Delhi District Court
Mrs. Maya Bhatacharjee vs Mrs. Anila Dasgupta on 20 September, 2023
IN THE COURT OF SH. MAYANK GOEL,
ACJ/CCJ/ARC(WEST), TIS HAZARI COURTS, DELHI
CS SCJ 7841/2016
MAYA BHATTACHARJEE Vs. ANILA DASGUPTA
CNR No. DLWT03-000006-1987
MAYA BHATTACHARJEE(DECEASED) BY LRs.
1. SH. BIDYYUT BHATTACHARJEE,
S/O LATE DR. B. N. BHATTACHARJEE.
2. SH. BIKRAM BHATTACHARJEE
S/O LATE DR. B. N. BHATTACHARJEE.
3. MS. MALABIKA BHATTACHARJEE,
W/O SH. RUDRA BHATTACHARJEE,
(REPRESENTED BY SH. BIDYYUT
BHATTACHARJEE (GPA) & LR 1).
4. MS. BASABIKA BHATTACHARJEE,
W/O SH. P. K. MAITRA.
ALL ARE RESIDING AT PREMISES NO.
J-1840, CHITTARANJAN PARK, NEW DELHI-
110019.
......Plaintiffs.
Vs.
1. MRS. ANILA DASGUPTA(DECEASED) BY LRs.
A. SH. PARTHA SARATHI DASGUPTA.
S/o LATE SH. GOURITOSH DASGUPTA,
R/o FLAT No. 3, 3rd FLOOR, 229, B.B.C. ROAD,
MOHINDRA COLONY, DUM DUM CANTONMENT
KOLKATA-700028.
_________________________________________________________________________
CS SCJ 7841/2016
MAYA BHATTACHARJEE Vs. ANILA DASGUPTA Page No. 1 of 51
CNR No. DLWT03-000006-1987
B. PHALGUNI DASGUPTA.
S/o LATE SH. GOURITOSH DASGUPTA,
R/o 8A/1A, JESSORE ROAD,
DUM DUM ROAD,
KOLKATA-700028.
C. SH. NIRMALYA DASGUPTA,
S/o LATE PREMOTOSH DASGUPTA,
R/o MANICKTOLA GOVERNMENT HOUSING
ESTATE,
BLOCK G, FLAT NO. 1, SCHEME NO. VIIM,
V.I.P. ROAD,
KOLKATA-700054.
D. SH. INDRANI DASGUPTA,
S/o LATE PREMOTOSH DASGUPTA,
R/o KANKURGACHI, C.I.T. BUILDING,
BLOCK NO. 4, FLAT NO. 6, SCHEME VIM,
KOLKATA-700054.
E. SMT. SARBANI DAS NEE DASGUPTA,
D/o LATE SH. PREMOTOSH DASGUPTA,
R/o 83/63, DUM DUM ROAD,
KOLKATA-700074.
R/o 8/1, DUM DUM ROAD,
KOLKATA, WEST BENGAL.
2. SMT. SAWITRI JAIN
W/O SH. N. K. JAIN
HOUSE NO. 124/1, SAINIK FARMS
NEW DELHI-110062 ......Defendants.
SUIT FOR SPECIFIC PERFORMANCE AND
INJUNCTION
Date of institution : 24.02.1987
Date of reserving order for Judgment : 21.08.2023
Date of final order : 20.09.2023
Final Order : Dismissed
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CS SCJ 7841/2016
MAYA BHATTACHARJEE Vs. ANILA DASGUPTA Page No. 2 of 51
CNR No. DLWT03-000006-1987
JUDGMENT
Brief Facts pleaded in the plaint
1. The factual matrix of the present case is that the original defendant no.1 is the owner of built up property No. J- 1840, Chittranjan park, Kalkaji, New Delhi measuring 194.82 sq.mts. delineated in the site plan attached to this plaint. That the plot underneath the built up property was allotted to the original defendant No. 1 by the Land and Development Office, Ministry of Works and Housing, New Delhi in the scheme formulated by the Government to rehabilitate refugees from erstwhile Pakistan. That the original defendant No. 1 agreed to sell the aforesaid plot together with the built up property on 10.05.1985 for a total consideration of Rs.2,05,240/- (Rupees Two Lakhs Five Thousand Two Hundred Forty Only), out of which the plaintiff paid a sum of Rs. 50,000/- (Rupees Fifty Thousand Only) by means of a cheque No. JP. 009840 dated 15.05.1985, the amount agreed to be paid pending sanction/permission of L & D.O. This agreement was subject to sale permission being granted by the Land and Development Officer, Minister of Works and Housing, New Delhi. That it was also agreed that the plaintiff would pay the original defendant No. 1 the balance amount of Rs. 1,56,240/- (Rupees One Lakh Fifty five Thousand Two Hundred Forty Only) once sale permission was obtained from L & D.O. in addition to Rs. 50,000/-(Rupees Fifty Thousand Only) payable before the sale permission is obtained and requisite sale deed is executed and in the following manner.
a) Rs. 50,000/- (Rupees Fifty Thousand Only) in National _________________________________________________________________________ CS SCJ 7841/2016 MAYA BHATTACHARJEE Vs. ANILA DASGUPTA Page No. 3 of 51 CNR No. DLWT03-000006-1987 Saving Certificates of three years.
b) Rs. 50,000/- (Rupees Fifty Thousand Only) by Demand Draft account payee.
c) Rs. 30,000/- (Rupees thirty thousand) in cash.
d) The balance of Rs. 25,240/- (Rupees Twenty Five Thousand Two Hundred and Forty Only) in the form of jewelleries.
That the original defendant No. 1 in addition stipulated the items of jewellery and also gave the measurements of the bangles and necklace to be purchased in satisfaction of the entire consideration. That no formal deed in respect of this agreement was thought necessary in view of the relationship between the parties and because the plaintiff along with her husband and family was the tenant in the premises and in occupation and possession of the same. That the only qualification/condition being sale permission being obtained from L & D. O. New Delhi. That the original defendant No. 1 agreed to transfer of the aforesaid property in favour of the plaintiff or her nominee once the aforesaid statutory obligations/formalities were complete. That the original defendant No. 1 stated that no probate was required to be obtained in respect of the house and on the death of her husband, she was the exclusive owner of the said property, which she could sell/dispose of in any manner she wanted and this fact, the plaintiff and/or her his husband who exchanged correspondence on behalf of the plaintiff could verify and satisfy themselves from the records at the L & D.O. office. That the aforesaid plot was registered in the name of the original defendant No. 1 as document No.640 in Additional Book I, _________________________________________________________________________ CS SCJ 7841/2016 MAYA BHATTACHARJEE Vs. ANILA DASGUPTA Page No. 4 of 51 CNR No. DLWT03-000006-1987 Volume No. 37-67 on pages 174 to 177 on 24.02.1977 in the books of the Sub Registrar, Asaf Ali Road, New Delhi. That the original defendant No. 1 after receipt of the aforesaid cheque of Rs. 50,000/- (Rupees Fifty Thousand Only) while re-iterating the terms agreed upon expressed her desire and preference for a Bank draft for the like amount and accordingly a Bank Draft No. 25/2488 dated 21.08.1985 for Rs. 50,000/- (Rupees Fifty Thousand Only) was delivered to her on 29.08.1985. That the plaintiff approached the L & D.O. Office, Ministry of Works and Housing, New Delhi for obtaining requisite sale permission when the plaintiff was asked to furnish certain documents like sanctioned building plan, completion certificate, affidavit of the intending purchaser, etc. and these requirements were duly communicated to the original defendant No. 1. That the original defendant No. 1 directed the plaintiff to approach her Architect, prepare an affidavit of the plaintiff i.e. the intending purchaser duly attested by a first class Magistrate and immediately get the formalities completed so that the transfer of the property could be effected by executing a regular sale deed. That the plaintiff then approached the Architect of the original defendant No. 1 for the sanctioned building plan but the said Architect refused to deliver the same to the plaintiff as an amount of Rs. 5,000/- (Rupees Five Thousand Only) was still outstanding and payable to him by the original defendant No. 1 and/or her husband. That this was communicated to the original defendant No. 1 by Sh. Bhowmick on 17.10.1985 at Calcutta and who was a mutual friend of the parties. That the said Sh. Bhowmick was also asked to get a bank _________________________________________________________________________ CS SCJ 7841/2016 MAYA BHATTACHARJEE Vs. ANILA DASGUPTA Page No. 5 of 51 CNR No. DLWT03-000006-1987 draft drawn on State Bank of India, Ulta Danga Branch, Calcutta instead of the original one sent earlier on Bank of India, Calcutta so that she could get the same credited to her/ original defendant's No. 1 saving account No. C/2239 at the said Branch without any delay/inconvenience. That the plaintiff's husband Dr. Birendra Nath Bhattacharjee who was the Assistant Director General of Health Services, Government of India and was a tenant along with his family in the aforesaid premises owned by the original defendant No. 1 passed away on 09.02.1986 after a long illness leaving behind his wife i.e. the plaintiff and her two younger sons apart from one married and one unmarried daughters. That the original defendant No. 1 after the death of the husband of the plaintiff assured Mr. Bhowmick the mutual friend that the plaintiff's husband late Dr. Birendra Nath Bhattarcharjee was a friend of her brother Dr. P.C. Sen and both of them belonged to a noble profession and further re-iterated the terms of payment and her preference for the items of jewellery instead of cash, decided and agreed earlier on 10.05.1985 and again on 29.08.1985. That the plaintiff was asked to expedite and complete the formalities with L & D.O. but the plaintiff should continue paying rent till such time physical transfer of the property is affected. That on 02.09.1986, the plaintiff received a letter from the original defendant No. 1 stating that the aforesaid property was being illegally occupied by the plaintiff and that the plaintiff should forthwith vacate the premises. That the original defendant No. 1 further threatened that if the plaintiff did not vacate the premises she would get the assistance of local friends _________________________________________________________________________ CS SCJ 7841/2016 MAYA BHATTACHARJEE Vs. ANILA DASGUPTA Page No. 6 of 51 CNR No. DLWT03-000006-1987 and relatives to physically dispossess her from the said property. That the plaintiff informed Mr. Bhowmick the mutual friend who in turn contacted the original defendant No. 1 to ascertain the real reasons that prompted the original defendant No. 1 to try and rescind the earlier agreement. That the said Mr. Bhowmick was told by the original defendant No. 1 that the price of land in the locality has increased manifold since she agreed to sell the property and therefore, she could now sell the property to the highest bidder only. That she further informed Mr. Bhowmick that the property dealers operating in the locality are offering her a higher price and she could not sell the property at the price