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2016 DIGILAW 614 (GAU)

Monica Borah Dutta v. Anu Dutta

2016-07-13

N.CHAUDHURY

body2016
JUDGMENT : 1. Heard Mr. S.S. Barooah, learned counsel for the appellant. 2. This Second Appeal has been preferred by the defendant challenging the concurrent findings of learned two courts below. Respondent No.1 as plaintiff instituted Title Suit No.12/2011 praying for a decree of specific performance which was contested by the present appellant. The learned trial Court by judgment and decree dated 20.05.2014 decreed the suit of the plaintiff in entirety. The defendant preferred Title Appeal No.6/2014 challenging the aforesaid decree before learned Additional District Judge, Jorhat. By the impugned appellate judgment the first appeal has been dismissed upholding the decree of specific performance. The present Second Appeal has been preferred against such concurrent findings of the learned two Courts below. 3. Smti. Anu Dutta as plaintiff instituted Title Suit No.12/2011 in the Court of learned Civil Judge at Jorhat stating that the defendants being owner in possession of the suit land measuring 1 Katha 10 Lechas entered into an oral agreement with the plaintiff for sale of the suit land at a total consideration of Rs.3,10,000/-. The plaintiff made payment of Rs.30,000/- on 26.04.2008 as advance and subsequently she paid the entire balance consideration money to the defendants at different intervals from the month of April, 2008 to September, 2008 in presence of one Sri Boloram Dutta. The plaintiff’s husband after diligent endeavours succeeded to induce the defendants for getting sale permission on 29.05.2010. In the meantime, on 10.09.2008 the defendants had prepared a draft sale deed and handed over it to the plaintiff for consideration wherein it was admitted that a sum of Rs.2,17,000/- has already been accepted by the defendants. In page 3 of the said draft sale deed the defendant acknowledged to have received the entire consideration money of Rs.3,10,000/- on 10.09.2008 but even thereafter the defendants did not execute any sale deed. Under such circumstances and further having come to know that the defendants were negotiating with others to sell the suit land the plaintiff instituted the suit for specific performance of contract along with injunction. 4. The defendant No.1 (Smti. Monica Bora Dutta) submitted written statement denying the case of the plaintiff in entirety. However, in paragraph 9 of the written statement the said defendant presented her brief facts. 4. The defendant No.1 (Smti. Monica Bora Dutta) submitted written statement denying the case of the plaintiff in entirety. However, in paragraph 9 of the written statement the said defendant presented her brief facts. It is stated in this paragraph that there was an oral agreement between the plaintiff and the defendants for sale of the suit land at a total consideration of Rs.3,10,000/- out of which plaintiff made payment of Rs.2,17,000/- only. The plaintiff herself took the initiative to get the sale permission from the office of the Deputy Commissioner, Jorhat and promised to pay a sum of Rs.3,56,500/- in total after obtaining sale permission. The defendant approached the plaintiff thereafter on a number of dates for recovery of balance amount of money and also for taking steps for execution of sale deed but the plaintiff used to avoid the defendant. Ultimately, in the year 2010 the plaintiff expressed her unwillingness to purchase the land and then the defendant requested for taking back the advance sum of Rs.2,17,000/-. Without accepting the money the plaintiff instituted the suit for specific performance of contract and so the suit was liable to be dismissed. 5. On the basis of the aforesaid pleadings of the parties the learned trial Court framed as many as five issues and the same are quoted below :- “i. Whether there is any cause of action for the suit of the plaintiff? ii. Whether the defendant No.1 had entered into agreement for sale of land measuring 1 katha 17 lechas for consideration of Rs.3,10,000/- in favour of the plaintiff? iii. Whether the defendant No.1 failed to perform his part of agreement to execute the sale deed in favour of the plaintiff after receiving the agreed price? iv. Whether the plaintiff is entitled to a decree as prayed for? v. To what other relief/reliefs the parties are entitled?” 6. In course of trial plaintiff examined herself and three other witnesses including Boloram Dutta as PW 2. She also adduced five documents as Ext-1 to 5. All the witnesses of the plaintiffs were cross-examined by the defendants but they did not lead any evidence themselves. 7. v. To what other relief/reliefs the parties are entitled?” 6. In course of trial plaintiff examined herself and three other witnesses including Boloram Dutta as PW 2. She also adduced five documents as Ext-1 to 5. All the witnesses of the plaintiffs were cross-examined by the defendants but they did not lead any evidence themselves. 7. Having considered the evidence on record the learned trial Court held that there was cause of action for the suit; that the defendant No.1 had entered into agreement for sale of land measuring 1 katha 17 lechas at a consideration of Rs.3,10,000/- and that she failed to perform her part of the agreement to execute the sale deed after receiving the entire consideration money. Thus, deciding issues No.1 to 3 in favour of the plaintiff the suit was decreed in entirety holding that the plaintiff is entitled to a decree for specific performance. In so doing the learned trial Court noticed that defendant having pleaded a specific case did not come to witness box for proving her pleadings and so there was exigency for taking presumption against the defendant in view of the law laid down by the Hon’ble Supreme Court in the case of Vidyadhar vs. Manikrao & another [ AIR 1999 SC 1441 ]. The suit was accordingly dismissed by the aforesaid judgment and decree dated 20.05.2014. 