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2010 DIGILAW 832 (GAU)

Mahibuddin Laskar v. Abdul Matin Laskar

2010-11-04

H.N.SARMA

body2010
JUDGMENT H.N. Sarma, J. 1. This second appeal is directed against the judgment and decree passed in Title Appeal No. 17/98 by the learned Civil Judge, Sr. Division, Cachar at Silchar thereby allowing the appeal against the judgment and decree passed in Title Suit No. 70/95 by the learned Civil Judge, Jr. Division, Cachar, Silchar decreeing the suit in favour of the plaintiff. 2. I have heard Mr. HRA Choudhury, learned Sr. Counsel assisted by Mr. FU Borbhuiyan, learned Counsel appearing for the appellant. None appears for the defendants/respondents when the matter was called upon for hearing. 3. The plaintiff/respondent instituted the Title Suit No. 70/95 in the court of the then Sadar Munsiff No. 1, Silchar, Cachar impleading the present respondent as the sole defendant. The pleaded case of the plaintiff/respondent is that on 15.5.75 the plaintiff No.1 and his brother late Jamiruddin Laskar transferred the suit land in favour of the defendant for valuable consideration of Rs. 5,000/-by executing a registered sale deed. On the same day just after execution of the sale deed, the defendant also executed an agreement promising to reconvey the suit land in favour of the plaintiff if the plaintiffs pay back the consideration money of Rs. 5,000/- within the stipulated period mentioned in the agreement. Although the plaintiff offered the said consideration money of Rs. 5,000/- to the defendant, the defendant did not accept the same nor executed any deed of reconveyance in terms of the agreement. Finding no alternative, the plaintiff filed the suit praying for decree directing the defendant to accept a sum of Rs. 5,000/- from the plaintiff and reconvey the suit land by executing a registered deed of reconveyance and deliver the possession to which the plaintiff is entitled as per the agreement. 4. The suit was resisted by the defendant by filing written statement. Apart from the usual plea of want of cause of action including the bar of limitation, the defendant also raised the plea that right of the plaintiff has been extinguished long before filing of the suit. The defendant also did not also admit the allegation of promise made by him to reconvey the suit land. Apart from the usual plea of want of cause of action including the bar of limitation, the defendant also raised the plea that right of the plaintiff has been extinguished long before filing of the suit. The defendant also did not also admit the allegation of promise made by him to reconvey the suit land. Further plea of the defendant in the written statement is that on 2.3.79 the plaintiff executed a written document by which his right to get the suit land back on repayment of the consideration money has been relinquished and accordingly it is claimed that the plaintiff is not entitled to get decree as prayed for and the suit is liable to be dismissed. It is the specific case of the defendant that the suit not having been filed within 15 years from the date of execution of the agreement, the same is barred by limitation in terms of the condition laid down in the agreement itself. On the basis of the pleadings, the learned trial court framed the following issues : 1. Whether there is any cause of action for the suit? 2. Whether the suit is barred by the law of limitation ? 3. Whether the suit of the plaintiff is barred by the principles of estoppel, waiver and acquiescence ? 4. Whether the suit is bad for non joinder of necessary parties? 5. Whether the plaintiffs had perform their part of contract for tendering consideration money in terms of ekrarnama dated 15.5.75 to execute reconveyance ? 6. Whether the plaintiffs are entitled to a decree as claimed? 7. To what other relief/reliefs the parties are entitled ? 5. During the course of trial the plaintiff examined as many as two witnesses and the defendant examined three witnesses. Both the parties exhibited certain documents in support of their respective case including the agreement dated 15.5.75vide Exbt.1, the registered sale deed No. 5589as Exbt. 'A', and the agreement dated 2.3.79 as Exbt. 'B'. At the conclusion of the trial the learned trial court decreed the suit in favour of the plaintiff vide judgment and order dated 22.4.98 which was carried into a Title Appeal No. 17/98 before the learned Civil Judge, Sr. Division, Cachar at Silchar. The learned appellate court upon hearing the parties and considering the materials on record reversed the judgment and decree passed by the learned Sadar Munisff and dismissed the suit. Division, Cachar at Silchar. The learned appellate court upon hearing the parties and considering the materials on record reversed the judgment and decree passed by the learned Sadar Munisff and dismissed the suit. Hence this appeal. 6. The appeal was admitted to be heard on the following substantial question of law : i. Whether the learned lower appellate court is right and correct in holding that the suit is barred by limitation ? ii. Whether the learned Lower appellate court was right and correct in holding that the Ext. B, an unregistered deed relating to immovable property of more than Rs. 100/- confers right and title over the land in question ? 