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2018 DIGILAW 1719 (GAU)

Smti Anjali Roy v. Manika Das

2018-12-11

PRASANTA KUMAR DEKA

body2018
JUDGMENT & ORDER : 1. Heard Mr. G.P. Bhowmik, learned Senior Counsel appearing for the appellants, assisted by Ms. M. Kalita, Advocate. Also heard Mr. RC Das, learned counsel appearing for all the respondents. 2. The judgment and decree dated 24.06.2009 passed in Title Suit No. 23/2007 by the learned Civil Judge, Bongaigaon is put under challenge in these appeals under Section 96 of the Code of Civil Procedure (for short, ‘CPC’). The appellants, as plaintiffs, preferred the Title Suit No. 23/2007 which was dismissed and the counter-claim filed by the defendant/respondent nos. 3 & 4 in that title suit was decreed. The plaintiffs/appellants preferred first appeal being RFA No. 42/2009 against the decree passed in the counter-claim filed by the defendant/respondent nos. 3 & 4 and later on, preferred another first appeal being RFA 132/2017 against the dismissal of the suit. Both the appeals are disposed of by this common judgment. 3. The plaintiffs/appellants preferred the suit for specific performance of contract on the basis of an oral agreement for sale of the suit property which is a plot of land measuring 2K 2L covered by Dag No. 319 of Patta No. 575 under Bongaigaon Revenue Circle in the district of Bongaigaon with a house standing thereon under Holding No. 176 of Ward No. 10 under the Bongaigaon Municipality. One Deba Narayan Roy (since deceased) was the husband of the plaintiff/appellant no. 1 and father of the plaintiff/appellant nos. 2 & 3. During the lifetime of the predecessor-in-interest of the plaintiffs/appellants, Deba Narayan Roy entered into a lease agreement with respect to a part of the house standing on the suit land on 17.04.2002 on a monthly rent of Rs. 1800/- which was executed by him and the defendant/respondent no. 1. Rent was subsequently enhanced to Rs. 2000/- per month. It is pleaded that at the time of entering into the lease agreement, the defendant/respondent nos. 1 & 2, the wife and the husband respectively, assured that they were planning to settle permanently in Kolkata and would sell the suit property to the predecessor-in-interest of the plaintiffs/appellants. One Sri Jagadish Chandra Das was authorised by the said defendant/respondent nos. 1 & 2 to collect the monthly rent which the plaintiffs/appellants paid regularly. The defendant/respondent nos. 1 & 2, the wife and the husband respectively, assured that they were planning to settle permanently in Kolkata and would sell the suit property to the predecessor-in-interest of the plaintiffs/appellants. One Sri Jagadish Chandra Das was authorised by the said defendant/respondent nos. 1 & 2 to collect the monthly rent which the plaintiffs/appellants paid regularly. The defendant/respondent nos. 1 & 2 during their occasional visits to Bongaigaon assured to sell the suit property as aforesaid and finally the predecessor-in-interest of the plaintiffs/appellants accepted the offer of sale on 10.08.2005. The said acceptance was in presence of witnesses, namely, Jagadish Das, Monoranjan Mitra, Nihar Ranjan Ray etc. The consideration was fixed at a sum of Rs. 6,00,000/- and both the parties agreed to obtain the sale permission and the defendant/respondent nos. 1 & 2 agreed to execute the sale deed within a short span of time. 4. In the month of February, 2007 while the plaintiff/appellant no. 2 visited the office of the ASEB, Bongaigaon, he came to know that the defendant/respondent nos. 1 & 2 had sold the suit premises to the defendant/respondent nos. 3 & 4 in clear violation of the oral agreement dated 10.08.2005. Enquiry was made in the office of the Sub-Registrar, Bongaigaon and the certified copy of the sale deed dated 07.09.2006 was obtained. The said sale transaction was at a consideration amount of Rs. 3,88,034/- both for the land and the building standing thereon. Late Deba Narayan Roy, the predecessor-in-interest of the plaintiffs/appellants died on 04.05.2007 leaving behind the present appellants as his legal heirs and successors. The suit could not be filed immediately after obtaining the copy of the sale deed owing to the death of late Deba Narayan Roy. Terming the said sale transaction to be in clear violation of the oral agreement dated 10.08.2005 and branding it to be a fraudulent one and further pleading about their willingness to purchase the suit property on the basis of the oral agreement, the plaintiffs/appellants sought for the relief of the specific performance of contract with a further declaration that the registered sale deed dated 07.09.2006 executed by the defendant/respondent nos. 1 & 2 in favour of the defendant/respondent nos. 3 & 4 is illegal. 