agreed on 10.05.1985 ignoring the prevalent market price which is almost threefold. That since then various people have been visiting the property in question to find out the extent of accommodation in order to determine its purchase price. That the original defendant No. 1 is contemplating disposing of the property ignoring and in violation of her earlier agreement to sell the property to the plaintiff. That the original defendant No. 1 has no right to do so and is under an obligation to transfer the aforesaid plot together with the built up property to the plaintiff. That the plaintiff has always been and is still ready to perform his part of the contract and has been contacting the original defendant No. 1 often for that purpose. That the plaintiff has also been at the instance of the original defendant No. 1 following up the defendant's request for sale permission which was pending with L & D.O., New Delhi. That the plaintiff has been and is prepared to pay the balance consideration of Rs. 1,45,240/- in _________________________________________________________________________ CS SCJ 7841/2016 MAYA BHATTACHARJEE Vs. ANILA DASGUPTA Page No. 7 of 51 CNR No. DLWT03-000006-1987 addition to Rs.50,000/- demanded by plaintiff in the form of a Bank draft drawn/State Bank of India, Ulta Danga, Calcutta before sale permission from L & D.O. is obtained, towards the sale price of the property. That the original defendant No. 1 is under an obligation not to transfer the aforesaid property to any other person except the plaintiff. That the plaintiff claims a decree for specific performance directing the original defendant No. 1 to transfer and convey to the plaintiff the aforesaid property and complete all formalities which are required to be completed in respect of the transfer/sale of the aforesaid property in favour of the plaintiff and to put the plaintiff in possession of the said property after obtaining sale permission from L & D. O. for which the plaintiff has been and is willing to assist the original defendant No. 1 being resident at Delhi. That the original defendant No. 1 is also under an obligation not to transfer the aforesaid property to anybody else and not to negotiate its sale with any other person. That a prohibitive injunction is also liable to be passed against the original defendant No. 1 restraining her from entering into an agreement to sell with any other person and/or to create or encumber or alienate the aforesaid property.
Brief Facts pleaded in the Written Statement on behalf of original defendant no. 1
2. In the Written Statement, it has been averred that the present suit is untenable in law and is an abuse of the judicial process so much so there does not exist any Agreement of Sale in between the parties, the performance of which is being asked by _________________________________________________________________________ CS SCJ 7841/2016 MAYA BHATTACHARJEE Vs. ANILA DASGUPTA Page No. 8 of 51 CNR No. DLWT03-000006-1987 the plaintiff to be enforced. It has been further averred that the plaintiff whose husband was inducted as a tenant for a period of 11 months in a portion of the suit property having expired, the plaintiff-the wife of the deceased with a view to usurp the property of the original defendant No. 1 has filed the present false, malicious and vexatious suit against the original defendant No. 1. It has been further averred that neither there has been any agreement in between the parties nor any consideration amount/earnest money or advance of any nature had ever been received from the plaintiff, therefore, the suit for specific performance is not tenable in law and is barred by the provisions of Section 22 r/w Section 10 of the Specific Relief Act.
In reply on merits, it has been averred that Para. No. 1 of the plaint is not disputed to the extent that the original defendant No. 1 is the owner of the suit property no. J-1840, Chittranjan Park, Kalkaji, New Delhi. It has been further averred that no agreement of any kind had ever been executed or entered into by the original defendant No. 1 in favour of the plaintiff, therefore, it is incorrect that the said non-existing agreement was subject to sale permission being granted by the L & D O, for which the plaintiff had assured the original defendant No. 1 of her assistance. It has been further averred that the entire story put up by the plaintiff is concocted, fabricated and imaginary. It has been further averred that no agreement in writing was ever entered in between the parties and as submitted by the original defendant No. 1 that no oral agreement to that effect had ever _________________________________________________________________________ CS SCJ 7841/2016 MAYA BHATTACHARJEE Vs. ANILA DASGUPTA Page No. 9 of 51 CNR No. DLWT03-000006-1987 taken place, therefore, the entire plea of the plaintiff is misconceived. It has been further averred that the period of tenancy has already expired and the plaintiff has been requested a number of times to vacate the tenancy premises under her occupation and instead of vacating the premises, the plaintiff had come with frivolous story of an agreement with the malicious intention to continue her possession of the tenancy premises without paying any rent to the defendant-the defendant is the lawful owner of the property. It has been further averred that there is no question of any transfer of the property in favour of the plaintiff as the defendant at no stage had either agreed or had entered into any agreement with the plaintiff, therefore, in the absence of such agreement, the question of transfer of suit property in favour of the plaintiff or her nominee by way of sale or any other manner does not arise at all. It has been further averred that as per the correspondence between the plaintiff or her husband and the original defendant No. 1 is concerned, it is evident from the said correspondence that no agreement had ever been arrived in between the parties for sale of the suit property in favour of the plaintiff or her nominee(s). It has been further averred that the original defendant No. 1 at no stage had expressed her willingness to sell the property to the plaintiff, of course once an offer came from the husband of the plaintiff which was rejected by the original defendant No. 1 and unless an offer is accepted, there cannot be any agreement in terms of the provisions of Section 4 of the Indian Contract Act and since no agreement was arrived in between the parties, therefore, there _________________________________________________________________________ CS SCJ 7841/2016 MAYA BHATTACHARJEE Vs. ANILA DASGUPTA Page No. 10 of 51 CNR No. DLWT03-000006-1987 cannot be any specific performance as demanded by the plaintiff. It has been further averred that the original defendant No. 1 had never received a cheque of Rs. 50,000/- from the plaintiff. It has been further averred that the plaintiff has made a false statement on Oath which is for the purpose of creating false evidence and is punishable under section 193 and 194 of the Indian Penal Code. It has been further averred that original defendant No. 1 never expressed her desire for bank draft and same was never delivered to the original defendant No. 1. It has been further averred that the original defendant No. 1 at one stage had requested the husband of the plaintiff for obtaining the completion certificate of the suit property from L & DO as she being a widow and residing out of Delhi had no other source, however, when she found that the papers sent to the original defendant No. 1 for signature were with some mischievous designs with a view to usurp the property of the original defendant No. 1 under the guise of necessary formalities required for obtaining a completion certificate from L & DO. It has been further averred that the original defendant No. 1 refused to sign those papers and returned the same to the plaintiff and further asked the plaintiff to vacate the tenanted premises as the original defendant No. 1 has no alternate accommodation for her residence in Delhi. It has been further averred that the original defendant No. 1 never asked the plaintiff to approach her Architect for preparing an Affidavit of the plaintiff for effecting execution of the sale deed. It has been further averred that it is admitted by the plaintiff that till date no amount of any nature whatsoever has been paid by the _________________________________________________________________________ CS SCJ 7841/2016 MAYA BHATTACHARJEE Vs. ANILA DASGUPTA Page No. 11 of 51 CNR No. DLWT03-000006-1987 plaintiff to the original defendant No. 1, therefore, the conduct of the plaintiff in claiming the specific performance of a non- existing agreement by mischievous designs deserve a severe action in law against the plaintiff. It has been further averred that there is no agreement to sell the property by the original defendant No. 1 in favour of the plaintiff, therefore, there is no question of violation of the sale. It has been further averred that the original defendant No. 1 being the lawful owner of the suit property has every right to deal her property in the manner she likes and the plaintiff has no right of interference in such legal right of the original defendant No. 1. It has been further averred that since, there is no agreement between the parties, therefore, there is no question of performing the said in any manner. It has been further averred that the plaintiff had admitted that no amount had ever been paid to the original defendant No. 1 in terms of the alleged agreement and the admission of the plaintiff that she has yet to pay the alleged total amount of Rs. 2,05,240/- falsifies the entire averments of the plaintiff that she had paid an amount of Rs. 50,000/- to the defendant on 29 th August, 1985 or any other date. It has been further averred that the plaintiff is not entitled to the discretionary relief under the Specific Relief Act and the present suit is abuse of law and liable to be dismissed.
