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2019 DIGILAW 550 (ORI)

Abhimanyu Behera v. Babuli Muduli

2019-08-28

D.DASH

body2019
JUDGMENT : D. Dash, J. 1. This application under Section 114 read with Order 47, Rule 1 of the Code of Civil Procedure has been filed for review of the judgment dated 14.01.2016 passed by this Court in Section Appeal No. 91 of 2001. 2. The petitioner is the plaintiff in Title Suit No. 234 of 1989. The opposite parties were the defendants. The suit had been filed for a decree for specific performance of contract in respect of the property described in the plaint schedule and for necessary follow up directions to the parties in that regard. It had been alternatively prayed that in case the decree for specific performance of contract is refused, there be a decree for refund of the consideration which has been paid in connection with the said transaction together with interest. 3. For the sake of convenience and in order to avoid confusion and bring clarity, the parties hereinafter have been referred to as per their position as assigned in the trial Court. 4. The trial Court refused to grant a decree for specific performance of contract and it had granted the alternative relief of refund of the consideration with interest. Being aggrieved by the same, when the plaintiff preferred an appeal as against the refusal to grant a decree for specific performance of contract, the defendants also filed a cross appeal questioning the decree of refund of the said consideration with interest. The lower appellate Court has held that the plaintiff's entitlement to a decree for specific performance of contract. So, the defendants had preferred the appeal under Section 100 of the Code. The substantial question of law formulated in this appeal was as under: "Whether an executable decree for specific performance of contract can be passed on the basis of wrong boundary description of the suit, more so when, no sketch map is attached to the contract'"? 5. This Court by judgment dated 14.01.2016, has allowed the appeal in part by restoring the judgment and decree passed by the trial Court and the judgment and decree which had been returned by the lower appellate Court has been set aside. So, the position at present stands that the plaintiff's suit has been decreed granting the relief of refund of consideration with interest and his prayer for grant of decree for specific performance of contract has not been found favour with. 6. Mr. So, the position at present stands that the plaintiff's suit has been decreed granting the relief of refund of consideration with interest and his prayer for grant of decree for specific performance of contract has not been found favour with. 6. Mr. S.P. Mishra, learned Senior Counsel appearing on behalf of the petitioner (plaintiff) submitted that when this Court has concurred 'with the finding of the trial Court that the description of the suit land is not proper and not in consonance with the provision of Order-7, Rule-3 of the Code, the said finding is an error apparent on the face of the record. He further submitted that the conclusion of this Court that the suit property is not identifiable is contrary to the fact that there was proper description. In the plaint schedule, So this Court having held it to be vague is contrary to pleading as well as the evidence on record. He submitted that in course of hearing those evidence having not been properly placed and attention of this Court having not been duly invited to those, this Court has found the discussion of evidence made by the trial Court to be based on the evidence is an error apparent on the face of record. Hence, according to him, there arises the scope for review. He submitted that if a decree for specific performance of contract is passed in respect of the land described in the plaint schedule, under no circumstance; it would be inexecutable or rendered infructuous as has been so held. It was his further submission that insofar as the available evidence on record are concerned, at this stage it can be seen that such a finding is clearly an error apparent on the face of the record and that could have been left to be taken up in the execution proceeding in deciding the executability of the decree, if at all so raised. It was his submission that the plaint contains the description, which is sufficient to identify the land in question as the plaintiff has given the plot number and municipal holding number in respect of the suit land and at the same time has also specified the same matter that the suit land falls to the extreme east of the entire suit land leaving some portions which have already been sold and the same description is well supported by the evidence adduced by the defendants which is admitted and without accepting the piece of evidence that no other land is available on the spot, this Court has inadvertently overlooked it, in ultimately concurring the finding of the trial Court that the relief of specific performance of contract has to be refused for the reason that the suit land as described in the plaint schedule is not identifiable and as such the decree cannot be executable and rendered infructuous. He, therefore, submitted that although the power of review is exercised in exceptional cases, yet here it is a case of exercise of that power of review as otherwise there would be grave miscarriage of justice and a person having no fault, his cause would be the casualty standing to the undue advantage of the adversary. 