Research › Search › Judgment

Gauhati High Court · body

2015 DIGILAW 622 (GAU)

Md. Khairul Islam v. Putul Kumar Bora

2015-05-25

SUMAN SHYAM

body2015
JUDGMENT 1. Heard Mr. M. H. Choudhury, learned counsel appearing for the appellant. 2. This Second Appeal has been preferred against the concurrent judgment and decree dated 10.12.2014 passed by the learned District Judge, Nagaon in Title Appeal No.29/2013 affirming the judgment and decree dated 26.09.2013 passed by the learned Civil Judge, Nagaon in Title Suit No.45/2007 decreeing the suit filed by the plaintiff. 3. The brief factual background of this case is that the appellant/ defendant is the owner of a plot of land measuring 9.66 lechas covered by Dag No.90 of Patta No.119 alongwith three rooms standing thereupon within Kachomari Mouza in the district of Nagaon, more fully described in the Schedule-A to the plaint. Being in need of money the defendant approached the respondent/ plaintiff with an offer to sell the land which was accepted by the plaintiff for a consideration of Rs.2,20,000/-. Accordingly, a registered deed of agreement for sale bearing No.2104/06 dated 02.11.2006 was entered by and between the appellant/defendant and the respondent/plaintiff pursuant whereto the plaintiff had paid an amount of Rs.2 Lacs as consideration money with a further condition of paying the remaining Rs.20,000/- to the defendant at the time of registration of the sale deed by the defendant after obtaining necessary sale permission from the concerned authorities. It is the case of the plaintiff that despite several requests made to the defendant for making application for sale permission the defendant did not take any such step although the plaintiff had offered to pay the balance consideration amount of Rs.20,000/-. On 06.10.2007 when the plaintiff offered Rs.20,000/- to the defendant with a request to execute the sale deed, the defendant refused to accept the money thereby violating the conditions of the agreement for sale. As such, the plaintiff was compelled to serve an Advocate’s notice on 17.10.2007 upon the defendant. However, since the Advocate’s notice dated 17.10.2007 failed to evoke any response from the defendant, the plaintiff was compelled to institute the present suit, inter alia, praying for a decree of specific performance of contract and for other consequential reliefs. 4. As such, the plaintiff was compelled to serve an Advocate’s notice on 17.10.2007 upon the defendant. However, since the Advocate’s notice dated 17.10.2007 failed to evoke any response from the defendant, the plaintiff was compelled to institute the present suit, inter alia, praying for a decree of specific performance of contract and for other consequential reliefs. 4. The defendant contested the suit of the plaintiff by filing written statement whereby he had taken the plea that he did not have any right, title and interest over the suit land as the suit land had been orally gifted by him in favour of his wife Nur Banu Begum on 21.01.2005 and the gift had also been accepted by her after taking delivery of possession of the gifted property. The defendant’s further contention is that the plaintiff being a money lender, the defendant had approached the plaintiff seeking a loan as he had to repay the outstanding loan amounting to Rs.1,50,000/- to the Bank. The defendant had borrowed Rs.2,20,000/- from the plaintiff on condition of paying interest at the rate of 5% per annum. Although the defendant wanted to execute a handnote but upon insistence of the plaintiff, a registered bainanama for lending money had to be executed in spite of reluctance on the part of the defendant. The plaintiff, however, assured him that the registered deed for agreement for sale would never be pressed into service by the plaintiff. The defendant had further claimed that he had repaid the entire amount of Rs.2,00,000/- to the plaintiff and therefore the suit itself was liable to be dismissed. 5. Upon the pleadings of the parties, the following issues were framed by the learned trial court :- “1. Is there any cause of action for this suit? 2. Whether the suit is maintainable in its present form? 3. Whether the defendant had right to contract Bainanama agreement for sale of the suit land and house? 4. Whether the defendant has right, title, interest and possession over the suit land and house? 5. Whether the suit Bainanama agreement is illegal, unenforceable, fraudulent and collusive one? 6. Whether the plaintiff is entitled to get relief as prayed for? 7. To what relief or reliefs the parties will be entitled? 