Research › Search › Judgment

Calcutta High Court · body

2010 DIGILAW 691 (CAL)

Kesto Paul v. Samit Kumar Das

2010-06-24

BHASKAR BHATTACHARYA, RAGHUNATH BHATTACHARYA

body2010
JUDGMENT:- Bhaskar Bhattacharya, J. This first appeal is at the instance of the two defendants, husband and wife by relation, in a suit for eviction of a licensee and is directed against a judgment and decree dated 21st December, 2001 passed by the learned Judge, XIIIth Bench, City Civil Court at Calcutta, in Title Suit No. 295 of 1991 by which the learned Trial Judge passed a decree for eviction in favour of the plaintiffs. Being dissatisfied, the defendants have come up with the present first appeal. The plaintiff-respondent filed the aforesaid suit being Title Suit No. 295 of 1991 for eviction of the defendants on the allegation that the plaintiff had undivided one-third share in the entire house in which the defendants were permitted to stay as licensees in respect of the portion as specified in the schedule of the plaint. According to the plaintiff, the defendant No.1 was the brother-in-law of his elder brother and in view of such relation, on the request made by defendant No.1, he permitted the defendant No.1 and his wife to stay in the property as licensees. According to the plaintiff, he took Rs.50,000/- from the defendant No.1 by two equal installments of Rs.25,000/-and at that point of time, he granted a receipt to the defendant No.1 although the contents of the receipt was written by defendant No.1 and the contents was not known to the plaintiff. In other words, according to the plaintiff, he simply put his signature on such receipt and the contents of which written by defendant No.1 was not disclosed to him. Of late, the defendants having claimed that an agreement for sale was executed for transfer of the one-third share of the plaintiff at the price of Rs.50,000/-, the plaintiff revoked the licence and consequently, filed the suit for eviction by treating the defendants as licensees. The suit was contested by the defendants by filling joint written statement thereby denying the material allegations made in the plaint. According to the defendants, there was an oral agreement for sale of one-third share of the plaintiff in the suit building at the price of Rs.50,000/- in favour of defendant No.2 and the entire amount was paid to the plaintiff by two equal installments of Rs.25,000/-There was no denial in the written statement about grant of receipt by the plaintiff. According to the defendants, there was an oral agreement for sale of one-third share of the plaintiff in the suit building at the price of Rs.50,000/- in favour of defendant No.2 and the entire amount was paid to the plaintiff by two equal installments of Rs.25,000/-There was no denial in the written statement about grant of receipt by the plaintiff. According to the defendants, after taking full amount of consideration money, the defendants were put into possession of the portion of the suit property as described in the schedule of the written statement which appears to be in excess to the portion mentioned in the schedule of the plaint. In the written statement, the defendant No.2 prayed for counter-claim of specific performance of oral agreement for sale of the one-third share of the property at the price of Rs.50,000/-At the time of hearing, two persons including the plaintiff gave evidence in support of the plaint case while both the defendants adduced evidence in opposing the prayer of the plaintiff. The learned Trial Judge on consideration of the materials on record arrived at the conclusion that the plaintiff had proved title to the property and that the benefit of Section 53A of the Transfer of Property Act was not available to the defendants as the alleged agreement was an oral agreement. The learned Trial Judge further disbelieved the said oral agreement for sale. According to the learned Trial Judge, the defendants having admitted the existence of the receipt of Rs.50,000/-granted by the plaintiff, it was their duty to produce the said receipt which could conclusively disclose the nature of the alleged agreement between the parties and payment of Rs.50,000/-. The learned Trial Judge decreed the suit in favour of the plaintiff with the finding that there was no agreement for sale as alleged by the defendants in the written statement. The learned Trial Judge decreed the suit in favour of the plaintiff with the finding that there was no agreement for sale as alleged by the defendants in the written statement. It may not be out of place to mention here that the plaintiff in the plaint as well as in evidence admitted that subsequently, he was inclined to transfer his share in the suit property in favour of the defendant No.1 provided the defendant No.1 paid total amount of Rs.1,45,000/-as consideration money, although the plaintiff specifically disputed that there was any agreement for sale of his share at the price of Rs.50,000/-We have already pointed that the plaintiff admitted that he received Rs.50,000/-from the defendant No.1, but not as consideration for any agreement. Being dissatisfied, the defendants have come up with the present first appeal.Mr. Banerjee, the learned Senior Advocate appearing on behalf of the appellants, at the very outset, strenuously contended before us that his clients having made specific counter-claim in the suit for specific performance of contract, the learned Trial Judge erred in law in not passing any order whatsoever in the counter-claim lodged by his clients. Mr. Banerjee further, by referring to the evidence adduced by his clients as well as the plaintiff, tried to impress upon us that in this case, his clients had proved such oral agreement for sale of the property at the price of Rs.50,000/-. Mr. De, the learned Advocate appearing on behalf of the plaintiffs-respondents, however, has opposed the aforesaid contention of Mr. Banerjee and has contended that the learned Trial Judge, in the facts of the present case, rightly refused to give benefit of part performance of alleged contract in favour of the defendants, because such benefit cannot be conferred in a case of an oral agreement for sale. Mr. De further submits that in the facts of the present case, the learned Trial Judge rightly held that in the absence of the receipt admittedly granted by the plaintiff in favour of the defendants, it should be presumed that there was no agreement for sale of the share of the plaintiff in the property. Mr. De, therefore, prays for dismissal of the appeal. After hearing the learned Counsel for the parties and after going through the materials on record, we find that the appellants definitely filed cross-objection praying for specific performance of agreement by valuing of the cross-objection at Rs.50,000/-. Mr. De, therefore, prays for dismissal of the appeal. After hearing the learned Counsel for the parties and after going through the materials on record, we find that the appellants definitely filed cross-objection praying for specific performance