Research › Search › Judgment

Gauhati High Court · body

2017 DIGILAW 1071 (GAU)

ARUN SHARMA v. BHUPEN HAZARIKA (DAS)

2017-08-08

KALYAN RAI SURANA

body2017
JUDGMENT AND ORDER : 1. This appeal under Section 96 read with Order XLI Rule 1 CPC is directed against the judgment and decree dated 05.05.2009 passed by the learned Civil Judge, Jorhat in T.S. No. 31/2007, thereby dismissing the suit filed by the appellant. The appellant/plaintiff had filed T.S. No. 31/2007 before the learned Civil Judge, Jorhat for breach of the agreement of purchase, confirmation of right, title and interest, for ejectment and recovery of possession, compensation, injunction etc. 2. The case of the appellant as per the plaint is that he was the owner of having right, title and interest over the plot of land measuring 4 Katha 16 Lessas, covered by Dag No. 1294 of Periodic Patta No. 338 of Kumar Kaibartagaon under Gurmur Mouza, Jorhat, which is described in Schedule-1 of the plaint. There is an Assam type “L” designed house comprising nine rooms standing on the said suit land. The appellant at the relevant time was 70 years old was in urgent need of money and wanted to sale his land to the defendant at the sale consideration of Rs.7,50,000/- (Rupees Seven Lakh fifty thousand only). The defendant paid Rs.1,00,000/- (Rupees One lakh only) as advance and the parties entered into an unregistered agreement for sale dated 04.07.2005. The balance sale consideration of Rs.6,50,000/- (Rupees Six Lakh fifty thousand only) was to be paid within one month and the registration of the sale deed and balance amount was required to be paid at the time of deed of conveyance. It is submitted that in the Agreement for Sale, the Dag number of land was wrongly written as Dag No. 614 instead of Dag No. 1294. Pursuant to the agreement, the plaintiff handed over the possession of the suit land described in Schedule-1 of the plaint to the defendant. However, the sale could not be completed within the stipulated period of one month. It is projected that the plaintiff handed over the signed forms for sale permission for the suit land along the photocopy of jamabandi, land revenue receipt, etc. to the defendant to enable him to apply for the sale permission. Although the plaintiff expressed his willingness and readiness to perform his part of contract to execute the proposed sale deed but the defendant did not come forward to make the payment and therefore, the sale could not be completed. 3. to the defendant to enable him to apply for the sale permission. Although the plaintiff expressed his willingness and readiness to perform his part of contract to execute the proposed sale deed but the defendant did not come forward to make the payment and therefore, the sale could not be completed. 3. Although the sale was not completed, the defendant had not returned the possession of the suit land. It was projected that the defendant refused to vacate and handed over the suit property described in Schedule-2 and requested the plaintiff to allow some more time to purchase the suit property. It was stated that in the meanwhile, the plaintiff had taken back about 11 Lessas of land from the defendant and therefore, instead of Schedule-1, the land described in Schedule-2 was to be sold. Therefore, the parties entered into another Agreement on 07.09.2005 (Exbt.5) with a condition that if the defendant was agreeable to pay the entire sale consideration, then even the 11 Lessas of land would be also sold and, as such, the Agreement of Sale continued to remain in respect of the land described in Schedule-1 of the plaint. At the time of entering into the said second agreement, the defendant paid a further sum of Rs.2,75,000/- (Rupees Two Lakh Seventy Five Thousand only) to the plaintiff and, as such, the sale was required to be completed on receipt of the balance sale consideration of Rs.3,75,000/- (Rupees Three Lakh Seventy Five Thousand only). The plaintiff applied for the sale permission in terms of agreement dated 07.09.2005 and accordingly, the competent authority issued the requisite sale permission on 01.03.2006 (Exbt.7). After the sale permission was obtained the defendant did not come over to get the sale registered and therefore, on 13.04.2006 the plaintiff sent a letter (Exbt.9), by registered post to the defendant to intimate about his readiness and willingness and asked the defendant to complete the sale of the suit property. Thereafter, by another letter dated 16.08.2016 (Exbt.10), the plaintiff again asked the defendant to complete sale because the sale permission was to expire on 31.08.2006. As both parties were to share the cost of stamp paper, the plaintiff informed the defendant that the requisite stamp duty paper had been purchased. Thereafter, by another letter dated 