Gauhati High Court
Rasamoy Namasudra vs Pranesh Chand on 20 May, 2014
Author: N. Chaudhury
Bench: N. Chaudhury
IN THE GAUHATI HIGH COURT
( THE HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND
ARUNACHAL PRADESH )
RSA No. 136 of 2002
Sri Rasamoy Namasudra,
Son of Late Ramen Ram Namasudra,
Resident of Village : Barkatpur,
P.O. & P.S. : Lalarehek,
District : Karimganj, Assam.
..... Appellant/ Plaintiff
-Versus-
Sri Pranesh Chanda,
Son of Late Pramesh Chanda,
Resident of Village : Sarisha,
P.O., P.S. & District : Karimganj, Assam.
..... Respondent/ Defendant
BEFORE HON'BLE MR. JUSTICE N. CHAUDHURY For the Appellant : Mr. F.U. Barbhuiya, Advocate.
For the Respondent Mr. N. Dhar, Advocate.
Date of hearing & judgment : 20.05.2014
JUDGMENT AND ORDER (Oral)
This Second Appeal at the instance of the plaintiff is directed against the appellate judgment and decree dated 07.03.2002 passed RSA No.136 of 2002 Page 1 of 12 by the learned Civil Judge (Senior Division), Karimganj, in Title Appeal No. 10 of 1996 allowing the appeal and thereby, dismissing the suit of the plaintiff for specific performance of a deed of reconveyance. The suit of the plaintiff was decreed by the learned Munsiff No.1, Karimganj, in Title Suit No. 163 of 1990 on 21.12.1995. As against the said decree the defendant preferred Title Appeal No. 10 of 1996 and the learned First Appellate Court reversed the finding of the learned trial court consequently dismissing the suit of the plaintiff.
2] The appellant, as plaintiff, instituted Title Suit No. 163 of 1990 in the Court of learned Munsiff No.1 at Karimganj stating that on 23.06.1982 he borrowed a sum of Rs.5,000/- from the sole defendant and thereupon executed a registered sale deed in favour of the defendant on the same date but possession of the suit land was not handed over to him. By executing a registered ekrarnama (agreement of reconveyance) on the same date the defendant undertook to execute a registered deed. A recital of the terms and conditions of this agreement shows that the defendant was entitled to enjoy the suit land for 3 years and thereafter within the next 5 years if the plaintiff returns the sum of Rs.5,000/- to the defendant then the defendant would execute a deed of reconveyance in favour of the plaintiff. According to the plaintiff on 02.04.1990 he repaid the money to the defendant in full but the defendant did not execute the deed of reconveyance and rather threatened that the plaintiff would be dispossessed from the suit land. Hence, the suit for specific performance.
3] By filing written statement the defendant denied the facts alleged in the plaint in regard to handing over the possession as well as repayment of money on 02.04.1990. The defendant, however, admitted that on 23.06.1982 the plaintiff had sold the suit land to the defendant on receipt of valuable consideration of Rs.5,000/- and RSA No.136 of 2002 Page 2 of 12 thereupon, possession of the suit land was handed over to the defendant. As per the terms of the contract the defendant was entitled to enjoy the usufruct of the suit land for the first 3 years. On the same date an ekrarnama was also executed and registered undertaking to reconvey the suit land provided the plaintiff would return the money within 5 years after expiry of first 3 years from the date of the execution of the ekrarnama. According to the defendant while the possession was handed over to him the plaintiff did not repay the money on 02.04.1990 or on any other date and as such the suit of the plaintiff for specific performance is liable to be dismissed.
4] On such rival contentions of the parties, the learned Munsiff framed as many as 6 issues and the same are quoted below:
"i) Whether there is cause of action for the suit?
ii) Whether the plaintiff has right, title, interest and possession over the suit land?
iii) Whether the suit is barred by limitation?
iv) Whether the plaintiff transferred the suit land by registered deed 7168 dated 23.06.1982 in favour of defendant?
v) Whether the plaintiff is entitled to a decree as prayed for?
vi) To what relief in the plaintiff entitled?"
The learned trial court also framed as many as 2 additional issues as follows:
i)Whether the plaintiff repaid Rs.5,000/- to the defendant?
ii) Whether the plaintiff is in possession of the suit land?
