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Judgment
1)Heard Mr. P.K. Kalita, the learned Senior Counsel, assisted by Mr. G.J. Saikia, the learned counsel for the appellant. Also heard Mr. D. Mozumdar,
the learned Senior Counsel, assisted by Mr. N. Haque, the learned counsel for the respondent. No appearance is made on behalf of the proforma
respondents herein. Hence, the matter has been heard ex parte against them.
2)Pursuant to the order dated 11.03.2016 passed by this Court, all these matters have been analogously heard.
3) In challenge with the present appeal i.e. RFA 54/2015 is the judgment and decree dated 26.04.2013 passed by the learned Civil Judge, Barpeta in
T.S. No.3/2008 by which the suit was decreed and the counter-claim of the appellant-defendant herein was dismissed.
4) The challenge in FAO No.27/2013 is the order dated 27.08.2013 passed by learned Civil Judge, Barpeta in Misc (J) Case No.30/2013 arising out of
T. Ext. Case No.12/2012, thereby dismissing the application filed under Order XXI Rule 97, 99 and 101 read with section 151 CPC by refusing to
accept that the appellant herein was a stranger in the proceeding of T.S. No.7/2008 which was decreed on compromise by judgment and decree dated
06.09.2012 by the same learned Court.
5) The challenge in CRP 222/16 is the order dated 02.03.2015 passed by learned Civil Judge, Barpeta in M.S. No.9/2013, whereby the said learned
Court had dismissed petition No.1559/13, filed by the petitioners/ appellants herein under section 10 CPC for staying the proceedings of M.S. No.
9/2013.
6) In the proceeding of the Contempt Case No.829/15, the petitioners have alleged willful disobedience and violation of the order dated 20.11.2013,
passed by this Court in Misc. Case No.3360/13, arising out of RFA 54/2013.
7) On the basis of the submissions made by the learned Senior Counsel for both sides, it appears to this Court that in the proceeding of RFA
No.54/2013 is adjudicated at first as a lead case, it would affect the result of the remaining 3 matters. Hence this Court proposes to first deal with
RFA No.54/2013.
RFA No. 54/2013:
8) The respondent No.1 herein, namely, Shri Kailash Kr. Sharma is the plaintiff in T.S. No. 3/2008. The said suit was instituted on 17.03.2008 against
the following - (1) Shristi C/o. Manas Valley Academy, (2) Shri Sanjit Mudoi, President of Shristi, (3) Shri Sushanto Ghatak, Secretary Shristi, who are
the 3 principle defendants in the suit. These 3 defendants are the appellants herein. The following persons, namely - (1) Smt. Bhagabati Devi Sharma,
(2) Shri Mahesh Kr. Sarma, (3) Shri Baka Bihari Sharma, (4) Shri Prahlad Kr. Sharma, (5) Smt. Manju Devi Sharma, (6) Smt. Kusum Kumari
Sharma, (7) Smt. Anju Devi Sharma, (8) Smt. Bandana Devi Sharma, (9) Shri Subhash Jain, (10) Shri Ashoka Kr. Jain, and (11) Shri Ram Avatar
Sharma were arrayed as proforma defendant Nos. 1 to 11 in the said suit and they are also arrayed as proforma respondent Nos. 1 to 11 in this
appeal.
9) In brief, the case of the respondent No.1 in the plaint is that the proforma respondent No.1 is the wife and he as well as the proforma respondents
No. 2 to 8 are the sons and daughters of Late Satyaban Sharma and all of them were holding un-partitioned landed property in Bohorihat and Barpeta
Road in Barpeta District, in Titabar in Jorhat District, as well as in Thakurganj in West Bengal. All the said properties were all left behind by Late
Satyaban Sharma, their predecessor-in- interest. The land at Barpeta Road, which is the subject matter of the suit, was morefully described in
Schedule-A of the plaint. It was projected that the land measuring 5 Bighas- 1 Katha-4½ lesas (“bigha, katha and lesas†is hereinafter referred
to as “Bâ€, “K†and “L†for short), which remained in the share of Late Satyaban Sharma, the predecessor of respondent No.1, is
described in Schedule B of the plaint with definite boundaries mentioned therein. The said land was covered within Dag 1713, 1714, 1716, 1717 under
KP Patta No. 384 at Barpeta Road, Mouza Gobardharna, District Barpeta.
10) It was projected that by signing an agreement dated 18.02.2005, the respondent No.1 had agreed to sell the land measuring 1-B, morefully
described in Schedule-B(1) of the plaint to the appellants at an agreed sale consideration of Rs.12.00 lakh per bigha, inter-alia, on a condition that at
the time of giving possession of the land, the appellants would pay Rs.6.00 lakh to the respondent No.1. It was further provided that all matters relating
to the share and claim of the other co-sharers of the land would be settled by the respondent No.1 and that at the time of registration of the sale deed,
the appellants would make payment of the rest amount of consideration to the respondent No.1. The said agreement further provided that if the land
could not be sold for any reason by a registered instrument, the amount paid to the respondent No.1 would be refunded to the appellants. The
respondent No.1 had admitted that he had received a sum of Rs.1.00 lakh as an advance. It was projected that after the agreement, the appellant did
not come forward to make payment of the balance consideration and to get the necessary sale deed executed by the respondent No.1.
11) It was projected that from time to time by some stray payments, the appellants had paid a sum of Rs.6.00 lakh to the respondent No.1. It was also
projected that the respondent No.1 had not identified the plot of land to be sold to the appellants. But suddenly on 14.01.2007, the appellants had
started construction of the building on a part of the suit land forcibly without payment of the full sale consideration and without specifically identifying
the land to be delivered by the respondent No.1 and without purchasing the suit land. Thereafter on 03.01.2008, the appellants had started construction
of another house. Therefore, the respondent No.1 sent an Advocate’s notice dated 01.01.2008 to the appellants. By their Advocate’s reply
dated 22.01.2008, the appellants had contended that they were kept in dark by the respondent No.1 about pending litigation and that the respondent
No.1 had himself delivered possession of the land to the appellant. It was projected that however, the appellants had not expressed their willingness to
pay the balance consideration of Rs.6.00 lakh to the respondent No.1 and to get the sale deed executed and registered by the respondent No.1. By
alleging that the appellants had illegally taken over the suit land described in Schedule-B(1) and that structures were also illegally constructed thereon,
the respondent No.1 had filed the said suit, inter-alia, praying for a decree for declaring (a) right, title and interest over the suit land along with the
proforma respondents No. 1 to 8 and that the appellants were entitled to refund of Rs.6.00 lakh from the respondent No.1, (b) for a decree declaring
that the appellants had committed breach of contract by possessing land described in Schedule â€"B(1) forcibly and without the consent of the
respondent No.1 and that the Agreement for Sale dated 18.02.2005 could not be specifically enforced, (c) for a decree of khas possession of the land
described in B(1) in favor of the respondent No.1 by removing their house and building and other structures standing thereon, and (d) for any other
relief.
12) On receipt of the summons, the appellants had entered appearance in the said suit, and had contested the suit by filing their written statement and
counter-claim.
