Page No.# 1/5 vs Paresh Deka
2022 Latest Caselaw 1783 Gua

                                                                      Page No.# 1/5

GAHC010233632016




                              THE GAUHATI HIGH COURT
   (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

                                Case No. : RSA/268/2016

            SUKDEV BARTHAKUR and 2 ORS,
            S/O LATE SRIKANTA BARTHAKUR, R/O VILL. BASONAGHAT, P.O.
            MANIPUR, MOUZA and P.S. MORIGAON, ASSAM.

            2: LILA BARTHAKUR

             S/O LATE SRIKANTA BARTHAKUR
             R/O RAJA GAON
             WARD NO. 1
             P.O.
             P.S. and DIST. MORIGAON
             ASSAM.

            3: GOPI BARTHAKUR

             R/O BAKARIGAON
             WARD NO. 4
             P.O.
             P.S. and DIST. MORIGAON
             ASSAM

            VERSUS

            PARESH DEKA
            S/O SRI MUKUNDRA DEKA, R/O VILL. KALBARI, MOUZA GHAGUA, P.S.
            MORIGAON, DIST. MORIGAON, ASSAM.


Advocate for the Petitioner   : MS.J GOGOI

Advocate for the Respondent : MR.D BHUYAN

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BEFORE HONOURABLE MR. JUSTICE PARTHIVJYOTI SAIKIA

JUDGMENT AND ORDER 25 .05.2022

Heard Mr. DCC Phukan, learned counsel representing the appellants as well as Ms. S. Bora, learned counsel representing the respondent.

2. This is a regular second appeal under Section 100 of the Code of Civil Procedure whereby the judgment and decree dated 22.09.2015 passed by the Civil Judge, Morigaon, in Title Suit No. 06/2014 whereby the suit was decreed and the counter claim was dismissed and against the judgment of the District Judge, Morigaon dated 25.07.2016 in Misc.(J) Case No. 02/2016 whereby the delay in preferring the first appeal was not condoned.

3. The case of the respondent (plaintiff before the trial court) is as under:

The respondent wanted to purchase a plot of land. The present appellant wanted to sell a plot of land to him. The said plot of land had a house situated upon it. The plot of land measured 1 bigha 3 katha 16 lechas which was covered by Dag No. 376 of PP No. 174 at Basonaghat under Morigaon Mouza. In the land records, the names of the appellants along with three other persons were there in respect of the said land. But the entire plot of land under possession of the appellants and he assured the respondent that other persons had no right over the said land.

4. The respondent and the appellants was in agreement for sell of 1 katha 10 lechas of land out of the entire 1 bigha 3 kathas 16 lechas of land at a price of Rs.3 lakh. An advance of Rs.50,000/- was immediately paid to the appellants. It was agreed between the parties that another amount of Rs.50,000/- would be paid to the appellants when the appellants would procure sale permission from the authority concerned. Both sides agreed that the balance amount shall be paid at the time of execution of the sale deed.

5. On 30.04.2014, the possession of the said land was handed over to the Page No.# 3/5

respondent. The respondent started to construct a residential house over the said plot of land. At that time, the other appellants Lila Borthakur and Gopi Borthakur intervened. They asked the respondent not to undertake any construction work on the said land on the ground that they are co-owners of the said land and the appellant Sukdev Borthakur never represented them while selling the land.

6. Thus, the respondent filed a suit praying for a decree of specific performance of contract.

7. The present appellants contested the said suit by filing written statement. The appellant Sukdev Borthakur filed a separate written statement while the other two appellants filed another written statement along with a counter claim. The prayed that a decree should be passed under Section 22 of the Hindu Succession Act, 1956 declaring their right to acquire precedence in purchasing the aforesaid 1 katha 10 lechas of land. Their only plea was that the appellants Sukdev Borthakur never entered into agreement for sale with the respondent.

8. The trial court framed the following issues:

i) Is there any cause of action for filing this suit?

ii) Whether the defendant no. 1 executed an agreement on 20.07.2012 for sale of the suit land being his exclusive share in favour of the plaintiff at a consideration price of Rs.3,00,000/- and accepted Rs.2,50,000/- in total towards the advance consideration from him?

iii) Whether the plaintiff is entitled to a decre for Specific Performance of Contract to get a sale deed in respect of the suit lajd described in Schedule-A of the plaint from the defendant no. 1?

iv) Whether the defendant no. 1 and 2 being the own brother of defendant no. 1 are entitled to purchase the suit land of the defendant no. 1 at a consideration price of Rs.1,30,000/- in preference to the claim of the plaintiff?

v) Whether the defendant nos. 2 and 3 are entitled to get a decree as per Page No.# 4/5

their counter claim?

9. At the time of trial, both sides adduced oral as well documentary evidence in support of their case.

10. Finally, the trial court decreed the suit of the respondent and dismissed the counter claim of the appellants Lila Borthakur and Gopi Borthakur.

11. The present appellant was late in filing the first appeal. Therefore, while filing the appeal at a belated stage he filed another application under Section 5 of the Limitation Act praying for condonation of delay. The first appellate court refused to condone the delay.

12. The present second appeal was admitted for hearing on the following substantial questions of law:

i) Whether the decisions taken by the learned trial court for decreeing the suit in favour of the plaintiff and dismissing the counter claim of the defendants on a presumption that the suit land was amicably partitioned without any pleading and evidence laid down by the plaintiff is tenable in law?

ii) Whether the findings of the learned trial court in decreeing the suit in favour of the plaintiff and dismissing the counter claim of the defendants in respect of the inadmissible documents of the plaintiff for advance payment of Rs.50,000/- towards the consideration amount of Rs.3,00,000/- vide Ext. 1 dated 20.07.2012 without having any stamp duty is tenable in law?

iii) Whether the findings of the learned trial court in decreeing the suit in favour of the plaintiff and dismissing the counter claim of the defendants in respect of proving the Ext. 1,2 and 3 without discussing the evidence of cross examination of PWs is tenable in law?

13. I have given my anxious consideration to the submissions made by the learned counsels of both sides.

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14. The most relevant question that arises in this case is as to whether the respondent had entered into an agreement with Sri Sukdev Borthakur for purchasing a plot of land at a price of Rs.3,00,000/-.

15. The trial court has held that Sri Sukdev Borthakur had received Rs.2,50,000/- from the respondent and also handed over the possession of the land on 30.04.2014.

16. Being the second appellate court, this court will not go through the evidence unless there is any perversity.

17. In the counter claim, the appellants Lila Borthakur and Gopi Borthakur have claimed that they should be give a preferential right over the right of the respondent to purchase the said plot of land. Thus, it amounts to an admission that they have no right and title over the said plot of land. The trial court never presumed the fact that there was any amicable settlement of ancestral property.

18. Thus, the first substantial question of law is answered in negative. The trial court passed the judgment by appreciating the evidence correctly.

19. The second substantial question of law is also answered in negative. Because, acceptance of sale price by a vendor without paying proper stamp duty has no consequence in the present case.

20. The learned trial court has elaborately discussed the evidence and thereafter arrived at the impugned finding. The third substantial question of law is answered in negative.

21. This court finds that there is no perversity in the impugned judgment warranting interference of the second appellate court. I find that the present appeal is devoid of merit and stands dismissed accordingly.

22. Send back the LCR.

JUDGE

Comparing Assistant