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2013 DIGILAW 683 (GAU)

Nurul Huda Laskar v. Tayajunnessa

2013-09-16

NISHITENDU CHAUDHURY

body2013
JUDGMENT Nishitendu Chaudhury, J. 1. This Second appeal has been preferred by the defendant against the concurrent findings of the learned courts below. The plaintiffs instituted Title suit No. 118 of 1994 claiming decree of specific performance stating that on 05.02.1994, the defendant and his mother executed a registered agreement in favour of the plaintiffs for sale of a plot of land measuring 2 Kathas 8 Chataks on consideration of Rs. 27,000/- and received a sum of Rs. 26,000/- at the time of execution of the agreement for sale. The mother of the defendant Mojarunnessa, who executed the document, died subsequently on 17.04.1994 after permission for sale was granted by the jurisdictional Deputy Commissioner. Thereafter, again, permission for sale was obtained on 13.06.1994 and 20.07.1994, but even thereafter the defendant was asked to execute sale deed by offering a balance sum of Rs. 1000/-, the defendant avoided. According to the plaintiff, being compelled under the aforesaid circumstances they had to pray for a decree from the Court for specific performance of the agreement for sale. It was pleaded that the plaintiffs were ready and willing to perform their part of the agreement. Appearing in the case, the sole defendant took a stand that the agreement for sale was never executed by him or by his mother. The defendant pleaded that some signed papers were handed over to the plaintiffs for the purpose of preparation of compromise petition in connection with a proceeding under Section 144 C.P.C. between the parties but the plaintiffs fraudulently converted the said signed papers into an agreement for sale and fraudulently got the same registered in the Court of Sub Registrar at Silchar. The defendants, therefore, prayed for dismissal of the suit. 2. On the basis of the aforesaid pleading of the parties the learned trial court framed as many as 6 issues. Issue Nos. 2 and 3 of the said issues are most relevant among all and they are quoted below:- "2. Did the defendant and his mother execute a registered bainapatra on 05.02.1994 to sell the suit land at a consideration price of Rs. 27,000/- and received a sum of Rs. 26,000/- as advance? 3. Did the defendant obtain sale permission dated 02.04.1994 to sell the suit land to the plaintiff?" 3. The plaintiff has examined as many as 3 witnesses including scribe and attesting witnesses of the aforesaid agreement dated 05.02.1994. 27,000/- and received a sum of Rs. 26,000/- as advance? 3. Did the defendant obtain sale permission dated 02.04.1994 to sell the suit land to the plaintiff?" 3. The plaintiff has examined as many as 3 witnesses including scribe and attesting witnesses of the aforesaid agreement dated 05.02.1994. The agreement for sale was proved in original as Exhibit-3. 4. The learned trial court after perusal of the materials on record found that the registered agreement dated 05.02.1994 for sale of the suit land was executed by the defendant and his mother in presence of the witnesses. The scribe of the document was examined as P.W. 2 and he stated unequivocally that having written the document in presence of the parties he read the same over to the executants, who having understood the same, gave their signatures on the document. P.W. 3, who is an attesting witness, proved that the document was signed by the executants in his presence. Thus, exhibit-3 was proved in original and in the process, it came to be proved that the defendant accepted Rs. 26,000/- from the plaintiffs as advance payment of consideration for sale of the suit land to the plaintiffs. It is also proved that the said document was signed in the office of the Sub-Registrar's Officer. The learned trial court found that since the document was prepared, executed and registered in the Sub-Registrar Office, the explanation of the defendants that the defendant intended to prepare a compromise petition to be filed in the Court of Executing Magistrate in the pending proceeding under Section 144 C.P.C., was out of question. The agreement for sale having been proved, the sole defence of the defendants that there was no agreement at all falls through. It is, on the basis of these findings, the learned trial court decreed the suit for specific performance of contract. 5. The defendant challenged the aforesaid decree before the learned District Judge, Cachar at Silchar in Title Appeal No. 3 of 2001. The learned Appellate Court upheld the judgment of the learned Trial Court and rather observed as follows: "Here in the instant suit I find that the defendant appellant has not taken any step to prove the contrary that the Sub-Registrar with certain motive allowed the registration of Ext. 3 fraudulently. The learned Appellate Court upheld the judgment of the learned Trial Court and rather observed as follows: "Here in the instant suit I find that the defendant appellant has not taken any step to prove the contrary that the Sub-Registrar with certain motive allowed the registration of Ext. 3 fraudulently. If this being the position and when it is before the Court that by examining the scribe and the attesting witness, the plaintiff respondent has proved the execution of the said bainanama, there is no alternative before the Court but to hold that the questioned bianama Ext. 3 was executed by the defendant-appellant and his deceased mother." 