7. Mr. B. Tripathy, learned counsel for the opposite party no. 1 (defendant no. 1) submitted that once this Court having discussed the evidence on record has arrived at a conclusion that in the case no decree for specific performance of contract, can be passed, there remains no scope for review of the finding even if it is said to be erroneous, as according to him, it cannot be said to be an error apparent on the face of the record. 8. The discussion of the point has been made in para-10 of the judgment of this court and for proper appreciation, the said paragraph is reproduced herein below: "Coming to the case in hand, it is seen that the basis, i.e., the agreement (Ext. 1) finds mention in its schedule that out of land Ac. 0.096 dec, the subject matter of the agreement is land of Ac. 0.040 dec. and that is excluding the lands sold prior to that from out of the land measuring Ac. 0.96 dec. 1) finds mention in its schedule that out of land Ac. 0.096 dec, the subject matter of the agreement is land of Ac. 0.040 dec. and that is excluding the lands sold prior to that from out of the land measuring Ac. 0.96 dec. Though plot number and khata number have been given, yet the boundary as described does not concern with the land to the extent of Ac. 0.040 dec. as per the description in the plaint and that has been given the same. No such specific para has been devoted in the plaint elaborating further description of the subject matter of the suit. The boundary given in the plaint as also in the agreement though tallies, the same is the boundary of the land given in Ext. 2, the deed of gift, the same covers the entire land which originally came to the hands of the defendant No. 1 measuring Ac. 0.096 dec. Exts. A and B, the two sale deeds show that the land measuring Ac. 0.39 dec. from out of that total land had already been sold in the year 1971-72, thus leaving balance of Ac. 0.057 dec. So even if it is accepted that the agreement was actually executed between the parties for sale of land measuring Ac. 0.40 dec, there remains no specific description of the same. Neither the agreement contains any map nor any such annexure is provided to the plaint. P.W. 3 has categorically deposed that a sketch map was prepared at the time of preparation of the draft. However, neither such draft nor such sketch map have been proved in the case, Therefore, the exact location of the land is not shown and the same remains uncertain. The plaintiff has not taken any such step during the trial of the suit to establish the identity of the land covered under the Ext. 1 forming the subject matter of the suit for specific performance of the contract. In such state of affair, it becomes clear that no such decree can be passed in favour of the plaintiff directing specific performance of the contract for sale of specific land. Not only that Ext. 1 suffers from the vice of vagueness of the description of the property but also the plaint also so suffers and it has also not been filled up through evidence during the trial. Not only that Ext. 1 suffers from the vice of vagueness of the description of the property but also the plaint also so suffers and it has also not been filled up through evidence during the trial. The lower appellate Court, therefore, having failed to look into this aspect and rather being in oblivion of the same having allowed the cross appeal in decreeing the suit for specific performance of the contract has no doubt committed the error and as such the same is not sustainable, The aforesaid discussions provide necessary answer to the substantial question of law in favour of the defendants and against the plaintiff," Subject matter of the agreement is the land of Ac. 0.040 dec. from out of land of Ac. 0.096 dec. The rest is said to have been sold beforehand. Khata number and plot number have been given in the description of the suit land which find mention in the plaint schedule. 8. Perusal of the plaint reveals that the land measuring Ac 0.096 dec. under Khata No. 247 leaving the portions sold; from the rest Ac. 0.040 dec. consisting of one old kacha thatched house under Holding No. 367 and Plot No. 881 is the subject matter of the suit and has been given in the schedule of the plaint It further reveals that the boundary has been given at the end and that appears to be ascertainable by ignoring some writings which have not been so happily worded. It is seen that when this Court has stated in the earlier judgment that boundary given in the plaint as also in the agreement though tallies, the same is the boundary of the land given in the Ext. 2 and the same covers the entire land which originally had came to the hands of the defendant no. 1, i.e., Ac. 0.096 appears to be not the correct position as emerging from the pleading and evidence, as is further evident from the evidence of the defendants that except this piece of land, no other land is available on the spot. In view of the aforesaid, this Court without any hesitance holds that its conclusion on the above score is an error apparent on the face of the record and that it needs to be thrashed out in detail by hearing of the appeal afresh. 9. In view of the aforesaid, this Court without any hesitance holds that its conclusion on the above score is an error apparent on the face of the record and that it needs to be thrashed out in detail by hearing of the appeal afresh. 9. In the wake of aforesaid the prayer for review is allowed. The judgment dated 14.01.2015 passed in S.A. No. 91 of 2001 as also the decree drawn in pursuance thereof are hereby recalled.