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Judgment
Heard Mr. A. De, learned counsel appearing for the appellant as well as Mr. D. Chakraborty, learned senior counsel assisted by Mr. H. Laskar, learned counsel appearing for the respondent No.1 and Mr. K. K. Pal, learned counsel appearing for the respondent No.2.
This is an appeal under Section 100 of the CPC from the judgment dated 22.12.2014 delivered in Title Appeal No.09 of 2009 by the Additional District Judge, West Tripura, Agartala, Court No.5.
By the said Judgment dated 22.12.2014, the Addl. District Judge has affirmed the judgment dated 10.07.2009 delivered in Title Suit No.46 of 2005 by the Civil Judge, Sr. Divn., West Tripura, Agartala, Court No.2 whereby the suit instituted by the respondent No.1 was decreed by cancelling two registered sale deeds bearing No.1-10700 dated 14.09.2005 executed in favour of the proforma respondent No.2 and the sale deed No.1-10701 dated 14.09.2005 executed in favour of the plaintiff, respondent No.1. The suit was filed for specific performance of the contract dated 05.06.2005 in respect of sale of the suit land recorded in Touji No.411/P and Khatian No.6594, old plot No.1526/Part of Mouja-Pratapgarh measuring .025 acre. The said agreement/contract contains various provisions relating to the sale of the suit property and obligations of the respective parties. There is no dispute in respect of identification of the suit property and its area, which has been demarcated by the well-delineated boundaries. According to the said agreement dated 05.06.2005, the consideration money for the said sale was determined at Rs.1,87,500/-. The plaintiff-respondent had paid Rs.1,00,000/- out of the said consideration money as the earnest money. It was further agreed that the remainder of the consideration amount will be paid by the plaintiff-respondent No.1 to the defendant- appellant. But in the agreement, there was no deadline within which the remainder of the consideration money shall be paid was determined. According to the plaintiff, she had approached the defendant-appellant No.1 on numerous occasions but on 21.08.2005 when such request was again made, the defendant-appellant No.1, in front of the others, had categorically stated that he had already entered in the agreement with other persons, such as, the respondent No.2. Having situated thus, the plaintiff-respondent No.1 has filed the suit for specific performance of the said agreement.
Having recorded the evidence, both oral and documentary, the trial court by the judgment dated 10.07.2009, having observed as under, dismissed the suit.
"The plaintiff said in the plaint that defendant No.1 filed Written Statement in the suit on 28.1.06 furnishing copy to the Ld. Advocate of the plaintiff and on perusal of the Pratapgarh-15 and 17 of the Written Statement the plaintiff first came to know that the defendant No.1 sold the suit land to the defendant No.2 by registered sale deed NO.1- 10700 executed on 14.09.05 and registered on 21.09.05. Defendant No.3 by a registered sale deed No.1-7001 executed on 14.9.05 and registered on 21.9.05 but the defendant No.1 did not deliver possession of the suit land to the said defendant. It is pleaded in the plaint that defendant No.2 Bikash Ch. Bhowmik is the younger sister's husband of the defendant No.1 and though he is a resident of Amtali at a distance of 5 k.m. from the house of defendant No.1 but he was well aware about the negotiation between and plaintiff and defendant No.1, as to the purchase of the suit land by the plaintiff and the defendant No.2 also aware that price of the suit land was fixed at Rs.1,87,500/- and on receipt of earnest money Rs.1 lakh the defendant No.1 agreed to transfer the suit land to the plaintiff land at the same time defendant No.2 is also aware that through the stipulated period of agreement for sake the plaintiff will tender the rest amount of consideration money to the defendant No.1.
I have scrutinized the evidence on record from all corner and points. Considering material on record I have of the opinion that the issue No.(ii) shall be answered in favour of plaintiff in affirmative. The registered deed no.1-1077 dated 14.9.05 between Bikash Ch. Bhowmik-vendee and Sri Santi Rn. Dey-vendor and the registered sale deed No.10701 dated 14.9.05 between Sujit Sarma - vendee and Sri Santi Rn. Dey - vendor void and liable to be cancelled."
As consequence of the above findings, the suit was decreed by the trial court.
Being aggrieved by that decision as rendered by the judgment dated 10.07.2009, the present appellant No.1 filed an appeal being Title Appeal No.09 of 2009 in the Court of the District Judge which in the course of time was transferred to the Court Additional District Judge, Court No.5. By the impugned judgment, the said appeal was dismissed but subject to the modification and partial interference by setting aside the part of the judgment of the trial court. It is apposite to refer the relevant part of the judgment in respect of modification. The appellate court has modified the judgment and decree in the following manner:
"and the registered sale-deed No.1-10701 executed on 14.9.05 and registered at Agartala Sub-Registry Office on 21.9.05 between Sri Sujit Sarma-vendee and Santi Rn. Dey- vendor" shall stand deleted and the word "is" shall stand substituted for the word "are" occurring at the end of the above quoted sentence".