3. Thereafter, plaintiff have filed replication to the WS of original defendant no. 1 denying all the averments made in the WS and re-affirming the contents of the plaint. It has been further averred that series of correspondence between the parties _________________________________________________________________________ CS SCJ 7841/2016 MAYA BHATTACHARJEE Vs. ANILA DASGUPTA Page No. 12 of 51 CNR No. DLWT03-000006-1987 annexed to the plaint will clearly indicate that the parties had come to the definite agreement and the plaintiff has been acting on the basis of that agreement and the question of usurping the property by the plaintiff does not arise. It has been further averred that the offer for the sale of the house came first from the original defendant No. 1 herself as seen by the correspondences annexed to the plaint which was accepted by the plaintiff. It has been further averred that the government market value of the property was about Rs. 2,10,480/- in 1985 i.e. Rs. 1,200/- sq. mtr.
4. On the basis of pleading, the following issues were framed by the court vide order dated 02.12.1987:-
1. Whether the defendant agreed to sell the property in suit to the plaintiff as alleged?
2. Whether the plaintiff has always been and is still ready to perform her part of contract?
3. Whether the plaintiff is entitled to damages from the defendant? If so, to what extent?
4. Relief.
Even though in the order dated 02.12.1987, while framing issues, it is not specifically mentioned as to on whom there is burden to prove these issues. But as per pleadings, the burden to prove all the issue lies on the plaintiff.
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5. Thereafter, vide order dated 15.03.2018, application filed by the applicant Sawitri Jain under Order XXII Rule 10 r/w Order I Rule 10 CPC to implead her as defendant in the present suit is allowed and Smt. Sawitri Jain is impleaded as defendant no. 2 in the present case. Smt Sawitri Jain/defendant no. 2 filed her WS.
Brief Facts pleaded in the Written Statement on behalf of defendant no. 2
6. In the Written Statement, it has been averred that the present suit is deeply rooted in falsehood and the plaintiff is not only guilty of suppressio veri and suggestio falsi but wilfully and with malafide intentions and in order to mislead this Hon'ble Court distorted and suppressed material facts and has also made false averments before this Hon'ble Court and the present suit is liable to be dismissed with exemplary costs in favour of the defendants. That the plaint filed by the plaintiff is wholly misconceived, false, fictitious, vague and concocted, which is based on mere conjectures and surmises and is a gross abuse of process of the law and thus, unsustainable in the eyes of law as well as on the facts. That the defendant no.2 denied each and every contention and submission made by the plaintiff in the present suit, save and except that which is specifically admitted herein. It has been further averred that husband of the plaintiff was inducted as a tenant for a period of 11 months in a portion of the suit property. It has been further averred that after the death _________________________________________________________________________ CS SCJ 7841/2016 MAYA BHATTACHARJEE Vs. ANILA DASGUPTA Page No. 14 of 51 CNR No. DLWT03-000006-1987 of the plaintiff's husband, the plaintiff with a motive to usurp the property of the original defendant no. 1 filed the present suit. It has been further averred that during the pendency of the present suit, the original defendant no. 1 sold the suit property to defendant no. 2 by way of executing a Will dated 19.11.1987 in her favour and also executed Agreement to Sell dated 19.11.1987 in favour of defendant no. 2 for the sale of property in dispute. It has been further averred that the original defendant no. 1 also executed a General power of Attorney dated 19.11.1987 wherein she appointed husband of defendant no. 2 as her attorney authorising him to act on her behalf to do acts, things and deeds with regard to the property bearing house no. J-1840, Chittaranjan Park, Kalkaji, New Delhi. It has been further averred that the original defendant no.1 also gave declaration dated 19.11.1987 wherein she admits that she received a sum of Rs. 3,00,000/- from defendant no. 2. It has been further averred that on the basis of the said declaration, suit property vests in defendant no. 2 and she is the lawful owner of the suit property. It has been further averred that the original defendant no. 1 also handed over the original lease deed dated 7th March, 1977 to defendant no. 2, which was executed between the original defendant and The President of India. It has been further averred that the plaintiff has failed to support her case with any relevant document or any kind of proof. It has been further averred that neither there is any kind of agreement between the plaintiff and late original defendant no. 1 nor any kind of earnest money/consideration/advance was received by her, therefore, the _________________________________________________________________________ CS SCJ 7841/2016 MAYA BHATTACHARJEE Vs. ANILA DASGUPTA Page No. 15 of 51 CNR No. DLWT03-000006-1987 suit for specific performance is not tenable in the eyes of the law. It has been further averred that the lease deed executed in the year 1979 between the plaintiff and the original defendant no. 1 in the year 1979 was only in respect to the ground floor of the suit property for the rent amounting to Rs. 550/- alongwith Rs. 200/- for fixtures and fittings but the plaintiff has illegally occupied the staircases and first floor of the suit property i.e. practically the entire suit property. It has been further averred that the plaintiff is liable to be evicted as he has occupied the suit property without any right or title and is residing as a trespasser without paying any rent or occupation charges. It has been further averred that the period of tenancy has already expired when the present suit was filed and the plaintiff was requested number of times to vacate the tenancy premises and pay the outstanding rent and instead of vacating the said premises, the plaintiff has come up with false and frivolous story of agreement for sale of the suit property with malicious intention to continue her possession in the tenancy premises without paying any rent and occupation charges. It has been further averred that plaintiff in her plaint herself admitted that no formal agreement was ever executed between the parties and that the plaintiff has falsely stated that she issued a cheque of Rs. 50,000/- bearing No. JP 0091840 dated 15.05.1985 to original defendant no. 1 and thereafter issued a bank draft bearing No. 25/2488 dated 21.08.1995 for Rs. 50,000/-. It has been further averred that plaintiff herself in plaint contradicted her averments by stating that she is ready to pay the balance sale consideration of Rs.
_________________________________________________________________________ CS SCJ 7841/2016 MAYA BHATTACHARJEE Vs. ANILA DASGUPTA Page No. 16 of 51 CNR No. DLWT03-000006-1987 1,55,240/- in addition to Rs. 50,000/- in the form of bank draft which clearly manifests that plaintiff has made a concocted and false story. It has been further averred that the original defendant no. 1 died on 09.02.1997 at Kolkata and her LRs Sh. Premtosh Gupta and Sh. Gouritosh DasGupta filed their affidavits/Declaration dated 05.09.1997 wherein they specifically admitted that original defendant no. 1 executed a Will, Agreement to Sell, GPA in favour of defendant no. 2 and original defendant had received full consideration amount from defendant no. 2 and they do not have any right, title or interest in the suit property.
7. Thereafter, LRs of plaintiff have filed replication to the WS of defendant no. 2 denying all the averments made in the WS and re-affirming the contents of the plaint.
8. In support of their case, the LRs of plaintiff examined one of the LRs of the plaintiff Sh. Bidyyut Bhattacharjee as PW1 who has tendered his evidence by way of affidavit Ex. PW1/A(colly) (consisting of 55 pages) which bears his signatures at points A and B respectively. In his examination in chief, PW1 mostly reiterated the averments as made in the plaint and relied upon and produced the following documents on record:-
(1) Hand-written Letter dated 03.09.1984 regarding intimation of death of defendant's husband written by defendant to the husband of plaintiff is Ex. PW1/1. (Objected to by Ld. _________________________________________________________________________ CS SCJ 7841/2016 MAYA BHATTACHARJEE Vs. ANILA DASGUPTA Page No. 17 of 51 CNR No. DLWT03-000006-1987 Counsel for the LRs of defendant No. 1 regarding mode and manner of proving the document) (Objected to by Ld. Counsel for the defendant No. 2 the fact that the said document has neither written by or addressed to the witness).
(2) Letter dated 18.01.1985 written by the defendant to the husband of the plaintiff regarding offer to sell the suit property is Mark A(mentioned as Ex. PW1/2 in the affidavit and de-exhibited and is marked as Mark A being photocopy).
(3) Hand-written Letter dated 24.02.1985 written by the defendant again gave offer to sell the suit property to the husband of the plaintiff i.e. Dr. B.N. Bhattacharjee is Mark B(mentioned as Ex. PW1/3 in the affidavit and de-exhibited and is marked as Mark B being photocopy).
(4) Original Cheque dated 15.05.1985 for Rs.
50,000/-(Rupees Fifty Thousand) is Ex. PW1/4(Objected to by Ld. Counsel for the LRs of defendant No. 1 regarding mode and manner of proving the document) (Objected to by Ld. Counsel for the defendant No. 2 the fact that the said document has neither written by or addressed to the witness).
(5) Affidavit dated 27.05.1985 of the plaintiff regarding that she did not own any property in her name in Delhi/New Delhi is Ex. PW1/5(In affidavit, the date is wrongly mentioned as 22.05.1985 instead of 27.05.1985) (Objected to by _________________________________________________________________________ CS SCJ 7841/2016 MAYA BHATTACHARJEE Vs. ANILA DASGUPTA Page No. 18 of 51 CNR No. DLWT03-000006-1987 Ld. Counsel for the LRs of defendant No. 1 regarding mode and manner of proving the document) (Objected to by Ld. Counsel for the defendant No. 2 the fact that the said document has neither written by or addressed to the witness).