5] The plaintiff examined 4 witnesses including himself whereas, the defendant examined himself as sole witness. Upon perusal of the evidence led by the parties, the learned trial court held that there was cause of action for the suit, that the suit was not barred by the limitation and that the plaintiff transferred the suit land to the defendant by registered sale deed dated 23.06.1982. While deciding RSA No.136 of 2002 Page 3 of 12 the additional issue No.1 the learned trial court relying on the oral evidence of P.W.1 (Moinul Haque Choudhury), P.W.2 ( Sarada Biswas), P.W.3 (Madaris Ali) & P.W.4 (Abdul Rahman) held that the plaintiff really made payment of Rs.5,000/- to the defendant on 02.04.1990 in presence of the P.W.2, 3 & 4. Coming to the second additional issue, the learned trial court held that merely because a recital is there in the Exhibit A (sale deed) in regard to handing over of possession of the suit land to the defendant on 23.06.1982, the same would not establish the delivery of possession of the land unless evidence to that effect is led by the defendant who claimed to have obtained possession of the land. The learned court, therefore, held that delivery of possession in favour of the defendant was not proved and that the plaintiff was in possession of the suit land. Relying on the finding in regard to issue No.1 as to payment of money to the defendant on 02.04.1990, the learned trial court decided issues No.5 & 6 in favour of the plaintiff as to claim of specific performance of a contract and accordingly, the suit was decreed. The learned trial court passed judgment on 21.12.1995 and this judgment was brought under challenge in Title Appeal No.10 of 1996.
6] The learned First Appellate Court reversing the trial court judgment particularly issues No.1 & 2 held that the plaintiff could not prove repayment of money on 02.04.1990 and in arriving at such finding the learned first appellate court noticed that at the end of the plaint by adding foot note, the plaintiff himself stated that if his case of repayment of money to the defendant on 02.04.1990 is not proved, he is agreeable to make deposit of Rs.5,000/- in the Court, if so directed. Without considering the oral evidence of P.W. 2, 3 & 4, the learned First Appellate Court presumed the claim of the plaintiff as to repayment of money to be incorrect on such recital in the plaint. The learned First Appellate Court, accordingly, held that the stipulated period of 8 years for reconveyance being over the plaintiff was not entitled to any decree of specific performance. Accordingly, RSA No.136 of 2002 Page 4 of 12 the suit of the plaintiff was dismissed and the judgment passed by the learned trial court in Title Suit No. 163 of 1990 was set aside. It is this judgment which has been brought under challenge in this Second Appeal.
7] This Court while admitting the Second Appeal on 17.09.2002 framed following 3 substantial questions of law:
"1. Whether the First Appellate Court had followed the provision of law laid down under Order XLI Rule 31 of the Code of Civil Procedure?
2. Whether the learned First Appellate Court appreciated the evidence on record pertaining to the repayment of the agreed money by the appellant-plaintiff to the respondent-defendant as well as the document marked Exhibit-1 Ekrarnama/ Kabala and Exhibit-B plaint while passing the impugned judgment or not?
3. Whether the First Appellate Court mis-appreciated the evidence of law laid down under explanation No.1 of Section 10 of the Specific Relief Act while passing the impugned judgment and decree or not?"
8] I have heard Mr. F.U. Barbhuiya, learned counsel for the appellant as well as Mr. N. Dhar, learned counsel for the respondent.
9] At the threshold Mr. N. Dhar, learned counsel for the respondent raised objection under Section 100(5) of the Code of Civil Procedure that the substantial questions No.2 & 3 referred to above are not at all the substantial questions of law and that they did not arise from the facts of the case. According to Mr. Dhar both substantial questions of law No. 2 & 3 are based on appreciation of evidence as to whether there was repayment of money. According to the learned counsel, apparently both the substantial questions No. 2 & 3 are in regard to appreciation or misappreciation of evidence and as such they are more in the nature of fact finding then the questions RSA No.136 of 2002 Page 5 of 12 of law. Coming to the first substantial question of law, Mr. N. Dhar, learned counsel for the respondent submits that although under Order XLI Rule 31 of the Code of Civil Procedure there is requirement for framing point for determination and its reason for decision but yet if the learned Appellate Court substantially complied with the provision as to framing of point for determination then even if the appellate judgment is based on issue wise discussion the same would not vitiate the appellate judgment. According to the learned counsel the provision of Order XLI Rule 31 of the Code of Civil Procedure is merely procedural in nature and this cannot affect the jurisdiction of the learned trial court. Relying on the judgment of K Ibohal Singh vs. Ch. Iboyaima Singh and Others reported in (1993) 1 GLR 325, Mr. N. Dhar submits that substantial compliance of Order XLI Rule 31 of the Code of Civil Procedure is sufficient and as such even if there is non-compliance of said provision, the same cannot give rise to any substantial question of law under facts and circumstances of the present case.
10] Mr. F.U. Borbhuiya, learned counsel for the appellant placed reliance the case of Naren & Other vs. Subhash Chandra Gogoi reported in (2013) 5 GLR. In the said judgment this Court held that the learned first appellate court is duty bound to peruse the materials and records and thereafter arrive at finding of facts inasmuch as the learned First Appellate Court is the last Court in the facts of law.
