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2018 DIGILAW 1311 (GAU)

Meghendra Kr. Deka v. Dhupen Deka

2018-09-04

PRASANTA KUMAR DEKA

body2018
JUDGMENT : PRASANTA KUMAR DEKA, J. 1. Heard Mr. P. Sundi, learned counsel appearing for the petitioner. Also heard Ms. B. Choudhury, learned counsel appearing for the respondents No.1 and 2. 2. The present appellant is the plaintiff in Title Suit No. 71/2006 in the Court of learned Civil Judge, Sonitpur at Tezpur which was filed against the present respondent as the defendant. The suit is for specific performance of contract. The defendant respondent took a loan of Rs. 41,000/- from his elder brother the plaintiff appellant after creating usufructuary mortgage over the suit land. The defendant respondent executed an unregistered document thereby acknowledging the receipt of the borrowed money with a promise that on failure to repay the said borrowed money within a period of six months from the date of its execution i.e. 18.12.1995, the plaintiff appellant has a right to ask for execution of a registered sale deed thereby transferring the mortgaged property. After expiry of the said period the defendant respondent failed to repay the same and it came to the knowledge of the plaintiff appellant that by way of a registered sale deed on 21.1.1997, the defendant respondent sold the said property which is 3 and 1/3 lessas of land along with the house/structure standing thereon to the defendant respondent No.2. Finding no alternative the plaintiff appellant preferred the said suit and the suit was filed against the defendant respondent No.1 the borrower and the defendant respondent No.2, purchaser of the mortgaged property. 3. The defence of the defendant respondent is total denial. Not only that the defendant respondent No.1 took the plea that the plaintiff appellant out of greed manufactured the said document purportedly shown to be the unregistered mortgage deed and on the strength of the said authorized document, illegally mutated the name of the plaintiff appellant in the holding extract maintained by the Rangapara Town Committee. As such, it was prayed for dismissal of the suit by the defendant respondent No.1. On the basis of the pleadings, the learned trial Court framed the following issues: 1. Is there any cause of action for the suit ? 2. Is the suit maintainable in the present form? 3. Is the suit bad for non-joinder of necessary parties? 4. Whether the defendant No. 1 executed mortgaged document dated 18.12.1995 in favour of the plaintiff as alleged ? 5. Is there any cause of action for the suit ? 2. Is the suit maintainable in the present form? 3. Is the suit bad for non-joinder of necessary parties? 4. Whether the defendant No. 1 executed mortgaged document dated 18.12.1995 in favour of the plaintiff as alleged ? 5. Whether the plaintiff is entitled to a decree as prayed for? 4. The plaintiff side examined three witnesses and exhibited some documents including the Ext.2 unregistered mortgage deed. Along with it, some of the documents were exhibited which were not relied in the plaint. On the other hand, the defendant respondent examined five witnesses and also exhibited some documents. The learned trial Court vide its judgment and decree dated 18.12.2006 dismissed the suit where after Title Appeal No. 6/2007 was preferred by the plaintiff appellant which was dismissed vide judgment and decree dated 12.7.2007 by the said learned Civil Judge, Sonitpur, Tezpur. Thereafter, the present Second Appeal was preferred and admitted on 23.1.2008 on the following substantial questions of law: "1.Whether the suit of the plaintiff for specific performance of contract can be dismissed on the ground that Ext.2 is an unregistered mortgage deed without considering that the same can be considered for collateral purposes to establish the contract between the parties as provided by proviso to Section 49 of the Registration Act, more so when the signature of the defendant in such deed has been proved; and 2. Whether the evidence of PWs 1 and 2(Ext.1) is hit by Order 6 Rule 2 of the CPC." 5. The learned first Appellate Court considered the issue No.4 at first. While considering the said issue No.4, the learned First Appellate Court considered the evidence on record led by plaintiff appellant along with the rest of the two witnesses. The plaintiff appellant as the PW 3 deposed that the defendant respondent No.1 executed the said mortgage deed on 18.12.1995 after accepting the borrowed amount of Rs. 41,000/- in presence of witnesses Bimal Das and Madan Kalita, PW 1 and PW 2 respectively. In the evidence it is further stated that on earlier occasion the defendant respondent No.1 obtained an amount of Rs. 39,000/- as loan from PW 1 Bimal Das on 18.6.1995 and executed a mortgage deed over the suit property and further exhibited the said mortgage deed as Ext. 1. In the evidence it is further stated that on earlier occasion the defendant respondent No.1 obtained an amount of Rs. 39,000/- as loan from PW 1 Bimal Das on 18.6.1995 and executed a mortgage deed over the suit property and further