The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK RSA NO.13 OF 2003 (From the judgment dated 11.10.2002 and decree dated 02.11.2002 passed by the Addl. District Judge, Fast Track Court No.III, Bhubaneswar in Title Appeal No.2/8/14 of 2002-2001 reversing the judgment dated 11.05.2001 and decree dated (Senior Division), 22.06.2001 passed by Bhubaneswar in T.S. No.222 of 1985 ) the Civil Judge AFR Pramila Mohapatra …… Appellant -versus- Narahari Das & Ors. …… Respondents Advocates appeared in the case through hybrid mode: For Appellant : Mr. S. S. Rao, B.K. Mohanty and A.P. Rath, Advocates For Respondents : Mr. A. Routray & U.R. Bastia, Advocates __________________________________________________________ JUSTICE SASHIKANTA MISHRA CORAM: JUDGMENT 17.09.2024
Legal Reasoning
Sashikanta Mishra, J. This is an appeal by the plaintiff against a reversing judgment passed by the learned Addl. District Judge, Fast Track Court No.III, Bhubaneswar in Title Appeal No.2/8/14 of 2002-2001 on 11.10.2022 followed by Page 1 of 9 decree, whereby the judgment dated 11.05.2001 followed by decree passed by the learned Civil Judge (Sr. Division), Bhubaneswar in T.S. No.222 of 1985 was reversed. 2. For convenience, the parties are referred to as per their respective status before the trial court. 3. The plaintiff’s case is that she decided to purchase a piece of land at Bhubaneswar. The defendant nos.1 to 3 proposed to sell the suit property, for which they entered into negotiation with the plaintiff. The price of the property was fixed at Rs.10,000/- and on receipt of Rs.1,500/- towards part payment of consideration, defendant no.1, as ‘karta’ of the family, executed a registered agreement in favour of the plaintiff to the effect that they would sell the suit property on or before 10.07.1984. The plaintiff was ready and willing to pay the balance consideration money and regularly contacted the defendants with request to execute the sale deed, but the defendants allegedly deferred the execution on some plea or the other. In the meantime, the plaintiff came to know that defendant nos.1 to 3 had already executed a registered Page 2 of 9 sale deed in favour of defendant no.4 in respect of the suit land making certain false representations regarding the suit land in the said sale deed. It is the further case of the plaintiff that defendant no.4 was never put to possession of the suit land. On such facts, the plaintiff filed the suit for specific performance of contract along with incidental reliefs. 4. Defendant no.4, being the purchaser, did not contest the suit and was set ex parte. The other defendants entered appearance and contested the suit by filing written statement. They inter alia took the plea that defendant no.1 was not the ‘karta’ of the family and had no authority to execute the agreement in favour of the plaintiff. The said agreement is a fraudulent one and there was no payment of advance by the plaintiff, as claimed. Since there was dissension amongst the heirs of the plaintiff’s family, her husband, being close to defendant no.1, instigated him to execute the impugned agreement in favour of his wife (plaintiff) only to pressurize the defendant nos.2 and 3 to disclaim any share on the suit property. It is their further case that defendant no.4 is a bona fide Page 3 of 9 purchaser of the suit land on the basis of a registered sale deed dated 11.09.1985 on payment of consideration of Rs.7,000/- followed by delivery of possession. Further, defendant no.4 sold the said property to defendant no.5 under registered sale deed dated 01.11.1985 accompanied by delivery of possession. 5. Basing on such pleadings, the trial court framed the following issues for determination:- ISSUES “1) Is the suit maintainable? 2) 3) 4) 5) 6) 7) 8) Is there any cause of action for the suit? Is the suit under valued? Is the suit barred by limitation? Is the suit bad for nonjoinder of parties? Is the plaintiff entitled to the enforcement of the Regd. Agreement No.6367 dt.13.7.83 against the Defendants? Is the Defendant No.5 the real owner of the suit property having full right, title, interest and possession by virtue of her purchase from the defendant No.4? Is the sale deed dt.11.9.85 executed by the in favour of the Defendant No.1 and 3 Defendant No.4 and subsequently the sale deed dt. 1.11.85 executed by Defendant No.4 in favour of the Defendant No.5 null and void? Page 4 of 9 9) Is the Defendant No.2 entitled to Ac.0.10 dec. out of Ac.0.80 dec. of land in western side according to the amicable family settlement? 10) To what relief if any the plaintiff is entitled?” 