Ala Uddin Mazumder vs Fakar Uddin Mazarbhuiya And 2 Ors
2025 Latest Caselaw 1772 Gua

Gauhati High Court

Ala Uddin Mazumder vs Fakar Uddin Mazarbhuiya And 2 Ors on 7 January, 2025

                                                                         Page No.# 1/9

GAHC010048582024




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

                                  Case No. : RSA/162/2024

            ALA UDDIN MAZUMDER
            S/O LATE SUNAHAR ALI MAZUMDER
            RESIDENT OF HAILAKAND TOWN WARD NO. 1, PO AND PS HAILAKANDI,
            ASSAM



            VERSUS

            FAKAR UDDIN MAZARBHUIYA AND 2 ORS
            S/O LALU MIYA MAZARBHUIYA,
            RESIDENT OF BASHDAHAR PART II, PO MATIJURI, DIST HAILAKANDI
            ASSAM 788155

            2:FOIJUR ROHMAN MAZUMDER
             S/O LATE JAMIR UDDIN MAZUMDER

            RESIDENT OF BASHDAHAR PART II
            PO MATIJURI
            DIST HAILAKANDI ASSAM 788155

            3:IMRANA BEGUM MAZUMDER

             W/O FOIJUR ROHMAN MAZUMDER

            RESIDENT OF BASHDAHAR PART II
            PO MATIJURI
            DIST HAILAKANDI ASSAM 78815

Advocate for the Petitioner   : MS. R CHOUDHURY, MRS. B HAZARIKA,MR. A H M R
CHOUDHURY

Advocate for the Respondent : ,
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                                     BEFORE
                   HON'BLE MR. JUSTICE ROBIN PHUKAN
                                     ORDER

07.01.2025

Heard Ms. R. Choudhury, learned counsel for the appellant.

2. This second appeal, under Section 100 of the Code of Civil Procedure, 1908, is directed against the judgment and decree, dated 08.08.2023, passed by the learned Addl. District Judge, Hailakandi, in Title Appeal No. 05/2022. It is to be noted here that vide impugned judgment and decree dated 08.08.2023, the learned Addl. District Judge, Hailakandi had affirmed and upheld the judgment and decree passed by the Civil Judge (Senior Division),Hailakandi, dated 25.11.2019, in Title Suit No. 01/2018. It is also to be noted here that vide impugned judgment and decree dated 25.11.2019, the learned Civil Judge (Senior Division), Hailakandi, had decreed the Title Suit No. 01/2018.

3. Perused the memo of appeal as well as the grounds mentioned therein and the suggested substantial questions of law. Also perused the impugned judgment and decree, dated 08.08.2023, passed by the learned Addl. District Judge, Hailakandi, in Title Appeal No.05/2022, and the judgment and decree dated 25.11.2019, passed by the learned Civil Judge (Senior Division) Hailakandi, in Title Suit No. 01/2018.

4. For the sake of convenience, the status of the parties, as referred to in the Title Suit will be adopted here.

5. The background facts leading to filing of the present second appeal are briefly stated as under:-

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"The defendant/appellant here in is the owner of a plot of land measuring

01 Bigha-04 Katha and 04 Chataks and he offered to sell the said plot of land to the plaintiffs. Then fixing the sale consideration at Rs. 8,00,000/, the plaintiffs agreed to purchase the same and agreement to that effect was also executed between the parties on 04.02.2017. As per the said agreement, the plaintiffs had paid a sum of Rs.4,00,000/ being the advance sum and rest will be paid at the time of execution of Sale Deed, within a period of three months. It was also agreed that the defendant would obtain No Objection Certificate (NOC) and in the event of failing to obtain NOC within three months, then the period of execution of sale deed would be extended till the same is issued by the authority. The NOC was issued by the authority on 06.09.2017, but, the defendant on this or that pretext avoided execution of the sale deed, despite request being made by the plaintiffs. The plaintiffs, though ever ready to comply with their part of the contract, yet, the defendant had failed to perform his part of the contract.