11] Having gone through the impugned judgment passed by the learned First Appellate Court, I feel that provision of Order XLI Rule 31 is substantially complied in this case and as such the first substantial question of law does not arise under the facts of this case. At this stage Mr. F.U. Borbhuiya, learned counsel for the appellant submits that by order dated 17.09.2002 this Court had given liberty to the appellant to raise any other substantial question of law at the time of hearing of the appeal. Placing reliance on the proviso to RSA No.136 of 2002 Page 6 of 12 Section 100 of the Code of Civil Procedure the learned counsel argues that nothing in Sub Section (5) of Section 100 of the Code of Civil Procedure takes away or abridges the power of the Court to hear, for reasons to be recorded, the appeal on any other substantial question of law not formulated under the Section if the Court is satisfied that the appeal involves some other substantial question of law. Considering the arguments of the learned counsel for the parties, I am satisfied that while substantial questions No.2 & 3 referred to above really do not arise from facts of this case, the Second Appeal involves further substantial questions of law and accordingly, the following two additional substantial questions of law are framed:
i) Whether the finding of the learned First Appellate Court was to non refund of Rs5,000/- to the defendant on 02.04.1990 is perverse?
ii) Whether on the recital in the plaint expressing readiness and willingness to make payment of Rs.5,000/- to Court within the stipulated period of 8 years from the date all of the Execution of the agreement for reconveyance would entitled the plaintiff to the benefit of specific performance?.
12] Both the learned counsel have placed arguments on these additional substantial questions of law. Mr. F.U. Borbhuiya, learned counsel for the appellant, submits that the learned trial court while deciding additional issue No.1, considered the oral evidence of P.W. 2, 3 & 4 who unequivocally deposed that the plaintiff had made payment to the defendant on 02.04.1990 in their presence and they have witnessed the repayment. This finding of the learned trial court did not receive any consideration whatsoever of the learned first appellate court. There is no mention of the depositions of P.W. 2, 3 & 4 in the impugned Lower Appellate judgment. Under such circumstances, the First Appellate judgment is vitiated. Relying on the judgment of Santosh Hazare vs. Purushottam Tiwary reported in RSA No.136 of 2002 Page 7 of 12 (2001) 3 SCC 179, the learned counsel Mr. F.U. Borbhuiya submits that the learned First Appellate Court is not only the last Court of facts but it is also the last Court of law. Under such circumstances, the First Appellate Court was duty bound to consider the evidence of both sides in its entirety and thereafter to arrive at a finding in regard to additional issues. While the judgment of the learned trial court is based on oral evidence on record, the learned first appellate court did not even make any mention of the evidence led by P.W.2, 3 & 4.
13] I have perused the learned trial court judgment. The learned Munsiff has considered the deposition of P.W. 2, 3 & 4 who in course of cross-examination claimed to have been present when the transaction of money had taken place. Once such materials were on record, the learned First Appellate Court was duty bound at least to consider the same and thereafter to arrive at the finding in regard o additional issue No.1. Moreover, the learned First Appellate Court is also duty bound to consider not only the decision arrived at by the learned trial court but also the reason basing on which the impugned trial court judgment is passed. Upon consideration of those reasons recorded by trial court, the Appellate Court would have been at liberty either to approve the same or to discard it. But in the instant case, the learned First Appellate Court did not even consider the evidence led by P.W. 2, 3 & 4 which was relied on by the learned Munsiff. For non-consideration of the reasons basing on which the impugned trial court judgment was passed, the First Appellate Court judgment has become vitiated. The decision as to first substantial question of law that the plaintiff did not make payment of Rs.5,000/- to the defendant on 02.04.1990 being in total non-consideration of the relevant oral evidence it cannot be sustained. Under Section 60 of the Indian Evidence Act, oral evidence can be led to prove those facts which can be seen or heard by someone who is supposed to hear or see the same. The oral evidence is to be led by such witness who RSA No.136 of 2002 Page 8 of 12 would depose that he had seen the incident to have occurred. Similarly, the oral evidence may be directed to depose that someone had heard such incident which is audible. In the case in hand repayment of money was a matter to be seen by the witnesses. The witnesses have come to the witness box and deposed that they had seen transaction of money and under such circumstances this evidence of P.W. 2, 3 & 4 in regard to repayment of money was valid evidence in term of Section 60 of India Evidence Act, 1872. This admissible piece of evidence, therefore, ought to have been considered by the learned First Appellate Court.