16.08.2016 (Exbt.10), the plaintiff again asked the defendant to complete sale because the sale permission was to expire on 31.08.2006. As both parties were to share the cost of stamp paper, the plaintiff informed the defendant that the requisite stamp duty paper had been purchased. Although a part of the cost of stamp paper was paid by the defendant, but the defendant did not come forward to get the sale deed registered and therefore, by Advocate’s notice dated 17.05.2006 (Exbt.10), the plaintiff asked the defendant to complete the sale in respect of the Schedule-1 land. Having failed to receive any response, another Advocate’s notice dated 19.01.2007 (Exbt. 11) was issued to the defendant to get the sale completed, but the defendant did not come forward to complete the sale, but continued to remain in possession of the land described in Schedule-2, which according to the plaintiff was an act of trespass. 4. On the ground that since the defendant did not come forward to complete sale and he did not vacate suit land and that he had become a trespasser, the appellant- plaintiff claimed that the agreement was liable to be cancelled, declared null and void and that the defendant is liable to be evicted and therefore, on the basis of the cause of action which arose on various mentioned in the plaint, the plaintiff filed a suit with the following prayers: a. To decreed the plaintiff suit; b. To pass decree declaring the right, title and interest of the plaintiff over the suit land; c. To pass a decree against the defendant for breach of Agreement dated 07.09.2005; d. To pass decree declaring the Agreement dated 07.09.2005 has no legal force and in operative against the plaintiff on breach of the same by the defendant; e. To pass a decree declaring the possession of the suit property to the Schedule-2 of the defendant as illegal and a trespasser to the suit property to the Schedule-2 since 01.03.2006 onwards; f. To pass a decree directing eviction of the defendant and his men etc. from the suit property to the Schedule-1 by delivering the khas possession of the same to the plaintiff; g. To pass a decree granting compensation of Rs.1,85,890/- (Rs.1,00,000/- for breach of Agreement dated 07.09.2005 and Rs.75,000/- for suit house rent at the rate of Rs.5,000/- P.M. from 01.03.2006 up-to 31.05.2007 for illegal occupation as a the passed and Rs.10,890/- as half price of stamp and cost of permission) against the defendant and in favour of the plaintiff; h. To pass a decree for granting compensation at the rate of Rs.5000/- per month from 01.06.2007 onwards until eviction of the defendant and delivery of the khas possession of the suit property to the Schedule- 2 to the plaintiff; i. To pass order for doing the needful by the plaintiff including payment of any money fixing the date; j. To pass decree/order as required under law for breach of agreement dated 07.09.2005 against the defendant and in favour of the plaintiff; k. Pass decree for permanent injunction; l. Cost of the suit be decreed; m. Grant any other relief/reliefs to which the plaintiff is legally entitled. 5. The respondent/ defendant appeared and contested the suit by filing his written statement. It was stated that there was a dispute that out of 4 katha 11 lechas land, the defendant only had 2 Bigha 2 Katha land and the remaining land was a Government land, as such, the defendant was trying to make a fraudulent sale and therefore, claimed that the plaintiff was not willing to execute the sale deed in respect of the agreed land. The claim of the plaintiff was denied and the defendant prayed for dismissal of the suit. 6. In course of trial, the plaintiff and the defendant examined themselves as the only witness in the case. In course of trial, the learned trial court framed following three issues: 1. Whether there is cause of action for the suit? 2. Whether the plaintiff perpetrated fraud upon the defendants by entered into an agreement the sale of government land? 3. Whether the plaintiff is entitled to a decree as prayed for? 7. In course of trial, the learned trial court framed following three issues: 1. Whether there is cause of action for the suit? 2. Whether the plaintiff perpetrated fraud upon the defendants by entered into an agreement the sale of government land? 3. Whether the plaintiff is entitled to a decree as prayed for? 7. In respect of issue No.(1), the learned trial court held that there is no necessity of framing a separate issue to decide the right, title and interest of the plaintiff over the suit land and also held that in view of the dispute and difference of the various issues while the plaintiff first claiming the entire agreed consideration but the defendants claims that he was liable to pay money only for the remaining portion of land, held that there was a cause of action over the suit land. 8. In respect of issue No.