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2015 DIGILAW 872 (GAU)

Dwijendra Kumar Dey v. Shova Rani Dey @ Momi Dey

2015-07-21

A.K.GOSWAMI

body2015
JUDGMENT : 1. This second appeal is preferred by the defendant against the judgment and decree dated 05.08.2004, passed by the learned Civil Judge (Senior Division), Tinsukia in Title Appeal No. 4/1993, reversing the judgment and decree dated 08.01.1993, passed by the learned Munsiff No. 2, Tinsukia in Title Suit No. 84/1975, whereby the suit of the original plaintiff was dismissed. 2. The plaintiff filed a suit for specific performance of contract in respect of land measuring 36’ 3” in the North, 32’ in the South, 60’ 6” in East and 55’ 6” in the West out of land measuring 18 Lechas of Dag No. 1351 (old)/1724 and 1725 (new) in P.P. No. 363(old)/463(new). The case set out in the plaint is that the plaintiff was a tenant of the previous owner in respect of half portion of land measuring 1 Katha 4 Lechas contained in Dag Nos. 1724 and 1725. Entire land measuring 1 Katha 4 Lechas was purchased by the defendant from the previous owner though it was supposed to be purchased in joint name of the plaintiff and the defendant. Subsequently, plaintiff desired to purchase 18 Lechas in the eastern side for a consideration amount of Rs.600/-, and accordingly, an agreement for sale dated 05.06.1972 was executed in between the plaintiff and the defendant and a sum of Rs. 200/- was paid as earnest money. 3. It was agreed that the balance amount would be paid on obtaining permission from Tinsukia Development Authority and the sale deed would be executed immediately thereafter. Despite the plaintiff being ready and willing all through and in spite of sending pleader’s notice, the defendant failed to perform his part of the contract, and accordingly, he filed the suit. 4. The defendant filed written statement stating that he had applied to the Tinsukia Development Authority seeking requisite permission and he failed to obtain permission and as such, the plaintiff is not entitled to specific performance of contract. 5. Initially, the learned Trial Court had framed 4 issues. Suit was party decreed by judgment and order dated 22.02.1977. However, on appeal, the suit was remanded to the learned Trial Court to decide the case afresh by framing an additional issue, which is as follows: “Additional Issue No. 5: Whether the defendant failed to perform his part of contract as per agreement?” 6. Suit was party decreed by judgment and order dated 22.02.1977. However, on appeal, the suit was remanded to the learned Trial Court to decide the case afresh by framing an additional issue, which is as follows: “Additional Issue No. 5: Whether the defendant failed to perform his part of contract as per agreement?” 6. On the basis of evidence on record, and more particularly, relying on the evidence of DW - 2, who is an employee of the Tinsukia Development Authority, the learned Trial Court dismissed the suit on the ground that Tinsukia Development Authority did not grant permission as the area of land proposed to be sold does not fulfill the minimum requirement for grant of No Objection Certificate for sale. However, a direction was issued by the learned Trial Court to the defendant to pay half of the earnest money to the plaintiff. 7. The learned lower Appellate Court, recorded the finding that in pursuance of Exhibit – 4, the agreement of sale, the defendant had applied for grant of No Objection Certificate to the Tinsukia Development Authority. The learned lower Appellate Court also noted that vide Exhibit – A, permission was rejected by the Assistant Engineer of the Tinsukia Development Authority on the ground that the plot of land was not as per minimum requirement of Bye-laws of the Tinsukia Development Authority. However, the learned lower Appellate Court held that the defendant applied to the Tinsukia Development Authority only in respect of 11 Lechas of land and not in respect of 18 Lechas, contemplated to be sold under Exhibit – 4 by the defendant and as such the defendant did not perform his part as per terms of Exhibit – 4. Accordingly, the appeal was allowed directing the defendant to execute and register a sale deed in favour of the plaintiff in respect to the suit land as indicated in the schedule of the plaint. 8. The appeal was admitted to be heard by an order passed on 05.01.2005 on the following substantial questions of law: “A. Whether the suit was barred under Section 32 of the Contract Act? B. Whether the agreement for sale having been executed on 5.6.1972 and the suit having filed on 6.7.1975, a substantial question of law arises if the suit was barred by limitation under Article 57 of the Limitation Act? B. Whether the agreement for sale having been executed on 5.6.1972 and the suit having filed on 6.7.1975, a substantial question of law arises if the suit was barred by limitation under Article 57 of the Limitation Act? C. Whether the suit was barred under Section 14 of the Specific Relief Act, 1963? D. Whether in equity the agreement for sale would be executable and reasonable compensation in money would not meet the ends of justice? E. Whether the impugned judgment and decree of reversal