Patna High Court - Orders
Uma Shankar Goswami @ Sri Vem Shankar ... vs Sri Subodh Kumar Choudhary & A on 8 February, 2013
Author: Chakradhari Sharan Singh
Bench: Sharan Singh, Chakradhari Sharan Singh
IN THE HIGH COURT OF JUDICATURE AT
PATNA
Second Appeal No.34 of 2010
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1. Uma Shankar Goswami @ Sri Vem Shankar Goswami S/O Late Basudeo
Goswami R/O Vill.- Parora, P.S. K. Nagar, Distt.- Purnia
.... .... Appellant
Versus
1. Sri Subodh Kumar Choudhary S/O Late Natho Prasad Choudhary R/O
Vill.- Parora, P.S. K. Nagar, Distt.- Purnia
2. Sri Dhirendra Narain Chaudhary S/O Late Jagdish Chaudhary R/O Vill.-
Parora, P.S. K. Nagar, Distt.- Purnia
.... .... Respondents
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Appearance :
For the Appellant : Mr. Shabbir Ahmad, advocate
Mr. Anil Kumar Saxena, advocate
For the Respondent : Mr.
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CORAM: HONOURABLE MR. JUSTICE CHAKRADHARI
SHARAN SINGH
ORAL ORDER
8 08-02-2013Heard Mr. Shabbir Ahmad, learned counsel appearing on behalf of the appellant.
2. The defendant No.2 before the trial court is the appellant herein and has preferred the appeal under section 100 of the Code of Civil Procedure aggrieved by the judgement and decree dated 28-10-2009 passed in Title Appeal No. 71/06 / T.R. 07/09 by learned Additional District Judge (FTC No.2) Purnia whereby, while dismissing the first appeal he has affirmed the judgement dated 04-10-1997 and decree dated 12-11-1997/ 15-11-1997 passed in Title Suit No. 18/93 by learned Sub- Judge, Vth, Purnia. The appeal has been placed for hearing before me under Order 41 Rule 11 of the Code of Civil Procedure.
3. The Title Suit No. 18/93 was filed by the plaintiff- respondent No.1 seeking a decree for specific performance of contract directing Defendant No.1/ Respondent No.2 to execute 2 Patna High Court SA No.34 of 2010 (8) dt.08-02-2013 2/8 registered sale deed and agreement of sale executed by the defendant No.1 (respondent No.2 herein) with respect to the suit property as described in the schedule to the plaint.
4. The case of the plaintiff/ Respondent No.1 was that the suit land being a compact area of 3.32 acres of village Bithrouli Khemchand, P.S. K. Nagar, District Purnia belonged to defendant No.1 who fell in need of money at the end of August, 1991 and offered for the sale of said land to respondent No.1 who accepted the offer and, accordingly, an agreement for sale of the said land was executed on 02-09-1991 in the presence of witnesses of the village and a sum of Rs. 11,000/- was paid to the defendant No.1- respondent No.2 by the plaintiff out of the agreed sale price of Rs. 82,000/-. As per the said agreement it was agreed that respondent No.2 would execute and register the sale deed by 02-02-1992 after receiving the consideration amount. However, with the consent of both the parties, the total consideration amount was allowed to be mentioned as Rs. 82,000/-.
5. Further case of the Respondent No.1 (plaintiff) was that he repeatedly requested respondent No.2 to accept the balance consideration amount, execute and register the sale deed in his favour with respect to the suit land but respondent No.2 neglected to perform his part of contract. As the period of the agreement for sale was going to expire, respondent No.2 agreed to execute a fresh agreement in favour of respondent No.1 confirming the earlier agreement. Respondent No.1 is said to have paid a sum of Rs. 39, 000 to the defendant on 02-02-1992 out of the remaining consideration amount on execution of the said agreement for sale and, thus, Rs. 50,000/- was paid out of total consideration amount of Rs.82, 000/- and the period for executing and registering the 3 Patna High Court SA No.34 of 2010 (8) dt.08-02-2013 3/8 sale deed in favour of respondent No.1 was extended up to 31-03-1993. It is alleged that the respondent No.2 neglected to perform his part of contract despite appellant's readiness and willingness to perform his part of contract.
