Orissa High Court
Dilip Kumar Dey vs Smt. Kanchanbala Singh (Dead) And ... on 30 July, 2024
IN THE HIGH COURT OF ORISSA AT CUTTACK
S.A. No.173 of 1993
(In the matter of an appeal under Section 100 of the Code of Civil Procedure, 1908)
Sri Bhagabat Goswain Thakur installed at Khatbin Sahi, Thana-
Lalbag, Town & District-Cuttack,
Marfat Khatbin Sahi Puja Committee through its members:-
1. Dilip Kumar Dey
2. Bidhyadhar Behera .....Appellant
-versus-
Smt. Kanchanbala Singh (Dead) and others ..... Respondents
Appeared in this case by Hybrid Arrangement (Virtual/Physical Mode):
For Appellant - Mr. D.P. Mohanty,
Advocate.
For Respondents- Mr.S.P. Mishra,
Sr.Advocate.
Mr. B. Behera,
Advocate.
CORAM:
MR. JUSTICE A. C. BEHERA
Date of Hearing :09.07.2024 :: Date of Judgment :30.07.2024 A.C. Behera, J. This second appeal has been preferred against the reversing judgment.
2. The appellant of this second appeal was the plaintiff before the Trial Court in the suit vide T.S. No.240 of 1983 and respondent before the First Appellate Court in the First Appeal vide T.A. No.45 of 1988. Page 1 of 25
{{ 2 }} The respondents of this second appeal were the defendants before the Trial Court in the suit vide T.S. No.240 of 1983 and appellants before the First Appellate Court in the First Appeal vide T.A. No.45 of 1988.
3. The suit of the plaintiff (appellant in this second appeal) before the Trial Court against the defendants (respondents in this second appeal) vide T.S. No.240 of 1983 was a suit for specific performance of contract in alternative for the refund of advance money with interest.
4. The plaintiff (Sri Bhagabat Goswain Thakur) installed at Khatbinsahi under Lalbag P.S. inside Cuttack Town in the district of Cuttack being a Deity is represented through plaintiff Nos.1 & 2 i.e. Dillip Kumar Dey and Bidyadhar Behera.
5. According to the plaintiff's case, the suit properties belong to the defendant No.1 Smt. Kanchanabala Singh. On dated 19.06.1980, the defendant No.1 executed an agreement to sell the suit properties in favour of the plaintiff-Deity represented through the plaintiff Nos.1 & 2 for a consideration amount of Rs.8,000/- after receiving Rs.5,000/- as advance out of Rs.8,000/- towards part payment of the same with a condition that, she (defendant No.1) shall execute and register the sale deed in favour of the plaintiff-Deity within 15 days after receiving permission for sale from the Urban Land Ceiling Authority and shall receive the rest consideration amount i.e. Rs.3,000/- at the time of execution and registration of the sale Page 2 of 25 {{ 3 }} deed. But, subsequent thereto, the defendant No.1 did not execute and register the sale deed in respect of the suit properties in favour of the plaintiff-Deity incompliance with the terms of the agreement to sell dated 19.06.1980, though the plaintiff-Deity was/is always ready and willing to fulfill its part of contract for payment of the rest consideration amount i.e. Rs.3,000/-. But, instead of executing and registering a sale deed in respect of the suit properties in favour of the plaintiff-Deity, as per the terms of the agreement to sell dated 19.06.1980, the defendant No.1 sold the suit properties to the defendant No.2 by executing and registering a sale deed on dated 29.10.1982. The defendant No.2 having his full knowledge about the execution and registration of the agreement to sell dated 19.06.1980 by his vendor i.e. the defendant No.1 in favour of the plaintiff-Deity in respect of the suit properties, he (defendant No.2) purchased the same. For which, without getting any way, the plaintiff- Deity approached the Civil Court by filing the suit for part performance of contract dated 19.06.1980 vide T.S. No.240 of 1983 against the defendants praying for directing the defendant Nos.1 & 2 to execute and register a sale deed in favour of the plaintiff-Deity in respect of the suit properties within the stipulated period as per the direction of the Court, failing which, to execute and register the sale deed by the Court itself on behalf of the defendants in favour of the plaintiff-Deity, in alternative to Page 3 of 25 {{ 4 }} recover the advance money i.e. Rs.5,000/- with interest from the defendants along with other reliefs, to which, the plaintiff-Deity is entitled for.