8. Aggrieved, the defendant No.1 preferred Title Appeal No.6/2014 in the Court of learned Additional District Judge, Jorhat. The learned Additional District Judge upon consideration of the arguments of the parties and on the basis of the materials on record framed sole point for determination as follows :- “Whether the learned trial Court committed any error or illegality in passing the impugned judgment and decree?” 9. Having considered the arguments put forward by the learned counsel for the parties and apparently on perusal of the materials available on record the learned First Appellate Court was of the view that plaintiff had succeeded to prove payment of entire consideration money to the defendant by examining Boloram Dutta as PW 2. In the plaint itself the plaintiff has stated that Boloram Dutta was present when entire consideration money was paid to the defendant and that total consideration money was Rs.3,10,000/-. The learned First Appellate Court also noticed that the defendant No.1 had admitted the agreement for sale of the suit land at a total consideration of Rs.3,10,000/-. In the plaint itself the plaintiff has stated that Boloram Dutta was present when entire consideration money was paid to the defendant and that total consideration money was Rs.3,10,000/-. The learned First Appellate Court also noticed that the defendant No.1 had admitted the agreement for sale of the suit land at a total consideration of Rs.3,10,000/-. The defendant specifically admitted receipt of Rs.2,17,000/- only on various dates but denied to have received the entire consideration money. According to the defendant, no further payment was made after paying Rs.2,17,000/- and so plaintiff was not entitled to get a sale deed. On the other hand, the plaintiff, apart from examining herself, examined Boloram Dutta as PW 2 to prove payment of entire consideration money to the defendants and the defendants have not led any evidence in support of their own pleadings. With these findings the learned First Appellate Court did not find any reason to unsettle the trial Court decree. Consequently, the appeal was dismissed by judgment and decree dated 20.04.2015. Both these judgments have been brought under challenge in the present Second Appeal. 10. Having heard Mr. S. S. Barooah, learned counsel for the appellant and on perusal of the two judgments passed by the learned two courts below along with the averments made in the plaint and the written statement I find that the agreement for sale of the suit land between the plaintiff and the defendants is an admitted fact. In paragraph 9 of the written statement the defendant No.1 specifically admitted to have entered into an agreement with the plaintiff for sale of the suit land measuring 1 Katha 10 Lechas at a consideration of Rs.3,10,000/-. The defendant also admitted to have received a sum of Rs.2,17,000/-. The difference in pleadings of the two sides, therefore, is only the balance amount after payment of Rs.2,17,000/- after entering into an oral agreement for sale of the suit land. While the plaintiff claimed to have made payment of the entire amount, the defendant denied the same and said that plaintiff made payment of Rs.2,17,000/- only and the balance amount of consideration money was not paid. Upon such averments what was left with the plaintiff to prove was that whether plaintiff had made payment of entire amount of Rs.3,10,000/-. Noticeably, the agreement for sale is an oral one. Upon such averments what was left with the plaintiff to prove was that whether plaintiff had made payment of entire amount of Rs.3,10,000/-. Noticeably, the agreement for sale is an oral one. Plaintiff had pleaded in plaint itself that Boloram Dutta was present when entire amount was paid and this Boloram Dutta was examined as PW 2. It is not the case of the parties that Boloram Dutta did not depose in favour of the plaintiff. When defendant did not examine any witness in her behalf to prove non-payment of the balance sum after paying Rs.2,17,000/-, this part of the pleading remained unestablished. On the other hand, plaintiff by examining herself and PW 2 Boloram Dutta established her case of making payment of the full amount of consideration money. The learned Courts below believed the facts placed by the plaintiff and arrived at the findings of fact that plaintiff had made payment of Rs.3,10,000/- to the defendants. Such concurrent findings can be interfered with only if it is established that such finding is perverse. The defendant who filed a written statement taking a specific plea did not come to the witness box, failed in discharge of her burden and in that view of the matter the learned trial Court has not committed any mistake in taking presumption under Section 114 of the Evidence Act in terms of the judgment of the Hon’ble Supreme Court in the case of Manikrao (supra). In view of the specific concurrent findings of the two courts below about payment of entire consideration money by the plaintiff to the defendants and in view of the admission made by the defendant No.1 in paragraph 9 of the written statement that there was an agreement for sale of the suit land and that an amount of Rs.2,17,000/- had been received by the defendants, I do not find any perversity in the judgment of the two courts below. Consequently, the Second Appeal cannot be admitted as no substantial question of law does arise from the facts and circumstances of the case. 11. The Second Appeal stands dismissed. No order as to cost.