5. The defendant/respondent nos. 1 & 2 filed a joint written statement and on the other hand, the defendant/respondent nos. 1 & 2 in favour of the defendant/respondent nos. 3 & 4 is illegal. 5. The defendant/respondent nos. 1 & 2 filed a joint written statement and on the other hand, the defendant/respondent nos. 3 & 4 filed their written statement along with counterclaim seeking declaration of the right, title and interest over the suit land, for ejectment of the said plaintiffs/appellants from the suit land and for recovery of khas possession. In the written statement of the defendant/respondent nos. 1 & 2, they admitted the tenancy in respect of their premises which started from 17.04.2002 till 16.04.2004 and thereafter no fresh house rent agreement was executed. Late Deba Narayan Roy after expiry of the term of the tenancy agreement approached the defendant/respondent nos. 1 & 2 and sought for the permission to allow him to stay for some more time as his transfer was due which was agreed to by the landlords i.e. defendant/respondent nos. 1 & 2. Admitting the fact of transfer of the suit property to the defendant/respondent nos. 3 & 4 vide registered sale deed No. 969/2006 dated 07.09.2006, it is further pleaded that the plaintiffs/appellants were fully aware about the said sale transaction and the delivery of possession of two rooms on the date of execution of the sale deed to the defendant/respondent nos. 3 & 4. The electricity connection was also transferred in the name of defendant/respondent nos. 3 & 4 with full knowledge of the plaintiffs/appellants. Denying existence of any oral agreement, the defendant/respondent nos. 1 & 2 asserted that the sale transaction was lawful and also sought for dismissal of the suit. 6. The defendant /respondent nos. 3 & 4 pleaded that the predecessor-in-interest of the plaintiffs/appellants filed Title Suit No. 56/2006 against the defendant/respondent nos. 1 & 2 in the court of learned Civil Judge (Jr. Divn.), Bongaigaon, with respect to the same subject matter of the subsequent suit. The said suit was withdrawn on 20.09.2007 without seeking any leave to institute the same afresh. As such, the suit is hit under Order XXIII Rule 1(4) of the CPC. The Advocate on behalf of the plaintiffs/appellants vide notice dated 12.09.2006 addressed to the defendant/respondent no. 4 informed that an agreement for sale of the tenanted house was executed between his clients and the landlady Smti. Manika Das which is still in existence. As such, the suit is hit under Order XXIII Rule 1(4) of the CPC. The Advocate on behalf of the plaintiffs/appellants vide notice dated 12.09.2006 addressed to the defendant/respondent no. 4 informed that an agreement for sale of the tenanted house was executed between his clients and the landlady Smti. Manika Das which is still in existence. Referring to the said contention of the notice it is pleaded in the written statement that the plaintiffs/appellants pleaded in the plaint that the said oral agreement was between their predecessor-in-interest Late Deba Narayan Roy and the landlady but not with plaintiffs/appellants (clients of the Advocate) and as such, there is a contradictory stand. After denial of the pleadings in the plaint the defendant/respondent nos. 3 & 4 sought for declaration of their right, title and interest over the suit land along with the declaration that the plaintiffs/appellants are mere trespassers and liable to be evicted. 7. On the basis of the said pleadings, the learned trial court framed the following issues:- 1. Is there any cause of action for filing of the suit? 2. Whether suit is maintainable in its present form and manner? 3. Whether suit is barred by limitation? 4. Whether defendant no. 1 & 2 made an oral agreement with the plaintiffs to sell the suit premises at consideration of Rs. 6,00,000/- only in presence of witness? 5. Whether suit is bad for non-joinder of necessary parties? 6. Whether sale deed executed by defendant no. 1 and 2 in favour of defendant nos. 3 & 4 is illegal, void and fraudulent? 