Orissa High Court
Suprava Chandra & Others vs Urmila Mohanty & Others on 19 September, 2019
Equivalent citations: AIRONLINE 2019 ORI 217
Author: Biswanath Rath
Bench: Biswanath Rath
AFR
ORISSA HIGH COURT, CUTTACK.
F.A. No.249 of 1991
An application under Section 96 of
the Code of Civil Procedure, 1908.
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Suprava Chandra & others ... Appellants
Versus
Urmila Mohanty & others ... Respondents
For Appellants : M/s. Dr. A.K. Mohapatra,
(Senior Advocate)
K.N. Parida,
R.K. Patnaik, S. Sahoo,
M. Mishra
For respondents 1(a) to 1(f): M/s. S.P. Misra,
(Senior Advocate)
A.K. Mishra,
For respondents 2 & 3 : M/s. P. Palit,
R.K. Sahu
WITH
F.A. No.268 of 1991
An application under Section 96 of
the Code of Civil Procedure, 1908.
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Padmavati Bewa & others ... Appellants
Versus
Urmila Mohanty & others ... Respondent
For Appellants : M/s. P. Palit,
R.K. Sahu
For respondents 1(a) to 1(f): M/s. S.P. Misra,
(Senior Advocate)
A.K. Mishra,
For respondents 2(a) to 2(b): M/s. Dr. A.K. Mohapatra,
(Senior Advocate)
K.N. Parida,
R.K. Sahoo,
M. Mishra
----------
2
PRESENT :
THE HONOURABLE MR. JUSTICE BISWANATH RATH
---------------------------------------------------------------------------------------------------- Date of hearing ::26.08.2019 :::: Date of Judgment::19.09.2019
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Biswanath Rath, J. First Appeal bearing No.249 of 1991 has been filed by the defendant nos.1(a) to (c) the legal heirs of the original defendant no.1 in the Court below involving the judgment & decree dated 3.07.1991 involving T.S. No.7 of 1985 whereas First Appeal bearing No.268 of 1991 is at the instance of the defendant nos.2 & 3 respectively in the Court below. Respondents in both the cases as respondent nos.1(a) to 1(f) are the legal heirs of the original plaintiff in the Court below whereas the respondent nos.2 & 3 in the F.A. No.249 of 1991 are proforma respondents but however not only contested the suit by filing an independent written statement but also filed a counter claim seeking appropriate relief against the plaintiff. Similarly in F.A. No.268 of 1991 the respondent nos.2(a) 2(b) 2(c) are also the proforma respondents, amongst which the respondent no.2(c) involving F.A. No.268 of 1991 however has been deleted vide order no.10 dated 6.05.1993 in F.A. No.268 of 1991. The First Appeal involves a successful suit alongwith rejection of the counter claim.
2. Short background involving the plaintiff's case is that the original plaintiff Nisamani Mohanty was working as Tahasildar under the original defendant no.1 since 1940. After vesting of the Estate "Chandra Family" still retained the Khasmal Pattadhari lands and also had several rent suits, for which they retained the plaintiff to serve under them and allotted him a house which is a Pucca one situated over the plot no.2825 for his residential purpose but free of cost. Since 1956 the plaintiff with his family member were in occupation thereof till filing of the suit. Adjoining the plot no.2825 is situated plot no.2823 towards the east consisting of 3 thatched rooms and open courtyard facing the main Purighat road and having access to plot no.2825. While the matter stood thus the plaintiff brought his nephew and other family members to reside with him as the nephew was to continue his study along with his sons. As a consequence the plaintiff sought for permission from the "Chandra Family" to take the said thatched rooms on rent. In the result, the then Karta of the family Ganesh Chandra Chandra rented out the said house to the plaintiff in the name of his nephew Raikishore Mohanty at the rate of Rs.3/- per month since 1957 consisting of three thatched rooms alongwith the open courtyard. Over the plot no.2823 two other thatched rooms were there adjoining to the south of the rooms let out to the plaintiff and in those two rooms defendant no.2 Padmavati and her husband who was then alive were residing on rent as tenant under the "Chandra Family". Subsequently Padmavati's husband died and defendant no.2 her only son also expired and she brought her sister's son, defendant no.3 and kept him as her adopted son. There was absolutely good relationship between the plaintiff and the defendant nos.2 & 3 and as a matter of fact the plaintiff was patronizing the defendant no.2 and up till filing of the suit had permitted her to take electric connection from his house and even has allowed her to take water pipe connection from his houses. In the Chandra Family there was an amicable partition in the year 1963 and in the said partition, plot no.2823 and 2824 with structures along with other property fell to the share of the defendant no.1 and plot no.2825 fell to the share of Bibhuti Bhusan Chandra and he also allowed the plaintiff to continue as before without payment as the plaintiff was still serving the Chandra Family and was looking after their litigation and also involved in the realization rent from Darpattadars. So far as the plot no.2823 is concerned, which is the subject matter of the dispute and is described in detail in schedule 'A' of the plaint. The said plot along with the thatched and open 4 courtyard adjoining to plot no.2823 along with other property fell to the share of defendant no.1, who was a practising lawyer and was staying at Puri. After the said partition, defendant no.1 Gobardhan Chandra Chandra directed the plaintiff to pay his rent along with the rent collected from Padmavati to his brother's son Binay Bhusan Chandra, who was then staying at Cuttack, he used to remit the same to defendant no.1 staying at Puri. When Binay Bhusan Chandra, who was working in a Bank, was transferred from Cuttack and remained unavailable at Cuttack, on the direction of the defendant no.1 the rent used to be directly sent by the plaintiff to defendant no.1 including the rent so collected from defendant no.2. Since 1979, rent was increased to Rs.10/- per month for the portions occupied by the plaintiff and Padmavati's rent was also increased to Rs.10/- per month. When the plaintiff thought it proper that they should sent their rent separately Rs.10/- each by money order to the landlord defendant no.1 and this state of affairs was claimed to be continuing till filing of the suit. While the matter stood thus, the defendant no.1 expressed his desire to sell out the entire plot no.2823 alongwith another adjoining plot to the south of the said plot no.2824, which also got thatched house and was let out since long to one Balaram Mishra on rent and it was decided by defendant no.1 that he will not sell the property to outsiders but would sell each portion to the tenants who are in actual physical possession thereof. The plaintiff, who had discharged his duties since 1940 sincerely and honestly to the satisfaction of the Chandra Family, was hopeful that he would be permitted to purchase the entire plot no.2823 as Padmavati and Balram Mishra had decided to share between them the plot no.2824 and would leave the plot no.2823 measuring an area Ac.0.020 decimals to the plaintiff who can acquire the same on some concession rate. Accordingly, the plaintiff alongwith one Chaitan Chandra Das, a scribe and Advocate's clerk of Cuttack and 5 Sri Jadunath Singh, Advocate Cuttack who was the Secretary of the Choudhury Bazar and a prominent person of the locality and whose residential house is also, nearby all went to Puri to negotiate the matter with defendant no.1 on 3.06.1984. At Puri in the house of defendant no.1 Shri Jadunath Singh, Advocate expressed his desire that if it is possible he would purchase out the entire plot no.2823 and 2824 to which the defendant no.1 did not agree and on that date