Sri Dulal Chandra Deb vs Smt. Gita Das
2021 Latest Caselaw 1199 Tri

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                     HIGH COURT OF TRIPURA
                         AGARTALA
                        RFA 19 of 2018
     Sri Dulal Chandra Deb,
     son of late Durga Kumar Deb, resident of Madhya Pratapgarh,
     P.S. A.D. Nagar, District- West Tripura
                                                                  ....Appellant
                   VERSUS
1. Smt. Gita Das,
     wife of late Radha Govinda Das, resident of East Pratapgarh (Shil Tilla),
     P.S. East Agartala, District- West Tripura
2. Sri Ranjit Das,
     son of late Radha Govinda Das, resident of East Pratapgarh (Shil Tilla),
     P.S. East Agartala, District- West Tripura
3. Sri Sanjit Das,
     son of late Radha Govinda Das, resident of East Pratapgarh (Shil Tilla),
     P.S. East Agartala, District- West Tripura
4. Sri Sujit Das,
     son of late Radha Govinda Das, resident of East Pratapgarh (Shil Tilla),
     P.S. East Agartala, District- West Tripura
5. Sri Ajit Das,
     son of late Radha Govinda Das, resident of East Pratapgarh (Shil Tilla),
     P.S. East Agartala, District- West Tripura
6. Sri Sunil Pal,
     son of late Nityananda Pal, resident of Jagaharimura, P.S. East Agartala,
     District- West Tripura, also Netaji Chowmuhani, P.S. West Agartala,
     District- West Tripura
7.a. Smt. Anita Paul,
     wife of late Haradhan Paul, resident of Kanai Saha Lane, opposite Kalibari,
     near Netaji School (Gangail road), P.S. West Agartala, Dist- West Tripura
7.b. Smt. Sarbani Paul,
     wife of Sri Arnab Datta, daughter of late Haradhan Paul, resident of Kanai
     Saha Lane, opposite Kalibari, near Netaji School (Gangail road), P.S. West
     Agartala, Dist- West Tripura
7.c. Sri Samir Paul,
     son of late Haradhan Paul, resident of Kanai Saha Lane, opposite Kalibari,
     near Netaji School (Gangail road), P.S. West Agartala, Dist- West Tripura
8. Sri Sudir Basu,
     son of late Padma Mohan Basu, resident of Netaji Subhash road (Netaji
     Chowmuhani), P.S. West Agartala, Dist- West Tripura
9. Smt. Lalita Paul,
     wife of late Laxmi Das, resident of Kobrakhamar, Jirania, near
     Kobrakhamar Bazar, P.O. + P.S. Jirania, District- West Tripura
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 10. The State of Tripura,
     Represented by the Principal Secretary, Revenue Department, Government
     of Tripura, Civil Secretariat, Capital Complex, P.O. Kunjaban, Agartala,
     District- West Tripura
 11. The District Magistrate & Collector,
     West Tripura, Agartala
 12. The Sub-Divisional Magistrate,
     Sadar, Agartala
                                                             ... Respondents

      For Appellant (s )                  :     Mr. PK Dhar, Sr. Advocate
                                                Mr. RG Chakraborty, Adv.
                                                Mr. K. Paul, Advocate
      For Respondent (s)                  :     Mr. Raju Datta, Advocate
      Date of hearing & delivery of
      Judgment & order                    :     03.12.2021
      Whether fit for reporting           :     Yes / No
                   HON'BLE MR. JUSTICE ARINDAM LODH
                         JUDGMENT & ORDER

This is a First Appeal preferred by the original plaintiff challenging the judgment and decree dated 31.05.2018 passed by the learned Civil Judge, Senior Division, Court no. 1, West Tripura, Agartala, in connection with case no. Title Suit 09 of 2014.

