Patna High Court
Baudhu Mahton vs Bhagwat Ram And Ors. on 4 April, 2000
Equivalent citations: 2000(2)BLJR820
JUDGMENT Ravi Nandan Sahay, J.
1. This appeal is by the plaintiff Baudhu Mahton against the concurrent decree of the Court below dismissing the suit for specific performance of contract. The original plaintiff died and this appeal is now being represented by his legal heirs Following are the material facts for disposal of this appeal.
2. According to the plaintiffs case, Survey Plot Nos. 5075, 5300 and 5126 each having an area of 0.4 acres situated in village Deepnagar, P.S. Deepnagar, District Nalanda were recorded as Gairmazarua Malik land in the record of rights. In the remarks column names of Bhattu Mehra son of Jittan Mehra and father of defendants No. 1 and 4 were entered. Bhattu Mehra had one full brother namely, Mangar Mehra. There was partition between Bhattu and Mangar according to which plot No. 5075 was divided into two parts and 2 decimals of the said plot from eastern side fell to the share of Mangar Mehra and 2 decimals from western side fell to the share of Bhattu Mehra. After partition, Bhattu and Mangar constructed residential houses and after the death of Bhattu his heirs came in possession of two decimals of land with house standing thereon. Defendants No. 1 to 10 are heirs of Bhattu Mehra, Defendant No. 1 Bhagwat Ram was the karta of the Joint Hindu Family.
3. The case of the plaintiff was that in order to meet family expenditure the defendant No. 1 entered into contract to sell 2 decimals of land with building standing thereon to the plaintiff and executed registered Baibeyana deed on 28.12.1971. Entire consideration money was paid to the vendor but he failed to execute the sale-deed and hence the suit.
4. Three separate written statements were filed by the defendants. According to defendant Nos. 1 to 3 in their written statement, Bhattu had four sons, namely, Halkhori, Dukhan, Ram Prasad and Bhagwat Ram. There was Khangi batwara between them in the year 1958 according to which Halkhori and Bhagwat Ram got their share jointly and remained joint. Similarly, Dukhanand Ram Prasad got their shares jointly and remained joint. Halkhori died leaving behind his widow and daughter and his property devolved to defendant No. 1 by way of survivorship. Therefore, Bhagwat Ram got only one decimal of land from eastern side of plot No. 5075 and Dukhan and Ram Prasad got one decimal in the western side of the said plot.
5. In Plot No. 5075 2 decimals of land which was adjacent to east of share of defendant No. 1 was possessed by Mangar Kahar, uncle of defendant No. 1 Bhagwat Ram. Bhagwat Ram entered into an agreement with the plaintiff to sell one decimal of land of his share. It is alleged that the plaintiff cleverly managed to enter 2 decimals instead of one decimal in Baibeyana deed by bringing the scribe in his collusion. Bhagwat Ram having discovered this fact on 14.2.1972 when he obtained certified copy of the deed, sent a pleader's notice to the plaintiff on 16.2.1972. Defendant No. 1 by notice agreed to execute the sale-deed in respect of one decimal of land but he did not turn up for getting the deed executed by him by stipulated date, i.e., 25.5.1974. The defendants have disputed that Bhagwat Ram was karta of the joint family.
6. Defendants No. 4 and 5 in their written statement while supporting the case of defendants No. 1 to 3 had alleged that Savitri Devi is daughter of Halkhori and she had got share in the disputed plot, hence the defendant No. 1 was not legally entitled to enter into an agreement to sell the land of disputed plot beyond his share.
7. Defendants No. 12 and 13 in their written statement alleged that plot No. 5126 having an area of 4 decimals was also in possession of Bhattu Kahar (son of Jitan Kahar), Jian Kahar son of Mangar and Kailash son of Doman and their names were entered in the survey khatian. Bhattu and Mangar exchanged plot No. 5075 with plot No. 5126 and accordingly Bhattu and his heirs came in possession of plot No. 5126 and Jian Kahar and Kailash came in possession of plot No. 5075. Jian Kahar, and Kailash Kahar Partitioned plot No. 5075 among themselves, according to which Kailash got 2 decimals from western side of 5075 but on 13.6.1972, he sold the same to Chamru Kahar, son of Somar Kahar by registered sale-deed. Chamru Kahar came in possession of 2 decimals of land. After the death of Chamru Kahar his son Chandrika Kahar sold the same to defendant Nos. 12 and 13 on 12.4.1977 and the remaining two decimals of land which was in the share of Jian Kahar was sold by his wife Dhukhia Devi through a registered deed of sale to Jagamath Lal and after the death of Jagamath Lal the said portion has been coming in possession of his son Sita Lal.
