Tripura High Court
Shri Haradhan Dey vs Sri Runu Das on 20 February, 2018
Author: S. Talapatra
Bench: S. Talapatra
THE HIGH COURT OF TRIPURA
AGARTALA
RSA No.16 of 2008
Shri Haradhan Dey,
son of late Ananta Kumar Dey,
resident of village Doulbari (Damdama),
P.S. Sabroom, District : South Tripura
............Appellant
- Vs -
1. Sri Runu Das
2. Sri Sankar Das
3. Sri Omkar Das
4. Sri Madhu Das
-all are sons of late Nagendra Das
5. Smt. Shilpi Das,
wife of Shibu Das
6. Sri Kala Chand Singha,
son of late Sarat Chandra Singha,
resident of village:Krishnanagar,
P.S. Belonia, District: South Tripura
7(a). Smt. Rani Bala Singha,
wife of late Balaram Singha
7(b). Sri Swapan Singha,
son of late Balaram Singha
7(c). Smt. Maya Singha (Sutradhar),
daughter of late Balaram Singha and
wife of Sri Narayan Sutradhar
7(d). Smt. Shefali Singha (Sur),
daughter of late Balaram Singha and
wife of Sri Babul Sur
-all are residents of village Madhya Krishnanagar,
Under Krishnanagar Gaon Panchayat,
P.S. Belonia, District: South Tripura
Page 1 of 25
RSA 16 of 2008
[Sl. No-7(a) to 7(d) are the legal heirs of Balaram Singha,
the original defendant No.2, since deceased]
8. Smt. Dipali Singha,
daughter of late Rash Mohan Singha and
wife of Jagadish Das,
resident of village: East Nalua,
P.S. Belonia, District: South Tripura
............Respondents
BEFORE THE HON'BLE MR. JUSTICE S. TALAPATRA For the appellant : Mr. A.C. Bhowmik, Senior Advocate Mr. D.C. Roy, Advocate Mr. D. Sarkar, Advocate For the respondents : Mr. H.K. Bhowmik, Advocate Date of hearing : 12.01.2018 Date of delivery of : 20.02.2018 Judgment and order Whether fit for reporting : YES Judgment and Order This is an appeal under Section 100 of the CPC from the judgment dated 18.02.2008 delivered in Title Appeal No.11 of 2007 by the District Judge, South Tripura, Udaipur (as he then was). By the said judgment dated 18.02.2008 the first appellate court affirmed the judgment dated 23.02.2007 delivered in T.S. 2 of 2005 by the Civil Judge, Senior Division, South Tripura, Udaipur.
Page 2 of 25 RSA 16 of 2008
02. At the time of admission of the appeal, the following substantial questions of law were formulated by the order dated 19.09.2008:
"(i) Whether the un-registered deed of Agreement for sale Exbit-1, dated 04.10.2004 can over-ride/defeat the registered Sale Deed No.1-566 dated 15.7.2005 executed in favour of the appellant by the Defendant No.1, 2 & 3 which was already acted upon?
(ii) Whether un-registered Deed of Agreement for Sale Exhibit-1 is enforceable in the eye of law on the ground that it was not signed by the Plaintiff-Respondent Nos. 1 to 5?"
For appreciating the substantial questions of law as formulated, the essential facts may briefly be noted at the outset.
