High Court
Case Details
RSA 108/2002 BEFORE THE HON’BLE MR. JUSTICE B.P. KATAKEY JUDGMENT & ORDER (ORAL) These appeals are directed against the common judgment and decree dated 5.4.2002 passed by the learned District Judge, Cachar at Silchar in Title Appeal Nos. 9/ 1999 and 10/1999, allowing the appeals preferred by the present respondent, by d ecreeing the suit filed by him being Title Suit No. 45/1986 and dismissing the s uit filed by the present appellant being Title Suit No. 85/1986.
Legal Reasoning
2. Title Suit No. 45/1986 was filed by the present respondent as pl aintiff against the present appellant as defendant in the court of the learned C ivil Judge, (Sr. Division) No. 2, Cachar at Silchar praying for declaration of r ight, title and interest in respect of 3 kathas 10 chataks of land with houses s tanding thereon; for declaration that the sale deeds dated 3.5.1986 (Ext. 2 and 3) are void and also for execution of the deed of re-conveyance by the defendant in the said suit re-conveying title over the suit land in favour of the plainti ff. It is the pleaded case of the plaintiff Sri Nepal Dev @ Nepal Chandra Deb in Title Suit No. 45/1986 that though he executed registered sale deeds both dated 3.5.1986 (Ext. 2 and 3), the consideration amount of Rs. 20,000/-, however, has not been paid by the defendant in the said suit, namely, Krishna Mohan Sarma (a ppellant in the present appeal). It has also been pleaded that on the same day o f execution of the sale deeds i.e. on 3.5.1986 an ekranama (Ext. 1) was also exe cuted between the parties with the stipulation that if the plaintiff (Nepal Dev) repay the amount of Rs. 20,000/-, which is the consideration amount in respect of the sale deeds (Ext. 2 and 3), within two months the defendant Krishna Mohan Sarma would re-convey the property in favour of the plaintiff Nepal Dev. The fur ther pleaded case is that as the defendant Krishna Mohan Sarma did not pay the c onsideration amount, the plaintiff Nepal Dev requested the defendant to execute the deed of re-conveyance in favour of the plaintiff, for which he is not requir ed to offer Rs. 20,000/- the said amount having not been paid by the defendant t o the plaintiff after execution of the sale deeds. Sri Krishna Mohan Sarma (appellant herein) instituted another 3. suit being Title Suit No. 85/1986 in the court of the learned Civil Judge (Jr. D ivision) No. 2 at Silchar praying for declaration of right, title and interest a nd recovery of khas possession contending inter alia that he has acquired the ri ght, title in respect of the suit land measuring 3 bighas 10 chataks, which is a lso the suit land in Title Suit No. 45/1986, by purchase from the defendant ther ein namely Nepal Dev, who has transferred the suit land by two registered deeds of sale dated 3.5.1986 (Ext. 2 and 3) in favour of the plaintiff Krishna Mohan S arma. 4. Both the suits were contested by the defendants of both the suit s by filing written statements denying the claim made by the plaintiff. The tria l court, based on the pleadings of the parties in Title Suit No. 45/1986 framed the following issued for determination: - (cid:28)1. Whether there is cause of action for the suit? 2. Whether the suit is maintainable in its present form? 3. Whether the suit is barred by limitation? 4. Whether the suit is barred under the provision of the Specific Relief Act, a nd the Transfer of Properties Act? 5. Whether the plaint is properly valued and stamped? 6. To what relief if any the plaintiff is entitled? 7. Whether the suit kabalas were obtained fraudulently and are void, inoperativ e and liable to be cancelled? 8. Whether the plaintiff is entitled to declaration as prayed for or to get re- conveyance of the suit property without payment? Additional Issues 1 Whether the sale deeds Ext. 2 and 3 are valid documents? 2. Whether the parties to the suit have performed their part of the contract as per Ext. 1(C)? (cid:29) In Title Suit No. 85/1986 the trial court, keeping in view the p 5. leadings of the parties, framed the following issues for determination : - (cid:28)1. Whether there is any cause of action for the suit? 2. Whether the suit is barred by the principle of waiver, estoppels and acquiesc ence? 3. Whether the suit is maintainable in its present form in view of T.S. No. 45/1 986? 4. Whether the plaintiff acquired any right, title and interest in the suit land by dint of purchase as alleged in the plaint? 5. Whether the sale deeds dated 3.5.1986 are fraudulent and they are made withou t passing consideration money? 6. Whether the sale deeds were meant for security deeds for the loan or sale dee ds in respect of the suit land? 7. Whether the plaintiff is entitled to get declaration and recovery of khas pos session as claimed? 8. Whether the plaintiff is entitled to get the injunction? 9. To what relief, if any the plaintiff is entitled? Additional Issue: 1. 