(6) The original of Letter dated 24.02.1985 written by the defendant for giving offer to sell the suit property to the husband of the plaintiff i.e. Dr. D.N. Bhattacharjee is Ex. PW1/3(Copy of the said document was marked as Mark B on 27.08.2022 and now the original of the same is traced in the file)(Objected by Ld. Counsel for the LRs of defendant No. 1 regarding mode and manner of proving the document) (Objected to by Ld. Counsel for the defendant No. 2 to the effect that the said document has neither written by or addressed to the witness).
(7) Certificate dated 27.04.1995 issued by Medical College and Hospitals, Calcutta which is Ex.PW1/6 (OSR). (Objected by the Ld. Counsel for the LR of defendant no. 1 and Ld. Counsel for defendant no. 2 regarding the mode and manner of proof and document being beyond the pleadings, i.e. documentary hearsay).
(8) Receipt dated 11.08.1985 issued by Anila Das Gupta is Ex.PW1/7 (OSR). (Objected by the Ld. Counsel for the LR of defendant no. 1 and Ld. Counsel for defendant no. 2 _________________________________________________________________________ CS SCJ 7841/2016 MAYA BHATTACHARJEE Vs. ANILA DASGUPTA Page No. 19 of 51 CNR No. DLWT03-000006-1987 regarding the mode and manner of proof and document being beyond the pleadings, i.e. documentary hearsay).
(9) Letter dated 22.08.1995 from Dr. B. N. Bhattarcharjee to Mrs. Anila Das Gupta is marked as MarkC and the same is deexhibited. (Objected by the Ld. Counsel for the LR of defendant no. 1 and Ld. Counsel for defendant no. 2 regarding the documents being not within the personal knowledge of the PW and thus, the documents are completely hearsay).
(10) Photocopy of draft and carbon copy of cancellation advice dated 13.11.1987 (2 pages colly.) are de exhibited and now the same are marked as Mark D (colly.). (Objected by the Ld. Counsel for the LR of defendant no. 1 and Ld. Counsel for defendant no. 2 regarding the documents being beyond pleadings and not within the personal knowledge of the PW and thus, the documents are completely hearsay).
(11) Letter dated 15.09.1985 from Ms. Anila Dass Gupta to Dr. B. N. Bhattarcharjee is Ex. PW1/10 (OSR). (Objected by the Ld. Counsel for the LR of defendant no. 1 and Ld. Counsel for defendant no. 2 regarding the mode and manner of proof and document being beyond the pleadings, i.e. documentary hearsay).
_________________________________________________________________________ CS SCJ 7841/2016 MAYA BHATTACHARJEE Vs. ANILA DASGUPTA Page No. 20 of 51 CNR No. DLWT03-000006-1987 (12) Copy of agreement to sell dated 03.10.1985 (3 pages) (OSR), Copy of GPA dated 03.10.1985 (2 pages) (OSR), Copy of letter to L&DO dated 03.10.1985 (OSR), copy of application for sale permission dated 03.10.1985 (3pages) (OSR), copy form of concern affidavit dated 03.10.1985 (OSR), FormC, Appendix D and AppendixF are Ex.PW1/11(colly.) (Form C, Appendix D and Appendix F are not dated). (Objected by the Ld. Counsel for the LR of defendant no. 1 and Ld. Counsel for defendant no. 2 regarding the mode and manner of proof and document being beyond the pleadings, i.e. documentary hearsay).
(13) Inland letter dated 05.10.1995 from Ms. Anila Das Gupta to Dr. B. N. Bhattarcharjee is Ex.PW1/12. (Objected by the Ld. Counsel for the LR of defendant no. 1 and Ld. Counsel for defendant no. 2 regarding the mode and manner of proof and document being beyond the pleadings, i.e. documentary hearsay).
(14) Inland letter dated 11.10.1985 from Ms. Anila Das Gupta to Dr. B. N. Bhattarcharjee is Ex.PW1/13. (Objected by the Ld. Counsel for the LR of defendant no. 1 and Ld. Counsel for defendant no. 2 regarding the documents being beyond the pleading and not within the personal knowledge of _________________________________________________________________________ CS SCJ 7841/2016 MAYA BHATTACHARJEE Vs. ANILA DASGUPTA Page No. 21 of 51 CNR No. DLWT03-000006-1987 the PW and thus, the documents are completely hearsay).
(15) Letter dated 18.10.1985 from Ms. Anila Das Gupta to Dr. B. N. Bhattarcharjee is Ex. PW1/14. (Objected by the Ld. Counsel for the LR of defendant no. 1 and Ld. Counsel for defendant no. 2 regarding the documents being beyond the pleading and not within the personal knowledge of the PW and thus, the documents are completely hearsay).
(16) Letter dated 21.11.1985 from Ms. Anila Das Gupta to Dr. B. N. Bhattarcharjee is Ex. PW1/15. (Objected by the Ld. Counsel for the LR of defendant no. 1 and Ld. Counsel for defendant no. 2 regarding the documents being beyond the pleading and not within the personal knowledge of the PW and thus, the documents are completely hearsay).
(17) Letter dated 23.12.1985 from Ms. Anila Das Gupta to Dr. B. N. Bhattarcharjee is Ex. PW1/16. (Objected by the Ld. Counsel for the LR of defendant no. 1 and Ld. Counsel for defendant no. 2 regarding the documents being beyond the pleading and not within the personal knowledge of the PW and thus, the documents are completely hearsay).
(18) Letter dated 23.01.1986 from Ms. Anila Das Gupta to Dr. B. N. Bhattarcharjee is Ex. PW1/18. (Objected by _________________________________________________________________________ CS SCJ 7841/2016 MAYA BHATTACHARJEE Vs. ANILA DASGUPTA Page No. 22 of 51 CNR No. DLWT03-000006-1987 the Ld. Counsel for the LR of defendant no. 1 and Ld. Counsel for defendant no. 2 regarding the documents being beyond the pleading and not within the personal knowledge of the PW and thus, the documents are completely hearsay).
(19) Letter/Authorization dated Nil in favour of Mrs. Biddyut Bhattacharjee from Ms. Anila Das Gupta is Ex.PW1/17. (Objected by the Ld. Counsel for the LR of defendant no. 1 and Ld. Counsel for defendant no. 2 regarding the documents being beyond the pleading and not within the personal knowledge of the PW and thus, the documents are completely hearsay).
(20) Original Noting Sheets dated 27.02.1986 and 02.03.1986 made by Mr. Bhowmick is Ex. PW1/19. (Objected by the Ld. Counsel for the LR of defendant no. 1 and Ld. Counsel for defendant no. 2 that the notesheet dated 27.02.1986 is not mentioned in the evidence affidavit. The Ld. Counsel for LRs of defendant no. 1 and 2 and ld. Counsel for defendant no. 2 further objects regarding the mode and manner of proof of documents and also the documents are beyond the pleading and not within the personal knowledge of PW and thus its documentary hearsay).
(21) Original Letter dated 02.09.1986 from Anila _________________________________________________________________________ CS SCJ 7841/2016 MAYA BHATTACHARJEE Vs. ANILA DASGUPTA Page No. 23 of 51 CNR No. DLWT03-000006-1987 Dasgupta to Ms. Maya Bhattacharjee is Ex.PW1/20. (Objected by the Ld. Counsel for the LR of defendant no. 1 and Ld. Counsel for defendant no. 2 regarding the documents being beyond the pleading and not within the personal knowledge of the PW and thus, the documents are completely hearsay).
(22) Original Complaint dated 07.09.1989 by Ms. Maya Bhattacharjee to SHO, PS: CR Park, Delhi is Ex.PW1/21 (OSR). (Objected by the Ld. Counsel for the LR of defendant no. 1 and Ld. Counsel for defendant no. 2 regarding the mode and manner of proof of documents as well as the documents being beyond the pleading and not within the personal knowledge of the PW and thus, the documents are completely hearsay).
(23) Original letter No. L & DO /PSII/405 dated 15.02.1990 issued by L & DO to Ms. Maya Bhattacharjee is Ex.PW1/22 (OSR). (Objected by the Ld. Counsel for the LR of defendant no. 1 and Ld. Counsel for defendant no. 2 regarding the mode and manner of proof of documents as well as documents being beyond the pleading and not within the personal knowledge of the PW and thus, the documents are completely hearsay).
(24) Originally receipted police complaint dated _________________________________________________________________________ CS SCJ 7841/2016 MAYA BHATTACHARJEE Vs. ANILA DASGUPTA Page No. 24 of 51 CNR No. DLWT03-000006-1987 21.02.1990 against Mr. NK Jain and Savitri Jain by Ms. Maya Bhattacharjee is Ex.PW1/23 (OSR). (Objected by the Ld. Counsel for the LR of defendant no. 1 and Ld. Counsel for defendant no. 2 regarding the mode and manner of proof of documents as well as the documents being beyond the pleading and not within the personal knowledge of the PW and thus, the documents are completely hearsay).
