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Gauhati High Court · body

2015 DIGILAW 835 (GAU)

Md. Mayazul Ali v. Md. Makajul Ali Laskar

2015-07-14

A.K.GOSWAMI

body2015
JUDGMENT : RSA 79/2004 and RSA 201/2014 have been listed together and are also heard analogously as requested by the learned counsel for the parties. However, it is considered appropriate to dispose of both the appeals by separate judgments. 2. RSA 79/2004 is preferred by the defendants against the judgment and decree dated 19.12.2003 passed by the learned Civil Judge, Senior Division No. 1, Cachar, Silchar, in Title Appeal No. 32/2002, dismissing the appeal and upholding and affirming the judgment and decree dated 19.06.2003 passed by the learned Civil Judge, Junior Division No. 1, Cachar, Silchar, in Title Suit No. 116/1999. 3. One Md. Makajul Ali Laskar, as the plaintiff, had filed a suit praying for a decree against the defendants directing them to execute and register a sale deed in respect of the Schedule of land mentioned in an agreement of sale (Binama) dated 21.04.95 and, in the event of failure of the defendants to execute and register the sale deed in question, the sale deed to be registered through the court; for confirmation of possession of the land already delivered to the plaintiff on 21.04.95. The case of the plaintiff, in short, was that he had paid the entire consideration amount of Rs. 6,000/- to the defendants and he was also delivered possession and that an agreement for sale dated 21.04.95 was executed requiring the defendants to execute a registered sale deed once necessary permission was obtained. However, the defendants did not execute the sale deed on various pretexts and, later on, he found that no application had been filed for obtaining No Objection Certificate for effecting the sale and, in the month of August, 1999, when he met the defendants once again in connection with registration of the sale deed, because of the conduct of the defendants, he realised that they would not execute the sale deed. 4. In the written statement filed, the defendants admitted to putting their signatures on the agreement of sale but contended that the same had not been put on their free accord and that they did not receive any payment. It was also stated that they had sold the land in question to one Aftabuddin and delivered possession to him. 5. While deciding Issue No. 2 it was held by the learned Trial Court that the plaintiff had paid the consideration money to the defendants. It was also stated that they had sold the land in question to one Aftabuddin and delivered possession to him. 5. While deciding Issue No. 2 it was held by the learned Trial Court that the plaintiff had paid the consideration money to the defendants. In Issue No. 3, the learned Trial Court held that the agreement for sale (Binama), Ext.-1, was executed by the defendants on their own free will. While deciding Issue No. 4, relating to what relief the plaintiff was entitled, the learned Trial Court recorded a finding that though DW1 and DW2 had deposed that the land had been sold to one Aftab Uddin Borbhuiya, DW3, the sale deed in question was not produced. Upon consideration of the evidence of DW1, wherein he had described the boundaries of the purchased land of DW3, the learned Trial Court recorded the finding that the alleged sale as such will not affect the agreement for sale in question as the boundaries are different. Accordingly, the learned Trial Court held that the plaintiff is entitled to enforcement of specific performance of contract for sale of the land in question and possession of the plaintiff over the suit land was also accordingly confirmed. The findings have been upheld in appeal by the learned Lower Appellate Court. 6. The Second Appeal was admitted to be heard by an order dated 29.06.2005 on the following substantial question of law:- “1. Whether the learned Court below erred in decreeing the suit of the respondent/plaintiff for specific performance of the contract in the face of a clause in the agreement Exhibit-1 providing for compensation only, on the failure of the appellants/defendants to perform their part of the contract.” 7. Ms. D. Choudhury, learned counsel for the appellants has submitted that the learned Courts below committed error of law in decreeing the suit of the plaintiff as the agreement for sale did not envisage enforcement of the contract and provided only for compensation on the failure of the proposed vendors to execute the sale deed. It is submitted by her that the plaintiff’s suit is liable to be dismissed in absence of any prayer for compensation. 8. Mr. B.K. Purukayastha, learned counsel for the respondent has submitted that the defendants did not take any such plea in the written statement filed that the suit for specific performance of the contract was not maintainable. It is submitted by her that the plaintiff’s suit is liable to be dismissed in absence of any prayer for compensation. 8. Mr. B.K. Purukayastha, learned counsel for the respondent has submitted that the defendants did not take any such plea in the written statement filed that the suit for specific performance of the contract was not maintainable. He has submitted that possession of land measuring 6 Katha 11 Chattak comprised in two Dags and Pattas, measuring (i) 3 Katha 5 Chattak and (ii) 3 Katha and 6 Chattak were delivered to the plaintiff by the defendants on payment of Rs. 6,000/-, being the consideration amount, and the plaintiff is in possession of the same. It is also submitted that having been put in possession on receipt of the consideration amount, it does not lie in the mouth of the appellants to say that the plaintiff is not entitled to file suit for specific performance of contract. It is also submitted that it is not correct that Ext.-1 only contemplates providing for compensation. Accordingly, he submits that there is no merit in this appeal and the same is liable to be dismissed. 9. Learned counsel for the parties have translated for the benefit of the court the relevant portion of the agreement for sale, Ext.-1, which reads as follows:- “…..After getting the sale permission, we are bound to execute the registered sale deed and on failure to do that, we will be liable for cost and compensation in the court.” 10. Both the Courts below have concurrently held that the plaintiff was delivered possession by the defendants on receipt of Rs. 6,000/-, being the consideration amount, and the plaintiff’s possession was confirmed. Though a plea was also sought to be raised that the suit land was sold to one Aftab Uddin, who happened to be the plaintiff in the connected appeal, the finding of the Courts below is that though no sale deed was produced to buttress the claim, evidence on record disclosed that the suit land was different from the land allegedly sold to said Aftab Uddin. 11. A reading of the agreement for sale, in its entirety, does not lead to the conclusion that in the event of failure of the proposed vendors to execute the sale deed, the intending purchaser was left with the option of only filing a suit for compensation. 11. A reading of the agreement for sale, in its entirety, does not lead to the conclusion that in the event of failure of the proposed vendors to execute the sale deed, the intending purchaser was left with the option of only filing a suit for compensation. The language of the agreement for sale does not permit the Court to take such restrictive interpretation. That apart, such a plea was not even taken by the defendants, either in the written statement or in the courts below. 12. In view of the above, I find no merit in this appeal and, accordingly, the appeal is dismissed. Substantial question of law is answered against the appellants. No cost. 13. Registry will send back the records.