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2015 DIGILAW 634 (GAU)

Jyotish Bhagawati v. Labonya Prova Dutta

2015-05-26

SUMAN SHYAM

body2015
JUDGMENT 1. This Second Appeal is directed against the judgment and decree dated 24.04.2006 passed by the learned Civil Judge (Senior Division), Jorhat in Title Appeal No.22/2005 reversing the judgment and decree dated 02.05.2005 passed by the learned Civil Judge (Junior Division) No.1, Jorhat in Title Suit No.18 of 2004. 2. The case of the appellant/plaintiff, in brief, is that he had entered into a registered deed of agreement for sale dated 18.11.1999 with the defendant Nos.1 and 2, namely, Smti. Labonya Dutta and Sri Uttam Dutta, for purchase of a plot of land measuring 1 Katha 10 Lechas covered by dag No.971 of P.P. No.431 of Bahotia Gaon in Sarucharai Mouza in the district of Jorhat for a saleconsideration of Rs.60,000/- per katha. Pursuant to the execution of the aforesaid registered deed of agreement for sale, the plaintiff had paid the advance amount out of the said consideration pursuant whereafter the he was put in possession of the said plot of land. It is the case of the plaintiff that as per the agreement for sale dated 18.11.1999 the defendants were required to provide with a passage of 12 ft. width for the use of the plaintiff for egress and ingress to the aforesaid plot of land. Accordingly, as per the agreement for sale, the plaintiff having been put in possession over the plot of land in question, was enjoying his right of usage over the aforesaid 12 ft. plot of land. Even in the application for sale permission it was clearly indicated that the width of the approach road is 3.66 meter i.e. approximately 12 ft. After getting the sale permission the defendants had executed the registered deed of sale dated 06.05.2000 upon receipt of the balance consideration amount. Accordingly, the plaintiff has been continuing to possess the purchased plot of land together with the pathway measuring 12 ft. in width ever since the time he has been put in possession of the land in terms of the agreement for sale. 3. Plaintiff’s further case is that soon after the execution of the registered deed of sale he had obtained a certified copy of the sale deed and thereafter, could come to know that in the schedule of the said deed the defendants had wrongly indicated the approach road to be of 8 ft. wide instead of 12 ft. 3. Plaintiff’s further case is that soon after the execution of the registered deed of sale he had obtained a certified copy of the sale deed and thereafter, could come to know that in the schedule of the said deed the defendants had wrongly indicated the approach road to be of 8 ft. wide instead of 12 ft. Having learnt about the said discrepancy in the sale deed, the plaintiff had approached the defendants asking them to rectify the sale deed but the defendants had assured him by saying that it was a minor irregularity and would not create any problem in the enjoyment of the property purchased by the plaintiff. Acting in good faith on such assurance given by the defendant and bona fide believing the version of the defendants, the plaintiff went on using the 12 ft. wide approach road without insisting upon rectification/correction of the sale deed. 4. It is the case of the plaintiff that in the month of September, 2003 the defendants had started creating obstructions in the right of usage of the 12 ft. wide path by the plaintiff by erecting a bamboo fencing by the side of the path so as to reduce the width of the road to 8 ft. from its original measurement of 12 ft. In spite of repeated requests and demand made by the plaintiff, the defendants failed to vacate the 4 ft. encroachment of the aforesaid path as a result of which the plaintiff was compelled to institute the aforementioned Title Suit claiming easmentary right thereupon, inter alia, praying for a decree declaring the right of user of the plaintiff over the 12 ft. wide passage leading from Smashan Road to the land of the plaintiff and also for a decree of mandatory injunction and for other consequential reliefs. 5. On receipt of summons, the defendant Nos.1, 2, 3 and 5 had entered appearance and contested the suit by filing their joint written statement while the suit proceeded ex parte against the defendant No.4. The contesting defendants had taken a plea in the written statement that there was no cause of action for the suit and that the suit was not maintainable in the present form. The contesting defendants had taken a plea in the written statement that there was no cause of action for the suit and that the suit was not maintainable in the present form. The defendants further contended that the easement cannot be a subject of sale as claimed by the plaintiff and further pleaded that the plaintiff had no right to claim easementary right over the 12 ft. pathway. It was also the pleaded stand of the defendants that the agreement for sale had become inoperative pursuant to the execution of the registered deed of sale. Since the registered deed of sale mentions about a 8 ft. wide path only and the said registered deed having been prepared with the full participation and knowledge of the plaintiff, he was estopped from questioning the contents of the sale deed. The defendants had also denied that they had ever delivered possession of any passage measuring 12 ft. to the plaintiff as claimed by him. On the basis of such pleadings the defendants had prayed for dismissal of the suit. 6. On the basis of the pleadings of the parties, the learned trial Court had framed as many six issues, which are as follows :- “1. Whether there is any cause of action for the suit? 2. Whether the plaintiff has acquired any right of user over the suit passage measuring 12 ft. in breadth? 