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2015 DIGILAW 336 (CAL)

Amal Kumar Mitra v. Dilip Kumar Hazra

2015-04-10

ASHA ARORA, NISHITA MHATRE

body2015
Judgment :- Nishita Mhatre, J. 1. The appeal is directed against the judgment and decree in Title Suit No.278 of 1997 passed by the Civil Judge, Senior Division, 2nd Court, Howrah on 31st May, 1999. 2. For the sake of convenience the parties will be referred to as they were in the Trial Court. The brief facts relating to the present appeal are as follows: The appellant/plaintiff was a tenant in respect of two rooms appurtenant to the Municipal holding No.30, Sreeram Dhang Road, Salkia, Howrah. The appellant claimed that his landlord, the defendant No.1/respondent No.1 herein, promised to sell him the suit property sometime in the month of April, 1997. The consideration for that transaction was fixed at Rs.3,10,000/- (Rupees three lacs ten thousand). According to the appellant he paid to the defendant No.1 Rs.10,000/- as earnest money and the latter promised to execute the deed of conveyance within three months thereafter. The plaintiff claimed that out of the remaining Rs.3 lacs, Rs.1 lac was to be paid by cash and Rs.2 lacs by a bank draft on the date of execution of the conveyance. He further claimed that as there was a cordial relationship between himself and the landlord, the agreement was not reduced into writing and nor was any receipt taken by him in respect of payment. The plaintiff received a letter on 2nd June, 1997 informing him that the property had been sold to defendant No.2. By a letter dated 4th July, 1997, the plaintiff called upon the defendant No.1 to execute the conveyance in respect of the suit property in his favour or to refund the earnest money. As the defendant No.1 failed to comply with the demand of the plaintiff, the plaintiff filed the present suit for specific performance of the oral contract. 3. The defendant No.1 filed his written statement denying that there was any sort of transaction between himself and the plaintiff for sale or otherwise of the suit property. He denied having accepted any payment from the plaintiff and contended that the property had been sold to the defendant No.2. The defendant No.1 claimed that he had no contractual obligation to execute the deed of conveyance in favour of the plaintiff. 4. He denied having accepted any payment from the plaintiff and contended that the property had been sold to the defendant No.2. The defendant No.1 claimed that he had no contractual obligation to execute the deed of conveyance in favour of the plaintiff. 4. The defendant No.2 pleaded in his written statement that he was a bona fide purchaser for value without notice of the suit property and that therefore the suit was required to be dismissed. 5. Evidence was led before the trial court by the parties to substantiate their respective pleadings. On scanning the evidence, the Trial Court found that the contentions of the plaintiff were belied by the evidence on record and therefore, concluded that the plaintiff had failed to prove his case. The Trial Court has dismissed the suit. It has held that there was no evidence to prove that any amount had been paid by the plaintiff to defendant No.1 as claimed in the plaint. The Trial Court did not believe the evidence led by the plaintiff in order to prove the oral contract between the parties. The case of the plaintiff was found to be unbelievable because there was no material on record to corroborate his contention that he had not insisted on a receipt being issued by the defendant No.1 after being paid the earnest money because he and the defendant No.1 had cordial relations. 6. Mr. Bhattacharya, the learned Counsel for the plaintiff, submitted that the Trial Court had erred in not believing the evidence of Ranjit Kumar Hazra (PW 2) who had clearly heard the conversation between the plaintiff and the defendant No.1 with regard to the sale of the suit property. He pointed out that the witnesses of the plaintiff have corroborated each other and have established the payment of Rs.10,000/- to defendant No.1. He laid emphasis on the testimony of Ranjit Kumar Hazra who was in fact the nephew of the defendant No.1. Mr. Bhattacharya further submitted that such a person cannot be called an interested witness and his testimony proves the case of the plaintiff completely. 7. We have, with the assistance of the learned Counsel for the appellant, perused the evidence on record. The plaintiff has examined himself, Ranjit Kumar Hazra, Gautam Dutta and Gautam Mitra – his younger brother. The plaintiff reiterated the pleadings in his plaint. 7. We have, with the assistance of the learned Counsel for the appellant, perused the evidence on record. The plaintiff has examined himself, Ranjit Kumar Hazra, Gautam Dutta and Gautam Mitra – his younger brother. The plaintiff reiterated the pleadings in his plaint. Ranjit Kumar Hazra claimed that while he was walking by the plaintiff’s house, he heard him and the defendant No.1 talking about the sale of the suit property. The witness stated that there were four or five persons present when the plaintiff handed over Rs.10,000/- to the defendant No.1. This witness Ranjit Kumar Hazra, though a nephew of defendant No.1, has admitted that the relationship between him and his uncle – the defendant No.1 was not cordial at all. The Trial Court has rightly disbelieved the evidence of this witness. There was no explanation as to how he entered the house of the plaintiff, nor was there any evidence that he was on visiting terms with the plaintiff. Therefore, the evidence of this witness to the effect that he heard a conversation between the plaintiff and the defendant No.1 which caused him to enter into the premises is unbelievable. Moreover, the plaintiff, in his testimony, has not spoken about the presence of Ranjit Kumar Hazra specifically, and has only mentioned that the defendant No.1 assured him that he would sell the suit property in the presence of his brother Gautam Mitra and the people of the locality. 8. PW 3 Gautam Dutta in his testimony has stated that he was present at the residence of the plaintiff on 6th April, 1997 and had witnessed the transaction between the plaintiff and defendant No.1. Gautam Mitra (PW 4), the plaintiff’s brother has also stated that he was present when defendant No.1 agreed to sell the suit property to the plaintiff. Surprisingly, Gautam Dutta also heard about the sale of the property while he was passing by the house of the plaintiff. It is impossible to believe either Ranjit Kumar Hazra or Gautam Dutta that they were present at the plaintiff’s residence when the transaction took place because they heard the plaintiff and defendant No.1 talking about the sale of the suit property while they were passing by the plaintiff’s house. 9. The plaintiff has not been able to prove that any transaction took place between him and the defendant No.1 for the sale of the suit property. 9. The plaintiff has not been able to prove that any transaction took place between him and the defendant No.1 for the sale of the suit property. He has not been able to prove the payment of Rs.10,000/- to the defendant No.1 by either documentary or oral evidence. His contention that he did not insist on a written receipt from the defendant No.1 because they had cordial relations is also not borne out from the evidence on record. The trial court was right in believing the evidence of the defendant No. 1 that his relationship with the plaintiff could not be termed as cordial after the year 1990. The defendant No.1 has mentioned the reasons for the souring of the relationship in his testimony. He has deposed that he had complained to the municipal authorities when the plaintiff obtained an illegal water connection in that year. Thereafter the plaintiff paid him rent by money order instead of giving it to him personally as in the past. These facts have not been controverted by the plaintiff. 10. After perusing the evidence on record and the judgment of the Trial Court, we have no hesitation in upholding the decision of the Trial Court. In the circumstances, the judgment of the Trial Court is confirmed. 11. The appeal is dismissed. The concerned department is directed to send the LCR to the Trial Court. 12. Urgent certified photocopies of this judgment, if applied for, be given to the learned Advocates for the parties upon compliance of all formalities.