Gauhati High Court
Rameswar Das And Ors. vs Jogeswar (Kalita) Das And Ors. on 23 May, 2006
Equivalent citations: 2007(1)GLT90
Author: H.N. Sarma
Bench: H.N. Sarma
JUDGMENT H.N. Sarma, J.
1. This revision petition is filed by the decree holders/petitioners challenging the judgment and order dated 05.06.1999 passed by the Civil Jude, Senior Division No. 1, Kamrup, Guwahati in Misc. (J) Case No. 126/94 arising out of the Title Execution Case No. 12/80. By the impugned order, the learned Executing Court accepting the objection of one of the decree holders "extinguished" the decree which is sought to be executed in the Execution Case No. 12/80.
2. For the purpose of disposal of this revision petition, following brief narration of fact is considered necessary.
In the year 1959, the T.S. No. 32/59 was filed by the plaintiffs/decree holders against the defendants/opposite party praying for declaration of the right, title and interest over the suit land and for khas possession thereof by ejecting the defendants. The suit property as described in the schedule of the plaint is an area of land measuring 6 B 4 L covered by Dag No. 688, periodic patta No. 66, situated at village-Kokjhar under Mouza-Chayani in the district of Kamrup. The said suit was decreed, on contest by the then Sub-Judge, Gauhati on 23.12.1963. Aggrieved defendants challenged the said decree up to the High Court and the High Court vide judgment and order dated 14.02.1969 passed in SA No. 28/66 also confirmed the decree dismissing the appeal. The said decree was put into execution by filing the Title Execution Case No. 12/80 before the learned Additional District Judge No. 1, Guwahati on 21.11.1980. In the Execution proceeding, one of the judgment-debtors namely, Jogeswar (Kalita) Das, filed an application under Section 47 of the CPC claiming inter alia that one of the decree holders, namely, Dharmeswar Das having entered into an agreement for sale in his favour on 13.05.1982 promising to sale 2 Bighas of the decreetal land at consideration of Rs. 12,000/- and by taking Rs. 5000/- as advance and later on the said agreement for sale could not be implemented fully by transferring the land covered by the said agreement in his favour due to the death of Dharmeswar Das and on refusal of his legal heirs to accept the same, he is protected under Section 53A of the Transfer of Property Act and as such, the decree itself is not executable and the Execution Case is liable to be dismissed. The said application was registered as Misc.(J) Case No. 126/94. The schedule incorporated in the aforesaid agreement for sale dated 13.05.2002 shows that the said agreement relates to an area of land measuring 2 Bighas of land covered by Dag No. 815 and periodical patta No. 159 situated at village-Kokjhar under Chayani Mouza out of the total area 6 Bigha 4 Lechas. The specific boundary of the land covered by the agreement is also provided in the said agreement. The decree holders registered (resisted, sic) the same and filed objection. The learned Executing Court, recorded the evidence of 2 witnesses on behalf of the judgment-debtor and after hearing the parties, vide impugned judgment and order dated 05.06.1999, allowed the Misc. Case and held that in view of the agreement dated 13.12.82 (Exhibit 1) the decree sought to be executed has been "extinguished" and consequently closed the execution case. Challenging the said judgment and order, the present revision petition has been filed.
3. I have heard Mr. B.K. Goswami, learned Senior Counsel assisted by Ms. T. Goswami, learned Counsel for the decree holders/petitioners and Mr. AS Choudhury, the learned Senior Counsel assisted by Ms. M. Dev, learned Counsel for the judgment-debtor/opposite party.
4. Record of the trial Court was also called for and I have perused the same. Mr. Goswami, learned Senior Counsel, in support of the petition, has contended that the learned Executing Court acted illegally and/or with materials irregularity in passing the impugned judgment and order by closing the Executing Case inasmuch as the petitioner has failed to make out a case for such interference by this Court under Section 47 of the CPC. It is further submitted that the necessary ingredient of Section 53A of the Transfer of Property Act has neither been shown nor established in the proceeding and that the property covered by the (Exhibit 1) did not confirm (conforming, sic) to the part of the decreetal land and the learned Executing Court by putting a wrong test closed the execution Case, thereby refusing the decree holders to reap the benefit of the decree causing great injustice to the decree holders/petitioners. Mr. A.S. Choudhury, the learned Senior Counsel, on the other hand, has submitted that the learned Executing Court after considering the matter in its proper perspective and in view of the specific assertion made in Exhibit. 1 has rightly come to a finding that there was an agreement of sale between the parties to sale part of the decreetal land which has resulted into a contract part performance and accordingly, the opposite party is protected under the Section 53A of the Transfer of Property Act and there is no any jurisdictional error in passing the impugned judgment and order, justifying interference by this Court.