6. Having been noticed from the Trial Court in the suit vide T.S. No.240 of 1983 filed by the plaintiff-Deity, the defendants contested the same by filing their written statements separately.
As per the pleadings of the defendant No.1, the plaintiff-Deity Sri Bhagabat Goswain Thakur is a private Deity. Plaintiff Nos.1 & 2 (Dillip Kumar Dey and Bidyadhar Behera) are not the marfatdars of the plaintiff- Deity. So, they (plaintiff Nos.1 & 2) are not competent under law to enter into any agreement with her (defendant No.1) on behalf of the plaintiff- Deity.
According to her (defendant No.1), no agreement was executed by her (defendant No.1) in favour of the plaintiff-Deity through the representation of the plaintiff Nos.1 & 2. Her specific plea/case was that, there was dispute between her husband and brother of her husband. For which, their sahi people decided to make a settlement and for such settlement, her husband and her husband's brother were asked to supply stamp paper worth of Rs.1.50paise in order to authorize them (sahi people) to settle the dispute between them and accordingly, her husband purchased stamp paper worth of Rs.1.50paise and handed over the same Page 4 of 25 {{ 5 }} to the sahi people including the plaintiff Nos.1 & 2 Dillip Kumar Dey and Bidyadhar Behera, because they (Dillip Kumar Dey and Bidyadhar Behera) were the members with others of their sahi for such settlement. But, Dillip Kumar Dey and Bidyadhar Behera (plaintiff Nos.1 & 2) have used the said stamp papers by forging the same into an agreement to sell dated 19.06.1980 for the purpose of this suit in respect of the suit properties. She (defendant No.1) denied to have received any amount from the plaintiff-Deity. According to her (defendant No.1), there was no occasion for her to give any proposal for sale of the suit properties to the plaintiff-Deity. For which, the suit of the plaintiff for specific performance of contract against her (defendant No.1) in respect of the suit properties is not maintainable under law. So, the suit of the plaintiff is liable to be dismissed against her (defendant No.1).
The defendant No.2 also challenged the suit of the plaintiff by taking his stands in his written statement that, he had no knowledge about any agreement for sale between the defendant No.1 and plaintiff in respect of the suit properties, but he (defendant No.2) is a bonafide purchaser of value of the suit properties.
Therefore, he (defendant No.2) cannot be asked to execute sale deed in respect of the suit properties in favour of the plaintiff. For which, Page 5 of 25 {{ 6 }} the suit of the plaintiff is liable to be dismissed against him (defendant No.2).
7. Basing upon the aforesaid pleadings and matters in controversies between the parties, altogether 12 (twelve) numbers of issues were framed by the Trial Court in the suit vide T.S. No.240 of 1983 and the said issues are:-
ISSUES
(i) Is the suit maintainable in law?
(ii) Has the plaintiff any cause of action to file the suit?
(iii) Is the suit barred by law of limitation?
(iv) Is the suit grossly undervalued?
(v) Is the impugned agreement for sale is vague and void for uncertainty?
(vi) Is the suit hit by the provisions of the Specific Relief Act?
(vii) Has the plaintiff been properly represented?
(viii) Is the suit liable to be dismissed for want of mutuality of contract between the parties?
(ix) Has the defendant No.1 ever executed any agreement on 19th June, 1980 agreeing for sale of the suit land to the plaintiff for consideration of Rs.8,000/-?
(x) Has the plaintiff paid advance consideration of Rs.5,000/- to the said defendant No.1 as alleged?
(xi) Is the plaintiff entitled to any relief as prayed for?
(xii) Is the defendant No.2 a bonafide purchaser for value without notice of the contract dated 19.06.1980?
8. In order to substantiate the aforesaid relief sought for by the plaintiff against the defendants, the plaintiff-Deity examined altogether 7 (seven) numbers of witnesses on its behalf including the plaintiff Nos.1 and 2 as P.Ws.6 & 7 and relied upon the documents vide Exts.1 to 4.
On the contrary, in order to nullify/defeat the suit of the plaintiff, the defendants examined 5 (five) witnesses from their side including Page 6 of 25 {{ 7 }} defendant Nos.1 & 2 as D.Ws.1 & 5 respectively and relied upon the documents vide Exts.A to E on their behalf.
