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2015 DIGILAW 1100 (GAU)

Jayanta Roy v. Sardar Manohar Singh

2015-08-28

A.K.GOSWAMI

body2015
JUDGMENT : Arup Kumar Goswami, J. 1. Heard Mr. B Banerjee, learned senior counsel for the appellant. Also heard Mr. A Thakur, learned counsel for the respondent No. 2. 2. This appeal is preferred by the plaintiff against the judgment and decree dated 16.7.2009 passed by the learned District Judge, Jorhat in Title Appeal No. 4 of 2009 upholding the decree dated 21.01.2009 passed by the learned Civil Judge, Jorhat in Title Suit No. 59 of 2005 dismissing the suit filed by him for specific performance of contract of agreement for sale dated 18.6.2005 and for a direction to the defendant No. 1 to execute and register a sale deed on receipt of balance consideration amount of Rs. 1,25,000/- and also for cancellation of sale deed dated 19.7.2005 executed by defendant No. 1 in favour of the defendant No. 2(respondent No. 2) herein. 3. The case of the plaintiff is that defendant No. 1, who was the owner in possession of the properties described in the schedule to the plaint, entered into an agreement for sale dated 18.6.2005 with the plaintiff for a total consideration of Rs. 2 lakhs and he paid Rs. 75,000/- as advance. Time and again plaintiff approached the defendant No. 1 to execute the sale deed by receiving the balance consideration amount and he was always ready and willing to pay the said amount. But in spite of executing the agreement of sale in favour of the plaintiff, defendant No. 1, who is respondent No. 1 herein, sold the land covered under the agreement for sale deed dated 18.6.2005 to the defendant No. 2 by a registered sale deed dated 19.7.2005. 4. The defendant No. 1 did not enter appearance in the suit. 5. A written statement was filed by defendant No. 2 stating that there was an oral agreement between him and the defendant No. 1 on 31.3.2005 for sale and purchase of the suit property and an application was filed before the Deputy Commissioner on 6.5.2005 for permission of sale/purchase of the suit land and on 11.7.2005, permission was granted for execution of the sale deed. It is pleaded that purported agreement for sale deed dated 18.6.2005 is a collusive and manufactured document. 6. The learned trial court by judgment dated 29.5.2007 dismissed the suit holding amongst other that agreement for sale was not proved. It is pleaded that purported agreement for sale deed dated 18.6.2005 is a collusive and manufactured document. 6. The learned trial court by judgment dated 29.5.2007 dismissed the suit holding amongst other that agreement for sale was not proved. An appeal was preferred against the aforesaid judgment and decree dated 29.5.2007 and the learned lower appellate court set aside the said judgment by remanding the case to the learned trial court to frame an issue as per provision of Explanation II of Section 3 of the Transfer of Property Act, 1882 (in short, "T.P. Act'"). After remand, in the light of the judgment of the learned lower appellate court, an additional issue was framed to the following effect: "Whether defendant No. 2 had the knowledge or notice of the earlier contract between the plaintiff and the defendant No. 1?" 7. After remand, plaintiff and defendant No. 2 examined two witnesses each. The learned trial court in Issue No. 5 on the basis of the evidence adduced on behalf of defendant No. 2 came to the conclusion that defendant No. 2 had no notice of the earlier contract between the plaintiff and the defendant No. 1. Accordingly, suit was again dismissed. The appeal preferred also came to be dismissed affirming the findings of the learned trial court. In addition, doubt was also cast about the authenticity of the agreement for sale. 8. The second appeal was admitted to be heard by an order dated 23.11.2009 on the following substantial question of law: "Whether the learned court declared defendant No. 2 a bona fide purchaser for value by misconstruing the provisions of Section 19(b)of the Specific Relief Act as we l as evidence on record?" 9. Mr. B. Banerjee, learned senior counsel for the appellant has submitted that plaintiff was a tenant of defendant No. 1 and, therefore, it was incumbent on the part of the defendant No. 2 to have made enquiries before purchasing the properties from defendant No. 1. According to him, learned court below misconstrued the evidence of defendant No. 2 and came to a perverse finding that defendant No. 2 had no notice of the agreement dated 18.6.2005. In support of his contention, Mr. Banerjee has placed reliance on decisions of the Apex Court in the cases of R.K. Mohammed Ubaidullah & ors. According to him, learned court below misconstrued the evidence of defendant No. 2 and came to a perverse finding that defendant No. 2 had no notice of the agreement dated 18.6.2005. In support of his contention, Mr. Banerjee has placed reliance on decisions of the Apex Court in the cases of R.K. Mohammed Ubaidullah & ors. v. Hajee C. Abdul Wahab (dead) by LRs, reported in AIR 2001 SC 1658 and Ram Niwas (dead) through LRs. v. Smt. Bano & ors., reported in AIR 2000 SC 2921 . 10. Mr. A Thakur, learned counsel for the defendant No. 2 has submitted that assuming that there was an agreement for sale dated 18.6.2005, plaintiff only had an equitable right. However, by virtue of the execution of sale dated 19.7.2005, defendant No. 2 had acquired legal right in respect of the property in question. He has submitted that a reading of the evidence of DW- 1 and DW-2 would unmistakably point to the fact that defendant No. 1 had accompanied defendant No. 2 to the shop of the plaintiff with a request to the plaintiff to attorn to the defendant No. 2 to whom the property was being sold. Defendant No. 2 had specifically deposed that plaintiff did not indicate the existence of any agreement for sale and the evidence of the defendants had not been impeached in any manner and therefore, there is no reason for this court to interfere with the finding of fact recorded by the courts below. By drawing attention to Ext.