Gauhati High Court
Ganga Bala Bharali vs Anar Begam And Ors. on 31 August, 2006
Equivalent citations: (2007)1GLR199
Author: A.H. Saikia
Bench: A.H. Saikia
JUDGMENT A.H. Saikia, J.
1. The judgment and decree dated 31.7.1998 passed by the learned District Judge. Nagoan in Title Appeal No. 3/95 dismissing the appeal preferred by the defendant/appellant herein and upholding the judgment and decree dated 24.3.1995 passed by the learned Assistant District Judge, Nagaon in T.S. No. 4/91 decreeing the suit so instituted by the plaintiffs/respondents seeking a decree for declaration of right, title and interest as well as recovery of possession of the land described in Schedule 'Kha' to the plaint, has been assailed in this second appeal.
2. The fact in brief as emerged from the perusal of the pleadings of the parties may be noted:
Late Jahurul Hoque, the predecessor-in-interest of the plaintiffs/respondent Nos. 1 to 4, purchased a plot of land measuring 121/2 lechas along with the houses standing thereon on the western part of other half of the land as described in Schedule "Kha' of the plaint, being the half of the total land of Katha-5 lechas covered by Dag No. 1650 (area 6 bighas) and Dag No. 1656 (area 19 lechas) described in Schedule "Ka" from one Late Altab Jahan @ Altab Hussain, being original owner of the entire plot of land, by executing a registered sale deed dated 3.2.1948 (Ext.-3) on consideration of Rs. 6,500.00. Both Jahurul Hoque and Altab Jahan were the relatives and they had the intimate terms. By Ext.-3, the sale deed, the possession of the land was also delivered on the date of execution. Since Altab Jahan was issueless, it was agreed between the parties by executing an agreement of commitment, Ext. "Ka" on the same date, i.e., on 3.2.1948, on the day land being sold, as there were dwelling houses, that Altab Jahan along with his wife would live in that house till their death leaving one room for occupation of Jahurul Hoque and till their death they were to be maintained by Jahurul Hoque by paying Rs. 15 per month. In sale deed itself the aforesaid clause was also mentioned.
3. The remaining half of 121/2 lechas of land of the eastern site of the Dag in question, as noted above, was given by Altab Jahan to his wife Musstt. Arfatunessa on 14.9.1954 against his unpaid dower amount and after acquiring the right, title and interest over the same, Late Arfatunessa sold 121/2 leachas of land to the defendant/appellant on 14.3.1984 by executing a registered sale deed.
4. Altab Jahan died in the year 1963 when Jahurul Hoque, the predecessor-in-interest of the plaintiff Nos. 1 to 4 died sometime in the year 1982 and Arfatunessa died on 30.7.1989. During the life time of Altab Jahan, a part of the land and the house as described in Schedule "Kha" was lying vacant and was not required by Altab Jahan and as such Jahurul Hoque started a business thereon. After the death of Jahurul Hoque, the predecessor of the plaintiffs, who was in the exclusive possession of the land in question the suit property devolved on the plaintiffs who got their names mutated and were paying land revenues, etc.
5. On 3.10.1989 the defendant taking advantage of the fact that she had her house on the eastern part of the property transpassed and encroached the suit land and when the plaintiffs protested to such illegal action, the defendant refused to give up her possession over the land and houses illegally occupied by her. Hence this instant suit was filed by the respondent Nos. 1 to 4 as plaintiffs against the defendant/appellant for a decree declaring their right, title and interest to the land described in Schedule "kha" and also for eviction of the defendant/ appellant from the land and the houses with an injunction restraining the defendant/appellant from interfering with the right, title and interest of the plaintiffs/respondents.
6. The suit was contested by the defendant denying the sale in favour of Late Jahurul Hoque. The defendant pleaded that in the year 1950 Late Altab Jahan let out the entire front portion of the suit Late Tapudhan Bharali, the husband of the defendant/appellant and thereafter the entire land measuring 1K-5 leahas came to her possession and ultimately on 14.3.1984, the entire plot of land including the houses thereon was sold by Muss Arfatunessa, the wife of Altab Jahan to the defendant by a sale deed, Ext. 'Jha' and possession of the land was also delivered. Now her sons were carrying on business on the said plot of land which was established by her husband late Tapudhar Bharali since 1977.