Therefore, the modification as made is not substantive. It has been clearly stated that the cancellation of the sale deed No.1-10701 dated 14.09.2005, as directed by the trial court, is set aside and it has been further observed that the agreement to sale is not concerned with the land, demised in the sale deed No.1-10701 dated 14.09.2005.
At the time of admission of the appeal, this court had framed the following substantial question of law by the order dated 04.07.2015:
"Whether the judgment and decree passed by the Courts below suffer from perversity?"
However, the liberty was granted to the appellant to raise any other substantial question of law at the time of hearing.
Mr. De, learned counsel appearing for the appellants has submitted that the substantial question of law as recorded by this court be further specified. According to him, the evidence relating to 'refund' of Rs.1,00,000/- by the appellant No.1 to the plaintiff-respondent No.1 through one Narayan Ch. Deb, who is the maternal uncle of the plaintiff- respondent No.1 and the witness to the agreement to sale, has not been at all appreciated based on the evidence that has been recorded in the trial. According to Mr. De, learned counsel, the money receipt dated 07.09.2005 as executed by Narayan Ch. Deb after receiving the sum of Rs.1,00,000/-, as acknowledgment of refund of the earnest money, has been admitted in the evidence. That apart, Mr. De, learned counsel has submitted that even PW-3 had categorically stated that the same amount of money was paid to him by Narayan Ch. Deb at the time of execution of the agreement to sale. Mr. De, learned counsel has relied in particular on the statement made in the trial by PW-3. His statement reads as under:
"I heard that Narayan Ch. Deb brought back Rs.1.00 lac from Santi Rn. Dey." (the defendant No.1-appellant No.1)
For purpose of reference, this court had taken adequate time to scrutinize all the records including the said receipt as produced as Exbt.A, but this court could not locate the said admission. On the contrary, Exbt.A was admitted subject to objection raised by the plaintiff-respondent No.1. It is no denying fact that Narayan Ch. Deb was not summoned either by the plaintiff or by the defendant No.1-appellant No.1 for purpose of establishing the fact that the earnest money that was received during execution of the agreement to challenge the question whether the earnest money was really returned to the defendant No.1-appellant No.1. According to Mr. De, learned counsel, this fact cannot be denied when the money receipt has been admitted. When this court has queried whether that money receipt, absolutely a private document, can really be admitted in the evidence in absence of Narayan Ch. Deb, Mr. De, learned counsel has responded by stating that (1) nobody has raised objection during the admission and (2) that, in view of the statement made by the respondent No.3, there is no difficulty in admitting the said money receipt. This court is constrained to observe that the said private document could not have been admitted in the evidence, in view of the provisions made under Section 67 of the Evidence Act. Section 67 of the Evidence Act clearly provides that "If a document is alleged to be signed or to have been written wholly or in part by any person, the signature or the handwriting of so much of the document as is alleged to be in that person's handwriting must be proved to be in his handwriting". The position of the law is also very clear that by oral evidence the contents of the letters cannot be admitted. Section 61 has categorically provided that the contents of the documents can only be proved by the primary or secondary evidence meaning either by the documents in original and its copies as defined under Section 63 of the Evidence Act. In the case in hand, the original receipt has been submitted by the defendant No.1-apellant No.1 in the trial, but the document was not admitted in the evidence following the requirement of Section 67 of the Evidence Act. As such, this court cannot read its contents. Such private document shall always be proved by the person who authored it or by the person who executed the same. In that event only, the court can read the content of the document, otherwise not. In view of Section 61 of the Evidence Act, the oral evidence has no value in respect of the content of the document, unless the same is admitted in the evidence on observing the required procedures. As such the said contention of Mr. De, learned counsel cannot be accepted.
Mr. D. Chakraborty, learned senior counsel has submitted that there is no admission as asserted by Mr. De, learned counsel for the appellant that the plaintiff has accepted the money through Narayan Ch. De. On the contrary, the plaintiff has denied of any such transaction.
Mr. K. K. Pal, learned counsel appearing for the respondent No.2 has submitted that so far the finding of the first appellate court in respect of the sale deed No.1-10701 dated 14.09.2005 is concerned, has not been challenged even by the appellant No.1 or by the appellant No.2 in the present appeal and as such, the respondent No.2 has been made unnecessarily a party in this appeal.
Having appreciated the submissions of the learned counsel appearing for the parties and the discussion as made above, this court finds that this appeal does not have any merit and accordingly the same is dismissed.
Draw the decree accordingly and thereafter send down the records.