9. After conclusion of hearing and on perusal of the materials, documents and evidence available in the Record, the Trial Court answered all the issues in favour of the plaintiff-Deity and against the defendants and basing upon the findings and observations made by the Trial Court in the issues in favour of the plaintiff-Deity and against the defendants, the Trial Court decreed the suit of the plaintiff-Deity vide T.S. No.240 of 1983 on contest against the defendants as per its judgment and decree dated 30.07.1988 and 20.09.1988 respectively and directed the defendant No.1 to execute and register a sale deed in favour of the plaintiff-Deity in respect of the suit properties receiving the balance consideration amount i.e. Rs.3,000/- within three months from the date of the judgment, failing which, the plaintiff is at liberty to execute the same through Court after depositing the balance consideration amount and registration fee and declared that, the sale deed executed by the defendant No.1 in respect of the suit properties in favour of the defendant No.2 as null and void assigning the reasons that, though the plaintiff Nos.1 & 2 are not the marfatdars of the plaintiff-Deity, but as per the available evidence, when they (plaintiff Nos.1 & 2) use to manage the affairs of the plaintiff-Deity according to the admissions of the defendants through Page 7 of 25 {{ 8 }} their witness (D.W.3), then as per law, they (plaintiff Nos.1 & 2) were not incompetent under law to execute agreement dated 19.06.1980 on behalf of the plaintiff-Deity with the defendant No.1 for purchasing the suit properties, because in the eye of law, they had entered into the agreement with the defendant No.1 for no other reason, but only for the benefit of the plaintiff-Deity. For which, they (plaintiff Nos.1 & 2) were not incompetent under law to enter into the agreement with the defendant No.1 on behalf of the plaintiff-Deity in order to purchase the suit properties. Therefore, the suit of the plaintiff through the representation of the plaintiff Nos.1 & 2 Dillip Kumar Dey and Bidyadhar Behera against the defendants is properly maintainable under law. When the defendant No.1 admitted about the use of stamp paper for agreement to sell dated 19.06.1980 vide Ext.1 in respect of the suit properties and when she (defendant No.1) did not take any step for examination of her disputed signatures on the agreement to sell vide Ext.1 through comparison with her admitted signatures by any handwriting expert, then it was held by the Trial Court that, the defendant No.1 had executed the agreement to sell dated 19.06.1980 vide Ext.1 in respect of the suit properties in favour of the plaintiff-Deity and had received Rs.5000/- as advance out of Rs.8,000/- and the defendant No.2 is not a bonafide purchaser of the suit properties for value without notice about the Page 8 of 25 {{ 9 }} agreement to sell dated 19.06.1980 vide Ext.1, as his house is very close to the suit land. For which, the sale deed executed by the defendant No.1 in favour of the defendant No.2 in respect of the suit properties is null and void.
10. On being dissatisfied with the aforesaid judgment and decree passed by the Trial Court on dated 30.07.1988 and 20.09.1988 respectively in the suit vide T.S. No.240 of 1983 in favour of the plaintiff-Deity and against the defendants, they (defendants) challenged the same by preferring the First Appeal vide T.A. No.45 of 1988 being the appellants against the plaintiff-Deity arraying the plaintiff-Deity as respondent.