(2), the learned trial court held that the defendant failed to prove the plea for 2 Katha 14 Lessas of land under Dag No. 613 belonging to the State and that the issue of fraud not be proved by the defendant and therefore, the issue No. 2 was also decided in the negative and in favour of the plaintiff by holding that the defendant failed to prove that the plaintiff perpetrated on him. 9. In respect of issue No.(3), the learned trial court arrived at a finding that 11 Lessas of land out of the total 4 Katha 16 Lessas land belonging to the sister of the plaintiff and therefore, held that the defendant is not liable to pay money for the 11 Lessas of land. It was further held that the plaintiff had proved the he had performed the essential terms of the contract and further held that the defendant had failed to perform his part of the contract. It was further held that the plaintiff had proved the he had performed the essential terms of the contract and further held that the defendant had failed to perform his part of the contract. However, it was held that Section 18 of the Specific Relief Act, states that the contract cannot be specifically enforce for non performance when the parties have varied the contact, and further held that instead of filing the present suit in the present form, the plaintiff ought to have file the suit for specific contract and observed that it failed to understand the logic behind the prayer the prayer of the plaintiff that the Agreement dated 07.09.2005 be declared inoperative in law, for which the learned trial court held that the plaintiff is not entitled to the relief as prayed for. It was opined by the learned trial court that the suit was erroneously drafted and accordingly, the suit was dismissed. 10. As stated above, heard the learned counsel appearing for the appellant. None appeared on call for the respondent on both the dates when the matter was heard although the names of the learned counsels were reflected in the cause list. 11. On the basis of the submissions made by the learned counsel for the appellant, this Court is inclined to formulate following points of determination – i. Whether the appellant- seller is not entitled to rescind the agreement for sale and to seek recovery of possession when the respondent- purchaser has not shown his willingness to perform his part of the contract to register the sale and obtain lawful ownership over the land described in Shedule-1 of the plaint? ii. Whether the impugned trial court judgment is liable to be interfered with? 12. On issue No.1 and 2, as framed by the learned trial court, there is a categorical finding for deciding the said issues in favour of the plaintiff and against the defendant. There is no cross appeal and, as such, the said issues are not required to be gone into because there is indeed a cause of action for the suit and the plea of defendant stands disproved by lack of any evidence that fraud was perpetrated on him. Having agreed with the decision of the trial court on the said issues, it is not required to repeat the said findings again and this judgment need not be burdened by repetition. Having agreed with the decision of the trial court on the said issues, it is not required to repeat the said findings again and this judgment need not be burdened by repetition. Therefore, this court is only required to deal with the Issue No.3 framed by the learned trial court. 13. On the perusal of the statements made in paragraph 1 of the plaint, it has been stated that the plaintiff was the absolute owner having right, title and interest on the suit land described in Schdule-1. The reading of paragraph 1 of written statement shows that the respondent- defendant had admitted the statements made in paragraph 1 of the plaint. This, in the opinion of this court, amounts to an admission of the right, title and interest of the plaintiff over the suit land described in Schedule-1 of the plaint. The trial court has rightly pointed out the correct legal position that by unregistered Agreement for Sale, the right of the land-owner does not get transferred to the defendant. Therefore, the learned trial court was right to hold that there was no necessity of framing a separate issue to decide the right, title and interest over the suit land. 14. Although the defendant took a plea that the plaintiff was not the owner of the suit land described in Schedule-1, but he was only the owner of 2 Bigha 2 Katha and the remaining 2 Bigha 14 Katha land belonged to the Government. However, the original Periodic patta (Exbt.1) the certified copy of Jamabandi of P.P. No. 338 (Exbt.2), proves that the plaintiff was the owner of the 4 Kathas 16 Lessas land covered by Dag No. 1294 of Patta No. 338, i.e. the suit land. Hence, the plea of the defendant stood disproved and, as such, there appears to be no impediment for the plaintiff to maintain a suit for declaration of right, title and interest as envisaged under Section 34 of the Specific Relief Act, 1963. 