Rita Chakraborty vs Nihar Kanti Halder and Anr

Supratim Bhattacharya, J

The defendant in a suit for declaration of title to land and property as well as for recovery of possession has preferred the present second appeal against a judgment of

affirmance.

Learned counsel appearing for the appellant submits that whereas the suit from which the present appeal arises was filed by the plaintiffs on the basis of their alleged title in respect of the suit passage, in defence, the appellant took the plea that there was a salishi (mediation) between the parties and the salishi sabha (mediation committee) came to a decision that certain portions of the property in question will be left for being used as a common passage by the appellant. Learned counsel submits that such position was accepted by both parties and for over a period of 11 years, the passage was being used by the appellant without any demur on the part of the respondents. However, subsequently, the suit was filed.

The defendant/appellant, it is submitted, also filed a counter claim for specific performance of the contract between the parties, which is in the form of Exhibit- F in the suit, a copy of the minutes of the salishi settlement.

Learned counsel also relies on a Division Bench judgment of this court in the matter of Sudhanshu Mohan Koley vs. Mathura Mohan Adak reported at (1975) ILR 1 Cal 182 where it was held that there need not be any cash consideration for an agreement to transfer property. The transfer would still be valid if the consideration was in the form of a promise by one of the parties.

Learned counsel also cites the judgment of Chidambaraiyer and Ors. vs. P.S. Renga Iyer and Ors. reported at AIR 1966 SC 193 where the concept was reiterated by the Hon’ble Supreme Court that consideration, in the sense of law, may consist either in some right, interest, profit or benefit accruing to one party, or some forbearance, detriment, loss or responsibility, given, suffered, or undertaken by the other.

During arguments, a copy of the purported salishnama (Exhibit F) has been handed over to us. We find therefrom that although the plaintiffs/respondents had offered to leave a 3 ft. passage for user by the appellant, the appellant did not agree to the same and wanted more. Ultimately, a decision was taken by the salishi sabha that the passage in dispute would be permitted to be used by the appellant.

Thus, we do not find any consensus ad idem on the part of the parties enumerated in the minutes of the salishi, to label the same as a concluded contract between the parties.

The learned first appellate judge, while affirming the judgment and decree of the trial court, came to the finding that on perusal of the plan annexed with the sale deed of the plaintiff, it is seen that the 8 ft. passage on the western side of the land of the defendant was sold to the plaintiff by promoters on the pretext of change of master plan and on the basis of salishi which was marked Exhibit –F, but on perusal of Exhibit –F, it is seen that the same is a photocopy of the salishi and the master plan was marked Exhibit –A indicating the position of land. Again, on perusal of Exhibit –A, it is seen that such master plan is made by hand (in a rough format manner) without scale and without indicating as to by whom it was prepared and as such, it was also not signed by anyone.

Thus, the trial court and the appellate court disbelieved the said document, being Exhibit-F.

Even if we proceed by accepting that Exhibit – F exists, the same does not crystallize a concluded contract between the parties, since there was no agreement as such between the parties enumerated in the same, but only the decision of the salishi members.

Thus, the same does not have a binding effect as a contract. In the event the offer of the respondents to leave a 3 ft. passage was accepted by the appellant and recorded in the salishi, we could still apply the principles as enumerated in the cited judgments, to the extent that such promise and counter promise by themselves comprised of mutual consideration to arrive at a contract. However, in the absence of the same, we do not find any reason to interfere with the findings of both the courts below.

The arguments now sought to be made do not find place in the discussions before the courts below to the effect that what transpired after the execution of Exhibit –F tantamounted to an estoppel on the part of the respondents by permitting user of the passage by the appellant for a period of 11 years. Thus, we cannot enter into such third case now sought to be made out, contrary to the findings recorded by the courts below and the primary argument of the appellant that Exhibit-F is the plinth of a contract between the parties.

In that view of the matter, we do not find any substantial question of law involved. As such, we do not interfere with the concurrent findings of both the courts below on facts.

Accordingly, SAT 140 of 2023 is dismissed under Order XLI Rule 11 of the Code of Civil Procedure.

CAN 1 of 2023 stands dismissed consequentially.

There will be no order as to costs.

It is made clear that we have not entered into the merits of the counter claim pending in the trial court at the behest of the appellant and it will be decided on its own merits in accordance with law by the learned court before whom it is pending.

The parties shall act on the server copy of this order, duly downloaded from the official website of this court.