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2015 DIGILAW 641 (GAU)

HIMAI SAIKIA v. GOLAP TAMULY

2015-05-27

A.K.GOSWAMI

body2015
JUDGMENT : This Second Appeal is directed against the judgment and decree dated 31.05.2001 passed by the learned Civil Judge, Senior Division, Golaghat, in Title Appeal No. 6/99 reversing the judgment and decree dated 24.09.99 passed by the learned Civil Judge, Junior Division No. 2, Golaghat, in Title Suit No. 13/92. 2. This Second Appeal was admitted to be heard by an order dated 20.07.2001 on the following substantial questions of law: (i) Whether the First Appellate Court wrongly exercised and invoked the power under Section 20 of the Specific Relief Act in decreeing the suit ignoring and overlooking the agreement made by the parties? (ii) Whether the learned First Appellate Court committed error in acting on Ext.-2 agreement in the absence of the original document? 3. This case was initially heard on 18.05.2015 when Mr. T. J. Mahanta, learned Senior counsel for the appellants had advanced some arguments. Today, I have heard Mr. A. Bhattacharya, learned counsel for the appellants and Mr. P. K. Kalita, learned counsel appearing for the respondents/plaintiffs. 4. The pleaded case of the plaintiffs is that out of 8 Bigha 12 Lecha of land, covered by Dag No. 900 of Patta No. 40, owned and possessed by the plaintiffs, they sold 6 Bigha 12 Lecha of land to the defendant, Dandadhar Saikia, for consideration amount of Rs. 5,000/- by executing a registered deed of sale on 10.05.82. Another agreement was executed by the defendant on that very day for re-conveyance of the said land in favour of the plaintiffs/vendor on receipt of consideration amount of Rs. 5,000/-. Subsequently, the plaintiffs received another sum of Rs. 5,000/- from the defendant and a fresh deed of agreement was made on 14.05.85 by superseding the earlier one. According to the said fresh deed of agreement, on receipt of a sum of Rs. 10,000/- within the period commencing from 6th year and before expiry of 7 years from the date of agreement for re-conveyance, the defendant would re-convey the land to the plaintiffs by executing a registered deed of sale and would deliver possession of the same to the plaintiffs. In the agreement dated 14.05.85, however, there was a clerical mistake in quoting the Sale Deed No. 1547 instead of 1567. 5. A pleader’s notice was issued on 24.12.91 asking the defendant to accept the sum of Rs. In the agreement dated 14.05.85, however, there was a clerical mistake in quoting the Sale Deed No. 1547 instead of 1567. 5. A pleader’s notice was issued on 24.12.91 asking the defendant to accept the sum of Rs. 10,000/- from the plaintiffs within 15 days from the date of receipt of the notice and to re-convey the suit land. 6. By filing written statement, the defendant denied execution of any deed of agreement on 10.05.82 for re-transfer of the suit land to the plaintiffs. He also denied execution of another deed of agreement on 14.05.85 by cancelling the earlier one on receipt of Rs. 5,000/- more as averred in the plaint. The original defendant having died, the substituted defendants also filed written statement. In the said written statement, they also denied execution of any agreement for re-conveyance. They also denied execution of any fresh agreement on 14.05.85. 7. On the pleadings of the parties, the following issues were framed by the learned trial Court: (i) Whether there is cause of action for the suit? (ii) Whether there was any agreement of re-conveyance of suit land by defendant in favour of the plaintiff? (iii) Whether the plaintiff is entitled to obtain the relief as prayed for in the plaint? (iv) To what any other relief or reliefs the parties are entitled? 8. The plaintiffs examined 4 witnesses including the scribe of the deed of agreement dated 14.05.85 as PW3. The defendant examined 3 witnesses, who are all sons of the original defendant. The plaintiffs exhibited 7 documents. The agreement dated 14.05.85 was exhibited as Ext.-2. It appears from the evidence on record that the agreement dated 10.05.82, i.e., the agreement which is stated to be the deed of re-conveyance executed by the defendant on the date of execution of the said sale deed, was torn up by the scribe of the said deed, Bapuram Dutta, after the fresh agreement of re-conveyance, Ext.-2, was executed by the defendant. 9. The learned trial Court held that an agreement has to be made or executed by both the parties and absence of the signature of one side indicates absence of consent also and, therefore, such an agreement is not enforceable. As the defendants had disputed the signature of Dandadhar Saikia, the learned trial Court also opined that Ext.-2 is a doubtful one. As the defendants had disputed the signature of Dandadhar Saikia, the learned trial Court also opined that Ext.-2 is a doubtful one. No valid and enforceable contract agreement having been produced by the plaintiffs, the suit was dismissed by the learned trial Court. 10. The learned First Appellate Court, on the other hand, on the basis of the evidence on record held that there was an agreement of re-conveyance made by the defendant, Dandadhar Saikia, on 10.05.82. The learned First Appellate Court also held that Ext.-2 was proved and the same was a valid document which is capable of being enforced and, accordingly, allowed the appeal. 