7. Whether plaintiffs are ready and willing to purchase the suit land? 8. Whether plaintiffs are entitled to reliefs as prayed for? 9. Whether defendants are entitled to reliefs in counter claim? 10. To what other relief/reliefs parties are entitled to? 8. The plaintiffs/appellants examined two witnesses and exhibited the certified copy of the sale deed dated 07.09.2006 as Exhibit 1; the notice dated 02.07.2007 as Exhibit 2 and the reply to the notice dated 31.07.2007 as Exhibit 3. On the other hand, the defendant/respondent nos. 3 & 4 examined three witnesses and produced Exhibits A to Y. 9. Mr. Bhowmik, learned Senior Counsel, submits that the appreciation of the evidence on record by the learned trial court is not in the proper perspective. On the other hand, the defendant/respondent nos. 3 & 4 examined three witnesses and produced Exhibits A to Y. 9. Mr. Bhowmik, learned Senior Counsel, submits that the appreciation of the evidence on record by the learned trial court is not in the proper perspective. One Biswanath Bhaduri was the PW 2 who supported the fact of negotiation of the terms of the oral agreement for sale but the evidence was disbelieved because of the fact that the said witness could not depose the name of the father of Late Deba Narayan Roy nor his date of marriage. It cannot be a ground to discard the evidence of the said PW 2. He deposed in respect of the terms of the oral agreement and the plaintiffs/appellants discharged the burden inasmuch as there is specific pleading in the plaint that in the said discussion the defendant/respondent nos. 1 & 2 agreed to sell the suit premises at a total consideration of Rs. 6,00,000/- after obtaining the sale permission within a short time by executing the registered sale deed. The said pleading is supported by the said PW 2 and merely as the said witness is unaware with regard to the date of marriage of the predecessor-in-interest of the plaintiffs/appellants cannot at all be a ground to discard the evidence. It is further submitted that admittedly there is a tenancy agreement between the plaintiffs/appellants and the defendant/respondent nos. 1 & 2. On transfer of the said suit premises to the defendant/respondent nos. 3 & 4, the status of tenant of the plaintiffs/appellants remained as it is and as such, the defendant/respondent nos. 3 & 4 ought to have filed a separate suit under the Tenancy Act for their ejectment on the ground of either defaulter ship or bonafide requirement. Submitting as such, Mr. Bhowmik sought for interference in the impugned judgment and decree. 10. Mr. Das, learned counsel for the respondents, on the other hand, submits that there is no such wrong appreciation of the evidence on record. The fact of oral agreement is not at all proved nor does the witness PW 2 support the pleadings of the plaintiffs/appellants. On the other hand, there is a clear admission on the part of the defendant/respondent nos. The fact of oral agreement is not at all proved nor does the witness PW 2 support the pleadings of the plaintiffs/appellants. On the other hand, there is a clear admission on the part of the defendant/respondent nos. 1 & 2 that they executed the registered sale deed and after the said execution of the registered sale deed the title devolved on the defendant/respondent nos. 3 & 4 and there is no dispute to that fact. The learned trial court rightly held so. Further, it is submitted that the plaintiffs/appellants by filing the suit prior to the one which is the subject matter of these appeals, claimed their status with respect to the tenancy and not beyond that. Under such circumstances, the fact of oral agreement is demolished by their own pleadings in the earlier suit. Accordingly, Mr. Das sought for dismissal of these appeals. 11. Considered the submissions of the learned counsel appearing for the parties. Perused the records. From the contention of the learned counsel for the parties, the point for determination is as follows:- Whether the court below appreciated the evidence on record in the proper perspective keeping in view that the plaintiffs/appellants claimed for the decree of specific performance of contract on the basis of an oral agreement? 