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2016 DIGILAW 495 (GAU)

Darsan Sarmah v. Naren Saikia

2016-06-02

N.CHAUDHURY

body2016
ORDER : The concurrent findings of the learned two courts below have been challenged in this present second appeal by the defendant. Learned Civil Judge (Sr. Divn.), Morigaon decreed title suit No. 58/1999 on 16.11.2002 against which the principal defendant No. 1 preferred title appeal No. 7/2002 in the court of learned District Judge at Morigaon and the learned District Judge dismissed the title appeal by his judgment and decree dated 14.04.2004. The present second appeal has been preferred against the aforesaid two judgments and decrees passed by the learned courts below. 2. One Sri Naren Saikia and Smt. Meena Kumari Bora Saikia being husband and wife instituted title suit No. 58/1999 in the Court of learned Civil Judge (Sr. Divn.) at Morigaon on 21.12.1999 stating that suit land measuring 1K 10L covered by Dag No. 472 of PP No. 165 of Naokata Kissam under Mauza Dandua in the district of Morigaon was owned originally by one Neheru Lalung along with other lands of the aforesaid patta. On his death, his property vested on his three sons who are proforma defendants No. 5, 6 and 7, namely, Gudhan Deka, Madan Deka and Gopal Deka. Land measuring 1K 10L covered by dag No. 472 was subsequently purchased by the principal defendant No. 1, Darsan Sarmah and his brother Rajeswar Sarmah, proforma defendant No. 1 in the year 1976 and their names were duly mutated in the Records of Rights on 12.08.1977. The principal defendant No. 1 proposed to the plaintiff No. 1 in the year 1990 to sell 15L of land at a consideration of Rs. 26,000/- to be paid on instalment and the plaintiffs having agreed to the same, paid Rs. 5,000/- to the principal defendant No. 1 on 01.01.1991 who on receipt of the amount, delivered symbolical possession to the plaintiffs with a promise to remove thatched shed there-from and also executed a katcha sale deed in favour of the plaintiff No. 2 who is none other than the wife of the plaintiff No. 1. The plaintiffs came into possession of the land on 08.02.1991 and started living there by constructing dwelling house w.e.f. February, 1991. Payment of all the instalments of the total consideration of Rs. 26,000/- was completed on 19.09.1991 and thereafter the principal defendant No. 1 executed one unregistered sale deed on 19.09.1991 after receiving another extra some of Rs. 1500/-. The plaintiffs came into possession of the land on 08.02.1991 and started living there by constructing dwelling house w.e.f. February, 1991. Payment of all the instalments of the total consideration of Rs. 26,000/- was completed on 19.09.1991 and thereafter the principal defendant No. 1 executed one unregistered sale deed on 19.09.1991 after receiving another extra some of Rs. 1500/-. The principal defendant No. 1 undertook to execute a registered sale deed in favour of the plaintiffs as and when demanded but despite repeated request, they went dillydallying. Ultimately, on 23.03.1999, the plaintiff No. 1 received a legal notice dated 20.03.1999 from the principal defendant through his Advocate to which the plaintiffs did not reply. But thereafter the plaintiffs received summons in title suit No. 15/1999. Under such circumstances, the plaintiffs became aggrieved and instituted the suit for getting a decree for specific performance of contract against the principal defendant No. 1 with respect to 15L of land described in Schedule A to the plaint along with other usual relief. 3. On being summoned, the principal defendant No. 1 submitted one written statement whereas proforma defendants filed another written statement. The principal defendant No. 1 in paragraph 20 of his written statement stated his own facts. According to him, land measuring 1K 10L covered by dag No. 472 of the suit patta was purchased by he and his brother who was proforma defendant No. 1 and their joint owners. The plaintiffs are really tenants of the defendant No. 1 and the proforma defendant No. 1 on the suit land on paying land revenue regularly and paid rents to the tune of Rs. 5,100/- upto 30.05.1999. Thereafter, when the plaintiffs declined to pay house arrears to the defendants he was asked on several occasions to vacate the premises, however, to no avail. Under such circumstances, title suit No. 15/1999 was instituted for eviction and realisation of arrear rent. The suit is pending in the court of learned Civil Judge (Jr. Divn.) at Morigaon. The principal defendant No. 1, therefore, prayed for dismissal of the suit with cost. 4. Under such circumstances, title suit No. 15/1999 was instituted for eviction and realisation of arrear rent. The suit is pending in the court of learned Civil Judge (Jr. Divn.) at Morigaon. The principal defendant No. 1, therefore, prayed for dismissal of the suit with cost. 4. The proforma defendants No. 1 to 7 submitted a joint separate written statement and they merely denied the averments made in the plaint and further claimed that principal defendant No. 1 has no right, title and interest to execute any sale deed or to enter into a contract for sale without the consent of the proforma defendant No. 1 who is the joint owner and in possession of the suit land. They also prayed that the suit of the plaintiff be dismissed with cost. 5. Upon perusal of the plaint and the two written statements filed by the parties to the suit, the learned trial court framed as many as 8 issues including one additional issue on limitation and the same are quoted below for ready reference:- 1. Whether there is any cause of action for the suit? 2. Whether the suit is bad for non-joinder of parties? 