S.K. Sirajul Haque and Others vs Marjina Bibi and Others

Tarun Kumar Gupta, J.—It arises out of a judgment and decree dated 28th February, 1994 passed by learned Additional District Judge, 11th Court, Alipore in Title Appeal No. 409 of 1992 reversing the judgment and decree dated 31st July, 1992 passed by learned Assistant District Judge, First Court, Alipore in Title Suit No. 47 of 1985. The appellants filed said Title Suit against Yasin Ali Molla (original respondent No. 1, since deceased, and is presently represented by his heirs) and Abdul Kalam Molla praying for a decree for Specific Performance of Contract. It was alleged that those defendants being owners of the suit property executed a ''Bainanama'' dated 05.01.1985 to sell the suit property measuring more or less 5 cottahs of land with a structure thereupon at the rate of Rs. 6,000/- per cottah and that Rs. 10,000/- was received by them as advance. It was further case that there was a term for executing the kobala on receipt of balance consideration money within three months from the date of said agreement. On measurement the land came to be 5 cottahs 12 chittaks and the price of the land and structure was 36,000/-. The plaintiffs approached the defendants on 04.02.1985 for execution of the sale deed on receiving balance consideration money of Rs. 26,000/- and as per assurance of the defendants plaintiffs purchased the stamp paper etc. The defendants failed to execute the document by coming to the registry office. The plaintiffs sent a notice by an advocate but without any result. During pendency of the suit the defendants illegally demolished the structure standing on the suit property. Accordingly the plaintiffs prayed for a decree of Specific Performance of Contract.

The defendants filed a written statement denying material allegations of the plaint and contending inter alia that the defendants took a loan of Rs. 10,000/- from the plaintiffs by executing said document which was nothing but a document of loan transaction and that the plaintiffs by applying fraud obtained the sale deed. It was further case that the suit was bad for non-joinder of necessary parties as defendants'' brothers and mother were co-sharers of said property. In earlier occasion also the defendants'' father obtained loan from plaintiffs'' father by executing ostensible sale deed. The plaintiffs are not entitled to get a decree for Specific Performance of Contract.

Learned Trial Court framed several issues including an issue as to whether the defendants entered into an agreement of sale of the suit property to the plaintiffs and whether the plaintiffs were entitled to get a decree for Specific Performance of Contract. Both sides adduced evidence, both oral and documentary. After contested hearing learned Trial Court decreed the suit for Specific Performance of Contract. However, learned Lower Appellate Court set aside said judgment and decree of learned Trial Court by the order impugned at the instance of the defendants.

The plaintiffs have filed this second appeal being aggrieved with said judgment. This second appeal was heard on the following substantial questions of laws:-

(1) Whether the learned court of appeal below substantially erred in law in reversing the judgment and decree of learned trial court without reversing any of the findings of the learned trial court and merely by holding that the judgment of learned trial court suffers from gross infirmity;

(2) Whether the learned court of appeal below substantially erred in law by reversing the judgment and decree of learned trial court by applying Section 20 of the Specific Relief Act but without applying the correct legal test;

(3) Whether the learned court of appeal below substantially erred in law by overlooking the false pleas of the defendants that the transaction was not a sale but a loan one or that plaintiffs were not ready and willing to perform the alleged contract of sale and in the process wrongly exercise his discretionary jurisdiction in favour of the defendants;

(4) Whether the learned court of appeal below substantially erred in law by holding that the agreement for sale as pressed by the plaintiffs was an instrument of oppression and that allowing the prayer for Specific Performance of Contract would amount to give unfair advantage over the defendants and thereby passed a perverse judgment.

Mr. Jaharlal De, learned counsel for the plaintiffs/appellants, submits that the plaintiffs proved by cogent evidence that the defendants executed the ''Bainanama'' dated 05.01.1985 in presence of a witness on receipt of an advance of Rs. 10,000/- and that in spite of ''Tagid'' by the plaintiffs and lawyer''s notice the defendant did not execute the sale deed though plaintiffs were all along ready to perform their part of contract. According to De, learned Trial Court on the basis of evidence on record came to definite findings that the agreement of sale dated 05.01.1985 was not a loan transaction as alleged by the defendants and that it was an agreement for sale and that plaintiffs were all along ready and willing to perform their part of contract and that the defendants failed to establish that alleged interest of co-sharers were subsisting on the suit property at the time of execution of said ''Bainanama'' and that plaintiffs were entitled to get a decree of Specific Performance of Contract. According to Mr. De, learned Lower Appellate Court set aside the well-reasoned judgment in a most cryptic manner by observing that it was not a fit case for exercising judicial discretion u/s 20 of the Specific Relief Act, 1963 though he did not consider the reasons given by the learned Trial Court for allowing the decree. According to Mr. De, the impugned judgment of the Lower Appellate Court is practically no judgment in the eye of the law and is liable to be set aside. In support of his contention he refers the case laws reported in AIR 1995 Supreme Court 1607 (S. V. R. Mudaliar and others vs. Mrs. Rajabu F. Buhari and others), Parimal Vs. Veena @ Bharti,