in presence of Chaitan Chandra Das and Jadunath Singh, Advocate it was agreed that the entire plot no.2823 with thatched house and other structure would be sold to the plaintiff at a consideration of Rs.25,000/- to which the plaintiff and defendant no.1 agreed. The plaintiff on the very day wanted to get a written document from defendant no.1 evidencing the contract, but the defendant no.1 stated that the agreement has become final as he has given his word and agreed upon the consideration of Rs.25,000/-. The defendant no.1 further expressed that the plaintiff being a trusted employee of their family since 1940 he should not think that defendant no.1 would back out from the transaction. Defendant no.1, in the process directed Chaitan Chandra Das to purchase stamps for the purpose of sell deed on his behalf at Cuttack and to get a draft agreement prepared so that when he would be next visiting Cuttack, he would receive advance towards the consideration fixed Rs.10,000/- and then only he would sign the agreement in presence of the witnesses on approving the draft. The plaintiff as such agreed to the terms of defendant no.1 and the matter under negotiation was finalized. Plaintiff, Chaitan Ch. Das and Jadunath Singh returned to Cuttack with direction from defendant no.1 to Sri Chaitan Ch. Das to purchase the agreement stamp on his behalf and to get a draft ready and defendant no.1 also stated that he will write a letter intimating the date of his arrival at Cuttack, so that the plaintiff would be ready with the cash of Rs.10,000/- and the draft would also be kept ready by that time 6 to be approved and engrossed upon the agreement paper. While the matter stood thus the defendant no.1 wrote a letter on 19.07.1984 to the plaintiff in a post card intimating him that he would be arriving at Cuttack on 25.07.1994. Upon receipt of the said letter the plaintiff got Rs.10,000/- in cash in hand and Sri Chaitan Ch. Das also got the draft ready being approved by the plaintiff but waiting for approval of the defendant no.1. Upon receipt of the cash in advance and as a consequence of engrossing the Stamp Paper on 25.07.1984 the defendant arrived at Cuttack and stayed at "Chandra House" and there in presence of the plaintiff, Sri Chaitan Ch. Das and Sri Jadunath Singh, Advocate and his cousin Binaya Bhusan Chandra and another cousin AmulyaBhusan Chandra expressed that during the period between 8.06.1984 and 25.07.1984 the defendant nos.2 & 3 alongwith Balaram Mishra had gone to Puri and defendant nos.2 and 3 have given an offer of Rs.35,000/- for plot no.2823 with structure and Balaram Mishra has given an offer of Rs.40,000/- for plot no.2824 with structure and he has also contracted to sell out at a higher rate and expressed that he has given something in writing to the said Balaram Mishra and defendant nos.2 & 3. To this statement of the defendant no.1 the plaintiff who is an employee under defendant no.1 expressed his regret and felt very sentimental about it, whereafter defendant no.1 directed Sri Jadunath Singh, Advocate, who is the Secretary of Chaudhury Bazar to decide the matter in a way that the plaintiff would take the portion over which he is a tenant and defendant nos.2 & 3 would take the portion in respect of which she is a tenant, to which the plaintiff was of course not agreeable, plaintiff rather insisted upon signing the agreement, the draft of which had been seen approved by the plaintiff. Jadunath Singh, Advocate then asked the plaintiff that he would decide the matter and as such the agreement was not signed nor engrossed but the draft was kept ready and the plaintiff insisted that he as per 7 the original contract between him and the defendant no.1 get the entire plot no.2823 area Ac.0.020 decimal with thatched house for Rs.25,000/- on hearing, this the defendant no.1 left the entire matter to be decided by Sri Jadunath Singh, Advocate and left for Puri. Thereafter Sri Jadunath Singh in spite of several requests by the plaintiff could not decide the matter nor the defendant no.1 was agreeable to sell out the entire property to the plaintiff and it is at this point of time, the plaintiff could come to learn that defendant nos.2 & 3 and Balaram Mishra, who have gone several times to Puri and have induced defendant no.1 to obtain Ceiling Authority and over necessary stamp papers for the purpose of transfer has been purchased in favour of the defendant nos.2 & 3 and Balaram Mishra and defendant no.1 only to execute and register sell deed in their favour. Plaintiff further alleged that ceiling permission as well as permission from the Orissa Development Authority have all been illegally obtained even suppressing that there is no legal partition of the property and the defendant no.1 holds property more than the ceiling limit. The plaintiff thus was compelled to issue Lawyer's notice with draft sell deed to defendant no.1 at Puri calling upon defendant no.1 to execute and register the necessary sell deed. It is alleged that in spite of receipt of the legal notice along with draft sell deed defendant no.1 neither gave his reply nor expressed his willingness to receive the entire consideration amount and to execute and register the required sell deed. It is in the above circumstance and for the developments taken place in between establishing a case of requirement of a direction for specific performance of contract involving the defendant no.1 on the premises of a concluded contract, the plaintiff filed the suit with the following prayer:
"a) That let it be declared that there is a concluded contract between the plaintiff and defendant no.1 is respect of the suit property mentioned in schedule 'A' of this plaint for sell of its same by defendant no.1 to the plaintiff at a consideration of Rs.25,000/- the stamp paper and registration charge to be borne by the plaintiff.
8b) That let a decree for specific performance of the contract be passed in favour of the plaintiff and against defendant no.1 directing defendant no.1 to receive the consideration of Rs.25,000/- and to execute and register the required sell deed in favour of the plaintiff at the cost of the plaintiff within a specified time and also defendant no.1 be directed to obtain necessary permission from the Ceiling Authority and permission from the Cuttack Development Authority, failing which the plaintiff be directed to deposit the entire amount of Rs.25,000/- in court and the court be pleased to execute and register the sell deed in favour of the plaintiff in respect of the 'A' schedule property and the stamp and registration cost be borne by the plaintiff.
c) That if it is found that the defendant no.1 in derogation of the contract with the plaintiff has sold the property to defendant nos.2 7 3 then they being well aware of the contract between the plaintiff and defendant no.1 dated 3.6.1984 as several times they has been requested by Sri Jadunath Singh, Advocate in presence of the plaintiff to give up their claim in view of plaintiff's prior contract or to get the property in equal share in the name of the plaintiff and defendant no.2 and 3, they be also directed to execute the said sell deed in favour of the plaintiff alongwith defendant no.1.
d) That defendant no.1 be permanently restrained not to transfer the suit 'A' schedule property to any other person except the plaintiff.
e) That any other reliefs to which the plaintiff is entitled to be also decreed in his favour and against the defendants.
f) That the cost of the suit be also decreed and the other does to be incurred in getting the document registered in favour of the plaintiff be decreed in favour of the plaintiff and against the defendants or such of the defendants as the court deem fit and proper."
