Research › Search › Judgment

Gauhati High Court · body

2014 DIGILAW 428 (GAU)

RANGAPADA PAUL v. MAN SINGHA GOUR

2014-04-09

A.M.SAPRE

body2014
JUDGMENT AND ORDER This is a second appeal filed by the plaintiff under Section 100 of the Code of Civil Procedure against the judgment and decree dated 4.3.2004 passed by District Judge, Karimganj in Title Appeal No.5 of 2002 which in turn arise out of judgment/decree dated 31.5.2002 passed by Civil Judge (Sr. Division) Karimganj in Title Suit No.33 of 1999. By impugned judgment/decree the first appellate court dismissed the plaintiff’s appeal and confirmed the judgment/decree of the trial court which had dismissed plaintiff’s suit for declaration of his title over the suit land and also for grant of decree for specific performance against the defendant in relation to the suit land and other consequential reliefs. This second appeal was admitted for final hearing on following substantial question of law. “Whether the Exhibit -1 confers right, title and interest on the plaintiff/appellant, the earlier sale (Exhibit -2) dated 28.02.1997 being conditional and the defendant No.2 having accepted the amount from the defendant No.1.” After perusing the record of the case and hearing the submission of learned counsel for the parties and lastly having regard to the nature of controversy involved in the suit, coupled with my powers conferred under Section 100 (5), I have formed an opinion to frame one more additional substantial question of law for proper disposal of this second appeal. In my view, firstly: the additional substantial question of law, which I consider it proper to frame does arise out of the case, secondly: both the courts having returned the finding in appellant’s favour and yet not granting him the reliefs, the question can always be framed in such eventuality, thirdly: it is a substantial question of law and hence satisfies the requirements of section 100 and lastly in order to do substantial justice between the parties and to shorten the litigation by avoiding another round of litigation, the additional question of law deserves to be framed as rightly urged by the counsel for the appellant. The following additional substantial question of law is accordingly framed for its answer: “(2) Having returned the concurrent finding in plaintiff’s favour that he paid Rs. The following additional substantial question of law is accordingly framed for its answer: “(2) Having returned the concurrent finding in plaintiff’s favour that he paid Rs. 40,000 to the defendant no.1 pursuant to agreement (2.4.1998) towards entire sale consideration for purchase of the suit land, and further that no sale deed could be executed in plaintiff’s favour by the defendant no 1 because he had already sold the suit land to the defendant no 2, whether two courts below were justified in not passing a money decree for Rs. 40,000 in plaintiff’s favour and against the defendant no 1 ?” In order to appreciate the factual /legal controversy involved in the case, few facts need mention in brief. The defendant no. 1 (respondent no. 1) was the owner of the suit land. He sold the suit land to defendant no. 2 (respondent no. 2) on 28.2.97 for Rs. 16,000. However, on the same day - 28.2.1997, the defendant no 2 entered into an agreement with the defendant no. 1 to reconvey the suit land to him. The defendant no. 1 however did not take any steps to enforce the said agreement for getting the suit land reconveyed to him. The defendant no. 2 therefore continued to remain the owner of the suit land. However, on 2.4.1998, the defendant no.1 entered into an agreement with the plaintiff to sell the suit land to the plaintiff for Rs. 40,000 and pursuant thereto also received Rs. 11,000, Rs. 16,000, Rs. 6,000 and Rs, 7,000 (total Rs. 40,000) towards its sale consideration from the plaintiff on different dates. Since despite receipt of Rs, 40,000, the defendant no. 1 failed to execute the sale deed in plaintiff’s favour and hence the petitioner filed a suit out of which this second appeal arises against the defendant no. 1 (respondent no.1) as its erstwhile owner and defendant no. 2 (respondent no 2 ) as its present owner and claimed the reliefs that he (plaintiff )is the owner of the suit land and in the alternative a direction to the defendant no. 1 to register/execute the sale deed in plaintiff’s favour and lastly any other relief in the interest of justice on facts and circumstances of the case may permit. The defendant no. 1 and 2 contested the suit by filing the written statements. 