Mahabir Tiwary vs State Of Jharkhand Through The Deputy ...
2025 Latest Caselaw 6869 Jhar

Jharkhand High Court

Mahabir Tiwary vs State Of Jharkhand Through The Deputy ... on 14 November, 2025

Author: Anubha Rawat Choudhary

Bench: Anubha Rawat Choudhary

                 IN THE HIGH COURT OF JHARKHAND AT RANCHI

                                  F.A. No. 138 of 2023

              Mahabir Tiwary, aged about 62 years, son of Late Shivdut Tiwary,
              resident of Opposite Jharkhand Police Academy, Ranchi Patna
              Highway, Village- Sarley, P.O.- Sarley, P.S.- Sadar, District-
              Hazaribag                        ...     ...     Plaintiff/Appellant
                                        Versus
              1. State of Jharkhand through the Deputy Commissioner,
                 Collectorate, P.O.- Hazaribag, P.S.- Sadar, District- Hazaribag.
              2. Khasmahal Officer, Collectorate, P.O.- Hazaribag, P.S.- Sadar,
                 District- Hazaribag.
              3. Lekha Lahiri wife of Late Ranjit Lahiri
              4. Arjit Lahiri son of Late Ranjit Lahiri
                 Both residents of 28, Lake Land Country Club, District Howrah,
                 P.O. & P.S.- Howrah, West Bengal.
                                        ...        ...       Defendants/Respondents
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CORAM :HON'BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY

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For the Appellant : Mr. Sandeep Verma, Advocate For the Resp. Nos. 1 & 2 : Mr. Kanishka Deo, AC to GP-IV

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19/14.11.2025 Learned counsel for the parties are present.

2. The case has been argued on the last date and the matter has been posted today for further dictation .

3. As per the written statement of the defendant nos. 1 and 2, their further case before the learned trial court was as under:

I. The Building lease Holding No. 242 Plot No. 58/1564 area 1 acre and orchard lease holding no. 243 plot no. 58/1566 area 2.04 acres was renewed in the name of lessees Ranjit Lahiri and Dr. Avijit Lahiri for the period from 01.04.1979 to 31.03.2008 and the renewal of building lease for the period from 01.04.2008 to 31.03.2038 was under process.

II. The order of the Deputy Secretary, Department of Revenue and Land Reforms, Jharkhand, Ranchi for renewal of the orchard lease holding no. 243 plot no. 58/1566 area 2.08 acres for the period from 01.04.2008 to 31.03.2038 was received but deed of lease was not yet registered till that date.

III. It was the case of the defendant nos. 1 and 2 that original defendant no. 3 had no right to transfer the land without permission of the competent authority of the Government of Jharkhand and that the office of Khas Mahal Officer, Hazaribagh had not received any application for permission to transfer the land of the B.L. holding lease or orchard holding lease. The said defendants stated that they had no information about the agreement to sale dated 17.12.2014 between the plaintiff and the original defendant no. 3 or with regard to payment of any consideration amount with respect to schedule- A or schedule-B property. It was their stand that the original defendant no. 3 had no right to execute any agreement with respect to the Khas Mahal lease holding no. 242 and 243 of Mouza Korrah in favour of the plaintiff without permission of the Deputy Commissioner, Hazaribagh.

IV. It was also mentioned that on enquiry of the lands under holding no. 242(BL) and holding no. 243(orchard) by the officials of Khas Mahal, it was found that lessees do not reside in the residential house constructed over the B.L. holding lease land, rather two persons namely Deonandan Lakra and Ashok Mehta live therein as caretaker of the premises.

4. The learned trial court framed the following issues for consideration:

"(i) Whether the present suit is maintainable in it's present form in law and in fact?

(ii) Whether the suit is bad for mis joinder and non-joinder of present parties?

(iii) Whether there is any cause of action for the present suit?

(iv) Whether the suit is bad for as per the provision of Specific Relief Act, 1963?

(v) Whether there is any cause of action in present suit?

(vi) Whether the suit is properly valued?

(vii) Whether the defendant no. 03 had any right to execute any agreement in respect of schedule 'A' and schedule 'B' land with the plaintiff?

(viii) Whether the plaintiff is entitled for the relief as prayed by him?"

5. The plaintiff led both oral and documentary evidences which are as follows:

Oral Evidences:

            Sl No.      Name                            Plaintiff Witness
            1           Mahabir Tiwary                  P.W. 01
            2           Ranjan Kumar Singh              P.W. 02


Documentary evidences:
     Sl.        Description       of         the Date      of Exhibit Number
     No. Documents                                 Admission
     01         Agreement dt. 07.03.2013           23.01.2023 Ext. No. 01
     02         Agreement dated 17.12.14           23.01.2023 Ext. No. 01/01
     03         Legal notice u/s 80 CPC 23.01.2023 Ext. No. 02
                dt. 17.01.2017
     04         Legal         notice         dt. 23.01.2023 Mark X
                29.04.2016