13) The stand of the appellants in their written statement â€"cum- counter-claim was that the respondent No.1 had offered to sell 1-B land out of his
share of the joint property to the appellants and that on negotiation, 1-B land was delivered to the appellants for an agreed consideration of Rs.12.00
lakh, out of which a sum of Rs.1.00 lakh was paid on 18.02.2005 and further stray payments to the extent of Rs.5.00 lakh was made as and when
demanded. It was projected that as demanded by Shri Prahlad Sharma, the proforma defendant No.4 herein, a sum of Rs.1.00 lakh was paid to him on
22.06.2006. Upon receipt of the said payment, the proforma respondent No.4 had executed another agreement dated 22.06.2006 (Ext.Ga) in favor of
the appellants and that on receipt of the said amount, the possession of 1-B land was handed over to the appellant on 14.01.2007, within specific
boundaries as mentioned in sub para of paragraph 4(f) of the written statement. The possession of the land taken over by the appellants is described in
Schedule X(2) of the written statement. It was projected that the appellants were required to pay sale consideration only on the execution of the sale
deed, and it was stated that the appellants were ready to perform their part of the contract. It was projected that the respondent No.1 and the
proforma respondents No. 1 to 8 had promised to obtain the necessary papers from the Revenue Authority and within a short period of time, the
respondent No.1 would execute the sale deed. It was stated that the last request for registration of the sale deed was made on 05.05.2008, but the
respondent No.1 had informed that he had already instituted the suit, thereby directly refusing to execute the sale deed. Under the circumstances the
appellants had prayed for dismissal of the suit and for decree of specific performance of the contract in respect of the suit land described in Schedule
X(2), out of the land described in Schedule-X(1) of the counter-claim in their favor, for cost, and for any other reliefs. The proforma respondents No.
1 to 8 herein had also filed their joint written statement and had supported the claim of the appellants herein.
14) On the basis of the pleadings, the learned trial Court had framed as many as 10 issues:-
Whether there is cause of action for the suit as well as for the counter claim?
Whether the suit is maintainable in its present form?
Whether the suit is barred by limitation?
Whether there is any agreement to sell the land in schedule X(2) of the counter claim corresponding to the land in Schedule B(1) of the plaintiff in
favour of the defendants?
Whether the defendants were ready and willing to perform their part of the contract?
Whether the defendants have committed breach of contract with the plaintiff regarding the agreement to sell dated 18.02.2005?
Whether the plaintiff is entitled for recovery of khas possession of the suit land?
Whether the plaintiff has right, title and interest over the suit land?
Whether the defendants are entitled for a decree for specific performance of contract against the plaintiff?
Any other relief or reliefs to whom the parties are entitled to?
15) The respondent No.1 examined 4 witnesses including himself, i.e. Shri Kailash Kr. Sharma (PW-1), Shri Ashoka Kr. Sarma (PW-2), Shri Mumtaz
Ali (PW-3) and Shri Gokul Ch. Sarma (PW-4) and had exhibited the following three documents, viz., Certified copy of the Jamabandi (Ext.1),
Advocate’s notice dated 12.01.2008 (Ext.2), Advocates reply dated 22.01.2008 (Ext.3). The appellants had examined one witness namely Shri
Sushanta Ghatak. The proforma respondent No.4 had examined 2 (two) witnesses, including himself (DW-2) and one Shri Ganesh Talukdar (DW-3).
The defence witnesses had exhibited the following documents, viz., Jamabandi (Ext. Ka), Agreement dated 18.02.2005 (Ext. Kha), Agreement dated
22.06.2006 with Shri Prahlad Sharma (Ext. Ga), reply to advocate’s notice (Ext. Unga), Power of attorney by Maya Devi Sharma, Kusum Devi
Sharma, Anju Devi Sharma and Bandana Devi Sharma (Ext. Neo).
16) In respect of issue No.1, the learned Trial Court had held that there was a cause of action in the suit. In respect of issue No.2, in the absence of
any specific pleading, in view of the provisions of Order VIII Rule 2 CPC, no decision was given on the said issue. In respect of issue No.3, on the
absence of any pleading by the appellants, it was held that the suit as well as counter-claim was filed within limitation.
17) The issues No.4 to 9 were taken up together. By referring to the agreement and on taking a note of the fact that Rs.1,00,000/- was paid to the
proforma respondent No. 4 by executing another Agreement (Ext. Ga) between the appellants and the proforma respondent No.4, it was held as per
the contents of Ext. Ga, the proforma respondent No.4 was aware about the Ext. Kha, executed between the appellants and the respondent No.1. So,
it was held that instead of making any payment to the respondent No.1, the appellants paid a sum of Rs.1,00,000/- to the proforma respondent No.4
behind the back of the respondent No.1. It was also held that the appellants had no permission from the respondent No.1 to give any money to the
proforma respondent No.4. Therefore, it was held that the appellants were not ready and willing to perform their part of the contract vide Ext. Kha
towards the respondent No.1. It was held that the house was unauthorizedly constructed on Schedule-B land. It was also held that by paying a part of
the agreed consideration to the proforma respondent No.4, there was a definite breach of contract by the appellants in respect of the said Agreement
(Ext. Kha).
18) By referring to the statements made in various clauses of the Agreement dated 18.02.2005 (Ext. Kha), whereby the respondent No.1 had agreed
to sell his land to the appellants at the rate of Rs.12.00 lakh per bigha, it was held that the contract between the respondent No.1 was a contingent
contract, which was dependent upon some family settlement and it was held that the acts and omission on part of the appellants had frustrated the
contract. So accordingly, it was held that the respondent No.1 was entitled to a decree as prayed for and the counter-claim was liable to be dismissed.
In terms of the last finding, the issue No.10 was also decided in favour of the respondent No.1 by holding that the respondent No.1 was entitled to a
decree as prayed for and that the land in the counter-claim was liable to be rejected. The appellants were held to be entitled to a refund of Rs.6.00
lakh and it was directed that the appellants would vacate the possession over the suit land in favour of the respondent No.1 within 6 months failing
which they were to be evicted. The parties were left to bear their own cost.
SUBMISSIONS ON BEHALF OF THE APPELLANTS:
19) The learned Senior Counsel for the appellants had submitted that by an Agreement for Sale dated 18.02.2005 (Ext. Kha), the respondent No.1 had
agreed to sell 1-B land out of 5B-1K-4½L land to the appellant at a consideration of Rs.12.00 lakh per bigha. Out of the agreed sale consideration,
the appellants had paid a sum of Rs.1.00 lakh as advance to the respondent No.1. From time to time, by making stray payments, a further sum of
Rs.5.00 lakh was paid as advance to the respondent No.1. It is submitted that in addition to the said sum of Rs.6.00 lakh paid to the respondent No.1,
the appellants had paid a further sum of Rs.1.00 lakh to the proforma respondent No.4, had no relationship with the payment made and/or payment
due to the respondent No.1. It is also submitted that it was not the pleaded case of the appellants that a sum of Rs.1.00 lakh that was paid to the
proforma respondent No.4 must be adjusted with the total sale consideration of Rs.12.00 lakh due and payable to the respondent No.1. By referring to
the statements made in plaint, it was submitted that the respondent No.1 had projected that on 14.01.2007, the appellants had started construction of a
building on the part of the suit land. It is further submitted that the appellants had found support from the written statement filed by the proforma
respondents No.1 to 8 as well as from the evidence of the Proforma Respondent No.4 (DW-2). It was submitted that the proforma respondent No.4
had not only admitted that the respondent No.1 had agreed to sell the land described in Schedule B(1) of the plaint [i.e. Schedule X(2) of the written
statement of the appellants], but he had also admitted that the possession of the said plot of land was handed over to the appellants by respondent
No.1.