11. After hearing from both the sides, the First Appellate Court allowed that First Appeal vide T.A. No.45 of 1988 of the defendants on contest against the plaintiff-Deity and set aside the judgment and decree dated 30.07.1988 and 20.09.1988 respectively passed in T.S. No.240 of 1983 by the Trial Court in favour of the plaintiff-Deity and dismissed the suit of the plaintiff-Deity vide T.S. No.240 of 1983 as per its judgment and decree dated 13.05.1993 and 07.07.1993 respectively passed in T.A. No.45 of 1988 assigning the reasons that, when the plaintiff Nos.1 & 2 i.e. Dillip Kumar Dey and Bidyadhar Behera are not the marfatdars of the plaintiff-Deity (Sri Bhagabat Goswami Thakur) at Khatbinsahi, then they Page 9 of 25 {{ 10 }} were not competent under law to execute the agreement to sell vide Ext.1 for purchasing the suit properties in the name of the plaintiff-Deity out of the Deity's fund and they cannot represent the plaintiff-Deity and they also cannot bring the suit on behalf of the plaintiff-Deity and as such, the plaintiff-Deity (Sri Bhagabat Goswami Thakur) has not been properly represented in the suit, for which, the suit brought by Dillip Kumar Dey and Bidyadhar Behera as the representative of the plaintiff-Deity is not maintainable under law and on comparison of the disputed signatures of the defendant No.1 in the agreement to sell dated 19.06.1980 vide Ext.1 with her admitted signatures in her written statement and sale deed executed by her in favour of the defendant No.2 through the use of naked eye, it is found that, the signatures available in the agreement to sell vide Ext.1 appear as the signatures of defendant No.1 are not her real signatures. So on the basis of such comparison of signatures itself by the First Appellate Court through the use of naked eye, final opinion was formed by the First Appellate Court that, the agreement to sell vide Ext.1 dated 19.06.1980 was not executed by the defendant No.1 in favour of the plaintiff-Deity. For which, the findings and observations made by the Trial Court in its judgment and decree about the due execution of the agreement to sell dated 19.06.1980 vide Ext.1 by the defendant No.1 in favour of the plaintiff-Deity cannot be sustainable under law. So, it was Page 10 of 25 {{ 11 }} held by the First Appellate Court that, the agreement to sell vide Ext.1 is a forged and vague one and also held that, when the defendant No.1 has admitted about the execution and registration of the sale deed dated 29.10.1982 vide Ext.C in respect of the suit properties in favour of the defendant No.2, then the defendant No.2 is a bonafide purchaser for value of the suit land. For which, after purchasing the suit land from the defendant No.1, the defendant No.2 has become the lawful owner of the suit land. Therefore, the plaintiff-Deity is not entitled for the decree of specific performance of contract against the defendants on the basis of the said forged agreement to sell dated 19.06.1980 vide Ext.1 and the suit of the plaintiff is not maintainable due to lack of proper representation of the plaintiff-Deity for filing the same.
12. On being aggrieved with the aforesaid judgment and decree dated 13.05.1993 and 07.07.1993 respectively passed by the 1st appellate Court in T.A. No.45 of 1988 in dismissing the suit of the plaintiff-Deity setting aside the judgment and decree of the Trial Court, the plaintiff-Deity challenged the same by preferring this second appeal being the appellant represented through Dillip Kumar Dey and Bidyadhar Behera against the defendants arraying them (defendants) as respondents.
13. This Second Appeal was admitted on formulation of the following substantial questions of law i.e.-
Page 11 of 25
{{ 12 }}
(i) Whether the conclusions regarding the non-
maintainability of the suit are legal?
(ii) Whether declaration of the Endowment authorities
under the Orissa Hindu Religious Endowments Act, 1951 was compulsory for the maintainability of the suit?
(iii) Whether conclusions regarding the forged signatures are supportable with reference to materials on record?
(iv) Whether the lower appellate court committed an error in not considering the effect of agreement, Ext.1?
14. I have already heard from the learned counsels of both the sides.
15. As the above four formulated substantial questions of law are interlinked having ample nexus with each other as per the judgment and decree passed by the Trial Court and First Appellate Court on the basis of the pleadings and evidence of the parties, then all the four formulated substantial questions of law are taken up together analogously for their discussions hereunder.
16. It is very fundamental in law that, Deity being a juristic person is to act through human agency. A worshiper of the Deity has power to represent and protect the interest of the Deity.
The present suit at hand vide T.S. No.240 of 1983, which was filed by the plaintiff (Deity) being represented through plaintiff Nos.1 & 2 i.e. Dillip Kumar Dey and Bidyadhar Behera is not a suit in respect of the administration of the affairs of the Deity and the religious institution. But, the suit is for specific performance of contract in order to purchase the Page 12 of 25 {{ 13 }} suit property from the defendants for no other reason, but only in order to protect the interest of the plaintiff-Deity i.e. for the benefit of the plaintiff-Deity.
It is the concurrent findings of the Trial Court as well as First Appellate Court in their respective judgment and decree that, Dillip Kumar Dey and Bidyadhar Behera (plaintiff Nos.1 & 2) are not the marfatdars of the plaintiff-Deity, but they (plaintiff Nos.1 & 2) are managing the affairs of the plaintiff-Deity.