Mr. De next submits that the defendants took pleas, false to their knowledge, that the ''Baina Paper'' (Ext. 1) was vitiated by fraud or that it was a loan transaction and that the defendants are liable to suffer the decree on that ground also. In support of his contention he refers a case law reported in Silvey and Others Vs. Arun Varghese and Another,

Mr. Jayanta Kumar Das, learned counsel for the defendants/respondents, on the other hand, submits that the plaintiffs without waiting for three months prescribed in the document dated 05.01.1985 (Ext. 1) allegedly approached the defendants for execution of the sale deed on 04.02.1985 and that this alleged over enthusiasm of the plaintiffs showed that it was not an agreement of sale and that it was rather a loan transaction. He next submits that in said document dated 05.01.1985 (Ext. 1) the area of the land noted as more or less 5 cottahs though actually the suit land measures 5 cottahs 29 chittaks which shows that the document was executed without noting actual measurement as it was in reality a loan transaction and not an agreement of sale. He next submits that these defendants were not sole owners of the suit property and that they were co-sharers and that on that ground the plaintiffs were not entitled to get any decree for Specific Performance of Contract. In support of his contention he refers case laws reported in Triloki Vishwakarma alias Triloki Mistri Vs. Zaitun Nisa and Shyam Sundar Chowkhani alias Chandan and Others Vs. Kajal Kanti Biswas and Others, . He next submits that before passing any decree of Specific Performance of Contract the Court must exercise the judicial discretion u/s 20 of the Specific Relief Act, 1963. According to him, the Court should take care to see that said agreement is not used as an instrument of oppression to have an unfair advantage to the plaintiff. In this connection he refers a case law reported in Parakunnan Veetill Joseph''s Vs. Nedumbara Kuruvila''s and Ors, . His last contention is that the plaintiffs can at best claim the refund of the advance of Rs. 10,000/- with admissible interest, if any, in the facts and circumstances of the case.

It appears from the impugned judgment of learned Lower Appellate Court that he set aside the judgment and decree of learned Trial Court on the following grounds:-

(1) As per agreement the area of the suit land was 5 cottahs but in actual measurement it was found to be 5 cottahs 12 chittaks and hence the agreement was at variance with actual measurement.

(2) The suit land was a bastu land as it came out from the evidence.

(3) There were other co-sharers in the suit property.

(4) If the prayer for Specific Performance of Contract is allowed then it will be an unfair advantage over the defendants and hence the Court should not have exercised the discretion u/s 20 of the Specific Relief Act.

Learned Lower Appellate Court was palpably wrong to hold that the area of land was noted as 5 cottahs in the disputed agreement (Ext. 1). It was specifically mentioned therein that the area was more or less 5 cottahs and that the price will be fixed at the rate of Rs. 6,000/- per cottah on actual measurement together with a price of Rs. 1,500/- for the structure standing thereupon. It came out from the evidence that on actual measurement the area was found to be 5 cottahs 12 chittaks and the total price accordingly came to Rs. 36,000/- and on payment of Rs. 10,000/- as the advance the balance amount to be paid was Rs. 26,000/-. As such, it is wrong to hold that the agreement was at variance with actual measurement. Learned Lower Appellate Court observed just in one line that the evidence disclosed that it was a bastu land but he did not state on the basis of which evidence he came to said findings. Apart from that there is no legal bar to make an agreement for sale of bastu land. In the case in hand, there was also no evidence whatsoever that the defendants or anybody were residing on the suit land.