(25) Original letter No. L & DO/PSII/683 dated 01.04.1990 issued by L & DO to Ms. Maya Chattacharjee is Ex.PW1/24 (OSR). (Objected by the Ld. Counsel for the LR of defendant no. 1 and Ld. Counsel for defendant no. 2 regarding the mode and manner of proof of documents as well as the documents being beyond the pleading and not within the personal knowledge of the PW and thus, the documents are completely hearsay).
(26) Photocopy of Letter dated 28.05.1990 issued by President, All India Udbastu Association to L & DO is de exhibited and is marked as Mark E. The evidence by way of affidavit the date of the document is wrongly mentioned as 02.09.1986 instead of 28.05.1990. (Objected by the Ld. Counsel for the LR of defendant no. 1 and Ld. Counsel for defendant no. 2 regarding the mode and manner of proof of documents as well as the documents being beyond the pleading and not _________________________________________________________________________ CS SCJ 7841/2016 MAYA BHATTACHARJEE Vs. ANILA DASGUPTA Page No. 25 of 51 CNR No. DLWT03-000006-1987 within the personal knowledge of the PW and thus, the documents are completely hearsay).
(27) Photocopy of letter No. L & DO/PS.II/1216 dated 28.06.1990 from Dy. L & DO to President, All India Udbastu Association is deexhibited and marked as Mark F. (Objected by the Ld. Counsel for the LR of defendant no. 1 and Ld. Counsel for defendant no. 2 regarding the mode and manner of proof of documents as well as the documents being beyond the pleading and not within the personal knowledge of the PW and thus, the documents are completely hearsay).
(28) Original Letter No. L & DO/PS.II/2029 dated 11.10.1990 from Dy. L & DO addressed to Ms. Anila Dasgupta is Ex.PW1/27 (1 page) (OSR). (Objected by the Ld. Counsel for the LR of defendant no. 1 and Ld. Counsel for defendant no. 2 regarding the mode and manner of proof of documents as well as the documents being beyond the pleading and not within the personal knowledge of the PW and thus, the documents are completely hearsay).
(29) Original Post Card letter dated 15.02.1991 from Smt. Anila Dasgupta addressed to Mr. Sripati Bhusan Bhaumik alongwith its true translation is Ex.PW1/28 (OSR). (Objected by the Ld. Counsel for the LR of defendant no. 1 and _________________________________________________________________________ CS SCJ 7841/2016 MAYA BHATTACHARJEE Vs. ANILA DASGUPTA Page No. 26 of 51 CNR No. DLWT03-000006-1987 Ld. Counsel for defendant no. 2 regarding the mode and manner of proof of documents as well as the documents being beyond the pleading and not within the personal knowledge of the PW and thus, the documents are completely hearsay).
(30) Original Post Card letter dated 21.02.1991 from Smt. Anila Dasgupta addressed to Mr. Sripati Bhusan Bhaumik alongwith its true translation is Ex.PW1/29 (OSR). (Objected by the Ld. Counsel for the LR of defendant no. 1 and Ld. Counsel for defendant no. 2 regarding the mode and manner of proof of documents as well as the documents being beyond the pleading and not within the personal knowledge of the PW and thus, the documents are completely hearsay).
(31) Original Post Card letter dated 21.02.1992 from Smt. Anila Dasgupta addressed to Ms. Maya Bhattacharjee alongwith its true translation is Ex.PW1/30 (OSR). (Objected by the Ld. Counsel for the LR of defendant no. 1 and Ld. Counsel for defendant no. 2 regarding the mode and manner of proof of documents as well as the documents being beyond the pleading and not within the personal knowledge of the PW and thus, the documents are completely hearsay).
(32) Original Novel in Bengali with autograph dated 24.05.1992 and photograph with autograph dated _________________________________________________________________________ CS SCJ 7841/2016 MAYA BHATTACHARJEE Vs. ANILA DASGUPTA Page No. 27 of 51 CNR No. DLWT03-000006-1987 24.05.1992 alongwith its true translation is Ex.PW1/31 (2 pages)(OSR). (Objected by the Ld. Counsel for the LR of defendant no. 1 and Ld. Counsel for defendant no. 2 regarding the mode and manner of proof of documents as well as the documents being beyond the pleading and not within the personal knowledge of the PW and thus, the documents are completely hearsay).
(33) Original letter dated 08.08.1992 from Smt. Anila Dasgupta addressed to Ms. Maya Bhattacharjee is Ex.PW 1/32 (OSR). (Objected by the Ld. Counsel for the LR of defendant no. 1 and Ld. Counsel for defendant no. 2 regarding the mode and manner of proof of documents as well as the documents being beyond the pleading and not within the personal knowledge of the PW and thus, the documents are completely hearsay).
(34) Original Post Card letter dated 27.04.1993 from Smt. Anila Dasgupta addressed to Mr. Sripati Bhusan Bhaumik alongwith its true translation is Ex.PW1/33 (OSR). (Objected by the Ld. Counsel for the LR of defendant no. 1 and Ld. Counsel for defendant no. 2 regarding the mode and manner of proof of documents as well as the documents being beyond the pleading and not within the personal knowledge of the PW and thus, the documents are completely hearsay).
_________________________________________________________________________ CS SCJ 7841/2016 MAYA BHATTACHARJEE Vs. ANILA DASGUPTA Page No. 28 of 51 CNR No. DLWT03-000006-1987 (35) Letter dated 02.07.1993 from Smt. Anila Dasgupta addressed to Shri NK Jain alongwith IA No. 8140/1994 in Suit No. 471/1987 before the High Court of Delhi at New Delhi is deexhibited and marked as Mark G. (Objected by the Ld. Counsel for the LR of defendant no. 1 and Ld. Counsel for defendant no. 2 regarding the mode and manner of proof of documents as well as the documents being beyond the pleading and not within the personal knowledge of the PW and thus, the documents are completely hearsay).
(36) Ex.PW1/31(colly) contains 3 pages i.e. the English translation of the cover page of the novel alongwith true copy of the cover page of novel in Bangali and the autograph written on the back of photograph of Anila Das Gupta. (Objected by the Ld. Counsel for the LR of defendant no. 1 and Ld. Counsel for defendant no. 2 regarding the mode and manner of proof of documents as well as the documents being beyond the pleading and not within the personal knowledge of the PW and thus, the documents are completely hearsay).
(37) Original Letter dated 28.05.1990 issued by President, All India Udbastu Association to L & DO is Ex.PW 1/25 (OSR). (Objected by the Ld. Counsel for the LR of defendant no. 1 and Ld. Counsel for defendant no. 2 regarding the mode and manner of proof of documents as well as the _________________________________________________________________________ CS SCJ 7841/2016 MAYA BHATTACHARJEE Vs. ANILA DASGUPTA Page No. 29 of 51 CNR No. DLWT03-000006-1987 documents being beyond the pleading and not within the personal knowledge of the PW and thus, the documents are completely hearsay).
(38) Original letter No. L & Do/PS.II/1216 dated 28.06.1990 from Dy. L & DO to President, All India Udbastu Association is Ex.PW1/26 (OSR). (Objected by the Ld. Counsel for the LR of defendant no. 1 and Ld. Counsel for defendant no. 2 regarding the mode and manner of proof of documents as well as the documents being beyond the pleading and not within the personal knowledge of the PW and thus, the documents are completely hearsay).
(39) Copy of letter dated 08.07.1993 from NK Jain addressed to Smt. Anila Dasgupta along with the postal receipts therein (Three pages) is deexhibited for being photocopy and now marked as Mark H. (Objected by the Ld. Counsel for the LR of defendant no. 1 and Ld. Counsel for defendant no. 2 regarding the mode and manner of proof of documents as well as the documents being beyond the pleading and not within the personal knowledge of the PW and thus, the documents are completely hearsay).
(40) Inland letter dated 13.07.1993 from Smt. Anila Dasgupta addressed to NK Jain along with its true translation is _________________________________________________________________________ CS SCJ 7841/2016 MAYA BHATTACHARJEE Vs. ANILA DASGUPTA Page No. 30 of 51 CNR No. DLWT03-000006-1987 deexhibited for being photocopy and now marked as Mark I. (Objected by the Ld. Counsel for the LR of defendant no. 1 and Ld. Counsel for defendant no. 2 regarding the mode and manner of proof of documents as well as the documents being beyond the pleading and not within the personal knowledge of the PW and thus, the documents are completely hearsay).
(41) Inland letter dated 17.07.1993 from Smt. Anila Dasgupta addressed to Mr. NK Jain is deexhibited for being photocopy and now marked as Mark J. (Objected by the Ld. Counsel for the LR of defendant no. 1 and Ld. Counsel for defendant no. 2 regarding the mode and manner of proof of documents as well as the documents being beyond the pleading and not within the personal knowledge of the PW and thus, the documents are completely hearsay).
(42) Letter dated 27.08.1993 from Smt. Anila Dasgupta addressed to Mr. NK Jan is deexhibited for being photocopy and now marked as Mark K. (Objected by the Ld. Counsel for the LR of defendant no. 1 and Ld. Counsel for defendant no. 2 regarding the mode and manner of proof of documents as well as the documents being beyond the pleading and not within the personal knowledge of the PW and thus, the documents are completely hearsay).