3. Whether the obstruction created by the defendants over the suit passage described in schedule “B” of the plaint is illegal and void? 4. Whether the sale deed No.763 dated 6.5.2000 invalidates all earlier agreement/contract entered between the plaintiff and the defendants? 5. Whether the plaintiff is entitled to any mandatory injunction as prayed for? 6. To what relief/reliefs the parties are entitled to under the law and equity?” 7. The plaintiff adduced oral and documentary evidence including examining official witnesses in support of his case. On the other hand, the defendants had also examined as many as three witnesses. After a threadbare analysis of the pleaded stands of the parties as well as the evidence available on record the learned trial court decided the Issue No.4 in favour of the plaintiff by holding that the intention of the parties was to provide the plaintiff with the 12 ft. After a threadbare analysis of the pleaded stands of the parties as well as the evidence available on record the learned trial court decided the Issue No.4 in favour of the plaintiff by holding that the intention of the parties was to provide the plaintiff with the 12 ft. wide pathway and accordingly the plaintiff was also put in possession of the land along with the right of usage over the said 12 ft. wide path since 18.11.1999 on the basis of the registered agreement for sale. The trial Court further held that on the basis of the materials available on record there was ample scope to believe that the plaintiff continued to exercise his right of user over the approach road measuring 12 ft. on the basis of the agreement for sale upto September 2003 on which date the defendants had created obstruction in enjoyment of such right by the plaintiff over the 12 ft. wide path by erecting bamboo fencing in a most illegal manner. On the basis of such finding the Issues No.4 and 2 were decided in favour of the plaintiff. Consequently, the suit filed by the plaintiff stood decreed by the trial Court. 8. Being aggrieved and dissatisfied with the judgment and decree dated 02.05.2005 passed by the learned trial Court in Title Suit No.18/2004 the defendants as appellants had preferred Title Appeal No.22/2005 in the Court of learned Civil Judge (Senior Division), Jorhat on the grounds mentioned in the memo of appeal. After hearing the learned counsels for the parties and on consideration of the materials on record the learned First Appellate Court had arrived at a finding that the registered deed of sale was not executed in terms of the agreement for sale. Since the registered deed of sale had mentioned about a 8 ft. wide pathway only and having regard to the fact that the registered deed of sale superseded the agreement for sale, hence the plaintiff would not be entitled to claim his right of usage over 12 ft. wide path as has been decreed by the trial Court. It was further held that the agreement for sale does not create any right or title in respect of the property proposed to be sold but it only create a right in favour of the parties to get the sale deed executed. wide path as has been decreed by the trial Court. It was further held that the agreement for sale does not create any right or title in respect of the property proposed to be sold but it only create a right in favour of the parties to get the sale deed executed. The learned First Appellate Court was of the view that the right, title and interest of the property is created by the transfer deed/sale deed as and when the same is executed and therefore, the plaintiff’s right of usage in respect of the pathway would be confined to the 8 ft. wide road as mentioned in the registered deed of sale. On the basis of such conclusions, the learned First Appellate Court reversed the findings of the learned trial Court by dismissing the suit filed by the plaintiff. 9. Being highly aggrieved and dissatisfied with the impugned judgment and decree passed by the learned First Appellate Court, the plaintiff as appellant had preferred the present Second Appeal which was admitted by this Court by framing the following substantial question of law :- “1. Whether the findings of the lower appellate Court reversing the impugned judgment and decree of the trial Court suffer from perversity as the same was passed by ignoring a vital document?” 10. I have heard Mr. A. Thakur, learned counsel appearing for the appellant. None appears for the respondents despite the name of the learned counsels having been duly reflected in the cause list. 11. Mr. Thakur, learned counsel for the appellant, submits that a bare perusal of the agreement for sale (Ext-1) would go to show that the intention of the parties was never to provide a pathway of 8 ft. wide but it was to provide a pathway of 12 ft. width to the plaintiff. The said factual position is also established from a perusal of the sale permission Ext-4, which contains a site plan wherein the width of the path in question has been clearly indicated as 3.66 m. (i.e. about 12 ft.). The aforesaid evidence brought on record could not be displaced by the defendants during the course of the trial. In such view of the matter the learned First Appellate Court committed manifest illegality in ignoring the aforesaid material evidence which would go to prove and establish the claim made by the plaintiff in the suit. 12. Mr. The aforesaid evidence brought on record could not be displaced by the defendants during the course of the trial. In such view of the matter the learned First Appellate Court committed manifest illegality in ignoring the aforesaid material evidence which would go to prove and establish the claim made by the plaintiff in the suit. 12. Mr. Thakur further submits that the pathway in question is the only passage that is available