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Judgment
Heard Mr. A. Singh, learned counsel for the appellant in RFA No. 73/2019, and respondent in RFA No. 111/2019. Also heard Mr. I.S. Mazumdar, learned counsel for the respondent in RFA No. 73/2019, and appellant in RFA No. 111/2019.
In these appeals, under Section 96 of the CPC, the appellant/respondent has put to challenge the correctness or otherwise of the judgment and decree, dated 12.06.2019, passed by the learned Civil Judge No. 2, Kamrup (M) at Guwahati (trial court hereinafter), in Title Suit No. 205/2014.
As both the appeals are arising out of the same judgment and decree and the parties involved are also same and as agreed upon by learned counsel for both the parties, it is proposed to dispose of both the appeals by a common judgment and order.
For the sake of convenience and also to avoid confusion, the parties herein after will be referred to by their original status in the Title Suit No.205/2014.
Background Facts:-
The background facts, leading to filing of the present appeals, are adumbrated herein below:-
“The defendant is the absolute owner and possessor of a plot of land, measuring 1 Katha 17 Lechas, covered by Dag No. 200 of KP No. 87 of revenue village Khanapara, under Beltola Mouza, in the district of Kamrup (M) at Guwahati and he had constructed one G+3 storied RCC building, over the said plot of land, but he could not complete the same.
Thereafter, in the month of September, 2013, the defendant had approached the plaintiff with a request to sell the suit property. Then, on 10.10.2013, the plaintiff and the defendant had entered into an agreement for sale of the aforesaid property, fixing the price at Rs. 1,00,00,000/-(Rupees One Crore). The plaintiff had paid a sum of Rs. 90,00,000/-(Rupees Ninety Lacs) to the defendant on the date of execution of the agreement for sale and then, the defendant had handed over the possession of the property to the plaintiff.
As per stipulation, made in the agreement, the defendant had to take necessary sale permission from the authority for execution of sale deed. But, on various pretext he avoided to obtain the same. Thereafter, on 06.01.2014, when the plaintiff had approached the defendant, the defendant assured the plaintiff that the sale permission would be obtained shortly and the sale deed will be executed. But, in fact he never made any attempt to obtain the sale permission. When the plaintiff had inquired at the office of the Deputy Commissioner, Kamrup (M) at Guwahati (DC hereinafter) and Guwahati Municipal Development Authority (GMDA herein after), he found that the defendant had not applied for any sale permission. Then, seeing the conduct of the defendant and being left with no option, the plaintiff had filed a title suit, being Title Suit No.205/2014, before the learned trial court, for specific performance of contract and also for decree for execution of the sale deed or for recovery of Rs. 90,00,000/(Rupees Ninety Lacs).
Thereafter, summon was issued to the defendant and the defendant had entered appearance and filed his written statement cum counter claim, wherein the defendant, amongst others, had taken a plea that the suit is not maintainable and there is no cause of action for the suit and also that the suit is barred by limitation.
The defendant had also taken the plea that he is the absolute owner of the suit property as stated in the plaint, but he denied that he had ever approached the plaintiff for sale of the suit property and also denied entering into any agreement for sale of the suit property with the plaintiff on 10.10.2013, and also denied that he had received a sum of Rs. 90,00,000/ (Rupees Ninety Thousand)- as an advance from the plaintiff, and also denied handing over the possession of the suit land to the plaintiff. The defendant had also stated that as there was no agreement for sale of the suit property between him and the plaintiff, the question of obtaining sale permission from the concerned authority does not arise.
The defendant had also taken a plea that he had purchased the suit schedule property from one Upendra Choudhury, by paying a sum of Rs. 25,90,000/-(Rupees Twenty Five Lacs and Ninty Thousand), who was the original owner of the suit land, by executing a sale deed, bearing No. 1930, dated 05.03.2012 and since then, he was enjoying the peaceful possession of the suit property till dispossession by the plaintiff.
The defendant had also stated that as he was frequently away from Guwahati, he entrusted one Bhawananda Jha and Anil Mishra to take care of the suit property and Anil Mishra had also acted as a Manager of him and he looked after the construction work. Then, on 12.05.2014, the plaintiff, accompanied by some other antisocialist, had forcefully entered into the suit property by breaking the lock of the main gate and drove out all the workers from the suit property by threatening them and since then, the plaintiff has illegally been possessing the suit property till date.
