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2015 DIGILAW 490 (GAU)

Jalal Uddin Sk. v. Jobbar Ali & Ors.

2015-04-24

SUMAN SHYAM

body2015
Suman Shyam, J. -- Heard Ms. R. Choudhury, learned counsel for the appellant. This second appeal has been preferred against the judgment and decree dated 17-12-2014 passed by the learned Civil Judge, Dhubri in Title Appeal No. 18/2009 dismissing the title appeal thereby upholding the judgment and decree dated 22-01-2009 passed by the learned Munsiff No. 2, Dhubri in Title Suit No. 119/1996. 2. The case of the plaintiff as projected in the plaint is that he had entered into an agreement for sale deed dated 09-03-1994 with the defendant Jalal Uddin Sk. for purchase of a plot of land measuring 2B-1K-5L covered by Dag No. 557 of Khatiyan No. 34 situated at village Jhaskal No. 3 under Agomoni circle, P.S. Golakganj in the district of Dhubri for a total sale consideration of Rs. 20,000/-. At the time of execution of the agreement dated 09-03-1994 the plaintiff had paid an amount of Rs. 17,000/- as advance and it was further agreed by and between the parties that the balance portion of Rs. 3,000/- would be paid by the plaintiff at the time of registration of the formal sale deed. After signing of the agreement for sale the plaintiff had approached the defendant on 10-05-1994, 15-08-1994 and again on 15-01-1995 requesting him to execute the sale deed and sign the necessary papers for sale permission and also to deliver the possession of the suit land in his favour by receiving the balance amount of Rs. 3,000/- but the defendant refused to do so. As a result of the same the plaintiff was compelled to institute the present suit seeking specific performance of the agreement for sale deed dated 09-03-1994 and also for delivery of possession of the suit land. 3. The defendant contested the suit by filing written statement wherein the defendant had inter alia pleaded that suit land being within the radius of 1k.m. from the Indo-Bangla border, the relief claimed under the suit would be barred under the Rural Indebtedness Relief Act. The defendant also had denied having entered into any agreement for sale in respect of the suit land. On the contrary he has averred that he being in need of money for education of his son had approached the plaintiff seeking loan. Accordingly the plaintiff had paid him an amount of Rs. 17,000/- as a loan upon the suit land being mortgaged for 4 years. On the contrary he has averred that he being in need of money for education of his son had approached the plaintiff seeking loan. Accordingly the plaintiff had paid him an amount of Rs. 17,000/- as a loan upon the suit land being mortgaged for 4 years. It was the pleaded stand of the defendant that he had delivered the possession of the suit land to the plaintiff and accordingly the plaintiff had used the suit land for 4 years and recovered a sum of Rs. 40,000/- as usufruct from the suit land. The plaintiff had further pleaded that the written agreement was entered upon by and between the parties at the instance of the plaintiff but it was also mutually agreed that the agreement for sale would not be acted upon and that it would not be enforceable in the eye of law. 4. Upon hearing the pleadings of the parties the learned Trial Court framed the following issues: “1. Is there any cause of action? 2. Whether the suit is maintainable in its present form? 3. Is the suit undervalued and stamped? 4. Whether the plaintiff agreed and paid Rs. 17,000/- out of sale value of Rs. 20,000/- on 9/3/1994 and whether the defendant upon receipt of money executed a Bainapatra vide registered deed no: 619/635 with a promise to execute the registered deed in favour of the plaintiff? 5. Whether the plaintiff is entitled to get a decree as prayed for? 6. To what relief, if any, the parties are entitled to?” 5. On the basis of the materials on record the learned Trial Court passed the judgment and order dated 22-01-1009 decreeing the suit filed by the plaintiff. 6. Being aggrieved and dissatisfied by the impugned judgment and decree dated 22-09-2009 passed by the Trial Court in Title Appeal No. 119/1996 the defendant as appellant preferred Title Appeal No. 18/2009 before the court of Civil Judge, Dhubri. By the judgment and decree dated 17-12-2014 passed by the learned Civil Judge, Dhubri in Title Appeal No. 18/2009 the appeal filed by the appellant/ defendant was dismissed. 7. Being aggrieved by the judgment and decree dated 17-12-2014 passed in Title Appeal No. 18/2009 the appellant has preferred this second appeal. I have heard Ms. R. Choudhury, learned counsel for the appellant and also perused the record. Ms. 7. Being aggrieved by the judgment and decree dated 17-12-2014 passed in Title Appeal No. 18/2009 the appellant has preferred this second appeal. I have heard Ms. R. Choudhury, learned counsel for the appellant and also perused the record. Ms. Choudhury, learned counsel for the appellant submits that from the perusal of the judgment and decree passed by the court below it would be apparent that the learned Trail Court did not frame any issue as to the question of execution of the mortgage deed despite the fact that the defendant had taken specific plea in the written statement. The judgment and decree passed by the court below stand vitiated on account of the fact that the defendant/ appellant did not get any opportunity to lead evidence so as to prove and establish that the agreement for sale deed dated 09-03-1994 was actually a mortgage deed as has been claimed by him. 8. Ms. Choudhury further submits that from a bare perusal of the pleadings contained in the plaint it would be apparent that the plaintiff had no where pleaded in specific term that he was ready and willing to perform his part of the contract. As such, the plaintiff suit not being in conformity with the requirement of Section 16(c) of the Specific Relief Act, the court below ought to have refused the decree for specific performance on such count alone. 