for ingress and egress to the plaintiff’s plot of land. It is a matter of common knowledge that in today’s world 8 ft. wide path is completely unfit to be used as a passage road to any residential plot as the same is not even a motorable path. He submits that there was sufficient evidence on record to suggest that the plaintiff had never agreed to purchase the plot of land with an approach road measuring 8 ft. wide. The evidence available on record supported by the pleaded stand of the plaintiff would unequivocally go to show that the parties were at consensus ad idem about the fact that the width of the pathway would be 12 ft. at all material point of time. However, taking advantage of an apparent clerical error in the registered deed of sale, whereby the width of the pathway has been erroneously shown to be 8 ft., the defendants had deliberately created obstruction on the pathway in the month of September, 2003 only to cause harassment and injury to the plaintiff. 13. Mr. Thakur further submits that a perusal of the judgment and order passed by the First Appellate Court would go to show that the Court below has not only failed to formulate points for determination but has also omitted to record independent finding in respect of the issues on the basis of the evidence available on record. In that view of the matter, the judgment and decree passed by the learned First Appellate Court being in contravention of the mandatory provisions of Order XLI Rule 31 CPC stands vitiated on such count as well. 14. I have considered the submissions made by Mr. Thakur, learned counsel for the appellant, and have also perused the materials available on record. 14. I have considered the submissions made by Mr. Thakur, learned counsel for the appellant, and have also perused the materials available on record. On a scrutiny of the contents of the Ext-1 registered deed of agreement for sale dated 18.11.1999 what can be seen is that the defendants had agreed to transfer a plot of land measuring 1 katha 10 lechas for a total sale consideration of Rs.90,000/-. The description of the land as contained in the Schedule of the said agreement may be quoted below for ready reference :- “SCHEDULE OF THE LAND A plot of land measuring 1 (one) Katha 10 (ten) lechas out of 2 (two) Kathas 14 (fourteten) Lechas of Dag No.971 of P.P. No.431 of Bahotia Gaon in Sarucharai Mouza, within the found boundaries – North : B.T. College. South : Late Munin Borthakur East : Bhagwan Das Gupta West : Prasanna Bora along with right of user over the passage of 12’ Ft. width leading from the Smashan Road to the above land over the remaining land of the Vendors.” 15. From a perusal of the Ext-4(1), which is a site map enclosed to the sale permission application, what is apparent is that the width of the approach road from Smashan Road to the plaintiff’s plot of land has been mentioned as 3.66 m. which is approximately 12 ft. The said site plan had also been duly certified by the authorities. From the above evidence available on record it is thus clear that even the defendants were under the clear understanding and knowledge that the width of the passage would be 12 ft. From a scrutiny of the oral testimony of the witnesses this Court does not find any basis to doubt the version of the plaintiff that the plaintiff has been enjoying the right of usage over the 12 ft. wide pathway ever since the time he has been put in possession of the land pursuant to the execution of the agreement for sale (Ext-1). 16. On perusal of the registered deed of sale dated 6.5.2000 (Ext-2) what can be seen is that the width of the passage has been reduced to 8 ft. wide pathway ever since the time he has been put in possession of the land pursuant to the execution of the agreement for sale (Ext-1). 16. On perusal of the registered deed of sale dated 6.5.2000 (Ext-2) what can be seen is that the width of the passage has been reduced to 8 ft. For the purpose of ready reference the Schedule of the Ext-2 sale deed is quoted herein below :- “SCHEDULE A plot of land measuring 1 (one) Katha 10 (ten) lechas (18.25 M North-South and 22M East-West) out of 2 (two) Kathas 14 (fourteten) Lechas of Dag No.971 of P.P. No.431 of Bahotia Gaon in Sarucharai Mouza, within the found boundaries – North : Vendors land. South : Late Munin Borthakur East : Land of Bhagwan Das Gupta West : Land of Prasanna Bora along with right of user over the passage of 8 Ft. width leading from the Smashan Road to the above land over the remaining land by the side of the B.T. College over the remaining land of the Vendors.” 17. It is, thus, apparent that although as per the agreement for sale the plaintiff had been put in possession in respect of the 1 katha 10 lechas of land together with his right of usage over the 12 Ft wide pathway, yet in the registered deed of sale (Ext-2) the width of the pathway has been shown as 8 Ft. wide. The question that would naturally arise for determination would therefore, be as to whether the defendants could have altered the width of the passage in the sale deed, in the facts and circumstances of the case, without the consent of the plaintiff. 18. Section 53A of the Transfer of Property Act, 1882 deals with part performance, which reads as follows :- “53A. 18. Section 53A of the Transfer of Property Act, 1882 deals with part performance, which reads as follows :- “53A. Part performance.