Uma Shankar Goswami @ Sri Vem Shankar Goswami vs Sri Subodh Kumar Choudhary and Another

Chakradhari Sharan Singh, J.—Heard Mr. Shabbir Ahmad, learned counsel appearing on behalf of the appellant. The defendant No. 2 before the trial court is the appellant herein and has preferred the appeal u/s 100 of the CPC aggrieved by the judgment and decree dated 28.10.2009 passed in Title Appeal No. 71/06/T.R. 07/09 by learned Additional District Judge (FTC No. 2), Purnia whereby, while dismissing the first appeal he has affirmed the judgment dated 4.10.1997 and decree dated 12.11.1997/15.11.1997 passed in Title Suit No. 18/93 by learned Sub-Judge-Vth, Purnia. The appeal has been placed for hearing before me under Order 41 Rule 11 of the Code of Civil Procedure.

The Title Suit No. 18/93 was filed by the plaintiff-respondent No. 1 seeking a decree for specific performance of contract directing Defendant No. 1/Respondent No. 2 to execute registered sale deed and agreement of sale executed by the defendant No. 1 (respondent No. 2 herein) with respect to the suit property as described in the schedule to the plaint.

The case of the plaintiff/Respondent No. 1 was that the suit land being a compact area of 3.32 acres of Village-Bithrouli Khemchand, P.S.-K. Nagar, District-Purnia belonged to defendant No. 1 who fell in need of money at the end of August, 1991 and offered for the sale of said land to respondent No. 1 who accepted the offer and, accordingly, an agreement for sale of the said land was executed on 2.9.1991 in the presence of witnesses of the village and a sum of Rs. 11,000/- was paid to the defendant No. 1-respondent No. 2 by the plaintiff out of the agreed sale price of Rs. 82,000/-. As per the said agreement it was agreed that respondent No. 2 would execute and register the sale deed by 2.2.1992 after receiving the consideration amount. However, with the consent of both the parties, the total consideration amount was allowed to be mentioned as Rs. 82,000/-.

Further case of the Respondent No. 1 (plaintiff) was that he repeatedly requested respondent No. 2 to accept the balance consideration amount, execute and register the sale deed in his favour with respect to the suit land but respondent No. 2 neglected to perform his part of contract. As the period of the agreement for sale was going to expire, respondent No. 2 agreed to execute a fresh agreement in favour of respondent No. 1 confirming the earlier agreement. Respondent No. 1 is said to have paid a sum of Rs. 39,000/- to the defendant on 2.2.1992 out of the remaining consideration amount on execution of the said agreement for sale and, thus, Rs. 50,000/- was paid out of total consideration amount of Rs. 82,000/- and the period for executing and registering the sale deed in favour of respondent No. 1 was extended up to 31.3.1993. It is alleged that the respondent No. 2 neglected to perform his part of contract despite appellant''s readiness and willingness to perform his part of contract.

Respondent No. 2, being defendant No. 1 of the title suit, filed written statement taking a plea that the appellant herein was a necessary party as he was in cultivating possession of the suit plot on Adhibatai under him since 1977. He is also said to have taken a plea that before the said agreement for sale dated 2.9.1991, the present appellant had purchased the suit land after paying full consideration amount way back on 10.8.1978 who was declared Kaimi raiyat in respect of suit plot and decree dated 24.11.1992 to this effect was passed by Sub-Judge, Purnia in Title Suit No. 162/92 and, therefore, he was a necessary party in the suit. The appellant herein was accordingly impleaded as party defendant in the suit vide order 6.4.1995 and he also filed written statement and contended that the two agreements, that is, dated 2.9.1991 and 2.2.1992 were fabricated, forged and manipulated by the respondent No. 1 and respondent No. 2. He asserted that he was in cultivating possession of the suit land on Adhibatai under defendant No. 1 since 1977. He filed Case No. 145/91-92 u/s 48(E) of the Bihar Tenancy Act which was decided in favour of respondent No. 2. He also filed a suit vide Title Suit No. 161/92 against respondent No. 2 which was ultimately decreed in favour of appellant vide order dated 24.11.1992.

On the basis of rival contentions, the learned trial court framed altogether eight issues including issues Nos. (iv) and (v) to the following effect:--

(iv) Whether the suit is vague and indefinite?

(v) Is the plaintiff entitled to get decree of specific performance of con tract on the basis of agreement a asserted in the suit?