2. When the matter is taken up for hearing both Mr. RG Chakraborty, learned counsel for the appellant and Mr. Raju Datta, learned counsel for the respondents have appeared. Mr. Datta, learned counsel has pressed the court to dispose of the appeal since learned counsel for the appellant had already taken so many adjournments on the previous occasions. Mr. RG Chakraborty, learned counsel appearing on behalf of the appellant has submitted that he is not in a position to conduct the case for the reason that the appellant has taken away the file from him. I do not find in the record that Mr. Chakraborty, learned counsel has ever informed the said fact to the Registry of this court. I have verified the order sheets of the case record. It is revealed that from the very beginning Mr. Chakraborty, learned counsel was negligent in conducting the case. From the order dated 01.11.2019 it Page 3

is evident that Mr. Chakraborty, appeared before the Lowazima Court to take steps within a period of 7 days, otherwise, the matter would be placed before the court under the heading 'non-prosecution'. Only thereafter steps were taken. From the order dated 09.12.2020 it comes to light that Mr. Chakraborty, learned counsel appearing before the court on 09.12.2020 had prayed for time and the matter was listed on 09.03.2021. Again, on 09.03.2021 when the matter came up before this court, the case was adjourned at the request of Mr. Chakraborty, learned counsel. From the order dated 09.07.2021, it appears that when the matter was taken up for hearing none of the learned counsel for the appellant including Mr. Chakraborty did not appear before the court. The matter was also listed on 08.10.2021 when it was again adjourned, and thereafter, the case has been listed today for hearing. Mr. Raju Datta, learned counsel for the respondents has pressed for hearing the appeal, but, Mr. Chakraborty, learned counsel had taken the plea that the file had been taken away. This court has noticed that the appellant is represented by 3 (three) counsels. There are other two counsels, but, none of them has appeared. It is a matter of 2018. As such, this court after accepting the submission of Mr. Datta, learned counsel for the respondents has asked Mr. Datta, learned counsel to make his submissiions regarding facts of the case. Till such submissions advanced by Mr. Datta, learned counsel for the respondents, Mr. RG Chakraborty, learned counsel was standing in the court and prayed for time. However, after hearing Mr. Datta, learned counsel, I deem it imperative to go into the root of the case and to peruse the entire record available in the paper book. I have perused the pleadings and evidences, as adduced by the parties to the suit and have formed an opinion that the case may be decided on the basis of materials available in the record before the court. As such, I have proceeded to decide the matter.

Mr. Datta, learned counsel in presence of Mr. RG Chakraborty, learned counsel has argued the case at length and also concluded his submissions. At this juncture, Mr. RG Chakraborty, learned counsel has left the court without taking part in the argument. Accordingly, I have started to dictate the judgment. I have gone through the pleadings submitted by the plaintiff as well as the defendants. I have taken note of the documents under Exhibits. Perused the issues and the Page 4

evidences as adduced by the plaintiff and the defendants in support of their respective pleadings.

Before taking up of such decision, this court has kept the absence of the appellant in mind so that no injustice is caused to him because in such a case, the responsibility shouldered upon the court is significantly more, and, I have proceeded to determine the issues involved in the suit keeping in mind the well known maxim (actus curiae neminem gravabit).

3. Briefly stated, the plaintiff had instituted a suit for declaration and for specific performance of contract. The suit land originally belonged to one Sri Sunil Pal i.e. the defendant No.6 and by virtue of Registered Sale Deed No.15273 dated 13.06.2000, the predecessor of the defendant Nos.1 to 5 namely Radha Govinda Das since deceased purchased the suit land from the defendant No.6 on valuable consideration alongwith delivery of possession. Radha Govinda Das since deceased during his lifetime entered into an agreement for sale with the plaintiff on 24.08.2008 at Rs.5,45,000/- and the plaintiff paid Rs.10,001/- only in cash to the said Radha Govinda Das, since deceased. There was a condition in the said Agreement for Sale that within 4 (four) months the plaintiff would pay the balance amount of consideration and after receiving the same Radha Govinda Das since deceased would execute and register the appropriate sale deed in favour of the plaintiff. It was further agreed that on receiving new khatian in favour of late Radha Govinda Das, the plaintiff would make payment of the balance amount of consideration, but, Radha Govinda Das, since deceased failed to produce any khatian in his name, as such, the matter was delayed and no registered sale deed could be executed by said Radha Govinda Das. In the year 2011 said Radha Govinda Das has died leaving behind the present defendant Nos. 1 to 5 as his legal heirs and the plaintiff also approached the defendant Nos. 1 to 5 several times to have the registered sale deed in his favour, but, no result. On 31.12.2012 there was a sitting amongst the plaintiff and the legal heirs of Page 5

