Jharkhand High Court
Shiv Shankar Dey vs Ram Chandra Ram on 27 March, 2025
Author: Sanjay Kumar Dwivedi
Bench: Sanjay Kumar Dwivedi
IN THE HIGH COURT OF JHARKHAND, RANCHI
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S.A. No. 163 of 2024
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Shiv Shankar Dey, aged about 35 years, son of late Fakir Chandra Dey, R/o
Sukhdeo Nagar, Opposite to United Bank of India, Chas, P.O. and P.S.
Chas, District Bokaro... ... ... Defendants/ Appellant/ Appellant
-- Versus --
1.Ram Chandra Ram, s/o late Damodar Ram
2.Sarita Devi, D/o late Damodar Ram
3.Kumari Baby, D/o late Damodar Ram
4.Gita Devi, w/o late Damodar Ram
All residents of Main Road, Chas, PO and PS Chas, District Bokaro
...... .... ... Respondent(s)
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CORAM: HON'BLE MR. JUSTICE SANJAY KUMAR DWIVEDI
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For the Appellants(s) :- Mr. Abhishek S. Sinha, Advocate
Mr. Devanshu Kumar, Advocate
For the Respondent(s) :-
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6/27.03.2025 Heard the learned counsel for the appellant.
2. This Second Appeal has been preferred against the judgment dated
06.07.2024 and decree dated 11.07.2024 passed by learned District Judge-II,
Bokaro in Civil Appeal No.67 of 2019 whereby he has been pleased to dismiss
the appeal and affirm the judgment dated 10.3.2011 and decree dated
18.03.2011 passed in Original Suit No.23 of 2007.
3. The learned counsel for the appellant submits that substantial question
of law is involved in the present second appeal and the sisters of appellant/
defendant have not been made party in the original suit and that is the
substantial question of law. He submits that the interpretation of the
agreement in question is also not in accordance with law as such, that is
another substantial question of law in this second appeal and in view of that,
this second appeal may kindly be admitted.
4. The Original Suit no.23 of 2007 has been instituted by the plaintiff/
respondents for decree for specific performance of contract in favour of the
plaintiff and against the defendants directing him to execute and register a
regular sale deed in favour of the plaintiff of the land described in schedule-1 of
the plaint fixing a specific period failing which the learned court will please to
pass an order to execute and register a regular sale deed in favour of the
plaintiff by appointing a competent person/ officer of the court through the
process of law and cost of the suit for the relief for which the plaintiff/
respondents are to be entitled. The said suit was decided by the judgment
dated 10.3.2011 decree signed on 18.3.2011 and it was decreed in favour of
the plaintiff/ respondents. Aggrieved with that judgment, the appellant herein
had moved before the learned appellate court in Civil Appeal No.67 of 2019
whereby the judgment dated 06.07.2024 the Civil Appeal has also been
dismissed.
5. It transpires from the judgment of the learned courts that the case of the
plaintiffs/respondents is that the land including building/pucca room bearing
Plot No. 3750 measuring about an area ½ dec. under Khata no. 107 of Mouza
Chas, Mouza No. 30 specifically described in Schedule-I of the plaint belonged
to the defendant and defendant in year 2004 let out aforesaid land including
building/pucca room on monthly rent of Rs.500/- to the plaintiff after taking as
security a sum of Rs. 1,00,000/- and since then the plaintiff was carrying his
business in the name and style of "'SUPER SARAN BAND" and thus the plaintiff
has been in peaceful possession of the suit land. It is further case of
plaintiff/respondent in first week of Sept,2006 the defendant felt in need or
money for needing domestic expenditure and others, made proposal before the
plaintiff for sale of the aforesaid schedule land and the plaintiff agreed to
purchase the same on consideration amount of Rs. 2,51,000/-. It is further case
of plaintiff respondent that defendant took a Sum of Rs.2,00,000/- from plaintiff
and on 06.09.2006 executed registered agreement and put his signature after
taking advance amount in presence of the witnesses and the said agreement
was only attested by Notary Public, Sri R.N. Ghosal, Bokaro. It is further case of
plaintiff/respondent it is mutually agreed by both the parties that defendant will
execute and register a regular Sale Deed in favour of a plaintiff within three
years from the date of the agreement after taking remaining balance amount of
Rs, 51,000/-. It is further case of plaintiff/respondent that plaintiff several time,
requested the defendant for acceptance of the balance amount of Rs, 51,000/-
and to execute and register a regular Sale-Deed in favour of plaintiff but the
defendant avoided to execute and register a regular Sale-Deed in favour of the
plaintiff on favour of the plaintiff on various pretext and the plaintiff sent a
registered pleader Notice through his Lawyer Sri Bijay Prakash Sharma on
19.04.2007, 07.05.2007 and 21.05.2007 but despite of receipt of the said
notices, the defendant did not give any reply then again on 10.06.2007 the
plaintiff personally approached the defendant for execution and registration of
Sale Deed ín favour of the plaintiff as per agreement but he flatly refused to
execute the same. It is further case of plaintiff/respondent that plaintiff is in
possession of the Schedule land, so it does not require for delivery of
possession. It is further case of plaintiff/respondent the cause of action for the
present suit arose on 06.09.2006 when the agreement was executed by the
defendant and subsequently on 19.04,2007, 07.05.2007 and 21.05.2007 when
notices sent and other subsequent date on 10.06.2007.
