Patna High Court
Rangnath Sharma And Ors. vs Tetari Bibi on 19 March, 1990
Equivalent citations: AIR1991PAT198, AIR 1991 PATNA 198
Author: Satya Brata Sinha
Bench: Satya Brata Sinha
JUDGMENT Satya Brata Sinha, J.
1. This first appeal is directed against a judgment and decree dated 29-6-1984 passed in T.S. No. 90 of 1983 by Sri Ramnath, Subordinate Judge, Palamau at Daltonganj; whereby and the whereunder the said learned Court decreed the plaintiff-respondent's suit.
2. The facts of the case, lie in a very narrow compass.
3. The plaintiff filed the aforementioned suit for specific performance of contract in respect of 28 decimals of land situate in plot Nos. 2669 and 2670 appertaining to Khata No. 276 of Village Rerma, P. S. Daltonganj, Distt. Palamau.
4. According to the plaintiff there had been an oral agreement by and between him and the defendant on 24th March, 1983, when the defendant agreed to sell the aforementioned land to him on a consideration of Rs. 30,000/-.
5. According to the plaintiff in part performance of the aforementioned agreement he was put in possession of 1 katha of land and he constructed a boundary wall thereupon.
6. The plaintiff's further case is that pursuant to the said oral agreement, the defendant filed an application for permission before the Dy. Commissioner, Ranchi in terms of Section 46 of the Chotanagpur Tenancy Act but despite grant of the said permission, she did not intimate the plaintiffs thereabout.
7. The plaintiffs having come to learn about the grant of permission to the defendant to sell the suit lands to the plaintiff by the Dy. Commissioner, got a notice served their lawyer asking the defendant to intimate him as to when she would execute the deed of sale in favour of the plaintiffs.
8. The defendant in her written statement denied the existence of any oral agreement whatsoever.
9. According to the defendant, she never filed any application for permission to sell the land in question nor did she deliver possession of I khatha of land to the plaintiff as alleged in the plaint.
The defendant further denied to have received a sum of Rs. 500/- from the plaintiffs.
10. On the basis of the aforementioned pleadings of the parties, the learned Court below framed the following issues:--
"1) Is the suit maintainable as framed?
2) Have the plaintiffs any cause of action for the suit?
3) Was there any agreement or contract between the parties to sell or purchase the land in dispute.
4) Is defendant bound to perform her part for the contract made between the parties?
5) To what other relief or reliefs if any are plaintiffs entitled?"
11. The learned trial Court inter alia held that the plaintiffs have not been able to prove the purported oral agreement dated 24th March, 1983.
The learned Court below further held that the factum of obtaining permission by the defendant to sell the land in suit to the plaintiff is not material inasmuch as despite obtaining such permission, the defendant could refuse to sell the said land to the plaintiff as she was at liberty to sell the said land in favour of any other person, she liked.
12. Mr. K. K. Sahay, the learned counsel appearing on behalf of the appellant, submitted that the learned Court below has completely misdirected itself in coming to a conclusion that there had been no agreement for sale as alleged by the plaintiff in view of the fact that it did not take into consideration Ext. 7 (application for permission), the evidence P.W. 3 and P.W. 10 who were witnesses to the agreement as also the evidence of P.Ws. 4, 5 and 6 who were witnesses with regard to subsequent conduct of the parties.
13. The learned counsel submitted that it is now a settled law that an oral agreement of sale can also been enforced in a Court of law.
The learned counsel submitted that such an oral agreement can be proved not only by direct evidence but also by adducing circumstantial evidence.
14. The learned counsel submitted that the learned Court below had taken into consideration the application for permission filed by the defendant in its proper perspective, It could come to the conclusion that an agreement of sale had been entered into by and between the plaintiff and the defendant.
15. The learned counsel further submitted that a finding on the question as to whether there had been an agreement for sale or not could have arrived at only upon taking into consideration the evidence as a whole.
16. It has further been submitted by the learned counsel that the learned Court below failed to take into consideration the effect of Full Bench decision of this Court in Bhageran Thakur v. Kewal K. Singh reported in 1969 BLJR 134 wherein this Court has held that the similar provisions of the Bihar Tenancy Act to be ultra vires the constitution.
17. The learned counsel further submitted that in this situation it must be held that the learned Court below was not correct in holding that the defendant being a Muslim lady of backward community was not competent to sell her land to any other person except backward class.
