Jharkhand High Court
Flora Horro vs Shanti Nag on 21 November, 2024
Author: Anil Kumar Choudhary
Bench: Anil Kumar Choudhary
IN THE HIGH COURT OF JHARKHAND AT RANCHI
S.A. No.54 of 2019
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Flora Horro, aged about 55 years, wife of Sri Imanuel Horro, by caste
Munda (Scheduled Tribe), resident of Village-Torpa, P.O.-Torpa, P.S.-
Torpa, Dist.-Khunti (Jharkhand)
.... .... .... Appellant
Versus
1. Shanti Nag, wife of late Fanuel Nag, resident of Village-Jilingburu,
P.O.-Torpa, P.S.-Torpa, Dist.-Khunti (Jharkhand)
2. Deputy Commissioner, Khunti, P.O. & P.S. & Dist.-Khunti
(Jharkhand)
... .... .... Respondents
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For the Appellant : Mr. Amar Kumar Sinha, Advocate
: Mr. Kundan Kr. Ambastha, Advocate
: Mr. Sumit Kumar, Advocate
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PRESENT
HON'BLE MR. JUSTICE ANIL KUMAR CHOUDHARY
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By the Court:- Heard the learned counsel for the appellant.
2. This second appeal has been preferred under Section 100 of
Code of Civil Procedure against the judgment and decree of
reversal dated 12.10.2018 passed by the learned District Judge-I,
Khunti in Civil Appeal (Title Appeal) No.94 of 2009 whereby and
where under, the learned first appellate court set aside the
judgment of the trial court being the Munsif, Civil Court Khunti
passed in Title Suit No. 07 of 2008 dated 19.05.2009 whereby and
where under, the learned Munsif, Khunti decreed the suit on
contest and directed the defendant no.1 to execute the sale deed in
respect of the suit property in favour of the plaintiff within 60 days
from the date of such judgment and allowed the appeal on contest.
3. The brief fact of the case is that the plaintiff filed Title Suit
No. 07 of 2008 with a prayer for specific performance of the
agreement in favour of the plaintiff and against the defendant no.1
with respect of the suit land and direct the defendant no.1 to
execute and register the deed of sale in favour of the plaintiff with
respect to the lands in suit within a time to be fixed by the court
failing which the deed of sale be executed and registered through
the process of court and possession of the plaintiff over the suit
land be confirmed and in case, the plaintiff is not found in
possession of the suit land, decree for recovery of possession be
passed and the plaintiff be put in khas possession and additional
prayer of permanent injunction restraining the defendant no.1
from dispossessing the plaintiff from the suit land. Cost of the suit
and other relief was prayed for.
4. The case of the plaintiff in brief is that the defendant no.1
was the owner of 14.5 decimals of land of which the suit land is
exactly half being 7 ¼ decimals of land. The defendant no.1
executed a sale deed after permission of the same was accorded by
the S.D.O., Khunti under Section 46 of Chota Nagpur Tenancy Act
in respect of the rest half out of 14.5 decimals of land including the
suit land which was owned by the defendant no.1 by a registered
sale deed dated 23.12.2002. It is the case of the plaintiff that the
defendant no.1 promised to execute and get registered sale deed
with respect to the said land also on receipt of consideration
money of Rs.30,000/- which was also paid by the plaintiff to the
defendant no.1. The plaintiff also paid Rs.35,975/- on 25.11.2007
under receipt granted by the defendant no.1. The plaintiff claimed
that the plaintiff has paid the entire consideration amount for 14.5
decimals of land amounting to Rs.65,975/- to the defendant no.1
but the defendant no.1 went on evading execution of the sale deed
on one pretext or the other. The plaintiff has constructed rooms
and other substantial construction over the suit land by investing
quite and large sum of money. The defendant no.1 filed Title
(Eviction) Suit No. 1 of 2008 for eviction of the plaintiff from the
suit land claiming that the plaintiff has been inducted as a tenant
over the suit land by the defendant no.1 even though the plaintiff
all along was ready and willing to perform her part of the
agreement. Hence, the plaintiff filed the suit.
5. The defendant no.1 in his written statement challenged the
maintainability of the suit on various technical grounds and
denied the entire averments made by the plaintiff in the plaint. The
defendant no.1 took the specific plea that he inducted the plaintiff
as a tenant even though the plaintiff is not a resident of Torpa
police station. The defendant no.1 pleaded that the plaintiff taking
advantage of the simplicity of the defendant no.1 in collusion with
her husband brought the defendant no.1 to Khunti on 17.12.2002
and made him sign a blank application, which signature was used
as signature on the application under Section 46 of Chota Nagpur
Tenancy Act. The plaintiff also obtained signature of the defendant
no.1 on several blank papers. The plaintiff did not pay the
consideration amount of the sale deed executed by the defendant
no.1 for the remaining 7.25 decimals of land out of 14.5 decimals of
land owned by the defendant no.1 and pleaded that this suit is a
counter blast to the Title (Eviction) Suit No.1 of 2008 filed by the
defendant no.1.