The witnesses of the defendants i.e. D.Ws.3 & 4 have deposed in their respective evidence that, Dillip Kumar Dey and Bidyadhar Behera (plaintiff Nos.1 & 2) used to take active part in the management of the plaintiff-Deity along with some other young men.
So, from the aforesaid concurrent findings of the Trial Court and First Appellate Court, it is forthcoming that, Dillip Kumar Dey and Bidyadhar Behera, on whose representation, the suit vide T.S. No.240 of 1983 was filed, they (Dillip Kumar Dey and Bidyadhar Behera) are in the management of the plaintiff-Deity.
On this aspect, the propositions of law has already been clarified in the ratio of the following decisions by the Apex Court and Hon'ble Courts:-
(i) 2017 (2) CCC 261 (Kerala)-- Phalgunan N.K. and another Vrs. Wilson Joseph and Others--(Paras 13 & Page 13 of 25 {{ 14 }}
14)--Deity being a juristic person had to act through human agency.
(ii) AIR 1967 (SC) 1044--Bishwanath and another Vrs.
Sri Thakur Radha Ballabhli and others--(Para 10)--An idol is in the position of a minor and when the person representing it leaves it in a lurch, a person interested in the worship of the idol can certainly be clothed with an ad hoc power of representation to protect its interest.
(iii) 2017 (2) O.J.R. (344)--Sanjay Kumar Sahu Vrs. Sri Sri Laxmi Narayan Mahaprabhu Bije--(Para 11)--Odisha Hindu Religious Endowments Act, 1951--Section 73--Bar of suits--Suit is by the Deity for eviction of a person, who after termination of his tenancy is continuing with such occupation--This is not a suit in respect of administration of the affairs of the Deity and the religious institution--Suit relating to the property of the Deity and Religious Institution with the relief of getting back the physical possession is maintainable.
17. Here in this suit at hand, when the suit vide T.S. No.240 of 1983 has been filed by the plaintiff-Deity on being represented through Dillip Kumar Dey and Bidyadhar Behera (plaintiff Nos.1 & 2), those are in the management of the affairs of the plaintiff-Deity for no other reasons but only for the benefit and protection of the interest of the Deity i.e. in order to purchase the suit properties from the defendants in the name of the plaintiff-Deity, then at this juncture, in view of the principles of law enunciated in the ratio of the aforesaid decisions, the suit of the plaintiff cannot be held to be not maintainable under law on the ground of lack of proper representation of the plaintiff-Deity.
Therefore, the findings and observations made by the First Appellate Court reversing the findings and observations of the Trial Court that, the suit of the plaintiff-Deity vide T.S. No.240 of 1983 was not Page 14 of 25 {{ 15 }} maintainable due to lack of proper representation of the plaintiff-Deity, as Dillip Kumar Dey and Bidyadhar Behera (plaintiff Nos.1 & 2) had no locustandi to represent the plaintiff-Deity for filing the suit vide T.S. No.240 of 1983 are held to be inacceptable under law. For which, in other words, it is held accepting the findings and observations of the Trial Court that, the suit of the plaintiff-Deity being represented through Dillip Kumar Dey and Bidyadhar Behera (plaintiff Nos.1 & 2) was maintainable under law.
18. Even though, the defendant No.1 has denied the execution of the agreement to sell dated 19.06.1980 vide Ext.1 disputing her signatures thereon, but no attempt or step was taken either by her (defendant No.1) or by defendant No.2 either through any application/petition or otherwise either before the Trial Court or before the First Appellate Court for comparison of the disputed signatures of the defendant No.1 in the Ext.1 with her admitted signatures by any handwriting or scientific expert making any prayer for the same in order to establish lawfully that, the so called disputed signatures of the defendant No.1 in Ext.1 are not her signatures. But, when the First Appellate Court has observed at the end of paragraph No.12 of its judgment that, the Court i.e. First Appellate Court itself compared the disputed signatures of defendant No.1 in Ext.1 with her admitted signatures in her written statement and sale deed vide Ext.C Page 15 of 25 {{ 16 }} through the use of his naked eye and formed his own opinion that, the disputed signatures of the defendant No.1 in the Ext.1 do not appear to have been made by the defendant No.1 and held that, the defendant No.1 has not executed that agreement vide Ext.1, then as per law, the said findings and observations of the First Appellate Court cannot be acceptable under law.