_________________________________________________________________________ CS SCJ 7841/2016 MAYA BHATTACHARJEE Vs. ANILA DASGUPTA Page No. 31 of 51 CNR No. DLWT03-000006-1987 (43) Inland letter dated 30.09.1993 from Smt. Anila Dasgupta addressed to Mr. NK Jain is deexhibited for being photocopy and now marked as Mark L. (Objected by the Ld. Counsel for the LR of defendant no. 1 and Ld. Counsel for defendant no. 2 regarding the mode and manner of proof of documents as well as the documents being beyond the pleading and not within the personal knowledge of the PW and thus, the documents are completely hearsay).
(44) Complaint dated NIL from Smt. Anila Dasgupta addressed to Officer in Charge, PS: Manicktala, Calcutta is Ex.PW1/40 (OSR). (Objected by the Ld. Counsel for the LR of defendant no. 1 and Ld. Counsel for defendant no. 2 regarding the mode and manner of proof of documents as well as the documents being beyond the pleading and not within the personal knowledge of the PW and thus, the documents are completely hearsay).
(45) Declaration dated 19.12.1994 filed by Smt. Anila Dasgupta in Suit No. 471 of 1987 before the High Court of Delhi (8 pages) alongwith the IA No. 3850/1995 and supporting affidavit (5 pages) is deexhibited for being photocopy and now marked as Mark M (colly. Contains 13 pages). (Objected by the Ld. Counsel for the LR of defendant no. 1 and Ld. Counsel for defendant no. 2 that the evidence affidavit only mention the _________________________________________________________________________ CS SCJ 7841/2016 MAYA BHATTACHARJEE Vs. ANILA DASGUPTA Page No. 32 of 51 CNR No. DLWT03-000006-1987 declaration dated 24.12.1994 and does not mention the declaration dated 19.12.1994. Further, the Ld. Counsel for the LR of defendant no. 1 and Ld. Counsel for defendant no. 2 also objects regarding the mode and manner of proof of documents as well as the documents being beyond the pleading and not within the personal knowledge of the PW and thus, the documents are completely hearsay).
(46) Notarised Affidavit dated 05.09.1997 executed by Gauritosh Dasgupta and Premtosh Dasgupta before Notary Public, Calcutta (original of the same is on file, placed on record by LRs of defendant no. 1) the copy of the same is Ex.PW1/42 (colly. contains 4 pages). (Objected by the Ld. Counsel for the LR of defendant no. 1 and Ld. Counsel for defendant no. 2 regarding the mode and manner of proof of documents as well as the documents being beyond the pleading and not within the personal knowledge of the PW and thus, the documents are completely hearsay).
(47) Letter dated 10.01.1988 from Smt. Anila Dasgupta addressed to Mr. NK Jain is Ex.PW1/43 (OSR) (date of the letter is wrongly mentioned in the chief affidavit as 12.01.1988) (Objected by the Ld. Counsel for the LR of defendant no. 1 and Ld. Counsel for defendant no. 2 regarding the mode and manner of proof of documents as well as the _________________________________________________________________________ CS SCJ 7841/2016 MAYA BHATTACHARJEE Vs. ANILA DASGUPTA Page No. 33 of 51 CNR No. DLWT03-000006-1987 documents being beyond the pleading and not within the personal knowledge of the PW and thus, the documents are completely hearsay).
(48) Letters dated 04.06.1990 and 12.06.1990 addressed to Smt. Anila Dasgupta from Mr. NK Jain on his letter pad is Ex.PW1/44 (OSR) (colly. Contains 3 pages). (Objected by the Ld. Counsel for the LR of defendant no. 1 and Ld. Counsel for defendant no. 2 regarding the mode and manner of proof of documents as well as the documents being beyond the pleading and not within the personal knowledge of the PW and thus, the documents are completely hearsay).
(49) Letter dated 05.12.1989 addressed to Smt. Anila Dasgupta from Mr. NK Jain on his letter pad is Ex. PW 1/45 (OSR). (Objected by the Ld. Counsel for the LR of defendant no. 1 and Ld. Counsel for defendant no. 2 regarding the mode and manner of proof of documents as well as the documents being beyond the pleading and not within the personal knowledge of the PW and thus, the documents are completely hearsay).
(50) Letter dated 24.02.1989 and 24.03.1990 addressed to Smt. Anila Dasgupta from Mr. NK Jain on his letter pad is Ex.PW1/46 (OSR) (colly. Contains 2 pages) (date of the _________________________________________________________________________ CS SCJ 7841/2016 MAYA BHATTACHARJEE Vs. ANILA DASGUPTA Page No. 34 of 51 CNR No. DLWT03-000006-1987 letter dated 24.02.1989 is wrongly mentioned in the chief affidavit as 24.03.1989). (Objected by the Ld. Counsel for the LR of defendant no. 1 and Ld. Counsel for defendant no. 2 regarding the mode and manner of proof of documents as well as the documents being beyond the pleading and not within the personal knowledge of the PW and thus, the documents are completely hearsay).
(51) Declaration dated 19.11.1987 by Smt. Anila Dasgupta is Ex.PW1/47 (colly contains 5 pages) (original of the same is on file, placed on record by LRs of defendant no. 1). (Objected by the Ld. Counsel for the LR of defendant no. 1 and Ld. Counsel for defendant no. 2 regarding the mode and manner of proof of documents as well as the documents being beyond the pleading and not within the personal knowledge of the PW and thus, the documents are completely hearsay).
(52) Original Letter No. L & DO/PSII/2017/351 dated 16.06.2017 addressed to Shri. Prabir Kumar Mukherjee from Dy. L & DO alongwith its postal envelop is Ex.PW1/48 (OSR) (Colly contains 2 pages). (Objected by the Ld. Counsel for the LR of defendant no. 1 and Ld. Counsel for defendant no. 2 regarding the mode and manner of proof of documents as well as the documents being beyond the pleading and not within the personal knowledge of the PW and thus, the _________________________________________________________________________ CS SCJ 7841/2016 MAYA BHATTACHARJEE Vs. ANILA DASGUPTA Page No. 35 of 51 CNR No. DLWT03-000006-1987 documents are completely hearsay).
(53) Police complaint dated 06.09.2019 from Dr. Basabika Bhattacharjee received at PS: CR Park, New Delhi vide DD No. 38B dated 06.09.2019 is Ex.PW1/49 (OSR) (colly contains 6 pages) (date of the document is wrongly mentioned as 06.09.1991 in place of 06.09.2019 in the chief affidavit). (Objected by the Ld. Counsel for the LR of defendant no. 1 and Ld. Counsel for defendant no. 2 regarding the mode and manner of proof of documents as well as the documents being beyond the pleadings, (Objected by the Ld. Counsel for the LR of defendant no. 1 and Ld. Counsel for defendant no. 2 regarding the mode and manner of proof of documents as well as the documents being beyond the pleading and not within the personal knowledge of the PW and thus, the documents are completely hearsay). Further, no negative or CD of photographs as well as no 65B certificate in view of Indian Evidence Act is on record therefore the same cannot be exhibited.
(54) Notice to produce under Order 12 Rule 08 CPC dated 14.03.2020 alongwith postal receipts dated 14.03.2020 alongwith certificate u/s 65B of Indian Evidence Act and original postal receipts is Ex.PW1/50. (Objected by the Ld. Counsel for the LR of defendant no. 1 and Ld. Counsel for _________________________________________________________________________ CS SCJ 7841/2016 MAYA BHATTACHARJEE Vs. ANILA DASGUPTA Page No. 36 of 51 CNR No. DLWT03-000006-1987 defendant no. 2 regarding the mode and manner of proof of documents).
(55) Inland letter dated 18.01.1985 which was earlier marked as Mark A is now Ex.PW1/2. (Objected by the Ld. Counsel for the LR of defendant no. 1 and Ld. Counsel for defendant no. 2 regarding the mode and manner of proof of documents as well as the documents being beyond the pleading and not within the personal knowledge of the PW and thus, the documents are completely hearsay).
(56) Letter dated 24.02.1985 which was earlier marked as Mark B is now Ex.PW1/3. (Objected by the Ld. Counsel for the LR of defendant no. 1 and Ld. Counsel for defendant no. 2 regarding the mode and manner of proof of documents as well as the documents being beyond the pleading and not within the personal knowledge of the PW and thus, the documents are completely hearsay).