6. Respondent No.2, being defendant No.1 of the title suit, filed written statement taking a plea that the appellant herein was a necessary party as he was in cultivating possession of the suit plot on Adhibatai under him since 1977. He is also said to have taken a plea that before the said agreement for sale dated 02-09-1991, the present appellant had purchased the suit land after paying full consideration amount way back on 10-08-1978 who was declared Kaimi raiyat in respect of suit plot and decree dated 24-11-1992 to this effect was passed by Sub-Judge Purnia in Title Suit No. 162/92 and, therefore, he was a necessary party in the suit. The appellant herein was accordingly impleaded as party defendant in the suit vide order 06-04-1995 and he also filed written statement and contended that the two agreements, that is, dated 02-09-1991 and 02-02-1992 were fabricated, forged and manipulated by the respondent No.1 and respondent No.2. He asserted that he was in cultivating possession of the suit land on Adhibatai under defendant No.1 since 1977. He filed case No. 145/91-92 under section 48(E) of the Bihar Tenancy Act which was decided in favour of respondent No.2. He also filed a suit vide Title Suit No.161/92 against respondent No.2 which was ultimately decreed in favour of appellant vide order dated 24-11-1992.
7. On the basis of rival contentions, the learned trial court framed altogether eight issues including issues Nos. (iv) and
(v) to the following effect:-
4 Patna High Court SA No.34 of 2010 (8) dt.08-02-2013 4/8(iv) Whether the suit is vague and indefinite?
(v) Is the plaintiff entitled to get a decree of specific performance of contract on the basis of agreement as asserted in the suit?
8. On the basis of the evidence led on behalf of respective parties including the documentary evidence brought on record by them the learned trial court came to specific finding that the respondent No.1 (plaintiff) was entitled to a decree of specific performance of contract on the basis of agreement for sale. While reaching to this conclusion the learned trial court took into account the admissions made by respondent No.2 that he had agreed for sale of the land in question and had taken advance money. The story developed by the appellant in his capacity as defendant No.2 that he had purchased the suit land in 1978 itself was rejected as there was no registered deed filed in support of such sale. Dealing with the order passed in case No. 145/91-92 under section 48(E) of the Bihar Tenancy Act learned trial court came to the conclusion that it was based on compromise between the appellant and the respondent No.2. Further, it also came to the conclusion, on the basis of order sheet of Title Suit No. 161/92 that the order dated 28-11-1992 was passed on the basis of compromise. The learned trial court considered the compromise petition filed in Title Suit No. 161/92 and held that respondent No.2 accepted that defendant No.2 was in possession over the suit land. It took into account the fact that though the appellant being plaintiff of Title Suit No. 161/92 claimed to have paid Rs. 70,000/- for purchase of some piece of land, but failed to produce any registered document in support of the same. It was, accordingly, held that defendant/Appellant No.2 could not be said to have acquired any 5 Patna High Court SA No.34 of 2010 (8) dt.08-02-2013 5/8 valid right, title, interest and possession over the suit land.
9. In background of the facts above, the learned trial court decreed the suit with cost against the defendants including the appellant herein. Respondent No.1 was accordingly directed to execute and register the sale deed in respect of suit land after receiving balance consideration amount of Rs. 32,000/- within one month.
10. Learned first appellate court concurred with the finding and dismissed the appeal after considering the entire materials on record as would appear from the impugned judgement and decree dated 28-10-2009 passed in Title Appeal No. 71/06.