Because, taking the provisions of law envisaged in Section 73 of the Evidence Act, 1872 into account, law has already been settled that, "though there is no legal bar to prevent the Court from comparing signatures or handwriting, by using its own eyes to compare the disputed writing with the admitted writing and then from applying its own observation to prove the said writings to be the same or different, as the case may be, but in doing so, the Court cannot itself become an expert in this regard and must refrain from playing the role of an expert, for the simple reason that, the opinion of the Court may also not be conclusive. Therefore, when the Court takes such a task upon itself, and findings are recorded solely on the basis of comparison of signatures or handwritings, the Court must keep in mind the risk involved, as the opinion formed by the Court may not be conclusive and is susceptible to error, especially when the exercise is conducted by one, not conversant with the subject. Page 16 of 25
{{ 17 }} The Court, therefore, as a matter of prudence and caution should hesitate or be slow to base its findings solely upon the comparison made by it."
19. Here in this suit/appeal at hand, when there was dispute about the execution of the agreement to sell vide Ext.1 by the defendant No.1, then at this juncture, it was the duty and obligation of the defendant No.1 to make prayer either before the Trial Court or before the First Appellate Court for sending the said agreement to sell in question vide Ext.1 to the handwriting expert for comparison of her disputed signatures therein with her admitted signatures and thereafter the Court should have formed opinion on the same by taking the report of the handwriting expert along with other evidence. But, the First Appellate Court has not done so.
On this aspect the propositions of law has already been clarified in the ratio of the following decisions:-
(i) 2009 (I) CLR--898 & 2009 (I) OLR 381--Sushanta Kumar Biswal Vrs. Jatindranath Roy--(Para 10)--Evidence Act, 1872--Section 45--Question for consideration is as to whether the agreement for sell is genuine--Trial Court without sending the document as well as the admitted signatures of the defendant for examination by a handwriting expert, examined the same itself and came to the conclusion that the signatures appeared to be that of the defendant--Lower Appellate Court held that, the Trial Court committed an error in not sending the document to an expert, allowed the appeal and set aside the judgment of the Trial Court--Held, the judgments of both the Court below suffer from infirmity (Case remanded to Trial Court for de novo trial with direction to send the document to a handwriting expert).
(ii) AIR 2013 (SC) 633 & 2012 (2) O.J.R. 719 (SC) &--Ajay Kumar Parmar Vrs. State of Rajasthan--(Para 23)-- Evidence Act, 1872--Section 73--Handwritting--Comparison by Page 17 of 25 {{ 18 }} Court--Not impermissible--But, Court should be slow to base its finding solely on comparison made by it.
(iii) 1996 (I) OLR 290 (SC)--O. Bharathan Vrs. K. Sudhakaran and another--(Para 19)--Evidence Act, 1872--
Section 73--Comparison of disputed signatures without the aid of an expert or the evidence of persons conversant with the disputed signature--Held, it is not in conformity with the spirit of Section 73 of the Evidence Act, 1872.
20. When, the First Appellate Court has formed an opinion through comparison of the disputed signatures of the defendant No.1 with her admitted signatures on her written statement and sale deed using his own eyes without taking the aid of an expert or scientific evidence i.e. without the evidence of any person conversant with the comparison of the disputed signatures, then in view of the principles of law enunciated in the ratio of the aforesaid decisions, it is held that, the opinion formed by the First Appellate Court that, the signatures appearing in the Ext.1 as the signatures of defendant No.1 are not the signatures of the defendant No.1 cannot be held as sustainable under law.
When, as per the discussions and observations made above, the findings and observations made by the First Appellate Court that, the signatures appear as the signatures of defendant No.1 in the Ext.1 are not her signatures has been held as unsustainable under law, then at this juncture, ultimately the findings of the Trial Court i.e. the defendant No.1 is the executant of the agreement to sell dated 19.06.1980 vide Ext.1 in Page 18 of 25 {{ 19 }} favour of the plaintiff-Deity has become sustainable/acceptable under law.
21. As per the discussions and observations made above, when it is held about the proper execution of the agreement to sell vide Ext.1 by the defendant No.1 in favour of the plaintiff-Deity, then it will be seen, whether the defendant No.2 is a bonafide purchaser of the suit properties for value or he has purchased the same knowing about the execution of the agreement to sell vide Ext.1 between the defendant No.1 and the plaintiff-Deity in respect of the suit properties.