The defendant had also taken the plea that at the relevant time, he was in the judicial custody in connection with some other cases and one Bhawananda Jha, on his behalf, had filed one FIR against the plaintiff, upon which Dispur PS Case No. 1060/2014, under Section 447/427/506/34 of the IPC read with Section 5 of the Assam Land Grabbing (P) Act, was registered. The defendant had also taken the plea that the plaintiff has no right, title and interest over the suit land and that he is a mere trespasser.
In the counter claim, the defendant had prayed for a decree, declaring his right, title and interest over the schedule property and also declaring that the sale agreement, dated 10.10.2013, between the plaintiff and the defendant is forged and manufactured one and the same is not binding upon him and also for recovery of khas possession.
Thereafter, the plaintiff had filed a written statement against the counter claim of the defendant, wherein the plaintiff had stated that the counter claim is not maintainable and he denied all the averments and statements made by the defendant in the counter claim and he prayed for dismissing the same.
Upon the aforesaid pleadings of the parties, the learned trial court had framed following issues:-
1.Whether there is cause of action for the suit?
2.Whether the suit is maintainable?
3.Whether the suit is barred by limitation?
4.Whether the defendant has entered into an agreement on 10.10.2013, with the plaintiff for sale of suit land to the plaintiff?
5.Whether the defendant has obtained Rs. 90,00,000/- from the plaintiff as earnest?
6.Whether the plaintiff is entitled to enforce specific performance of agreement as prayed for?
7.Whether the plaintiff is entitled to the decree and/or relief as prayed for?
8.Whether there is cause of action for counter claim?
9.Whether the counter claim is maintainable?
10.Whether the defendant/counter claimant is entitled to the decree and/or relief as prayed for?
11.To what other relief or reliefs parties are entitled?
Thereafter, discussing the evidence adduced by both the parties and also considering the documents, so exhibited before it and also hearing arguments of learned counsel for both the parties, the learned trial court, vide impugned judgment and decree dated 12.06.2019, had dismissed the suit of the plaintiff and partly allowed the counter claim filed by the defendant, by holding that the sale agreement dated 10.10.2013, is void and is not binding upon the defendant. However, the learned trial court did not grant any relief to the plaintiff in respect of his right, title and interest over the suit property.”
Then being aggrieved and dissatisfied with the judgment and decree, so passed by the learned trial court, the defendant has preferred the appeal bearing RFA No. 73/2019, on the following grounds that :-
I. The impugned judgment and decree is bad in law and is against the judicially recognized principles of law and equity.
II. The impugned judgment and decree suffers from vices, incongruities and is failed to reason with the law laid down by the Hon'ble Supreme Court.
III. The impugned judgment and decree is bad in the eyes of law to the extent that it upsets the otherwise clear, absolute and well recognized title of the appellant.
IV. The impugned judgment and decree is highly impracticable for the reason that it goes on to the extent of adjudicating upon the issue, which need not be an issue, when the respondent himself recognizes the right of the appellant as right-in-rem.
V. The impugned judgment and decree on one account having rendered the suit for specific performance of the agreement to sell devoid of merit, illegal, recognizes the disability of the respondent qua the suit property, on the other hand, delegitimizes the ownership of the appellant over the suit property, by adjudicating on the issue of title in negative, it ought not to have gone into the question of title, especially in the given facts and circumstances.
VI. The impugned judgment and decree ought to have been passed in the manner of adjudicating only to the extent of issues encircling the specific performance of the contract qua respondent.
VII. The impugned judgment and decree has made the right of possession of the respondent absolute in nature. Consequently, the appellant has been stripped off his ownership right over the suit property which even the respondent had recognized.
VIII. The appellant ought not to have been conditioned to lead evidence qua proving his title and declaring the same to be absolute and free from any interest, whatsoever. The impugned order without recognizing the settled position of law that title unless comes under the cloud, cannot be adjudicated upon.