Being aggrieved the plaintiffs had instituted a Title Suit being Title Suit No. 01/2018, before the learned Civil Judge (Senior Division) Hailakandi (trial court), praying for directing the defendants to cause survey of Scheduled land through court and to find out total quantity of land within the boundaries and then to fix the price as per agreement dated 04.02.2017 and to direct the defendant to execute the sale deed for the land to be found and take remaining sale consideration within time specified by the court and in the event of failing to execute sale deed the court is to execute the sale deed and to deposit the remaining amount of price in the court that would be fixed after survey and with cost of the Page No.# 4/9

suit.

The defendant entered appearance and contested the suit by filing written statement. His stand is that He entered into an agreement with the plaintiffs on 20.10.2016, fixing the sale consideration at Rs. 8,00,000/, out of which the plaintiffs had paid a sum of Rs. 1,90,000/ and undertook to pay the balance amount of Rs. 6,10,000/ on or before 31.01.2017. But, the plaintiffs could not mange the balance amount. Thereafter, again on intervention of well wishers another agreement was entered into by them on 04.02.2017 and at that time the plaintiffs had paid another sum of Rs. 2,10,000/ to him. His further stand was that the plaintiffs were never ready to perform their part of the contract by paying the balance amount of sale consideration and that plaintiff No. 1 was involved in a police case, being Hailakandi P.S. Case No. 368 of 2017 and he was evading arrest and he got bail on 01.11.2017, and that the plea of the plaintiffs about willingness and readiness to perform their part of contract is false and that the suit is not maintainable, and there is no cause of action, and the suit is barred by the law of limitation, waiver and estoppel and hit by Section 16 of the Specific Relief Act.

Then, upon the pleadings of the parties the learned trial court had framed following issues:-

 (i)                Is there any cause of action for the suit ?
 (ii)             Whether the          suit   is   maintainable     in    its
            present form?
 (iii)           Whether the suit is barred by                  limitation,
            waiver, estoppels and acquiescence?
 (iv)               Whether    there    was   an    agreement     for    sale
                                                                 Page No.# 5/9

between the plaintiffs and defendants whereby the defendant agreed to sell the suit land to plaintiffs and received a sum of Rs. 4,00,000/ in advance from the plaintiffs?

(v) Whether the defendant failed to register and execute sale deed in favour of the plaintiffs after getting NOC and whether took any steps for measuring the land and fixed the quantum of the land as per agreement dated 04.02.2017?

(vi) Whether the plaintiffs are entitled to get the relief and decree, as prayed for?

 (vii)           To what      other    relief(s)     the   parties      are
            entitled?

Thereafter, hearing both sides and considering the evidence on the record the learned trial court had decreed the suit vide impugned judgment and decree dated 25.11.2019, directing the defendant to execute the sale deed in respect of the land described in the schedule of the suit within three months and to give effect of the terms of binanama on receipt of the remaining sale consideration after survey of the land and to deliver khas possession of the land and on account of failure to get the sale deed executed through the court, with cost.

Then being aggrieved the defendant had preferred an appeal being Title Appeal No. 05 of 2022, challenging the correctness or otherwise of the judgment and decree before the learned Addl. District Judge, (first appellate court) Hailakandi. Then the learned first appellate court had formulated following points for determination:-

(i) Whether the learned trial court failed to consider the fact that the plaintiffs were never Page No.# 6/9

been ready and willing to get the sale-deed executed as per the agreement ?

  (ii)          Whether the learned trial court failed to
           appreciate the fact that no notice was given by
           the plaintiffs to the defendant for getting the
           sale deed executed ?
  (iii)       Whether the learned trial court has committed
           any error in passing the impugned judgment and
           order?
  (iv)          Whether there is anything to interfere with
           the judgment and decree, impugned herein ?

Thereafter, hearing learned Advocates of both sides, the learned first appellate court had decided point No.1 and 2 against the appellant and also decided point No. 3 and 4 in against the appellant and thereafter, dismissed the appeal, vide impugned judgment and decree dated 08.08.2023.

Being aggrieved the defendant has preferred this second appeal suggesting following substantial questions of law:-

  (i)            Whether, the learned Courts below were
           correct   in    decreeing   the   suit    of   the

respondents/plaintiffs in absence of readiness and willingness ?