11. It is strenuously argued by the learned counsel for the appellants that as the so-called original deed of re-conveyance had been destroyed, in absence of the same, no reliance could be placed on Ext.-2. It is submitted that there is no agreement between the parties even otherwise as Ext.-2 is a unilateral document. It has further been pointed out that the learned First Appellate Court misconstrued the evidence while holding that the witnesses of the plaintiffs had stated that the deed of re-conveyance, dated 10.05.82, visualized a period of 3 years for re-conveyance inasmuch as none of the witnesses had stated to that effect. It is further submitted that the view taken by the learned First Appellate Court that Ext.-2 is an enforceable document is not sustainable in law. Learned counsel for the appellants places reliance on a judgment rendered in the case of Viseshar Yadav v. Govind Swami, reported in AIR 2006 CHHATTISGARH 149 to emphasise that in a suit for specific performance of contract, a greater degree of certainty is required and it demands a clear, definite and precise understanding of all the terms and they must be exactly ascertained before their performance can be enforced and that it also needs a high quality of certainty than what is needed in an action at law for damages etc. as the jurisdiction which is vested with the Court is discretionary. 12. Mr. P. K. Kalita, learned counsel for the respondents, on the other hand, has submitted that the view taken by the learned trial Court is not at all sustainable inasmuch as there is no requirement that an agreement has to be signed by both the parties. as the jurisdiction which is vested with the Court is discretionary. 12. Mr. P. K. Kalita, learned counsel for the respondents, on the other hand, has submitted that the view taken by the learned trial Court is not at all sustainable inasmuch as there is no requirement that an agreement has to be signed by both the parties. It is also submitted that it is the contents of the document that has to be looked into and not the nomenclature of the document. Learned counsel for the respondents has placed reliance on a judgment rendered by this Court in the case of Md. Mohar Ali v. Md. Mamud Ali and Others, reported in (1998) 1 GLR 430 to buttress his argument that an agreement need not be always signed by both the parties. Mr. Kalita submits that the recitals of Ext.-2 executed by the defendant clearly reflected the execution of the earlier deed on 10.05.82 and also about the promise that on receipt of an amount of Rs. 10,000/-, in between 6 to 7 years, in one installment, he would re-convey the land purchased from the plaintiffs on 10.05.82, by executing a registered deed of sale. It is submitted that Ext.-2 was admitted into evidence without any objection. While admitting that the learned First Appellate Court misconstrued a part of the evidence of the plaintiffs’ witness, as pointed out by the learned counsel for the appellants, it is submitted that the same will have no consequence whatsoever inasmuch as the plaintiffs have sought to place reliance on the subsequent agreement for re-conveyance dated 14.05.85. 13. I have considered the submissions of the learned counsel for the parties and have perused the materials on record. 14. In Mohar Ali (supra), this Court had repelled the contention that the agreement for sale in the said case (Ext.-1), being not signed by both the parties, is void. It was held by this Court that the agreement for sale need not be signed by both the parties. 15. The deed of re-conveyance, dated 10.05.82, as disclosed from the evidence on record, was torn up on execution of the second deed of agreement for re-conveyance dated 14.05.85. A perusal of Ext.-2 goes to show that there is reference to the earlier deed of agreement, executed on 10.05.82, for re-conveyance on receipt of consideration amount of Rs. 5,000/-. 15. The deed of re-conveyance, dated 10.05.82, as disclosed from the evidence on record, was torn up on execution of the second deed of agreement for re-conveyance dated 14.05.85. A perusal of Ext.-2 goes to show that there is reference to the earlier deed of agreement, executed on 10.05.82, for re-conveyance on receipt of consideration amount of Rs. 5,000/-. It is also disclosed from Ext.-2 that a further sum of Rs. 5,000/- was taken by the plaintiffs and it was indicated that in the event of the plaintiffs repaying the amount of Rs. 10,000/-, in one installment, within 6 to 7 years, the defendant would re-convey the land purchased on 10.05.82 to the plaintiffs by executing a registered sale deed. The learned First Appellate Court has accepted the Ext.-2 to be a document executed by Dandadhar Saikia, the original defendant. Though the document is stated as an agreement for re-conveyance of land, going by the recitals therein, this Court is of the considered opinion that such a document is not required to be signed by both the parties and such a document can be enforced in law, as held by this Court in Mohar Ali (supra) in a case of agreement for sale. When genuineness of Ext.-2 is not in question, there cannot be any impediment in relying upon Ext.-2 merely because the deed of re-conveyance dated 10.05.82 could not be produced, the same having been torn up on execution of the deed dated 14.05.85. 16. In view of the discussions above, I find no merit in this appeal and, accordingly, the same is dismissed. The substantial questions of law are answered against the appellant. No costs. 17. Registry will send back the LCR.