IX. Hon'ble Supreme Court, in the case of Annaimuthu Thevar vs. Alagammal, reported in (2005) 6 SCC 202, held that the averments regarding title are absent in a plaint and where there is no issue relating to title, the court will not investigate or examine or render a finding on a question of title, in a suit for injunction. Even where there are necessary pleadings and issue, if the matter involves complicated questions of fact and law relating to title, the court will relegate the parties to the remedy by way of comprehensive suit for declaration of title, instead of deciding the issue in a suit for mere injunction. This recognizes the judicially affirmed approach that title and its adjudication is highly impracticable in absence of any competing interest or claim.
X. The impugned judgment and decree upsets the order passed by the court to maintain the status quo of the suit property, as it made absolute the possession right of the respondent. It brushes aside the implication that it would cast on the title, right and interest on the suit property of the appellant.
XI. The impugned judgment and decree dilutes the ownership rights of the appellant since it legitimizes the illegal and unauthorized construction made by the respondent over the suit property.
XII. The impugned judgment and decree overlooked the acknowledgment of the respondent qua the absolute title and ownership of the Appellant over the suit property in respect of which the respondent was seeking specific performance.
It also appears that the plaintiff had preferred the RFA No. 111/2019, challenging the same judgment and decree, dated 12.06.2019, passed by the learned Civil Judge No. 2, Kamrup (M) at Guwahati (trial court hereinafter), in Title Suit No. 205/2014, on the following grounds, that :-
I. The impugned judgment and decree dated.12.06.2019 is bad in law and facts and as such liable to be set aside.
II. The impugned judgment and decree is non-speaking, cryptic, devoid of reasons, based upon non-application of judicial mind, and based upon pick and choose policy.
III. The learned Trial Court had failed to consider the provisions of Specific Relief Act and the Indian Contract Act, and also the provisions of Evidence Act.
IV. The learned trial court, while deciding the Issue No. 4, had wrongly shifted the burden upon the appellant/plaintiff, as the initial burden of proof under Section 101 of the Evidence Act lies upon a party who desires the court to give judgment in his favour as to any legal right or liability dependent on the existence of facts which he asserts, must prove that those facts exist and the Appellant/Plaintiff had discharged his burden of proof by producing the original Agreement of Sale, dated 10.10.2013, and the learned trial court had failed to consider the law in respect of burden of proof, so laid down by Hon'ble Supreme Court in Anil Rishi Vs. Gurbaksh Singh reported in (2006) 5 SCC, 558.
V. The learned trial court had failed to consider, though the counterclaim was partly decreed, the concerned document was never exhibited by the counter claimant.
VI. While deciding the Issue No.8 & 9, the learned trial failed to consider that in absence of any material facts supported by concrete evidence, the counter claim filed by the respondent was not maintainable and was liable to be rejected.
VII. There is no observation in the impugned judgment as to whether the counter claim is within the period of limitation, or not.
VIII. The learned Trial Court had failed to consider that under Section 101 of the Evidence Act, the burden of proof in regard to matter of law, is constant, but burden of pleading, in the sense of adducing evidence shifts from time to time, does the question with regard to genuineness of Agreement of Sale dated 10.10.2013, is not a burden which is dependent upon law, but the burden is to be discharged, by adducing evidence, in the present case, no steps was taken in the suit and counter claim to prove that the aforesaid document is fraudulent in nature.
IX. The learned Trial Court had failed to consider the burden of proof in respect of the suit and counter claim are not one and the same, and even shifted the burden in respect of the counter claim upon the plaintiff, which amounts to exercising jurisdiction not vested.
X. The learned Trial Court had failed to consider that once the appellant had discharged his burden of proof in terms of Section 102 of the Evidence Act, by producing the original Agreement of Sale, dated 10.10.2013, and the respondent did not produce any counter evidence to refute it except a mere statement that the Agreement of Sale dated 10.10.2013 is a forged document manufactured by the plaintiff and further admitted in his cross examination that he did not file any application to obtain expert opinion to show that the signature is a fraudulent one, and as such the onus shifts to the respondent/defendant to prove that the Agreement of Sale is a fraudulent one".