03. The respondents No.1-5 instituted the suit being T.S. 2 of 2005 for declaration and specific performance of the contract. The contract as referred above was in respect of the land appertaining to mouja West Jalefa, Tehasil Sabroom, P.S. Sabroom and comprised in RS Khatian No.462 and finally published Khatian No.680, RS Plots No.5416, 5365, 5420, 5327, 5326, 5299, 5298 and 5326 measuring as a whole 4.99 acre of bastu class. Hereinafter, the said land would be referred to as the suit land. The suit land was originally belonged to one Sarat Chandra Singha. Sarat Chandra Singha died and is survived by one Rash Mohan Singha, Balaram Singha, Kala Chand Singha and his wife Ram Tara Singha. In the year 1970, Rash Mohan Page 3 of 25 RSA 16 of 2008 Singha, Balaram Singha and Ramtara Singha sold out the entire suit land measuring 14 kanis, 9 gandas, 3 karas, 1 kranta and 15 dhurs spread over eight plots attracted by the Khatian No.571 of Mouja Jalefa to one Nira Bala Das, wife of late Jagabandhu Das of West Jalefa of Sabroom on accepting the consideration money of Rs.700/- by 'an unregistered deed of sale'. The original owner left the state for Assam. However according to the plaint, after such sale, the delivery was caused to Nira Bala Das, the widowed sister of Nagendra Das who was also a member of the common mess. Nira Bala Das on 04.02.1975 sold out the suit land to Nagendra Das, her elder brother, by an unregistered deed of sale with delivery of possession. Nagendra Das reclaimed the entire suit land and he started possessing the same by constructing the dwelling house and residing therein with his family. Nagendra Das was also cultivating different crops in the suit land. Over the new plot No.5416, comprised in Khatian No.684, the plaintiff planted some fruit and wood trees. The plaintiff in the plaint has asserted as follows:
"The defendants Nos. 1, 2, 3 lost their saleable right other than the plaintiffs due to prior sale in the year 1970 A.D. The predecessor and the plaintiffs acquired title in the suit land."
04. Nagendra Das paid the revenue for the said land regularly during his lifetime. But the land remained under Khatian No.680. Nagendra Das was shown in the records as the Page 4 of 25 RSA 16 of 2008 purchaser by unregistered deed. When the plaintiffs got the information that the defendants No.1, 2 and the daughter of late Rashmohan Singha, the legal heirs of Sarat Chandra Singha were residing at Krishnanagar and Nalua they met with them for formalizing the transfer by a lawful instrument. The plaintiff has mentioned that Kala Chand Singh was not the vendor of the suit land. According to the plaintiffs the defendants No.1, 2 and 3 had full knowledge about the said status of the land. The defendants No.1, 2 and 3 agreed to register the deed of sale in favour of the plaintiffs if the consideration money of Rs.30,000/- is paid to them. On 04.10.2004 the defendants No.1, 2 and 3 entered into an un-registered deed of agreement for purpose of having the registered sale deed, on accepting consideration amount of Rs.30,000/-. Even the defendants No.1, 2 and 3 had received the earnest money of Rs.1,500/- as it was agreed upon that the defendants No.1, 2 and 3 would receive Rs.1,500/- out of Rs.30,000/-, as the earnest money. Thus they acceded to further condition that after getting the 'succession certificate' the sale deed would be registered in favour of the plaintiffs.
05. The plaintiffs have in para-13 of the plaint categorically asserted that since 1975 they are in possession over the suit land by way of cultivation and raising plantations. The defendants No.1, 2 and 3 were not in possession for last Page 5 of 25 RSA 16 of 2008 thirty years. The defendants No.1, 2 and 3 had very clearly stated that they are the owner of the suit land, but they are not in possession of the suit land. On 15.07.2005, the defendants No.1, 2 and 3 executed a sale deed wrongly and illegally for an amount of land measuring 3.70 acre comprised in Khatian No.680 of Mouja Jalefa, Plot No.5416 in favour of the defendant No.4 namely Sri Haradhan Dey. The defendant No.4 had being a powerful member of the local Panchayet full knowledge about the possession of the suit land. Despite that he purchased the suit land without delivery of possession. According to the plaintiffs the said transfer of the land measuring 3.74 acre (comprised in plot No.5416 of Khatian No.680 of Mouja-Jalefa) was a paper transaction without delivery of possession.