PW1 was duly cross-examined by Ld. Counsel for the LRs of defendant no.1 and PW1 deposed in his cross- examination that the rent was paid lastly to the the original defendant no. 1 in the year 1990 which she refused to take. He further deposed that original defendant no. 1 refused number of envelopes containing the cheques of rent sent by his _________________________________________________________________________ CS SCJ 7841/2016 MAYA BHATTACHARJEE Vs. ANILA DASGUPTA Page No. 37 of 51 CNR No. DLWT03-000006-1987 mother/original plaintiff but he has not filed anyone of them in court record. He further deposed on the suggestion given by the Ld. Counsel for the LRs of defendant no. 1 that "it is wrong to suggest that LRs of defendant No.1 are the owners of the suit property". He further deposed that Ms. Sawitri Jain i.e. defendant no. 2 has no right, title or interest in the suit property. He further deposed that L& DO is the owner of the suit property as the suit property is a leasehold property, therefore, only the L& DO can convey the title in respect of the suit property. He further deposed that on 10.05.1985, original defendant no. 1 was in Calcutta and the original plaintiff was in Delhi. He further deposed that the entire matter relating to the offer of sale and acceptance thereof was being discussed between original defendant no. 1 and his father i.e. husband of original plaintiff namely Dr. B. N. Bhattacharjee. He further deposed that oral agreement was entered between Smt. Anila Das Gupta i.e. original defendant no.1 and his father Dr. B. N. Bhattacharjee. He further deposed that there is no receipt dated 15.05.1985 from Anila Das Gupta evidencing that the plaintiff had given a sum of Rs. 50,000/- to Anila Das Gupta by means of cheque. He further deposed that he had prepared a DD of Rs. 50,000/- in lieu of the cheque Ex. PW1/4 on the request of Anila Das Gupta which was cancelled on 13.11.1985. He further deposed that no payment was made to Anila Das Gupta after the cancellation of the said demand draft. He further deposed that Anila Das Gupta returned the said demand draft with request to issue a fresh demand draft of Rs. 50,000/- drawn on SBI, Ulta Danga Branch, Calcutta. He further _________________________________________________________________________ CS SCJ 7841/2016 MAYA BHATTACHARJEE Vs. ANILA DASGUPTA Page No. 38 of 51 CNR No. DLWT03-000006-1987 deposed that no demand draft of SBI, Ulta Danga Branch was prepared by his father. He further deposed that the original plaintiff did not prepare any NSC in the name of Anila Das Gupta at any point of time. He further deposed that original plaintiff had never taken the measurement of bangles and necklace of Anila Das Gupta and voluntarily deposed that the measurement was given by defendant no. 1 to Sh. Bhowmick. He further deposed that his father said that the Architect was not paid his fees of Rs. 5,000/- by Anila Das Gupta and till he gets his fees, he will not give the copy of sanction plan. He further deposed that it is correct that till date no permission has been granted by L& DO to the owner of the suit property to sell the suit property. He further deposed that it is correct that in order to sell leasehold property, prior permission from L& DO is required.
PW1 was also duly cross-examined by Ld. Counsel for defendant no.2.
Thereafter, PE is closed.
9. Thereafter, the LRs of defendant no. 1 has examined Sh. Nirmalaya Dasgupta, one of the LR as D1W1, who tendered his evidence by way of affidavit Ex D1W1/A and relied upon the document already EX. PW1/D1.
D1W1 was duly cross examined by Ld. Counsel for plaintiff and D1W1 deposed in his cross-examination that it is _________________________________________________________________________ CS SCJ 7841/2016 MAYA BHATTACHARJEE Vs. ANILA DASGUPTA Page No. 39 of 51 CNR No. DLWT03-000006-1987 correct that the plaintiff and his family are in possession of the suit property since the year 1979. He further deposed that it is wrong to suggest that Smt. Anila Das Gupta had ever entered into an oral agreement to sell the suit property with the original plaintiff. He denied the handwriting as well as signature of Anila Das Gupta on documents Ex. PW1/15, Ex. PW1/16 and Ex. PW1/18.
Thereafter, LRs of Defendant no.1 closed their evidence.
10. Defendant no. 2 did not examine any witness despite opportunity being given.
Thereafter, DE stands closed.
11. I have heard the arguments on behalf of plaintiff and defendants and have carefully gone through the case file as well written submissions and judgments filed.
12. Issue wise findings as follows:-
Issue no. 1 The burden to prove this issue is on the plaintiff. In order to prove this issue, LRs of plaintiff have relied upon certain documents which have been placed on record in the evidence of PW1. In the plaint filed by original plaintiff, it is averred that the _________________________________________________________________________ CS SCJ 7841/2016 MAYA BHATTACHARJEE Vs. ANILA DASGUPTA Page No. 40 of 51 CNR No. DLWT03-000006-1987 original defendant no.1 agreed to sell the aforesaid plot together with the built up property on 10.05.1985 for a total consideration of Rs. 2,05,240/- (Rupees Two Lakhs Five Thousand Two Hundred Forty Only), out of which the plaintiff paid a sum of Rs. 50,000/- (Rupees Fifty Thousand Only) by means of a cheque No. JP. 009840 dated 15.05.1985, the amount agreed to be paid pending sanction/permission of L & D.O. It has been further averred that this agreement was subject to sale permission being granted by the Land and Development Officer, Minister of Works and Housing, New Delhi. It has been further averred that that it was also agreed that the plaintiff would pay the defendant the balance amount of Rs. 1,56,240/- (Rupees One Lakh Fifty five Thousand Two Hundred Forty Only) once sale permission was obtained from L & D.O. in addition to Rs. 50,000/- (Rupees Fifty Thousand Only) payable before the sale permission is obtained and requisite sale deed is executed and in the following manner.
a) Rs. 50,000/- (Rupees Fifty Thousand Only) in National Saving Certificates of three years.
b) Rs. 50,000/- (Rupees Fifty Thousand Only) by Demand Draft account payee.
c) Rs. 30,000/- (Rupees thirty thousand) in cash.
d) The balance of Rs. 25,240/- (Rupees Twenty Five Thousand Two Hundred and Forty Only) in the form of jewelleries.
It has been further averred that the defendant in addition stipulated the items of jewellery and also gave the measurements of the bangles and necklace to be purchased in satisfaction of the entire consideration. It has been further _________________________________________________________________________ CS SCJ 7841/2016 MAYA BHATTACHARJEE Vs. ANILA DASGUPTA Page No. 41 of 51 CNR No. DLWT03-000006-1987 averred that no formal deed in respect of this agreement was thought necessary in view of the relationship between the parties and because the plaintiff alongwith her husband and family was the tenant in the premises and in occupation and possession of the same.
All these averments and evidence by way of affidavit shows that parties never entered into any written agreement and the agreement as alleged by the original plaintiff is oral agreement.
It is trite that a sale agreement can also be oral and it is not necessary that the agreement be written, however, what is more important is that it should be within the ambit of Section 10 of the Indian Contract Act, and all oral and written agreements shall fulfil the conditions specified in Section 10 of the Indian Contract Act.
In Brij Mohan & Ors Vs. Smt. Sugra Begum & Ors, 1990 Latest Caselaw 208 SC, the Hon'ble Apex court has held that in a case where the plaintiffs come forward to seek a decree for specific performance of contract of sale of immovable property on the basis of an oral agreement alone, a heavy burden of proof lies on the plaintiff's to prove that there was consensus ad idem between the parties for a concluded oral agreement for the sale of immovable property.
PW1 during cross-examination specifically deposed _________________________________________________________________________ CS SCJ 7841/2016 MAYA BHATTACHARJEE Vs. ANILA DASGUPTA Page No. 42 of 51 CNR No. DLWT03-000006-1987 that on 10.05.1985, original defendant no. 1 was in Calcutta and the original plaintiff was in Delhi, which means that original plaintiff and original defendant no. 1 never met on 10.05.1985, then how they entered into oral agreement. LRs of the plaintiff failed to explain as to how the alleged oral agreement was entered between the parties.
PW1 during his cross-examination also deposed that the entire matter relating to the offer of sale and acceptance thereof was being discussed between original defendant no. 1 and his father i.e. husband of original plaintiff namely Dr. B. N. Bhattacharjee. He further deposed that oral agreement was entered between Smt. Anila Das Gupta i.e. original defendant no.1 and his father Dr. B. N. Bhattacharjee, which means that the alleged oral agreement was never entered into between the original plaintiff and the original defendant no. 1 but between the husband of the original plaintiff and the original defendant no. 1, therefore, the present suit is not maintainable as the present suit for specific performance of contract has been filed by the original plaintiff and not her husband. Moreover, PW1 during his cross- examination duly admitted that his father i.e. husband of the original plaintiff had not filed any suit against the original defendant no. 1.
PW1 during his cross-examination also deposed that in the year 1985, he was the student of Chartered Accountancy as an Articled Clerk and he was often sent out of station for doing _________________________________________________________________________ CS SCJ 7841/2016 MAYA BHATTACHARJEE Vs. ANILA DASGUPTA Page No. 43 of 51 CNR No. DLWT03-000006-1987 audits, therefore, he did not remember where he was on 10.05.1985. This shows that PW1 was not with the original plaintiff or with the original defendant no.1 when the alleged oral agreement was entered. This means that the evidence regarding the oral agreement by PW1 is hearsay evidence and hearsay evidence is inadmissible as per law.
Hearsay evidence is excluded on the ground that it is always desirable, in the interest of justice, to get the person, whose statement is relied upon, into court for his examination in the regular way, in order that many possible sources of inaccuracy and untrustworthiness can be brought to light and exposed, it they exist, by the test of cross-examination. The phrase "hearsay evidence" is not used in the Evidence Act because it is inaccurate and vague. It is the fundamental rule of evidence under the Indian Law that hearsay evidence is inadmissible. A statement, oral or written, made otherwise than a witness in giving evidence and a statement contained or recorded in any book, document or record, whatever, proof of which is not admitted on other grounds, are deemed to be irrelevant for the purpose of proving the truth of the matter stated. An assertion other than one made by a person while giving oral evidence in the proceedings is inadmissible as evidence of any fact asserted. That his species of evidence cannot be tested by cross- examination and that in many cases, it supposes some better testimony which ought to be offered in a particular case, are not the sole grounds for its exclusion. Its tendency to protract legal _________________________________________________________________________ CS SCJ 7841/2016 MAYA BHATTACHARJEE Vs. ANILA DASGUPTA Page No. 44 of 51 CNR No. DLWT03-000006-1987 investigations to an embarrassing and dangerous length, its intrinsic weakness, its incompetency to satisfy the mind of a Judge about the existence of the fact, and the fraud which may be practiced with impunity, under its cover, combine support the rule that hearsay evidence is inadmissible.