Late Radha Govinda Das wherein it was settled that within a period of one year the defendant Nos.1 to 5 would arrange for record of right in their names after collecting the death certificate and survival certificate from the appropriate authority, and after that they would receive the balance amount of consideration from the plaintiff and they would execute and register the appropriate Sale Deed in favour of the plaintiff. Unfortunately, the defendant Nos. 1 to 5 did not take any step, as such, on 20.02.2013 the plaintiff requested the defendant Nos. 1 to 5 to make a registered Sale Deed on receiving the balance amount of consideration, but, they assured the plaintiff to wait for some time. The plaintiff again approached the defendant Nos. 1 to 5 on 07.03.2013 and offered the balance amount of consideration and requested them to execute and register the Sale Deed in his favour over the suit land, but, defendant Nos. 1 to 5 started to avoid the plaintiff. It is further case of the plaintiff that the plaintiff was/is always ready and willing to purchase the suit land, and he is offering the balance amount of consideration to the defendant Nos.1 to 5 for getting the registered Sale Deed. The plaintiff served a notice under section 80(1) of the Code of Civil Procedure read with section106 of the Transfer of Property Act dated 08.04.2013 upon the defendant Nos.1 to 5 and 10 to 12 to which the defendant Nos. 1 to 5 replied vide dated 16.04.2013 that their predecessor purchased the suit land by registered Sale Deed No.15273 dated 13.06.2000 from Sri Sunil Pal i.e. the defendant No.6, but such purchased land did not include C.S. Plot Nos. 4142, 4151 and 4140 of Mouja - Pratapgarh. In fact, the defendant Nos. 1 to 5 are in possession over the suit land although Record of Right does not stand in the name of their predecessor namely Radha Govinda Das. The plaintiff has served another notice dated 08.05.2013 upon the defendants including Sri Sunil Pal, Sri Sudhir Basu and Sri Haradhan Pal.

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4. According to the plaintiff, the cause of action of the instant suit arose on and from 24.08.2008 when the agreement for sale was made, and thereafter, on 31.12.2012 when the plaintiff and the defendant Nos. 1 to 5 reached at a settlement and thereafter, on 20.02.2013, 07.03.2013, 08.05.2013 and 16.04.2013.

5. On the above factual backgrounds, the plaintiff by instituting the present suit had prayed for specific performance of contract declaring that the plaintiff is entitled to get the registered Sale Deed from the defendant Nos. 1 to 5 after receiving the balance amount of consideration, mandatory injunction directing the defendant Nos.11 & 12 for correction record of right concerning the suit land and directing the defendant Nos.1 to 5 to put the plaintiff into the possession of the suit land alongwith cost of the suit.

6. On presentation of the suit, the learned Civil Judge, Senior Division, West Tripura, Agartala, had framed the following issues:-

"i. Is the suit maintainable in its present form and nature? ii. Whether Late Radha Gobinda Das had right, title and interest over the suit land;

iii. Whether the plaintiff has any cause of action to institute the instant suit; iv. Whether any agreement for sale was made in between deceased Radha Gobinda Das and Plaintiff on 24.08.2008 for selling the suit land at a consideration of Rs.5,45,000/- only and in terms of agreement the plaintiff paid Rs.10001/- only as part payment;

v Whether the plaintiff is ready and willing to perform its part in terms of said agreement;

vi. Whether the plaintiff is entitled to get a decree for specific performance of contract, as prayed for, and if so, upto what extent; vii. What other relief(s) the parties are entitled to?"

7. To substantiate the facts pleaded, the plaintiff had adduced 9 (nine) witnesses, namely, PW.1 Sri Dulal Ch. Deb, PW.2 Sri Narayan Chandra Paul, PW.3 Sri Gouranga Deb, PW.4 Ratan Miah, PW.5 Sri Prafulla Ch. Debnath, PW.6 Smt. Maliika Dhar, PW.7 Sri Subhash Das, PW.9 Sri Joydeb Page 7

Saha and PW.10 Smt. Arati Saha. The plaintiff had also exhibited the following documents:

i. Original copy of unregistered agreement for sale dated 24.08.2008 in three sheets ..... Exhibit 1, ii. Photocopy of Registered Sale Deed vide No.15273 dated 13.06.2000- Not exhibited.

iii. Photocopy of khatian bearing No. 5173 of Mouja - Pratapgarh Not exhibited.

iv. Certified copy khatian bearing No.2861, 2183/1 and 2957 of MoujaPratapgarh - Exhibit 2(series), v. Copy of Advocate Notice dated 08.04.2013- Exhibit 3 (series), vi. Copy of reply dated 16.04.2013 Exhibit 4(series) vii. Notice dated 08.05.2013 under sec. 80(1) of CPC read with sec.106 of TP Act alongwith postal receipt- Exhibit 5 (series) On the other hand, the defence side has adduced only one witness, namely, DW-1, Sri Sujit Das. Only one document was signed which is the original copy of the registered Sale Deed bearing No. I-5273 dated 13.06.2000, as Exhibit-A.

