Suresh Thakur (Died And Substituted ... vs Ira Mitra W/O Late Prafulla Chandra ...
2025 Latest Caselaw 5690 Jhar

Jharkhand High Court

Suresh Thakur (Died And Substituted ... vs Ira Mitra W/O Late Prafulla Chandra ... on 11 September, 2025

Author: Anubha Rawat Choudhary

Bench: Anubha Rawat Choudhary

                 IN THE HIGH COURT OF JHARKHAND AT RANCHI

                                    S.A. No. 178 of 2003

                1. Suresh Thakur (died and substituted vide order dated
                   17/07/2025)
                   1(i) Sunita Devi, widow of late Suresh Thakur
                   1 (ii) Rakhi Kumari
                   1(iii) Gudiya Kumari
                   Both daughters of Suresh Kumar, All are resident of Mohalla-
                   Ramnagar, P.O. Boddam Bazar, P.S. Sadar, Dist. Hazaribag
                2. Naresh Thakur
                3. Sunil Kumar Thakur
                4. Anil Kumar Thakur, 2,3,4 sons of late Goberdhan Thakur
                5. Pushpa Devi alias Pushpa Kumari
                6. Pratima Devi alias Pratima Kumari, 5,6 daughters of late
                   Goberdhan thakur
                7. Anima Devi alias Anima Kumari (substituted v.o.d. 15/12/2022)
                   7(i) Atul Kumar S/o Sheo Sharan,R/o Mohalla Kani Bazar, P.O.
                   Boddam Bazar, P.S. Sadar Town, Dist. Hazaribag
                8. Sunita Kumari
                   All resident of village Kadma, P.O. Boddom Bazar, P.S.
                   Katkamsandi, Dist. Hazaribag
                                         ... Plaintiffs/Respondents/Appellants

                                          Versus
                1. Ira Mitra W/o Late Prafulla Chandra Mitra, resident of Imlikothi,
                   Hazaribag, P.O., P.S. and Dist. Hazaribag (expunged vide order
                   dated 30.11.2007)
                2. Kusumlata Devi W/o Sri Bijay Kumar Agarwal
                3. Uma Devi W/o Sri Shanti Kumar Agarwal, No. 2 and 3 resident of
                   Bara bazar, P.O. P.S. and Dist. Hazaribag
                4. Smt. Chandra Basu D/o Late Prafulla Chandra Mitra and W/o Late
                   D. Basu, resident of 19, Bipinpal Road, P.O. Central Calcutta
                5. Smt. Ratna Bhandra, D/o Late Prafulla Chandra Mitra of 80-1-A,
                   Bonded Road, P.O. Hazra, Calcutta-19
                      ...             ...Defendants/Appellants/Respondents

                                ---

CORAM :HON'BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY

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For the Appellants : Mr. B.V. Kumar, Advocate For the Respondents : Mr. Ayush Aditya, Advocate

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16/11.09.2025 This appeal has been filed against the judgment dated 04.03.2003 (decree signed on 4.03.2003) passed by learned 6th District Additional and Sessions Judge, Hazaribag in Title Appeal No. 08 of 1992/18 of 2001 whereby the judgment passed by the learned Trial Cout has been set aside.

2. The Trial Court's judgment was passed on 29.02.1992 (decree signed on 10.03.1992) passed by the learned Sub Judge-I, Hazaribag in Title Suit No. 56 of 1984. The appeal was allowed and consequently the plaintiff is the appellant before this court. The case arises out of prayer for specific performance of contract of agreement of sale dated 06.10.1983 entered into between the original owner of the suit property who was a tenant in a portion of the suit premises .

3. The suit was filed seeking a decree that the sale deed executed by the defendant nos. 1 and 2 in favour of defendant nos. 3 and 4 vide Sale deed No. 5514 dated 06.04.1984 be declared null and void, illegal, invalid and not binding upon the plaintiff. A further relief was sought that the defendant nos. 1 and 2 be directed and ordered specifically to perform the agreement and all the acts necessary in law and a prayer was made for a decree of specific performance of contract and the defendant nos. 1 and 2 be ordered to execute the sale deed in favour of the plaintiffs.

