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2010 DIGILAW 897 (CAL)

Nalini Maji v. Mritunjoy Adhikary

2010-07-30

SYAMAL KANTI CHAKRABARTI

body2010
Judgment : Syamal Kanti Chakrabarti, J.: 1. The present appeal is directed against the judgement and decree dated 17th December, 1988 passed by the Learned Additional District Judge, 2nd Court, Howrah in Title Appeal No. 5 of 1987 affirming the judgement and decree dated 28th November, 1986 passed by the Learned Assistant District Judge, 2nd Court, Howrah in Title Suit No. 37 of 1985. 2. The appellant, defendant no. 2 Smt. Nalini Maji has contended that the defendant in Title Suit No. 37 of 1985 agreed to sell the disputed plot of land measuring 3 cottahs to the plaintiff Mritunjoy Adhikary and received earnest money on different dates amounting to a total sum of Rs. 8,800/- out of total consideration of Rs. 21,600/-and issued receipt for self and his mother defendant no. 2 acknowledging such receipt. Though the plaintiff is now willing and ready to pay the balance amount of consideration and perform his part of contract the defendants are not receiving the balance amount and executing any sale deed in his favour. The defendant no. 1 contested the suit and claimed that his mother defendant no. 2 is the actual owner of the land and as such he cannot make any such contract for sale of the suit property on behalf of the real owner, i.e., his mother but he has admitted that he has received an amount of Rs. 8,800/-from the plaintiff in connection with the marriage ceremony of his daughter as loan. He has also claimed that the value of the suit property at the relevant time was much more than the so called consideration of Rs. 21,600/-. After considering the evidence adduced by the parties Learned Trial Court on 28.11.1986 decreed the suit on contest against the defendant and directed the plaintiff to deposit a sum of Rs. 12,800/- in the name of defendant no. 2, i.e., the actual owner of the suit property by 21.01.1987. It was further directed that on such deposit being made the defendant no. 2 will execute a Kobala by 31.01.1987 in favour of the plaintiff in respect of the suit property described in the schedule to the plaint in default the Court shall execute the Kobala on behalf of the defendant no. 2 and in that event the defendant no. 2 will be allowed to withdraw the amount after execution and registration of the Kobala. 3. 2 and in that event the defendant no. 2 will be allowed to withdraw the amount after execution and registration of the Kobala. 3. Being aggrieved by and dissatisfied with such order the defendant no. 2 preferred an appeal which was registered as Title Appeal No. 5 of 1987 and disposed of by the Learned Additional District Judge, 2nd Court, Howrah on 17.12.1988. While considering the appeal the Learned First Appellate Court found that though the son, i.e., the defendant no. 1 was denying receipt of any earnest money for sale of the disputed property on behalf of his mother and execution of the agreement for sale (exhibit 2), his mother who was examined as DW 1 has admitted the liability. She has clearly stated that her son defendant no. 1 did all works relating to her property with her consent and she admitted that her son received earnest money of Rs. 5,600/- from the plaintiff with her consent. So the Learned First Appellate Court held that the defendant no. 1 son of the defendant no. 2 who happens to be the real owner acted all transactions as an agent of his mother and as such the agreement as in exhibit 2 is binding upon both the mother and the son. Therefore, the Learned First Appellate Court dismissed the appeal on contest in favour of the contesting plaintiff/ respondent no. 1 and affirmed the judgement and decree of the Learned Trial Court. 4. Being aggrieved by and dissatisfied with such judgement and decree dated 17th December, 1988 passed by the Learned First Appellate Court the instant Second Appeal has been preferred on behalf of the original defendant no. 2 agitating on the same points. 5. In course of argument the learned lawyer for the respondent has informed that the decree in question has already been satisfied by executing the sale deed by the court concerned on 18th April, 1989 and therefore, there is no scope for preferring any Second Appeal after execution of the decree. Suppressing this fact the instant Second Appeal was filed on 27th April, 1989 and stay of operating of the judgement and decree of the Learned First Appellate Court was obtained on 26.06.1996 having no legal effect whatsoever. Suppressing this fact the instant Second Appeal was filed on 27th April, 1989 and stay of operating of the judgement and decree of the Learned First Appellate Court was obtained on 26.06.1996 having no legal effect whatsoever. He has also argued that since the Learned Trial Court and the Learned First Appellate Court have held concurrent findings of fact over the issues framed by Learned Trial Court the same cannot be agitated in the Second Appeal and the Hon’ble High Court is not entitled to reopen the issues of facts only without any substantial question of law. He has relied upon the principles laid down in AIR 1999 SC 2213 , AIR 1978 Cal 104 , AIR 1981 SC 2235 , AIR 1998 SC 3021 , AIR 1999 SC 2213 and IR 1999 SC 1104 in support of his contention. 