5. I have considered the rival submissions of the learned Counsel for the parties on scrutiny of. By Exhibit. 1, it appears that the Dharmeswar Das made an agreement of sale of 2 Bighas of land covered by Dag No. 815 and K.P. Patta No. 159 of village-Kokjhar under Chayani Mouza within the specific boundaries in favour of the opposite party No. 1 for consideration price of Rs. 12.000/-. The said agreement further discloses that an advance amount of Rs. 5,000/- was accepted by Late Dharmeswar Das. Ext. 1 also contains a condition that he would execute the sale deed by causing a statement of the ongoing legal proceeding that was pending between the parties and obtaining necessary order to that effect from the Court and on reciept of the amount of consideration money, the sale would be executed and registered in the office of the Guwahati Sub Registry. There is a clause to the effect that if the sale deed is not executed by settling the legal proceeding, then he would be liable under the law. It is to be noted that the decree holder/petitioner has not admitted the said agreement and disputed the same. In support of his contention, the oppostite party No. 1 examined himself as PW 1 wherein he reiterated that the term of the agreement executed between them on 13.05.1982, which is approved as Exhibit 1. He further stated that before the death of Dharmeswar Das, he approached him for executing the sale deed but that could not be done due to his death and he approached his legal heirs also, but with no effect. He also stated that apart from the advance of Rs. 5000/-, Dharmeswar further accepted an amount of Rs. 2,000/-but neither withdraw the case nor executed the sale deed in his favour. In his deposition, he reiterated that as per the Exhibit 1, the said sale deed was to be executed after withdrawing the case and as per the said agreement he was allowed to continue with his previous possession.
6. In his cross-examination, he admitted that apart from Dharmeswar, there were other decree holders also and the decree was a joint decree. He further admited that there was no separation of shares amongst the decree holders.
7. PW 2 is, one Upen Kalita, who proved the fact that he wrote exhibit 1 as per the saying of Dharmeswar Das. He also proved his signature in the exhibit 1 by 1 and exhibit 2.
The Executing Court on the basis of the aforesaid materials arrived at a finding that as the opposite party No. 1 who was an encroacher over the suit land, after execution of the agreement continued to possess in some part of the decreetal land as his own and this shows that he has done some act in furtherance of the contract as per exhibit. 1. The learned Court further held that as per the recital of the exhibit. 1, late Dharmeswar Das would not execute the decree, which constitute a compromise of dispute resulting extinguishing the decree.
8. In order to attract provision of Section 53A of the Transfer of Property Act, the learned Executing Court in the impugned judgment has noted the necessary prerequisite required to be fulfilled. One of the main ingredients of the Section 53A of the T.P. Act that the transferee has, in part performance of the contract, taken possession of the property or any part thereof or the transferee, being already in possession, continues in possession in part performance of the contract and has done some act in furtherance of the contract and the transferee has performed or is willing to perform his part of the contract.
9. In the instant case, the transferee/ opposite party No. 1 occupied part of the decreetal land as a trespasser over which right, title and interest of the plaintiffs/decree holders have been decreed which was affirmed in the second appeal by the High Court. After entering into the contract, in order to constitute a valid act of part performance, the transferee is required to take possession of the property or any part thereof or it the transferee already is in possession continues in possession in part performance of the contract and has done some act in furtherence of the contract, is essential.
10. In this connection, Mr. B.K. Goswami has referred a decision of the Apex Court rendered in Sardar Govindrao Mahadik and Anr. v. Devi Sahai and Ors. . The Apex Court at Para 40 of the said judgment inter alia, held that There is an understanding value of entering into possession for the first time and continuing in possession with a claim of change in character. Where persons claiming benefit of part performance of a contract was already in possession prior to the contract, the Court would expect something independent of the mere retention of possession to evidence part performance. Therefore, mere retention of possession quite legal and valid, if mortgage with possession is not discharged, could hardly be said to be an act in part performance unequivocally referable to the contract of sale.