06. The plaintiffs have stated further that the sale deed in favour of the defendant No.4 is collusive and thus it is liable to be declared void ab initio. The defendant No.4, according to the plaintiff, did not acquire any title over the suit land. The defendants No.1, 2 and 3 were bound to execute the registered sale deed in favour of the plaintiff in terms of the baina patra (the agreement to sale) dated 04.10.2004, but the defendants No.1, 2 and 3 had breached the conditions of the said contract willfully and transferred the land to the defendant No.4 without knowledge of the plaintiffs. The plaintiffs were always ready and willing to perform the essential terms of the contract which Page 6 of 25 RSA 16 of 2008 were to be performed by them. The plaintiffs visited the defendants No.1, 2 and 3 on 20.07.2005 at their residence and came to learn from them that they had executed a sale deed on 15.07.2005 in favour of the defendant No.4 for land measuring 3.74 acres comprised in the Khatian No.680, Plot no.5416 at Mouja-West Jalefa. But the defendants No.1, 2 and 3 had denied to execute the deed of sale in favour of the plaintiff having due regard to the said contract to sale. The plaintiffs have clearly stated that the defendant No.4 cannot be termed as 'bonafide purchaser'. Nor did he purchase the part of the suit land in good faith, hence they have urged the court to grant them all the reliefs viz. the declaration of the title in respect of the suit land in their favour and the consequential decree for recovering the suit land. For purpose of reference, the schedule of the suit is extracted hereunder:
SCHEDULE OF THE SUIT LAND Within District-South Tripura, Mouja-West Jalefa, Tahasil- Sabroom Old Khatian No.571, R.S. Khatian No.462 and finally published Khatian No.680 appertaining to:-
R.S. 5416 Land measuring 3.74 Acres
Plot No.
" 5365 " " .05 "
" 5420 " " .25 "
" 5327 " " .41 "
" 5328 " " .30 "
" 5299 " " .07 "
" 5498 " " .10 "
" 5326 " " .07 "
Total 4.99 acres
Page 7 of 25
RSA 16 of 2008
07. The defendants No.1, 2 and 3 filed the joint written-
statement and admitted the substantive part of the pleadings till purchase of the land by one Sarat Chandra Singha, but the subsequent transaction as narrated by the plaintiffs have been denied by them. They denied that Nagendra Das was paying the revenue against the suit land. They have also denied that the transaction that occurred on 15.07.2005 by executing a registered sale deed in favour of the defendant No.4 cannot be stated to be a paper transaction without delivery of possession. Even the defendants No.1-4 have denied the fact of entering into a contract for sale of the suit land on a settled price of Rs.30,000/- on 04.10.2004 or execution of an unregistered deed of contract for the said sale. According to them Sarat Chandra Singha was the original owner in possession of the entire land measuring 4.99 acres. On 05.06.1990 Sarat Chandra Singha died leaving behind his three sons namely Kalachand Singha, Balaram Singha and Rashmohan Singha, now deceased. After his death they used to possess the entire suit land. Rashmohan Singha died on 02.06.1994 leaving behind his only daughter Smt. Dipali Singha (Das) and his wife Mana Bala Shil, now deceased, as his legal heirs.
08. The answering defendants came forward and proposed to sell the entire land as they were in urgent need of money and the defendant No.4 purchased the suit land Page 8 of 25 RSA 16 of 2008 measuring 3.99 acre finally on payment of consideration sum of Rs.1,00,000/-. The defendant No.4 paid initially a sum of Rs.50,000/- out of the consideration money. The defendants No.1 to 3 had agreed to sell a plot curving out a piece of land measuring 3.74 acre. Having received the full consideration money the defendants No.1, 2 and 3 executed the registered sale deed No.1-566 dated 15.07.2005 in respect of the land comprised in Hal Plot 5416 having area of 3.74 acre under Mouja-Paschim Jalefa in favour of defendant No.4. The defendants No.1, 2 and 3 had in terms of the agreement handed over the possession of the plots No.5416 along with crops. The defendants have stated in their written statement at para-5(iv) inter alia:
"It is to be noted here that the aforesaid deed of agreement was prepared by the plaintiffs through their men and the answering defendants No.1 and 3 on bonafide belief put their thumb impression and answering defendants No.2 put his signature therein. The answering defendant No.2, can only put his signature and he cannot read."