-3, learned counsel submits that it is not understood why even before the purported agreement of sale dated 18.6.2005, the defendant No. 1 would have any occasion to entrust the plaintiff to obtain sale permission for the purpose of sale/purchase in his favour. The plaintiff did not exhibit any document to show his readiness and willingness in real terms by producing the application for grant of permission/sale. It is submitted by him that because of failure of the plaintiff to produce the copy of the application, the learned Lower Appellate Court had occasion to doubt the authenticity of agreement of the sale. He has submitted that when such application for grant of sale was already filed by any other person, even otherwise, subsequent applicant would not have been granted permission by the authorities concerned. He has submitted that when such application for grant of sale was already filed by any other person, even otherwise, subsequent applicant would not have been granted permission by the authorities concerned. He has contended by placing reliance on the judgment of the Hon'ble Apex Court in the case of Sahadeva Gramani (dead) by LRs v. Perumal Gramani & ors., reported in (2005) 11 SCC 454 , that under Section 20of the Specific Relief Act, 1963, the jurisdiction of the court to decree specific performance of the contract is discretionary and court is not bound to grant such relief merely because it is lawful to do so. The learned counsel also submits that the Ext.-1 agreement for sale deed dated 18.6.2005 was an unregistered document and the plaintiff on his part had not placed any material on record to show that the defendant No. 2 was aware of the earlier agreement entered into in between him and the vendor. 11. I have considered the submissions of the learned counsel for the parties and have perused the materials on record. 12. Section 19(b) of the Specific Relief Act reads as follows:-- "19. Relief against parties and person claiming under them by subsequent title.- Except as otherwise provided by this Chapter, specific performance of a contract may be enforced against- (a) ........................... (b) any other person claiming under him by a title arising subsequently to the contract, except a transferee for value who has paid his money in good faith and without notice of the original contract;" 13. It will also be relevant to take note of the expression "a person is said to have notice" as appearing in Section 3 of T.P. Act and Explanation II of Section 3 of T.P. Act, which read as follows:-- "3. Interpretation clause.- In this Act, unless there is something repugnant in the subject or context,- "A person is said to have notice" of a fact when he actually knows that fact, or when, but for wilful abstention from an enquiry or search which he ought to have made, or gross negligence, he would have known it. ......................... Explanation II.--Any person acquiring any immovable property or any share or interest in any such property shall be deemed to have notice of the title, if any, of any person who is for the time being in actual possession thereof." 14. ......................... Explanation II.--Any person acquiring any immovable property or any share or interest in any such property shall be deemed to have notice of the title, if any, of any person who is for the time being in actual possession thereof." 14. Section 19(b) of Specific Relief Act provides that specific performance of a contract may be enforced, other than the parties thereto, against any person claiming under him by a title arising subsequently to the contract. However, a transferee for value, who has paid his money in good faith and without notice of the original contract, is excluded from the purview of the said clause. As per Explanation II to Section 3 of T.P. Act, any person acquiring any immovable property or any share or interest in any such property shall be deemed to have notice of the title, if any, of any person who is for the time being in actual possession thereof. 15. Notice, as interpreted in Section 3 of T.P. Act may be either actual, where the party has actual knowledge of the fact, or constructive. The word "notice" is of wider import in the sense that a person may not have actual knowledge of the fact but a person is said to have constructive notice of a fact when, but for wilful abstention from an inquiry or search which he ought to have made, or gross negligence, he would have known it. 16. In Ram Niwas (supra), the Apex Court held that subsequent purchaser must make enquiry into the real nature of possession of the tenant. In R.K Mohammad Abadullah (supra), the Hon'ble Supreme Court had laid down that if a person is for the time being in actual possession, it is imperative for the subsequent purchaser to make an enquiry as to title or interest of the person in actual possession as on the date when the sale transaction was made in his favour. 17. Actual possession is notice of the title, if any, of the person who is for the time being in actual possession thereof. A person may enter the property in one capacity and having a particular kind of interest. But subsequently, while continuing in possession of the property, his capacity or interest may change. 