3. The defendant no.1 contesting the suit filed written statement while denying each of the plaint averments claimed that the suit is not maintainable. Defendant no.1 also claimed that the plaint is based on false and frivolous statements and the suit is also barred by limitation and further on the premises that the plaintiff having no cause of action and locus standi to initiate such suit. The defendant contended that relief claimed by the plaintiff does not stand to scrutiny. Defendant no.1 also contested the suit on the premises of the suit not being maintainable on the ground of being filed in absence of proper and necessary party. While admitting the description of the property in paragraph no.1 the defendant no.1 claimed that the properties involved herein were partitioned amicably since 1.1.1963 thus while denying the rest part of the 9 averments made in paragraph no.1 and attending to the statement made in paragraph no.2 and denying the same the defendant no.1 disputed the fact that the plaintiff was working as a Tahasildar at the relevant point of time. The defendant no.1 on the other hand claimed that for the partition of the property already taking effect since 1.1.1963 the plaintiff seized to be an employee of the "Chandra Family". It is also claimed by the defendant no.1 that there never existed any joint family property in order to employing the plaintiff any further. The allegation that the plaintiff was collecting rent along with other Tahasildar since 1940 and he has been serving the Chandra Family also claimed to be false and concocted. Now coming to the statement made in paragraph no.3 to the effect that after vesting of the estate the "Chandra Family"
retained the Khasmal Pattadhari lands under the Dar-pattadars and had filed several rent suits and for that they retained the plaintiff to serve them and allotted pucca house situated over plot no.2823 for his residential purpose, free of cost since 1956, all these also claimed to be false and fabricated. Defendant no.1 also denied the claims of the plaintiff in paragraph no.4 saying that there was in fact no access from the plot no.2825 to plot no.2823. Defendant no.1 rather claimed that there already existed a compound wall in between being constructed by the predecessor in interest of the defendant and they had constructed a passage under the said compound wall for the egress and ingress of his sweepers to clean service latrine and opening passage was only meant for the sweeper and was not accessible for any public or any person. Similarly attending to the averments made in paragraph no.5 and denying the whole the defendant no.1 denied the claim of the plaintiff that he took three thatched rooms along with open courtyard since 1957 from Shri Ganesh Chandra Chandra the then Karta of the Chandra Family. It is claimed that in fact only one room was let out to Shri Rajkishore Mohnty who soon after the 10 partition suo motu vacated the said one room which he was occupying and the whole portion of the plot No.2823 came to be occupied by the defendant no.2 and her son. In all, the defendant no.2 and her son was occupying the rooms and open courtyard since that time. In responding to the averments made in paragraph no.6 while admitting some of the statement made by the plaintiff therein the defendant claimed that after Sri Rajkishore Mohanty left the said rooms it was let out to defendant no.2 and her son. Accordingly, the defendant nos.2 and her son was in occupation of the three rooms with the open courtyard till it was sold to the defendant no.3 as per registered sell deed no.209 dated 15.1.1985. The defendant no.1 also refuted the claim of the plaintiff made in paragraph no.7 and submitted that all the three rooms were in possession of the defendant no.2 till defendant no.1 sold the suit premises to defendant no.3. Responding to the statements made in paragraph nos.8 & 9 the defendant no.1 while disputing the claim of the plaintiff with regard to relationship between the plaintiff and defendant nos.2 & 3 defendant no.1 however submitted that it is a fact that there was an amicable and complete partition of the Chandra House and other properties belonging to the Chandra Family. Defendant no.1 also admitted that on partition of plot no.2123 and 2124 and the part of the plot no.2811 measuring an area of Ac.0.020 decimal, Ac.0.021 decimal and Ac.0.055 decimal respectively with structure standing thereon fell to the share of late Rai Bahadur Nidheswar Chandra Chandra, father of the defendant no.1. The plot no.2825 fell to the share of Smt. Radharani Chandra, wife of late Sidheswar Chandra Chandra and her sons after partition of the Chandra Family. Defendant no.1 claimed that partition-cum-family settlement was drawn up on 1.1.1963 and has been executed by the parties and through their authorized agent. It is claimed that the said partition was fully acted upon with opening of separate Sadar Doors having ownership with each groups. On 11 the pretext that the defendants 2 & 3 were in possession of the disputed property and residing in three rooms and open courtyard attached therewith defendant no.1 expressed to sell the same to defendant nos.2 & 3 for a consideration of Rs.30,000/- on 25.5.1984 and an agreement for sell and purchase was also accordingly executed by the defendant no.1 on that day after receiving a sum of Rs.5,000/- as advance. The defendant no.1 further claimed that after obtaining necessary permission the defendant no.1 sold the suit property by way of registered sell deed on 15.1.1985 to the defendant no.3 and thereafter the defendant nos.2 & 3 became the absolute owner in possession thereof. After coming to know the sell in favour of the defendant no.3 the defendant no.1 claimed that the plaintiff deliberately filed suit on falsehood with intention to grab the suit property making therein false and fabricated stories and thus, the defendant no.1 claimed for dismissal of the suit.
4. Similarly defendant nos.2 & 3 contested the suit by filing a written statement wherein they have pleaded that the suit is not maintainable in law and plaintiff has no locus standi to file the suit. The defendant no.3 was a bona fide purchaser for value without notice. Defendant nos.2 & 3 also pleaded that prior to sell of the suit land to the defendant no.3 there was no contract between the defendant no.1 and the plaintiff involving the sell and purchase of the suit land. The defendant nos.2 & 3 also pleaded that the defendant no.3 was in possession of the suit property since the time of his father and after purchase as per the sell deed dated 15.1.1985, he became the full owner and is in possession of the land thereby became the exclusive owner of the suit property. The sell matter was settled at Cuttack in the third week of April, 1984 in presence of plaintiff long prior to 3.06.1984. Thereafter an agreement was entered into for sell of the suit land amongst 12 defendant no.1 and defendant no.3 on 25.05.1984 at Puri, where the Defendant no.1 received a sum of Rs.5,000/- as advance from defendant no.3. The defendant nos.2 & 3 also pleaded that before execution of the sell deed on 15.01.1985 the plaintiff also made request to defendant nos.2 & 3 to sell a portion of the suit premises alongwith adjoining premises occupied by him. Defendant nos.2 & 3 thus claimed that the plaintiff is in illegal possession of the room involving the disputed land. Thus the defendant nos.2 & 3 also raised a counter claim for eviction of the plaintiff from the scheduled 'A' land on the premises of plaintiff's wrongful possession of the same.
5. Based on the pleadings of the parties the trial court framed the followings issues:
1. Is the suit as laid maintainable?
2. Is there any cause of action to institute the suit?
3. Is the plaintiff stopped by estoppels from instituting the suit?
4. Is the defendant no.3 a bona fide purchaser for value without notice?
5. Is the suit barred by law of limitation?
6. Is the suit hit by the principle of resjudicata?
7. Is the suit barred under the provisions of the Specific Relief Act?
8. Is the suit property valued and court fee paid thereof sufficient?
9. Is the plaintiff entitled to relief under the Specific Performance of contract?
10. Is the plaintiff liable to be evicted from the portion of the suit premises and are defendants entitled to the reliefs as claimed in their counter claim?
11. To what relief, or reliefs the plaintiff is entitled?"
6. During pendency of the suit both the plaintiff as well as the defendant no.1 died and both of them are thus represented by their respective legal heirs. Plaintiff examined four witnesses whereas 13 defendant nos.1(a) to 1(c) examined one witness whereas the defendant nos.2 &3 also examined five witnesses. Similarly plaintiffs exhibited exhibit 1 to 21 whereas defendant no.1(a) to 1(c) exhibited Ext.X and Ext.A to Ext.E/1 at the same time defendant no.2 and defendant no.3 exhibited Ext.A to Ext.-Q1/c.
7. Based on oral and documentary evidence and submission of the respective parties learned trial court taking decision on each of the issues framed therein ultimately decreed the suit bearing number T.A. No.7/85 and rejected the counter claim impugned herein, resulting filing of appeals indicated hereinabove.