09. Thus, it is apparent that execution of the agreement was not totally denied but they have denied the pleadings of the plaintiffs that Nira Bala Das never entered in the possession of the suit land. The defendants No.1, 2 and 3 have further stated that taking advantage of their absence, the plaintiff namely Nagendra Das managed to record his name in column No.24 of Page 9 of 25 RSA 16 of 2008 the revisional Khatian No.680 as possessor by virtue of an unregistered deed of sale in connivance. The defendants No.1, 2 and 3 have further stated that there was/is no existence of any unregistered deed of sale executed by Sarat Chandra Singha in favour of Nira Bala Das or Nagendra Das in respect of the suit land. The said entry in the record of right cannot be relied for any purpose.
10. The defendant No.4 filed a separate written statement on 05.11.2005. He has almost replicated the pleadings of the defendants No.1, 2 and 3. The defendant No.4 has categorically denied that the plaintiffs are in possession of the entire suit land since 1975 or that the defendants No.1, 2 and 3 had remained without possession for last thirty years. The defendant No.4 has asserted that the said transfer was a complete and valid transaction by the defendants No.1, 2 and 3. The defendant No.4 has further asserted that at the time of purchasing the land measuring 3.74 acre he had no knowledge of any agreement/contract to sale and hence he had entered into agreement to sale initially for purchase of 3.99 acres but later on he purchased an area of land measuring 3.74 acres, leaving out an area of .25 acres. He entered in the agreement to sale on 12.12.2003 on payment of the earnest money and he was always ready to pay the balance amount. After payment of the total settled price the defendants No.1, 2 and 3 executed Page 10 of 25 RSA 16 of 2008 the sale deed. Even his name has been recorded in the revenue records as the rayat in possession by creating a new Khatian No.1718 of Mouja-Jalefa. Since 12.12.2003, the day of purchase, the defendant No.4 has been possessing that plot of land which he had purchased within the knowledge of the plaintiffs and the local people. He has asserted that neither Nira Bala Das, nor the other plaintiffs ever entered in the possession of any part of the land in the new Plot No.5416 and 5424.
11. There is no substantive difference in the pleadings of the defendants. The defendant No.4 has with permission from the court filed one additional written statement and stated that he purchased the part of the suit land following the due process of law.
12. On the basis of the pleadings, the trial court framed the following issues and one additional issue for purpose of adjudication of the suit:
"(i) Whether the suit is maintainable in its present form & nature?
(ii) Whether the suit is barred by limitation?
(iii) Whether the said agreement for sale is valid one?
(iv) Whether the plaintiffs are entitled to the specific performance of the agreement for sale?
(v) Whether the plaintiffs are entitled to the decree as prayed for?
(vi) To other relief/reliefs the parties are entitled?Page 11 of 25
RSA 16 of 2008 Additional Issue
(vii) Whether the un-registered agreement for sale dt.12.12.03 was executed in between the defendant no.1,2 & 3 in one part and defendant no.4 is another part after filing the instant suit or not?"
13. Thereafter, the trial court recorded the evidence as led by the parties. The plaintiffs adduced 4(four) witnesses and 8(eight) documents and the defendants adduced 6(six) witnesses and 8(eight) documents. The trial court after appreciating the evidence, both oral and documentary, had observed as under in the judgment dated 23.02.2007:
"This agreement i.e Ext 1 was proved by the plaintiffs by adducing evidence. But on perusal the alleged agreement for sell dt.12.12.2003 i.e Ext.A executed by the deft. No. 1 to 3 as one part and the deft. No.4 on the other part it transpires that the said deed was allegedly executed on 12.12.03. But on perusal the stamp of the said agreement it transpires that said stamp was purchased in the name of Kala Chand Sinha on 21.11.05. Further in the stamps which was used in preparing the said agreement for sale it appears that in the stamp of the stamp vender some writings has been over written which creates doubt in regard to the sale of the said stamp on 21.11.02. After meticulous observation of all these things it transpires that the said stamp was purchased by Kala Chand Singha on 21.11.05 by entering a back date i.e 21.11.2002. Further P.Ws in their deposition stated that the agreement dt. 12.12.03 was created by the defendants