6. From the affidavit-in-opposition filed by the plaintiff/ opposite party no. 1 against prayer for interim injunction it appears from paragraph no. 8 that he has categorically informed the fact of execution of the decree in the following terms: “8. I state and submit that on 11.4.1989 the Learned Assistant District Judge 2nd Court Howrah executed a sale deed and also registered at Additional District Sub-Registrar Howrah being Book No. 1 Deed No. 1447 for the year 1989.” Since there is no denial of this averment it appears to be admitted by the appellant herein and as such I fully subscribe to the views rendered by the learned lawyer for the respondent that at present there is no scope for entertaining the Second Appeal. Remedy of the appellant at present lies at his option under Section 144 of the Civil Procedure Code. 7. So far as merit of the appeal is concerned it is contended by the learned lawyer for the respondent that the same is not maintainable in law since no substantial question of law has been framed by the Hon’ble Court while admitting the appeal. He has drawn my attention to the principles laid down in AIR 1999 SC 2213 in support of his contention. It has been set at rest in the said case by the Hon’ble Apex Court as follows: “The right of appeal is neither a natural nor an inherent right attached to the litigation. Being a substantive statutory right, it has to be regulated in accordance with law in force at the relevant time. It has been set at rest in the said case by the Hon’ble Apex Court as follows: “The right of appeal is neither a natural nor an inherent right attached to the litigation. Being a substantive statutory right, it has to be regulated in accordance with law in force at the relevant time. The conditions mentioned n the Section must be strictly fulfilled before a second appeal can be maintained and no Court has the power to add to or enlarge those grounds. The second appeal cannot be decided on merely equitable grounds. The concurrent findings of facts howsoever erroneous cannot be disturbed by the High Court in exercise of the powers under this Section. The substantial question of law has to be distinguished from a substantial question of fact.” Learned lawyer for the appellant has opposed the move and contended that in the instant case the alleged transaction between the original plaintiff and son of the actual owner of the property constitutes breach of Section 17 of the Specific Relief Act and this the substantial question of law is to be decided in this case. 8. From the impugned judgement of the Learned First Appellate Court it will appear that he has already relied upon the testimony of DW 2 Smt. Nalini Maji who had admitted that she engaged her son, defendant no. 1 Bipad Bhanjan Maji to deal with the disputed property and to receive earnest money for sale of the disputed property. Therefore, the Learned First Appellate Court has affirmed the judgement and decree of the Learned Trial Court. 9. In this connection we may refer to the provision laid down in Section 226 of the Indian Contract Act, 1872 which runs as follows: “Effect of agency on contracts with third persons 226. Enforcement and consequences of agent’s contracts.– Contracts entered into through an agent, and obligations arising from acts done by an agent, may be enforced in the same manner, and will have the same legal consequences as if the contracts had been entered into the acts done by the principal in person. ” 10. From exhibit 1 series, i.e., rent receipts filed by the plaintiff, the Learned First Appellate Court accepted the plea that the defendant no. 1 acted in course of the said transactions as an agent of his mother, defendant no. ” 10. From exhibit 1 series, i.e., rent receipts filed by the plaintiff, the Learned First Appellate Court accepted the plea that the defendant no. 1 acted in course of the said transactions as an agent of his mother, defendant no. 2 in realising rent from the plaintiff who happens to be a tenant of the holding in question. Therefore, when the son is acting as an agent of his mother and entered into an agreement with the plaintiff for sale of the disputed property on behalf of his mother such transaction cannot be treated as invalid and shall come within the purview of Section 226 of the Indian Contract Act, 1872. 