18. Mr. S. B. Gadodia, learned counsel for the respondent on the other hand, submitted that a heavy onus lay upon the plaintiffs to prove the alleged oral agreement of sale.
19. The learned counsel referred to the evidence of plaintiff who examined himself as P.W. 10 as also the evidence of P.W. 3 and submitted that from a perusal of the statement of the aforementioned two witnesses it would be evident that the plaintiffs have not been able to prove the alleged oral agreement dated 24th March, 1983.
20. The learned counsel in this connection has relied upon adecision of the Supreme Court in Ouseph Varghese v, Joseph Aley in 1970 (1) SCR 921.
21. The learned counsel further submitted that in this case the plaintiffs have not pleaded that they had all along been ready and willing to perform their part of contract as is required in terms of Form Nos. 47 and 48 of the Appendix 'A' appended to the Code of Civil Procedure and on that ground too, the plaintiffs' suit for specific performance of contract could not be entertained, In this connection, the learned counsel relied upon a recent decision of Supreme Court an Abdul Khader Rowther v. P. K. Sarabai reported in 1989 Vol. 4 Supreme Court cases 313.
22. In my opinion, the first and foremost question which aries for the consideration in this appeal is as to whether the plaintiff has been able to discharge the onus of proof to show that in fact an oral agreement was entered into on 24th March, 1983 as alleged in the plaint.
23. The second question which also arises for consideration is that in view of the fact that the learned Court below has exercised its discretion in not granting a decree for specific performance of contract whether any case has been made out so as to substitute the opinion of the learned Court below by that of this Court.
24. In the instant case it is admitted that the defendant is an old Muslim lady belonging backward class. It is further admitted that the parties proceeded on the basis that for the purpose of selling the aforementioned land, a permission of the Dy. Commissioner, Palamau at Daltonganj would be required to be obtained in terms of Section 46 of the Chota-nagpur Tenancy Act, 1908. It further appears that in the plaint the plaintiff alleged that a sum of Rs. 500/ - was given to the defendant in order to enable her to obtain permission from the Revenue authorities towards part payment of consideration.
25. In paragraph 7 of the plaint the plaintiff has alleged as follows :--
"Towards part performance of the contract to sell as stated above the defendant allowed the plaintiff No. 2 to enclose a portion of the suit-lands measuring near about one katha in plot No. 2669 by constructing a cemented compound wall and accordingly the plaintiffs have constructed the same."
26. In paragraph 14 of the plaint, the plaintiff has alleged as follows :--
"That the plaintiffs are still ready to purchase the suit-lands and pay the balance amount of consideration money before the Registering authority or to pay the consideration amount as may be ordered by the Court."
27. It is no doubt true that the defendant has not been able to prove that her L. T. I. was obtained by the plaintiffs on a false representation that they would help her in obtaining some grant from the State.
However, the question which arises for consideration is as to whether the plaintiff has been able to bring on record sufficient evidences both direct and circumstantial for the purpose of proving that in fact an oral agreement for sale was entered into by and between the parties as alleged in the plaint.
28. The plaintiff who examined himself as P.W. 10 in his deposition could not give the date as to when the said agreement was entered into nor was able to give the other details relating thereto.
29. P.W. 3 who is alleged to be the neighbourer of the defendant also failed to give the names of the persons who reside near the house of the defendant.
30. He further admitted that except him no other person residing in the locality was present.
31. He also could not give the date of the agreement except stating that the same was in the month of March.
P.W. 3 has further admitted that no papers were seen when the aforementioned talks relating to sale of land took place.
32. P.W. 10 also in his evidence stated that talks were going on in March 1983. It has further come on evidence that allegedly on the day when the aforementioned talks relating to oral agreement were going. Tetri was not present but her son-in-law was present.
33. It may be stated here that the plaintiffs have not brought any evidence to show that the son-in-law of the defendant was authorised to enter into agreement for sale on her behalf.
34. As noticed hereinbefore, Mr. K. K. Sahay has strongly relied upon Ext. 7 which is an application for obtaining the permission to sell the suit land. The said application was marked as Ext. 7.
From paragraph 2 of the said application it appears that the necessity for the defendant to sell the property was stated to be the marriage of her daughter as also paying loans to her creditor.