7. On consideration of the pleadings of the parties, the learned Assistant District Judge, Nagaon before whom the T.S. No. 4/91 was instituted by the plaintiffs/respondent Nos. 1 to 4 framed as many as 6 issues which are as follows:
1. Is there any cause of action for filing the suit?
2. Is the suit maintainable in its present form?
3. Is the suit barred by limitation?
4. Whether Altab Jahan sold 121/2 lechas of land along with house to Jahurul Hoque as alleged in the plaint?
5. Whether plaintiffs have any right, title and interest over the suit land?
6. Whether plaintiffs are entitlted to any reliefs, if so, what?
8. The plaintiffs examined 5 witnesses and placed relieance upon 8 documents including Ext. 3 and the defendant examined 4 witnesses including Ext. 'Ka' and 9 documents.
9. Upon hearing the learned Counsel for the parties and on proper inspection of the evidence on record, both oral and documentary, by the judgment and decree the learned trial court on 24.3.1995 decreed the suit with costs in favour of the plaintiffs/respondents declaring right, title and interest over the suit land measuring 121/2 lechas as described in the Schedule of Ext. 3, the sale deed executed by late Altab Jahan in favour of Jahurul Hoque, against the defendant/appellant, holding that Ext. 3, the sale deed, in deciding the Issue No. 4, being the main issue in the case, although conditional one, was intended to sellout the land as mentioned in the Schedule of Ext. 3 by Altab Jahan to Jahurul Hoque, the predecessor of the plaintiffs and the sale got automatically confirmed at the death of late Altab Jahan who and his wife never disputed the sale deed during their life time.
10. Dissatisfied, the defendant/appellant preferred an appeal being T.A. No. 3/95 before the learned District Judge, Nagaon who in turn by his impugned judgment and decree dated 31.7.1998, upon careful discussion of the evidence of the witnesses and on accurate appreciation of the documents exhibited as Exhibits, dismissed the appeal affirming the views and findings arrived at by the learned trial court. He basically discussed Ext. 3 and held that the plaintiffs were entitled for a decree declaring the right, title and interest over the suit land in terms of Ext. 3, being the relevant sale deed.
11. This Court on 31.10.1998, at the time of admission of the second appeal formulated the following substantial question of law:
Whether the court below fell into error in interpreting the instrument of transfer, Ext. 3 as well as the undertaking executed by the plaintiffs. Ext. Ka, while decreeing the suit?
12. Heard Mr. C.K. Sarma Baruah, learned senior Counsel assisted by Miss M. Barthakur, learned Counsel representing the appellant as well as Mr. B.K. Goswami, learned senior Counsel assisted by Mrs. T. Goswami, learned Counsel appearing for the respondents.
13. In support of the substantial question of law so formulated, Mr. Sarma Baruah, learned senior counsel has forcefully argued that the Ext. 3, the sale deed, was not a sale deed at all in the eye of law as the same included and contained certain conditions which were also the part of contentions made in Ext. 'Ka', an unilateral document executed by the predecessor of the plaintiffs who failed, due such conditions, as already noted above, to get the ownership over the suit land. The transfer of the ownership in terms of Ext. 3 was wholly depended on the fulfilment of those conditions only incorporated in both Exts. 3 and Ext. 'Ka'. According to him, Ext. 3, the sale deed, is hit by Section 54 of the Transfer of Property Act, 1882 (for short, 'the Act'). His contention is that both the courts below, before relying on Ext. 3 exclusively, ought to have taken into consideration Ext. 'Ka' which was an agreement executed on the same date, i.e., 3.2.1948 when the sale deed Ext. 3 was also executed, in its proper perspective. He has stated that the 'sale deed Ext. 3 ex-facie clearly referred to the agreement Ext. 'Ka' and if both the Exts. '3' and 'Ka' are read together, it would give rise to the fact that the sale deed in question was absolutely a conditional one and in view of the same, the sale deed Ext. 3 cannot be said to be sale deed in accordance with Section 54 of the Act.
14. It is contended that recital of the sale deed Ext. 3 would explicitely go to show that the seller Late Altab Jahan kept the right reserved to revoke the sale deed and due to the existence and incorporation of revocation clause in the sale deed itself (Ext. 3), the sale in question was not complete.