11. From the argument advanced by the learned lawyer for the appellants it appears to me that the learned lawyer has tried to consider the evidentiary value of the documents exhibited in this case and testimony of DW 2, i.e., original defendant no. 2 and owner of the property in the light of the provisions of Section 17 of the Specific Relief Act. But this is in fact an attempt to reassess the concurrent findings of facts based on evidence. In AIR 1978 Cal 104 it has been held inter alia, that findings arrived at concurrently by the two Courts below on appreciation of the evidence on record cannot be interfered with in Second Appeal. 12. Learned Lawyer for the respondent has also contended that no issue was raised before the Learned Trial Court or before the Learned First Appellate Court regarding violation of Section 17 of the Specific Relief Act in the instant case and as such it cannot be pressed at this stage. In AIR 1998 SC 3021 it has been set at rest that in Second Appeal under Section 100 of the Civil Procedure Code the High Court has no jurisdiction to give a finding on an issue which was not present in the Trial Court. So far as the findings of a new contract is concerned, there was also no issue before the Learned Courts below. Accordingly the plea as to novation of contract cannot be raised for the first time in Second Appeal. In AIR 1981 SC 2235 also the same principle is echoed while the Hon’ble Apex Court has held that the concurrent findings of facts are not normally set aside by Second Appellate Court. Accordingly the plea as to novation of contract cannot be raised for the first time in Second Appeal. In AIR 1981 SC 2235 also the same principle is echoed while the Hon’ble Apex Court has held that the concurrent findings of facts are not normally set aside by Second Appellate Court. In AIR 1999 SC 1104 the Hon’ble Apex Court has also held that the High Court while dealing with Second Appeal under Section 100 CPC erred in not framing a substantial question of law and that it also erred in interfering with a pure question of fact relating to the genuineness of the agreement which is not permissible in law. 13. It also appears that the instant Second Appeal was filed on 14.02.1989 and leave was granted on 27.04.1989 with the observation that appeal will be heard only on ground nos. 6, 8, 10, 13 and the added ground which constituted substantial question of law. The said grounds are as follows: “VI. For that upon the evidence on record the Plaintiff himself has admitted that he asked for the relevant documents in respect of disputed land for sale and the defendant/ respondent No. 2 herein has said that the said documents would be shown to him at the time of his daughters marriage and it was further in evidence that the defendant/ respondent No. 2 herein took loan from the Plaintiff for his daughters marriage but upon his insistence he called the money receipt as an agreement for sale though he had/ has no right title and interest over the disputed land and that the learned Courts below acted illegally in ignoring those evidence and to hold that the Appellant is bound by the said alleged Agreement for Sale. VIII. For that the impugned judgments and decrees of the Learned Courts below are against all evidence on records and the conclusions drawn from the said evidence are but perverse and arbitrary and as such the same ought to be set aside. X. For that upon specific evidence of the Plaintiff that he was not aware of the owner of the proposed sale land nevertheless he entered into an Agreement for Sale with a person who according to him is not the owner of the land and ever on that evidence the learned Courts below held that the said agreement for sale is binding upon her. XIII. XIII. For that the learned Courts below erred in law in holding that the agreement for sale though not signed by the appellant nor she received personally any consideration money but she has ratified the conduct of the defendant No. 1/ respondent No. 2 herein as she said in her deposition that she knew that her son received the earnest with her consent but the question itself has not been recorded and as such the said finding of the Courts below caused total failure of justice and the same ought to be set aside.” 14. On the background of the aforesaid discussion it appears to me that the appellant is bound by the agreement and the findings of the Learned Court below is neither perverse nor arbitrary. The owner admitting the agreement for sale and receipt of earnest money has in fact, disproved the contention of his son and once the sale deed has been executed through Court in pursuance of such agreement no relief can be granted in this appeal. 15. Therefore, I hold that there is no merit in this appeal which has been filed only to harass the respondents and as such the same is dismissed with cost of Rs. 3,400/-payable to the contesting respondents. Interim order granted earlier stands vacated. 16. LCR be returned at once together with copies of this judgment. 17. Urgent certified Photostat copies of this order, if applied for, shall be given to the parties subject to compliance of all requisite formalities.