35. It is the specific case of the defendant that both her daughters had been married earlier. This aspect of the matter has not been denied by the plaintiff.
36. Further, as noticed hereinbefore, the plaintiff in the plaint categorically stated that he came in possession of 1 katha of land in part performance of the contract.
37. In terms of Section 53(A) of the Transfer of Property Act, possession may be delivered of the land in respect whereof an agreement of sale has been entered into only when such an agreement is in writing.
38. For the purpose for fulfilling the terms of Section 53(A) of the Transfer of Property Act, such an agreement in writing must incorporate the terms and conditions of transfer so as to enable the court to ascertain thereabout with reasonable certainty.
For that purpose also the transferee must show that he has been ready and/or willing to perform his part of contract.
39. In view of the fact that the plaintiffs' definite case was that the possession was delivered in part performance of the agreement, in my opinion, it cannot be believed that the plaintiffs would not be advised to enter into an agreement in writing.
40. So far as Ext. 7 is concerned the same was also filed on 24th March 1983, itself on which date the alleged oral agreement was entered into.
41. P.W. 10 has at all relevant time was a student,
42. Plaintiff No. 2 who was his uncle has not examined himself.
43. It is likely that the defendant or any other person on her behalf had talked to the plaintiff No. 1 only in view of the fact that it has specifically been stated in the deposition of P.W. 10 that the plaintiffs belong to a joint family.
44. Even in the aforementioned applica tion, nothing has been shown that a conclud ed agreement had been arrived at by and between the parties. In the said application also the transaction for which permission was sought for has been described to be a propos ed one.
45. It is further the case of the defendant that the valuation of the property in question would be about Rs. 1 lakh.
46. P.W. 10 except merely denying the aforementioned assertions of the defendant in para 5 of his evidence, did not bring on record any other evidence to show that the assertion of the defendant was incorrect.
47. It is true that in order to prove an oral agreement, even the circumstantial evidence attending to the transaction may have to be considered but the court can not lose sight of the situations prevailing in the society and is also entitled to consider the normal conduct of a person inasmuch as in a situation when a transaction was going to take place for a heavy amount and that too a deed of sale was to be executed by a lady and in part per-formance of the alleged agreement the plaintiff was put in possession of a portion of the land proposed to be sold, the normal conduct of the parties would to enter into an agreement in writing particularly in view of the mandatory provisions contained in Section 53(A) of the Transfer of Property Act.
48. In Ouseph Varghese v. Joseph Aley reported in 1970(1) SCR 921, the Supreme Court has clearly held that the burden of proof is heavy upon a person who intend to get an oral agreement specifically enforced through a court of law.
49. In that decision also, the plaintiff did not plead as in this case that he was ready and willing to perform the agreement in question pleaded in the written statement.
50. Taking thus all facts and circumstances into consideration, in my opinion, as the plaintiff has failed to prove the factum of oral agreement as alleged by him in the plaint, he is not entitled to a decree for a specific performance of contract.
Further it is well known that a decree for specific performance of contract cannot be granted only because it is lawful to do so.
51. A decree for specific performance of contract is an equitable one.
In this case the learned trial court upon taking into consideration various aspects of the matter has refused to exercise its discretion in granting a decree for specific performance of contract.
52. The appellate court normally does not substitute its discretion in place of that of learned trial court unless a strong case in that regard is made out.
53. In my opinion, the plaintiffs have not been able to make out such a case.
54. It further appears that apart from the fact that in the plaint it has been stated in the plaint that the plaintiffs had all along been ready and willing to perform their part of contract but also they could not prove the same.
55. From a perusal of Ext. 1 which is a notice dated 2-11-1983 issued by the Advocate of the plaintiff, it appears no such statement had also been made therein also.
56. Further it does not appear to be a normal conduct of the plaintiffs that despite entering into such an agreement, they would not pursue the matter with regard to obtaining of permission from the Dy. Commissioner, Palamau as is evident from the said Ext. 1 as also the statements made in the plaint that they came to learn from some reliable source that such a permission has been granted.
57. It is, therefore, clear from the conduct of the plaintiffs that they had also not been pursuing the matter relating to the obtaining permission.
58. Taking thus, all the aspects of the matter into consideration, I am of the view that there is no merit in this appeal which is accordingly dismissed. However, in the facts and circumstances of the case there will be no order as costs.