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2014 DIGILAW 801 (JHR)

Jai Prakash Mahto v. Vidhan Lakhiyar

2014-07-30

D.N.UPADHYAY

body2014
Judgment D.N. Upadhyay, J This appeal has been preferred against the Judgment dated 16.01.2012, passed by Sub Judge-II, Ranchi and Decree signed on 03.02.2012, in connection with Title Suit No. 220 of 2010 whereby the suit filed by the plaintiff/respondent for specific performance of agreement dated 30.08.2007 has been decreed and the appellant/defendant has been directed to execute and register Sale Deed in favour of the plaintiff/respondent with respect to suit land after taking balance consideration within sixty days from the date of preparation of the decree and the plaintiff will bear all the expenses incurred in the execution and registration of Sale Deed. 2. The plaintiff has made out case in the plaint that land recorded under R.S. Khata No. 308, Plot No. 540, area measuring 1.92 Acres, Village – Pundag, P.S. – Ranchi (Now Jagarnathpur), District – Ranchi is the ancestral property of defendant and other co-sharers. The aforesaid land was recorded in the name of Langra Teli who died leaving behind two sons namely Jeetbahan Teli and Inder Teli as his legal heirs and successors who inherited the property after death of Langra Teli. Thereafter, the two brothers Jeetbahan Teli and Inder Teli amicably partitioned the property and acquired possession over the land fallen in their respective shares. It is further contended that the legal heirs of Jeetbahan Teli and Inder Teli also partitioned the property amongst themselves and they acquired respective shares of land allotted in their favour. After having possession over their respective shares of land, they had also sold the landed property to different purchasers for valuable consideration and it was not objected by any other co-sharers. In order to show that the legal heirs of Jeetbahan Teli and Inder Teli sold portion of their respective shares of land to different purchasers, the plaintiff has given details of respective Sale Deeds in the plaint. In that context it is contended that the defendant, who is son of co-sharers Lakhan Sahu, had executed a Sale Deed for a piece of land under R.S. Khata No. 65, portion of Plot No. 1039, area measuring 5 Katha in favour of Smt. Jaimati Devi, wife of Ashok Kumar Kashyap on 24.06.2004. In that context it is contended that the defendant, who is son of co-sharers Lakhan Sahu, had executed a Sale Deed for a piece of land under R.S. Khata No. 65, portion of Plot No. 1039, area measuring 5 Katha in favour of Smt. Jaimati Devi, wife of Ashok Kumar Kashyap on 24.06.2004. In the recital of said Sale Deed, it was indicated that Lakhan Sahu, father of the defendant, is physically weak and ailing person and he is unable to do his day-to-day work and he has authorised and entrusted his son – the defendant, to look after the property and he may dispose it off, if necessary, for the welfare of the family. The defendant made the plaintiff convinced that he has been authorised by his father to dispose off the property allotted in the share of his father and executed an agreement for sale in favour of the plaintiff on 23.08.2007 against land under R.S. Khata No. 308, Plot No. 540, area measuring about 10 Decimal, village – Pundag at the rate of Rs.50,000/-per Decimal and that against a total sum of Rs.5 Lacs, received Rs.50,000/-through Cheque No. 952304/ 834002010, S.B.I. Ashok Nagar Branch, as advance. The land in dispute is morefully described in the schedule of the plaint. The appellant/ defendant further received Rs.6,000/-on 15.09.2007 through Cheque No. 952505/8340020 of SBI, Ashok Nagar Branch and Rs.10,000/-through Cheque No. 952500 of SBI Branch, Ranchi and receipt thereof has been acknowledged on the back of the agreement. In this way a total sum of Rs.66,000/-was paid to the defendant. The plaintiff was always willing and ready to purchase the suit property on payment of balance consideration amount and he also offered the balance consideration amount to the defendant but on false pretext, the defendant kept on evading execution and registration of the Sale Deed. Thereafter, the Plaintiff served notice through the Advocate under registered post with A/D dated 17.11.2008 and 20.12.2008 to the defendant but the defendant had not paid heed towards execution of Sale Deed in respect of suit property. When the defendant failed to perform his part of obligation under the agreement, the plaintiff had left no option but to institute a suit for specific performance of the agreement dated 23.08.2007. 3. When the defendant failed to perform his part of obligation under the agreement, the plaintiff had left no option but to institute a suit for specific performance of the agreement dated 23.08.2007. 3. The cause of action arose on 23.08.2007 when the agreement was executed and on subsequent dates when notices requesting the defendant to execute Sale Deed were served. On the basis of plaint, Title Suit No. 220/2010 was registered in the Court of Sub Judge-I, Ranchi. 