4. This appeal was admitted for final hearing vide order dated 18.07.2006 on the following substantial questions of law: -

" Whether the lower appellate court has erred in holding that the time was essence of the contract, ignoring the clause which clearly provided that if the first party refuses to execute sale-deed within the time fixed then in that case the second party can move the court for appropriate relief and get the sale-deed executed? and whether learned lower appellate court erred in reversing the judgment and decree of the trial court in wrong perspective."

5. The specific case of the plaintiffs was that the plaintiffs were in occupation of the property in the ground floor as monthly tenant since 1953 and the defendant nos. 1 and 2 being the owners of the property approached the plaintiffs on 06.10.1983 and entered into an agreement of sale with respect to the suit property for a consideration of Rs. 30,000/-. The agreement was executed by both the parties on 06.10.1983. The plaintiff paid an amount of Rs. 5,000/-as a part of the

consideration as advance and the plaintiffs were in possession. It was asserted that pursuant to the agreement of sale on 06.10.1983 the plaintiffs were no longer tenant of defendant no. 1 and 2 and became the owner of the property by virtue of the agreement dated 06.10.1983. As per the agreement itself , the defendant no. 1 and 2 agreed to execute the sale deed of the suit property in favour of plaintiffs within six months from the date of the agreement i.e. 06.10.1983. It was the case of the plaintiffs that after the agreement, the plaintiff approached the defendant no. 1 and 2 many times to execute and register the sale deed, but the defendants on various pretext did not execute the sale deed and assured the plaintiffs that they will do the needful. The plaintiff waited as the defendants had given the assurance. However, 11.04.1984 the plaintiffs sent a registered notice to the defendant nos. 1 and 2 to execute the sale deed within a month, otherwise they will approach the court seeking specific performance of contract, but in spite of notice, the sale deed was not executed. It was further case of the plaintiffs that on 25.04.1984 the defendant nos. 1 and 2 sent a registered notice to the plaintiffs informing them that they have already sold the suit property to the defendant nos. 3 and 4 on 06.04.1984 and on the same day, plaintiffs also received the notice from the defendant nos. 3 and 4 informing him that they have purchased the suit property and hence they are entitled to receive the rent.

6. It was further case of the plaintiffs that on receiving the two notices, the plaintiff informed the defendant nos. 3 and 4 that defendant nos. 1 and 2 had no right to sell the property in view of the agreement of sale entered between the plaintiff and the defendant nos. 1 and 2 on 06.10.1983. The plaintiffs asserted that the deed executed on 06.04.1984 by the defendant nos. 1 and 2 in favour of defendant nos. 3 and 4 was illegal and void, invalid and not binding upon the plaintiffs and also asserted that from the date of the agreement i.e. 06.10.1983 the plaintiffs perfected right, title, interest and possession over the suit property. It was asserted in paragraph 12 to 15 that the plaintiffs had applied to the defendants to perform the agreement on

his part but the defendant no. 1 and 2 had not done so and they have refused to do so and that the plaintiffs were still ready to purchase the suit property and are ready to pay the balance consideration money of Rs. 25,000/- and were still ready and willing to specifically perform the agreement on their part. It was also asserted that the act of the defendant nos. 1 and 2 was wrong and that the defendant nos. 3 and 4 also do not have the right to purchase the property as they had full information that the defendant nos. 1 and 2 vide agreement dated 06.10.1983 have already contracted for sale to the plaintiffs.

7. A written statement was filed on behalf of defendant nos. 1 and 2 denying the agreement of sale. It was alleged that the agreement of sale was forged and fabricated.

8. In paragraph no. 17 of the written statement, it was asserted that the plaintiffs never applied to these defendants to specifically perform the alleged agreement nor there was any refusal as alleged, nor there was any occasion for the same. The statement with regard to readiness and willingness of the plaintiffs was also denied in paragraph 18 of the written statement. It was asserted that defendant nos. 3 and 4 are bonafide purchaser of the suit property. The statement made in paragraph 12 to 16 were denied.