2. Whether the plaintiff is entitled to any relief in the suit? 3. t as per ekranama Ext.3? (cid:29) Whether the parties to the suit have performed their part of the contrac Whether sale deeds Ext. 2 and 3 are valid documents? 6. Both the suits being in respect of the same land and the plainti ff in Title Suit No. 85/1986 having prayed for declaration of right, title and i nterest based on the sale deeds, both dated 3.5.1986, and the plaintiff in Title Suit No. 45/1986 having filed the suit for declaration that the said sale deeds as void, both the suit were tried analogously. 7. The trial court upon appreciation of the evidence on record vide common judgment dated 3.4.1999 dismissed the suit being Title Suit No. 45/1986 filed by Nepal Dev and decreed the suit being Title Suit No. 85/1986 filed by Kr ishna Mohan Sarma. Sri Nepal Dev being aggrieved by the said common judgment and de 8. cree preferred Title Appeals being Title Appeal Nos. 9/1999 and 10/1999, arising out of the Title Suit Nos. 45/1986 and 85/1986, respectively. Both the appeals were also taken up for hearing and disposal together by the first appellant cour t. Those appeals were, however, allowed by the first appellate court vide common judgment and decree dated 5.4.2002 by setting aside the common judgment and dec ree passed by the trial court. The first appellate court while decreeing the suit, being Title 9. Suit No. 45/1986, filed by Nepal Dev, set aside the decree passed in Title Suit No. 85/1986 filed by the present appellant Krishna Mohan Sarma. The present appe als are taken up for hearing and disposal together, the same being against the c ommon judgment and decree passed by the first appellate court and as agreed to b y the learned counsel for the parties. Both the appeals were admitted for hearing on 20.8.2002 on the f 10. ollowing three common substantial questions of law in:- 1. Whether in terms of the deed of re-conveyance as in document marked Ext. 3, t he stipulated period of 2 months assigned in the re-conveyance deed would consti tute essence of the contract between the parties or not? 2. Whether the first appellate court appreciated the documentary evidence i.e., deeds of sale marked Exts. 1 and 2 in their proper concept and in accordance wit h law and within the purview of the provisions of sections 54 and 55 of the Tran sfer of Property Act read with Section 67 and 68 of the Indian Evidence Act whil e passing the impugned judgment and decree or not. 3. Whether the judgment and decree passed by the first appellate court is tenabl e in the eye of law or not? In RSA 113/2002 another substantial question of law has also been formulated, wh ich reads as follows: - 1. Whether the first appellate court has rightly interpreted the provisions of Section 34 of the Specific Relief Act while deciding the case or not?
Legal Reasoning
11. I have heard Mr. M Singh, learned counsel for the appellants, Mr . Keyal, learned counsel and Mr. SK Ghosh, learned counsel appearing for the res pondent. 12. Mr. Singh, learned counsel for the appellant referring to the ek ranama (Ext. 1) dated 3.5.1986 has submitted that since the time is the essence of the contract wherein it has been stipulated that in case Nepal Dev pays the a mount of Rs. 20,000/- within the stipulated period of two months from the date o f its execution, Sri Krishna Mohan Sarma would re-convey the property in favour of Nepal Dev and it is not being the case of Nepal Dev that neither he has paid the amount nor offered the amount or was ready and willing to perform his part o f the contract as per the ekranama (Ext. 1), the first appellate court ought not to have reversed the common judgment and decree passed by the trial court by ho lding that the time is not the essence of the contract. Referring to the common judgment passed by the first appellate court it has also been submitted by Mr. S ingh, learned counsel, that the first appellate court having regard to the findi ng that the consideration amount was paid by Krishna Mohan Sarma to Nepal Dev at the time of execution of the sale deeds dated 3.5.1986 (Ext. 2 and 3) and it is also the finding of the first appellate court that there is no evidence to prov e that Nepal Dev either paid the amount of Rs. 20,000/- or offered to pay the am ount pursuant to the ekranama (Ext. 1), ought not to have allowed the appeal by treating the plaint filed by Nepal Dev in Title Suit No. 45/1986 as his demand f or execution of the deed of re-conveyance by Krishna Mohan Sarma even though the re is not even a whisper in the plaint filed by Nepal Dev in Title Suit No. 45/1 986 that he was ready and willing to perform his part of the contract. The learn ed counsel, therefore, submits that the common judgment and decree passed by the first appellate court needs to be set aside. 