8. It was alleged that on plot No. 5075, there were two houses out of which one is in possession of defendant Nos. 12 and 13 and the other is in possession of Sita Lal-Thus, according to defendant Nos. 12 and 13, defendant No. 1 had got no title and possession over plot No. 5075 or the house standing thereon. He, therefore, had no right to transfer the land by the agreement in question.
9. Learned Munsif found that defendant No. 1 had really contracted to sell 2 decimals of plot No. 5075 and accordingly treated the Baibeyana deed dated 2.12.1971 to be genuine and valid. Learned Munsif further found that defendant No. 1 was not in possession of the said plot on the date he entered into an agreement to sell the land to the plaintiff and as such he could not be directed to execute the sale-deed of 2 decimals of the suit plot. He, however, decreed the suit in part and directed the defendant No. 1 to pay Rs. 500/- to the plaintiff.
10. The plaintiff appealed against the decree on the ground that the defendant No. 1 was bound to execute the sale-deed when the Baibeyana deed was genuine and valid document. The defendant had admitted that he was in possession of only one decimal of disputed plot and he had agreed to sell one decimal of land which was not accepted by the plaintiff.
11. The case of the defendant Nos. 12 and 13 is totally different. According to them defendant No. 1 was not in possession of any portion of plot No. 5075 on the date he agreed to sell 2 decimals of land of the said plot to the plaintiff.
12. Learned Additional District Judge, who heard the appeal, observed that the finding of the Munsif regarding genuineness of the Baibeyana deed dated 2.12.1971 has not been seriously challenged by the defendants. Learned Additional District Judge, therefore, proceeded to decide the question whether the suit plot was really in possession of defendant No. 1 and his family members on the date he entered into an agreement to sell the same to the plaintiffs. On this point, contest was between the plaintiff and defendants Nos. 12 and 13. The plaintiff tried to establish that the defendant No. 1 was in possession of 2 decimals of the spouted plot on the date of agreement while contrary efforts were made to prove by the defendant Nos. 12 and 13.
13. Khatian (Ext. 5) showed that plot No. 5075 was recorded as Gairmazarua Malik land in possession of Bhattu father of defendant Nos. 1 to 4 and Mangar Mehra. According to defendants No. 12 and 13, plot No. 5126 having an area of 4 decimals was also in possession of Bhattu, Jian and Kailash and Bhattu had exchanged 2 decimals of plot No. 5075 with 2 decimals of plot No. 5126. The remaining 2 decimals of plot No. 5075 were also purchased by Kailash and Jian by registered sale-deed dated 2.5.1971 (Ext. A). Further case of the defendant Nos. 12 and 13 has already been stated in earlier part of the judgment. A registered sale-deed (Ext. A/4) dated 10.7.1935 was executed by Dukhia Devi wife of Jian Ram in favour of Jagarnath Lai whereby 2 decimals of plot No. 5075 was sold to Jagarnath Lai who constructed his house on the said plot.
14. Learned Additional District Judge has stated that on carefully scrutiny of the two sale-deeds, i.e., Ext. A and Ext. A/4, it appears that Bhattu Ram had exchanged 2 decimals of plot No. 5075 with plot No. 5126. The remaining 2 decimals in possession of Mangar was also purchased by Jian and Kailash Ram. Learned Additional District Judge further found that the case of defendant Nos. 12 and 13 further finds support from the evidence of D.Ws. 1 to 5. Learned Additional District Judge has discussed the oral evidence in para 23 of the judgment. Oral evidence regarding possession of Bhattu has been led on behalf of the plaintiff. Learned Additional District Judge in consideration of the oral evidence of the plaintiff held that four sons of Bhattu were separate from each other. They constructed separate houses on plot No. 5126.