15. In so far as the second stand of the defendant that 11 Lessas out of total 4 kathas 16 lessas land belonged to sister, which is also one of the finding recorded by the learned Trial Court on issue No. 3, the same is not in consonance with the materials on record. Not only by Agreement dated 04.07.2005 (Exbt.5), the defendant agreed to purchase land described in Schedule-1. Not only by Agreement dated 04.07.2005 (Exbt.5), the defendant agreed to purchase land described in Schedule-1. The defendant also admits that 11 lessas of land was taken by the plaintiff after execution of Exbt.5, yet the defendant readily pays a further sale consideration of Rs.2,50,000/- and agrees to the condition entered into another Agreement on 07.09.2005 (Exbt.6) with a condition that if the defendant was agreeable to pay the entire sale consideration, then even the 11 Lessas of land would be also sold and, as such, the Agreement of Sale continued to remain in respect of the land described in Schedule-1 of the plaint. Therefore, it is disproved that the plaintiff was not the lawful owner of the Schedule-1. Moreover, the letters dated 13.04.2005 (Exbt.8), letter dated 16.08.2006 (Exbt.9), Advocate’s notice dated 17.05.2006 (Exbt.10) and Advocate’s notice dated 19.01.2007 (Exbt.11) proves that the plaintiff was all along ready and willing to conclude his part of the contract i.e. to sell the Schedule-1 land. Therefore, the finding by the learned trial court that 11 lessas of land belonged to the plaintiff’s sister and that the defendant was not liable to pay for the 11 Lessas of land in respect of its decision on Issue No. 3 is contrary to the evidence tendered in the case. 16. On issue No.3, the learned trial court had arrived at a categorical finding that the plaintiff was ready and willing to perform his part of the contract, and there is also a definite finding that it is the defendant who had failed to perform his part of the contract. In the light of the said finding, it is seen that under the various provisions of the Specific Relief Act, 1963, specifically under Chapter-II from Sections 9 to 25 thereof, there is no bar for the plaintiff to file the present suit for rescinding the agreement. The learned trial court on Issue No. 3 has held that the possession of the defendant was not protected under Section 53(A) of the Transfer of Property Act, and, as such, the learned trial court was clearly in error to refuse the relief of declaration, cancellation of agreement and recovery of possession of the suit land. 17. There is a categorical stand in the evidence of the plaintiff that he was no longer ready to sell the suit land to the defendant. 17. There is a categorical stand in the evidence of the plaintiff that he was no longer ready to sell the suit land to the defendant. It appears that either the learned trial court has misread the said evidence or it has escaped its notice otherwise, without assigning any reason, there was no reason to opine that the plaintiff ought to have file a suit for specific performance, when the said learned court has given a definite finding that the defendant had failed to perform his part of the contract. There is no denial of the fact that the plaintiff, who was then already 70 years old was in need of money and wanted to sell the land. But, the defendant, who having taken over the possession of the land from the plaintiff, who was his friend, failed to make payment of the agreed sale consideration to the plaintiff. Therefore, under the circumstances, the learned trial court erred in suggesting that the plaintiff ought to have filed a suit for specific performance of contract, having already given a categorical finding that the defendant failed to perform his part of the contract and that the plaintiff was always ready and willing to perform his part of the contract. 