XI. The orders, dated 11.10.2018, passed by the learned trial court permitting production of certified copy of the money receipts and accordingly observation in paragraph 18 of the impugned judgment, are contrary to Section 56 and 57 of the Indian Evidence Act, while deciding the Issue No.5.
XII. The decision upon issue No.6 & 7, is depended upon issue Nos. 4 & 5, and as such decision of Issue No.6 & 7 are contrary to law.
XIII. Decreeing the counter claim partly by the learned Trial Court is also without any evidence on record and it amounts to exercising jurisdiction not vested in it.
XIV. That learned Trial Court had failed to exercise jurisdiction vested in it by failing to consider Section 73 of the Evidence Act, 1872 wherein the court has power to compare the signatures and form its opinion, However, if the court finds it difficult to assess it on comparison of signatures, then it may take steps to secure an expert's opinion under Section 45 of the Evidence Act, but no such exercise was carried out.
XV. The observation of the learned Trial Court at paragraph 14 of the judgment and decree dated 12.06.2019 that .........."the plaintiff moreover did not take any step to send the signature of the defendant in the documents for expert opinion so as to ascertain whether the signature in Ext-1 marked as Ext-1(3) and Ext 1(4) are that of the defendant or not" are contrary to law.
XVI. That the learned Trial Court had failed to consider the law laid down that in the case Murarilal v. State of Madhya Pradesh, reported in AIR 1980 SC 531, wherein, it has been observed in relation to the power and even the duty of the Court under Section 73 of the Indian Evidence Act, which provides that-
"The argument that the court should not venture to compare writings itself, as it would thereby assume to itself the role of an expert is entirely without force. Section 73 of the Evidence Act expressly enables the court to compare disputed writings with admitted or proved writings to ascertain whether a writing is that of the person by whom it purports to have been written. If it is hazardous to do so, as a sometimes said we are afraid it is one of the hazard's to which judge and litigant must expose themselves whenever it becomes necessary. There may be cases where both sides call experts and the voices of science are head. There may by cases where neither side calls an expert, being ill able to afford him. In all such cases it becomes the plain duty of the court to compare the writings and come to its own conclusion, the duty cannot be avoided by recourse to the statement that the court is not expert. Where there are expert opinions, they will aid the court will have to seek guidance from some authoritative textbook and the Court's own experience and knowledge",
But, no such exercise was carried out by the learned Trial Court.
XVII. The learned Trial Court has failed to consider Section 30 of the CPC, which empowers the Civil Courts to order discovery, inspection and production of documents etc.
XVIII. The learned Trial Court failed to consider the cross examination of the defendant's witnesses.
Submissions of learned counsel for the appellant in
RFA No. 73/2019 and respondent in RFA No. 111/2019:
Mr. Singh, learned counsel for the appellant in RFA No. 73/2019 and respondent in RFA No. 111/2019, submits that the alleged agreement, dated 10.10.2013, based upon which the plaintiff has prayed for specific performance of the contract in the Title Suit No. 205/2014, itself is a forged and manufactured document. Mr. Singh further submits that the defendant had never agreed to sell the suit property to the plaintiff and he never entered into the said agreement and also he had never received the sum of Rs. 90,00,000/- from the plaintiff, as contended.
Mr. Singh also submits that on account of absence of the defendant, the plaintiff, along with some anti social elements, illegally dispossessed the defendant from the suit property and since then, the plaintiff has been illegally possessing and enjoying the benefit of the same. Mr. Singh further submits that the alleged Agreement, dated 10.10.2013, could not be proved in the court and payment of Rs. 90,00,000/(Rupees Ninety Lacs), also could not be proved and that the learned trial court has rightly rejected the suit of the plaintiff. Under such circumstances Mr. Singh has contended to dismiss the RFA No. 111/2019.
Mr. Singh also submits that the plaintiff has, in no uncertain terms in his plaint stated that the defendant is the absolute owner of the suit property, and in view of said categorical admission the learned Trial Court could have very well decreed the counter-claim filed by the defendant in full, but it had failed to exercise the jurisdiction vested upon it. Further, Mr. Singh submits that the defendant had also produced the copy of the Sale Deed dated 05.03.2012, by which he had purchased the suit property from one Upendra Choudhury, and despite, the learned Trial Court had failed to consider the same. Further submission of Mr. Singh is that unless the plaintiff admits the ownership of the defendant over the suit property, he even cannot maintain the Title Suit for specific performance of the contract.