(ii) Whether the learned Courts below committed wrong by not framing any issue about the readiness and willingness of the plaintiffs in performing their part of contract in presence of specific denial by the appellant/defendant ?

(iii) Whether the findings arrived at by both the courts below are correct in decreeing the suit of Page No.# 7/9

the plaintiff in absence of proof of plaintiff's case despite being the settled principles of law that the plaintiff has to stand on his own footing, not on the weakness of the defendant's case?

6. Ms. Chaudhury, the learned counsel for the appellant submits that the learned courts below had not framed any issue on the point of readiness and willingness on the part of the plaintiff and in a suit for specific performance of contract the same is the main issue and as such the impugned judgment and decree, so passed by the learned trial court suffers from manifest illegalities and this is the main substantial question of law involved in this appeal. Ms. Choudhury further submits that without framing any issue on such a vital point and without deciding the same on the basis of materials placed on record, the learned courts below would not have decreed the suit. Ms. Choudhury further submits that the learned court below had decreed the suit in absence of any proof. Further, Ms. Choudhury submits that it is a settled proposition of law that the case of the plaintiff has to stand on its own footing, not on the weakness of the defendant's case. Therefore, Ms. Choudhury has contended to admit this appeal and call for the record from the courts below and thereafter, decide the matter after hearing both sides.

7. The submission of Ms. Choudhury receives due consideration of this court. Also, I have carefully gone through the impugned judgments of the both the courts below.

8. It is a fact that readiness or willingness on the part of the parties to perform their part of the contract is the main issue in a suit for specific performance of the contract. But, perusal of the judgment and decree of the Page No.# 8/9

learned trial court indicates that unfortunately no issue was framed by the learned trial court on this point. Ms. Choudhury has rightly pointed this out during admission heading. But, what escaped from the notice of Ms. Choudhury is that the learned first appellate court had formulated a point in this regard and thereafter, discussing the documentary as well as oral evidence of both the parties in detail, the learned first appellate court had arrived at a finding that the plaintiffs had made repeated demands to the defendant to execute sale deed but on one or other pretext the defendant had delayed the matter and that the plaintiff's witness No.1 stood firm in his cross-examination that he was ready and willing to perform his part of contract and that Explanation-I to Section 16 of the Specific Relief Act does not require payment of the money or deposit thereof to the court and what the plaintiff is required to prove is that he was ready and willing to perform his part. The learned first appellate court also held that though the defendant had taken a stand that the plaintiffs had not issued any formal notice upon him asking him to execute sale deed, there is no rule in evidence that a notice must always be in a written form and the plaintiffs had reiterated that they made repeated approach to the defendant to execute the sale deed within the stipulated period by taking the balance amount of sale consideration and that agreement for sale is a reciprocal arrangement between the parties and the defendant is also duty bound to inform the plaintiff to pay him the balance amount and to come forward to get the sale deed executed in their favour and that he had not challenged execution of the sale deed, Exhibit- 1 and that the learned trial court had also discussed those aspect in his judgment and did not overlooked the mandate of section 16(c) of the Specific Relief Act. Thereafter, the learned first appellate court had decided the point in favour of the respondents, i.e. the plaintiffs.

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9. Thus, it appears that the learned first appellate court had formulated a point on the issue of readiness and willingness on the part of the plaintiffs and thereafter, discussing the evidence on the record arrived at a just finding. It is to be noted here that the first appellate court is fully justified in formulating a point, though no issue was framed on such count, by the learned trial court, in view of Order 41 Rule 31 CPC and Rule 33 CPC.

10. In view of above, the finding, so recorded by the learned first appellate court, appears to be reasonable and based on evidence on the record and nothing could be demonstrated to show that the finding is perverse and no such plea is ever taken by the appellant herein.

11. Thus, having examined the impugned judgments and decrees so passed by the learned courts below and considering the submission of Ms. Choudhury this court is left unimpressed by her submission that any substantial question of law is involved in this appeal.

12. Since involvement of any substantial question of law could not be demonstrated by the appellant, this court is constrained to dismiss this appeal.

13. In the result the appeal stands dismissed. The appellant has to bear his own cost.

JUDGE

Comparing Assistant