4. The defendant, after service of notice, appeared before the trial court and filed written statement but did not adduce evidence in support of the contention made in the written statement. Therefore it is not needed to reproduce the same. 5. On the basis of the pleadings, the learned Sub Judge has framed following issues:- I. Is the suit as framed maintainable? II. Has the plaintiff and valid cause of action for the suit? III. Whether the suit is barred by the principle of waiver, acquiescence and estoppels? IV. Whether the suit is barred by the law of Limitation and adverse possession? V. Whether the suit is barred by the provisions of Sec. 12, 16 and 20 of Specific Relief Act? VI. Whether the father of the defendant and other co-sharers partitioned their ancestral lands and accordingly acted and did further the same? VII. Whether the defendant executed the agreement dated 23.08.2007 with the consent and under the authority of his father namely Lakhan Mahto and thus the same is enforceable under the law? VIII. Whether the defendant prior to this agreement also executed sale deeds and documents on behalf of his father as his father being ailing has not in a position to deal and manage the property himself? IX. Whether the plaintiff is ready and willing to perform his part of the contract and in this regard the plaintiff served the notice through his advocate on 17.11.2008 and 20.12.2008 to the defendant? X. To what relief or reliefs, if any, the plaintiff is entitled? The plaintiff/respondent has examined three witnesses including himself to prove his case. At the conclusion, the learned Sub Judge has decreed the suit in favour of the plaintiff and directed the defendant to execute Sale Deed in favour of the plaintiff in respect of suit property on payment of balance amount and hence this appeal. 6. The plaintiff/respondent has examined three witnesses including himself to prove his case. At the conclusion, the learned Sub Judge has decreed the suit in favour of the plaintiff and directed the defendant to execute Sale Deed in favour of the plaintiff in respect of suit property on payment of balance amount and hence this appeal. 6. The learned counsel appearing for the appellant has fairly conceded that the appellant has failed to adduce evidence to support the contention made in the written statement but the witnesses produced by the plaintiff were cross examined. The defendant has every right to demolish case of the plaintiff on the basis of materials available on record even if he did not examine any witness to support the contention made by him in written statement. The appellant has then assailed the impugned Judgment and Decree on the ground that the suit property is the ancestral property of the defendant and this fact was well within the knowledge of plaintiff before he entered into an agreement to purchase the suit property. It is admitted in the plaint that suit property is the portion of a land recorded under R.S. Khata No. 308, Plot No. 540, total area measuring 1.92 Acres, village – Pundag, P.S. – Ranchi (Now Jagarnathpur), District – Ranchi, recorded in the name of Langra Teli (ancestor of the defendant). The plaintiff has further admitted that suit property has been allotted to the share of Lakhan Mahto (father of the defendant). Further admitted case of the plaintiff is that the defendant is not the absolute owner of the suit property and he never pretended so. The plaintiff has made out a case by making averments that Lakhan Mahto (father of defendant) is an old ailing person, he is unable to discharge his day-to-day work and therefore, he has authorised his son Jai Prakash Mahto (defendant) to look after and manage the property. But no such authorisation or Power of Attorney by which Lakhan Mahto has authorised his son Jai Prakash Mahto (defendant) to dispose of the property allotted to his share, has been produced, before or after entering into the agreement. The plaintiff never bothered to talk to Lakhan Mahto to verify the fact from him whether he has authorised his son Jai Prakash Mahto to sell the property or not. The plaintiff never bothered to talk to Lakhan Mahto to verify the fact from him whether he has authorised his son Jai Prakash Mahto to sell the property or not. It was well within the knowledge of the plaintiff that the suit property is owned by Lakhan Mahto but he did not draw cheque towards advance payment against alleged sale of land in favour of Lakhan Mahto. At no point of time, even before filing of the suit, he went to contact Lakhan Mahto to know whether he had given his consent to his son to sell the suit property. 