18. While appreciating the judgment passed by the learned trial court, it is observed that when the present T.S. No. 31/2007 was filed, the defendant has not come forward with any counter-claim for specific performance of contract. The defendant took up a plea that the plaintiff was not the owner of the Schedule-1 land, therefore, he was willing to pay only for the land which was owned by the plaintiff. The defendant filed his evidence on affidavit on 21.11.2003. Except for the money receipt dated 28.03.2006 of Rs.19,605/- (Exbt.A), which was in respect of the payment made by the stamp duty, the defendant did not prove any other document to show that the plaintiff was not the owner of the land described in Schedule- 1 of the plaint. In his cross-examination, the defendant/D.W.1 had admitted that Exbt. 7 was the sale permission. In the cross-examination, the D.W.1 though denied the received of the letters and notices requesting him to perform his part of the contract, but he admitted that in the written statement he has not stated that those notices and the letters were not received by him. In his cross-examination, the defendant/D.W.1 had admitted that Exbt. 7 was the sale permission. In the cross-examination, the D.W.1 though denied the received of the letters and notices requesting him to perform his part of the contract, but he admitted that in the written statement he has not stated that those notices and the letters were not received by him. In his cross-examination the defendant has stated that he has occupied 2 Katha 16 Lessas of Government land, but he had admitted that he has not filed any document to show that. Therefore, the plea of the defendant stands disproved. 19. From the perusal of the Evidence- on- affidavit and from the written statement, it is apparent that the defendant has not come forward with any specific plea that he was ready and willing to purchase the suit land described in Schedule-1 of the agreement for sale (Exbt.5 & Exbt.6). In this case, the aggrieved party appears to be the plaintiff, who has delivered his land on good faith to the defendant without receiving the agreed sale consideration in full and therefore, in the considered opinion of this Court, the plaintiff being the aggrieved party was entitled to bring on suit for recession of the contract, which is covered by the provisions of Section 27 read with Section 29 of the Specific Relief Act, 1963. The power to adjudge or refuse rescission of an instrument is covered by section 27 of the said 1963 Act. The power to cancel can be ordered under section 31 and 32 of the said 1963 Act and the court retains power under Section 33 to restore the benefit to the defendant when an instrument like the agreement for sale is cancelled. Hence, this court is constrained to hold that there was no reason at all to refuse the prayers made in the plaint. 20. Moreover, there is a specific stand of the plaintiff that the plaintiff did give him possession over land described in Schedule-1. The plaintiff also admitted taking away 11 lessas of land back later on. In the written statement, the defendant has not stated anywhere that he did not receive possession of the land described in Schedule-1 of the plaint. He also did not deny that 11 Lessas of land taken back, owing to which the parties had agreed to enter into the second agreement for sale dated 07.09.2005 (Exbt.6). In the written statement, the defendant has not stated anywhere that he did not receive possession of the land described in Schedule-1 of the plaint. He also did not deny that 11 Lessas of land taken back, owing to which the parties had agreed to enter into the second agreement for sale dated 07.09.2005 (Exbt.6). Moreover, at the cost of repetition it is reiterated that it is not in dispute that by the said Agreement for Sale dated 07.09.2005 (Exbt.6), the plaintiff had again agreed to convene the entire suit land to the defendant, subject to receipt of full payment. It is the admission made by the defendant in his cross examination that the sale permission dated 01.03.2006 was obtained. It is the categorical stand of the plaintiff that the sale permission would have expired on 31.08.2006. The defendant did not get the sale of land registered and was also not making any attempt to return the possession over the suit land to the plaintiff. Therefore, from the date of obtaining sale permission, i.e. 01.03.2006, the possession of the defendant over the suit land described in Schedule-2 is not lawful and there is no infirmity in the stand of the plaintiff that on or from 01.03.2006, the possession of the defendant over the said suit land as a trespasser. Hence, this court finds him liable to be evicted by allowing the plaintiff to recover khas possession of the Schedule-2 land. 21. Moreover, assuming that the defendant had a bona fide opinion that the plaintiff was not the owner of the entire suit land, the plaintiff could have approached the court under Section 26 of the Specific Relief Act for rectification of the Agreement for Sale (Exbt.6). He also did not pray for a refund of the advance sale consideration paid by him. Therefore, taking into account his own admission in paragraph 2 of the written statement, where the defendant has categorically and without any reservation, admitted that the plaintiff was the owner of the suit land measuring 4 Katha 16 Lessas land described in Schedule-1 together with construction standing thereon. Therefore, in