The Trial Court has held that, when the house of the defendant No.2 is very closer to the suit land, then naturally, he (defendant No.2) had proper knowledge about the execution of the agreement to sell vide Ext.1 between defendant No.1 and the plaintiff-Deity, to which, the First Appellate Court disbelieved on the ground that, when it is held that, the agreement to sell vide Ext.1 has not been executed by the defendant No.1, then ultimately the defendant No.2 has become the bonafide purchaser of the suit land for value from the defendant No.1.
When, it has been held above reversing the findings of the Trial Court that, there was proper execution of the agreement to sell vide Ext.1 by the defendant No.1 in favour of the plaintiff-Deity for selling the suit properties and the defendant No.1 had received Rs.5,000/- out of Page 19 of 25 {{ 20 }} Rs.8,000/- as advance as per the contents of Ext.1 and evidence of the witnesses on behalf of the plaintiff-Deity, then the aforesaid observations of the First Appellate Court that, the defendant No.1 is not the executant of Ext.1 cannot be sustainable under law.
22. Now, it will be seen, whether the defendant No.2 had purchased the suit properties intentionally knowing about the execution of the agreement to sell vide Ext.1 between the defendant No.1 and the plaintiff- Deity.
The Trial Court has held about the proper knowledge of the defendant No.2 in respect of the agreement to sell vide Ext.1 between the defendant No.1 and the plaintiff before purchasing the suit properties from the defendant No.2, as the house of the defendant No.2 is near the suit properties.
On this aspect, the propositions of law has already been clarified by the Apex Court in the ratio of the following decision:-
2020 (1) O.J.R. 877 (SC)--Sukwinder Singh Vrs. Jagroop Singh & another--(Paras 11 & 12)--Courts below concluded that, vendor and subsequent purchaser being of same village, subsequent purchaser would have knowledge of agreement entered in favour of the plaintiff--Conclusion is only assumption without any evidence with regard to knowledge--Conclusion of connivance between vendor and subsequent purchaser also only based on assumption--Such assumption not justified, since subsequent purchaser had purchased property for consideration under registered document and was also put in possession of property--Declaration of sale deed executed in favour of subsequent purchaser as null and void did not arise.Page 20 of 25
{{ 21 }}
23. Here in this suit at hand, when the Trial Court has come to the conclusion about the knowledge of the defendant No.2 in respect of the execution of the agreement dated 19.06.1980 vide Ext.1 in respect of the suit properties between his vendor i.e. defendant No.1 and plaintiff-Deity only on the ground of existence of the house of the defendant No.2 near the suit land, then in view of the principles of law enunciated in the ratio of the aforesaid decision of the Apex Court, the said conclusion of the Trial Court regarding the prior knowledge of the defendant No.2 about the agreement to sell vide Ext.1 is only on the basis of assumption without any evidence with regard to his knowledge. Therefore, such assumption is not justified under law.
The purchaser of the suit land i.e. defendant No.1 is in possession over the suit properties by mutating the same to his name as per Ext.B/1 through Mutation Case No.8/83.
So, by applying the principles of law enunciated in the ratio of the aforesaid decision, it cannot be held that, the defendant No.2 was not a bonafide purchaser for value of the suit properties. Therefore, the sale deed vide Ext.C dated 29.10.1982 executed by the defendant No.1 in favour of the defendant No.2 in respect of the suit properties cannot be held as null and void.
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{{ 22 }}
24. As per the discussions and observations made above, when it is held that, the defendant No.2 is a bonafide purchaser for value of the suit properties and the sale deed executed by the defendant No.1 in favour of the defendant No.2 in respect of the suit properties is not null and void and when it is established that, the defendant No.1 has executed the agreement to sell in favour of the plaintiff-Deity on dated 19.06.1980 and had received Rs.5,000/- out of Rs.8,000/- as advance and the title of the suit properties is with the defendant No.2 by purchasing the same from the defendant No.1 and when the Trial Court had directed only to the defendant No.1 to execute and register the sale deed in respect of the suit properties in favour of the plaintiff-Deity, though the title of the suit properties is not with her (defendant No.1), but with defendant No.2 and when the plaintiff-Deity has not challenged the said judgment and decree of the Trial Court concerning the direction to the defendant No.1 alone to execute and register the sale deed in favour of the plaintiff without giving any direction to the real title holder i.e. defendant No.2 and when in this suit for specific performance contract, the plaintiff is not entitled for the decree of specific performance of contract against the defendants for the reasons assigned above, then at this juncture, the Court can grant alternative relief as prayed for by the plaintiff instead of the decree for specific performance contract i.e. for a decree of realization of the Page 22 of 25 {{ 23 }} advance money paid by the plaintiff-Deity to the defendant No.1 with interest thereon.