7. It was further contended that even if interest of the defendant in the suit property is stretched to the extent that he is also a co-sharer in the ancestral property and he had agreed to sale his share in the property then such contention that defendant is going to sell his share in the property had to be disclosed in the agreement which is completely absent. Therefore, the property owned by Lakhan Mahto cannot be sold during his life time by his son Jai Prakash Mahto without proper authorisation or Power of Attorney. If the defendant has entered into an agreement to sale a property which is not owned by him, he cannot be compelled to execute and register Sale Deed against such property and, therefore, finding of the learned Sub Judge is highly erroneous based on misconception of law. It is not a case of ostensible owner agreeing to sale the property. The appellant has further taken ground that no document has been brought on record to show that ancestral property standing in the name of Langra Teli has been partitioned amongst the co-sharers by metes and bounds and they are enjoying their peaceful possession over their respective shares of land. The plaintiff has tried to bring it on record by exhibiting certain Sale Deeds executed by different co-sharers in respect of land which were occupied and possessed by them. There was a recital in those Sale Deeds that the properties of Langra Teli have been partitioned between the descendents but this declaration appearing in the recital of the Sale Deed is not sufficient to prove that partition amongst the co-sharers with regard to their ancestral property has taken place by metes and bounds. No descendants of Langra Teli has come forward to support this fact. 8. No descendants of Langra Teli has come forward to support this fact. 8. Learned counsel has relied upon the Judgment reported in (2011)11 SCC 153 (Para-18) and submitted that there was no express or implied authority given by the father in favour of son (defendant) is discernible from the facts and evidence available on record. The impugned Judgment and Decree is highly erroneous, based on misconception of fact and law and liable to be set aside. 9. On the other hand counsel appearing for the respondents has submitted that the defendant after filing written statement abandoned the suit and he did not participate in the proceeding. No witness was examined on his behalf in support of contention made in the written statement and, therefore, he has no ground to challenge the impugned Judgment and Decree. This appeal is devoid of merit and liable to be dismissed. It was contended that Langra Teli was the common ancestor of the defendant. The suit property as well as other property at different villages were owned and occupied by said Langra Teli who died leaving behind two sons namely Jeetbahan Teli and Inder Teli. The properties which were owned and occupied by Langra Teli were inherited by his above named two sons Jeetbahan Teli and Inder Teli who amicably partitioned the properties devolved upon them and they had been enjoying right, title, interest and possession over their respective allotted share of land. The descendents of Jeetbahan Teli and Inder Teli also inherited the property and in that line Lakhan Sahu and his three brothers, the sons of Inder Teli, had inherited and succeeded the properties which were fallen in the share of their father Inder Teli. The aforesaid four brothers also amicably partitioned the properties which was fallen in their father's share and they were accordingly enjoying their right, title and possession over the same. Lakhan Sahu is the father of defendant and he is physically weak and incapable to look after the property and therefore, the defendant who is the son, has been authorised to look after and manage the property and do all legal works and things on his behalf. Lakhan Sahu is the father of defendant and he is physically weak and incapable to look after the property and therefore, the defendant who is the son, has been authorised to look after and manage the property and do all legal works and things on his behalf. In support of such contention, the learned counsel has brought on record exhibits 3, 3a, 3b and 3c to show that the properties belonging to Langra Teli has been partitioned amongst the co-sharers and the respective descendent had sold their respective shares to different purchasers. The partition which had taken place amongst the co-sharers, is apparent from the recital of aforesaid Sale Deed. 10. Learned counsel has drawn attention towards Exhibit-3a to show that the appellant/defendant had executed a Sale Deed in favour of Smt. Jaimati Devi in respect of a land area measuring 9 Decimal, portion of Plot No. 1039 recorded in Khata No. 65 within village Tetar Tanr. It was disclosed in the recital that appellant-defendant is the son of Lakhan Mahto and he had been discharging his responsibility to look after his father and mother who were physically weak and ailing person. By referring aforesaid documents (Exhibit-3 Series), it was contended that the plaintiff on being satisfied with the assertion made and documents shown by the defendant, had agreed to purchase the suit property and to give effect, aforesaid agreement for sale (Exhibit-4) was executed by and between the parties. When the defendant pretended himself that he is having full authority to sale suit property, the plaintiff agreed to purchase the same and paid advance to the extent of Rs.66,000/-. The plaintiff was always willing to get the Sale Deed executed and registered in his favour and to show his intention, he had requested the defendant to receive the balance consideration amount and execute Sale Deed but he kept on evading the promise and failed to perform his part of obligation under the agreement (Exhibit-4). The plaintiff had also served notices on different occasion and copy of the aforesaid notices have been marked Exhibit-1 and 1/a and the postal receipt (Exhibit-2). When the defendant failed to execute and register Sale Deed, the plaintiff had left no option but to file present suit. The contention made in the plaint have been substantiated by examining three witnesses including the plaintiff. 