20) By referring to the impugned judgment, it was submitted that while deciding issues No. 3 to 9, there were 4 (four) findings which are recorded
against the appellants, viz., firstly, by referring to the Agreement for Sale dated 22.06.2006 (Ext. Ga), it was held that the said agreement was entered
without any permission of the respondent No.1 and it was held that the said agreement was done behind the back of respondent No.1. Secondly, it
was held that as per the evidence of PWs and DWs, it was established that the appellants were not ready and willing to perform their part of the
contract vide Ext. Kha. Thirdly, it was held that by forcibly taking over possession of the land as well as because of the unauthorized contract vide
Ext.Ga in respect of the suit land, it amounted to a breach of contract, which included payment of money to the proforma respondent No.4, who was
not a party to the agreement of sale deed dated 18.02.2005 (Ext. Kha). Fourthly, the agreement dated 18.02.2005 (Ext. Kha) was held to be a
contingent contract which was dependant on the family settlement. Consequently, it was held that as Clause 6 of the said agreement dated 18.02.2005,
permitted refund of the advance money, as such, the respondent No.1 was held to be entitled to a decree for refund of a sum of Rs.6.00 lakh, paid as
advance to respondent No.1.
21) The learned Senior Counsel for the appellants had submitted that the learned trial Court had failed to categorically appreciate the evidence of DW-
3, who was an independent witness, and had categorically stated in his evidence that after the respondent No.1 and the proforma respondents had
delivered possession of the suit land to the appellants on 14.10.2007, the appellants had established a English Medium School therein. According to the
learned Senior counsel for the appellants, the said evidence was sufficient to dislodge the finding recorded by the learned trial Court to the effect that
the Agreement dated 18.02.2005 (Ext. Kha) was made behind the back of respondent No.1 or that such agreement was without any permission of the
respondent No.1. It was also submitted that as per the said Agreement (Ext.Kha), it was the duty of respondent No.1 to settle his dispute with his
other family members and that it was in order to facilitate an early settlement, the appellants had entered into an another agreement with the proforma
respondent No.4.
22) It was further submitted that as a sum of Rs.1.00 lakh was paid by the appellants to proforma respondent No.4 at his risk, the said agreement
made with the Proforma Respondent No.4 was not in derogation of the previous Agreement for Sale dated 18.02.2005 (Ext. Kha). By relying on the
cross-examination of PW-1, it was submitted that respondent No.1 had admitted that the appellants were ready to pay the balance sale amount and
get the sale registered. It is further submitted that in his cross-examination, PW-1 had stated that as his name was not mutated in respect of the suit
land, sale deed could not be executed.
23) In this regard, the learned Senior Counsel appearing for the appellant has placed reliance on the judgment and decree dated 26.09.2012 passed by
the learned Civil Judge, Barpeta in T.S. No.7/2008 and it is submitted that though the judgment passed in T.S. No.7/2008 was not in the records of
RFA 54/2013, but it formed a part of record of the connected FAO No.27/2013, which is being heard analogously. It was submitted that by the
judgment in TS 7/2008 had established that the appellants were always ready and willing to perform their part of the contract, but as the balance
consideration would have only become due and payable at the time of the execution of the sale deed, but as the said situation did not materialize, the
learned trial court had erred on facts and in law by holding that the appellants were not ready and willing to perform their part of the contract.
Similarly, by on the allegations made for breach of contract, it was submitted at the cost of repetition that the execution of Agreement dated
22.06.2006 (Ext. Ga) with the proforma respondent No.4 did not affect the agreement with respondent No.1, as such, the finding for breach of
contract on part of the appellants was not sustainable.
24) On the finding by the learned trial court that the Agreement (Ext. Kha) was a contingent contract, it was submitted by the learned Senior Counsel
for the appellants that the learned court below had failed to appreciate that the contingency that was being apprehended had ceased to exist because
in the meantime, the respondent No.1 and the proforma respondents No. 1 to 8 had entered into a compromise in connection with T.S. No.7/2008, by
virtue of which the respondent No.1 had become entitled to his exclusive share over 2-B land out of 5B- 1K- 4½L land, as such, there was no
impediment for the sale of the suit land measuring 1-B.
25) It was further submitted that as the proforma respondent No.4 (DW-2) as well as DW-3 had given their evidence to the effect that the possession
of the suit land was handed over to the appellants by the respondent No.1, they had commenced their construction on the suit land with effect from
14.01.2007 and a full-fledged school has come into existence and therefore, when T.S. No.7/2008, filed by respondent No.1 had been decreed on
26.09.2012, the agreement dated 18.02.2005 (Ext. Kha) became duly enforceable in the eye of law. Therefore, it is submitted that the learned trial
failed to appreciate that this was not a case where the contract can be said to have been frustrated, as such, the question of refund could not have
arisen in this case because on compliance of Clause 3 of Agreement dated 18.02.2005 (Ext. Kha), there was no other impediment in the due and/or
specific performance of the said agreement.
26) Per contra, the learned Senior Counsel for the respondent No.1 had submitted that his submissions may be categorized under 2 (two) broad points.
Firstly, it is submitted that the Agreement dated 18.02.2005 (Ext. Kha) was a contingent contract as would appear from various clauses thereof, for
which the said Agreement was not specifically enforceable. Secondly, it is submitted that the appellants could not demonstrate that they were ready
and willing to perform their part of the contract, which could be seen from the conduct of the parties.
27) On the first point i.e. that the agreement was a contingent contract, it is submitted that in clause-3 of the said agreement, it was provided that the
respondent No.1 had taken the liability to get the consent of other share-holders for transfer of the land. Therefore, the respondent No.1 had never
portrayed before the appellants that he had any exclusive right, title and interest to transfer the suit land. Moreover, it was submitted that the existence
of clause-3 had established that the rights of other co-sharers were involved in respect of the land proposed to be sold. Moreover, it was submitted
that by the said agreement (Ext. Kha), it was never envisaged that the appellants had any right to approach the proforma respondents No.1 to 8 or to
make any effort for a settlement between the respondent No.1 on one side and the proforma respondents No.1 to 8 on the other side. Moreover, it
was submitted that there was no amicable partition of the suit land in metes and bounds till the date of the agreement (Ext. Kha). It was also
submitted that there was no power or authority in favour of the respondent No.1 from the other co-owners and/or co-sharers of the suit land to sell/
transfer the suit land.