6. On the basis of rival pleadings of the parties, the learned
trial court settled the following nine issues:-
(i) Whether the suit as such framed is maintainable in
its present form?
(ii) Whether the suit is barred by law of limitation?
(iii) Whether the suit is barred by provisions u/s 32 & 34
of Specific Relief Act and any provisions under CNT
Act?
(iv) Whether the suit is barred by law of waiver,
acquiescence or estoppel?
(v) Whether the defendant no.1 had entered into an
agreement to sale the suit land as mentioned in
schedule of the plaint bearing R.S. plot no. 2744
under khata no.26 Village-Torpa and other lands
bearing area of 14 ½ decimals with the plaintiff of
this case?
(vi) Whether in consequence of such agreement,
defendant had given application u/s 46 C.N.T. Act
for entire land of 14 ½ decimals under his full
knowledge?
(vii) Whether the plaintiff has obtained possession over
the suit land in consequence of the terms of said
agreement?
(viii) Whether the plaintiff has shown readiness and
willingness to perform the terms of said agreement,
as such agreed between the parties?
(ix) Whether the plaintiff is entitled for the relief as such
claimed or any other relief or reliefs?
7. In support of her case, the plaintiff examined altogether four
witnesses and proved documents which have been marked Ext. 1
to Ext. 4. On the other hand, from the side of the defendants two
witnesses were examined and the defendants also proved the
documents which have been marked Ext. A to Ext. C.
8. The learned trial court first took up issue nos. (v), (vi) and
(vii) together and considering the evidence in the record came to
the conclusion that there was an agreement in the year 1997
between the plaintiff and the defendant no.1 and in terms of that
agreement, the defendant no.1 submitted his application under
Section 46 of Chota Nagpur Tenancy Act for permission and after
such permission, the defendant no.1 has executed sale deed in
respect of 7.25 decimals of land out of 14.5 decimals of land owned
by him, which are not the suit property and the plaintiff has made
several construction over the said land and is possessing the same
and answered the issue nos. (v), (vi) and (vii) in favour of the
plaintiff. The learned trial court next took up issue no. (viii) and
after considering the evidence in the record that since the plaintiff
has led evidence that the plaintiff has already paid the entire
consideration amount to the defendant no.1 so the learned trial
court answered the issue no. (viii) in favour of the plaintiff. The
learned trial court next took up issue nos. (i), (ii), (iii), (iv) and (ix)
together and disposed of the issue nos. (ii), (iii) and (iv) in the
negative as no evidence was led by the parties and in view of its
finding in respect to the issue nos. (v) to (viii) the learned trial
court came to the conclusion that the plaintiff is entitled to the
relief as prayed for in the suit and decreed the suit of the plaintiff
as already indicated above.
9. Being aggrieved by the judgment and decree passed by the
learned trial court, the defendant no.1 filed Civil Appeal (Title
Appeal) No.94 of 2009 in the court of Principal District Judge,
Khunti which was ultimately heard and disposed of by the learned
first appellate court by the impugned judgment and decree.
10. The learned first appellate court on the basis of the materials
in the record and the submissions before it, formulated the
following four points for determination:-
(i) Whether there was/is any valid agreement subsist between the
parties regarding sale of schedule plot as mentioned in the plaint of
the suit?
(ii) Whether the land as such mentioned in schedule of the plaint being
land of schedule tribe, so valid legal permission which is required
u/s 46 C.N.T. Act has been or duly obtained by the vendor i.e.
defendant/appellant to sale such portion of land by the competent
authority?
(iii) Whether the respondents have been able to prove their readiness
and willingness to comply the terms of alleged agreement of year
1997, as such mentioned in the plaint of the suit?
(iv) Whether the respondent/plaintiff had established her possession
over the suit land in consequence of such agreement, as such
mentioned in the plaint?
11. The learned first appellate court relied upon the judgment of
the Hon'ble Supreme Court of India in the case of Brij Mohan &
Ors. vs. Sugra Begum & Ors. reported in (1990) 4 SCC 147,
wherein inter alia it was observed by the Hon'ble Supreme Court of
India that when the plaintiff seeks specific performance of an oral
agreement of sale of an immovable property, heavy burden lies
upon the plaintiff to prove firstly that there was consensus ad idem
between the parties and secondly such oral agreement for sale was
concluded and considering the facts of this case where the plaintiff
pleaded that there was an oral agreement of sale of 14.5 decimals
of land at the rate of Rs.5,000/- per decimal but Ext.1 and Ext.1/A
as also Ext. C shows that the plaintiff purchased the land of 7.25
decimals after payment of 65,975/- which shows that there was no
consensus ad idem between the parties and thereby the contract has
not been concluded. The learned first appellate court also
considered Section 20 of the Specific Relief Act, 1963 as it stood
prior to its amendment by Act 18 of 2018. The learned first
appellate court also considered that under Section 46 of Chota
Nagpur Tenancy Act, it is the Deputy Commissioner who is the
competent person to accord sanction for transfer of land by a
member of scheduled tribe in favour of someone and the purchaser
must be a resident of the same village. The learned first appellate
court referred to the deposition of the plaintiff who was examined
as P.W.1 and in paragraph nos. 20 and 21 of her deposition she has
stated that she is the resident of Jamtoli in the district of Gumla
and her parental house is also at village- Chitapiri in Gumla
district whereas the suit is situated under Torpa P.S. in the district
of Khunti. So the plaintiff was not competent to purchase the land
being not a resident of Torpa police station of which the defendant
no.1 has been a resident. The learned first appellate court also
considered that the plaintiff has failed to express her readiness and
willingness to perform her part of the agreement. The learned first
appellate Court took note of the fact that in Ext. C which is the
certified copy of the sale deed, there is no reference of any oral
agreement for sale between the plaintiff and the defendant no.1
nor there is any evidence to show that the plaintiff was ready and
willing to perform her part of the agreement nor there is any
evidence as to when the plaintiff requested the defendant no.1 to
execute the sale deed in her favour and admittedly the suit was
filed only after the defendant no.1 filed Title (Eviction) Suit No. 1
of 2008 against the plaintiff and went on to hold that the judgment
and decree passed by the learned trial court in Title Suit No. 07 of
2008 is fit to be set aside and allowed the appeal.