6. Having so observed, the learned Appellate Court dismissed the appeal on 14.02.2002. This Second Appeal is directed against the aforesaid concurrent finding of the learned Court below. 7. I have heard Ms. P. Chakraborty, learned counsel for appellant. None appears for the respondents. 8. This Court while admitting this appeal on 29.09.2003 framed the following substantial questions of law:- "1) Whether the suit for specific performance of contract is maintainable as there being no demand by the plaintiff upon the defendant to perform any specific contract prior to filing of the suit? 2) Whether the legality and/or very existence of the so called Binama Patra dated 05.02.1994 having been affirmed by the plaintiff and specifically denied by the defendant/appellant, whether the court below have acted in violation of the order 14 Rule 1 & 2 of the Code of Civil Procedure? 3) Whether the trial court judgment regarding the veracity of Binama Patra dated 05.02.1994 having been rendered without framing any issue to that effect? 4) Whether the suit for specific performance of contract is maintainable when the suit was filed before expiry of one year as contemplated under the said Binama Patra dated 05.02.1947?" 9. Ms. P. Chakraborty, learned counsel for the appellant submits that the agreement for sale having been made on 05.02.1994 and it being stated in the said agreement that the defendant would execute the sale deed within a period of 1 year from the date of execution of the agreement and the suit having been filed in the month of November 1994 itself, the learned Courts below ought to have dismissed the suit as premature. This submission of the learned counsel does not appear to be based on any of the pleading on records. This submission of the learned counsel does not appear to be based on any of the pleading on records. It was the case of the defendants that the agreement for sale was non-existent and fraudulent one and that the defendants and his mother really handed over the signed document for the purpose of preparation of a compromise petition only in the pending proceeding under Section 144 Cr.P.C. and that they had neither accepted any money nor did they execute any agreement for sale of the land in question. Having taken such a specific stand once, the defendants failed to establish the same and moreover the plaintiff specifically pleaded that despite being tendered with balance sum of Rs. 1000/-, the defendants did not execute the sale deed as earlier assured. The defendant is not at liberty at this stage to take a defence that the suit was a premature one. The defendant did not admit the document. Situated thus, the defendants stated that the suit is premature and is not maintainable being a new fact in second appeal the same cannot be entertained and the same substantial question No. 1 does not arise in the case in hand. Substantial question Nos. 2 and 3 are directed as alleged failure of the learned Courts below to frame a specific issue of the veracity of the agreement dated 05.02.1994 for sale. Issue No. 2 quoted above shows that the learned Courts below by framing the said issue put the parties to the question as to whether the agreement for sale was executed on 05.02.1994. Both the parties led evidence knowing that the veracity of the agreement for sale is the moot question to be answered in the suit for specific performance of contract. The defendant denied to have executed of the bainapatra while the plaintiff not only produced the document but also proved the execution thereof. The parties having laid evidence on such central issue, the objection raised in the second appeal that a proper issue has not been raised as to veracity of the bainapatra does not arise and as such these substantial questions of law also cannot be held to have arisen from the materials on record. 10. Thus, there is no substantial question of law involved in the second appeal. Rather the essential facts for passing of a decree of specific performance of contract are duly proved. 10. Thus, there is no substantial question of law involved in the second appeal. Rather the essential facts for passing of a decree of specific performance of contract are duly proved. The defendant and his mother executed an agreement for sale on 05.02.1994 accepting a sum of Rs. 26,000/- as advance against the total consideration of Rs. 27,000/- in all for sale of the suit land. In all these years the defendant has not executed the sale deed and as such the concurrent findings by the learned courts below that the defence is bound to execute the sale deed in favour of the plaintiffs cannot be interfered with. The second appeal, therefore, has no merit and the same is accordingly dismissed. No order as to cost.