28) It was also submitted that the said agreement (Ext. Kha) did not describe the land with definite boundaries, as such, it cannot be said that the
respondent No.1, the appellants, or the proforma respondents No.1 to 8 were aware about the boundary within which the 1-B land was to be sold,
hence, no right had accrued in favour of the appellants in respect of any particular and/or identifiable plot of land. It was also submitted that it was an
admitted fact that the appellants were aware that the agreement (Ext. Kha) was contingent in nature, and that the respondent No.1 had no right,
power or authority to sell any particular plot of land to the appellants. Therefore, when the appellants had entered into another agreement with
proforma respondent No.4 on 22.06.2006 (Ext. Ga), the appellants knew that the agreement (Ext. Kha) was a contingent contract.
29) It was submitted that the appellants had not been able establish their readiness and willingness to make payment of the balance sale consideration,
and to simultaneously get a sale deed executed and registered by the respondent No.1, rather, after entering into another agreement with the proforma
respondent No.4 vide Ext. Ga, the appellants had paid a sum of Rs.1.00 lakh to the said proforma respondents No.1 to 8. There is nothing on record to
show that after the said sum of Rs.1.00 lakh was paid to the proforma respondent No.4, any more money was offered to the respondent No.1, as
such, it is submitted that there is nothing on record to show that the appellants were ready and willing to perform their part of the contract. Moreover,
it is submitted that there was no proof to show that the appellants had offered the balance and consideration to respondent No.1 and had made any
request for the execution and registration of the sale deed in respect of the suit land. It was further submitted that the appellants had not obtained any
consent from the respondent No.1 to enter into a separate agreement with proforma respondent No.4 (Ext. Ga). However, the appellants had illegally
and unilaterally taken over the possession of the suit land measuring 1-B in conspiracy with the proforma respondent No.4 and not with the consent of
the respondent No.1, as such, no balance sale consideration was ever offered to the respondent No.1. Hence, it was submitted that there was no
readiness and willingness on part of the appellant for concluding of the contract. It is also submitted that there is no evidence in form of any document
by which the possession of any suit land was delivered to the appellants and there was also no document by which the respondent No.1 had given his
no objection to enable the appellants to carry out construction on the suit land, as such, the construction carried out by the appellants was rightly held
by the learned trial court to be illegal. It was also submitted that without determination of any specific share of the respondent No.1 over the suit land,
there was no way that the respondent No.1 could have handed over possession of the suit land to the appellants, otherwise, there was no requirement
for the respondent No.1 to mention in the agreement that he would take responsibility to take consent from other co-owners. As such, it was
submitted that the preponderance of probability was that the appellants had taken over the suit land with the help and connivance of the proforma
respondents No.1 to 8. It was submitted that because of the acts and conduct of the appellants, the settlement, as envisaged vide agreement (Ext.
Kha) never materialized, for which the respondent No.1 had to file T.S. No.7/2008. It was submitted that although a compromise decree was passed
in TS 7/2008 on compromise, the respondent No.1 could not get exclusive possession of share of the land, as such, the respondent No.1 had to institute
an execution case, being T.Ex. Case No.12/2012. Hence, it was submitted that till date, the said agreement (Ext. Kha) remains as a contingent
contract as the respondent No.1 is yet to receive possession over the decreetal land in TS &/2008 and the contingency as envisaged in Clause-2 of the
agreement (Ext. Kha) was not removed. Â Therefore, it was submitted that the contract vide Ext. Kha was frustrated by the appellants and that the
said agreement was not enforceable. By referring to the provisions of Section 31 of the Contract Act, 1872 read with section 14(c) of the Specific
Relief Act, 1963 it was submitted by the learned Senior Counsel for the respondent No.1 that clause 6 of the agreement (Ext. Kha) provided for
refund of the advance money and, as the nature of the said agreement was determinable, there was no way that the suit could be decreed.
30) The learned Senior Counsel for the respondent No.1 had referred to that part of the cross-examination of Sushanta Ghatak (DW-1), wherein he
had admitted that the respondent No.1 was not present when a sum of Rs.1.00 lakh was paid to proforma respondent No.4. By referring to the
Agreement dated 22.06.2006 (Ext. Ga), it was submitted that by the said agreement, the balance consideration amount was required to be paid to the
respondent No.1 and not to the proforma respondent No.4 or to any other co-sharers of the land. It was submitted that under the said agreement (Ext.
Kha), the appellants were not authorized to take a no objection from the proforma respondent No.4 to carry out any construction on the suit land. In
the said context, it was also submitted that this is not a case where the respondent No.1 had handed over the possession of the suit land to the
appellants, but the appellants had taken over the possession of the suit land from the proforma respondent No.4 and had carried out the construction
on the suit land illegally, without obtaining any no objection and/or consent from the respondent No.1. It was submitted that by their conduct, the
appellants had disowned the ownership and authority of the respondent No.1 in respect of the suit land and therefore, the said agreement (Ext.Kha)
was frustrated not capable of being performed. It was further stated that in his cross-examination, DW-1 had categorically admitted that the
appellants had into an agreement (Ext. Ga) with the proforma respondent No.4 because the appellants knew that respondent No.1 could not have sold
the suit land and moreover, it was admitted by DW-1 that the plot of land proposed to be sold was not fully described in the said agreement (Ext. Ga).
It was submitted that without the right of the respondent No.1 being declared in respect of any specific plot of land, the taking over of possession of
the suit land by the appellants was no sustainable. It was submitted that by accepting the right of Proforma Respondent No.4, and by not offering
balance sale consideration to the respondent No.1, the performance of the agreement (Ext. Kha) was frustrated by conduct of the appellants.
31) It was also submitted that as on 22.02.2006, when Ext.Ga was executed, the proforma respondent No.4 did not held exclusive possession over the
suit land and he had no power to put the appellants in possession of the suit land. It was submitted that without due process of law, the respondent
No.1 was under no obligation to hand over possession of the suit land to the appellants, for which the appellants had taken over possession of the suit
land on 14.01.2017, illegally and unauthorizedly and had also started and completed their construction on the suit land illegally, without obtaining
consent and/or no objection from the respondent No.1. Hence, it was submitted that the respondent No.1 had a right to evict the appellant and to
recover possession of the suit land in accordance with law, as such, there was no infirmity in the judgment and decree passed by the learned trial
court.
32) By referring to the evidence of DW-3, namely, Sri Ganesh Talukdar, it was submitted that DW-3 was not present at the time of execution of the
agreement or when money transactions took place. The said DW-3 had merely stated that he was present when the respondent No.1 had allegedly
handed over the possession of suit land to the appellants. According to the learned Senior counsel for the appellant, the said evidence was not
believable because DW-1 had no knowledge of the agreement between the parties. It was submitted that there was nothing on record to show that
except his own testimony, DW-3 could have been present when possession of the suit land was allegedly handed over. It was submitted that while the
respondent No.1 had projected that the appellants had started construction on the suit land on 14.01.2007, but as per the statements made by DW-3 in
his examination in chief, the possession of land was handed over on 14.10.2007, as such, it was submitted that the evidence of DW-3 was not
trustworthy and moreover, it was not possible that on the same day i.e. on 14.01.2007, the appellants would not only take over the possession of the
suit land and also commence construction, which must require some preparation and permission from the competent authority.