17. Actual possession is notice of the title, if any, of the person who is for the time being in actual possession thereof. A person may enter the property in one capacity and having a particular kind of interest. But subsequently, while continuing in possession of the property, his capacity or interest may change. A person entering the property as tenant, later on, may become an usufructuary mortgagee or may have entered into an agreement for purchase of the same property or may have some other interest created in his favour. Therefore, with reference to subsequent purchaser it is essential that he should make an enquiry as to title or interest of the person in actual possession as on the date when sale transaction was made in his favour. A subsequent purchaser has to make enquiry as to further interest, nature of possession and title under which the person was continuing in possession on the date of purchase of the property. If the subsequent purchaser, without making an enquiry, relies upon the assertion of the vendor and abstains from making any enquiry into the real nature of possession of the tenant, he cannot escape from the consequences of the deemed notice under Explanation II of Section 3 of T.P. Act. 18. Though in the evidence, the plaintiff, who was examined as PW1, had stated that the suit land and its premises was earlier occupied by his father as a tenant to run a business and after the death of his father he continued as a tenant, no such averments were made in the plaint. In cross-examination, he made it explicitly clear that in the land in question he had no possession and he was in occupation of a room only. Neither in the plaint nor in the evidence there is any indication that prior to the agreement dated 18.06.2005, the plaintiff and defendant No. 1 had arrived at an understanding with regard to sale of the property in question. In the aforesaid context, it is difficult to comprehend execution of Ext.-3 whereby the defendant No. 1 had appointed and authorized the plaintiff, amongst others, to bear all expenses for taking necessary permission for sale. Plaintiff further stated that he paid Rs. 75,000/- in cash and though he pays income tax, he did not show this amount in Income Tax return. Plaintiff further stated that he paid Rs. 75,000/- in cash and though he pays income tax, he did not show this amount in Income Tax return. It was also stated by him that he had not taken any receipt from the defendant No. 1 for payment of Rs. 75,000/- either. 19. The plaintiff in para-4 of the plaint had stated that a joint application for land sale permission was made by plaintiff and defendant No. 1. No such joint sale application has been exhibited by plaintiff. Though the plaintiff had stated that he had sent a registered notice to the defendant No. 1 demanding execution of sale deed, he had also not produced the copy of the registered notice or the postal receipt thereof. 20. The agreement for sale, Ext. 2, is an unregistered document and its authenticity was doubted by the learned Lower Appellate Court. Payment of Rs. 75,000/-, in cash, towards part-payment and, that too, without any receipt is difficult to accept. The plaintiff is a businessman and he also says that he had not shown the payment in Income Tax return. Thus, there is no proof of payment of Rs. 75,000/-. The plaintiff has not produced any documentary evidence to support Ext.-2. 21. In the written statement, the defendant No. 2 had stated that the plaintiff had full knowledge and notice of the agreement by and between him and defendant No. 2. In his evidence as DW-1, defendant No. 2 had stated that the defendant No. 1, in his presence as well as in presence of one Ram Avatar Lahoti, who was also examined as DW-2, informed the plaintiff about the proposal of sale in favour of defendant No. 2 and had asked him to attorn to the defendant No. 2 but at that point of time plaintiff never mentioned about his agreement for sale pertaining to the suit property and therefore, he had no notice about the alleged transaction. The learned courts below held that evidence of defendant No. 2 as well as Ram Avatar Lahoti was not impeached in any manner and accordingly, the learned courts below had come to the conclusion that defendant No. 2 was a bona fide purchaser without notice of the earlier contract between the plaintiff and the defendant No. 1. 22. The learned courts below held that evidence of defendant No. 2 as well as Ram Avatar Lahoti was not impeached in any manner and accordingly, the learned courts below had come to the conclusion that defendant No. 2 was a bona fide purchaser without notice of the earlier contract between the plaintiff and the defendant No. 1. 22. In the instant case, the plaintiff had not pleaded in the plaint that he was a tenant, but took such a plea in the evidence. Be that as it may, the evidence of the defendants had established that the plaintiff was asked to attorn to the defendant No. 2 as the property was going to be sold. The fact that the plaintiff did not produce the agreement for sale at that time, which would have been the most reasonable course of conduct in the fact situation, is a circumstance against the plaintiff. It is also worth noting that while in the agreement for sale the consideration amount is shown as Rs. 2 lakhs, defendant No. 2 had paid, on the basis of the land valuation fixed by the Government, consideration amount of Rs. 11 lakhs. 23. In view of above discussions, I am of the considered opinion that no interference is called for with the judgment of the learned courts below. Substantial question of law is answered against the appellant. 24. Appeal is dismissed. No Cost. 25. Registry will send back the LCR.