12. The law is clear and settled. Plaintiff seeking the decree for specific performance of contract on the basis of an oral agreement has duty cast upon him to plead each and every terms of the oral agreement in the pleadings and he must show that the vendor and the plaintiff are ad idem of the terms and conditions pleaded in the plaint. The learned trial court while deciding issue no. 4 took note of the fact of the oral agreement dated 10.08.2005. In the plaint, the plaintiffs/appellants failed to name the PW 2, Biswanath Bhaduri, the purported witness who was present at the time of settling the terms and conditions of the oral agreement. But from the pleadings referring the oral agreement it is seen that names of three witnesses are pleaded omitting the name of Biswanath Bhaduri and so, that itself is sufficient to draw the adverse inference inasmuch as the oral agreement must be proved with the support of witnesses’ presence at the time of the agreement. But from the pleadings referring the oral agreement it is seen that names of three witnesses are pleaded omitting the name of Biswanath Bhaduri and so, that itself is sufficient to draw the adverse inference inasmuch as the oral agreement must be proved with the support of witnesses’ presence at the time of the agreement. The oral agreement is pleaded, but it is the duty of the plaintiffs/appellants to plead the names of the witnesses at the time of entering the agreement. Non-examination of the witnesses named in the plaint would definitely lead to an adverse inference so far the presence of PW 2 is concerned. The PW 1 deposed that the negotiation was arrived at on 10.08.2005 in presence of the named witnesses in the plaint along with the PW 2, Biswanath Bhaduri. The PW 1 further admitted during her cross examination that she had been paying monthly rent of the suit house till July, 2007 in the court of learned Munsiff which cannot be believed inasmuch as there is no pleading in the plaint that as per the terms of the oral agreement for sale, the plaintiffs/appellants were depositing the rent. Had there been any agreement for sale, further question of paying rent in the court would not have arisen unless there is an agreement to that effect. In addition to that, on perusal of the Exhibit ‘X’, the plaint filed in Title Suit No. 56/2006, it is clear and apparent that the suit was filed in the year 2006 against the defendant/respondent nos. 1 & 2 for declaring the plaintiffs/appellants as the statutory tenant of the tenanted premises and plaintiff is not defaulter. The said fact of filing Title Suit No. 56/2006 is suppressed in the plaint which is a deterrent factor so far principles of equity and its application is concerned, the suit being for specific performance of contract. On the other hand, the relief sought for in the said suit itself goes to show that no such oral agreement was entered into on 10.08.2005. Accordingly, with such evidence on record, the fact that there was an oral agreement for sale cannot be accepted. Thus, issue no. 4 is decided against the plaintiff/appellant. 13. In issue no. 6 as to whether sale deed executed by the defendant/respondent nos. 1 & 2 in favour of the defendant/respondent nos. Accordingly, with such evidence on record, the fact that there was an oral agreement for sale cannot be accepted. Thus, issue no. 4 is decided against the plaintiff/appellant. 13. In issue no. 6 as to whether sale deed executed by the defendant/respondent nos. 1 & 2 in favour of the defendant/respondent nos. 3 & 4 is illegal, void and fraudulent, it must be seen as to whether there was a binding promise made by defendant/respondent nos. 1 & 2 and the predecessor-in-interest of the plaintiffs/appellants. In the cross examination of the PW 1, Anjali Roy stated that there was no such agreement except there was certain negotiation between her deceased husband and defendant/respondent nos. 1 & 2. She even stated that she did not herself enter into any written agreement with the said defendant/respondent nos. 1 & 2 in respect of the suit premises after the death of her husband. From the said evidence of PW 1 and after discarding the evidence of PW 2 it can be safely concluded that the defendant/respondent nos. 1 & 2 did not bind themselves to sell the suit premises to the plaintiffs/appellants nor their predecessor-in-interest. If no such binding/bindings are there, under such circumstances, the defendant/respondent nos. 1 & 2 are at liberty to enter into any agreement for sale inasmuch as their title has not been disputed by the plaintiffs/appellants. Further, there is no obligation annexed to ownership of the defendant/respondent nos. 1 & 2 not