8. Dr. A.K. Mohapatra, learned Senior Advocate for the appellant involving the First Appeal No.249 of 1991 taking this Court to the factual scenario involved herein, the pleadings of the parties in the court below and the response of the defendant no.1 in the court below coupled with the response of the defendant nos.2 & 3 also in the court below, further taking this Court to the evidence laid by the respective parties but however in absence of defendant no.1 who had died prior to commencement of evidence and the grounds raised in the appeal memorandum contended that there was absolutely no contract between the plaintiff and the defendant no.1 in the matter of sell of the disputed site. Documents filed on behalf of the plaintiff in the court below are all concocted and prepared to mislead the court. Dr. Mohapatra, learned Senior Advocate further contended, even assuming that there was some negotiation between the plaintiff and the defendant no.1 but for no advancement of the consideration money there was no concluded contract involved therein requiring entertaining a suit to at least decide on the question of specific performance of contract. Taking this Court to the provisions at Section 6, 7, 8, 10, 25 & 56 of the Indian Contract Act, Dr. Mohapatra, learned Senior Advocate 14 contended that any agreement without consideration and acceptance doesnot come within the definition of the contract. Similarly taking this Court to the provision at Section 53(A) of the Transfer of Property Act, Dr. Mohapatra, learned Senior Advocate contended that there must be existence of not only writing but also signing document to make such claim. Similarly taking this Court to the provision at Section 10, 14(b), (d), 18 & 20 of the Specific Relief Act, Dr. Mohapatra contended that there is no concluded oral contract and the case involves totally imaginary and baseless story requiring no exercise of equitable consideration involving the dispute involved herein. Taking this Court to the provision at Section 92 of the Act Dr. Mohapatra contended that the provision at Section 93 excludes oral agreement. Dr. Mohapatra, took this Court to the decisions vide AIR 1980 (SC) 1109, AIR 1970 (SC) 504, AIR 1968 (SC) 1028, AIR 1954 (SC) 44, 2018 (II)CLR (SC)768 and it is for the disclosures from the pleading, the evidence, the provision taken note hereinabove, the decisions referred to hereinabove claiming to be supporting to the case of the appellant. Dr. Mohapatra, learned Senior Advocate therefore prayed this Court for allowing the appeal in reversal of the judgment and decree of the trial court.
9. Answering the questions in connection with the F.A. No.268 of 1991 on the same premises Shri Palit, learned counsel supported the claim of the appellant. Similarly Shri S. Palit, learned counsel for the appellants in the First Appeal No.268 of 1991 completely supports the submission advanced by Dr. Mohapatra, learned Senior Advocate but however in addition to the citation shown by Dr. Mohapatra, Shri Palit, learned counsel taking this Court to the decision of the different courts vide AIR (1996) Karnatak 366, the judgment in RFA No.100/2003 decided on 19.11.2005, AIR 68 (SC) 1028, 2019(I) CCC 237 Delhi, ILR 2012 (5) Delhi 678, 15 2008(I)CCC 253 Karnatak attempted to justify his case in challenging the judgment and decree involving T.S. No.7 of 1985.
10. Shri S.P. Mishra, learned Senior Advocate appearing for the contesting respondents i.e. the plaintiffs involving both the appeals advancing a common argument taking this Court to the pleadings of the parties, response to the written statement, exhibits laid down through the plaintiff more particularly the copy of agreement, copy of draft sale deed, the postcard issued by the defendant no.1 to him to come to have a discussion in finalizing the sale transaction involved herein, again taking this court to the provision of law referred to by Dr. Mohapatra, learned Senior Advocate, further to the findings arrived at by the trial court contended that for there being ample materials establishing the case of the plaintiff, the trial court not only framed appropriate issues but has also passed order upon entering into detail discussion involving each of the issues. Referring to the decisions vide AIR 68(SC) 1028, 2016(I)SC762 Sri Mishra also taking help of the materials available on record and for the support of the decisions referred to hereinabove and also answering the decisions referred to by the learned Advocates appearing on behalf of the appellant and some of the respondents in both the cases submitted that all such decisions come to the rescue the plaintiff i.e. the respondent no.1 involving both the cases. Shri Mishra, learned Senior Advocate thus controverting the submission of Dr. Mohapatra, learned Senior Advocate and Shri Palit, learned counsel and attempted to support the judgment and decree of the trial court and accordingly prayed this Court for dismissal of both the appeals.
11. Looking to the claim and counter claim involved herein taking into account the respective submissions, this Court finds, the question of grant of relief, specific performance of contract depends 16 on satisfaction of statutory requirement vide Section 16(c), 20, 21, 22 & 23 of the Specific Relief Act, 1963 and from 47/48 of Appendix A to C of the Code of Civil Procedure and then it also becomes the duty of Court to look into existence of the following four stages before arriving at its conclusion:-
"1st, Whether there exists a valid and concluded contract between the parties for sale/purchase of the suit property;
2nd , Whether the plaintiff has been ready and willing to perform his part of contract and whether he is still ready and willing to perform his part as mentioned in the contract;
3rd, Whether the plaintiff has, in fact, performed his part of the contract and, if so, how and to what extent and in what manner he has performed and whether such performance was in conformity with the terms of the contract;
th 4 , Whether it will be equitable to grant the relief of specific performance to the plaintiff against the defendant in relation to suit property or it will cause any kind of hardship to the defendant and, if so, how and in what manner and the extent if such relief is eventually granted to the plaintiff; and lastly, whether the plaintiff is entitled for grant of any other alternative relief, namely, refund of earnest money etc. and, if so, on what grounds."
12. Section 20(3) of the Specific Relief Act has been taken note of by Hon'ble Apex Court in the case of SaradamaniKandappan v. S. Rajalakshmi, 2011 (12) SCC page 18 where the Hon'ble Apex court in para 37 & 43 held as follows:
"37. The reality arising from this economic change cannot continue to be ignored in deciding cases relating to specific performance. The steep increase in prices is a circumstance which makes it inequitable to grant the relief of specific performance where the purchaser does not take steps to complete the sale within the agreed period, and the vendor has not been responsible for any delay or non-performance. A purchaser can no longer take shelter under the principle that time is not of 17 essence in performance of contracts relating to immovable property, to cover his delays, latches, breaches and "non-readiness". The precedents from an era, when high inflation was unknown, holding that time is not of the essence of the contract in regard to immovable properties, may no longer apply, not because the principle laid down therein is unsound or erroneous, but the circumstances that existed when the said principle was evolved, no longer exist. In these days of galloping increases in prices of immovable properties, to hold that a vendor who took an earnest money of say about 10% of the sale price and agreed for three months or four months as the period for performance, did not intend that time should be the essence, will be a cruel joke on him, and will result in injustice. Adding to the misery is the delay in disposal of cases relating to specific performance, as suits and appeals therefrom routinely take two to three decades to attain finality. As a result, an owner agreeing to sell a property for rupees one lakh and received rupees ten thousand as advance may be required to execute a sale deed a quarter century later by receiving the remaining rupees ninety thousand, when the property value has risen to a crore of rupees.
43. Till the issue is considered in an appropriate case, we can only reiterate what has been suggested in K.S. Vidyanadam [(1997) 3 SCC 1] :
(i) The courts, while exercising discretion in suits for specific performance, should bear in mind that when the parties prescribe a time/period, for taking certain steps or for completion of the transaction, that must have some significance and therefore time/period prescribed cannot be ignored.