subsequent to the filing of the instant suit. Further on perusal of the registered sale deed bearing no.1-566 it appears that there is no mention in regard to the said agreement dt.12.12.03 and in the said registered sale deed i.e Ext. B it transpires that the said sale deed was executed on receiving Rs.1,00,000/- in cash as the consideration money but an amount of land measuring 3.74 acres. But in the said registered sale deed there is no whispering in regard to the alleged payment of Rs.50,000/- as advance at the time of execution of alleged agreement for sale dt. 12.12.03. Moreover, it transpires that in Page 12 of 25 RSA 16 of 2008 the said alleged agreement for sale dt.12.12.03 the deft. No.3 agreed to pay an amount of Rs.1,20,000/- as consideration money for the entire suit land measuring 4.99 acres and paid Rs.50,000/-. But it transpires that the registered sale deed was executed by the defendant no.1 to 3 for a land measuring 3.74 acres and consideration of Rs.1,00,000/- only paid. All these things are in contradiction in the agreement for sale. Considering all these aspects it appears to me that the said agreement for sale allegedly executed on 12.12.03 in between the deft. No.1 to 3 and deft. No.4 was created subsequently after institution of the instant suit. So it is clear that the agreement for sale in between the deft. No.1 to 3 in one part and the plaintiffs dt. 04.10.04 was earlier one. Further as the defendant no.1 to 3 already entered into the agreement of the suit land with the plaintiffs on 04.10.04 so the subsequent agreement for sale with the deft. No.1 to 3 as one part and deft.4 in other part is void and ineffective one. Further it transpires that the defendant created the subsequent agreement for sale i.e. Ext. B as they had notice in regard to the earlier agreement for sale in between the deft. No.1 to 3 as one part and the plaintiffs as other part."
14. On such observation and on making elaborate discussion of the evidence the suit was decreed directing the defendants No.1, 2 and 3 to perform the agreement for sale dated 04.10.2004 executed by them in favour of the plaintiffs and to execute the registered sale deed transferring the suit land in favour of the plaintiffs on receipt of the rest consideration money amounting to Rs.28,500/- from the plaintiffs within one month. The plaintiffs were directed to pay the remainder of the consideration money amounting to Rs.28,500/- within thirty days. The Sub-Registrar was directed to cancel the registered deed No.1-566 dated 15.07.2005 which was executed by Kala Chand Singha, Balaram Singha, Smt. Page 13 of 25 RSA 16 of 2008 Dipali Singa(Das) in favour of Haradhan Dey after expiry of the appeal period. It has been also observed that if the defendants No.1, 2 and 3 refused to accept the remainder of the consideration money from the plaintiff or do not execute the registered sale deed of the suit land in favour of the plaintiffs within the said period, the plaintiffs will deposit the rest consideration money to the court and the court will execute the registered sale deed in respect of the suit land in favour of the plaintiffs for on behalf of the respondents No.1, 2 and 3.
15. Being aggrieved by the said judgment dated 23.02.2007 the defendants filed an appeal in the court of the District Judge, South Tripura, Udaipur (as he then was) being T.A.11 of 2007. At the time of hearing the District Judge affirmed the finding of the trial court and dismissed the appeal observing as under:
"On careful scrutiny of the case record it appears to me that the respondents were shown as possessors of the suit land. The respondents also had been paying the land revenue on behalf of Sarat Sinha as they had not got the sale deed for the same either from Sarat Sinha or from his legal heirs. But they were in possession. The record of rights for the suit land (Khatian no.680, Touji 375 of West Jalefa. Mouja under Sabroom Sub-Division proved unequivocally that the predecessor-in-interest of the respondents had possessed the same as owner on the strength of an unregistered sale deed. As per section 43 of the TLR and LR Act the entries made in the finally published Khatian shall be presumed to be true and correct unless contrary is proved. Here in the instant case the appellant failed to produce any evidence contrary to the claim of the respondents. More-over, it appears from the case record that the respondents had been paying the Page 14 of 25 RSA 16 of 2008 land revenue for the suit land to the Government on behalf of Sarat Sinha. They proved it by producing the land revenue receipts (Exbt.-4 and 5 series) for the suit land."