3. Whether the defendant sold the suit land to the plaintiff No. 2 by executing an un-registered sale deed? 4. Whether the plaintiffs are liable to be protected in accordance with the provision of Sec. 53(A) of the Transfer of Property Act? 5. Whether the plaintiff is entitled to get a decree for specific performance of contract as prayed for? 6. Whether the plaintiffs were tenants under the principal defendant No. 1? 7. What relief, if any, the parties are entitled to? Additional Issue: 8. Whether the suit is barred by limitation? 6. In course of trial, plaintiff examined 3 witnesses including the plaintiff No. 1 and exhibited 13 documents. The defendants examined 7 witnesses and exhibited 5 documents as Ext. Ka, Kha, Ga, Gha and Unga which are available on record. 7. The learned trial court took up issue No. 8 for decision at first as it was the issue on limitation and having discussed the pleadings of both sides held that the suit was not barred by limitation because limitation starts from the date of refusal to execute sale deed. 7. The learned trial court took up issue No. 8 for decision at first as it was the issue on limitation and having discussed the pleadings of both sides held that the suit was not barred by limitation because limitation starts from the date of refusal to execute sale deed. Issue No. 3 was taken up thereafter which is in regard to the question whether defendant sold the suit land to the plaintiff No. 2 by executing an unregistered deed. The learned trial court noted that Ext. 5 is the alleged unregistered sale deed which was made pursuant to execution of Exts. 4, 3 and 6. Ext. 6 is an exercise book containing the details of payment made to the defendant No. 1. From all these exhibits, the learned trial court found that principal defendant had received Rs.26,000/- in full being the total consideration for sale of the suit land to the plaintiffs. It did not escape the notice of the learned trial court that PW 2 being the witness of the Ext. 5 came to the witness box and proved execution of the document. Accordingly, issue No. 2 was decided in the affirmative in favour of the plaintiffs. 8. Coming to issue No. 4, the learned trial court examined the provision of section 53(A) of the Transfer of Property Act vis-a-vis Ext. 4 whereby plaintiffs were put into possession of the suit land upon part payment of the total consideration. Ext. 4 contains a recital to the effect that upon total payment of consideration, the executant (the principal defendant No. 1), executed a registered sale deed in favour of the plaintiffs. The learned trial court was of the view that these exhibits were duly proved and thus not only payment of money but handing over of possession in favour of the plaintiffs also stood established. Under such circumstances, the learned trial court was of the view that plaintiffs became entitled to the benefit of Section 53(A) of the Transfer of Property Act. Under such circumstances, the learned trial court was of the view that plaintiffs became entitled to the benefit of Section 53(A) of the Transfer of Property Act. Having so found, issue No. 5 was accordingly decided in favour of the plaintiffs holding that plaintiff is entitled to get a decree of specific performance for execution of a registered sale deed as total consideration had already been paid by the plaintiffs to the principal defendant No. 1 and that plaintiffs were in possession of the suit land and there was nothing more to be done by the plaintiffs pursuant to the agreement between the parties. The plaintiffs had developed the land and construction on being handed over possession of the suit land after part payment of total consideration and thereafter they paid the consideration amount in full. Accordingly, whole of the suit of the plaintiff was decreed directing the defendant to execute a registered sale deed in favour of the plaintiff with respect to the suit land within three months from the date of passing of the decree failing which the decree would be executed in accordance with law. This judgment and decree passed on 16.11.2002 came under challenge in title appeal No. 7/2002 in the court of learned District Judge at Morigaon. 