(ii) The courts will apply greater scrutiny and strictness when considering whether the purchaser was "ready and willing" to perform his part of the contract.
(iii) Every suit for specific performance need not be decreed merely because it is filed within the period of limitation by ignoring the time-limits stipulated in the agreement. The courts will also "frown" upon suits which are not filed immediately after the breach/refusal. The fact that limitation is three years does not mean that a purchaser can wait for 1 or 2 years to file a suit and obtain specific performance. The three-year period is intended to assist the purchasers in special cases, as for example, where the major part of the consideration has been paid to the vendor and 18 possession has been delivered in part-performance, where equity shifts in favour of the purchaser.
Keeping in view that the relief of Specific Performance of Contract is discretionary and equitable and in the pronouncement of the judgment vide (2011)12SCC18 the Hon'ble Apex court held by paying a small portion out of total sell consideration and advance a buyer cannot be allowed to have a decree of specific performance also on the promise that for lapse of time the value of property considerably increased. This decision does not fit to the case at hand.
In the case of K. Nanjappa v. R.A. Hameed, as reported in (2016) 1 SCC 762 : 2015 SCC OnLine SC 779 at page 775 in para-21 & 22 the Hon'ble Court has stated as follows:
"21. There is no dispute that even a decree for specific performance can be granted on the basis of oral contract. Lord Du Parcq in a case [ShankarlalNarayandasMundade v. New Mofussil Co. Ltd., 1946 SCC OnLine PC 7 : (1945-46) 73 IA 98 : AIR 1946 PC 97] observed, while deciding a suit for specific performance, that an oral contract is valid, binding and enforceable. A decree for specific performance could be passed on the basis of oral agreement. This view of a Privy Council was followed by this Court in KolliparaSriramulu v. T. Aswatha Narayana [AIR 1968 SC 1028] and held that an oral agreement with a reference to a future formal contract will not prevent a binding bargain between the parties.
22. However, in a case where the plaintiff comes forward to seek a decree for specific performance of contract of sale of immovable property on the basis of an oral agreement or a written contract, heavy burden lies on the plaintiff to prove that there was consensus ad idem between the parties for the concluded agreement for sale of immovable property. Whether there was such a concluded contract or not would be a question of fact to be determined in the facts and circumstances of each individual case. It has to be established by the plaintiffs that vital and fundamental terms for sale of immovable property were concluded between the parties."
Through the aforesaid judgment the Hon'ble Apex Court not only held that oral contract is also valid, binding and enforceable, it is also held therein that to establish on the basis of oral agreement heavy burden lies on the plaintiff to prove that there was consensus 19 ad idem between the parties for the concluded agreement for sell of immovable property. This being a question of fact, decision in such matter is dependent on the facts and circumstances of the case involved.
In the case of Mayawanti v. Kaushalya Devi, (1990) 3 SCC 1 at page 5 the Hon'ble Court in paragraph no.8 observed as follows:
"8. In a case of specific performance it is settled law, and indeed it cannot be doubted, that the jurisdiction to order specific performance of a contract is based on the existence of a valid and enforceable contract. The Law of Contract is based on the ideal of freedom of contract and it provides the limiting principles within which the parties are free to make their own contracts. Where a valid and enforceable contract has not been made, the court will not make a contract for them. Specific performance will not be ordered if the contract itself suffers from some defect which makes the contract invalid or unenforceable. The discretion of the court will be there even though the contract is otherwise valid and enforceable and it can pass a decree of specific performance even before there has been any breach of the contract. It is, therefore, necessary first to see whether there has been a valid and enforceable contract and then to see the nature and obligation arising out of it. The contract being the foundation of the obligation the order of specific performance is to enforce that obligation."
Applying both the above decisions to the case at hand, this Court finds, for the existence of oral evidence supporting pleadings and proof of the same by the plaintiff the plaintiffs appears to have satisfied the test of law and are entitled to the relief.
In the case of K. Prakash v. B.R. Sampath Kumar, (2015) 1 SCC 597 : 2014 SCC OnLine SC 754 at page 604 the Hon'ble Court in para nos.13 & 16 observed as follows:
13. Indisputably, remedy for specific performance is an equitable remedy. The court while granting relief for specific performance exercises discretionary jurisdiction.20
Section 20 of the Act specifically provides that the court's jurisdiction to grant decree of specific performance is discretionary but not arbitrary. Discretion must be exercised in accordance with the sound and reasonable judicial principles.
16. The principle which can be enunciated is that where the plaintiff brings a suit for specific performance of contract for sale, the law insists upon a condition precedent to the grant of decree for specific performance: that the plaintiff must show his continued readiness and willingness to perform his part of the contract in accordance with its terms from the date of contract to the date of hearing. Normally, when the trial court exercises its discretion in one way or the other after appreciation of entire evidence and materials on record, the appellate court should not interfere unless it is established that the discretion has been exercised perversely, arbitrarily or against judicial principles. The appellate court should also not exercise its discretion against the grant of specific performance on extraneous considerations or sympathetic considerations. It is true, as contemplated under Section 20 of the Specific Relief Act, that a party is not entitled to get a decree for specific performance merely because it is lawful to do so. Nevertheless once an agreement to sell is legal and validly proved and further requirements for getting such a decree are established then the court has to exercise its discretion in favour of granting relief for specific performance."
The Court of Chancery in Attorney General vrs. Wheate which followed the decision vide (1598) 5 Co. Rep 99b : 77 ER 209 observed as follows:
".... the law is clear, and courts of equity ought to follow it in their judgments concerning titles to equitable estates; otherwise great uncertainty and confusion would ensue. And though proceedings in equity are said to be secundum discretionem boni viri, yet, when it is asked, vir bonus est quis? The answer is, qui consulta partum, qui leges juraque servat. And as it is said in Rooke's case, that discretion is a science not to act arbitrarily according to men's wills and private affections; so the discretion which is to be executed here, is to be governed by the rules of law and equity, which are not to oppose, but each in its turn to be subservient to the other. This 21 discretion, in some cases follows the law implicitly; in others assists it, and advances the remedy; in others, again, it relieves against the abuse, or allays the rigour of it; but in no case does it contradict or overturn the grounds or principles thereof, as has been sometimes ignorantly imputed to this Court. That is a discretionary power, which neither this, nor any other court, not even the highest, acting in a judicial capacity, is by the Constitution entrusted with. This description is full and judicious, and what ought to be misprinted on the mind of every Judge.
16. The principle which can be enunciated is that where the plaintiff brings a suit for specific performance of contract for sale, the law insists upon a condition precedent to the grant of decree for specific performance; that the plaintiff must show his continued readiness and willingness to perform his part of the contract in accordance with its terms from the date of contract to the date of hearing. Normally, when the trial court exercises its discretion in one way or the other after appreciation of entire evidence and materials on record, the appellate court should not interfere unless it is established that the discretion has been exercised perversely, arbitrarily or against judicial principles. The appellate court should also not exercise its discretion against the grant of specific performance on extraneous considerations or sympathetic considerations. It is true, as contemplated under Section 20of the Specific Relief Act, that a party is not entitled to get a decree for specific performance merely because it is lawful to do so. Nevertheless once an agreement to sell is legal and validly proved and further requirements for getting such a decree are established then the court has to exercise its discretion in favour of granting relief for specific performance."