13. Per contra, the learned counsel appearing for the respondent sup porting the common judgment and decree passed by the first appellate court has s ubmitted that as in the matter of transfer of right over the property the time i s not the essence of the contract, the first appellate court has rightly decreed the Title Suit No. 45/1986 filed by Nepal Dev and dismissed Title Suit No. 85/1 986 filed by the present appellant Krishna Mohan Sarma by holding that filing of the suit indicates the readiness and willingness of Nepal Dev to perform his pa rt of the contract in terms of the ekranama (Ext. 1). The learned counsel, there fore, submits that the appeals filed by the appellant deserve to be dismissed. 14. I have considered the submissions advanced by the learned counse l for the parties and perused the evidence adduced as well as the judgments and decrees passed by both the courts below. 15. As noticed above, the trial court dismissed Title Suit No. 45/19 86 and allowed Title Suit No. 85/1986. The same, however, has been reversed by t he first appellate court by allowing the Title Suit No. 45/1986 and dismissing t he Title Suit No. 85/1986. 16. It appears from the judgments and decrees passed by both the cou rts below that the finding to the effect has been recorded that Krishna Mohan Sa rma paid the consideration amount on execution of the sale deeds dated 3.5.1986 (Ext 2 and 3). The trial court has also recorded the finding that since the time is the essence of the contract and there was no claim by Nepal Dev that he is r eady and willing to perform his part of the contract as per the ekranama (Ext. 1 ), he is not entitled to a decree for re-conveyance of the property based on the ekranama. The said finding, however has been reversed by the first appellate co urt by holding that time is not the essence of the contract and filing of the su it, being Title Suit No. 45/1986, by Nepal Dev within the period of two months f rom the date of execution of the ekranama claiming the decree for re-conveyance of the property amounts to his readiness and willingness to perform his part of the contract. 17. There being the concurrent finding of fact by both the courts be low relating to the payment of consideration amount by Krishna Mohan Sarma to Ne pal Dev while executing the sale deeds, such findings cannot be disturbed in sec ond appeal when no perversity has been demonstrated in recording such finding. To get the decree directing Krishna Mohan Sarma to execute the d 18. eed of re-conveyance based on the ekranama (Ext 1), Nepal Dev, the plaintiff in Title Suit No. 45/1986, must plead and prove that he was ready and willing to pe rform his part of the contract, even if the time stipulated for execution of the deed of re-conveyance, in the ekranama, is not the essence of the contract. In the plaint filed by Nepal Dev in Title Suit No. 45/1986 there is not even a whis per that at any time he was ready to perform his part of the contract in terms o f the ekranama (Ext. 1), which he is required to prove under Section 16(c) of th e Specific Relief Act, 1963, which provides that for specific performance of a contract if a person claiming such relief fails to aver and prove that he has pe rformed or has always been ready and willing to perform the essential terms of t he contract which are required to be performed by him, other than terms, the per formance of which has been prevented or waved by the defendant he is not entitle d to get the decree for specific performance of the contract. Nepal Dev in Title Suit 45/1986 has never claimed that he was always ready and willing to perform his part of the contract under the ekranama. On the other hand it is the case of Nepal Dev in the said suit that he is not required to pay Rs. 20,000/- or offer the same to Krishna Mohan Sarma as Krishna Mohan Sarma never paid the considera tion amount on execution of the sale deeds dated 3.5.1986 (Ext. 2 and 3). 19. Though the finding of fact relating to the payment of the consid eration amount to Nepal Dev by Krishna Mohan Sarma while executing the sale deed s (Ext. 2 and 3) has been recorded, the first appellate court while passing the common judgment and decree has completely ignored that aspect of the matter as w ell as the provisions of Section 16 of the Specific Relief Act and passed the de cree in favour of the present respondent, who is the plaintiff in Title Suit No. 45/1986, dismissing the Title Suit No. 85/1986, despite not having any proof re lating to the readiness and willingness of Nepal Dev to perform his part of the contract. Hence the question as to whether the time was the essence of the contr act need not be gone into. 20. In view of the above, the common judgment and decree passed by t he first appellate court is set aside. The judgment and decree passed by the tri al court is restored. 21. The appeals stand allowed. 22. e the parties are directed to bear their own cost throughout. However, having regard to the facts and circumstances of the cas 23. The Registry is directed to send down the records forthwith.