Further contention of Mr. Singh is that the defendant had filed an application under Order 41 and Rule 27 CPC for allowing him to produce the e-copy of the Sale Deed dated 05.03.2012, by which he had purchased the suit property from Upendra Choudhury, and the same was allowed by this court and that the defendant has also filed the Certificate, as required by Section 63 of Bharatiya Sakhya Adhiniyam, (BSA) 2023 by filing an additional affidavit and the plaintiff has not opposed and disputed the same and on the strength of the same the defendant has succeeded in establishing his right, title and interest over the suit property.
Under the given factual position, Mr. Singh submits that the learned Trial Court has committed gross illegality in decreeing the counter-claim partially and therefore, has contended to allow the RFA No. 73/2019, and to decree the counter claim of the defendant in full.
Submissions of learned counsel for the appellant in RFA
No. 111/2019 and respondent in RFA No. 73/2019:-
Per contra, Mr. Mazumdar, learned counsel for the respondent in RFA No. 73/2019, and appellant in RFA No. 111/2019, submits that on being approached by the defendant to sell the suit property, the plaintiff had entered into an agreement with him on 10.10.2013, fixing the sale consideration @ Rs. 1,00,00,000/- and out of which, the plaintiff had paid a sum of Rs. 90,00,000/- to the defendant on the same day and then possession of the suit property was handed over to the plaintiff and since then the plaintiff is in possession of the same.
Mr. Mazumdar further submits that as per the said agreement, the defendant was to obtain the sale permission, but he failed to obtain the same and also failed to execute the sale deed in favour of the plaintiff and while the defendant refused to perform his part of contract, the plaintiff, being left with no option, had filed the title suit No. 205/2014, before the learned trial court for a decree of specific performance of the agreement or to refund the sum, which he had paid to the defendant and any other reliefs, which he is entitled to as per law and equity. But, the learned trial court has erroneously dismissed the suit of the plaintiff, instead, partly decreed the counter claim filed by the defendant.
Mr. Mazumdar also submits that the agreement has duly been proved by the plaintiff by producing the original copy and also the money receipt in respect of the payment of Rs. 90,00,000/-(Rupees Ninety Lacs) has also been proved, and that the plaintiff was ever ready to perform his part of contract, but the defendant had failed to perform his part of the contract. And therefore, the impugned judgment and decree, so passed by the learned trial court, dismissing the suit of the plaintiff, is illegal and the same is liable to be interfered with.
Mr. Mazumdar, under the aforesaid facts and circumstances, has contended to allow the RFA No. 111/2019, by setting aside the impugned judgment and decree, dated 12.06.2019, and also to dismiss the RFA No. 73 of 2019, filed by the defendant, as there is no merit in the same.
Discussion and Analysis:-
Having heard the submissions of learned counsel for both the parties, this Court has carefully gone through the memo of appeals as well as the grounds mentioned therein and also gone through the impugned judgment and order, dated 12.06.2019, passed by the learned trial court, in Title Suit No. 205/2014.
In view of the contention of the parties and the submissions, so advanced by their engaged counsel, the points which are central to the lis, and to be decided by this Court, are formulated as under:-
I. Whether the learned trial court has rightly decided Issue No.4, which is concerning with the agreement dated 10.10.2013, and specific performance of which is being sought for by the plaintiff against the defendant?
II. Whether the learned trial court has rightly decided Issue No.5, which is concerning with payment of sum of Rs. 90,00,000/- by the plaintiff as earnest money to the defendant?
III. Whether the learned trial court has committed illegality in deciding Issue No.10, by not decreeing the counter-claim of the defendant in full, inspite of clear admission of ownership of the defendant over the suit property by the plaintiff in the plaint itself?