9. The learned District Judge in his judgment and decree dated 09.04.2004 has elaborately discussed the pleadings of the parties and the respective evidence adduced by them both oral and documentary. Without framing point for determination as required under Order XLI Rule 31 of the Code of Civil Procedure, the learned first appellate court proceeded to appreciate the evidence along with the pleadings vis-a-vis the issues framed by the learned trial court. From a perusal of the impugned first appellate judgment it appears that the learned first appellate court has not only considered the pleadings of the parties, the evidence adduced by both sides both oral and documentary but the learned first appellate court has applied mind to examine the findings of the learned trial court in respect of each of the issues were correct. Although the learned trial court observed that the defendant did not adduce any documentary evidence but the learned first appellate court having perused records has held that Ext. Ka, Kha, Ga, Gha and Unga were exhibited by defendants. Although the learned trial court observed that the defendant did not adduce any documentary evidence but the learned first appellate court having perused records has held that Ext. Ka, Kha, Ga, Gha and Unga were exhibited by defendants. It was further observed that in course of trial since the principal defendant No. 1 raised an objection as to his signature appearing on the exhibits of the plaintiff particularly Exts. 4 and 5, the specimen signature of the principal defendant No. 1 along with the questioned documents were sent to hand writing expert and thereupon it came to light that the signatures appearing on the questioned document were put by the same person who had given specimen signatures before the court. Be that as it may, without jumping to the conclusion immediately that the principal defendant No. 1 had executed Ext. 4 and 5 in favour of the plaintiffs, the learned first appellate court examined the oral and documentary evidence individually. Coming to issue No. 4, the learned first appellate court has noticed that Ext. 4 witnessed payment of total consideration of Rs. 26,000/-, Ext. 3 was executed on 19.01.1991 and its contents shows that defendant No. 1 had received Rs. 5,000/- on the date of execution of the document. Sum of Rs. 26,000/- was paid in full to the principal defendant No. 1 till 19.01.1991 and so by executing Ext. 3, the defendant No. 1 relinquished his right, title and interest in favour of the plaintiffs. Ext. 5 Katcha sale deed, therefore, was executed by the defendant No. 1 and so considering the entirety of circumstances the learned first appellate court was of the view that the plaintiffs are entitled to benefit under section 53(A) of the Transfer of Property Act. The learned first appellate court thereafter proceeded to examine the correctness of the findings of the learned trial court as against additional issue No. 8 on limitation. On an objective examination of the evidence led by the parties and the submissions made by the learned counsel, the learned first appellate court was of the view that the plaintiffs did not have any occasion to institute the suit till January, 1999 when the last request for execution of the sale deed was made. On an objective examination of the evidence led by the parties and the submissions made by the learned counsel, the learned first appellate court was of the view that the plaintiffs did not have any occasion to institute the suit till January, 1999 when the last request for execution of the sale deed was made. The purport of the findings of the learned first appellate court is that only after receipt of legal notice from the counsel of principal defendant No. 1 it came to light that the principal defendant No. 1 was not agreeing to execute sale deed in favour of the plaintiffs in terms of the assurance given and so the plaintiffs immediately instituted the suit. This being the position, the suit was considered to have been filed within statutory period of limitation. Issue No. 8 was accordingly decided in favour of the plaintiffs upholding the findings of the learned trial court in this regard. Issue No. 3 and 4 have also been independently considered one after another and thereupon it was held that the defendant No. 1 being one of the two owners of 1K 10L covered by dag No. 472 10. I have heard Mr. P Mahanta, learned counsel for the appellant. None of the ten learned counsel whose names are duly disclosed in the cause list has appeared before the court during whole period of argument over two hours. I have perused the lower court records including the pleadings of the parties, the depositions of witnesses of both sides and the documentary evidence adduced by them. 11. This court while admitting the second appeal on 13.12.2004 framed following four substantial questions of law:- 1. Whether the Suit was maintainable under Article 54 of the Limitation Act under the facts and circumstances that the Plaintiff has completed his part of the act as per unregistered deed in the year 1991 where as the suit was filed in the year 1999? 2. Whether exhibit 6(1), 6(2) and 6(3) showing signature of the appellant No. 1 as regard taking of money from defendant from time to time can be construed as Books of Accounts maintained on day to day basis U/S 34 of the Evidence Act? 3. 2. Whether exhibit 6(1), 6(2) and 6(3) showing signature of the appellant No. 1 as regard taking of money from defendant from time to time can be construed as Books of Accounts maintained on day to day basis U/S 34 of the Evidence Act? 3. Whether exhibit No. 3, the unregistered sale deed dated 19.09.1991 can be relied on in view of t he fact that it was allegedly signed by appellant No. 1 Sri Darsan Sarmah who is only one of the owners of the part of the whole suit land along with his brother appellant No. 2/ proforma defendant No. 2? 