11. Finding of the learned Executing Court in the instant case to the effect that the petitioners being an encroacher and thereafter in execution of the contract started possessing some part of the decreetai land amounts to doing some act in furtherance of the contract, is not supported by the principles contained in Section 53A of the Transfer of Property Act nor it satisfy the law laid down by the Apex Court as quoted herein below. Further the evidence adduced by the opposite party No. 1 also does not disclose that anything in furtherance of the said contract was done by him. Thus, in the absence of the vital ingredient Section of Section 53 of the Transfer of Property Act the act of part performance alleged by the judgment debtor cannot be said to have been fulfilled in the instant case. Accordingly, the finding of the learned trial Court to that effect is neither legally tenable nor borne out by the record.
12. A bare perusal of the schedule in exhibit. 1 and the schedule in the decree as well as in the execution petition disclose that the Dag No. and Patta No. of the land mentioned in the schedule of the Exhibit. 1 does not tally with the decreetai land. On comparison of the description of the suit property described in decree and the execution petition vis-a-vis those put in the Exhibit. 1, it is abundantly clear that the land in Exhibit. 1 is a different one from the decreetai land. There is no clarification to the effect in the evidence of the opposite party/judgment debtor. Situated thus, on the face of those records, I hold that the land described in the schedule of Exhibit. 1 is not a part of the decreetai land as claimed by the opposite party.
13. There is yet another aspect of the matter. It is an admitted fact that the decree in question is a joint decree. In the joint decree arising the land in question from part of decreetai land, Late Dharmeswar Das, who was one of the decree holders has contracted to sale 2 Bighas of land from the said joint decreetai land in favour of the opposite party No. 1 vide Exhibit. 1 without consent of the other joint owners. Such power to transfer the right, title and interest of the part of the decreetal land by one one of the co decree holder is doubtful one.
14. Another limb of argument of Mr. Gosvvami is that even if it is accepted that exhibit. 1 as a valid document purporting to cover a part of the decreetal land, in that event, also in terms of Order 21 Rule 2 and the recital contained in the exhibit.1, there having been no recording of such compromise or adjustment by the Court, the same cannot be acted upon. In support of this contention, Mr. Goswami has referred to a decision rendered by the Apex Court, reported in (1999) 5 SCO 432 (Badamo Devi and Ors. v. Sugar Sharma). On the face of the said decision and in terms of Order 21 Rule 2 of the CPC, Mr. Goswami submits that as the trial Court has not recorded any such adjustment of the decree and hence the claim of the opposite party is not to be entertained. Per contra, Mr. Choudhury contends that the decree in question not being a money decree provision of Order 21 Rule 2 is not applicable. However, the provision of Order 21 Rule 2 is applicable in case of money decree as well as the decree of any kind as per amendment of CPC in 1976. Consequently, the effect of non recording of the adjustment of the decree by the learned court below which is also a term of Exhibit 1, the petitioner/opposite party No. 1 is not entitled to get any legal benefit under the law so far his objection raised under Section 47 is concerned.
15. Although, Mr. Choudhury submitted that the identity of the decreetal land as well as the land described in Exhibit. 1 has not raised in the objection petition, in my considered opinion, those facts shares on the record itself and in exercise of the revisional jurisdiction under Section 115 of the CPC, this Court is not precluded to go into the same, thus rejecting the said objection raised by Mr. Choudhury.
16. On duscussions as aforesaid pertaining to the factual and legal position on the issue involved, 1 find that the learned Executing Court acted illegally and/or with materials irregularity in extending the benefit under Section 53A of the Transfer of Property Act to the opposite party No. 1 so as to "extinguish" the decree passed in the suit. Consequently, the impugned order is set aside and quashed and the Executing Case No. 12/80 is restored to file. Since the decree arises out of the suit filed in the year 1959 and only a few years left to celebrate the golden jubilee of the pendency of the Case, the learned trial Court is directed to dispose the execution proceeding expeditiously so that the decree holder can enjoy the fruits of the decree. Registry is directed to transmit the record forthwith to the learned Court below.
No Costs.