Satyam Das vs Ranabir Das (Rana)

1) Heard Mrs. S. Deb(Gupta), learned counsel as well as Mrs. Sulagna Nandi, learned counsel appearing for the appellant. None appears for the respondent despite receipt of summons.

2) The instant appeal has been admitted to be heard by this Court formulating the following substantial question of law:-

"Whether the judgment and decree passed by the trial court and affirmed by the appellate court suffers from perversity for non-appreciation of the pleadings and evidence adduced by the plaintiff-appellant?

3) The brief facts of the case are that the mother of the defendant-respondent (hereinafter referred to as defendant) had entered into an agreement with the plaintiff-appellant (hereinafter referred to as plaintiff) on 07.12.2009, wherein it had been agreed upon between the parties that Smt. Swapna Rani Das being the owner of the suit land (mother of the defendant) would sell the suit land to the plaintiff for a consideration money of Rs.2,50,000/-. On the date of agreement that is on 07.12.2009, the plaintiff had paid Rs.1,00,000/- and on 12.02.2010 he further paid Rs.90,000/-. During the existence of the agreement period, the mother of the defendant i.e. Smt. Swapna Rani Das had expired when the defendant was minor.

4) It is the case of the plaintiff that he expressed his readiness and willingness to pay the balance amount and advocate's notice also was issued. But the defendant refused to receive the said balance amount of the agreement and also did not reply to the notice served upon by the plaintiff. Ultimately, the plaintiff initiated the present suit for specific performance of the agreement dated 07.12.2009.

5) In course of trial, the plaintiff had produced record of right relating to the suit land wherefrom it is revealed that one Sri Arun Chandra Dey and Smt. Swapna Rani Das were shown as rayati.

6) In the judgment of the trial Court, I find that while discussing the merits of the suit, the learned trial Court had observed that Smt. Swapna Rani Das was a forceful possessor which is contrary to the record of right wherein it is recorded that the suit land was possessed by Smt. Swapna Rani Das and Sri Arun Chandra Dey as their own property. This is clearly a wrong finding and suffers from non-application of mind. The learned First appellate Court also while appreciating the judgment of learned trial Court as well as the evidence on record had not considered the documents properly. The first appellate Court had relied on the findings of the learned trial Judge that Smt. Swapna Rani Das was forceful possessor of the suit land. During the entire proceeding, the defendant never appeared before the Court and did not contest the suit.

7) Due to the wrong findings of the Courts below to the effect that Smt. Swapna Rani Das was a forceful possessor of the suit land which is beyond the record, in my opinion, this is a fit case to remit the case back to trial Judge directing him to go through the records and apply his mind properly and dispose of the case.

8) Accordingly, I remit the instant appeal back to the learned trial Court for fresh determination of the suit on the basis of the evidence on record. I make it clear that the plaintiff will not be given any opportunity to amend the plaint as it is on record. The suit will be decided on the basis of the available records. However, for ends of justice, the plaintiff may be given an opportunity to ensure presence of the defendant as a witness to record his evidence.

9) Send down the case records along with this order to the Court of learned trial Judge immediately. After receipt of the record, the learned trial Court shall bring it to the notice of Mrs. S. Deb(Gupta), learned counsel appearing for the plaintiff-appellant before this Court. After such notification, the learned counsel appearing for the plaintiff shall take appropriate steps within a period of seven days.

10) With the above observation and direction, the instant second appeal is disposed of.