                8,00,000/-       &          Rs.
                9,00,000/- dt. 03.04.2013
     06         Bank statement of Rs. 27.01.2023 Ext. No. 03/01
                4,00,000/-       &          Rs.
                4,00,000/- dt. 04.05.2013
     07         Bank Statement of Rs. 27.01.2023 Ext. No. 03/02
                7,00,000/- Dt. 10.06.2013
     08         Bank statement of Rs. 27.01.2023 Ext. No. 03/03
                4,00,000/-       &          Rs.
                4,00,000/-                 dated
                17.12.2014



      09    Bank      Statement       Dt. 14.02.2023 Ext. No. 03/04
           30.10.2015 to 16.05.2017

           167 dated 15.04.2023

6. So far as defendants are concerned, no oral and documentary evidence has been adduced on behalf of the defendant nos. 1 and 2 and the proceeding against other defendants i.e., defendant no. 3 and 3(a) was ex-parte.

7. The learned trial court first decided the issue no. (vii) and (viii) and held that the plaintiff was neither willing nor ready to perform his part of the contract and also held that the original defendant no. 3 had no right to execute the agreement of sale in favour of the plaintiff for the Khas Mahal land and the agreement itself was not capable of being implemented as it was neither certain nor capable of being made certain. The learned court accordingly held that the agreement was a void document which could not be enforced by law. Accordingly, issue nos. (vii) and (viii) were decided against the plaintiff.

8. While deciding issue nos. (i) to (vi), the learned court held that the suit was not maintainable in the present form; there was no cause of action to file the suit; and so far as non-joinder of necessary parties and the valuation of the suit was concerned, the defendants failed to adduce relevant evidence on the point. Ultimately, the suit was dismissed by the impugned judgment.

Arguments of the appellant

9. Learned counsel for the appellant, while assailing the impugned judgment, has submitted that the readiness and willingness to perform on the part of the plaintiff was duly proved. He has submitted that the statements of the bank accounts were produced to show payment made earlier and also to show the readiness and willingness to perform the remaining part of the contract. He has further submitted that the availability of the fund with the plaintiff was also proved which was the bank account transaction details of M/s Maa Lakshmi Buildcon

Pvt. Ltd. in which the plaintiff was a director and was also the authorized signatory.

10. The learned counsel further submits that so far as renewal of orchard lease is concerned, order for renewal of the same was passed way back on 20.05.2013 and the requisite amount of Rs. 5,78,381/-

was also deposited by Avijit Lahiri and the application for renewal of lease was pending consideration which is apparent from the letter dated 16.02.2015 issued by the Deputy Secretary of the Government of Jharkhand to the Deputy Commissioner, Hazaribagh in which the case number being 48 of 2007-08 along with other case numbers has also been mentioned.

11. However, during the course of arguments, it transpired that there is nothing on record that application for grant of lease to the plaintiff was ever filed by the original defendant no. 3 and admittedly, the renewal of lease with respect to the orchard was yet to be registered. Further, it is not in dispute that Ranjit Lahiri was original defendant no. 3 but as per the case of the plaintiff himself, the Khas Mahal lease was in favour of Ranjit Lahiri and Avijit Lahiri and the aforesaid amount of Rs. 5,78,381/- was also deposited by Avijit Lahiri .

12. At this, the learned counsel for the appellant has clarified the position by submitting that the agreement of sale was in relation to only half share of the original defendant no. 3. The learned counsel has further submitted that non-renewal of lease by itself is not an impediment in grant of relief seeking specific performance of contract. For this purpose, the learned counsel has relied upon the judgment passed by the Hon'ble Supreme Court reported in (2007) 10 SCC 595 (Vishwa Nath Sharma v. Shyam Shanker Goela and Another) and has submitted that where the vendor has agreed to sell the property which can be transferred only with the sanction of some government authority, the court has the jurisdiction to order the vendor to apply to the authority within a specified period, and if the sanction is forthcoming, to convey to the purchaser within a certain time. He submits that it has been held that there is always an implied covenant

on the part of the vendor to do all things necessary to effect transfer of property regarding which he had agreed to sell the same to the vendee and permission is not a condition precedent to grant a decree for specific performance.

13. Learned counsel for the appellant has also relied upon the judgment reported in 2010 SAR (Civil) 645 (Laxman Tatyaba Kankate and Another Vs. Taramati Harishchandra Dhatrak). He has referred to paragraph 2 of the said judgment to submit that the 1 st appellate court in the said case had granted the decree for specific performance of contract upon grant of permission of the competent authority as contemplated under section 12(c) of the Maharashtra Re- settlement of Project Displaced Persons Act, 1976. The learned counsel has referred to paragraph 13 of the said judgment to submit that in the said case section 13(1)(c) of the Specific Relief Act, 1963 (hereinafter referred to as the "Act of 1963") has been taken into consideration which clearly postulates that where a person contracts to sell immovable property with an imperfect title and the property is encumbered for an amount not exceeding the purchase money, the purchaser has the right to compel the seller to redeem the encumbrance and obtain a valid discharge and then specifically perform the contract in its favour. The learned counsel has then drawn the attention of this Court to the provision of section 13(1)(b) of the Act of 1963 to submit that in a case where concurrence of other person is necessary for validating the title and they are bound to concur at the request of the vendor or lessor, the purchaser or lessee may compel such vendor to procure such concurrence.

