance consideration money. The allegations of manipulation, fabrication of the original agreement was found not to have been proved by the appellants. Despite having xerox copy of the original agreement (undisputed) the appellant did not produce the same to establish the allegations of manipulation and forgery. Under such circumstances, we think learned Trial Judge has correctly passed the decree. We, therefore, affirm the same and dismiss the appeal. There will be no order as to costs. It is made clear that the said decree would be valid and binding as against the parties or persons who have signed and/or their heirs or heiresses or legal representatives. We clarify that the suit filed by Rina Gomesh for specific performance is not touched by the instant decree. I agree.