The present appeal has been filed against the said judgment dated 18.02.2008 delivered by the first appellate court in T.A. 11 of 2007.
16. Mr. A. C. Bhowmik, learned senior counsel appearing for the appellant has submitted that the defendant No.4-appellant is in possession of the suit land since the day when the sale deed No.1-566 [Exbt.B] was executed by transferring a piece of land as stated, measuring 3.74 acre on consideration of Rs.1,00,000/-. The owners in interest, the defendants No.1, 2 and 3 handed over the possession to the defendant No.4-appellant and thereafter following the due process a new khatian was opened being No.1718 of Mouja West Jalefa, clearly showing the appellant is in possession on the plot No.5416 (corresponding to the old plot No.1901) measuring 3.74 acre. Mr. Bhowmik, learned senior counsel has strenuously argued that the said entry could not be rebutted by the plaintiff-respondents.
17. However, both the courts below being the competent courts for enquiring into fact have disbelieved the defendant No.4-appellant's possession. In this regard, the courts below has relied substantively on Khatian No.680 which Page 15 of 25 RSA 16 of 2008 was finally published on 31.03.1997 [Exbt.6 series] where it has been recorded that the predecessor of the plaintiff-respondents were in possession by dint of an unregistered deed of sale. It has been categorically entered into that khatian that over the plot No.1901 measuring 3.74 acre the land that has been subsequently purchased by the defendant No.4-appellant was occupied by the predecessor of the plaintiff-respondents, namely Nagendra Das. The courts below have also placed their reliance on the revenue receipts which the plaintiff-respondents claimed to be the acknowledgement of revenue that was deposited by the said predecessor. From Exbt.5 series it appears that the said predecessor in interest was making payment or paying the rent since 10.05.1963 consecutively. That apart, the witnesses, adduced by the plaintiff-respondents, have stated that the plaintiff-respondents are on possession over the suit land.
18. PW-2, Sri Sukumar Das, for instance, has categorically stated in the examination-in-chief as under:
"Myself and my mother had been possessing the suit land by reclaiming the Jungles therein and subsequently my mother sold out the suit land to Sri Nagendra Kumar Das by unregistered deed of sale and delivered the possession of the suit land to Nagendra Kumar Das."
The plaintiffs are the successors in interest of Nagendra Kumar Das. It has been also stated that Nagendra Page 16 of 25 RSA 16 of 2008 Kumar Das had been possessing the suit land by cultivating jute, til(oil-seed) and planting various trees. After death of Nagendra Kumar Das, the plaintiffs have been possessing the suit land uninterruptedly. By way of cross-examination no fact in contrast to what has been stated by PW-2 in the examination-in-chief has been brought out.
19. PW-3, Aswini Das has stated that initial transfer was made by an unregistered deed.
PW-4, Sachindra Das has corroborated the preliminary statement of the plaintiff-respondents. It is really surprising that DW-4 has simply stated that Kala Chand Singha and two others, the defendant No.1, 2 and 3 had proposed to sell 3.99 acre of the land, but finally he purchased a piece of the land measuring 3.74 acre from the plot No.5416. But nowhere there is any explanation how the record of rights in favour of Nagendra Kumar Das or his successors were created. But he has stated that there is no valid document of transfer in favour of Nagendra Kumar Das or Nira Bala Das inasmuch as first Nira Bala Das purchased the said land and later on she had transferred the land to Nagendra Kumar Das with possession. There is no explanation regarding the settlement record as referred before.
Page 17 of 25 RSA 16 of 2008
20. DW-1 has categorically stated that he purchased the land bona fide from the true owners and as such he cannot be made to suffer for the said transaction.