It is to be noted here that the requirements for granting specific performance of the contract has been well settled in catena of decisions of Hon’ble Supreme Court. Most cited amongst them is the decision in Kamal Kumar vs. Premlata Joshi, reported in (2019) 3 SCC 704. In the said case Hon’ble Supreme Court has, in paragraph Nos. 7 & 8, held as under:-
“7.It is a settled principle of law that the grant of relief of specific performance is a discretionary and equitable relief. The material questions, which are required to be gone into for grant of the relief of specific performance, are:-
7.1.First, whether there exists a valid and concluded contract between the parties for sale/purchase of the suit property.
7.2.Second, whether the plaintiff has been ready and willing to perform his part of contract and whether he is still ready and willing to perform his part as mentioned in the contract.
7.3.Third, whether the plaintiff has, in fact, performed his part of the contract and, if so, how and to what extent and in what manner he has performed and whether such performance was in conformity with the terms of the contract;
7.4.Fourth, whether it will be equitable to grant the relief of specific performance to the plaintiff against the defendant in relation to suit property or it will cause any kind of hardship to the defendant and, if so, how and in what manner and the extent if such relief is eventually granted to the plaintiff;
7.5.Lastly, whether the plaintiff is entitled for grant of any other alternative relief, namely, refund of earnest money, etc. and, if so, on what grounds.
8.In our opinion, the aforementioned questions are part of the statutory requirements [See Sections 16(c), 20, 21, 22, 23 of the Specific Relief Act, 1963 and Forms 47/48 of Appendices A to C of the Code of Civil Procedure]. These requirements have to be properly pleaded by the parties in their respective pleadings and proved with the aid of evidence in accordance with law. It is only then the Court is entitled to exercise its discretion and accordingly grant or refuse the relief of specific performance depending upon the case made out by the parties on facts.”
The learned Trial Court, while deciding Issue No. 4, had recorded a categorical finding to the effect that the plaintiff had failed to discharge the initial onus that the agreement, Exhibit -1, was executed by the defendant. In arriving at such a finding, the learned trial court had considered the Exhibit - 1, and also it had relied upon a decision of Hon’ble Supreme Court in Anil Rishi (supra).
The learned trial court had also recorded a finding that Exhibit – 1 was not executed in presence of the plaintiff as the same was already signed by the defendant prior to handing over the same to him.
This Court has carefully considered the finding so recorded by the learned trial court in the light of the evidence on the record. And it appears that though in his evidence, the plaintiff as PW-1 had supported the statements and averments made in the plaint, yet, the defendant had denied his signature on the Exhibit -1, rather the defendant, as DW-1, has testified that the plaintiff on 12.05.2014, along with some anti socialist, forcefully entered the suit premises by breaking the lock of the main gate and drove out the workers of the defendant and illegally took possession of the same and in respect of the same, one FIR was also lodged on 02.06.2012, by one Bhawananda Jha, and upon said FIR, Dispur PS Case No. 1060/2014, under Section 447/427/506/34 of the IPC read with Section 5 of the Assam Land Grabbing (P) Act, was registered and the same has been exhibited before the learned Trial Court during trial as Exhibit-C by the defendant annexed with the memorandum of appeal in RFA No. 73 as Annexure – 3.
It also appears that the plaintiff had examined one Pritom Hazarika as PW2, but he testified that he is not aware of who else signed on the Exhibit – 1. PW-1 and PW-2, both admitted having not seen the defendant by putting his signature over the Exhibit -1.
Since, the defendant had categorically denied execution of Exhibit – 1, and putting his signature over the same, and since the plaintiff and his witnesses had failed to prove the signature of the defendant over Exhibit – 1, this Court is of the view that the plaintiff has failed to discharge his burden of proving that there existed a valid agreement between him and the defendant, which is a basic requirement in the suit for specific performance, as held by Hon’ble Supreme Court in the case Kamal Kumar (supra).
It is worth noting here in this context that in view of the decision of Hon’ble Supreme Court in the case of Anil Rishi(supra), the initial burden is always upon the plaintiff to first establish his case.
In the instant case, the plaintiff had failed to discharge the burden of proof and that the learned trial court had rightly arrived at a finding to that effect. And this Court finds no infirmity or illegality in the finding so recorded by the learned Trial Court requiring any interference of this Court.
