Research › Search › Judgment

Gauhati High Court · body

2017 DIGILAW 1009 (GAU)

Atul Rajkhowa v. Dipak Kumar Rajkhowa

2017-07-31

PRASANTA KUMAR DEKA

body2017
JUDGMENT AND ORDER : Heard Mr. SK Ghosh, learned counsel for the appellant and Mr. R Sarma, learned counsel for the respondent. 2. This second appeal arose out of the judgment and decree dated 07.06.2014 passed by the learned Civil Judge No. 3, Kamrup (M) at Guwahati. The present appellant, as plaintiff, filed title suit No. 97/2007 in the court of learned Munsiff No. 1, Kamrup (M) at Guwahati for specific performance of an oral contract purportedly entered in the first week of May, 2006 at a total consideration of Rs. 1,50,000/- with respect to a flat described in the schedule of the plaint. It is pleaded that in the 3rd week of August, 2006, the plaintiff/ appellant had paid Rs. 50,000/- as advance consideration out of the total consideration of Rs. 1,50,000/- to the defendant/respondent. As per the verbal understanding between the parties to the suit, the said sale transaction ought to be completed by January, 2007 within which period the defendant/respondent was supposed to execute the registered sale deed thereby transferring the suit premises. Later on, the plaintiff/ appellant came to know from the Secretary of the Society of the building in which the said suit flat is situated, that the defendant/respondent was planning to sell the suit flat to some other person. Having contacted the defendant/respondent over telephone by the plaintiff/appellant, it was informed that the defendant/respondent was willing to sell the flat to some other person at a higher consideration and that he would refund the advance money of the plaintiff/appellant. Hence, the plaintiff/appellant preferred the suit. 3. The defendant/respondent filed his written statement and counter claim. It was pleaded that the said flat was on the hypothecation with Indian Oil Corporation wherein he is an employee and as such, the defendant/appellant cannot sell the suit flat. It is also pleaded that the same was purchased at Rs. 3,43,000/- and the present market value of the same would not be less than Rs. 10,00,000/-. The plaintiff/appellant was allowed to stay in the said flat for 6 (six) months in the month of April, 2006 with a condition to pay the maintenance bills/charges raised by the society. The defendant/respondent denied the receipt of Rs. 50,000/- from the plaintiff/ appellant nor existence of any oral agreement for sale. 10,00,000/-. The plaintiff/appellant was allowed to stay in the said flat for 6 (six) months in the month of April, 2006 with a condition to pay the maintenance bills/charges raised by the society. The defendant/respondent denied the receipt of Rs. 50,000/- from the plaintiff/ appellant nor existence of any oral agreement for sale. Rather, he filed a counter claim for eviction of the plaintiff/appellant and recovery of the khas possession of the suit premises. 4. On the basis of the pleadings, the learned trial court framed as many as 6 (six) issues which are quoted below:- 1. Whether the suit is maintainable in law and facts? 2. Whether the plaintiff came into occupation of the disputed flat in the year 1990 and that too at the request of the defendant? 3. Whether from the middle of 1992 till April 2006 there was a landlord-tenant relationship between the defendant and the plaintiff? 4. Whether in the first week of May, 2006, the defendant and the plaintiff entered into an oral agreement for the sale of the suit flat and paid advance of Rs. 50,000/-? 5. Whether the plaintiff is forcefully occupying the suit flat and is therefore liable to be evicted? 6. To what reliefs the parties or any of them are entitled to as per law and equity? 5. The learned trial court dismissed the suit whereafter the plaintiff/ appellant preferred the first appeal which was also dismissed whereafter this second appeal has been preferred and the same is taken up for admission today. 6. Mr. SK Ghosh, learned counsel for the appellant, submits that there was an agreement for sale which was entered between the parties to the suit and the total consideration was Rs. 1,50,000/-. In pursuance of the said agreement it is on record and proved by the witnesses that a sum of Rs. 50,000/- was also accepted by the defendant/respondent. Mr. Ghosh submits that the oral agreement for sale was proved and in such a situation, both the learned courts below misdirected and held that the plaintiff/appellant failed to prove the existence of the said oral agreement which is wrong. Accordingly, Mr. 50,000/- was also accepted by the defendant/respondent. Mr. Ghosh submits that the oral agreement for sale was proved and in such a situation, both the learned courts below misdirected and held that the plaintiff/appellant failed to prove the existence of the said oral agreement which is wrong. Accordingly, Mr. Ghosh submits that the discretion applied by both the learned courts below are wrong and under the provisions of Specific Relief Act, 1963, the said discretion can be gone into by the appellate court and as such, this appeal be admitted to examine as to whether the discretion applied by the courts below in dismissing the suit was correct. 7. Mr. Sarma, learned counsel for the respondent, submits that both the learned courts below have come to the concurrent findings that the plaintiff/appellant failed to prove the existence of the oral agreement or any of the stipulations agreed to by the parties so alleged in the plaint. It is submitted that there was no transaction at all. Both the learned courts below came to the correct finding that there were contradictory statements by the witnesses of the plaintiff side and on the basis of such contradictory statements, both the learned court below have rightly come to the conclusion that there was no such agreement for sale at all. Finally, Mr. Sarma submits that no substantial question of law is involved in the second appeal and the same is liable to be dismissed at the admission stage itself. 8. Considered the submission of both the learned counsels and also perused the judgments passed by both the learned courts below. While deciding issue No. 4 by the courts below, it is the finding wherein the courts below noticed that the plaintiff/ appellant i.e. PW 1 deposed that the advance money was paid in the month of August, 2006 but in the later part of the cross examination he stated that the money was paid in the month of January, 2007 in the morning. The said PW 1 further deposed that at the time of payment one Kabin Khanikar and Pulin Hazarika were present. The PW 2 Kabin Khanikar stated that he met the defendant/respondent only once in the suit flat and it was in the month of May, 2006 at about 10 A.M. and at that time Pulin Hazarika was also present there. The said PW 1 further deposed that at the time of payment one Kabin Khanikar and Pulin Hazarika were present. The PW 2 Kabin Khanikar stated that he met the defendant/respondent only once in the suit flat and it was in the month of May, 2006 at about 10 A.M. and at that time Pulin Hazarika was also present there. The PW 2 further stated that on that day, the plaintiff/appellant had paid the money amounting Rs. 50,000/- to the defendant/respondent. Similar is the deposition of the PW 3, Pulin Hazarika who also supported that the said amount was paid in the month of May, 2006. Bringing the said piece of evidence into reference, both the courts below came to the findings that there were contradictions in the evidence of the plaintiff’s witnesses, inasmuch as, the plaintiff/ appellant stated in his cross examination that he paid the said amount of Rs. 50,000/- in the month of January, 2007 and on the other hand, the PW 2 and 3 had deposed that the said transaction took place in the month of May, 2006. Both the courts below took note of the failure in discharging the burden by the plaintiff/appellant and came to the conclusive finding that the circumstantial witnesses suffered from serious contradictions and they cannot be relied upon and as such, the entire transaction becomes doubtful. Finally holding the issue No. 4 against the present plaintiff/appellant, both the courts below dismissed the suit of the plaintiff/appellant. It is the law laid down by this court that in a suit for specific performance of contract on the basis of an oral agreement, it is the duty of the plaintiff to prove each and every stipulation so agreed orally to the satisfaction of the court. But in the present case in hand, there is serious lapse on the part of the plaintiff/ appellant in proving the oral agreement for sale. Accordingly, the judgments passed by the courts below suffer no illegality. Accordingly, this second appeal is devoid of any substantial question of law and it is accordingly dismissed.