14. By referring to aforesaid two judgments, the learned counsel for the appellant has submitted that even if the process of renewal of lease was not complete, the trial court was required to take into consideration section 13(1)(b) of the Act of 1963 to direct the defendant no. 3 to take all steps for the purposes of renewal of lease and also for grant of permission for transfer. He submits that finding of the learned trial court that the agreement was void in view of section 29 of the Indian Contract Act is not in accordance with law.

15. Learned counsel for the appellant has also relied upon the judgment passed by the Hon'ble Supreme Court reported in (2019) 6 SCC 233 (Beemaneni Mahalaxmi Vs. Gangumalla Appa Rao) (paragraph 14) to submit that if the vendor does not perform his part of the contract, then availability of balance consideration amount is inconsequential. Learned counsel for the appellant has submitted that the finding of the learned trial court on the point of readiness and willingness on the part of the plaintiff to perform his part of the contract is not in accordance with law when seen in the light of paragraph 14 of the aforesaid judgment.

16. Learned counsel for the appellant has then referred to another judgment on the same point which is reported in AIR 1970 SC 546 (Nathulal Vs. Phoolchand). He has referred to paragraph 6 of the aforesaid judgment to submit that it has been held that in order to prove that the purchaser was ready and willing, the purchaser need not necessarily produce the money or to vouch a concluded scheme for financing the transaction. The learned counsel for the appellant has submitted that the plaintiff had produced enough material on record to show the availability of fund which was enough to show readiness and willingness on the part of the plaintiff, but this aspect of the matter has not been properly considered by the learned court.

17. Learned counsel for the appellant has further submitted that the suit was not bad on account of non-joinder of necessary party, inasmuch as, the co-owner of the property namely, Avijit Lahiri was not party to the proceedings. He has submitted under section 44 of the Transfer of Property Act, it has been provided that where one of two or more co-owners of immoveable property legally competent to transfer his/their share of such property transfers his/their share or any interest therein, the transferee acquires such share or interest, and so far as is necessary to give effect to the transfer, the transferor's right to joint possession or other common or part enjoyment of the property, and to enforce a partition of the same, but the same is subject to the conditions and liabilities affecting at the date of the transfer with respect to the share or interest so transferred.

18. The learned counsel submits that it was only on account of legal necessity i.e., for his treatment that one of the two co-owners i.e., original defendant no. 3 entered into an agreement with the plaintiff. He submits that taking into consideration section 44 of the Transfer of Property Act, the suit was not bad for non-joinder of necessary parties. He has submitted that the plea of non-joinder of necessary parties has been rejected by the learned trial court also.

Argument of the respondent nos. 1 and 2

19. Learned counsel for the respondent nos. 1 and 2, on the other hand, has opposed the prayer and has relied upon the written statement filed by defendant nos. 1 and 2 before the learned trial court. He has further submitted that the lease of both the parties were not renewed, inasmuch as, in connection with orchard only permission was granted and the lease deed was yet to be executed by registration and so far as building lease is concerned, the application for renewal was still pending. The learned counsel has also submitted that no application for permission to transfer was filed by the original defendant no. 3 or his co-owner with respect to the suit property and accordingly, the arrangement made between the plaintiff and the original defendant no. 3 is not binding on the defendant nos. 1 and 2.

20. The learned counsel has also referred to section 13(1)(b) of the Act of 1963 and he submits that twin conditions are required to be satisfied to attract first part of the aforesaid section which has been relied upon by the learned counsel for the appellant. He has submitted that there is no dispute that concurrence is necessary, but at the same time, the defendant nos. 1 and 2 are not bound to concur at the request of the vendor. He has also submitted that they also have right to put certain terms and conditions as has been put in connection with renewal of the lease relating to orchard. The learned counsel submits that there is no concept of automatic renewal of lease upon filing of application and therefore, the terms and conditions of the agreement was itself uncertain and such uncertain agreement cannot be enforced through specific performance of contract. He submits that the learned court has rightly held that the agreement itself was void, inasmuch as,

no prior permission was taken from the defendant nos. 1 and 2 to deal with the property and the conduct of original defendant no. 3 and the plaintiff is not binding on the defendant nos. 1 and 2. He submits that ultimately the title vests with defendant nos. 1 and 2 and by praying for specific performance of contract, it is the property of the defendant nos. 1 and 2 which is the subject matter of consideration. Rejoinder argument of the Appellant

21. In response, the learned counsel for the appellant has referred to the judgment passed by this Court reported in 2003 (2) JLJR 293 (Jagat Nath Mukherjee and Others Vs. The State of Bihar and others) and submits that it has been held that renewal of Khas Mahal lease is a mere formality and the condition is that the application for renewal has to be submitted within time.

22. Arguments concluded.

23. Judgment is reserved.

(Anubha Rawat Choudhary, J.) Pankaj