21. Mr. Bhowmik, learned senior counsel appearing for the defendant No.4-appellant has submitted that the first appellate court judgment in particular is grossly wrong inasmuch as the defendant No.4-appellant has purchased the part of the suit land when the defendants No.1, 2 and 3 being the legal heirs of Sarat Chandra Singha had executed the sale deed as stated in favour of the defendant No.4-appellant. The defendant No.4-appellant in his deposition for obvious reason did not give any detailed description how he had entered into the suit land or whether there was any resistance from any quarter. He has further submitted that the unregistered deed of agreement for sale [Exbt-1] cannot defeat the sale deed in favour of the defendant No.4-appellant by the defendants No.1, 2 and 3. Mr. Bhowmik, learned senior counsel has also stated that the said unregistered deed of agreement [Exbt.1] is not enforceable in terms of Section-10 of the Specific Relief Act.
22. Section-10 of the Specific Relief Act expounds that the specific performance of any contract may, in the discretion of the court, be enforced--
Page 18 of 25 RSA 16 of 2008
(a) when there exists no standard for ascertaining the actual damage caused by the non-performance of the act agreed to be done;
(b) when the act agreed to be done is such that compensation in money for its non-performance would not afford adequate relief. It has been explained in Section-10 that unless and until the contrary is proved, the court shall presume that the breach of a contract to transfer immovable property cannot be adequately relieved by compensation in money.
23. Mr. Bhowmik, learned senior counsel has submitted that since the deed of agreement [Exbt-1] for sale under question is not registered one it cannot be enforced. Moreover, the said agreement was not signed by the plaintiff-respondents No.1-5. The defendants No.1 and 2 did not deny their signature and thumb impression over the said document [Exbt.1]. Truly, the said document is only signed by the defendants No.1, 2 and
3. On inspection, it appears that one Balaram Singha, legal heir of original owner Sarat Chandra Singha, the defendant No.2, has categorically identified his signature over that agreement and the defendants No.1 and 2 had put their thumb impression over the said deed of agreement to sale [Exbt.1]. In the said agreement to sale it has been stated that the father of Kala Page 19 of 25 RSA 16 of 2008 Chand Singha and grandfather of Smt. Dipali Singha was possessing the said land and after his death the defendants No.1, 2 and 3 had become the owners of that land by inheritance. Since the plaintiffs wanted to purchase the suit land by removing the procedural defects, the said agreement to sale was executed by the defendants No.1 and 2 on settlement of the consideration money and the earnest money as stated above. Mr. Bhowmik, learned senior counsel has questioned the status of the said instrument. Whether it can be termed as the agreement within the meaning of Section-10 of the Specific Relief Act or not. According to him, it is not an agreement and as such, it cannot be enforced against the defendants No.1, 2 and 3.
24. In S.M. Goapl Chetty vs. Raman alias Natesan and Others reported in AIR 1998 Madras 169 though the Madras High Court held that where the purchaser has not signed the agreement for sale, there is no contract between the parties. If there is no contract at all, then the question of specific performance does not arise, inasmuch as Section 15 of the Specific Relief Act, 1963 provides that the contract can be enforced only by a party in the contract. But the supreme court has overruled that decision of S.M. Goapl Chetty (supra) in Aloka Bose vs. Parmatma Devi & Ors. reported in AIR 2009 SC 1527.
Page 20 of 25 RSA 16 of 2008
25. It has been observed in Aloka Bose (supra) that in India, an agreement of sale signed by the vendor alone and delivered to the purchaser, and accepted by the purchaser, has always been considered to be a valid contract. In the event of breach by the vendor, it can be specifically enforced by the purchaser. So far the question of registration of such agreement to sale is concerned, this court before embarking on the substantial questions of law, would observe that Section-17(1A) of the Registration Act, 1908 even after its amendment as carried out by the Act 48 of 2001 it does not impel for mandatory registration. Section 17(1A) provides that the documents containing contracts to transfer for consideration, any immovable property for the purpose of Section 53A of the Transfer of Property Act, 1882 (4 of 1882) shall be registered if they have been executed on or after the commencement of the Registration and Other Related laws (Amendment) Act, 2001 and if such documents are not registered on or after such commencement, then, they shall have no effect for the purposes of Section 53A. The said deed of agreement or contract to sale was executed on 04.10.2004, but there was no performance within the meaning of Section 53A of the Transfer of Property Act and as such the rigours of registration is not applicable in the present case.