6. The case of the appellant/ defendant is that suit is not maintainable
either on facts or in law, there is no cause of action for the present suit, the suit
is barred by the provisions of specific Relief Act, the suit is also barred under
the provisions of waiver, acquiescence and estoppels, the suit is premature as
filed earlier to the expiry of alleged agreement for the sale dated 06.09.2006,
the suit is bad under the provisions of Indian Contract Act, the suit is bad for
non-joinder of the necessary parties. It is further case of defendant /appellant
that the property mentioned the Schedule-l of the plaint is inherited property by
the father of the defendant who died leaving behind the defendant and his
sisters and the defendant being son inherited the same jointly with his sister
which are well known to the plaintiff but the plaintiff has not made the sisters
of the defendant as necessary parties. It is further case of defendant /appellant
that plaintiff is defaulter as he failed to pay the monthly rent of the premises to
the defendant for more than two months since from the month of September
2006. It is further case of defendant /appellant that the defendant in need of
fund for the marriage of his daughter namely Sunita requested to the plaintiff
for giving loan of Rs. 1,00,000/- and the plaintiff asked the defendant that he
has to execute an agreement in favour of the plaintiff as being security and on
repayment of the said loan amount to the plaintiff he will return back original
copy of agreement to the defendant. It is further case of defendant /appellant
that believing the assurance of the plaintiff true and correct he executed the
agreement but there was no agreement between him and plaintiff for sale of
the premises in possession of the plaintiff.
It is further case of defendant appellant that he is coming from the
Bengali community and he used to write and read only Bengali Language and
having some knowledge of English and the plaintiff in connivance with the
witness namely Sadhu Dutta and Jagannath Dey who are cousin of the
defendant fraudulently keeping him dark took his signature over the agreement
for sale without read over and explained its contents to the defendant. It is
further case of defendant /appellant that he had received only RS.1,00,000/- in
cash from the plaintiff as being refundable loan on the day of putting his
signature over the document shown executed on 6.09.2006 and prior to that he
had received Rs. 1,00,000/-as being security against the premises let out to the
plaintiff at the time of the executing rent agreement on 19.07.2007.
It is further case of defendant /appellant that only one copy of the said
agreement was prepared and no copy was supplied to the defendant and in fact
he had never appeared before the Notary Public on 07.09.2006 when the
alleged document dt. 06.09.2006 was notarized. It is further case of defendant
/appellant that the plaintiff no point of time ever requested him for making any
further payment to him nor any alleged registered Pleader Notices were ever
received by him. It is further case of defendant /appellant that on several times
he requested to the plaintiff that he is willing to repay his amount but could not
able to pay amount in one time rather he will pay the said amount by
installment but the plaintiff did not agree to receive back money. It is further
case of defendant /appellant that the property mentioned in the Schedule-I of
the plaint is the property of defendant's father and after death of his father the
defendant and his sisters being legal heirs and successors have been jointly
inherited the same having equal right and interest thereon and there have been
no partition of the schedule-I property of the plaint in between the defendant
and his sisters and the defendant is not solely entitled over the property
mentioned in schedule-I of the plaint to sale the same and as such the alleged
agreement for sale dt. 06.09.2006 cannot be enforced under law unless the
sisters of the defendant would not agree to sell the said property with the
defendant. It is further case of the defendant/ appellant that plaintiff is no
doubt in possession of land mentioned in schedule-I of the plaint but he was
never come in possession thereof as being intended purchaser rather is in
possession thereof being tenant under the defendant. It is further case of the
defendant /appellant that there is no valid cause of action for the suit and fact
the cause of action will arise only after expiry of the alleged agreement to sale
dated 06.09.2006.