In the case of Zarina Siddiqui v. A. Ramalingam, (2015) 1 SCC 705 : 2014 SCC OnLine SC 862 at page 718 the Hon'ble Apex Court in para no.33 held as follows:
"33. The equitable discretion to grant or not to grant a relief for specific performance also depends upon the conduct of the parties. The necessary ingredient has to be proved and established by the plaintiff so that discretion would be exercised judiciously in favour of the plaintiff. At the same time, if the defendant does not 22 come with clean hands and suppresses material facts and evidence and misleads the court then such discretion should not be exercised by refusing to grant specific performance.
Decision vide C.A. No.4453 of 2009 decided on 7.1.2019 similarly though discussed on the requirements of granting relief of Specific performance of contract but without entering into discussion involving the case the Hon'ble Apex Court simply dismissed the appeal on the premises of confirming finding of fact and finding not being contrary to pleading and evidence and thus the decision does not come to the rescue of appellant except taking note of the principle in granting such relief. But however, through the above judgments, Law is settled that grant of relief of specific performance of contract is a discretionary and equitable relief.
R.F.A. No.58/19 High Court of Delhi dated 23.01.19 Delhi High Court declined the relief for the admitted fact that there was mere payment of 8% of the consideration amount. Facts involving the case at hand do not fit with the facts involving the judgment of the High Court of Delhi.
In the case of KolliparaSriramulu v. T. Aswatha Narayana, (1968) 3 SCR 387 : AIR 1968 SC 1028 the Hon'ble Court in para-3, 4 & 5 observed as follows:
"3. We proceed to consider the next question raised in these appeals, namely, whether the oral agreement was ineffective because the parties contemplated the execution of a formal document or because the mode of payment of the purchase money was not actually agreed upon. It was submitted on behalf of the appellant that there was no contract because the sale was conditional upon a regular agreement being executed and no such agreement was executed. We do not accept this argument as correct. It is well established that a mere reference to a future formal contract will not prevent a binding bargain between the parties. The fact that the parties refer to the preparation of an agreement by which the terms agreed upon are to be put in a more formal shape does not prevent the existence of a binding contract. There are, however, cases where the reference to a future contract is made in such terms as to show that the parties did not intend to be bound until a formal 23 contract is signed. The question depends upon the intention of the parties and the special circumstances of each particular case. As observed by the Lord Chancellor (Lord Cranworth) in Ridgway v. Wharton [6 HLC 238, 63] , the fact of a subsequent agreement being prepared may be evidence that the previous negotiations did not amount to a concluded agreement, but the mere fact that persons wish to have a formal agreement drawn up does not establish the proposition that they cannot be bound by a previous agreement. In Von Hatzfeldt Wildenburg v. Alexander [(1912) 1 CH 284, 288] it was stated by Parker, J. as follows:
"It appears to be well settled by the authorities that if the documents or letters relied on as constituting a contract contemplate the execution of a further contract between the parties, it is a question of construction whether the execution of the further contact is a condition or term of the bargain or whether it is a mere expression of the desire of the parties as to the manner in which the transaction already agreed to will in fact go through. In the former case there is no enforceable contract either because the condition is unfulfilled or because the law does not recognize a contract to enter into a contract. In the latter case there is a binding contract and the reference to the more formal document may be ignored."
4. In other words, there may be a case where the signing of a further formal agreement is made a condition or term of the bargain, and if the formal agreement is not approved and signed there is no concluded contract. In Rossiter v. Miller [3 AC 1124] Lord Cairns said:
"If you find not an unqualified acceptance subject to the condition that an agreement is to be prepared and agreed upon between the parties, and until that condition is fulfilled no contract is to arise then you cannot find a concluded contract."
In Currimbhoy and Company Ltd. v. Creet [60 IA 297] the Judicial Committee expressed the view that the principle of the English law which is summarised in the judgment of Parker, J. In Von Hatzfeldt Wildenburg v. Alexander [(1912) 1 CH 284, 288] was applicable in India. The question in the present appeals is whether the execution of a formal agreement was intended to be a condition of the bargain dated July 6, 1952 or whether it was a mere expression of the desire of the parties for a formal agreement which can be ignored. The evidence adduced on behalf of Respondent 1 does not show that 24 the drawing up of a written agreement was a pre-
requisite to the coming into effect of the oral agreement. It is therefore not possible to accept the contention of the appellant that the oral agreement was ineffective in law because there is no execution of any formal written document. As regards the other point, it is true that there is no specific agreement with regard to the mode of payment but this does not necessarily make the agreement ineffective. The mere omission to settle the mode of payment does not affect the completeness of the contract because the vital terms of the contract like the price and area of the land and the time for completion of the sale were all fixed. We accordingly hold that MrGokhale is unable to make good his argument on this aspect of the case.
5. We shall next deal with the question whether the appellant was a bona fide purchaser for value without notice of the prior oral agreement. The first sale deed obtained by the appellant was on July 29, 1952. PW 2 stated in his evidence that the appellant told him that he had been aware of the agreement in favour of Respondent 1 at the time of the purchases under Exs. B- 6 to B-10. It is true that PW 2 added that the appellant did not say distinctly that he was aware of the agreement between the respondent and Defendants 1 to 9. Upon this point the appellant himself was unable to remember whether he had told PW 2 to that effect. In any case, PWs 5 and 6 deposed that they went to the appellant on July 7, 1952 and asked him to part with his shares in favour of Respondent 1. It is not denied by the appellant that he met PWs 5 and 6 on July 7, 1952. It is also significant that the purchase money paid by the appellant was very nearly the same as that payable under the agreement in Respondent 1's favour. On the basis of his evidence the High Court reached the conclusion that the appellant had notice of the prior oral agreement. We see no reason to differ from the finding of the High Court on this point."