14] Besides, whether the plaintiff had made the payment or not on 02.04.1990 may not be that important if the plaintiff tendered the money within the stipulated period of 5 years after expiry of 3 years from the date of execution of registered deed of reconveyance. Now, the question arises as to whether the time is essence of the contract in an agreement of sale of immovable property. Constitution Bench of the Hon'ble Supreme Court in the case of Chand Rani vs. Kamal Rani (AIR 1993 SC 1742) held that in the sale of immovable property time is not the essence of the contract. This principle is not in any way different from that obtainable in England. Under law of equity which governs the rights of the parties in the case of specific performance of contract to sell real estate, law looks not at the letter, but at the substance of the agreement. In earlier judgment of the Hon'ble Supreme Court in the case of Govind Prasad Chaturvedi vs. Hari Dutt Sastri & Another reported in 1977 (2) SCR 877, the Hon'ble Supreme Court held that fixation of the period within which the contract has to be performed does not require the stipulation as to time being essence of contract. When a contract relates to sale of immovable property it will normally be presumed that the time is not essence of the contract. However, the intention to treat time as the essence of contract may be evidenced by circumstances which are sufficiently strong to displace the normal presumption that in a RSA No.136 of 2002 Page 9 of 12 contract of sale of land stipulation as to time is not essence of the contract. The Hon'ble Supreme Court in the case of Balasaheb Dewandeo Naik vs. Appasaheb Dattatreya Pawar (AIR 2008 SC 1205) held that law on the agreement for conveyance of immovable property is settled. Once again Hon'ble Supreme Court held that the time is presumed not to be essence of the contract relating to immovable property but it is of essence in the contract of refund or renewal of loss. Fixing of time for performance of a contract does not make a stipulation that the time is essence of the contract. The law laid down by the Hon'ble Supreme Court in the aforesaid cases show that although there is a presumption as time not being essence of the contract involving sale of immovable property but it has to be decided on the basis of the recital made in the agreement. In the case in hand the agreement for reconveyance was exhibited as Exhibit 1. The specific recital was made in the Exhibit No.1, that the defendant would be entitled to enjoy the concerned land for the first 3 years and thereafter, within next 5 years if the plaintiff or his legal heirs return Rs.5,000/- to the defendant or his legal heirs as the case may be, then the defendants would be duty bound to execute a deed of reconveyance. However, if the plaintiff does not tender the amount within the stipulated period or does not deposit the amount before the Court within that period, then the plaintiff would be estopped from making any further claim to the land. Evidently there is a default clause in the Exhibit 1 which shows that in the event of failure on the part of the plaintiff to tender the amount within the stipulated period, the claim of title of the plaintiff to the land would be foreclosed. Since there is a default clause while prescribing a time period in the agreement and it is indicated in the case of Balasaheb (Supra) that unlike an agreement for sale, time may be essence in the contract of reconveyance, this Court feels that in view of the specific recital in Exhibit 1 time was really essence of the contract under the facts and circumstances of the case.
RSA No.136 of 2002 Page 10 of 1215] The next question which falls for consideration of this Court is that when the plaintiff claims that he did make repayment on 02.04.1990 in presence of P.W. 2, 3 & 4 but at the foot of the plaint he has also offered to deposit the amount in the Court if he fails to prove payment. Whether this would amount to part performance by the plaintiff and would it establish readiness and willingness. The First Appellate Court found that his claim of making repayment on 02.04.1990 was not established. The plaint was instituted on 29.05.1990 which was well within the period of 5 years after expiry of 3 years from the date of execution of Ekrarnama (Exhibit1). As per the specific term of the agreement, it is required that the plaintiff is to tender the amount within a period of 5 years after expiry of 3 years from the date of the agreement but it does not say in case of failure to make the payment the plaintiff will be estopped from staking claim to the land. The plaintiff having tendered the amount at least on 29.05.1990 at the time of presentation of plaint by a specific recital at the foot thereof, the plaintiffs appears to have discharged his part of the contract and in that view of the matter even if the additional issue No.1 was decided against the plaintiff by the First Appellate Court, the First Appellate Court fell into error by not upholding the judgment of the learned trial court for the specific performance of contract in view of recital made at the foot of the plaint. Time was essence of the contract in the case of instant transaction is true, but it is also equally true that as per the term of the contract the plaintiff had tendered the amount on 23.05.1990. The admitted condition of the agreement is that the plaintiff is to either tender the amount or deposit the amount in Court and in that view of the matter, the additional substantial question No.2 has to be decided in favour of the plaintiff and it is, accordingly, decided in favour of the plaintiff. The plaintiff is held to be entitled to get the benefit of specific performance of the contract of reconveyance. The two additional substantial questions of law having been decided in favour of the plaintiff, this second appeal is RSA No.136 of 2002 Page 11 of 12 liable to be allowed. It is accordingly allowed. The judgment passed by the learned First Appellate Court is hereby set aside and the decree passed by the learned trial court is restored.
16] No order as to cost.
JUDGE
sumita
RSA No.136 of 2002 Page 12 of 12