33) In support of his submissions, the learned Senior Counsel for the respondent No.1 had referred to the following case citations:
a. Sati Oil India Udyog Limited and others Vs. Avanti Projects and Infrastructure Ltd and others, 2010 (1) GLT 141,
b. Radhabari Tea Co. P. Ltd. Vs Mridul Kumar Bhattacharjee and Ors, 2010 (1) GLT 189,
c. Nanjappan Vs. Ramasamy, (2015) 14 SCC 341.
POINTS OF DETERMINATION:
34) On the basis of submissions advanced by the learned Senior Counsels for the appellants as well as the Respondent No.1, the following points of
determination arise for decision in this appeal:-
Whether Agreement dated 18.02.2005 (Ext.Kha) was a contingent contract, and determinable in nature?
Whether there was any act on part of the appellants, was had caused frustration of the said agreement dated 18.02.2005 (Ext. Kha)?
Whether the judgment and decree impugned herein called for any interference?
To what reliefs are the parties herein entitled to?
DISCUSSION AND DECISION:
35) On a perusal of the Memo of Appeal filed in FAO No. 27/2013, it is seen that the compromise judgment, decree and joint compromise petition in
TS No. 7/2008 is available therein. The respondent No.1 herein was the plaintiff in the said suit, and apart from other pattadars, the proforma
respondents No. 1 to 8 were also arrayed as defendants in the said suit. The joint compromise petition was amongst (1) the respondent No.1 i.e. Shri
Kailash Kumar Sharma (plaintiff), (2) Smt. Bhagabati Devi Sharma (proforma respondent No.1 herein), (3) Shri Mahesh Kumar Sharma (proforma
respondent No.2 herein), (4) Shri Bankey Bihari Sharma (proforma respondent No.3 herein), and (4) Shri Prahlad Kumar Sharma (proforma
respondent No.4 herein). In the joint compromise petition, “concerning land falling within Barpeta Roadâ€, it has been written in Clause No.1 of the
terms and condition as follows:-
“1. That in the land in Schedule A although the plaintiff and the defendants have right, title and interest to the extent of 5 Bighas 1 Katha 41/2
Lesas on papers as described in Schedule A91) of the plaint after excluding the land merged in the road passing by the side of the land there remains
5 Bighas of land in existence and thus 5 Bighas land has been divided by the plaintiff and the defendants amongst them mutually as follows.
SCHEDULE A
(1)(i) Plot of land falling in the share of the plaintiff Sri Kailash Kumar Sharma:- A plot of land measuring 2 Bighas within Dag No.1713, 1714, 1716
and 1717 under KP Patta No.384 at Barpeta Road, Mouza Gobardhana, District- Barpeta, Assam, located within the following boundaries:
North:- Prahlad Kumar Sharma
South:- Mahesh Sharma.
East:- Municipal Road
West:- Legal Heirs of late Neimchand Serawagi/ Karthik Sharma.
SCHEDULE A(1)(ii)
Plot of land measuring 4 Kathas within Dag No.1713, 1714, 1716 and 1717 under KP Patta No.384 at Barpeta Road, Mouza Gobardhana District-
Barpeta, Assam, located within the following boundaries:
North:- Debojit Das South:- Kailash Kumar Sharma.
East:- Ganesh Talukdar and ors.
West:- Legal Heirs of late Neimchand Serawagi/ Karthik Sharma.
SCHEDULE A(1)(iii) Plot of land falling in the share of the defendant No.2 Sri Mahesh Kumar Sharma:-
A plot of land measuring 1 Bigha 3 Kathas 10 Lechas within Dag No.1713, 1714, 1716 and 1717 under KP Patta No.384 at Barpeta Road, Mouza
Gobardhana, District- Barpeta, Assam, located within the following boundaries:
North:- Kailash Kumar Sharma
South:- PWD Road
East:- Kirtanghar, Municipal Road and Kailash Kumar
Sharma
West:- Legal Heirs of late Neimchand Serawagi/ Karthik Sharma.
SCHEDULE A(1)(iv)
Plot of land falling in the share of the defendant No.2 Smti Bhagawati Devi Sharma:-
A plot of land measuring 1 Katha Dag No.1713, 1714, 1716 and 1717 under KP Patta No.384 at Barpeta Road, Mouza Gobardhana District- Barpeta,
Assam, located within the following boundaries:
North:- Mahesh Kumar Sharma
South:- Jadab Das
East:- Road
West:- Mahesh Kumar Sharma
This 1 Katha of land has been dedicated to Simulgari Namghar by Smti Bhagawati Devi Sharma.â€
36) Thus, it is seen that all the parties entering into compromise have land within Dag 1713, 1714, 1716, 1717 under KP Patta No. 384 at Barpeta
Road, Mouza Gobardharna, District Barpeta. It is also seen that the land and/or School of the appellants do not find mention in Schedule A(i) to A(iv)
above. Moreover, parties to the compromise have admitted that respondent No.1 and the proforma respondents No. 1 to 4 had right, title and interest
over the said land described in the preceding paragraph.
37) A perusal of clause 2 of the Agreement dated 18.02.2005 (Ext.Kha) contains that on handing over possession of the land, the appellants were to
pay a sum of Rs.6.00 Lakh to the respondent No.1. As per entries made in Ext.Kha, apart from advance of Rs.1.00 lakh paid on 18.02.2005, the
following further money was signed and received by the respondent No.1, viz., (1) 07.03.05- Rs.25,000/-, (2) 11.03.05-Rs.25,000/-, (3) 13.04.05-
Rs.10,000/-, (4) 16.04.05- Rs.65,000/-, (5) 28.04.05-Rs.7,000/-, (6) 05.05.05- Rs.5,000/-, (7) 05.05.05- Rs.3,000/-, (8) 23.05.05- Rs.5,000/-,
(9) 06.06.05- Rs.1,000/-, (10) 07.06.05- Rs.2,000/-, (11) 09.06.05- Rs.14,000/-, (12) 22.06.05- Rs.10,000/-, (13) Cheque dated 01.07.05- Rs.1,11,000/-,
(14) Cheque No. 11215- Rs.39,000/-, (15) 01.09.05- Rs.53,500/-, (16) 28.12.05- Rs.41,500/-, (17) 08.12.06- Rs.33,000/-, (18) 08.01.06 (sic.)-
Rs.10,000/-, i.e. Rs.4,60,000/-. Thus, a total sum of Rs.5,60,000/- is entered as paid to the respondent No.1 vide Ext. Kha. Therefore, as per
documentary evidence vide Ext. Kha on record, this court does not find that clause 2 of agreement dated 18.02.2005 (Ext. Kha) was complied with by
the appellants, which did not give rise to any duty on the respondent No.1 to deliver possession of the suit land to the appellants. Thus, the admission
by the respondent No.1 that the appellants were entitled to refund of Rs.6.00 lakh, does not obliterate the documentary evidence (Ext.Kha), showing
payment of only Rs.5.60 lakh to the respondent No.1.