The reason why hearsay evidence is not received as relevant evidence are:
a) The person giving such evidence does not feel any responsibility. The law requires all evidence to be given under personal responsibility i.e. every witness must give his testimony, under such circumstance, as expose him to all the penalties of falsehood. If the person giving hearsay evidence is concerned, he has line of escape by saying "I do not know, but so and so told me".
b) Truth is diluted and diminished with each repetition.
c) If permitted, gives ample scope for playing fraud by saying "someone told me that......." It would be attaching importance to false rumour flying from one foul lip to another.
Thus, the statement of the witness based on information received from others is inadmissible.
_________________________________________________________________________ CS SCJ 7841/2016 MAYA BHATTACHARJEE Vs. ANILA DASGUPTA Page No. 45 of 51 CNR No. DLWT03-000006-1987 In the case in hand, the plaintiff failed to establish evidence on the touchstone of the principles discussed to establish the existence of an oral contract as pleaded.
It is argued by Ld. Counsel for the LRs of the plaintiff that the oral agreement was complemented by way of written agreement through exchange of letters and compliance of procedural formalities by both the parties including payment of cash and DD by the original plaintiff to the original defendant no. 1 etc. The LRs of plaintiff has placed on record certain letters exchanged between the parties and from the same wanted to show that the defendant had a very keen desire to sell the property in question to the original plaintiff on account of the original plaintiff's husband being her brother's friend and colleague and that even though the agreement to sell could not be formalised in the shape of a document, the same had been entered into between the parties orally. The first letter is dated 18th January, 1985 from the original defendant no. 1 to the original plaintiff's husband and the relevant portion thereof if reproduced below:-
"It is to remind you again that I want to sell my premises without further delay. There are good many parties to purchase the same. But you are my brother's friend and colleague. So I want to give you the first preference. But before transaction kindly let me know the terms of your agreement and if you are _________________________________________________________________________ CS SCJ 7841/2016 MAYA BHATTACHARJEE Vs. ANILA DASGUPTA Page No. 46 of 51 CNR No. DLWT03-000006-1987 not willing to purchase the premises, kindly let me know the terms of your agreement, and if you are not willing to purchase the premises, kindly let me know your decision at an early date".
The second letter is dated 24th February, 1985 from the original defendant no. 1 to the original plaintiff's husband and the relevant portion thereof if reproduced below:-
" In this connection I may state that the present market price of that house definitely is double than my offer and the terms and mode of payment have already been communicated to you on my behalf by Ashim. In my opinion you will not be at any loss."
The third letter is dated 22nd August, 1985 from the original plaintiff's husband to the original defendant no. 1 and the relevant portion thereof if reproduced below:-
" I was told by Ashim Dutta that including all the expenses like the matter regarding 50% deposit to DDA and other miscellaneous expenses it is your desire to obtain a net amount of Rs. 1,00,000/- in your hand and I having accepted that proposal had sent a cheque of Rs. 50,000/- to my brother- in-law, Shri Bhowmick so that he may deliver the same to you, however, you expressed desire for a bank draft, therefore, shortly I am sending a bank draft. The balance amount will be paid to you in the manner as you desire, through my brother- in-law Shri Bhowmick. Please do not be worried in any _________________________________________________________________________ CS SCJ 7841/2016 MAYA BHATTACHARJEE Vs. ANILA DASGUPTA Page No. 47 of 51 CNR No. DLWT03-000006-1987 manner.
Once this aspect is complete Shri Bhowmick will, through some lawyer at Calcutta, get all requirements that are to be done on Stamp Paper, done for you. He will definitely do all such things which will save you from difficulties and inconvenience in this matter-this even I aspect.
Once all this is complete all formalities and activities relating to this transaction you will have to make an application to DDA for obtaining permission towards sale- I will send a draft of such application to Shri Bhowmick.
Finally for the temporal that will be required to complete all these formalities you have to extend a General power of Attorney to me or in my wife's name. I have also sent a draft copy of this document to Shri Bhowmick".
Then vide letter dated 2nd September, 1986 written by the original defendant no. 1 to the original plaintiff, the original defendant no. 1 called upon the original plaintiff to vacate the suit premises also pointing out that the original plaintiff was using the stair-case of this house without her permission and also the first floor room and that she was extremely sorry to learn the same, which were not the part of the tenancy premises.
After noting the contents of the aforesaid letters and other letters place on record by PW1 and also the non-receipt of any consideration inclusive of Rs. 50,000/- alleged to have been _________________________________________________________________________ CS SCJ 7841/2016 MAYA BHATTACHARJEE Vs. ANILA DASGUPTA Page No. 48 of 51 CNR No. DLWT03-000006-1987 sent by the cheque and then by Bank Draft and even the desire on the part of the defendant to sell the property in suit in favour of the plaintiff's husband, it is difficult to believe the existence of any agreement to sell as alleged in the plaint by the original plaintiff. It is further difficult to believe that when there was correspondence between the parties, where was difficulty in not formalising a document evidencing the agreement to sell. There may have been roving talks but not a concluded agreement to sell.
Accordingly, the issue no. 1 is decided against the plaintiff and in favour of the defendants.
Issue no. 2.
The burden to prove this issue is also on the plaintiff.
PW1 during his cross-examination deposed that he had prepared a DD of Rs. 50,000/- in lieu of the cheque Ex. PW1/4 on the request of Anila Das Gupta which was cancelled on 13.11.1985. PW1 during his cross-examination further deposed that no payment was made to Anila Das Gupta after the cancellation of the said demand draft. PW1 during his cross- examination further deposed that Anila Das Gupta returned the said demand draft with request to issue a fresh demand draft of Rs. 50,000/- drawn on SBI, Ulta Danga Branch, Calcutta. PW1 during his cross-examination further deposed that no demand draft of SBI, Ulta Danga Branch was prepared by his father. PW1 _________________________________________________________________________ CS SCJ 7841/2016 MAYA BHATTACHARJEE Vs. ANILA DASGUPTA Page No. 49 of 51 CNR No. DLWT03-000006-1987 during his cross-examination further deposed that the original plaintiff did not prepare any NSC in the name of Anila Das Gupta at any point of time. PW1 during his cross-examination further deposed that original plaintiff had never taken the measurement of bangles and necklace of Anila Das Gupta and voluntarily deposed that the measurement was given by defendant no. 1 to Sh. Bhowmick. Sh. Bhowmick never entered into witness-box to depose on behalf of the plaintiff. PW1 during his cross- examination further deposed that his father said that the Architect was not paid his fees of Rs. 5,000/- by Anila Das Gupta and till he gets his fees, he will not give the copy of sanction plan. PW1 during his cross-examination further deposed that it is correct that till date no permission has been granted by L& DO to the owner of the suit property to sell the suit property. He further deposed that it is correct that in order to sell leasehold property, prior permission from L& DO is required.
It is averred in the plaint that the plaintiff has been and is prepared to pay the balance consideration of Rs. 1,45,240/- in addition to Rs.50,000/- demanded by plaintiff in the form of a Bank draft drawn/State Bank of India, Ulta Danga, Calcutta before sale permission from L & D.O. is obtained, towards the sale price of the property.
PW1 during his cross-examination duly admitted that no demand draft of SBI, Ulta Danga Branch was prepared by his father.
_________________________________________________________________________ CS SCJ 7841/2016 MAYA BHATTACHARJEE Vs. ANILA DASGUPTA Page No. 50 of 51 CNR No. DLWT03-000006-1987 The deposition of PW1 and the finding given in deciding issue no.1 itself shows that plaintiff was not always been and is still ready to perform her part of the contract.
Accordingly, the issue no. 2 is decided against the plaintiffs and in favour of the defendants.
Issue no. 3.
Since, issue no. 1 and 2 are decided against the plaintiff and in favour of the defendants, the plaintiff is not entitled for any damages from the defendants.
Relief.
13. In view of the aforesaid discussion, the suit of the plaintiff is dismissed.
14. Parties to bear their own cost.
15. File be consigned to record room after necessary compliance.
Announced in open Court.
On this 20th day of September, 2023
This Judgment contains 51 pages
and signed by me. MAYANK Digitally signed by
MAYANK GOEL
GOEL Date: 2023.09.20
16:32:29 +0530
(MAYANK GOEL)
ACJ/CCJ/ARC (WEST)
TIS HAZARI COURTS/DELHI
_________________________________________________________________________ CS SCJ 7841/2016 MAYA BHATTACHARJEE Vs. ANILA DASGUPTA Page No. 51 of 51 CNR No. DLWT03-000006-1987