Paresh Chandra Das vs Ramani Mohan Chakravorty

J.M. Srivastava, J.—This is Plaintiffs appeal against the judgment and decree dated 15.6.81 passed by the learned Assistant District Judge, Karimganj whereby the Plaintiff�s appeal against the judgment and decree dated 22.77 passed by the learned Munsiff No. II Karimganj was dismissed.

The Plaintiff Appellant had filed the suit for declaration that the land in suit belongs to the Plaintiff and the Defendant was licenses in its occupation and recovery of its khas possession on the allegations that the Plaintiff had allowed the Defendant to occupy the land in suit and to make houses. The Defendant continued to stay. On 16.6.73 there was an agreement for sale of said land between the parties. The Plaintiff had received Rs. 1500/- as advance. The sale consideration money was Rs. 4000/-. The balance of Rs. 2500/- was to be paid and the sale deed was to be executed within 3(three) months. The Defendant had not paid the balance. The advance was forfeited. The Plaintiff made concession by giving time for payment to the Defendant by a notice dated 16.7.74, but even then the Defendant did not pay. Hence, the suit was filed.

The Defendant Respondent resisted the suit and pleaded that in pursuance to the agreement for sale after payment of Rs. 1500/- the entire amount had been paid by the Defendant to the Plaintiff, but the later had not executed the sale deed. The Defendant was entitled to retain possession and protection under provisions of Section 53A of the Transfer of Property Act, hereinafter referred as the ''Act''.

The learned trial court had framed necessary issues and held that the Plaintiff�s version was not correct. The Defendant had paid the entire consideration amount of Rs. 4000/- and had continued in possession and was entitled to benefit of Section 53A of the Act. The suit was dismissed.

The learned appellate court below confirmed the findings of the trial court and the appeal was dismissed.

Aggrieved the Plaintiff has come in appeal and Shri S.K. Senapati, learned Counsel appearing on his behalf has submitted that the Defendant had not paid the balance amount within the stipulated period and could not be entitled to the benefit of the provisions of Section 53A of the Act also for the reason that the Defendant had entered into possession of the land much earlier in pursuance to a settlement and that therefore the impugned judgment and decree cannot be sustained.

Shri M.A. Laskar, learned Counsel for the Respondent has refuted the submission and has supported the judgment of the courts below.

I have considered the submissions for the parties.

The courts below have in concurrent findings of fact held that the Defendant had paid the entire consideration amount of Rs. 4000/- pursuant to the agreement Ext. 1 dated 16.7.73 Shri S.K. Senapati, learned Counsel for the Plaintiff has tried to argued that this finding was perverse because the learned trial court below appeared to have thrown the onus on the Plaintiff. This submission is not quite correct. The observation of the learned trial court that the Plaintiff tried to show that he had not received the entire consideration money do not mean that the learned trial court had thrown the onus on the Plaintiff. The observation was made in the course of discussions of evidence and it was held that the Plaintiff�s version of non payment of entire consideration amount was not correct and it was further held that the Defendant�s version of payment of entire consideration amount of Rs. 4000/- was correct. The learned trial court has relied upon Plaintiff own statement as PW-3 to show that the Plaintiff�s version that he did not receive anything more than Rs. 1500/- was not correct. The statement of the Plaintiff was that he had received Rs. 1000/- and again Rs. 495/- and admitted having written Ext. B dated 2.8.1973 wherein it appears that the Plaintiff had admitted that on that day Rs. 95/- remained to be paid. Shri Senapati has submitted that Rs. 95/- referred in Ext. B showed the balance amount of Rs. 1500/- advance and it was not the balance of the consideration money of Rs. 4000/-. It is difficult to accept the submission that the learned trial court and the appellate court below committed any error in appreciation of Ex. B for the Plaintiff had examined himself and had admitted Ext. B but did not explain as Mr. Senapati has tried to do. In the absence of any such explanation the inference drawn by the learned trial court and the appellate court below on the basis of Ext. B dated 2.8.73 that only Rs. 95/- remained to be paid cannot be said to be perverse or unsustainable in evidence on record.

It may be noted that the Plaintiff has stated that the Defendant had paid him Rs. 1500/- on the date of agreement and he did not receive any further payment. This submission was not correct, because more payment had been made as was shown by Ext. B and the statement of Plaintiff himself as PW-3. The courts below have not committed any error in the acceptance of the Defendant�s version that he had paid the entire consideration money. The concurrent findings of fact of the court below therefore is not open to in question in this second appeal.

Shri S.K. Senapati, learned Counsel for the Appellant submitted that the Defendant had entered possession of land on the basis of earlier settlement and the possession had continued after agreement Ext. 1 was executed and hence he was not entitled to the benefit of Section 51A of the Act. While it is true that the Defendant had entered into possession of the land in suit on the basis of an earlier settlement but on the date the agreement for sale was made and Ext. 1 executed, his possession should be considered as in pursuance to the said agreement Ext. 1. The Defendant having paid the entire consideration amount of Rs. 4000/- to the Plaintiff as stipulated in Ext. 1, and performed his part of the promise was clearly entitled to the benefit of the provisions of Section 53A of the Act.

There is no merit in this appeal.

The appeal is dismissed with costs.