-- Where any person contracts to transfer for consideration any immoveable property by writing signed by him or on his behalf from which the terms necessary to constitute the transfer can be ascertained with reasonable certainty, and the transferee has, in part performance of the contract, taken possession of the property or any part thereof, or the transferee, being already in possession, continues in possession in part performance of the contract and has done some act in furtherance of the contract’ and the transferee has performed or is willing to perform his part of the contract’ then, notwithstanding that where there is an instrument of transfer, that transfer has not been completed in the manner prescribed therefor by the law for the time being in force, the transferor or any person claiming under him shall be debarred from enforcing against the transferee and persons claiming under him any right in respect of the property of which the transferee has taken or continued in possession, other than a right expressly provided by the terms of the contract. Provided that nothing in this section shall affect the rights of a transferee for consideration who has no notice of the contract or of the part performance thereof.” From the reading of the aforesaid provision what can be seen is that once the proposed purchaser is put in possession of the immoveable property in terms of a written contract for sale for consideration, the transferor or any person claiming under him shall be debarred from enforcing against the transferee and persons claiming under him any right in respect of the property of which the transferee has taken or continued in possession, other than the right expressly provided by the terms of the contract. 19. In the instant case the transferor/defendants had admittedly put the plaintiff in possession of the purchased land on 18.11.1999 whereby a right of usage for 12 ft. wide pathway was also made available to him and such right of usage over the 12 ft. path was incidental to his title and possession over the purchased land. Evidence on record goes to show that the width of the passage was 12 ft. wide pathway was also made available to him and such right of usage over the 12 ft. path was incidental to his title and possession over the purchased land. Evidence on record goes to show that the width of the passage was 12 ft. on the date on which the possession of the land was delivered to the plaintiff in part performance of the agreement for sale. 20. No doubt, an agreement for sale would not confer any title upon the plaintiff over any portion of the land and the plaintiff’s title over the purchased land will be wholly governed by the registered deed of sale (Ext-2). However, since the plaintiff was evidently put in possession of the land together with right of usage over the 12 ft. wide pathway in terms of the agreement for sale dated 18.11.1999, hence, even dehors the sale deed, the plaintiff’s possession over the 12 ft. wide passage would remain protected against the true owner also. Such protection would be available to the plaintiff with effect from the date on which he had been delivered possession of the land in part performance of the agreement for sale and the defendants would be debarred from claiming or enforcing any right in respect of the property which the plaintiff had taken possession and continued in possession under the said agreement. 21. That apart, from a scrutiny of the pleadings as well as evidence on record, what can be seen is that the agreement between the parties was inter alia, in respect of 12 ft. wide passage. The defendant Nos.1 and 2 had also acted in terms of the said agreement. There is nothing on record to show that the parties had mutually agreed to settle down for 8 ft. wide passage instead of 12 ft. path. The defendants have not been able to show any valid reason for the modification of the width of the pathway in the sale deed. Hence, I do not find any basis to accept the conclusion drawn by the learned First Appellate Court in deciding the Issue Nos.2 and 4. 22. In view of the foregoing reasons, it is held that regardless of the fact that the registered deed of sale mentions the pathway measuring only 8 ft. in width, the defendants cannot cause any obstruction to the enjoyment of the right of the plaintiff in respect of 12 ft. 22. In view of the foregoing reasons, it is held that regardless of the fact that the registered deed of sale mentions the pathway measuring only 8 ft. in width, the defendants cannot cause any obstruction to the enjoyment of the right of the plaintiff in respect of 12 ft. wide pathway as per the description mentioned in the schedule to the agreement for sale dated 18.11.1999. 23. Further, from a perusal of the judgment and decree passed by the learned First Appellate Court it is also apparent that the said judgment is not in accordance with the mandate of Order XLI Rule 31 CPC. In a catena of judgment and decision rendered by the Hon’ble Apex Court it has been held that the First Appellate Court is required to frame points for determination and thereafter record independent findings in respect of all the issues by giving reasons thereof. Such requirement is mandatory in nature more particularly in case of judgment of reversal and any departure thereof would vitiate the judgment and order passed by the Appellate Court. In the present case, the impugned judgment and order passed by the learned First Appellate Court stands vitiated due to non compliance of Order XLI Rule 31 CPC. 24. In view of what has been discussed herein before, this Court is of the opinion that the judgment and decree passed by the learned First Appellate Court is not sustainable in the eye of law and as such the same is hereby set aside. The decree passed by the trial Court is hereby affirmed. In the result, the Second Appeal stands allowed. The question of law framed by this Court is answered in favour of the appellant/plaintiff and against the defendants/ respondents. However, having regard to the facts and circumstances of the case, there will be no order as to cost. Prepare decree accordingly. Registry to send back the LCR.