9. A written statement was also filed by the defendant nos. 5 and 6 who adopted the written statement filed by the defendant nos. 1 and 2 and also asserted that even if court comes to a finding that there was an agreement of sale between the plaintiffs and defendant nos. 1 and 2 though not admitted, the defendant nos. 5 and 6 were not bound by the alleged agreement since the same has not been executed by defendants on behalf of the defendant no. 5 and 6 as a power of attorney holder on their behalf. Therefore, it was asserted that the agreement of sale cannot be enforced.

10. So far as defendant nos. 3 and 4 are concerned, they also filed a separate written statement and asserted that the alleged agreement dated 06.10.1983 was forged and fabricated. It was wholly incorrect to say that the plaintiffs were put in possession pursuant to the agreement of sale, rather the plaintiffs were already a tenant over the suit

property and that the plaintiffs never became the owner of the suit property by virtue of the alleged agreement. The defendant nos. 3 and 4 have stated that these defendants had no knowledge. These defendants also asserted that the agreement itself was forged and fabricated therefore the question of full information to these defendants of the alleged agreement did not arise at all.

11. The learned Trial Court framed the following issues for consideration in paragraph no. 5 which are as under:-

      (i)    Whether the present suit as framed is
             maintainable?

(ii) Whether the plaintiffs have valid cause of action for filing the present suit?

(iii) Whether the present suit is barred by the provisions of the Limitation Act?

(iv) Whether the present suit is barred by the provisions of the Specific Relief Act?

(v) Whether the present suit is barred by the principles of waiver, acquiescence and estoppel?

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

(vii) Whether the plaintiffs are entitled to get decree on the basis of the alleged contract dated 06.10.1983?

(viii) Whether the plaintiffs are entitled for any other reliefs?

12. The learned Trial Court after considering the materials on record was of the view that the agreement dated 06.10.1983 was duly executed and was a valid document and decreed the suit. On the point of readiness and willingness, the learned Trial Court recorded that the plaintiff had given legal notice and the plaintiff and had deposited the balance consideration amount before the court pursuant to the order of the court and was of the view that these aspects are strong in favour of the plaintiff. The learned court was of the view that the plaintiff was ready and willing to perform his part of the contract and ultimately decreed the suit.

13. So far as the learned 1st Appellate Court is concerned, the learned court observed that the point for consideration before the court was as to whether the impugned judgment passed by the learned

Trial Court was fit to be confirmed or was liable to be set aside on the grounds taken on behalf of the appellant.

14. The learned 1st Appellate Court scrutinized the materials on record and confirmed the finding of the learned Trial Court that the agreement dated 06.10.1983 was a valid document. Thereafter the learned court went on to examine the other ingredients which are required to be satisfied for seeking a specific performance of contract.

15. On the point of readiness and willingness, the learned 1st Appellate Court referred to the recital of the agreement dated 06.10.1983 and observed that it was crystal clear that the plaintiff had to deposit Rs. 25,000/- within six months from the date of alleged agreement of sale and examined the readiness and willingness of the plaintiff to perform his part of the agreement in terms of the agreement itself.

16. The appellant before the learned 1st appellate court urged that the period of six months in exhibit-4 (agreement dated 06.10.1983) expired on 05.04.1984 and there was absolutely no evidence to prove that the plaintiff was ready and willing to get the sale deed executed within the period of six months; even the notice was given by the plaintiff after expiry of six months i.e. on 11.04.1984. The capacity of the plaintiff to pay was also considered while observing that at the time of making payment of Rs. 5000/- on the date of agreement, the plaintiff had taken loan of Rs. 1,000/- and the remaining consideration amount was Rs. 25,000/-. The learned court also considered the oral evidence and ultimately came to a finding that after expiry of six months from 06.10.1983, defendant nos. 1 and 2 were not liable to execute any such agreement of sale in favour of the plaintiffs and that the plaintiffs had failed to prove his readiness and willingness to pay the amount within a period of six months. It was recorded that title of defendant nos. 1 and 2 was clearly admitted and undisputed and the title passed on defendant nos. 3 and 4 on 06.04.1984 when the sale deed was executed by defendant nos. 1 and 2 in favour of defendant nos. 3 and 4 and till then no steps were taken by the plaintiffs to perform their part of the contract and as such the defendant nos. 1 and

2 had every right to transfer their suit property in favour of defendant nos. 3 and 4. The learned Court ultimately held that the plaintiffs were not able to prove the other ingredients for grant of specific performance of contract and therefore allowed the appeal. Arguments of the appellants.