15. Learned senior Counsel for the appellant has also argued that there was no delivery of possession which being the essential condition for completion of the sale as defined under Section 54 of the Act and the same is evident from the Ext. 'Ka' wherein it was stated that till the death of the vendor and his wife Arfatunessa, they must be allowed to remain in the house alleged to have been sold to the predecessor of the plaintiffs/respondents and they must be maintained by paying Rs. 15 p.m. In such circumstances, it is submitted that the findings of the court below are absolutely vitiated due to erroneous interpretation of Ext. 3 while ignoring Ext. 'Ka'.
16. Supporting both the judgments and decrees of the courts below, Mr. Goswami, learned senior Counsel has urged that Ext. 3 was a valid sale deed which satisfied the legal requirements of Section 54 of the Act. A close perusal of Ext. 3, according to him, would go to show that the vendor Altab Jahan sold the suit land with all intent to transfer the ownership to Jahurul Hoque at a price of Rs. 6,500 and delivery of possession was also given with understanding that since he was issueless he along with wife would be allowed to remain in the house till their death and Jahurul Hoque was to pay Rs. 15 p.m. for their maintenance till the death both the husband and wife. He has also vehemently contended that till the death of both Late Altab Jahan and his wife, there was no evidence on record to show that at any point of time there was any dispute between the vendor and the vendee and there was an occasion for revocation of sale deed, Ext. 3.
17. He has also submitted that Ext. 3 was a registered document when Ext. Ka was not a registered one which had also been referred to in the sale deed and as such Ext 3, would prevail upon Ext. 'Ka'. Unless the sale deed is revoked, the same cannot be said to be an invalid document.
18. I have carefully perused the materials available on record particularly, Ext. 3 and Ext. Ka upon which the entire issue revolves around and also given my thoughtful consideration to the contentions advanced by the learned Counsel for the parties.
19. On discreet inspection of the Ext. 3, it transpires that it has fulfilled all the requirements of Section 54 of the Act which reads as follows:
54. "Sale" defined. - "Sale" is a transfer of ownership in exchange for a price paid or promised or part paid and part-promised.
Sale how made. - Such transfer, in the case of tangible immovable property of the value of one hundred rupees and upwards, or in the case of a reversion or other intangible thing, can be made by a registered instrument.
In the case of tangible immovable property of a value less than one hundred rupees, such transfer may be made either by a registered instrument or by delivery of the property.
Delivery of tangible immovable property takes place when the seller places the buyer, or such person as he directs, in possession of the property.
Contract for sale. - A contract for the sale of immovable property is a contract that a sale of such property shall take place on terms of settled between the parties.
It does not, of itself, create any interest in or charge on such property.
20. A bare perusal of the above provision of law would go to demonstrate that the basic ingredients to constitute a sale of the immovable property on execution of sale deed are (1) transfer of ownership by passing of title, (2) passing of consideration, (3) registration of the instrument if value of the immovable property is of one hundred rupees and upwards, (4) delivery of possession and (5) such transfer must be voluntary.
21. Insofar as the delivery of possession required under Section 54 of the Act is concerned, it is that of delivery which a property according to its nature and circumstances admits of. It is not necessary under this section that vendee should go and physically occupy every nook and corner of the property sold to him.
22. In the case in hand, by dint of Ext. 3, the vendor transferred the ownership of the suit land voluntarily in exchange of a price (Rs. 6,500 herein) executing the registered sale deed by delivering the possession of one room on mutual understanding and amicable arrangement to the effect that since the vendor and his wife were issueless and both the vendor and purchaser were also in good terms, they would be permitted to stay with the purchaser in the suit land till their death. That being the factual premises, Ext. 3, cannot, by any strech of the imagination, be said to be an invalid document.
23. Moreso, the appellant could not show any document as regards revocation of the sale deed by the vendor at any point of time nor did the record reflect any grievances of the vendor against the vendee during his life time and even his wife who died after the husband's death did not, under any circumstances, make an attempt to revoke the sale deed so executed by her husband.
24. In view of the same, I do not find any illegality in the findings arrived at by the courts below.
25. The substantial questions of law so formulated above is hereby answered accordingly against the appellant.
26. Admittedly, this second appeal has been filed against the concurrent findings the courts if facts below.
27. In the result, this second appeal fails and stands dismissed.
28. However, considering the facts and circumstances of the case, there shall be no order as to costs.