7. In respect of the 1st substantial question of law so framed in the appeal, Mr. Choudhury, referring to the impugned judgment rendered by the first appellate court submits that bare perusal of the Exbt. 1 would disclose that the defendant was entitled to enjoy the suit property for a period of 5(five) years and thereafter within 15 years in the event the plaintiff returns the consideration money of Rs. 5,000/- the defendants would be required to re-transfer the suit land in favour of the plaintiff by executing a reconveyance deed and to that effect the learned trial court has arrived at a correct finding. It is contended by Mr. Choudhury that the learned 1stappellate court committed grave illegality in reversing the finding of the learned trial court in this regard holding that as per Exbt.1, the plaintiff appellant was required to return the suit land within a period of 15 years from the date of agreement. 8. Submission of the learned Counsel led may to go through the relevant portion of the Exbt.1. In the Exbt.1 it is specifically provided that after enjoyment of the suit property for five years from the date of execution of the agreement, and within a period of 15 years in the event the plaintiffs refusal the consideration money of Rs. 5,000/- to the defendant/purchaser, the suit land would be returned to the plaintiff by executing a deed. In therefore said agreement the outer limit provided is 15 years within which the plaintiff would return the consideration money to the defendant and the inner limit is 5 years for which the defendant would be entitled to enjoy the suit property. Thus, the intention of the parties as appears from Exbt. In therefore said agreement the outer limit provided is 15 years within which the plaintiff would return the consideration money to the defendant and the inner limit is 5 years for which the defendant would be entitled to enjoy the suit property. Thus, the intention of the parties as appears from Exbt. 1 is clear and specific to the effect that the plaintiff would be entitled to get the suit land reconveyed on refund of the consideration money within 15 years from the date of agreement, whereas the suit in question has been filed on 8.5.75 and is much beyond the prescribed period of 15 years. Consequently, the learned 1st appellate court has rightly reversed the finding on Issue No. 3 arrived at by the learned trial court holding that the suit was barred by the period fixed as per agreement vide Exbt.1. Accordingly, the 1st substantial question of law so framed in the suit is answered in affirmative and against the appellant. 9. The basic claim of the plaintiff in the suit rests on the agreement, Exbt.1. Exbt. 1 was executed on the same day i.e., 15.5.75 on which date the plaintiff sold the suit land to the defendant by executing a registered sale deed for valuable consideration of Rs. 5,000/-. In the recital of the sale deed, Exbt. 'A' nothing has been mentioned about the reconveyance or retransfer of the property in the event of refund of the consideration money of Rs. 5,000/- within the stipulated period of 15 years by the vendors. Such right was reserved by executing a separate agreement as Exbt.1. Perusal of the recitals in the Exbt. 1 disclose that it has got the definite reference to the sale deed and it pertains to the property which was conveyed by the sale deed, Ext. 'A'. The transaction that was completed by the Exbt. 'A' is out and out a sale transaction within the meaning of Section 54of the transfer of property Act. No condition was incorporated in the sale deed relating to the transfer of the suit property and the transfer was not a conditional one nor it is a case of mortgage by way of conditional sale as defined under Section 58(c) of he Transfer of Property Act. No condition was incorporated in the sale deed relating to the transfer of the suit property and the transfer was not a conditional one nor it is a case of mortgage by way of conditional sale as defined under Section 58(c) of he Transfer of Property Act. The claim for re-transfer of the transferred property by the transferee in the event of payment of the consideration money is not permissible in case when sale transaction is absolute as in the present cases. Sale is a transfer of ownership in exchange for a price in terms of Section 54 of the Transfer of Property Act. The agreement made vide Exbt. 1 itself appears to be repugnant to the interest created by the sale of the suit land made in favour of the defendant. That being the position, the plaintiff is not entitled to raise its claim on the basis of the condition mentioned in the agreement Vide Exbt.1 and the same being repugnant to the principle contained in Section 11 of the Transfer of Property Act. 10. It is submitted by Mr. Choudhury that the aforesaid plea has not been raised in the written statement nor any issue has been raised to that effect. In order to claim the suit property back, the plaintiff must show and establish that he has the valid and legally sustainable right before taking such a plea and the agreement is in consonance with law, which is not found in the instant case. On the basis of the Exbt.1, the plaintiff is not entitled to claim or reconveyance the suit property upon refund of the consideration money to the defendant/vendor which was sold in absolute terms to the defendant. Nor it is the case of the plaintiff that the Exbt. 'A' is not a sale deed of the type of conditional sale as defined under Section 58(c) of the Transfer of Property Act. 11. In view of the above discussion, the second substantial question of law is not required to be dealt with. 12. In view of the above discussion, I do not find any merit in this second appeal and the same stands dismissed. Transmit the LCR forthwith. Appeal dismissed.