4. Whether a document registerable compulsorily under the Indian Registration Act can be acted upon by a court of law for acting on the same for title etc. simply on the ground that signing or Execution of such document has been proved by a party (U/S 68 of Evidence Act)? 12. In view of the findings of the learned courts below and the evidence adduced by the parties, the substantial question of law appearing at Sl. No. 2 does not appear to be necessary. Mr. P Mahanta, learned counsel for the appellant, has not argued this substantial question of law and it is accordingly not required to be answered. 13. The substantial question of law at Sl. No. 1 above is in regard to limitation. Though objection on limitation was not taken by the defendant in the written statement, yet the learned trial court framed an additional issue being issue No. 8 on the point of limitation and rightly so. This is because under section 3(1) of the Limitation Act, 1963 even if limitation is not taken as a point of objection by the defendant or the respondent, as the case may be, it is the duty of the trial court or appellate court or revisional court to see that the suit instituted or appeal preferred or application filed is within the period of limitation. Both the learned courts below have applied their mind on this issue and held that there was an agreement for sale of the suit land between the principal defendant No. 1 on one side and the two plaintiffs on the other side. The total consideration for such sale was mutually settled at Rs. 26,000/- and it was further decided by the parties that it would be paid in instalments. The total consideration for such sale was mutually settled at Rs. 26,000/- and it was further decided by the parties that it would be paid in instalments. After payment of three instalments to the tune of Rs. 8,000/- in all, Ext. 4 was executed by none other than the plaintiff himself on two revenue stamps acknowledged receipt of Rs. 8,000/- and thereby handing over possession of the suit land on 08.02.1991 and further agreeing to execute sale deed after payment of total consideration. The dag number and patta number of the land and the quantum of land proposed to be sold was specifically written in Ext. 4. Thereafter on 19.09.1991 Ext. 5 was executed by defendant No. 1 in favour of the plaintiffs acknowledging receipt of total consideration of Rs. 26,000/- for sale of suit land measuring 15 L covered by dag No. 472 of PP No. 165 pertaining to Naokata Kissam of Dandua mouza in the district of Morigaon within specific boundaries. This katcha sale deed was witnessed by one Jogen Nath and he has been examined as PW 2 in this case. Coming to the witness box he deposed that the sale deed was executed by Darsan Sarmah (principal defendant No. 1) and thereafter he gave his signature vide Ext. 5(1). Execution of this deed by Darsan Sarmah, therefore, was duly proved by PW 2 Jogen Nath at least in terms of section 67 of the Evidence Act. 14. The substantial question of law No. 3 perhaps does not arise from the facts and circumstances of the case. This is because Ext. 3 is an unregistered sale deed dated 19.09.1991 execution of which has been established by the plaintiffs. This was signed by principal defendant No. 1. True, the proforma defendant No. 1, Rajeswar Sarmah being the brother of the principal defendant No. 1 (Darsan Sarmah) is joint owner of 1K 10L of land covered by dag No. 472 of the suit patta. The principal defendant No. 1 executed katcha sale deed (Ext. 5) in favour of the plaintiffs on 19.09.1991 with respect to half of the dag being 15L only and the plaintiffs also claimed specific performance with respect to 15L of dag No. 472 being the share of the principal defendant No. 1. The principal defendant No. 1 executed katcha sale deed (Ext. 5) in favour of the plaintiffs on 19.09.1991 with respect to half of the dag being 15L only and the plaintiffs also claimed specific performance with respect to 15L of dag No. 472 being the share of the principal defendant No. 1. The share of the proforma defendant No. 1 has neither been claimed by the plaintiff nor did the learned courts below pass any decree with respect to entire 1K 10L pursuant to dag No. 472 referred to above. This being the position, the question posed by substantial question of law is neither necessary nor does it arise from the facts and circumstances of the case. Accordingly, the substantial question of law does not require any adjudication. 15. The fourth substantial question of law stands answered by the provision of Section 49 of the Registration Act itself. The question has been raised that unregistered deed (Ext. 5) cannot be acted upon by court of law although its execution by principal defendant No. 1 has been proved. A bare perusal of the section 49 of the Transfer of Property Act would show that even an unregistered deed which is required by law to be registered can be admissible in evidence for limited purpose of specific performance of contract. This being the position, the fourth substantial question of law stands answered against the appellants and in favour of the plaintiffs. 16. All the substantial questions of law having been answered against the appellants herein, the second appeal is liable to be dismissed. It is accordingly, dismissed. 17. No order as to costs. 18. Interim order, if any, would stand automatically vacated. Send down the LCRs.