On the basis of the evidence let on behalf of respective parties including the documentary evidence brought of record by them the learned trial court came to specific finding that the respondent No. (plaintiff) was entitled to a decree of specific performance of contract on the basis of agreement for sale. While reaching to this conclusion the learned trial court tool into account the admissions made by respondent No. 2 that he had agreed to sale of the land in question and had taken advance money. The story developed by the appellant in his capacity as defendant No. 2 that he had purchased the suit land in 1978 itself was rejected as there was no registered deed filed in support of such sale. Dealing with the order passed in Case No. 145/91-92 u/s 48(E) of the Bihar Tenancy Act learned trial court came to the conclusion that it was based on compromise between the appellant and the respondent No. 2. Further, it also came to the conclusion, on the basis of order sheet of Title Suit No. 161/92 that the order dated 28.11.1992 was passed on the basis of compromise. The learned trial court considered the compromise petition filed in Title Suit No. 161/92 and held that respondent No. 2 accepted that defendant No. 2 was in possession over the suit land. It took into account the fact that though the appellant being plaintiff of Title Suit No. 161/92 claimed to have paid Rs. 70,000/- for purchase of some piece of land, but failed to product any registered document in support of the same. It was, accordingly, held that defendant/Appellant No. 2 could not be said to have acquired any valid right, title, interest and possession over the suit land.

In background of the facts above the learned trial court decreed the suit with cost against the defendants, including the appellant herein. Respondent No. 1 was accordingly directed to execute and register the sale deed in respect of suit land after receiving balance consideration amount of Rs. 32,000/- within one month.

Learned first appellate court concurred with the finding and dismissed the appeal after considering the entire materials on record as would appear from the impugned judgment and decree dated 28.10.2009 passed in Title Appeal No. 71/06.

Learned counsel for the appellant has submitted that though agreement for sale was executed on 2.9.1991, but the period for executing and registering of sale deed expired whereafter a fresh agreement for sale was executed on 2.2.1992. He submits that the fresh agreement for sale on 2.2.1992 is too vague to be implemented as it does not contain the relevant particulars. He further submits that claim of the plaintiff/respondent No. 1 before the trial court was vague and did not merit any consideration. He has further submitted that findings of courts below are erroneous and contrary to the evidence available on record.

Before I deal with the submissions of learned counsel for the appellant, certain dates and events need to be mentioned for proper appreciation of the controversy in this case. These events and dates are not in dispute.

On 2.9.1991 respondent No. 1 and respondent No. 2 entered into an agreement for sale of the suit land. Since respondent No. 2 did not execute and register the sale deed by 2.2.1992, being the date specified for execution of sale deed the parties agreed to extend the time for execution and registration of sale deed and it was accordingly done by an agreement for extension of time for registration of sale deed on 2.2.1992. This is also not in dispute that part of consideration amount was paid to respondent No. 2. The extended time for execution and registration of deed as per subsequent agreement was fixed as 31.3.1993. Respondent No. 1 filed the suit for specific performance of contract in 1993.

In the meanwhile, the appellant herein filed a suit being Title Suit No. 161/1992 before Sub-Judge-I, Pumia claiming that he had been in cultivating possession over the suit land since 1977 and he had acquired the same through sale from respondent No. 2 by way of purchase on payment of consideration money in 1978 itself and since then he had been coming in possession over the suit land. In the said suit respondent No. 2 was impleaded as party defendant. They entered into a compromise and a compromise decree was passed in favour of the appellant on 24.11.1992. On 28.11.1991 the appellant filed an application u/s 48(E) of the Bihar Tenancy Act, 1885 before the revenue authorities claiming Bataidari (Adhibatai) over the suit land apprehending action on the part of respondent No. 2 of ejectment from the suit land. The said proceeding u/s 48(E) of the Bihar Tenancy Act, 1885 also came to be concluded in favour of the appellant on the basis of concession made by the respondent No. 2 that the appellant was in cultivating possession over the suit land. The dates and events mentioned above would lead to one and the only irresistible conclusion that appellant and respondent No. 1 (sic--2?) were acting in collusion in order to defeat the purpose of the agreement for sale executed on 2.9.1991 and subsequent agreement for extension of time for execution and registration of sale deed on 2.2.1992. It is curious that the appellant filed the Title Suit No. 161/92 on 15.9.1992 claiming to be purchaser of the suit land in 1978 itself without any document, registered or otherwise. The said suit was compromised by respondent No. 2 and, accordingly, decree was passed on 28.11.1992. The most peculiar aspect of the case is that when the appellant claimed to be the owner of the land in question by virtue of sale said to have taken place in 1978 itself, he had no occasion to file an application u/s 48(E) of the Bihar Tenancy Act, 1885 claiming to be under-raiyat of respondent No. 2. These facts show the conduct of the appellant herein. The scope of this court u/s 100 of the CPC is limited and it can interfere with the concurrent findings of fact only if the same are perverse. An appeal u/s 100 of the CPC can be entertained only if it involves a substantial question of law. As regards submission made by learned counsel for the appellant that the agreement for sale was too vague to be implemented, from the judgments of the court below, I find that it has been held specifically that the documents of agreement for sale specifically describe the land in question. The finding of facts arrived at by the courts below need no interference in the facts and circumstances of the case more particularly in view of admitted facts which I have noted herein above.

The appeal is, accordingly, dismissed with a cost of Rs. 5,000/- to be deposited by the Appellant in the account of Bihar State Legal Service Authority within a period of six months from today.