11. Learned counsel for the appellant has submitted that though agreement for sale was executed on 02-09-1991, but the period for executing and registering of sale deed expired whereafter a fresh agreement for sale was executed on 02-02-1992. He submits that the fresh agreement for sale on 02-02-1992 is too vague to be implemented as it does not contain the relevant particulars. He further submits that claim of the plaintiff/ respondent No.1 before the trial court was vague and did not merit any consideration. He has further submitted that findings of courts below are erroneous and contrary to the evidence available on record.
12. Before I deal with the submissions of learned counsel for the appellant, certain dates and events need to be mentioned for proper appreciation of the controversy in this case. These events and dates are not in dispute.
13. On 02-09-1991 respondent No.1 and respondent No.2 entered into an agreement for sale of the suit land. Since 6 Patna High Court SA No.34 of 2010 (8) dt.08-02-2013 6/8 respondent No.2 did not execute and register the sale deed by 02-02-1992, being the date specified for execution of sale deed the parties agreed to extend the time for execution and registration of sale deed and it was accordingly done by an agreement for extension of time for registration of sale deed on 02-02-1992. This is also not in dispute that part of consideration amount was paid to respondent No.2. The extended time for execution and registration of deed as per subsequent agreement was fixed as 31-03-1993. Respondent No.1 filed the suit for specific performance of contract in 1993.
14. In the meanwhile, the appellant herein filed a suit being Title Suit No. 161/1992 before Sub-Judge, I, Purnia claiming that he had been in cultivating possession over the suit land since 1977 and he had acquired the same through sale from respondent No.2 by way of purchase on payment of consideration money in 1978 itself and since then he had been coming in possession over the suit land. In the said suit respondent No.2 was impleaded as party defendant. They entered into a compromise and a compromise decree was passed in favour of the appellant on 24-11-1992. On 28-11-1991 the appellant filed an application under section 48(E) of the Bihar Tenancy Act,1885 before the revenue authorities claiming Bataidari (Adhibatai) over the suit land apprehending action on the part of respondent No.2 of ejectment from the suit land. The said proceeding under section 48(E) of the Bihar Tenancy Act,1885 also came to be concluded in favour of the appellant on the basis of concession made by the respondent No.2 that the appellant was in cultivating possession over the suit land. The dates and events mentioned above would lead to one and the only irresistible conclusion that appellant and 7 Patna High Court SA No.34 of 2010 (8) dt.08-02-2013 7/8 respondent No.1 were acting in collusion in order to defeat the purpose of the agreement for sale executed on 02-09-1991 and subsequent agreement for extension of time for execution and registration of sale deed on 02-02-1992. It is curious that the appellant filed the Title Suit No. 161/92 on 15-09-1992 claiming to be purchaser of the suit land in 1978 itself without any document, registered or otherwise. The said suit was compromised by respondent No.2 and, accordingly, decree was passed on 28-11-1992. The most peculiar aspect of the case is that when the appellant claimed to be the owner of the land in question by virtue of sale said to have taken place in 1978 itself, he had no occasion to file an application under section 48(E) of the Bihar Tenancy Act,1885 claiming to be under-raiyat of respondent No.2. These facts show the conduct of the appellant herein.
15. The scope of this court under section 100 of the Code of Civil Procedure is limited and it can interfere with the concurrent findings of fact only if the same are perverse. An appeal under section 100 of the Code of Civil Procedure can be entertained only if it involves a substantial question of law. As regards submission made by learned counsel for the appellant that the agreement for sale was too vague to be implemented, from the judgments of the court below, I find that it has been held specifically that the documents of agreement for sale specifically describe the land in question. The finding of facts arrived at by the courts below need no interference in the facts and circumstances of the case more particularly in view of admitted facts which I have noted herein above.
The appeal is, accordingly, dismissed with a cost of Rs. 5,000/- to be deposited by the Appellant in the account of Bihar 8 Patna High Court SA No.34 of 2010 (8) dt.08-02-2013 8/8 State Legal Service Authority within a period of six months from today.
(Chakradhari Sharan Singh, J) BKS/-