In the case of Brij Mohan v. Sugra Begum, (1990) 4 SCC 147 at page 157 the Hon'ble Court in para-19 & 22 observed as follows:
"19. On the other hand it was contended on behalf of the respondents that no vital or fundamental terms of the contract were discussed, agreed or settled on May 3, 1979. It was contended that even if the case of the plaintiffs is believed, all that happened on May 3, 1979 was that plaintiffs had agreed to purchase the property for Rs 10 lakhs to which defendant 1 had 25 conveyed her acceptance through DW 2. Neither any earnest/advance money to be paid was settled, nor, any time for the payment of such money or time for execution of agreement of sale or final sale deed and its registration, was settled. It was argued that even if the time may not be an essence of a term of contract for sale of immovable property, it is a vital term without which no concluded contract can be arrived at. Admittedly no meeting was held on May 3, 1979 in the presence of defendant 1 and it was agreed to have a meeting of the plaintiffs and defendant 1 on May 6, 1979. It was also an admitted position that neither any consideration passed nor any documents were signed by the parties on May 3, 1979. So far as May 6, 1979 is concerned admittedly the negotiations failed between the parties on that day. It was further contended that if the terms had already settled on May 3, 1979 itself where was the necessity of executing draft receipts on May 6, 1979 and in any case if it was a mere formality then the plaintiffs should have brought a typed agreement on the stamps for formal signature of the parties. It was also argued that the plaintiffs failed to examine Ibrahim Moosa who was an independent and a very important witness in the whole transaction and an adverse inference should be drawn against the plaintiffs for not examining Ibrahim Moosa. Defendant 1 had produced a counter-affidavit Ex. C-1 dated July 27, 1979 in reply to injunction application filed by the plaintiffs and she had taken a clear stand that no terms were settled or concluded on May 3, 1979. It was further argued that admittedly the plaintiffs had not paid any earnest/advance money to defendant 1 towards the alleged transaction but still they mala fidely stated in the notice of May 7, 1979 published in the newspaper that an amount of Rs 50,000 had been paid to defendant 1. Defendant 1 in these circumstances had immediately got published a contradiction on May 8, 1979 and this clearly goes to show the mala fide and ulterior motive of the plaintiffs. It was also argued that any agreement in the third week of April 1979 to the effect that defendant 1 would bring the no objection certificate from the Urban Land Ceiling Authorities was found not proved by the High Court and as such there is no question of applying any principles contained in Section 55 of the Transfer of Property Act. It was also contended that the findings recorded by the High Court are supported by evidence and this Hon'ble Court should not interfere against such finding in the exercise of its jurisdiction under Article 136 of the Constitution of India. It was also argued that Shri Arif Ali was not holding general power of attorney on behalf of defendant 1 and he had no authority to settle or conclude any terms in respect of a transaction of immovable property on behalf of defendant 1. No objection certificate was necessary to be obtained from Urban Land Ceiling Authorities and defendant 1 and her husband being old person had clearly taken the stand that they would not bring such certificate and no final and concluded contract took place on any date.
22. In the oral evidence PW 1 Shri Brij Mohan, plaintiff 1 stated that in the meeting arranged in the third week of April 1979 Shri Ibrahim and Shri Arif Ali came to the plaintiff's shop and then they all went to the residence of defendant 1. Plaintiff 2 also accompanied them. The husband of defendant 1 Shri Yunus was also present at the meeting. He was introduced to them as the retired Law Secretary. Defendant 1 insisted for Rs 10,00,000 as consideration of the suit property and told the plaintiffs that she 26 would obtain the permission from the ceiling authority. Shri Brij Mohan then stated that they raised their offer to Rs 8,00,000 defendant 1 told them that she would think over for two or three days and inform them through Shri Arif Ali. Thereafter Shri Brij Mohan states regarding the bargain held on May 3, 1979. According to him he himself, plaintiff 2 and Mr Ibrahim Moosa went to Shri Arif Ali on May 3, 1979. Shri Arif Ali told them that defendant 1 was not willing to sell the suit property for less than Rs 10,00,000. And if they were willing to purchase for Rs 10,00,000 then they were welcome to do so at any time. Shri Brij Mohan then said that they agreed to purchase the suit property for Rs 10,00,000 and asked Shri Arif Ali to get the confirmation from defendant 1. Shri Arif Ali spoke to defendant 1 on telephone and then informed that defendant 1 was willing to sell the property to them for Rs 10,00,000. Shri Arif Ali then said that they would buy the stamps for agreement and fixed May 6, 1979 morning for a meeting with defendant 1. From a perusal of the above evidence it would be abundantly clear that nothing was settled on May 3, 1979 except the fact that the plaintiffs had conveyed their approval to purchase the suit property for Rs 10,00,000 and Shri Arif Ali after speaking to defendant 1 was willing to sell the property for Rs 10,00,000. Admittedly at the same time a meeting was fixed with defendant 1 on the morning of May 6, 1979. According to the case set up by defendant 1 she had never agreed to obtain the permission from the Ceiling Authority. It would be important to note that no averment was made in the plaint that defendant 1 had agreed to obtain the permission from the Ceiling Authority in the meeting held in the third week of April 1979. However, Shri Brij Mohan plaintiff has sought to introduce this fact for the first time in his statement in the court that defendant 1 had told them in the meeting held in the third week of April 1979 that she would obtain the permission from the Ceiling Authority. We are unable to accept the above statement of Shri Brij Mohan that in the meeting held in the third week of April 1979 itself defendant 1 had agreed that she would obtain the permission from the Ceiling Authority. It is an admitted position that till the meeting held in the third week of April 1979 the plaintiffs had offered Rs 8,00,000 and defendant 1 had told them that she would consider and communicate her views through Shri Arif Ali some time later. We agree with the conclusion of the High Court in this regard that without first determining the sale price, it was quite unlikely that the parties would have bargained as to who should obtain the clearance under the Urban Land Ceiling Act. It was known to the parties that until the clearance under the Urban Land Ceiling Act and the income tax clearance, the property will not be registered. The High Court was right in concluding that it is unbelievable that in the third week of April 1979 when still there was a wide gap of Rs 2,00,000 in the price payable for the suit building the parties would have stipulated about the condition as to who should obtain the permission under the Urban Land Ceiling Act. It is further pertinent to mention that even in Exs. A-1 and A-2 which are drafts of agreement of sale there is no reference to the oral agreement said to have taken place on May 3, 1979. In case all the terms had already been concluded in the oral contract between the parties on May 3, 1979 and only a formal agreement was to be reduced in writing on May 6, 1979, then in that case there ought to have been a mention in the draft agreement Exs. A- 1 and A-2 regarding the oral agreement of May 3, 1979. According 27 to the statement of Shri Brij Mohan plaintiff 1 himself, nothing was discussed with defendant 1 herself and for that reason a further meeting was fixed at the house of defendant 1 in the morning of May 6, 1979. Shri Arif Ali may have been an income tax advocate looking after the income tax and wealth tax matters of defendant 1 but he was not a general power of attorney holder to negotiate or settle any terms with regard to any transaction of immovable property belonging to defendant 1. It is further important to note that even in the agreement to sell Ex. B-4 dated June 22, 1979 between defendant 1 and defendants 3 and 4, no responsibility had been taken by defendant 1 for obtaining the clearance from the Urban Land Ceiling Authority. The High Court in these circumstances rightly believed the contention of defendant 1 that the agreement fell through because the plaintiffs insisted that defendant 1 should obtain the permission from the Urban Land Ceiling Authority while defendant 1 did not agree for the same. There was no clinching evidence to show that this stipulation was thought of by the parties on any day prior to May 6, 1979. Thus in the above circumstances when the parties were consciously negotiating about the bringing of no objection certificate from the Urban Land Ceiling Authority and the case put forward by defendant 1 in this regard has been believed there is no question of applying the principle contained in Section 55 of the Transfer of Property Act. The general principle contained in Section 55 of the Transfer of Property Act regarding rights and liabilities of buyer and seller can only apply in the absence of a contract to the contrary and not in a case where the parties consciously negotiated but failed in respect of any term or condition, as a result of which the agreement itself could not be settled or concluded. Once it is held established in the present case that no agreement was finally concluded or settled on May 6, 1979 and negotiations failed and before this date it was never settled that defendant 1 would bring the no objection certificate from Urban Land Ceiling Authority, there is no question of applying general principles contained in Section 55 of the Transfer of Property Act.
13. In the light of above principle in a number of decision referred to hereinabove I have to consider as to whether the decision arrived at by the trial court can be sustainable in the eye of law.
