Gauhati High Court
Lebananda Srmah vs Samu Hira And Ors on 3 June, 2015
Author: A K Goswami
Bench: A K Goswami
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RSA 20/2004
BEFORE
HON'BLE MR JUSTICE A K GOSWAMI
03.06.2015
Heard Mr. M. A. Sheikh, learned counsel for the plaintiff/appellant. Also heard
Mr. A. J. Das, learned counsel appearing for the defendants/respondents.
2. This appeal is preferred against the judgment and decree dated 28.03.2003, passed by the learned Civil Judge (Senior Division), Morigaon, dismissing the appeal and affirming the judgment and decree dated 03.06.2003, passed by the learned Civil Judge (Senior Division) No. 1, Morigaon, in Title Suit No. 24/99.
3. The plaintiff filed the suit for part-performance on behalf of the defendants to execute a registered sale deed in pursuance of the deed of agreement dated 11.09.96 executed by Ramu Hira, predecessor of the defendants, and for a declaration of the plaintiff's right to possess the suit land till the execution of the sale deed restraining the defendants to enter into the suit land; cost of the suit, etc.
4. It is averred in the plaint that land measuring 2 Katha, out of 2 Bigha 18 Lecha, covered by Dag No. 56, in Periodic Patta No. 44, at village Hatikhuli, under Mouza Uttarghuli, in the District of Morigaon, is the suit land belonging to Ramu Hira. The entire plot of land belonged to Ramu Hira and suit land is indicated, in detail, in the Schedule to the plaint. It is averred that with the intent to sell the suit land, Samu Hira took an amount of Rs. 20,000/- in three installments from the plaintiff. On the date of executing the document, namely, the agreement, i.e. on 11.09.1996, he took Rs. 10,000/- and on 15.09.1996 and 20.10.1996 he took Rs. 8,000/- and Rs. 2,000/- respectively.
5. Mr. Sheikh submits that the name of Samu Hira is wrongly recorded in paragraph-2 of the plaint and it is a typographical error and it actually meant Ramu Hira, which will be demonstrated by the subsequent pleadings in the plaint. Mr. Sheikh appears to be correct as rest of the averments are in respect of Ramu Hira.
6. However, after execution of the agreement, before he could execute the sale deed, Ramu Hira died. On the request of defendant No. 3, a further sum of Rs. 5,000/- was paid to the defendants for performing funeral rites of Ramu Hira. Defendant No. 1, Samu Hira, objected to execute the registered sale deed despite willingness expressed 2 by other defendants, which necessitated convening of a village 'Mel' on 11.09.97, wherein also the defendant No. 1 vehemently opposed to execute the registered sale deed. Defendant No. 1 also committed theft of bettle-nut and coconut from the Schedule-A land as a consequence whereof the plaintiff filed a criminal case. Defendant Nos. 2 and 3 also allowed possession to the plaintiff from their own shares of land.
7. The defendant Nos. 1, 2 and 3 filed a common written statement wherein they acknowledged that, during his lifetime, Ramu Hira had taken a sum of Rs. 5,000/- in two installments, one of Rs. 3,000/- and the other of Rs. 2,000/-, by executing a hand note and that they had offered to repay the aforesaid sum to the plaintiff in the village 'Mel', which was declined to be accepted by the plaintiff. The agreement for sale was denied as also the allegation of handing over possession to the plaintiff.
8. Initially, on the basis of the pleadings of the parties, 7 issues were framed, which are as under:
"(1) Whether there is any cause of action for the suit? (2) Whether the suit is maintainable in its present form? (3) Whether there was any agreement for sale between father/husband of the defendants Ramu Hira with the plaintiff and whether the deceased Ramu Hira took an amount of Rs. 20,000/- from the plaintiff? (4) Whether the defendants No. 2 and 3 delivered possession of the 'A' Schedule land to the plaintiff?
(5) Whether the plaintiff possessed right, title and interest over the suit land on the strength of agreement for sale?
(6) Whether the plaintiff is entitled to the decree prayed for?
(7) To what relief/reliefs are the parties entitled?"
9. Subsequently, one more issue was framed, which is as follows:
"(8) Whether the plaintiff possesses any right to possess the suit land till the execution of registered deed?"
10. Both the courts below had concurrently held that the plaintiff not only failed to prove the execution of the agreement of sale, but had also failed to prove his possession over the suit land as contemplated under Section 53-A of the Transfer of Property Act, 1882.
11. The Second Appeal was admitted to be heard by an order dated 28.02.2004 on the following substantial question of law:
3"Whether the courts below erred in holding (Ext.-A) that the agreement of sale was not proved in accordance with the provisions of law and were right in rejecting the appellant's claim on the basis of the agreement of sale (Ext.-1)?"