view of the discussion above, this Court is inclined to hold that the suit in the present form of declaration and for declaring that the defendant had committed breach of agreement dated 07.09.2005 (Exbt.6) and for declaration that the agreement dated 07.09.2005 (Exbt. Therefore, in view of the discussion above, this Court is inclined to hold that the suit in the present form of declaration and for declaring that the defendant had committed breach of agreement dated 07.09.2005 (Exbt.6) and for declaration that the agreement dated 07.09.2005 (Exbt. 6) has no legal force and for declaration that the possession of the defendant over the suit property described in Schedule-2 was illegal and as a trespasser and for eviction and for compensation was maintainable in the present form. The aggrieved party who has been waiting for the specific performance of contract to be completed cannot be expected to wait for perpetuity, therefore, on the basis of pleadings and evidence on record, this court has no hesitation to hold that the suit for recession or contract and for cancellation of the contract was maintainable. Accordingly, the decision of the learned trial court on Issue No. 3 is not found to be sustainable. The finding is vitiated by inherent contradiction contained in his decision in Issue No. 3 because on one hand in paragraph 15, the learned trial court had held that the plaintiff should have filed a suit for specific performance of contract, but in paragraph 19 of the judgment, the learned court has self-contradicted itself wherein by referring to Section 18 of the Specific Relief Act, it was observed that a contract cannot be specifically enforced when parties have varied the contract. The decision on Issue No.3 is also not sustainable because there is no evidence on record to show that there was any variance of the contract. It must be remembered that while deciding Issue No. 2, the learned trial court had held that the defendant had failed to prove the allegation of fraud and held that no fraud was perpetrated against him. But while deciding Issue No. 3, without there being any evidence for that effect, the learned trial court had arrived at a finding that 11 Lessas out of Schedule-1 land belonged to plaintiff’s sister, that too when the defendant led no evidence to disprove that the Sale Permission (Exbt.5) was not for Schedule-1 land but it excluded the said 11 lessas land. This is also found to be contradictory to the evidence on record because the defendant had admitted the right, title and interest of the plaintiff in paragraph 2 of his written statement. This is also found to be contradictory to the evidence on record because the defendant had admitted the right, title and interest of the plaintiff in paragraph 2 of his written statement. Moreover, the plaintiff had duly proved his right and title over Schedule-1 land by proving the Patta (Exbt.1), copy of Jamabandi (Exbt.2) and land Revenue Receipt (Exbt.3). Therefore, this part of the finding is found to be contradictory to admission made in written statement and evidence standard by the parties. Therefore, the learned trial court appears to have misread the pleadings and misconstrued the evidence on record. 22. In the evidence on record as well as in his cross-examination, the P.W.1 has specifically stated that he is not ready to now sale the land. Under the circumstances, this Court is of the view of the observation made by the learned trial court that the plaintiff should have file the suit for specific performance of contact and that the drafting of the plaint was wrong is not found to be sustainable. 23. The finding of the learned trial court on Issue No. 3 is set aside by holding that the plaintiff is found to be entitled to decree as prayed for. As the defendant is found to be occupying the suit land described in Schedule-2 of the plaint without paying the full consideration, this Court holds that the defendant is liable to be paid compensation by the defendant for illegal occupation of the suit land. Hence, the plaintiff is entitled to adjust the advance money towards the claim for compensation as made in “prayer (g) and (h)”, and if there remains any excess money after such adjustment, the plaintiff is liable to refund the same to the defendant by depositing the same before the learned trial court within a period of 2 months. 24. The appeal stands allowed and the impugned judgment and decree dated 05.05.2009 passed by the learned Civil Judge, Jorhat in T.S. No. 31/2007 is set aside, without affecting the finding of the said learned court on issue No. 1 and 2. Consequently, the suit stands decreed in terms of the “prayer (b), (c), (d), (e), (f), (g), (h), (k) and (l)” of the plaint. 25. Let a decree be prepared. Let the LCR be returned forthwith.