1 to register/execute the sale deed in plaintiff’s favour and lastly any other relief in the interest of justice on facts and circumstances of the case may permit. The defendant no. 1 and 2 contested the suit by filing the written statements. In substance, their case was that on 2.4.1998 when the defendant no 1 entered into an agreement with the plaintiff to sell the suit land, he (defendant no. 1 ) had no saleable right because, he had already sold the suit land to defendant no. 2, It was thus contended that plaintiff had no right to claim any declaration of ownership rights over the suit land on the strength of agreement dated 2.4.98 and nor has any right to get the sale deed executed in his favour from defendant no 1 for want of any subsisting right, title and interest in the suit property left with defendant no.1. The agreement dated 2.4.1998 was thus a void agreement. Parties adduced evidence. The trial court dismissed the suit by judgment/decree dated 31.5.2002. It was however held that plaintiff paid Rs. 40,000 to the defendant no 1 for purchase of the suit land on different dates. It was also held that defendant no 1 had no right to sell the land to the plaintiff because he had already sold it to defendant no 2 for Rs.16, 000 prior to the date of agreement and lastly it was held that neither the agreement dt 2.4.1998 and nor any sale deed, if executed by defendant no 1 in plaintiff’s favour pursuant to such agreement conveyed any right, title and interest in plaintiff’s favour and hence both were void and inoperative in law. This is what was held by the trial court on the issues- “In the whole lot of transaction the plaintiff though paid money to defendant Nos.1 and 2 failed to obtain right and title over the suit land. From the evidence of the plaintiff himself and from the documents exhibited by him and his witnesses it is clear that the suit land is still in the name of defendant No.2 and as defendant No.1 had no right, title and interest over the suit land of the date of execution of Ext.1, the very agreement (Ext.1) becomes void. The plaintiff may, however, proceed against the defendants for recovering the money paid by him if so advised. The plaintiff may, however, proceed against the defendants for recovering the money paid by him if so advised. The issues are decided accordingly against the plaintiff.” The plaintiff felt aggrieved of the judgment/decree of the trial court filed first appeal before the appellate court. So far as the defendant no 1 was concerned, he did not file any cross objection against the finding on payment of Rs. 40,000 by the plaintiff to the defendant no 1 and hence they attained finality. By impugned judgment/decree, the first appellate court dismissed the plaintiff’s appeal and affirmed the judgment/decree of the trial court. It is against this judgment/decree; the plaintiff felt aggrieved and filed the second appeal under Section 100 ibid. As mentioned above, the appeal was admitted for final hearing on one substantial question of law and later by framing one additional question law. Having heard the learned counsel for the parties and on perusal of the record of the case, I am inclined to answer the question no. 1 against the appellant (plaintiff) whereas additional question no. 2 is answered in appellant’s favour and against the defendant no 1. Coming to the question no. 1, in my considered opinion, the same has to be answered against the appellant for more than one reason. In the first place, two court held and indeed rightly that since defendant no. 1 (respondent no. 1) was not the owner of the suit land on the date of agreement (2.4.1998) and hence he had no saleable right to transfer the suit land to the plaintiff. Secondly, once it was held and again rightly that defendant no. 1 had already sold the suit land to the defendant no. 2 (respondent no. 2 ) for Rs. 16,000, the defendant no. 1 had ceased to be the owner of the suit land. Thirdly: it was not the case of the appellant (plaintiff) that he had also entered into an agreement to purchase the suit land with defendant no. 2 along with defendant no. 1 and hence the agreement could be enforced against the defendant no. 2 also. 16,000, the defendant no. 1 had ceased to be the owner of the suit land. Thirdly: it was not the case of the appellant (plaintiff) that he had also entered into an agreement to purchase the suit land with defendant no. 2 along with defendant no. 1 and hence the agreement could be enforced against the defendant no. 2 also. Had this been the case of the plaintiff then perhaps plaintiff would have had some case to urge against the defendants and lastly plaintiff was not able to show as to on what basis the defendant no 1 had any subsisting right, title and interest in the suit land which he was capable to transfer for consideration to the plaintiff. It is a well settled principal of law that a person cannot confer better title to any other person than what he himself does not possess. In other words, he can only transfer those rights, which he was having in the property to other person. As a corollary, if he has no salable right in the suit land and yet he purports to transfer it - a fortiori, the purchaser would not get any right in the property from such person. Equally well settled principal of law is that in order to transfer any rights of ownership in relation to any immoveable property, it is necessary that he must be the owner of such property on the date of sale. An owner once sells the property for consideration to his purchaser cannot then sell the same property to other person. Such subsequent sale is illegal. That apart, any transaction/agreement between defendant No.1 and 2 in relation to reconvey the suit land was of no use and nor it created any right in plaintiff’s favour. It was for the reason that firstly plaintiff was not party to any agreement with defendant No.2, secondly there was no tripartite agreement between plaintiff and defendants and lastly so long as the property was not