8. Whether the defendant has executed the Bainanama in question in favour of the plaintiff?” 6. 5. Whether the suit Bainanama agreement is illegal, unenforceable, fraudulent and collusive one? 6. Whether the plaintiff is entitled to get relief as prayed for? 7. To what relief or reliefs the parties will be entitled? 8. Whether the defendant has executed the Bainanama in question in favour of the plaintiff?” 6. After considering the evidence adduced by both the parties in support of their case, by the judgment and order dated 26.09.2013 the learned trial Court decreed the suit filed by the plaintiff with cost. 7. Being highly aggrieved and dissatisfied with the judgment and decree dated 26.09.2013, the defendant as appellant had preferred Title Appeal No.29/2013. By the judgment and decree dated 10.12.2014 the learned District Judge, Nagaon being the First Appellate Court had also dismissed the Title Appeal No.29/2013 by upholding and affirming the judgment and decree passed by the learned trial Court. 8. Being aggrieved by the aforesaid judgment and decree dated 10.12.2014 passed by the learned First Appellate Court in Title Appeal No.29/2013 the defendant as appellant has preferred the instant Second Appeal. 9. Mr. M. H. Choudhury, learned counsel for the appellant, submits that the learned Court below had failed to consider the fact that the appellant/defendant did not have any title in respect of the suit land on the date on which the agreement for sale had been executed with the plaintiff on account of the fact that prior to the said date, he had duly gifted the said property to his wife who had also accepted the gift. He further submits that the deed of agreement for sale was actually not meant to be a document for creating any right, title and interest over the suit land but the same was merely a guarantee against the amount of Rs.2,20,000/- sought to be borrowed by the defendant from the plaintiff. Mr. Choudhury, however, fairly admits that it is not in dispute that the appellant/defendant had taken the amount of Rs.2,00,000/- from the plaintiff. 10. I have considered the submissions made by Mr. M. H. Choudhury, learned counsel for the appellant, and have also perused the record. Mr. Choudhury, however, fairly admits that it is not in dispute that the appellant/defendant had taken the amount of Rs.2,00,000/- from the plaintiff. 10. I have considered the submissions made by Mr. M. H. Choudhury, learned counsel for the appellant, and have also perused the record. From a perusal of the judgment and order passed by the learned First Appellate Court what can be seen is that both the Courts below have concurrently recorded finding of fact to the effect that the defendant had taken an amount of Rs.2,00,000/- as advance from the plaintiff being a part of the consideration money for sale of the suit land based on agreement for sale dated 02.11.2006. The fact that the money had been taken by the defendant is also admitted by the defendant and there is no dispute in that regard. It is also the pleaded stand of the plaintiff that he was ready and willing to perform his part of the contract and with that end in view the plaintiff has made several requests to the defendant to obtain the sale permission for the purpose of execution of the sale deed but the defendant did not act in terms of the conditions contained in the agreement for sale. Both the Courts below have disbelieved the version of the defendant that he had gifted the suit land to his wife prior to execution of the registered deed of agreement for sale. 11. The Courts below have also held that the plaintiff has been able to lead sufficient evidence to prove and establish Ext-1 i.e. the registered deed of agreement for sale. The testimony of PWs 2 and 3 sufficiently corroborated the version of the plaintiff as set out in the plaint. On the basis of such finding of fact the learned trial Court had decreed the suit filed by the plaintiff for specific performance of contract and the said decree has also been affirmed by the learned First Appellate Court. Such concurrent finding of fact recorded by both the Courts below appear to be firmly based on material evidence available on record and this Court does not find any justification to disagree with such concurrent finding of fact. As such, there is no substantial question of law that arises for adjudication in this appeal. 12. Consequently, this Second Appeal stands dismissed.