On this aspect, the propositions of law has already been clarified by the Apex Court and Hon'ble Courts in the ratio of the following decisions:-
(i) 2020 (3) CCC (SC) 153--Dr. Manohar Ganapathi Ravankar Vrs. H. Gurunanda Raikar--In a suit for specific performance Court can grant alternate decree for recovery of money paid along with interest.
(ii) 2021 (1) CCC 214 (Madras)--Mr. Vijayakumari Vrs. P. Sekar--Suit for specific performance--Alternative relief of return of advance in a suit for specific performance is a consequential relief and same need not be construed as a different relief.
(iii) 2023 (4) Civil Court Cases 351 (Madras)--R. Manoharan Vrs. R. Ramasamy--(Paras 14 & 14.1)--Relief of specific performance was denied and there is no clause in agreement for forfeiture of advance amount, it would amount to allow defendants to unjustly enrichment to themselves, if alternative relief of return of advance money is not ordered--Defendants is liable to return advance amount to plaintiff.
25. Here in this suit at hand, when the plaintiff has made an alternative prayer for realization of advance money i.e. Rs.5,000/- with interest thereon from the defendants and when as per the discussions and observations made above, the plaintiff-Deity has not been entitled to get the decree for specific performance of contract and when it has been held that, the defendant No.1 has received the advance money of Rs.5,000/- through agreement dated 19.06.1980 vide Ext.1, then in view of the principles of law enunciated in the aforesaid decisions by Hon'ble Courts Page 23 of 25 {{ 24 }} and Apex Court, the plaintiff is entitled under law for realisation of the advance money i.e. Rs.5,000/ with interest thereon from the defendant No.1 since the date of payment i.e. since 19.06.1980 till its full and final realisation.
26. As per the discussions and observations made above, when it has been held that, the judgment and decree passed by the First Appellate Court is not sustainable in full under law, then at this juncture, there is justification under law for making some interference with the same through this second appeal filed by the appellant (plaintiff-Deity).
Therefore, the second appeal filed by the appellant (plaintiff-Deity) must succeed in part.
27. In result, the second appeal filed by the appellant (plaintiff-Deity) is allowed in part on contest, but without cost.
The judgment and decree passed by the First Appellate Court in T.A. No.45 of 1988 is set aside.
The judgment and decree passed by the Trial Court in T.S. No.240 of 1983 is set aside in part on contest.
The judgment and decree passed by the Trial Court in T.S. No.240 of 1983 directing the defendant No.1 to execute and register the sale deed in favour of the plaintiff after receiving the balance consideration amount of Rs.3,000/- within three months from the date of the judgment and Page 24 of 25 {{ 25 }} decree and the declaration made by the Trial Court that, the sale deed executed by the defendant No.1 in respect of the suit land in favour of the defendant No.2 is null and void are set aside.
The suit be and the same vide T.S. No.240 of 1983 filed by the plaintiff is decreed in part on contest only against the defendant No.1, but dismissed against the defendant No.2.
The defendant No.1 is directed to refund the advance money i.e. Rs.5,000/- with interest @ 9% per annum thereon since 19.06.1980 to the plaintiff-Deity within two months hence, failing which, the plaintiff is at liberty to execute the decree against the defendant No.1 through the process of Court for realization of the same and the defendant No.1 shall be made liable for all costs and consequences thereof till its full and final payment of the same to the plaintiff-Deity.
(A.C. Behera), Judge.
Orissa High Court, Cuttack.
30.07. 2024//Utkalika Nayak// Junior Stenographer Signature Not Verified Digitally Signed Signed by: UTKALIKA NAYAK Designation: Junior Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack Date: 05-Aug-2024 13:42:47 Page 25 of 25