reconveyed by defendant No.2 in favour of defendant No.1, the defendant No.2 continued to be its owner. It was for the reason that firstly plaintiff was not party to any agreement with defendant No.2, secondly there was no tripartite agreement between plaintiff and defendants and lastly so long as the property was not reconveyed by defendant No.2 in favour of defendant No.1, the defendant No.2 continued to be its owner. In the light of aforementioned discussion, I am of the considered opinion that both the courts below were justified in coming to a conclusion that since the defendant no 1 was not the owner of the suit land on the date of agreement on 2.4.1998, the agreement dated 2.4.98 executed by defendant No 1 in plaintiff’s favour could not have been used for transfer of land by the defendant no 1 to any one much less to plaintiff. The aforesaid finding of two courts below being concurrent in nature is binding on second appellate court. Even otherwise it is not liable to be interfered with because it is based on proper principal of law. The question no.1 is accordingly answered against the appellant. This takes me to the next question no 2. In my considered view, this question has to be answered in appellant’s favour for more than one reason. In the first place, since both the courts held in appellant’s favour that he had paid a total sum of Rs. 40,000 to the defendant no 1 for purchase of the suit land and secondly the transaction of sale failed because the defendant no. 1 had no title in the suit land, the plaintiff was entitled to get back his money (sale consideration) from the defendant no.1. It was in my opinion a clear case where the agreement between the plaintiff and defendant no. 1 failed because despite receiving the sale consideration from the plaintiff, the defendant no. 1 was not in a position to perform his part of the contract to transfer the suit land to the plaintiff. In other words, in terms of agreement, the plaintiff was to pay Rs. 40,000 to the defendant no. 1 and in turn the defendant no. 1 was to transfer his title in the suit land to the plaintiff. The plaintiff performed his part of contract by paying Rs. 40,000 to the defendant no. 1 but defendant no. 1 even after accepting Rs. 40,000 failed to convey the valid title to plaintiff. 40,000 to the defendant no. 1 and in turn the defendant no. 1 was to transfer his title in the suit land to the plaintiff. The plaintiff performed his part of contract by paying Rs. 40,000 to the defendant no. 1 but defendant no. 1 even after accepting Rs. 40,000 failed to convey the valid title to plaintiff. In such a situation, the defendant no 1 had no right to retain Rs. 40,000 because contract failed so far as defendant no 1 was concerned. Indeed, it is the basic principal of law of contract that if one party to the contract fails to perform his part of the contract and yet receives the benefit from the other contracting party; he has no right to retain such benefit which he received and has to return to the party from whom he had received. In my considered opinion, therefore, once it was held that defendant no. 1 was not the owner of the suit land, he had no right to receive Rs. 40,000 towards sale consideration from the plaintiff and nor he had any right to retain the said money. True it is that the plaintiff in the plaint did not ask for the relief of refund of money paid by him to the defendant no 1 specifically yet in my opinion the fact that there is already a concurrent finding of fact to the effect that he paid the same to the defendant no. 1 a relief of refund of consideration is capable of being granted to the plaintiff by taking recourse to the provisions of order 7 rule 7 ibid for doing substantial justice to the parties on principle of law of equality and fair play and with a view to shorten the litigation. The plaintiff has already paid court fees on the requisite amount on this relief. Moreover, parties were heard on this issue and I was not able to notice any jurisdictional error in declining to grant this relief except to some extent the rigour of Section 22 of the Specific Relief Act operating against the appellant. In the facts and circumstances of the case and keeping in view the findings of the two courts below, and lastly applying the principle of equality and fair play, I find that bar of section 22 should not come in plaintiff’s way being more in the nature of enabling provision. In the facts and circumstances of the case and keeping in view the findings of the two courts below, and lastly applying the principle of equality and fair play, I find that bar of section 22 should not come in plaintiff’s way being more in the nature of enabling provision. In the light of foregoing discussion, I answer the question no. 2 in appellant’s favour and against the defendant no.2 (respondent no. 2) As a result, the appeal succeeds and is allowed in part. The impugned judgment /decree is modified to the extent that suit is decreed in part against the defendant No.1 (respondent No.1) and money decree for refund of Rs. 40,000 is accordingly passed in plaintiff’s (appellant’s) favour and against the defendant no. 1 (respondent no. 1) with simple interest payable at the rate of 6 % from the date of suit till realization with cost throughout.