It is however a fact that the plaintiff had produced and exhibited the original agreement as Exhibit-1. But, mere production of the original agreement is not sufficient. Due execution of the same has to be proved. In the instant case the plaintiff and his own witness, being P.W.1 and 2 have admitted having not seen the defendant signing the Exhibit-1. When due execution of the Exhibit-1 could not be proved even if the learned Trial Court had carried out the exercise under Section 73 of the Evidence Act, it could have been a futile exercise as the plaintiff, upon whom the initial burden lies, had failed to discharge the same. In that view of the matter the decision referred by the plaintiff in Murarilal (supra) would not come into his assistance.
And in view of above discussion and finding, the Point No. I, so formulated herein these appeals, for determination, has to be decided in affirmative and accordingly the same stands answered.
Moving forward to the point No. II, this Court finds that the learned trial court had held that the plaintiff had failed to prove payment of Rs. 90,00,000/-(Rupees Ninety Lacs) to the defendant.
It appears that though the plaintiff, as PW-1, had deposed having paid a sum of Rs. 90,00,000/-/(Rupees Ninety Lacs), to the defendant on 10.10.2013, he did not exhibit any money receipt in support of the said contention, rather in his cross-examination, he stated that on the day, when he signed Exhibit – 1, only part payment was made and he was not aware of the exact amount. Subsequently, he stated that he paid a sum of Rs. 90,00,000/- to the defendant by arranging the same from his family members, i.e. from his sister, namely, Swati Ghosh and his friend, namely, Abhijit Roy. But, he failed to exhibit his bank statement or the bank statement of Swati Ghosh and Abhijit Roy to prove that the transaction was truly made.
It also appears from the evidence of PW-1 that he had lodged one FIR against the defendant on 15.05.2014 and the said FIR was exhibited by the defendant as Exhibit – A and it appears that with the said FIR, the plaintiff had also enclosed two numbers of Money Receipts and upon the same, the learned trial court had taken judicial notice that the certified copy of two money receipts were of dated 12.01.2013 and 21.03.2013 and in the money receipts, one of the witness, namely, Pritom Hazarika, PW -2, put his signature as witness No. 1. But in his cross-examination, PW-2 deposed that he heard that the plaintiff had issued money receipts, but he was silent that he had put his signature as witness in the said money receipts.
Further, the certified copies of the money receipts reveal that those money receipts were of dated 12.01.2013 and 21.03.2013, whereas as per the deposition of PW1, the agreement for sale was executed on 10.10.2013. As such, the evidence of PW1 and the statements and averments made by him in the plaint, that he had paid a sum of Rs. 90,00,000/- to the defendant on 10.10.2013, on which date the agreement was executed and possession was handed over to him, fails to inspire confidence.
And as such, the learned trial court had rightly returned the finding in respect of Issue No. 5 as negative. And this Court finds no ground to interfere with the same.
In view of above discussion and finding, the point No. II for determination in theses appeals has to be answered in affirmative and accordingly, the same stands answered.
Moving forward to the point No. III, it appears that the learned trial court had dealt with the same under Issue No. 10 of the impugned judgment and decree. The learned Trial Court has held that though the defendant, as DW-1, had testified that he is the owner of the suit land and he had purchased the same on 05.03.2012, from one Upendra Choudhury by paying a sum of Rs. 25,90,000/-, by executing a Sale Deed No. 1930, dated 05.03.2012, but the defendant did not exhibit the same or any other land documents or copy of the jamabandi to show his title over the suit land.
Thereafter, the learned trial court had held that in absence of any evidence to show that the defendant is the owner of the suit land, it cannot be said that he has any right over the same and as such, right, title and interest of the defendant over the suit land cannot be declared. This finding of the learned Trial Court, while examined in the light of the facts and circumstances on the record, and also in the light of settled legal position this Court finds that the same suffers from serious infirmity.
Firstly, it appears that in the plaint itself, the plaintiff had admitted in uncertain term that the defendant is the absolute owner and possessor of the suit land, along with the incomplete G+3 RCC storied building, which is standing over the same. The relevant paragraph of the plaint is extracted herein below for ready reference:-
“1.That the defendant is the absolute owner and possessor of a plot of land measuring 1 katha 17 lechas [4.92 Are] covered by Dag No.200 of K.P. Patta No.87 of revenue Village Khanapara under Mouza- Beltola in the district of Kamrup (Metro), Assam and upon the aforesaid plot of land the defendant has constructed an uncompleted G+ 3 storied R.C.C. Building situated by the side of Ganesh Mandir High School Bye Lane, Six mile, Khanapara, Guwahati-22 with due permission from the Concerned Authority. The aforesaid land and R.C.C. building is hereinafter referred to as 'the suit property' and more fully described in the schedule to this plaint.”