12. It appears that "Ext.-A" is wrongly referred to in the substantial question of law and it ought to be noted as "Ext.-1".
13. Mr. Sheikh has submitted that even if it is held that Ext.-1, dated 11.09.1996, was not proved in accordance with law, if the evidence of PW2, who is an independent and responsible witness, is taken into consideration in the correct perspective, it will be demonstrated that there was an agreement of sale in respect of the suit property in terms of which possession was also delivered to the plaintiff on receipt of Rs. 20,000/-, in three installments, and Ramu Hira had acknowledged the same in front of public. The courts below had not considered the aforesaid evidence of PW2. On a totality of the circumstances, the plaintiff had been able to make out a case that Ramu Hira made an agreement of sale in respect of the suit land in favour of the plaintiff and he delivered possession also to the plaintiff, he submits.
14. Mr. A. J. Das, learned counsel for the respondents, on the other hand, submits that none of the witnesses of the alleged Ext.-1 was examined by the plaintiff and PW2 also was not a witness to the agreement of sale, Ext.-1. He has submitted that it is not correct, as submitted by Mr. Sheikh, that the evidence of PW2 was not considered. The learned trial Court considered his evidence and found the same to be not believable. Mr. Das has submitted that assuming, but not admitting, that there was an agreement of sale, Ext.-1, the document has also categorically stated that possession would be handed over to the plaintiff on execution of the registered deed. Therefore, going by the own case of the plaintiff, there was no part-performance of the contract. Learned counsel further submits that there being no perversity in the appreciation of evidence, no case is made out to interfere with the judgments and decrees of the learned courts below in this Second Appeal.
15. I find substance in the argument of Mr. Das. Ext.-1 is a document on plain paper. The plaintiff did not examine any of the witnesses of the alleged agreement of sale dated 11.09.1996 to prove execution of the sale deed by Ramu Hira, who was no more. The evidence of PW2, on which much reliance has been placed by Mr. Sheikh was disbelieved by the learned trial court. Going by the case of the plaintiff, the starting 4 point of the transaction is 11.09.1996, i.e. date of execution of Ext.-1. The said document postulates that possession would be handed over only on execution of the registered deed of sale as well as receipt of the balance consideration amount. PW2 does not, however, say on what date the possession was allegedly handed over. The description of the land given in his evidence, namely, 1 Nol X 40 Nol, is also not discernible in Ext.-1. He has deposed that Rs. 20,000/- was paid by the plaintiff as advance. Ext.-1 though recited that Rs. 10,000/- was received by the defendants, there is also a note, which is dated 15.09.1996, to the effect that though it was written that Rs. 10,000/- was received, Rs. 18,000/- had been taken by the vendor till 15.09.1996 and there was only a balance amount of Rs. 2,000/- to be paid. The note was written by the scribe on 15.09.96. No receipts were exhibited in acknowledgment of such payment. The plaintiff, in his cross-examination, had stated that on the date of agreement he had paid Rs. 9,000/-, which is also at variance with Ext.-1. There are serious infirmities in the case of the plaintiff and the plaintiff failed to prove his case.
16. In view of the above, I find no merit in this appeal and, accordingly, the same is dismissed.
17. At this stage, Mr. Sheikh submits that since there was an admission on the part of the defendants that Ramu Hira had taken Rs. 5,000/-, this Court may direct the defendants to make payment of the aforesaid amount.
18. Mr. A. J. Das, learned counsel for the respondents, submits that the defendants did not disown taking of Rs. 5,000/- as loan by Ramu Hira and they are prepared to deposit the amount before the trial court within a period of two months.
19. Accordingly, it is provided that the defendants may deposit an amount of Rs. 5,000/- before the learned trial court within a period of two months from today and, in the event of the amount being deposited, the said amount will be disbursed to the plaintiff by the learned trial court. This observation is made in view of the submission of Mr. Das, which is voluntary in character.
20. Registry will send back the records.
JUDGE RK 5 6 Heard Mr. S. Biswas, learned counsel for the petitioner, who submits that his case will be governed by the judgment to be passed in WA 45/2014. He accordingly prays to segregate this writ petition from the batch of the writ petitions (Item No. 1 to 23 of Cause List dated 05.06.2015) and to pass appropriate order accordingly.
Accordingly, this case is segregated from the batch of these writ petitions (Item No. 1 to 23 of Cause List dated 05.06.2015).
List this matter after the outcome of WA 45/2014.
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