17. The learned counsel for the appellants (plaintiffs) while assailing the impugned judgment has submitted that no issue was framed with regard to readiness and willingness on their part of the plaintiffs to perform his part of the contract, He has further submitted that the period of six months from 06.10.1983 would have expired on 06.04.1984 and 06.04.1984 would be counted as a last date and therefore the sale deed executed on 06.04.1984 cannot be said to be beyond the period of six months. He has also submitted that the suit was filed on 21.05.1984 and on 01.06.1984, a direction was issued by the court to deposit the balance consideration amount which the plaintiffs duly deposited on 10.07.1984. The learned counsel has submitted that when the defendants were challenging the very validity of agreement dated 06.10.1983, by stating the same to be a forged and fabricated document, the parties did not join issues with respect to the readiness and willingness to perform the agreement and therefore the learned 1st Appellate court has gone beyond the frame of the suit to come to any finding to this effect.

18. The learned counsel has submitted that there was no pleading that the time was the essence of the contract and there was a clear stipulation in the agreement that if the sale deed is not executed within six months, it will be opened to the plaintiffs to seek specific performance of contract. The learned counsel submits that the suit was immediately filed after expiry of six months on 21.05.1984 although the period of limitation for filling the suit would have been three years from the date of cause of action. However, the immediate step on behalf of the plaintiffs to file the suit and also deposit of balance consideration amount of Rs. 25,000 upon the direction issued by the court indicates that the plaintiffs were throughout ready and willing to perform his part of the contract. The learned counsel has referred to

the judgement passed by the Hon'ble Supreme Court reported in (1977) 2 SCC 539 (Govind Prasad Chaturvedi versus Hari Dutt Shastri and Another) Paragraph 5 and 6 and has referred to paragraph 5 thereof to submit that the fixation of period within which the contract has to be performed does not make the stipulation as to time is the essence of the contract. When the contract relates to sale of immovable property, it would normally be presumed that the time is not the essence of the contract. The learned counsel submits that the aforesaid judgment fully applies to the facts of the present case and the time cannot be said to be the essence of the contract and therefore the substantial question of law is fit to be answered in favour of the appellants.

19. The learned counsel has submitted that the learned 1 st Appellate court has reversed the judgment and decree of the learned Trial Court in wrong perspective considering the point in connection with which no issue was framed by the learned Trial Court. The learned counsel has also relied upon the judgment passed by the Hon'ble Orissa High Court reported in AIR 1952 Orissa 279 paragraph nos. 7 to 10 in order to substantiate his argument that the six months from the date of agreement i.e. 06.10.1983 would have expired not on 05.04.1984 but on 06.04.1984 and 06.04.1984 being the last date of six months, the sale deed could not have been executed on that day. The learned counsel submits that even till 12 O' clock midnight of 06.04.1984, the agreement of sale dated 06.10.1983 could have been acted upon but the defendants did not wait and ultimately the sale deed was executed by defendant nos. 1 and 2 in favour of defendant nos. 3 and 4 on 06.04.1984.

Submission on behalf of the respondents

20. The learned counsel appearing on behalf of the respondents has submitted that although no specific issue was framed in connection with readiness and willingness to perform the part of the contract, but there was specific pleading on the part of the plaintiffs in paragraph 12,13 and 14 regarding his readiness and willingness to perform his part of the contract and there was a denial by defendant nos. 1 and 2.

The learned counsel has submitted that even the parties joined issues on this point at the time of evidence before the court and the learned Trial Court specifically recorded that there was readiness and willingness on the part of the plaintiffs to perform his part of the contract and this finding was based on two aspects one was that legal notice was given on 11.04.1984 and that the plaintiff had deposited balance consideration amount before the court on 10.07.1984. He submits that both these incidents are admittedly after the expiry of the period of the agreement which expired on 05.04.1984 from 06.10.1983. The learned counsel submits that any conduct after the agreement is of no consequence.