6. Basing on the oral and documentary evidence adduced by the parties, the trial court accepted the case of the plaintiff, as claimed, and decreed the suit against defendant nos.1, 2 and 5 on contest and ex parte against defendant no.4. The registered agreement dated 13.07.1983 executed between defendant no.1 and the plaintiff relating to the suit land was held to be a valid agreement and specifically enforceable. The registered sale deed executed by defendant nos.1 and 3 in favour of defendant no.4 was held to be an illegal document. Accordingly, the defendant no.1 was directed to execute a registered sale deed in favour of the plaintiff in relation to the suit land within three months on receipt of balance consideration. Similarly, defendant no.5 was directed to render vacant possession of the suit land in favour of the plaintiff on the date of execution of the sale deed. Further, defendant nos.4 and 5 were also permanently injuncted Page 5 of 9 from interfering with the possession of the plaintiff in respect of the suit land. 7. Being aggrieved, defendant nos.1, 2 and 5 carried the matter in appeal. The First Appellate Court, after considering the oral and documentary evidence independently and the position of law held that the plaintiff had not approached the Court with clean hands to get equitable relief. It was further held that though she had a contract with defendant no.2, she unjustly desired specific performance of the contract through all the three co- sharers. Further, holding that the suit land had been sold by defendant nos.1 and 3 in favour of defendant no.4 and subsequently by defendant no.4 in favour of defendant no.5 for value, the First Appellate Court held that the plaintiff is not entitled to any relief except compensation. Accordingly, the appeal was allowed. The suit was dismissed on contest against defendant nos.2 and 5 and ex parte against defendant no.4. Defendant no.1 was directed to refund a sum of Rs.1,500/- to the plaintiff with interest. Page 6 of 9 8. Being further aggrieved, the plaintiff has filed the present second appeal which was admitted on the following substantial question of law:- “Whether the learned lower appellate court lost sight of the provisions in section 10 of the Specific Relief Act while refusing to grant the relief of the specific performance of contract (Ext.1) when the document was proved? 9.
Legal Reasoning
Heard Shri B.K. Mohanty, learned counsel for the plaintiff-appellant and Shri A. Routray, learned counsel appearing for defendant nos.1, 2 & 5-respondents. 10. At the outset, Shri Routray submits that as per order dated 18.06.2024 passed by this Court, the appeal has been dismissed against respondent no.4 for not filing requisites, as directed by this Court, for more than 19 years. He further submits that in view of dismissal of the appeal against respondent no.4, no further relief can be granted to the plaintiff, since the decree cannot be severed and hence, the appeal cannot continue as against the other defendants only. 11. Shri Mohanty, learned counsel appearing for the plaintiff-appellant does not dispute the position that on Page 7 of 9 dismissal of the appeal against defendant no.4, the appeal cannot be continued only against the other defendants. 12. After hearing learned counsel for the parties and upon going through the decree passed by the First Appellate Court in reversing the original decree passed by the trial court, this Court observes that as per the impugned decree the suit was dismissed against defendant nos.2 and 5 and ex parte against defendant no.4. The suit was decreed on contest against defendant no.1 with direction to refund Rs.1,500/- to the plaintiff. As has already been narrated herein before, the suit land was sold to defendant no.4 on the basis of a sale deed for value and possession was also delivered. It is also accepted by the parties that defendant no.4 resold the suit property to defendant no.5 and delivered possession. In such view of the matter, in the absence of defendant no.4, because of dismissal of the appeal against him, it is obvious that the decree cannot be severed, for which the appeal cannot continue against the other defendants in his absence. Page 8 of 9 13. In such view of the matter, this Court observes that nothing further remains to be decided in the appeal, which is therefore, dismissed. The judgment and decree passed by the First Appellate Court is hereby confirmed. …………….……..………. Sashikanta Mishra, Judge High Court of Orissa, Cuttack The 17th day of September, 2024/ G.D. Samal Signature Not Verified Digitally Signed Signed by: GAYADHAR SAMAL Designation: JOINT REGISTRAR-CUM-PRINCIPAL SECRETARY Reason: Authentication Location: Orissa High Court, Cuttack Date: 19-Sep-2024 18:07:28 Page 9 of 9