amounting to interest arising out of an obligation arising out of contract. Because it has already been held that there was no oral agreement for sale as pleaded in the plaint. So there is no violation of Section 40 of the Transfer of Property Act. 14. So far issue no. 7 is concerned, as there is no such oral agreement proved, under such circumstances, the readiness and willingness on the part of the plaintiffs/appellants to purchase the suit land does not arise at all resulting that the plaintiffs/appellants are not entitled for any relief as prayed for. 15. Issue no. 9 is whether the defendant/respondent nos. 3 & 4 are entitled to reliefs in the counter claim. The fact of tenancy is not disputed and the defendant/respondent nos. 3 & 4 also purchased the suit premises upon which the plaintiffs/appellants are tenants. 15. Issue no. 9 is whether the defendant/respondent nos. 3 & 4 are entitled to reliefs in the counter claim. The fact of tenancy is not disputed and the defendant/respondent nos. 3 & 4 also purchased the suit premises upon which the plaintiffs/appellants are tenants. Section 109 of the Transfer of Property Act put the purchaser of the suit premises from the landlord on equal footing and the tenants are bound to follow the terms and conditions of the tenancy agreement which he/she entered with the landlord/vendor of the subsequent purchaser. PW 1, Anjali Roy in her cross examination stated that she had come to know about the fact of purchase by the defendant/respondent nos. 3 & 4 of the suit premises in the month of February, 2007. She deposed that she did not inform expressing her intention to continue t he tenancy under the said defendant/respondent nos. 3 & 4. On the other hand, there is a specific admission on the part of the PW 1 that since July, 2008 they did not pay any rent to the landlord, Benod Behari Das. Under such circumstances, the act of non-depositing the rent to the defendant/respondent nos. 3 & 4 is a clear case of defaulter on the part of the plaintiffs/appellants. By way of transfer of the suit premises, the defendant/respondent nos. 3 & 4 are holding the same position as landlord as that of defendant/respondent nos. 1 & 2. If the plaintiffs/respondents do not come forward to deposit the rent then also the status of tenant remains as that of under the vendor landlord. But this is a case wherein the plaintiffs/appellants had taken the stand that there is an oral agreement for sale and even thereafter they continued paying the rent in the court till the year 2008 but not in the name of the defendant/respondent nos. 3 & 4 and even on receipt of the notice dated 24.10.2008 the plaintiff/appellant failed to deposit rent and/or tender the same to the defendant/respondent nos. 3 & 4, the subsequent transferees of the suit premises. Non-depositing of the rent against the tenanted premises to the subsequent purchasers itself is sufficient to hold that the plaintiffs/appellants are liable to be ejected from the suit premises on the ground of defaulter-ship, a plea taken specifically by the defendant/respondent nos. 3 & 4 in the counter-claim. Accordingly, the submission of Mr. Non-depositing of the rent against the tenanted premises to the subsequent purchasers itself is sufficient to hold that the plaintiffs/appellants are liable to be ejected from the suit premises on the ground of defaulter-ship, a plea taken specifically by the defendant/respondent nos. 3 & 4 in the counter-claim. Accordingly, the submission of Mr. Bhowmik that separate suit for ejectment ought to be filed, cannot be accepted. 16. From the analysis of the discussion made hereinabove, there is cause of action for the suit. The suit is maintainable inasmuch as nothing is submitted to that effect by the learned counsel. How the suit is barred by limitation is also not pleaded by the defendants/respondents in the written statement. Considering the reliefs sought for in the plaint, the necessary parties are before this court. Thus the issue nos. 1 to 3, 5 are decided in favour of the plaintiffs/appellants but they are not entitled to the reliefs sought for. Accordingly, the suit is dismissed and the counter-claim of defendant/respondent nos. 3 & 4 is allowed declaring the right, title and interest of the defendant/respondent nos. 3 & 4. The plaintiffs/appellants are liable to be ejected from the suit premises. No costs. 17. Send back the LCRs. Prepare a decree accordingly.