exhibited the said mortgage deed as Ext. 1. In order to show the necessity for subsequent borrowing of money by the defendant respondent No.1, the plaintiff appellant PW 3, deposed that as the defendant respondent No.1 had to repay the said amount of Rs. 39,000/- to PW 1 within six months, so defendant respondent No.1 approached him and obtained a loan of Rs. 41,000/- and thereafter, executed unregistered mortgage deed Ext.2, in favour of the plaintiff appellant. PW 3, the plaintiff appellant and Madan Chandra Kalita, PW 2 were witnesses on earlier occasion while executing mortgage deed Ext. 1. The said fact of prior loan and the mortgage deed in favour of PW 1 was not pleaded in the plaint and as such, both the Courts below did not consider the said evidence on record as the same were not pleaded. 6. Discarding the said piece of evidence, the first Appellate Court considered the evidence on record of the said three witnesses and held that PW 1 and PW 2 were witnesses at the time of execution of Ext.2 (unregistered mortgage deed dated 18/12/1995) in favour of the plaintiff appellant which was executed by the defendant respondent No.1 on 18.12.1995. The Ext.1 was executed in the house of the plaintiff appellant and similarly on 18.12.1995 the defendant respondent No.1 also took loan of Rs. 41,000/- in the house of plaintiff appellant and executed the mortgage deed Ext.2 in presence of PW 1 and PW 2 and then and there, repaid earlier loan of Rs. 39,000/- to PW 1, Bimal Das. Thereafter, the learned first appellate Court considered the said evidence on record and finally came to the conclusion that as the said execution of Ext. 1 and Ext.2 was specifically denied by the DW 1 i.e. the defendant respondent No.1, under such circumstances, the fact of execution of Ext.2 was not proved and believed by the First Appellate Court. Thereafter, the learned first appellate Court considered the said evidence on record and finally came to the conclusion that as the said execution of Ext. 1 and Ext.2 was specifically denied by the DW 1 i.e. the defendant respondent No.1, under such circumstances, the fact of execution of Ext.2 was not proved and believed by the First Appellate Court. The learned First Appellate Court also rightly held that in order to show the necessity for taking the subsequent loan on the part of the defendant respondent No.1, the story of Ext.1 was simply created in order to make belief that there was a real necessity to borrow the sum of Rs. 41,000/-. The learned first Appellate Court came to the finding that the subsequent introduction of the fact by way of evidence, if at all are relevant in order to prove the necessity on the part of the defendant respondent No.1, the said facts being material facts ought to have been pleaded and until and unless the same is pleaded, the court cannot consider the evidence on record to that effect. It was also held that regarding execution of Ext.2 there was no coherent evidence amongst the PWs 1, 2 and 3 rather the same were contradictory to each other. Finally the said issue No.4 was decided against the plaintiff appellant thereby upholding the findings of the learned Trial Court. 7. Though there was a prayer on the part of the plaintiff appellant to invoke the provision of Order 41 Rule 27 CPC in order to prove the signatures of the defendant respondent No.1 by hand writing expert that was rightly rejected by the First Appellate Court on the ground that the said prayer by the plaintiff appellant was only to fill up the lacuna. Another plea was raised by the plaintiff appellant before the First Appellant Court that as the Ext. 2 was executed by the defendant respondent No.1 which was an unregistered mortgage deed, under such circumstances, invoking the jurisdiction under the proviso of Section 49 of Registration Act, 1908, the Court below ought to have granted the relief of specific performance of contract in favour of the plaintiff appellant. Rejecting the same the First Appellate Court finally upheld the findings of the learned Trial Court and dismissed the appeal. 8. Mr. Rejecting the same the First Appellate Court finally upheld the findings of the learned Trial Court and dismissed the appeal. 8. Mr. Sundi, learned counsel submits that Ext.2 can be treated at least for collateral purposes in order to establish that the contract exists between the parties more specifically, the plaintiff appellant and defendant respondent No.1 and as such, the learned Courts below had gone wrong in not invoking the proviso of Section 49 of the Registration Act, 1908, more so, after proving the execution of Ext.2, mortgage deed. Mr. Sundi further submits that the evidence of PW 1 and PW 2 cannot be held to be hit under the proviso of Order 6 Rule 2 of the CPC which both the Courts below had considered wrongly. It is the contention of the learned counsel that the evidence led by PW 1 and PW 2 are in support of the fact of necessity of money on the part of the defendant respondent No.1. The said fact of necessity is not the subject matter of the suit inasmuch as the same is involved with respect to