38) It was neither pleaded in the written statement by the appellants as well as by the proforma respondents No.1 to 8 that clause 2 was given a go-
bye by the appellants and the respondent No.1 for delivering the suit land to the appellants. Hence, the evidence of the DW-1, DW-2 and DW-3, on
delivery of possession of suit land by the respondent No.1, being contrary to the clause-2 contained in Ext. Kha leads to a preponderance of probability
that the respondent No.1 would not have delivered the suit land to the appellants without fulfillment of clause 2 of Ext. Kha by the appellants.
39) In the agreement dated 22.06.2005 (Ext.Ga), though it contains a narration that the said agreement was between the proforma respondents No.1
and 4 (i.e. Smt. Bhagwati Devi Sharma and Shri Prahlad Kumar Sharma) on one side as First Party and by the Managing Committee, Manas Valley
Academy, Barpeta Road, Assam, but on behalf of the first parties, the Proforma respondent No.4 herein had only signed the same. The said
agreement contains a narration that Kailash Sharma, son/ brother of first party had agreed to sell 1 Bigha out of 5 bigha land standing in the name of
their husband/ father, Late Satyaban Sharma, situated next to their mill covered by Dag No. 1713, 1714, 1717 at a sale consideration of Rs.12.00 Lakh
per bigha. It also contains not only the appellants had paid a sum of Rs.1.00 Lakh to the proforma respondents No.1 and 4 (i.e. Smt. Bhagwati Devi
Sharma and Shri Prahlad Kumar Sharma), but had also agreed to make payment of the balance amount of Rs.5.00 lakh to the said proforma
respondents No.1 and 4. Therefore, the submissions made by the learned Senior Counsel for appellants that a sum of Rs.1.00 lakh was paid to the
proforma respondent No.4 at the risk of the appellants and that the said payment had no relationship with any payment made and/or due to the
respondent No.1 is not acceptable because as per the contents of Agreement dated 22.06.2006 (Ext.Ga), a sum of Rs.1.00 lakh as well as further
payment of Rs.5.00 lakh was to be made to the proforma respondents No.1 and 4, which was to be adjusted with the total sale consideration of
Rs.12.00 lakh per bigha due and payable to respondent No.1. The said agreement Ext.Ga also contains “no objection†by the proforma
respondents No.1 and 4 tp enable the appellants to carry out any construction and to obtain electricity connection on the suit land. Thus, the
preponderance of probability is that armed with the agreement with the proforma respondents No.1 and 4, the appellants having received “no
objection†from them to carry out construction and to obtain electricity connection, the appellants had started construction of structures on the suit
land without having any intention to complete the sale by paying the balance sale consideration to the respondent No.1 in terms of the agreement dated
18.02.2005 (Ext. Kha).
40) With the above overview of the matter, in respect of the decision of the learned trial court on issue No.1, it is seen that the respondent No.1 had
asserted his right, which was denied by the appellants. Hence, there appears to be no infirmity in holding that there was cause of action for the suit. In
respect of issue No.2, the learned trial court had not committed any error in not deciding the issue of whether suit was maintainable in the present
form in absence of any pleading. On the basis of pleadings and evidence, the suit and the counter-claim cannot be said to be barred by limitation, as
such, issue No.2 was rightly decided by the learned trial court.
41) The learned trial court had taken up issues No. 4 to 9 together. Though no specific findings have been given on the said issues, but it was held that
the agreement was a contingent contract, and that the appellants had frustrated the contract. It was held that suit was liable to be decreed and the
counter-claim of appellants was liable to be dismissed.
42) Having perused the pleadings and evidence on record, it is seen that in very clear and certain terms, it was mentioned in Ext. Kha that the
respondent No.1 would take the responsibility of other (family) co-sharers. However, as per the contents of Ext. Ga, the proforma respondent No.4,
being the signatory of Ext. Ga, was aware of the previous agreement dated 18.02.2005 (Ext. Kha) as well as about the effect of the said agreement.
It is not the case projected by the appellants that they had approached the proforma respondent No.1 and 4 at the behest of the respondent No.1.
Therefore, vide agreement dated 22.06.2005 (Ext.Ga), by paying Rs.1.00 lakh out of the sale consideration of Rs.12.00 lakh per bigha to the proforma
respondent No.4 and furth agreeing to pay him balance sale consideration of Rs.5.00 lakh, not only the appellants had disowned the performance of
agreement dated 18.02.2005 (Ext. Kha), but also recognized the right, title, interest and possession of the proforma respondent No.4 over the suit land,
by obtaining his no objection to carry out construction and to obtain electricity connection on the suit land vide Ext. Ga. Therefore, the learned trial
court had not committed any error by holding on the basis of cross examination of DW-1 that the appellants did not have permission from the
respondent No.1 for entering into agreement dated 22.06.2006 (Ext.Ga) with proforma respondent No.4.
43) The fact that the appellants never paid a sum of Rs.6.00 lakh till taking over possession of land, which though not in terms of agreement dated
18.02.2005 (Ext.Kha), no offer for balance sale consideration was made to the respondent No.1 before commencing the construction. Having
obtained no objection from the proforma respondent No.4 to make construction on suit land and to obtain electricity connection, the appellants never
intended to compete the proposed sale by offering the balance sale consideration. The contents of agreement dated 22.06.2006 (Ext. Ga) establishes
beyond doubt that the appellants having paid a sum of Rs.1.00 lakh to the proforma respondent No.4 and further agreeing to pay balance sum of
Rs.5.00 lakh out of agreed sale consideration of Rs.12.00 lakh per bigha land to the proforma respondent No.4, the appellants had proved that they
were not ready and willing to perform their part of the contract. Thus, this court does not find any infirmity in the finding recorded by the learned trial
Court, which was issue No.5.
44) As discussed herein before, it had been projected by the appellants in trial that the appellants had paid a sum of Rs.6.00 lakh to the respondent
No.1 and the balance amount was only to be paid on execution and registration of the sale deed. But it is seen that DW-1, in the evidence- in- chief,
had stated that they had paid a sum of Rs.6.00 lakh to the respondent No.1 and on demand by proforma respondent No.4, a sum of Rs.1.00 lakh was
paid and that on payment of Rs.7.00 lakh, the respondent No.1 and proforma respondent No.4 had delivered the suit land on 14.01.2007. Thus, in the
opinion of this Court, the appellants, through the evidence of DW-1 had admitted their breach of agreement dated 18.02.2005 (Ext.Kha). If the
appellants acknowledged the right of proforma respondent No.4 to receive a sum of Rs.6.00 lakh out of total agreed sale consideration of Rs.12.00
lakh per bigha, a novation of contract was called for in so far as the agreement dated 18.02.2005 (Ext.Kha) was concerned. Both agreements dated
18.02.2005 (Ext. Kha) and agreement dated 22.06.2006 (Ext. Ga) could not co-exist with each other. Hence, this court does not find any infirmity in
the decision by the learned trial court in respect of issue No.6 that the appellants herein had committed breach of contract regarding agreement dated
18.02.2005 (Ext. Kha).