is perverse to the materials in record, equity and the provisions of law?” 9. Mr. B. Chakraborty, learned counsel for the appellant submits that he would confine his argument only to substantial question of law No. E and he will not urge the other questions of law. He has submitted that the learned lower Appellate Court was wrong in holding that 18 Lechas of land was proposed to be sold and such finding is contrary to the contents of the agreement for sale, Exhibit – 4 as well as the schedule to the plaint. It is submitted that the categorical evidence of DW – 2 is that for the purpose of granting No Objection Certificate, a minimum 3060 sq. ft. of land is required. The dimension given in the plaint in respect of the plot in question measures about 1972 sq. ft., which is more or less 13.70 Lechas. It is admitted by him that No Objection Certificate was sought for in respect of 11 Lechas. Even if it is held that the agreement for sale contemplated selling of land measuring 18 Lechas, then also the total area of land would have measured only 2592 sq. ft., which is less than minimum requirement, he submits. The learned lower Appellate Court did not advert to this aspect of the matter, and therefore, the impugned judgment is not sustainable in law, he submits. 10. Mr. D. Baruah, learned counsel for the respondent submits that defendant had deliberately applied for permission in respect of 11 Lechas of land so as to frustrate the sale, and therefore, the learned lower Appellate Court was justified in holding that the defendant did not fulfill his part of the contract as the defendant had not undertaken his part of the contract as required under Exhibit – 4. According to him, the learned lower Appellate Court justifiably passed the impugned judgment directing specific performance of the contract. 11. On a specific question put by the Court, Mr. Baruah has submitted that the suit land proposed to be sold was 36’ 3” in the North, 32’ in the South, 60’ 6” in East and 55’ 6” in the West out of land measuring 18 Lechas. Mr. Baruah also submits that if the dimensions are taken into account, it would work out to 13.7 Lechas. 12. I have considered the submissions of the learned counsel for the parties and perused the materials on records. 13. The learned lower Appellate Court proceeded on the basis that under Exhibit – 4, land proposed to be sold was 18 Lechas, out of 1 Katha 4 Lechas, meaning thereby, out of 24 Lechas. It does not appear to this Court that 18 Lechas was proposed to be sold as both in the suit as well as in Exhibit – 4, there is reference to the dimension of the land as submitted by Mr. Baruah. If the aforesaid dimensions are taken, it does not add up to 18 Lechas. 14. It is not in dispute that the agreement for sale visualized taking of permission from the Tinsukia Development Authority for effecting the sale. In fact, there is no dispute that unless permission is accorded by the Tinsukia Development Authority, land cannot be sold. Exhibit – A is dated 09.10.1972, whereby the Assistant Engineer, Tinsukia Development Authority rejected the prayer for grant of No Objection Certificate as the area and dimension of plot due to sub-division was not as per minimum requirement of the Bye-laws of the Tinsukia Development Authority. DW – 2, in his evidence, had stated that for the purpose of effecting a sale in the area where the land was proposed to be sold, a minimum frontage of 45’ and an area of 3060 sq. ft. is required. He also indicated in his evidence that in the application for grant of No Objection Certificate, area of land was referred to as 11 Lechas. It is seen that there is no cross-examination with regard to the minimum area of land required for grant of No Objection Certificate. Thus, it is accepted by the plaintiff that for effecting a sale, minimum area of 3060 sq. ft. is required. It is seen that there is no cross-examination with regard to the minimum area of land required for grant of No Objection Certificate. Thus, it is accepted by the plaintiff that for effecting a sale, minimum area of 3060 sq. ft. is required. Even if land proposed to be sold was 18 Lechas, then also, the area of land falls far short of minimum requirement of 3060 sq. ft. as 18 Lechas is equivalent to 2592 sq. ft. 15. The learned lower Appellant Court did not take into consideration the evidence of DW – 2 in the correct perspective. Even though there was a failure on the part of the defendant in mentioning measurement of the land proposed to be correctly, on the face of the evidence, no decree could have been passed directing the defendant to execute a decree in violation of statutory prevalent norms. No finding is recorded by the learned lower Appellate Court that the land proposed to be purchased by the plaintiff would have met the minimum requirement under the Bye-laws of Tinsukia Development Authority. 16. In the above perspective, I am of the considered opinion that impugned judgment of the learned lower Appellate Court is not sustainable in law. Accordingly, the same is set aside. The substantial question of law is answered accordingly. The decree of the learned Trial Court is restored. No cost. 17. Registry will send back the records.