the Ext.2 and its specific performance by the defendant respondent No.1. Under such circumstances, the Court ought not to have entered into such discussion giving stress on the Ext. 1 and the evidence of PW 1 and PW 2, rather it is the PW 3 who sought for the relief of specific performance of contract to the extent of mortgage which was created by Ext.2 which included the stipulation of sale of the suit property. After the defendant respondent No.1 borrowed an amount of Rs. 41,000/-, he promised that in the event he failed to return the said borrowed amount, he would execute a registered sale deed in favour of plaintiff appellant, after lapse of six month. On failure to return back the said amount of Rs. 41,000/-, the cause of action accrued on the plaintiff appellant to seek for the relief of specific performance of contract and as such, learned Courts below had misdirected from the main issue. Under such circumstances, there is a glaring error by not invoking the Proviso of Section 49 of the Registration Act, 1908 which ought to have been considered leaving aside the rest of the evidence of PW 1 and PW 2. 9. On the other hand, Ms. Choudhury vehemently opposed the submission of Mr. Under such circumstances, there is a glaring error by not invoking the Proviso of Section 49 of the Registration Act, 1908 which ought to have been considered leaving aside the rest of the evidence of PW 1 and PW 2. 9. On the other hand, Ms. Choudhury vehemently opposed the submission of Mr. Sundi and submits that both the Courts below are well within the jurisdictional norms in appreciating the evidence on record and discarding the irrelevant evidences which have no footing in the pleadings of the plaintiff appellant. 10. Considered the submission of learned counsel. On perusal of the plaint it is clear and apparent that the plaintiff appellant nowhere pleaded that PW 1 and PW 2 were present at the time of loan transaction of Rs. 41,000/- which took place in the house of the plaintiff appellant. Further, the newly introduced facts as evidence with regard to Ext.1 is also missing in the pleadings of the plaint. If the said piece of evidence is considered to be a relevant fact, then the same is required to be pleaded in the plaint, as per mandate of Order 6 Rule 2 of the CPC. Non-adherence to the said provision of Order 6 Rule 2 CPC by the plaintiff appellant is itself fatal, if considered from the various ratio laid down by the Hon'ble Apex Court and this Court. On the other hand, Mr. Sundi submits that the mortgage was created on the strength of Ext. 2 which is an unregistered one. If the said plea of Mr. Sundi is taken into consideration and if the Ext. 2 is also considered on its full face value, it is very much clear and apparent that a mortgage was created between the plaintiff appellant and defendant respondent No.1 which though, is not the finding of this Court. If considered from the said point of argument of Mr. Sundi, then passing of a decree for specific performance of contract on the said mortgage would stand a clog on the equity of redemption so far the defendant respondent No.1 is concerned. The plaintiff appellant has not yet filed any suit for foreclosure of the said mortgage. Under such circumstances, the right of redemption of defendant respondent No.1 cannot be extinguished. If that be so, the suit itself is not maintainable inasmuch as, the decree for specific performance of contract cannot be granted considering the Ext. The plaintiff appellant has not yet filed any suit for foreclosure of the said mortgage. Under such circumstances, the right of redemption of defendant respondent No.1 cannot be extinguished. If that be so, the suit itself is not maintainable inasmuch as, the decree for specific performance of contract cannot be granted considering the Ext. 2, mortgage deed on its full face value. Under such circumstance, the Proviso of Section 49 of the Registration Act, 1908 will not come into play. Accordingly, the substantial question of law No.1 is decided in the affirmative. 11. The Ext.1 is the document which is totally a privy to PW 1, Bimal Das and the defendant respondent No.1 and it has no relevancy with respect to the claim of the plaintiff appellant inasmuch as the plaintiff appellant has sought for specific performance of contract of the terms stipulated in Ext.2. 12. If the said Ext. 1 at all had its relevancy, the same ought to have been pleaded in the plaint of the plaintiff appellant, in order to lead evidence under Section 106 CPC, in order to discharge the burden of proving the fact especially within the knowledge of the plaintiff appellant. As the said Ext.1 is purportedly introduced in order to show the necessity of money as on 18.12.1995 of the defendant respondent No.1, the same ought to have been pleaded as required under Order 6 Rule 2 of the CPC. Having not done so the same is hit by the said provision of Order 6 Rule 2 of the CPC and substantial question of law No.2 is also decided in the affirmative. Under such circumstances, this Second Appeal stands dismissed. 13. No cost. Send back the LCR.