8. While deciding the issue no. (i), the learned court has held that the suit is barred by law of Limitation as contemplated under Article 54 of the Limitation Act,1963, which lays down that for specific performance of contract, the limitation is three years which would run from the date fixed for the performance, or, if no such date is fixed, when the plaintiff has noticed that performance is refused. The later part of Article 54 is not applicable in this suit.

9. I have given my thoughtful consideration to the said findings of the learned trial court. It has come to light from the unregistered Agreement for Sale dated 24.08.2008 (Ext.-1) that the plaintiff and the predecessor of defendant nos. 1 to 5, namely, Radha Govinda Das had entered into an Agreement to sale the suit land for a consideration of Rs. 5,45,000/- only. To execute the Deed of Agreement, the plaintiff had paid Rs. 10,001/- and it was mutually agreed upon between the parties that the rest amount would be paid within 4 (four) months i.e. within 23.12.2008, when the Deed of Sale would be executed.

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10. After perusal of the pleadings as well as the documents introduced by the plaintiff, it has come to light that the plaintiff never approached the deceased father of the defendant no.6 within the said stipulated period of 4 (four) months and offered him the rest amount of consideration money under the Agreement dated 24.08.2008 (Ext.-1). To enforce the Deed of Specific Performance, the suit has to be filed within a period of 3 (three) years, which would run from the date fixed for the date of performance, or, if any such date is fixed the plaintiff has noticed that the performance has been refused. Here the date is fixed i.e. the plaintiff had to offer or pay the rest amount of money within 23.12.2008 and there is no evidence that within this period of 4 (four) months, the plaintiff has expressed his readiness or willingness to pay the rest amount of consideration money to the predecessor of defendant no.6. The plaintiff himself has stated in his plaint and adduced in his evidence that the cause of action first arose on 24.08.2008 and subsequently on 31.12.2012, that means, after the expiry of 3 (three) years. The second date on 31.12.2012 was a date when the village meeting was allegedly held between the plaintiff and defendant no. 6 in presence of other villagers. The plaintiff had instituted the suit only in the year 2014 which was registered as TS 09 of 2014.

11. In view of the above, I do not find any infirmity in the findings of the learned trial court deciding the issue no. (i) that the suit is not maintainable for the reason that the suit is barred by law of Limitation as contemplated under Section 54 of the Limitation Act.

12. Proceeding further to the facts of the case, it is revealed that in the Sale Agreement (Ext.-1) it was agreed upon between the plaintiff and the predecessor of the defendants that the agreement was entered into for sale of the land comprised under CS plot No. 4142, 4151 and 4150 of Mouja- Pratapgarh, which were not purchased by late Radha Govinda Das i.e. predecessor of defendant Nos. 1 to 6. On the contrary, the defendant no. 6 adducing his evidence has brought on record the registered Sale Deed no. I-5273 dated 13.06.2000 (Ext.-A) wherein it is transpired that the predecessor of the defendants, namely, Radha Govinda Das had purchased land comprised in Khatian no. 5174, Dag No. 4147, 4149, 4145, and Page 9

under Khatian no. 5173 having Dag no. 4143/9128, 4139, 4140 measuring 6 gandas 3 karas 15 dhurs from one Sunil Paul. Thus, it is amply clear that the predecessor of defendant Nos. 1 to 5, namely, Radha Govinda Das had never acquired any right, title or interest in respect of Dag No. 4142 and 4151 in Khatian no. 5174.

13. I am in agreement with the learned trial court in his findings that since deceased Radha Govinda Das had not acquired any title over the plot nos. 4142 and 4151, as such, the agreement for Sale dated 24.08.2018 (Ext.- 1) is a void document and nonest in respect of those two plot numbers.

14. In the light of the above discussion, I find no infirmity in the findings of the learned trial Judge calling for interference of the judgment and decree dated 31.05.2018 passed by the learned trial court. Accordingly, the instant First Appeal preferred by the plaintiff-appellant stands dismissed.

JUDGE

Saikat