15. Learned Additional District Judge did not accept the evidence of the plaintiff that defendant No. 1 was in possession of 2 decimals of plot No. 5075. Learned Additional District Judge rejected the evidence adduced on behalf of Bhagwat Ram defendant No. 1 that he was in possession of one decimal of plot No. 5075. Learned District Judge accepted the story of exchange propounded by defendants No. 12 and 13. The ultimate finding of the learned District Judge is in para 26 of the judgment as reproduced below:
26. Thus, from a careful scrutiny of the oral and documentary evidence adduced on behalf of the parties, it appears that there was really an exchange of 2 decimals of plot No. 5075 with 2 decimals of 5126. From the evidence on record, it also appears that Mangar Mehra son of Sumeri had also really sold away the remaining 2 decimals of the above said plot to Kailash Ram son of Doman Ram and Jian Ram son of Mangar Kahar in the year 1917 by registered sale-deed Ext. A and in this was Bhattu father of respondent No. 1 had no concern with plot No. 5075. But in spite of that he (respondent No. 1) Bhagwat Ram entered into an agreement to sell 2 decimals of the said plot with a house standing thereon to the plaintiff. In view of that the learned Munsif has rightly come to the conclusion that respondent No. 1 had no title and possession over the above said 2 decimals of the suit land and as such he was not liable to execute a sale-deed in favour of the plaintiff appellant as per his agreement with him. Such being the position, I do not find any merit in the above said contention of the learned lawyer for the plaintiff-appellant, that the learned Munsif should not have decreed the suit in part.
16. Learned Additional District Judge further held that learned Munsif had not committed any error due to fact that he did not go through para No. 4 of the written statement filed on behalf of defendants 12 and 13. On this point learned appellate Court observed as follows:
...Undoubtedly on careful scrutiny of para 4 of the written statement filed on their behalf, it appears that Bhattu Kahar and Mangar Kahar exchanged plot No. 5075 with plot No. 5126, according to which they came in possession of plot No. 5126 and the said Jian Kahar, son of Mangar and Kailash, son of Doman came in exclusive possession of plot No. 5075. But para 6 of the said written statement gives clear picture all about it. Because in the said para it has been clarified as to how Kailash and Jian came in possession of plot No. 5075. In view of that the case of Respondent Nos. 12 and 13 has to be determined on the basis of para Nos. 4 and 6 of their written statement and not only on the basis of para No. 4. In view of that, 1 also do not find any merit in the above, said contention of the learned lawyer that the learned Munsif has committed mistake in passing the above-said judgment and decree due to the reason that he has not carefully gone through para No. 4 of their written statement.
17. Learned appellate Court on these findings dismissed the appeal. The first substantial question of law raised on behalf of the appellant is as to whether the Court below is bound to decree the suit for specific performance of contract after coming a conclusion that Baibeyana Deed was genuine and valid document?
18. The second question raised is as to whether the judgment of the appellate Court was vitiated on account of non-consideration of Ext. 6?
19. In a suit for specific performance of contract, defendants title to suit property cannot be agitated. As held by the Madras High Court in Panne Khushali v. Jeevanlal AIR 1976 Mad 148 (FB), that the scope of a suit for specific performance ought not to be allowed to be enlarged so as to make it a suit for title. At the same time, if a person has a direct interest in the property and an effective decree cannot be passed in the absence of that party, the plaintiff is entitled to join that party in a suit for specific performance and such a person is at least a proper party, even if not a necessary party. In the instant case, the plaintiff has in vided decision of question of title of the defendants.
20. The case of defendant Nos. 12 and 13 was that defendant No. 1 had no title and possession over plot No. 5075 or the house standing thereon. The claim of defendant Nos. 12 and 13 has been noticed in para 13 of the judgment. The case of defendant Nos. 12 and 13 has been accepted by both the Courts below.
21. Finding of both the Courts below is that defendant No. 1 had no title over the property which he agreed to transfer to the plaintiff. The suit, therefore, must fail as there is no ground for any relief claimed by the plaintiff.
22. It is, however, contended that most important document filed on behalf of the plaintiff, i.e., Ext.-6 has not been discussed. According to the learned Counsel, Ext.-6 completely belies the case of the defendants and supports the case of the plaintiffs that plot No. 5075 does belong to Bhagwat Ram in respect of which the plaintiff was brought into existence.
23. Ext.-6 is the Certificate given by the Panch. It cannot be argued that this document can destroy the effect of the evidence adduced by the parties regarding absence of title of defendant No. 1 with respect to the suit property. Judgment of the Courts below does not show that any argument was advanced on the basis of Ext.-6. It is difficult to believe that any argument was advanced in respect of Ext.-6. At least, the appellate Court would not have ignored it. Before this Court also, it has not been shown that consideration of Ext.-6 would have turned the table in favour of the plaintiff even if adverse finding regarding title of defendant No. 1 has been recorded. Non-consideration of Ext-6 does not vitiate the findings of the Court below.
24. This appeal is concluded by finding of fact and is accordingly dismissed but without costs.