Learned Lower Appellate Court observed that besides defendants there were other co-sharers but did not state wherefrom he came to said conclusion. There is no denial that the decree of Specific Performance is an equitable relief and that the plaintiffs are not entitled to get it as a matter of right and that the Court has always the discretion to allow or to refuse it on the facts and circumstances of each case. Said proposition of law was laid down in various case laws including the case of P.V. Joseph''s Son Mathew vs. N. Kuruvila''s Son (supra) as referred by learned counsel for the defendants/respondents. The learned Lower Appellate Court came to the abrupt findings without discussing the evidence on record and also without making observation as to why the findings of learned Trial Court were wrong. In the case of Parimal (supra) Hon''ble Apex Court was pleased to hold that the First Appellate Court should not disturb and interfere with the valuable rights of the parties which stood crystallized by the Trial Court''s judgment without opening the whole case for rehearing both on question of facts and law and recording reasons for his decision. It was further held that the Appellate Court should not modify the decree of the Trial Court by cryptic order without taking note of all relevant aspects otherwise the order would be liable to be set aside. Said proposition of law is squarely applicable in the facts and circumstances of the present case also. I have already stated that learned Lower Appellate Court by a cryptic order set aside the judgment and decree of learned Trial Court by the impugned judgment without discussing either the evidence on record, or even the judgment of learned Trial Court. As such, on that score alone the impugned judgment of learned Lower Appellate Court is liable to be set aside.

As the suit was filed as far back as in 1985 I am of the opinion that there will be a traversy of justice if the matter is remanded back to the learned Lower Appellate Court for writing a fresh judgment at this stage. Let me see whether the judgment of learned Trial Court is sustainable in law in the facts and circumstances of the case. The execution of the agreement dated 05.01.1985 (Ext. 1) by the defendants/respondents in favour of the plaintiffs appellants on receipt of an amount of Rs. 10,000/- is not disputed. The defendants/respondents took a plea that the document was nothing but a loan transaction and was not an out and out sale deed. The onus was upon them as they alleged that the apparent was not the real. Admittedly, there was no written document of reconveyance. The back deeds were lying with the plaintiffs/appellants. It was the specific case of the plaintiffs/appellants that those back deeds were handed over to them by the defendants for preparation of the sale deed and learned Trial Court, on the basis of evidence on record, found said explanation to be acceptable and I do not find any infirmity in said findings. Learned Trial Court did not accept the contention of the defendants that the back deeds were handed over as a security for loan. I do not find any illegality in said findings. As such, the finding of the learned Trial Court that the document in question (Ext. 1) was an agreement of sale does not call for any interference.

The defendants respondents took a plea of practising fraud upon them but there was neither any specific pleading nor any evidence to that effect and learned Trial Court rightly rejected said contention.

As per said agreement of sale (Ext. 1) the vendees (Plaintiffs) should have paid the balance amount of Rs. 26,000/- within three months from the date of execution of the same on 5th of January, 1985. As such, the approach of the plaintiffs to the defendants on 04.02.1985 for execution of sale deed on receipt of balance consideration money or for sending lawyer''s notice were not at all unnatural. Rather it came out from the evidence on record, both oral and documentary, that the plaintiffs/appellants were all along ready and willing to perform their part of contract.

The case of S.S. Chowkhani (supra) and Triloki Vishwakarma (supra) as referred by learned counsel for the defendants/respondents are not applicable in the facts and circumstances of the present case. In both the cases there were admitted co-sharers in the suit property within the knowledge of the vendees. But in the case in hand, the defendants claiming themselves to be absolute owners of the suit property which was butted and bounded by a boundary intended to sell the same to the plaintiffs in terms of said ''Bainanama'' (Ext. 1). As the defendants claimed themselves to be owners and described the suit property by boundary there was a natural presumption that they claimed themselves as full owners of the suit property. Even if there are co-sharers still the defendants cannot be permitted to take advantage of the fraud committed by them by describing themselves as owners of the suit property. Even if it is admitted for argument''s sake that the defendants were not the full owners but had some shares in the suit property, in that case the plaintiffs will purchase through execution of the deed of sale only the shares of the defendants and nothing more. But that cannot be a ground for refusing the decree of Specific Performance of Contract. A person cannot be permitted to take advantage of his own fraud.

Accordingly I find and hold that the learned Lower Appellate Court substantially erred in law by reversing the well-reasoned judgment of the learned Trial Court without analyzing the evidence on record vis-a-vis the judgment of the learned Trial Court.

As a result, the appeal is hereby allowed on contest.

The impugned judgment and decree of learned Lower Appellate Court are hereby set aside by restoring the judgment and decree of learned Trial Court.

However, I pass no order as to costs.

Send down Lower Court records along with a copy of this judgment to the Lower Court at the earliest. Urgent photostat certified copy of this judgment be supplied to learned counsels of the parties, if applied for.