45) As regards issue No.4 relating to counter-claim, it is seen that apart from mentioning dag and patta numbers, the four boundaries of the land has
not been given in agreement dated 18.02.2005 (Ext.Kha). However, in Schedule-X(2) of the Counter-claim, the boundaries have been given, thus,
there appears to be no agreement to sell the specific plot of land described in Schedule-X(2) vide agreement dated 18.02.2005 (Ext.Kha). Nothing has
been shown which entitles a purchaser to choose a land from out of a large land-holding of a land-owner and insist for its sale, as is sought to be done
by the appellants herein. Therefore, although the learned trial court has not given a specific finding on issue No.4, but it can be culled out from the
contents of Ext. Kha that there was no agreement between the parties specifically for the land described in Schedule-X(2) of the counter- claim.
Nonetheless, respondent No.1 is seeking eviction of the appellants from Schedule-B(1) land, which is similar to land described in Schedule-X(2) of
counter-claim. However, in the opinion of this court, as the appellants had illegally occupied Sechdule-B(1) land without consent of the respondent
No.1, he was required to correctly identify the suit land from where appellants were to be evicted. This does not lead to any inference that the
agreement (Ext. Kha) was in respect of land described in Schedule-X(2) of the counter- claim. Hence, issue No.4 is decided accordingly. Naturally, if
the suit is decreed in favour of the respondent No.1, the trial court had recognized the right, title and interest of the respondent No.1 in respect of the
suit land. In the counter-claim, the appellants have prayed for decree of specific performance of contract only against the respondent No.1, as such,
the appellants are deemed to have accepted and acknowledged the right of the respondent No.1 in respect of the suit land in their written statement-
cum- counter claim. Issue No. 8 is answered accordingly.
46) In respect of issue No.9, on a perusal of the evidence of DW-1, it is seen that the DW-1 had stated in paragraph 5 of his examination- in- chief
that Rs.1.00 lakh was received by the respondent No.1 on condition that the money would be refunded if land could not be sold by executing
registered sale deed. Hence, the DW-1 had admitted clause 6 of the said agreement dated 18.02.2005 (Ext.Kha). Therefore, it is seen that the learned
trial court, upon discussing the pleadings and evidence on record, has arrived at the same finding. Moreover, the learned trial court had correctly
appreciated that the agreement was contingent because it was dependent upon some family settlement with his family members and that there is no
infirmity in the finding by the learned trial court that the evidence on record depicted that the acts and omissions of the appellants had frustrated the
contract.
47) As this Court is hearing four matters together, it is deemed fit to reiterate herein at the cost of repetition that TS No. 7/2008 was filed by the
respondent No.1 herein against his mother, other brothers and sisters and other co-pattadars of the suit land. By the said suit the respondent No.1 was,
inter-alia, seeking partition of the properties left behind by his father. As stated herein before, the said suit was decreed on compromise amongst the
respondent No.1 and proforma respondents No.1 to 4 herein. Accordingly, amongst others, the land which included the suit land described in
Schedule-B(1) of the plaint in TS 3/2008 fell in the share of the respondent No.1. The respondent No.1 filed T. Ex. Case No. 12/2012 to execute the
compromise decree. However, from the records of FAO No.27/2013, it is seen that the appellants by filing application under Order XXI Rule 97, 99
and 101 read with section 151 CPC, attempted to resist the decree. However, by order dated 27.08.2013 passed by learned Civil Judge, Barpeta in
Misc (J) Case No.30/2013, arising out of T. Ext. Case No.12/2012, dismissing the said application by refusing to accept that the appellant herein was a
stranger in the proceeding of T.S. No.7/2008 which was decreed on compromise by judgment and decree dated 06.09.2012. According to this court,
the appellants have taken contradictory stands in the two proceedings. While in TS No. 3/2008, the appellants had filed a counter-claim seeking
specific performance of contract vide Ext.Kha, but by resisting decree in TS No. 7/2008, the appellants were actually frustrating the said agreement
dated 18.02.2005 (Ext. Kha), because unless the respondent No.1 gets exclusive possession of land described in Schedule-B(1) land of TS 3/2008, the
respondent No.1 could not have concluded the said agreement/ contract. Thus, the appellants are found to have caused frustration of Agreement
dated 18.02.2005 (Ext. Kha) by their own conduct.
48) Thus, this court does not find in the consolidated finding on the issues No. 4 to 9 that the suit filed by the respondent No.1 was liable to be decreed
and the counter-claim of the respondent No.1 was liable to be dismissed, subject to refund of a sum of Rs.6,00,000/-. However, notwithstanding the
finding by this Court that as per the contents of Ext.Kha, the appellants are found to have paid only a sum of Rs.5,60,000/-(Rupees Five lakh sixty
thousand only) to the respondent No.1, ye on the basis of the stand taken by the respondent No.1, this Court is of the opinion the learned trial court
had rightly held the appellants to be entitled to decree for refund of a sum of Rs.6,00,000/- (Rupees six lakh only).
49) In view of the issue-wise discussions above, the point of determination No.1 is answered in the affirmative and against the appellant that the
agreement dated 18.02.2005 (Ext. Kha) was a contingent contract and determinable in nature. The point of determination No. 2 is answered in the
affirmative and against the appellant that the appellants, by their various acts and conduct mentioned herein before, had caused frustration of the
agreement dated 18.02.2005 (Ext. Kha).
50) This court is conscious that the appellants have carried out their construction on the basis of no- objection given by the proforma respondent No.4.
However, as no such “no objection†was given by the respondent No.1, the appellants had carried out their construction at their own risk and
cost. Thus, this court is not inclined to award the cost of construction, or any compensation and/or damages to the appellants on account of
constructions made by them on the suit land. Therefore, the appellants are entitled to remove the structure at their own cost by restoring the land to its
earlier position, or to abandon such structures. Thus, in respect of issue No.10, this court is inclined to uphold the decree passed by the learned trial
court, declaring the right, title and interest of the respondent No.1 herein (i.e. plaintiff) in respect of the suit land described in Schedule-B(1) of the
plaint, for recovery of khas possession of the suit land described in Schedule-B(1) of the plaint by evicting the appellants (i.e. defendants No.1, 2 and
3) from the suit land described in Schedule-B(1) of the plaint. Therefore, subject to above, the point of determination No. 3 is also answered in the
negative and against the appellants by holding that the judgment and decree impugned herein is not liable to be interfered with.
51) This court is of the view that as the appellants were held to be entitled to refund of Rs.6,00,000/- (Rupees Six lakh only), the decree of dismissal of
the counter-claim by the learned trial court, is liable to be modified and the counter-claim must be held to be partly decreed for a sum of Rs.6,00,000/-
(Rupees Six lakh only), which is in terms of prayer (d) of the counter-claim. The respondent No.1 is directed to deposit the said sum of Rs.6,00,000/-
(Rupees Six lakh only) before the learned executing court i.e. Court of Civil Judge, Barpeta, as a pre-condition for executing the decree in TS 3/2008.
