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2015 DIGILAW 1199 (GAU)

Md. Safiar Rahman v. Abu Bakkar Siddique

2015-09-17

A.K.GOSWAMI

body2015
ORDER : 1. Heard Mr. D. Majumdar, learned senior counsel for the appellant. Also heard Mr. B.K. Sarma, learned counsel appearing for the respondent. 2. This appeal is preferred by the defendant against the judgment and decree dated 16.12.2005 passed by the learned District Judge, Dhubri in Title Appeal No. 1 of 2005 affirming the judgment and decree dated 9.6.2005 passed by the learned Civil Judge (Senior Division), Dhubri in Title Suit No. 21 of 2001, whereby the suit of the plaintiff was decreed. 3. The plaintiff filed the suit for specific performance of contract and this Court by an order dated 29.5.2006 admitted the appeal to be heard on the following substantial question of law: “Whether on the basis of the materials available on record, the learned courts below were justified in decreeing the specific performance of the contract against the appellant.” 4. The defendant is the owner of land measuring 1 katha 19¾ lechas as described in the schedule to the plaint. There was a registered agreement for sale dated 5.9.2000 whereby the defendant agreed to sell the said 19¾ lechas of land to the plaintiff at a consideration amount of Rs. 40,000/- and on the date of execution, the defendant received Rs. 20,000/- as earnest money. Execution of the registered agreement for sale dated 5.9.2000 (Ext. 1) and receipt of Rs. 20,000/- is an admitted fact. In terms of Ext. 1, permission was required to be taken from Deputy Commissioner, Dhubri to enable execution of the sale deed and the purchaser was required to pay the balance amount immediately on grant of permission by the Deputy Commissioner. Permission was granted by the Deputy Commissioner on 1.3.2001 and the same was communicated on 7.3.2001. In between, the plaintiff also paid Rs. 2,000/- on demand being made by the defendant on 5.1.2001 and the plaintiff had proved the receipt thereof as Ext. 3 during the course of trial. In spite of the plaintiff requesting the defendant to execute the sale deed after receipt of the permission, the defendant was evading to perform his part of the contract and in such circumstance, the plaintiff issued an Advocate’s Notice on 21.3.2001 demonstrating his readiness and willingness to purchase the said plot of land. After receipt of the notice by the defendant on 29.3.2001, he denied to execute the sale deed. After receipt of the notice by the defendant on 29.3.2001, he denied to execute the sale deed. The notice dated 21.3.2001 and the postal acknowledgement was proved as Ext. 4 and 5, respectively. 5. In the written statement, a plea was taken that the defendant needed money in connection with the marriage of his daughter and therefore, the defendant entered into the contract for sale and though the permission was obtained from the Deputy Commissioner on 1.3.2001, the plaintiff, despite being repeatedly asked by the defendant, did not pay the remaining amount and thereby the plaintiff had violated the terms and condition of the contract. It was projected in the written statement that as the plaintiff did not pay the balance amount of the consideration amount, the defendant was compelled to sell a pair of bullock, pump machine and two bundles of CI sheet to arrange the fund for social ceremony of his daughter’s marriage. 6. The defendant had examined himself as DW 1 and in his cross examination, it was elicited that his daughter Majida Khatun’s marriage was solemnized on 6.7.2000, much before the execution of the agreement for sale dated 5.9.2000. DW 2 also supported the defendant in respect of sale of a pair of bullock, etc. for the purpose of marriage ceremony of the daughter by DW 1. However, he did not know the name of the daughter of DW 1. 7. It is seen that sale permission was communicated only on 7.3.2001 and the evidence adduced by the plaintiff discloses that prompt steps were taken by the plaintiff to get the sale deed executed and notice was also issued on refusal by the defendant to execute the sale deed on 21.3.2001 requesting him to perform his part of the contract. The marriage ceremony of the daughter of the defendant was solemnized on 6.7.2000 and therefore, the plea taken by the defendant that in order to meet the expenses for the marriage of his daughter, he had to sell the bullocks, pump machine and two bundles of CI sheet is not at all believable. Both the courts below on the basis of the materials available on record had recorded that the plaintiff had proved his case to obtain a decree for specific performance. The learned counsel for the appellant is unable to show any perversity in the judgment of the courts below. 9. Both the courts below on the basis of the materials available on record had recorded that the plaintiff had proved his case to obtain a decree for specific performance. The learned counsel for the appellant is unable to show any perversity in the judgment of the courts below. 9. I find no merit in this appeal and accordingly, the same is dismissed. The substantial question of law is answered against the appellant. No cost. 11. Send back the LCR.