11. When the defendant failed to execute and register Sale Deed, the plaintiff had left no option but to file present suit. The contention made in the plaint have been substantiated by examining three witnesses including the plaintiff. 11. Learned counsel referred Section 115 of the Evidence Act and submitted that the defendant cannot escape from the declaration which he had made before the plaintiff. He cannot take a plea that the property belongs to his father and he cannot be compelled to execute and register a Sale Deed in respect of suit property. He has made a declaration in the agreement (Exhibit-4) that he has been authorised by his father to look after and manage the property and he is authorised to sale the same for the welfare of the family. The plaintiff got himself convinced from Exhibit-3a, which approved aforesaid declaration made by the defendant. Therefore, the rule of estoppel will apply in the present case. The learned counsel has referred Section 41 of the Transfer of Property Act and relied upon the Judgment reported in (2007) 2 SCC 404 [Hardev Singh Vs. Gurmail Singh]. Further contention was that after executing agreement for sale against the suit property, the defendant cannot take a plea that he is not the absolute owner of the property and he is not authorised to sell it. He cannot take a plea of defective title in a case of specific performance of contract. Another plea that the suit property is ancestral property in which other co-sharers are having right, shall be no ground. In this context, Judgment reported in AIR 1975 Rajasthan 1969 [Deenanath Vs. Chunilal] has been relied upon. Learned counsel has further relied upon the Judgment reported in AIR 1987 Delhi 194 [Smt. Chand Rani Mehra and others Vs. Om Shankar Mehra] and in the case reported in AIR 1988 Pat 147 [Pradip Narain Singh and others Vs. Brij Nandan Singh and others] In view of the Judgments cited, it was submitted that the appeal is devoid of any merit and the same is liable to be dismissed. 12. Om Shankar Mehra] and in the case reported in AIR 1988 Pat 147 [Pradip Narain Singh and others Vs. Brij Nandan Singh and others] In view of the Judgments cited, it was submitted that the appeal is devoid of any merit and the same is liable to be dismissed. 12. Having heard both sides and after perusing the impugned Judgment, documents exhibited and evidence on record, it appears that the plaintiff has made out a case that the defendant Jai Prakash Mahto had made him convinced that he is having authority to dispose of property which has been acquired by his father after mutual partition among the co-sharers. It was argued that the defendant had disclosed that his father is an old and ailing person and he is unable to discharge day-to-day domestic work, therefore, authority has been given to him to look after the property and manage the same for welfare of the family. It was also contended by referring exhibit 3a by which defendant had sold property pertaining to Khata No. 65Plot No. 1039, area measuring 9 Decimal, village – Tetar Tanr, nature of land – Tanr-2 to Smt. Jaimati Devi and the deed of sale was executed by the defendant on behalf of his father which was fallen in his share. The plaintiff has also relied on other Sale Deeds which have been marked under Exhibit-3 Series, indicating that other co-sharers had also sold the property to different purchasers. In course of arguments, Section 115 of the Evidence Act and Section 41 of the Transfer of Property Act have been referred. 13. From the materials available on record, it is very clear that the defendant never made any declaration that he is absolute owner of the property and he is having authority to sell the same. Exhibit-4 is the agreement for which the suit for specific performance of agreement has been filed. It appears from recital of the said agreement that the defendant had stated that he is intending to sell 10 Decimals of land with consent of his father and other family members. It is also appearing that the property which is subject matter of the suit had fallen in the share of Lakhan Sahu, father of the defendant and Lakhan Sahu is alive. It is also appearing that the property which is subject matter of the suit had fallen in the share of Lakhan Sahu, father of the defendant and Lakhan Sahu is alive. The contention made in Exhibit-4 does not bring the defendant to the category of ostensible owner as defined in Section-41 of the Transfer of Property Act, which reads as under:- “41. Transfer by ostensible owner.