It is worth mentioning in this context that Section 58 of the Evidence Act provides that admitted facts need not be proved. In the case of Nagindas Ramdas vs. Dalpatram Ichharam @ Brijram and Others, reported in AIR 1974 SC 471, Supreme Court observed that admissions, if true and clear are by far the best proof of the facts admitted. Judicial admissions (or admissions in pleadings) admissible under Section 58, stand on a higher footing than evidentiary admissions. They are binding on the party making them, constitute a waiver of proof, and can by themselves, form the foundation of the rights of the parties.
In the instant case also, in view of the categorical admissions made by the plaintiff that the defendant is the absolute owner and possessor of the suit land, the learned trial court ought to have declared the right, title and interest in favour of the defendant over the same.
Secondly, though the defendant had not exhibited the Sale Deed No. 1930, dated 05.03.2012, yet the copy of the same had been enclosed with the written statement cum counter claim and during the pendency of these appeals, the defendant had filed one application, under Order XLI Rule 27 of the CPC, for allowing him to adduce e-copy of the sale deed and after hearing learned counsel for both the parties, this Court was pleased to allow the said application, vide order dated 11.06.2026.
And perusal of the said e-copy also indicates that the defendant had purchased the suit property from one Upendra Choudhury on 05.03.2012, by paying a sum of Rs. 25,90,000/-, who was the original owner of the suit land, by executing a Sale Deed, bearing No. 1930, dated 05.03.2012.
The defendant also produced a certificate, as required under Section 63 of the BSA, 2023. Notably, the certificate was produced subsequently by filing an additional affidavit on 30.07.2023. It worth noting in this context that the plaintiff had neither disputed the Sale Deed bearing No. 1930, dated 05.03.2012, nor the Certificate under Section 63 of the BSA, 2023.
It is the categorical contention of Mr. Singh, learned counsel for the appellant in RFA No. 73/2019 and respondent in RFA No. 111/2019, that the original copy was not available with the defendant and that the e-copy is admissible in evidence and as such, there is no question of denying the relief claimed by the defendant in his counter claim, and that the learned Trial Court has illegally denied the relief(s) which the defendant is lawfully entitled to.
Notably, during the course of argument, Mr. I.S. Mazumdar, the learned counsel for the plaintiff submitted that the original copy of the Sale Deed No. 1930 dated 05.03.2012 is with the plaintiff. Then he was directed to produce the same before this Court. But on the following date Mr. Mazumdar apprised the Court that the same could not be traced out by the plaintiff.
There appears to be substance in the submission of Mr. Singh and accordingly, this Court is inclined to record concurrence with the submission of Mr. Singh. Thus, the finding of the learned Trial Court in respect of Issue No. 10 fails to withstand the legal scrutiny and therefore, the same deserves to be interfered with and accordingly, the same stands interfered with.
Under the given factual and legal matrix the point for determination No.III has to be answered in affirmative and accordingly the same stands answered.
Accordingly, this Court finds that the plaintiff had failed to prove the execution of the agreement for sale, dated 10.10.2013. And it is the first requirement to grant specific performance of contract as held by Hon’ble Supreme Court in the case of Kamal Kumar (supra).
Conclusion:-
In the result, this Court finds no merit in the RFA No. 111/2019. And accordingly, the same stands dismissed.
However, this Court finds sufficient merit in the RFA No. 73/2019. And accordingly, the same stands allowed. In that view of the matter, the counter-claim, so filed by the defendant, stands decreed in full.
In view of disposal of these appeals, the Receiver of the suit property, so appointed by this Court vide order dated 16.06.2026, in I.A. No. 1830, stands discharged.
Send down the record of the learned Trial Court with a copy of this judgment and decree, forthwith.