Now coming to decide the factual aspect as well as the evidence aspect involving the case at hand this Court finds, in nutshell the case of the plaintiffs is that the original plaintiff who was in long contact with the family members of the defendant no.1 was accommodated in a house situated over the plot no.2825 for his residential purpose since 1956. Consequent upon an amicable family partition in the year 1963 plot no.2823 and 2824 along with structure standing thereon fell to the share of defendant no.1 and 28 plot no.2825 fell to the share of Bibhuti Bhusan Chandra. While the matter stood thus the defendant no.1 expressed his desire to sell out the entire plot no.2823 and also another adjoining plot to the south of the plot no.2824. The defendant no.1 since decided not to sell the property to any outsider but to sell only to the occupants who are in possession, the original plaintiff being a tenant in occupation went to Puri to negotiate the matter with defendant no.1 on 3.06.1984 at Puri in the house of defendant no.1. Jadunath Singh, Advocate P.W. 2 accompanied original plaintiff also expressed his desire, if it is possible he would also like to purchase the entire plot no.2823 and 2824 to which the defendant no.1 did not agree. It is there in presence of Chaitan Chandra Das P.W.1 and Jadunath Singh P.W.2 both the persons accompanied the original plaintiff went to the house of defendant no.1 for sell of the land purpose, that the entire plot no.2823 with thatched house and other structures would be sold to the plaintiff at a consideration of Rs.25,000/-, to which the plaintiff and defendant no.1 agreed. Plaintiff on the very day wanted to get a written document from defendant no.1 evidencing the contract but defendant no.1 stated that his words are final and thereby confirmed the agreement between them and there is no question of backing out. The defendant no.1 directed Chaitan Chandra Das to purchase the stamp paper on his behalf at Cuttack and to get the draft agreement for purpose so that when he would next visit to Cuttack he would receive the advance of Rs.10,000/- and then only he will sign the agreement after approving the draft the plaintiff agreed with the terms. In the meantime the defendant no.1 wrote a letter on 19.07.1984 to the plaintiff in a Post Card intimating therein that he would be arriving at Cuttack on 25.07.1994 to have discussion. Plaintiff further disclosed that upon receipt of such letter he was ready with Rs.10,000/- in cash and the draft agreement as well as draft sell deed were also made ready by Shri Chaitan Chandra Das.29
It further reveals that the defendant no.1 though arrived at Cuttack and stayed in Chandra House, but however, expressed that in between 8.06.1984 to 25.07.1984 the defendant nos.2 & 3 have given an offer to the defendant no.1 for sell of the property standing over plot no.2823 at a price of Rs.35,000/- and Balaram Mishra had given an offer of Rs.40,000/- for plot no.2824 along with the structure standing thereon and he had also assured them to sell the disputed land accordingly. Getting this information and in spite of plaintiff being ready for handing over the advance defendant no.1 left for Puri leaving the matter to be decided by Jadunath Singh, Advocate and in the meantime, the defendant no.1 entered into the sell transaction with the defendant nos.2 & 3. Consequently, he was constrained to file the suit with the aforesaid prayer. Similarly the defendant no.1's case is, while he denied each of the claim made in the plaint on the premises of being maintained with frivolous and concocted story contended that there never existed any joint family property. Defendant no.1 even denied the claim of the plaintiff involving the talk in between them regarding sell of the disputed land, on the other hand claimed that he has sold the disputed land to the defendant no.3 entering into a registered sell deed dated 15.1.1983. In some and substance defendant no.1 denied to have entered into any contract with plaintiff involving sell of the disputed land. Defendant no.1 even attempted to the extent that plaintiff was never a tenant involving the disputed property. Attempting to establish their case the plaintiff examined both P.W.1 and P.W. 2 both of them being accompanied with the plaintiff had gone to Puri to discuss on the sell of the disputed land and also involving a direction by the defendant no.1 to P.W. 1 to purchase the stamp paper and also to prepare a draft agreement through Jadunath Singh. Legal heirs of the defendant no.1 while flatly denying the claim of legal heirs of the plaintiff attempted to establish that there is valid sell on 18.1.1985. Thus claimed that 30 there is no question of any agreement to sell the disputed land in favour of the plaintiff. From the records it appears, legal heirs of the plaintiff clearly established their case by not only examining Chaitan Chandra Das as P.W. 1 and Jadunath Singh as P.W.2 but also exhibited not only the Stamp Paper as Ext.-1, Blank cartridge paper as Ext.1/a, the draft sell deed as Ext.-3, draft agreement as Ext-2 but also the rent receipts and through cogent evidence also proved their claim. It also clearly appears from the cross examination, the legal heirs of the defendant no.1 completely failed in demolishing the claim of the plaintiff. The plaintiff has also been able to establish that there existed oral agreement between the plaintiff and defendant no.1 involving sell of the land at a consideration price of Rs.25,000/-. Similarly through the document the plaintiff has also been able to establish existence of a letter by defendant no.1 informing his visit to Cuttack to settle his commitment on sell with clear intention to see the draft agreement as well as the draft sell deed and to finalize the same upon approval of the draft agreement as well as draft sell deed and also upon receipt of the advance of a sum of Rs.10,000/- It is, at this stage of the matter, this Court looking to the issue nos.2, 4 & 9, observes, it is necessary to mention here that all these transactions taken place prior to July, 1984 whereas the defendant even though visited the plaintiff but did not proceed with the confirmation of sell, on the other hand, entered into with the sell deed dated 15.1.1985 with the defendant nos.2 & 3 involving the very suit property. It is at this stage of the matter looking to the discussions of the trial court involving the major issues indicated hereinabove this Court finds, the trial court in his discussion in paragraph no.6 onwards came to find that there existed an oral contract on 13.06.1984 for sell of the suit land by the deceased defendant in favour of the deceased plaintiff for consideration of Rs.25,000/-. For his finding the trial court also came to observe that by virtue of the terms of the oral 31 contract and the evidence available with support of the documentary evidence the contract was a concluded contract. Consequently, the trial court had answered on issue nos.2, 4 & 9 in favour of the plaintiff while also coming to hold that the defendant no.3 was not a bona fide purchaser. For the materials available on record and the discussions involving the issue nos.2, 4 & 9 this Court finds, there is no infirmity in the finding of the trial court. Not only this, here this Court also finds, there is clear material that plaintiffs have not only been able to establish that there existed an oral agreement between the original plaintiff and original defendant but have also been able to establish that the original plaintiff was also ready to finalize the deal from his side and that the defendant no.1 failed in discharging his duty.
14. After examining the entire facts of the case, the evidence oral and materials available on record the findings of the trial court on issue nos.2, 4 & 9, taking into account the decision of the Hon'ble Apex Court vide (1968)3SCR 387, 77 ER 209, (1990) 3 SCC 1, (2015) 1 SCC 597 & 705 and (2016) 1 SCC 762, this Court finds, there not only exists a concluded contract but there also existed a fit case to exercise discretion by the trial court, further there also existed a strong case for allowing the claim of specific performance of contract in favour of the plaintiffs. For all these reasons the appeals are dismissed for having no merit and the impugned judgment passed by the trial court is hereby affirmed. Hence both the Appeals are dismissed in confirmation of the judgment and decree of trial court involving T.S. No.7 of 1985. But however, in the circumstance, parties to bear their own cost.
.............................
(Biswanath Rath, J.) Orissa High Court, Cuttack.
The 19th day of September, 2019/ .
A. Jena, Sr. Stenographer