of agreement by valuing of the cross-objection at Rs.50,000/-. The learned Trial Judge although did not specifically pass any order of rejection of such counterclaim in ordering portion or in the decree, yet, while deciding various issues, disbelieved the existence of any oral agreement for sale at the price of Rs.50,000/- as alleged in the written statement and such issue has been decided in favour of the plaintiffs. Therefore, Mr. Banerjee is not technically correct in submitting that the counter-claim of his clients was not decided. Since the learned Trial Judge has disbelieved the defence case of agreement for sale at the price of Rs.50,000/- and consequently, has not granted the relief for specific performance, it should be presumed that the learned Trial Judge has refused the relief claimed in the counter-claim. Moreover, although the appellants raised counter-claim, no separate appeal has been preferred against rejection of the counter-claim. Therefore, technically, in this appeal preferred against the decree for eviction filed against the appellants, there is no scope of even considering the question of existence of a valid agreement for sale or of granting a decree for specific performance of such contract. Nevertheless, in view of the defence of part performance taken by the appellants in the written statement against the prayer of eviction, we are required to consider whether such defence is available under law. We have already pointed out that there is no dispute as regards one-third share of the plaintiff in the entire suit building. Therefore, the question is whether the defendants can lawfully resist the decree for eviction on the alleged defence of part performance of agreement for sale, which, according to the defendants, is an oral one. As provided in Section 53A of the Transfer of Property Act, the defence of part performance is not available where the agreement is an oral one. Therefore, we find that the learned Trial Judge rightly granted a decree for eviction by overruling the defence of part performance of agreement taken by the appellants in the written statement. As provided in Section 53A of the Transfer of Property Act, the defence of part performance is not available where the agreement is an oral one. Therefore, we find that the learned Trial Judge rightly granted a decree for eviction by overruling the defence of part performance of agreement taken by the appellants in the written statement. As regards the alleged oral agreement for sale of the share of the plaintiff at the price of Rs.50,000/-, we are at one with the learned Trial Judge that once the defendants have also admitted the grant of receipt by the plaintiffs after receiving Rs.50,000/-, it was their duty to produce such receipt. If such receipt was produced, it would have been reflected whether the money was taken as full payment of consideration or whether the money was taken by way of loan or otherwise. The best evidence was lying with the defendants and the defendants deliberately withheld the document and even no explanation was given in the evidence for not producing the said document. In such circumstances, in our opinion, the learned Trial Judge rightly concluded that the defence of the defendants was not tenable in the facts of the present case. We find that in the facts of the present case, any reasonable or prudent individual will conclude that the defendants deliberately withheld such document, lest, it was found that the money was taken not as consideration money of the alleged agreement for sale but on different account. We, thus, find that there is no justification of interfering with the finding of the learned Trial Judge regarding existence of an agreement for sale at the price of Rs.50,000/-. We, however, find that the plaintiff himself having admitted that he received a sum of Rs.50,000/- from the defendants and he had not returned that amount till the passing of the judgment and decree, although he wanted to refund the same, it was the duty of the learned Trial Judge to pass direction for at least return of the said amount of Rs.50,000/- when a counterclaim was lodged in the suit itself. Mr. De, the learned Advocate appearing on behalf of the respondents, fairly concedes that his clients have no objection of returning the said amount even though the defendants have not filed any cross-objection against rejection of the counter-claim. Mr. Mr. De, the learned Advocate appearing on behalf of the respondents, fairly concedes that his clients have no objection of returning the said amount even though the defendants have not filed any cross-objection against rejection of the counter-claim. Mr. De, however, submits that as condition of stay during the pendency of this appeal, a Division Bench of this Court directed the appellants to deposit a sum of Rs.2,000/-every month with their own learned Advocate and after every six months, to deposit the same in a fixed deposit in a Nationalised Bank. Mr. De submits that although, according to law, his clients are entitled to such amount, his clients are ready to forego such amount if the appellants vacate the suit property immediately and such amount is more than Rs.50,000/- which his clients should return. In other words, Mr. De accepts the position that his clients will not claim the balance amount payable by the appellants towards occupation charge and the amount of Rs.50,000/-should be adjusted towards the entire amount lying in deposit. Mr. Banerjee appearing on behalf of the appellants submits that since his clients are staying in the property for 29 years, a reasonable time, at least by 31st December, 2010, should be granted for vacating the property. After taking into consideration such submission, we grant time to vacate the property by 31st December, 2010 provided the appellants give an undertaking before this Court within a fortnight that on or before 31st December, 2010, they will vacate and deliver peaceful possession of the suit property in favour of Mr. De’s clients. In default, the appellants will not be entitled to get back the amount of Rs.50,000/- and at the same time, will be liable to pay the mesne profit at the rate of 2,000/- as earlier granted by the Division Bench as a condition of stay during the pendency of the appeal till they are evicted by due process of law. If the property is vacated by 31st December, 2010, the learned Advocate for the appellants who is acting as receiver will encash the entire amount lying in deposit in the fixed deposit and will return the said amount by way of banker’s cheque to the appellants. In default, he will hold the amount by further order of this Court. The amount, however, will be deposited as usual till delivery of possession to the respondents. In default, he will hold the amount by further order of this Court. The amount, however, will be deposited as usual till delivery of possession to the respondents. We, thus, dispose of this appeal by affirming the decree for eviction with the above conditions imposed by us. I agree.