9. I have considered the submission made by the learned counsel for the appellant. On a perusal of the judgment and decree passed by the court below it is apparent that the plaintiff/ respondent had produced the agreement for sale dated 09-03-1994 as Exhibit-1. He had also led evidence to prove and establish that an amount of Rs. 17,000/- was paid to the defendant at the time of execution of the Exhibit-1 agreement. He has also led evidence in support of his pleaded stand that on 10-05-1994 the plaintiff had approached the defendant with the form for signing so as to seek permission for sale of the land but same was refused by the defendant. Thereafter, the plaintiff had approached the defendant on 15-08-1994 and again on 15-01-1995 for the same purpose which was declined by the defendant without any valid reason. Thereafter, the plaintiff had approached the defendant on 15-08-1994 and again on 15-01-1995 for the same purpose which was declined by the defendant without any valid reason. The learned court below had recorded categoric finding of fact to the effect that the execution of Exhibit-1 sale deed as well as the receipt of an amount of Rs. 17,000/- as advance payment had been admitted by the defendant. Therefore, it was evident that the plaintiff had succeeded in prima facie establishing his case for grant of a decree for specific performance of contract. 10. From the perusal of the judgment and decree under appeal it is apparent that the learned court below after a threadbare discussion and assessment of the evidence on record had recorded that the defendant had failed to lead any evidence to establish his version of the story more particularly the plea taken by him to the effect that Exhibit-1 document was actually a mortgage deed and that the amount of Rs. 17,000/- had been taken by him as a loan for the purpose of his son's education. The court below have also found that the defendant had even failed to lead any material before the court so as to demonstrate that the relief claimed by the plaintiff was prohibited under the Rural Indebtedness Relief Act as claimed by the defendant. The parties have lead evidence in the suit being fully aware of each other's case without raising any objection as regards the adequacy of issues. Therefore, at this stage the defendant cannot be allowed to raise any objection about framing of proper issues. 11. As regards the objection raised on behalf of the defendant regarding absence of proper pleadings on readiness and willingness on the part of the plaintiff the said aspect of the matter has been delved into by the court below in sufficient details. By referring to the judgment and decision of the Hon'ble Apex Court rendered in the case of Biswanath Ghosh Vs. Gobinda Ghosh reported in AIR 2014 SC 1582 the learned court below has held that there was no need for the plaintiff to aver in the plaint in the same words used in the section i.e. “ready and willingness” to perform the contract. Gobinda Ghosh reported in AIR 2014 SC 1582 the learned court below has held that there was no need for the plaintiff to aver in the plaint in the same words used in the section i.e. “ready and willingness” to perform the contract. If it is possible to conclude from the averments made in the plaint as well as the evidence on record that the plaintiff was pursuing the matter with all seriousness so as to get the contract performed then the mere absence of the word “ready and willingness” will not be a ground to non suit the plaintiff. The court below have observed that from the pleadings contained in the plaint “more particularly paragraph 3” as well as the evidence on record it is apparent that the plaintiff was relentlessly pursuing the matter with the defendant to obtain his signature for sale permission for the purpose of getting the sale deed executed by the defendant. Such pleaded stand of the plaintiff as well as evidence in support thereof stood un-impeached. On the basis of such materials the learned court below drew the inference that the plaintiff was ready and willing to perform his part of the contract at all material point of time. Such conclusion have been drawn based on cogent materials available on record. Having due regard to the principle of law laid down by the Hon'ble Apex Court, I do not find any justifiable ground to disagree with such concurrent finding of fact recorded by both the courts below. 12. By relying upon the judgment and decision of the Hon'ble Supreme Court in Telikicherla Sesibhushan (Dead) By Lrs. Vs. Kalli Raja Rao (Dead) By Lrs. & Ors. reported in 2014 Legal Eagles (SC) 666, Ms. R. Choudhury submits that in order to succeed in getting the decree for specific performance of contract the plaintiff is required to aver and prove that he was ready and willing to perform his part of the contract. There can be no dispute about the said proposition of law as regards the requirement of Section 16(c) of the Specific Relief Act which must be complied with so as to entitle the plaintiff to get a decree for specific performance of contract. However, the aforementioned decision relied upon by Ms. R. Choudhury does not lay down the law that the term “ready and willingness” must be used in the same word. However, the aforementioned decision relied upon by Ms. R. Choudhury does not lay down the law that the term “ready and willingness” must be used in the same word. As such the ratio of the decision laid down in the aforementioned case by the Hon'ble Apex Court would be of no assistance to the Appellant in the facts and circumstances of the present case. On the contrary I am of the view that the law declared by the Hon'ble Apex Court in the case of Biswanath Ghosh (supra) would be applicable in the case of the plaintiff and the same has been rightly relied upon by the court below. 13. At this stage Ms. R. Choudhury, submits that since the year 1994 the valuation of the suit land has increased manifold and therefore even if the sale deed was to be executed by the defendant in terms of the decree passed by the Trial Court, in equitable consideration the plaintiff may be directed to pay the enhanced amount as price of the land matching the market value of the suit land as prevailing on the date of execution of the deed. Without commenting on the merit of such submission made by Ms. Choudhury, this Court is of the view that such a prayer cannot be considered without hearing the opposite parties at the stage of the second appeal. Since the appeal is not being admitted on the grounds and reasons indicated hereinabove, this Court is not inclined to entertain the said submission of Ms. R. Choudhury at this stage. 14. In view of the discussions and observations made hereinbefore, this Court is of the opinion that there is no substantial question of law that arise for decision in the present appeal. This Court does not find any justifiable ground to interfere with the concurrent findings of the fact recorded by the court below. 15. In the result the second appeal is found without any merit and same stands dismissed.