12. It is submitted by the learned counsel for the appellant that
the learned first appellate court committed a perversity by holding
that the S.D.O., Khunti had no jurisdiction to grant permission for
transfer of the land by the defendant no.1 in favour of the plaintiff
in terms of Section 46 of Chota Nagpur Tenancy Act vide R.M.
Case No. 213 of 2002-03 even though the same was not challenged
by the defendant. It is next submitted by the learned counsel for
the appellant that the learned first appellate court has
misconstrued and misinterpreted the evidence in the record.
Hence, it is submitted that the judgment and decree passed by the
learned first appellate court being not sustainable in law be set
aside and the judgment and decree passed by the learned trial
court be restored.
13. Having heard the submissions made at the Bar and after
carefully going through the materials in the record, it is pertinent
to mention here that the basis of the suit is an oral agreement for
sale purportedly entered into between the plaintiff and the
defendant no.1. The defendant no.1 has categorically denied any
such oral agreement. The plaintiff has not mentioned as to when
such oral agreement was entered into between the parties. The
plaintiff has not mentioned anywhere as to how the plaintiff came
in possession over the suit land. The plaintiff has not mentioned as
to what were the terms and conditions of the contract even though
it was an oral contract; so no document was there. It is a settled
principle of law that in a case where the plaintiff comes forward to
seek a decree for specific performance of contract of sale of an
immovable property on the basis of the oral agreement alone,
heavy burden lies on him to prove that there was a consensus ad
idem between the parties and there was a concluded oral
agreement for sale of immovable property.
14. Under such circumstances, this Court do not find any fault
on the part of the learned first appellate court in arriving at the
conclusion that the plaintiff has failed to establish that there was
consensus ad idem between the parties and thereby the contract was
a concluded one. Otherwise also, keeping in view the requirement
of Section 46 of the Chota Nagpur Tenancy Act though the plaintiff
pleaded that the plaintiff is a resident under Torpa police station of
Khunti District but her categorical admission in paragraph nos. 20
and 21 of her deposition as P.W.1 that she is the resident of Village-
Jamtoli in the district of Gumla and her parents' house is also in
the district of Gumla in Village- Chitapiri, contradicts her own
averment made in the plaint that she was a resident under Torpa
police station when it is the categorical averment of the defendant
no.1 in his written statement that the plaintiff was not the resident
under Torpa police station; when the undisputed requirement of
law is that the plaintiff must be a resident of the same village as
that of the defendant no.1, for a valid sale to be effected by the
defendant no.1.
15. Under such circumstances, this Court finds that there is
absolutely no perversity in the finding of fact arrived at by the
learned first appellate court that the plaintiff has failed to establish
consensus ad idem between the parties and that the contract between
the parties was a concluded one and as such finding of fact has not
been arrived at by excluding any admissible evidence or
considering any inadmissible evidence nor such finding of facts
arrived at by the learned first appellate court can be termed as
outrageously defying any logic so as to incur the blame of being
perverse.
16. So in the absence of any concluded contract and that the
plaintiff admittedly is not a resident of Torpa P.S. as has
categorically admitted by her in paragraph nos.20 and 21 of her
deposition as P.W.1 and whether the S.D.O., Khunti was
competent to exercise the power under Section 46 of Chota Nagpur
Tenancy Act, 1908 about which there is neither any pleading nor
any evidence, is irrelevant because otherwise also, the plaintiff
having failed to plead and prove as to when the oral agreement
was made between the parties and what were the terms and
conditions of the said agreement, the plaintiff is not entitled to the
relief of specific performance of contract.
17. In view of the discussions made above, this Court is of the
considered view that there is absolutely no substantial question of
law involved in this appeal.
18. Accordingly, this second appeal being without any merit is
dismissed but under the circumstances without any costs.
19. Let the copy of the Judgment be sent to the learned court
below forthwith.
(Anil Kumar Choudhary, J.)
High Court of Jharkhand, Ranchi
Dated the 21st November, 2024
AFR/ Sonu-Gunjan/-