IN THE MATTER OF FAO NO. 27 OF 2013:
52) As stated herein before, the challenge in FAO No.27/2013 is the order dated 27.08.2013 passed by learned Civil Judge, Barpeta in Misc (J) Case
No.30/2013 arising out of T. Ex. Case No.12/2012, thereby dismissing the application filed under Order XXI Rule 97, 99 and 101 read with section 151
CPC by refusing to accept that the appellant herein was a stranger in the proceeding of T.S. No.7/2008 which was decreed on compromise by
judgment and decree dated 06.09.2012 by the learned Civil Judge, Barpeta.
53) On the basis of the submissions made by the learned Senior Counsels for both sides, which is elaborately discussed above, the only point of
determination, which arises in this appeal is â€" Whether the appellants herein could be termed as stranger in the proceedings of T.S. No.7/2008,
which was decreed on compromise by judgment and decree dated 06.09.2012 passed by the learned Civil Judge, Barpeta? And whether the dismissal
of Misc (J) Case No.30/2013 (arising out of T.Ex. Case No.12/2012) vide order dated 27.08.2013 by learned Civil Judge, Barpeta is sustainable?
54) On a perusal of the records, it is seen that the appellants have not been able to demonstrate existence of their right, title, interest or possession
over the suit land decreed in TS No. 7/2008. As seen in the proceeding of RFA 54/2013, the appellants had set up a case that they had entered into
possession of the suit premises with consent of the respondent No.1 and proforma respondents No.1 to 4. Thus, the learned executing court had
rightly held that the appellants were not strangers and that they had no independent right, title, interest or possession over the suit land or any part
thereof, which were the subject matter of T Ex. Case No. 12/2012.
55) Therefore, in the considered opinion of this Court, the learned executing court had not committed any error in holding that the appellants were
judgment debtors in TS No. 3/2008. Thus, this court is of the opinion that as the judgment and decree passed in TS No. 3/2008 has been upheld in the
connected RFA No. 54/2013 with some modifications, no case is made out by the appellants for interference with the impugned order dated
27.08.2013 passed by learned Civil Judge, Barpeta in Misc (J) Case No.30/2013 arising out of T. Ex. Case No.12/2012. The point of determination is
answered in the negative and against the appellants by holding that the appellants were strangers in the proceedings of T.S. No.7/2008, decreed on
compromise by judgment and decree dated 06.09.2012 passed by the learned Civil Judge, Barpeta, having no right, title or interest in any of the suit
property involved therein. Moreover, it is also held that the order dated 27.08.2013, passed by learned Civil Judge, Barpeta, thereby dismissing Misc
(J) Case No.30/2013 (arising out of T.Ex. Case No.12/2012) vide is sustainable.
56) Thus, this appeal is found to be devoid of any merit and the same is dismissed by holding that the appellants had no right to resist the execution of
the decree passed in TS No. 7/2008. Hence, the said order is hereby upheld.
IN THE MATTER OF CRP NO. 322 OF 2016:
57) As mentioned herein before, challenge in CRP 222/16 is the order dated 02.03.2015 passed by learned Civil Judge, Barpeta in M.S. No.9/2013,
whereby the said learned Court had dismissed petition No.1559/13, filed by the petitioners/ appellants herein under section 10 CPC for staying the
proceedings of M.S. No. 9/2013.
58) The appellants are the principle defendants No.1, 2 and 3 in Money Suit No. 9/2013. The said suit was filed by the respondent No.1 in RFA
54/2008, inter-alia, seeking an amount of Rs.43,20,000/- as mesne profit by way of damages for keeping the suit land under their wrongful use and
occupation; for cost of the suit; and for other reliefs.
59) The appellants, by filing petition No. 1559/13, prayed for stay of the said suit under Section 10 CPC. The learned trial court had arrived at a finding
that the cause of action for MS No. 9/2013 was different from TS No. 3/2008. No material is available before this Court to differ from the finding
recorded by the learned trial court that the issue in MS No. 9/2013 was either directly or substantially in issue in the former suit i.e. TS No. 3/2008.
The case in the plaint of TS No. 3/2008 has already been referred herein before.
60) Under the said circumstances, this court is not inclined to interfere with the order impugned herein, as no jurisdictional error is found in the
impugned order. Therefore, this CRP No. 222/2016 stands dismissed.
IN THE MATTER OF CONT. CASE (C) NO. 829 OF 2015:
61) In the proceeding of the Cont. Case (C) No.829/15, the petitioners have alleged willful disobedience and violation of the order dated 20.11.2013,
passed by this Court in Misc. Case No.3360/13, arising out of RFA 54/2013. It is observed that no notice has been issued in the matter. Therefore, a
separate order has been passed in connection with the said case, as the matter is not ready for hearing.
ORDER IN RFA 54 OF 2013.
62) As a result of the discussions above, the judgment and decree dated 26.04.2013, passed by the learned Civil Judge, Barpeta, in TS No. 3 of 2008 is
upheld.
63) It is declared the respondent No.1 herein (i.e. plaintiff) has the right, title and interest of in respect of the suit land described in Schedule-B(1) of
the plaint. The respondent No.1 (i.e. plaintiff) is entitled for recovery of khas possession of the suit land described in Schedule-B(1) of the plaint by
evicting the appellants (i.e. defendants No.1, 2 and 3), their men, goods articles, etc. from the suit land described in Schedule-B(1) of the plaint.
64) The counter-claim of the appellants (i.e. defendants No.1, 2 and 3) is decreed to the extent of Rs.6,00,000/- (Rupees Six lakh only), towards
refund of advance money paid to the respondent No.1 (i.e. plaintiff).
65) As a further relief to the appellants in the counter- claim, the appellants (i.e. defendants No.1 to 3) are at liberty to either remove the structures by
restoring the suit land to its former position, or to abandon the said constructions.
66) The parties are left to bear their own cost all throughout.
67) Let a decree be drawn up.
68) Return back the LCR.
ORDER IN FAO NO. 27 OF 2013
69) In view of the discussions above, this appeal stands dismissed. Resultantly, the order dated 27.08.2013, passed by learned
Civil Judge, Barpeta in Misc (J) Case No.30/2013 arising out of T. Ex. Case No.12/2012 is upheld.
70) The parties are left to bear their own cost all throughout.
71) Return back the LCR.
ORDER IN CRP 322 OF 2016
72) In view of the discussions above, the revision is dismissed. The parties, i.e. the respondent No.1 as well as the appellants/ petitioners, who are duly
represented by their learned counsels shall appear before the learned Court of Civil Judge, Barpeta on 28.05.2018, without any notice of appearance,
and by producing the certified copy of this order, shall seek further instructions from the said learned Court.
73) It is made clear that the learned Civil Judge, Barpeta, shall decide MS No. 9/2013, pending before it on its merit, without being influenced by any
observations made herein.