Page 21 of 25 RSA 16 of 2008
26. Mr. Bhowmik, learned senior counsel has further submitted that when the sale deed dated 15.07.2005 has been admitted to have registered and the agreement has been denied to have executed by the defendants No.1, 2 and 3, no consequence against the defendants No.1, 2 and 3 can legally follow. In this regard, Mr. Bhowmik, learned senior counsel has referred a decision of the Calcutta High Court in Sukumar Bysack vs. Sushil Kanta Banerjee reported in AIR 1972 Cal 207, where the Calcutta High Court had occasion to observe that:
"Section 20 read with Section 22 of Specific Relief Act gives discretion to Court not to enforce specific performance in cases where bargain appears to be so hard as to be unconscionable, so that its actual performance would in the circumstances be inequitable."
27. This court has scrutinized the pleadings of the defendants No.1, 2 and 3 filed in the form of the written statement but nowhere the defendants No.1, 2 and 3 have raised the conscionablility of the rate. Moreover, both the courts below have observed that the agreement to sale dated 12.12.2003 entered between the defendants No.1, 2 and 3 and the defendant No.4-appellant was subsequently manufactured as the stamp purchased for this purpose was manipulated by way of blocking the dates. But in one of the stamps, the overse of the first page of the agreement it can be clearly seen that the Page 22 of 25 RSA 16 of 2008 said stamp was issued on 21.11.2005. The said finding has not been challenged. In absence of pleading in respect of conscionablility of the price, whether this court can frustrate the agreement of sale entered between the plaintiffs and the defendants No.1, 2 and 3 inasmuch as both the courts below have given an unambiguous finding of fact that the plaintiffs are in possession over the suit land for more than three decades.
28. Mr. H.K. Bhowmik, learned counsel appearing for the plaintiff-respondents has submitted that the entire transaction has been collusively carried out to frustrate the agreement to sale as entered between the plaintiffs and the defendants No.1, 2 and 3. Thus the concurrent finding of the courts below may not be interfered with. The defendants No.1, 2 and 3 in their written statement have made contradictory statements that a sum of Rs.70,000/- was the settled price when the agreement with the defendant No.4-appellant was entered, but when the less land measuring 3.74 acre, instead of 3.99 acre was purchased, the defendant No.4-appellant paid Rs.1,00,000/-, which had nothing to do with the said agreement. As such, the plaintiffs, according to this court, have probabilized that the transaction with the defendant No.4 is evidently collusive one. Even the record of right as created in the name of the defendant No.4-appellant cannot be relied for purpose of determining the issues for the same reason. As such, Page 23 of 25 RSA 16 of 2008 this court does not find any reason to interfere with the findings as returned by the first appellate court by its judgment of affirmance.
29. In the result, this appeal stands dismissed.
The impugned judgment and decree affirming the judgment and decree dated 23.03.2007 and 28.02.2007 delivered in Title Suit No.2 of 2005 by the Civil Judge, Senior Division, Udaipur stands further affirmed. The plaintiff- respondents are directed to pay the remainder of the consideration money amounting to Rs.28,500/- to the defendants No.1, 2 and 3 within 30(thirty) days from the date of decree and the receipt of the said deposit be submitted in the trial court just after the payment. The defendants No.1, 2 and 3 shall execute the sale deed in respect of the suit land within a month from the date of receipt of the remainder of the consideration money from the plaintiff-respondents. If the defendants No.1, 2 and 3 do not receive the said consideration money for purpose of execution of the sale deed in respect of the suit land, the plaintiff-respondents shall deposit the said amount in the trial court, which in turn, shall execute the sale deed in respect of the suit land in favour of the plaintiff- respondents for and on behalf of the defendants No.1, 2 and 3. If the defendants No.1, 2 and 3, after receipt of the remainder of the consideration money as quantified above, do not execute Page 24 of 25 RSA 16 of 2008 the sale deed in respect of the sale deed in respect of the suit land, the trial court shall execute the sale deed in the same manner.
On preparation of the decree, send down the LCRs. There shall be no order as to costs.
JUDGE Moumita Page 25 of 25 RSA 16 of 2008