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2015 DIGILAW 677 (GAU)

Dipak Kumar Kar v. Bishwajit Das @ Bishu Das

2015-06-03

SUMAN SHYAM

body2015
Judgment : This second appeal has been filed against the judgment and decree dated 31-07-2014 passed by the learned Addl. District Judge, Cachar, Silchar in Title Appeal No. 13/2013 reversing the judgment and decree dated 09-09-2013 passed by the learned Civil Judge No. 1, Cachar, Silchar in Title Suit No. 63/2005. 2. The brief fact of the plaintiff’s case is that the defendants being the owner in possession of the land described in the schedule to the plaint had proposed to sell the same to the plaintiff for valuable consideration. Accordingly, the plaintiff had entered into an oral agreement for sale dated 07-08-2011 with defendant No. 1 and 2 for purchasing the said plot of land. It was agreed by and between the parties that the sale of the plot of land in question would be completed for a total sale consideration of Rs. 4,00,000/- and therefore, in pursuance to the said oral agreement, the defendant No. 1 and 2 had also received a sum of Rs. 5000/- as advance amount paid by the plaintiff. The said amount was received by the defendant No. 1 and 2 on their behalf as well as on behalf of other brothers and sisters and their mother. 3. It is the case of the plaintiff that although the defendants have promised to sale the land described in the schedule to the plaint within a period of nine month i.e. within 31-05-2012, from receipt of the balance consideration amount of Rs. 3,95,000/- from the plaintiff, yet the defendant No. 1 and 2 refused to execute the registered deed of sale in favour of the plaintiff, when he had approached the said defendants with a request to execute the sale deed by tendering the balance consideration amount of Rs. 3,95,000/-. On the first week of April, 2012, the plaintiff had come to know from a reliable source that the defendants were going to sale the suit land to some other person and said information having been ascertained and found to be true, the plaintiff was compelled to institute the instant title suit, inter alia, seeking a decree for specific performance of the oral agreement for sale dated 07-08-2011. 4. On receipt of the summons, the defendants had entered appearance and contested the suit by filing written statement whereby the defendants had categorically denied the averments made in the plaint. 4. On receipt of the summons, the defendants had entered appearance and contested the suit by filing written statement whereby the defendants had categorically denied the averments made in the plaint. The defendants had denied that there was any oral contract for sale entered with the plaintiff or that a sum of Rs. 5000/- was received by the defendants from the plaintiff as has been claimed in the plaint. The defendants had also denied that the plaintiff was to pay the balance consideration of Rs. 3,95,000/- and that the said amount was tendered as balance consideration on various occasions. The defendants also denied averment that the plaintiff was ready and willing to perform his part of the contract. It has also been contended in the written statement that the market value of the suit land would not be less than Rs. 25 lakhs. The defendants have also raised categorical objection as to the description of the suit land terming the same as incorrect. It was the pleaded case of the defendants that the plaintiff, in collusion with the witnesses viz. Nikhil Ranjan Dutta and Diren Das had cooked up a false story regarding oral agreement of sale with the sole intention of grabbing the land of the defendants in a illegal manner. On the basis of such pleadings the defendants prayed for dismissal of the suit. 5. On the basis of the pleadings of the parties, the learned Trial Court had framed as many as six issues which are as follows: 1. Whether there is any cause of action for the suit? 2. Whether the suit is maintainable in its present form and manner? 3. Whether the defendants entered into an agreement with the plaintiff to sell the suit land at a consideration of Rs. 4,00,000/- and received Rs. 5000/- as advance on 7/8/11? 4. Whether the plaintiff is willing and ready to perform his part of contract? 5. Whether the plaintiff is entitled to the decree as prayed for? 6. To what relief/ reliefs the plaintiff is entitled to? 6. In course of trial the plaintiff had examined three witnesses whereas the defendant had examined one witness. 5000/- as advance on 7/8/11? 4. Whether the plaintiff is willing and ready to perform his part of contract? 5. Whether the plaintiff is entitled to the decree as prayed for? 6. To what relief/ reliefs the plaintiff is entitled to? 6. In course of trial the plaintiff had examined three witnesses whereas the defendant had examined one witness. On the conclusion of the trial the learned Trial Court passed judgment and decree dated 09-09-2013 partly decreeing the suit filed by the plaintiff for specific performance of contract by directing the defendants to execute the sale deed in respect of 2/7th share in the undivided joint property held by the defendant No. 1 and 2 along with their brothers, sisters and the mother. 7. Being highly aggrieved and dissatisfied with the judgment and decree dated 09-09-2013 the defendant No. 1 and 2 as appellants had preferred Title Appeal No. 13/2013 before the court of Addl. District Judge, Cachar, Silchar. After hearing learned counsel for the parties the learned First Appellate Court had passed judgment and decree dated 31-07-2014 reversing the judgment and decree dated 09-09-2013 passed by the Trial Court, thereby dismissing the suit filed by the plaintiff. 8. Being aggrieved by the judgment and decree dated 31-07-2014 passed by the learned lower Appellate Court, the plaintiff, as appellant, has approached this Court by filing the instant second appeal. 