21. On the point of readiness and willingness, the learned counsel has relied upon the judgment passed by the Hon'ble Supreme Court reported in (2023) 11 SCC 775 (U.N. Krishnamurthy versus A.M. Krishnamurthy) and has referred to paragraph 46 and 47 of the said judgment to submits that merely deposit of balance consideration amount later on and also deposit of the amount in the court are not proof of readiness and willingness, rather the plaintiff has to prove his readiness and willingness to perform his part of the contract on the date of execution of the agreement till the date of decree which is a condition precedent for grant of relief of specific performance of agreement .

22. The learned counsel has referred to the evidence of P.W. 2 as well as P.W. 5(plaintiff) to submit that it is an admitted fact that out of Rs. 5,000/- which was the initial deposit, Rs. 1,000/- was taken as loan. He has referred to the evidence of P.W. 2 at paragraph 11 who stated that the plaintiff had sold his property to deposit the balance consideration amount before the court pursuant to the order of the court. The learned counsel submits that this itself goes to show that the plaintiff was not ready and willing to perform his part of the contract during the subsistence of the contract. The learned counsel has also submitted that although there is averment of readiness and willingness, but there is no averment of readiness and willingness on

the part of the plaintiff to perform his part of the contract within the period of six months of the contract.

23. The learned counsel has again relied upon the aforesaid judgement passed in the case of U.N. Krishnamurthy (supra) paragraph 36 to submit that the readiness and willingness is to be proved right from the date of the contract. In the present case, there is neither any pleading nor any proof with regard to the readiness and willingness to perform his part of the contract during the period of the six months which was stipulated period of the contract.

24. The learned counsel has again relied upon the aforesaid judgement passed in the case of U.N. Krishnamurthy (supra) paragraph 30 to submit that mere filling of suit within a short period after expiry of six months will not be a reason to come to a conclusion that the plaintiff was ready and willing to perform his part of the contract. He submits that the same could merely be a desire to get specific performance of contract.

25. The learned counsel for the respondents has referred to the judgment passed by the learned 1st Appellate Court and has submitted that the learned 1st Appellate Court considered the evidence of D.W. 4 and his cross examination at length at internal page 18 of the judgment wherein D.W. 4 had stated that he met with the plaintiff and he disclosed to him that he was likely to purchase the suit property but the plaintiff did not whisper anything about the alleged agreement. The learned counsel submits that on the basis of this, the learned 1 st appellate court has come to a finding that defendant nos. 3 and 4 were bonafide purchasers of the suit property. The learned counsel has also submitted that no substantial question of law has been framed so far as point of readiness and willingness of the plaintiff is concerned. The question of law essentially relates to the fact that as to whether the time was the essence of the contract. He has submitted that for that purpose, the contract can be looked into and on the face of the contract, it appears that the time was the essence of contract.

26. The learned counsel has placed the exhibit-4 i.e. agreement of sale and has submitted that in order to come to a conclusion as to

whether the time was the essence of the contract, three paragraphs of the agreement would be relevant.

(i) That the first party now agree and bind himself that within six months from this date will execute the sale deed in respect of Schedule-A property in favour of second party and the same be presented for registration and he would receive the rest of Rs. 25,000/- the consideration money from the second party.

(ii) That, if the second party does not get the sale deed executed by the first party in fixed time, then advance money of Rs. 5,000/- paid to the first party will be forfeited. From this date, the first party is not entitled to get rent from the second party.

(iii) That if the first party refuses to execute sale deed in respect of schedule-A property to the second party within time fixed, then in that case, the second party is free to move the court and get the sale deed executed.

27. The learned counsel submits that all the steps were required to be taken within a period of six months. The learned counsel has also submitted that extract of the agreement has been recorded by the first appellate court also.

Rejoinder of the appellants.

28. In response, the learned counsel for the appellants has referred to the evidence of P.W. 5 and has submitted that the plaintiff has specifically stated in paragraph 6 of his evidence that the defendant nos. 3 and 4 had due knowledge about the agreement of sale entered into between the plaintiff and the defendant nos. 1 and 2. The learned counsel has also submitted that the plea of bonafide purchaser is not the subject matter of consideration in the present case considering the scope of the substantial question of law.

29. Arguments concluded in S.A. No. 178 of 2003.

30. Post this case for judgment on 18.09.2025.

(Anubha Rawat Choudhary, J.) Binit