-Where, with the consent, express or implied, of the persons interested in immovable property, a person is the ostensible owner of such property and transfers the same for consideration, the transfer shall not be voidable on the ground that the transferor was not authorised to make it: Provided that the transferee, after taking reasonable care to ascertain that the transferor had power to make the transfer, has acted in good faith.” The ingredients of Section 41 of the Transfer of Property Act are: (i) the transferor is the ostensible owner; (ii) he is so by consent, express or implied, of the real owner; (iii) the transfer is for consideration; (iv) the transferee has acted in good faith, taking reasonable care to ascertain that the transferor had power to transfer. Admittedly the defendant never presented him as owner of the property and it was well disclosed that the said property is owned and occupied by his father which had fallen in his share after mutual partition. No authority letter or power of attorney executed by Lakhan Sahu (father of the defendant) was ever shown to the plaintiff. The recital of Exhibit-3a did not disclose that Lakhan Sahu had authorised defendant Jai Prakash (son) to sell the property. Ingredients 2 and 4 of Section 41 are very very important. If the vendee did not take care of aforesaid ingredients, he cannot take help of Section 41 of Transfer of Property Act. Plaintiff has also proved copy of notices served to the defendant which have been marked Exhibit-1, and 1/a. Exhibit-1 is copy of the notice sent to defendant – Jai Prakash Mahto by which the plaintiff had informed the defendant to receive the balance consideration amount and execute and register deed in respect of suit property. Exhibit-1/a appears to be a reply sent by Advocate Brij Mohan Singh Yadav on behalf of plaintiff to Shri S. Tamboli, Advocate. Exhibit-1/a appears to be a reply sent by Advocate Brij Mohan Singh Yadav on behalf of plaintiff to Shri S. Tamboli, Advocate. The contention of Exhibit-1/a speaks about the reply which the counsel for the plaintiff had given to the counsel for the defendant. Paragraph-1 of Exhibit-1/a gives a picture that Lakhan Lal Mahto (father of the defendant) had given reply to the notice received by him and said Lakhan Lal Mahto had denied execution of any agreement for sale by his son Jai Prakash with his consent and authority. 14. The plaintiff has not brought on record any such reply if sent by Lakhan Lal Mahto either to the plaintiff or his counsel. The plaintiff has concealed this fact in the plaint that execution of agreement for sale was brought to the notice of Lakhan Lal Mahto and he was also served with a notice and reply to that was given by him. It would not be out of place to mention that Lakhan Lal Mahto who is the owner of said property, has not been made party to the suit filed by the plaintiff. This also goes to show that the plaintiff has concealed some facts and he has not presented the plaint in a proper manner. It is also apparent that requirement of Section 41 of the Transfer of Property Act has not been fulfilled before making argument to put the defendant in the category of ostensible owner. In view of the discussions made above, I do not find that it is a case of an agreement executed by the defendant putting him in the category of ostensible owner. If it is considered that the defendant had not executed the agreement pretending him to be owner of the property, rule of estoppel will also not apply. 15. The facts and circumstances indicated in the Judgments cited are quite distinguishable from the facts and circumstances appearing in the case at hand and therefore, I do not think that the Judgments cited are helpful to the plaintiff/ respondent. The agreement executed by the appellant/defendant cannot be enforced and, therefore, second option is required to be considered. Admittedly the defendant after filing written statement did not adduce evidence in support of the contention made therein and, therefore, the defendant has failed to make out any case in his favour. The agreement executed by the appellant/defendant cannot be enforced and, therefore, second option is required to be considered. Admittedly the defendant after filing written statement did not adduce evidence in support of the contention made therein and, therefore, the defendant has failed to make out any case in his favour. His denial that he had not executed said agreement and he did not receive advance to the extent of Rs.66,000/-, cannot be accepted. In the circumstances, the plaintiff could not be put to a loss and accordingly, the appellant/defendant is directed to pay said sum of Rs.66,000/-which he had taken in terms of advance, to the plaintiff/respondent with interest at the rate of 6% p.a. within 60 days from the date of this Judgment, failing compliance the amount so indicated shall be recovered under due process of law. With these observations and modification in Judgment and Decree, the appeal stands disposed of. In view of this Judgment, I.A. No. 1388/2014 stands disposed of.