9. I have heard Mr. K.K. Dey, learned counsel for the appellant and also perused the record. Mr. Dey submits that the learned Trial Court had decreed the suit for specific performance after a threadbare analysis of the evidence available on record. An examination of the evidence adduced by the plaintiff will go to show that the plaintiff/ appellant has been successful in proving and establishing his case. In that view of the matter the judgment and decree passed by the learned First Appellate Court is not sustainable in the eye of law as the same is not based on correct appreciation of the evidence of PW-2 and 3. Mr. Dey further submits that the learned First Appellate Court committed manifest error in failing to appreciate the evidence of PW-2 and 3 in their entirety and on the contrary has passed the impugned judgment and decree by considering the testimony of such witnesses in a piecemeal manner. Mr. Dey further submits that the learned First Appellate Court committed manifest error in failing to appreciate the evidence of PW-2 and 3 in their entirety and on the contrary has passed the impugned judgment and decree by considering the testimony of such witnesses in a piecemeal manner. He, therefore, submits that the impugned judgment and decree passed by the First Appellate Court is vitiated by complete perversity and hence, liable to be dismissed by this Court. 10. It is settled law that in a case where a decree of specific performance of contract is sought on the basis of an oral agreement for sale, a heavy burden is cast upon the plaintiff to prove and establish not only the fact that there was in fact an oral agreement of sale in respect of a specific plot of land but the plaintiff would also be required to lead evidence on record so as to prove the contents of such agreement. In the instant case, what appears from the record is that the plaintiff has relied upon the oral testimony of the PW-2 and PW-3 as support of his case that there was oral agreement for sale by and between the parties. The learned First Appellate Court has held that from the evidence of the PW-2 (Nikhil Ranjan Dutta) it can be held that the said witness did not have any personal knowledge regarding any negotiation between the plaintiff and the defendants in respect of the sale of the suit land. Further the learned First Appellate Court went on to observe that the PW-3 has also admitted that he did not witness any negotiations in respect of the sale of the land but he was present during the transaction of Rs. 5000/- only. 11. Appreciating the evidence of PW-2 and PW-3, the learned First Appellate Court had arrived at a conclusion that no negotiation for sale of the land had taken place in presence of any of the witnesses but only the transaction of Rs. 5000/- have taken place. The aforesaid position goes contrary to the oral testimony of the PW-1 (plaintiff) to the effect that the negotiation for sale of the land had taken place on 07-08-2011 in presence of PW-2 and PW-3. Besides the above, the plaintiff has failed to produce any money receipt in respect of the amount of Rs. 5000/- have taken place. The aforesaid position goes contrary to the oral testimony of the PW-1 (plaintiff) to the effect that the negotiation for sale of the land had taken place on 07-08-2011 in presence of PW-2 and PW-3. Besides the above, the plaintiff has failed to produce any money receipt in respect of the amount of Rs. 5000/- allegedly paid to the defendant No. 1 and 2 as advance amount. On the face of the categorically pleaded stand of the defendants denying the case of the plaintiff and also in view of the averments made by the defendant to the effect that PW-2 and 3 had a vested interest in the land belonging to the defendant, the learned First Appellate Court did not place any credence on the testimony of the plaintiff’s witnesses and therefore held that the plaintiff has failed to prove and establish the existence of oral contract for sale of the suit land. 12. From the materials on record there is nothing to show that any evidence was lead to through light as to the terms and condition of the alleged oral contract for sale. As a matter of fact there is nothing in the testimony of PW-1, 2 and 3 to indicate as to what was the total area of land that was proposed to be transacted under the alleged oral agreement for sale. It is also not apparent as to on what basis the defendant No. 1 and 2 could have entered into an agreement for sale for alienating share of other co-owners who were admittedly not a party to such transaction. Having regard to the facts and circumstance of the case and the evidence lead by the plaintiff, learned First Appellate Court was of the view that the plaintiff has failed to prove and establish his case entitling him to a decree for specific performance of contract. From the materials available on record this Court is of the opinion that the findings recorded by the learned First Appellate Court do not suffer for any infirmity. 13. Despite opportunities granted on two previous occasions permitting the appellant to being on record the testimony of the PW-1, 2 and 3 in support of his claim that the finding recorded by the learned First Appellate Court was vitiated by perversity, the appellant has failed to do so. 13. Despite opportunities granted on two previous occasions permitting the appellant to being on record the testimony of the PW-1, 2 and 3 in support of his claim that the finding recorded by the learned First Appellate Court was vitiated by perversity, the appellant has failed to do so. In the absence of any materials brought on record by the appellant, it is not possible for this Court to appreciate the contention of the appellant that the findings of the learned First Appellate Court is vitiated by perversity. The relief of decree for specific performance of contract under Section 20 of the Specific Relief Act is a discretionary relief. It appears that in the facts and circumstances of the case, the learned court below had rightly exercised the discretion against the plaintiff and dismissed the suit. 14. In view of the foregoing reasons, I do not find any illegality or infirmity in the findings and conclusion recorded by the Appellate Court below warranting interference by this Court. In that view of the matter there is no substantial question of law that arises for decision in this appeal. In the result this second appeal stands dismissed.