7. The learned trial court has framed ten issues to decide the said suit.
8. The learned court has appreciated the oral evidence of the PWs as well
as DWs including the documents and found that the defendant is the land lord
and the plaintiff is tenant in respect of the suit property and the plaintiff is in
possession over the same. It was found by the learned court that it is an
admitted fact that the alleged agreement dated 6.09.2006 bears signature of
the defendant/ plaintiff as witnesses that is PW-1 Manik Singh Choudhary, PW-2
Jagannath Dey and PW-3 Sadhu Charan Dutt and the recitals of the said
agreement dated 06.09.2006 was marked as Exhibit -1 which was found to be
an agreement for sale of the suit property executed by the defendant Shiv
Shankar Dey in favour of the plaintiff Damodar Ram. The learned court has
found from the records that Rs.2,51,000/- consideration amount was fixed and
Rs.2,00,000/- the defendant has received as advance and promised to execute
the registered sale deed within three years from the said agreement. The
defendants have denied about the execution of the said agreement and the
allegations have been made of fabricating the said agreement but the learned
court has found that it is an admitted case of the parties that the plaintiff is
tenant in respect to suit property which was let out by the defendant and
Kirayanama was executed by the defendant in favour of the plaintiff on
19.07.2004 and the said Ikrarnama dated 19.07.2004 was marked as Exhibit-4.
On that document, the signature of both the sides have been made which was
in Hindi. The defendant has nowhere pleaded that he is not able to understand
the content of the said Kirayanama. DW-2 has admitted in his evidence that he
has executed the said Ikrarnama which has been denied further. For
defendant's share the Ikrarnama was entered into and in view of that the
learned court has found that the sisters were not the necessary party.
Considering all these aspects, the learned court has been pleased to dismiss the
suit by the judgment dated 10.3.2011 decree signed on 18.3.2011.
9. Aggrieved with the said judgment, the appellant/ defendant has
preferred Civil Appeal No.67 of 2019 which was dismissed by the judgment
dated 06.07.2024. The first appellate court made the points to decide the same.
The first appellate court has further appreciated the deposition of PWs and DWs
as well as the documents marked as Exhibits. The first appellate court after
appreciating the oral evidence as well as the documentary evidence has found
that it was the admitted case of both the parties that the land including building
of pucca room bearing plot nos.3750 measuring about ½ decimal under Khata
no.107 of Mauza-Chas, Mouza No.30 specifically described in Schedule-I of the
plaint belonged to the defendant and defendant on 19.06.2004 let out the
aforesaid land including the building/pucca room on monthly rent of rs.500/- to
the plaintiff after taking as security money a sum of Rs.1,00,000/- and since
then the plaintiff was carrying his business in the name and style of "Super
Saran Band". The plaintiff has also made out his case that in the first week of
September 2006 the defendant felt need of money, made proposal before the
plaintiff for sale of the aforesaid schedule land and the price of the suit land
was fixed at Rs.2,51,000/- in which Rs.2,00,000/- was received by the
defendant as advance regarding its agreement between the parties was
executed on 06.09.2006. On the other hand, the appellant/defendant has
stated that the land does not belong to him exclusively and it is joint property
of him and his sisters and rather he need money for marriage of his daughter
has requested plaintiff to give Rs.1,00,000/- as loan and pursuant to that the
said agreement was executed. DW-1 has admitted in cross examination that his
cross examination in chief which is in Hindi and he can understand Hindi and he
can read it seeing his statement his examination in chief was prepared. He has
further admitted that the agreement relating to rent was got prepared by the
plaintiff and it bears his signature as well as agreement dated 6.9.2006 which is
Exhibit -1 bears signature of each at every page and in light of that on perusal
of Exhibit-1 which is agreement dated 06.09.2006 the learned court has found
that the defendant has clearly posed himself that he is exclusive owner of the
suit property and it is also in his possession. In addition to that none of the
accused has also appeared before the learned court objecting that the
defendant cannot sell the suit property because the suit property is a joint
property of co-sharers. Exhibit-5 was the sale deed No.7843 dated 23.08.2011
executed by the defendant whereby he has sold the land to another purchaser
Smt. Mallika Dey mentioning that he exclusively owns the property after
partition which also shows that after partition the defendant was in exclusive
holding right, title, interest and possession over the suit land which he agreed
to sell to the plaintiff Damodar Ram. In light of these facts and appreciation the
learned appellate court has found that the agreement dated 06.09.2006 is
executed.
10. In view of the above, the law points tried to be made out by the learned
counsel for the appellant have been dealt by the learned trial court as well as
the learned first appellate court. There is no error in the facts and both the
learned courts have given cogent reason of coming to that conclusion and no
perversity has been shown by the learned counsel for the appellant and it is
well settled that in the second appeal the High Court is not required to
re-appreciate the evidence and only on the ground of substantial question of
law, the Second Appeal can be admitted. There is no substantial question of law
involved in the present Second Appeal, and as such, S.A. No.163 of 2024 is
dismissed.
11. Pending petition, if any, also stands disposed of, accordingly.
( Sanjay Kumar Dwivedi, J.)
SI/,
