Tripura High Court
Bapi Dey vs Sri Soubhik Debnath on 16 August, 2024
HIGH COURT OF TRIPURA
AGARTALA
RFA No.15 of 2023
Bapi Dey
S/o. Lt. Bhupal Dey,
Resident of Krishnanagar, Jagannath Bari Road,
Near Federal Bank, P.S.-West Agartala,
District-West Tripura.
------ Appellant
Versus
1. Sri Soubhik Debnath,
S/o. Suresh Ch. Debnath,
C/o- Sunil Debnath of Tekroi Chowmuhani, Subhashnagar,
P.O-Agartala, P.S. - East Agartala, Dist: West Tripura.
2. Meghnath Poddar
S/o- Late Ramesh Chandra Poddar of KhoshBagan, Agartala,
P.S.-West Agartala, District- West Tripura.
------ Respondents
For Appellant(s) : Mr. B. Saha, Adv,
Mr. Samarjit Bhattacharjee, Adv.
For Respondent(s) : Mr. S. Lodh, Adv,
Mr. A. Sengupta, Adv.
Date of hearing : 09.08.2024
Date of delivery of
Judgment & Order : 16.08.2024
Whether fit for
reporting : YES
HON‟BLE MR. JUSTICE BISWAJIT PALIT
Judgment & Order
This appeal is preferred by the appellant challenging
the judgment dated 06.03.2023 and decree dated 15.03.2023
delivered by Learned Civil Judge(Sr. Div), Court No.1, West
Tripura, Agartala in connection with case No.TS No.58 of 2018.
2. Heard Learned Counsel, Mr. B. Saha and Learned
Counsel Mr. Samarjit Bhattacharjee for the appellant-plaintiff
and also heard Learned Counsel Mr. S. Lodh for the respondent
No.1 and Learned Counsel Mr. A. Sengupta for the respondent
No.2.
3. Now before coming to the conclusion, let us discuss
about the subject matter of dispute cropped up amongst the
rival parties. The appellant-plaintiff filed a suit under Section 31
of Specific Relief Act for cancellation of registered sale deed
bearing No.1-5075 and under Section 39 of Indian Contract Act
for specific performance of Contract read with Section 73 of the
Indian Contract Act and for compensation for the loss and
damage caused by breach of contract.
4. The case of the appellant-plaintiff, in short, was that
the defendant No.1 i.e. the respondent No.1 herein was the
actual owner and possessor of the suit land. The appellant-
plaintiff was tenant under defendant No.1 and from the month
of May, 2001 he is staying in the residence of defendant No.1
as tenant i.e. within the suit premise. During the continuance of
tenancy on several occasions the defendant No.1 took loan of
Rupees Fifteen Lakh from the appellant-plaintiff and for that, on
29.01.2017, the defendant No.1 entered into an unregistered
agreement for sale of the suit land with the appellant-plaintiff in
consideration of the amount of Rs.40,00,000/-. Accordingly, the
appellant-plaintiff paid Rs.5,00,000/- to the defendant No.1 on
the date of execution of unregistered deed of agreement. Thus,
a sum of Rs.20,00,000/- was paid by the plaintiff to the
defendant No.1. As per terms and conditions, the period of
agreement was for a period of one year and six months i.e.
from 29.01.2017 to 27.07.2018. It was further agreed that the
rest amount of Rs.20,00,000/- would be paid by the plaintiff
within the aforesaid period and on payment of the rest amount,
the respondent-defendant No.1 shall execute and register a
deed of sale of the suit land in the name of the plaintiff.
Thereafter, on elapsing of fifteen months, on 01.05.2018, the
plaintiff-appellant verbally approached the defendant No.1 to
execute the registered sale deed in respect of the suit land in
his favour, but the defendant No.1 refused to do the same.
5. Being aggrieved, on 05.05.2018, the plaintiff had sent
one legal notice to the defendant No.1 but the defendant No.1
neither replied to the said notice nor contacted with the
plaintiff. On 13.05.2018, the appellant-plaintiff could know that
the defendant No.1 has sold out the suit land to the
respondent-defendant No.2 through a registered sale deed
bearing No.1-5075. Accordingly, the appellant-plaintiff filed the
suit for specific performance of contract and for cancellation of
the sale deed, permanent injunction and for damages for the
harassment caused to him.
It was the further case of the appellant-plaintiff that the
defendant-respondent No.2 had knowledge about the fact,
intentionally purchased the suit land knowing fully the
possession of the plaintiff-appellant over the suit land. Hence,
the appellant-plaintiff filed the suit.
6. On receipt of summons, the respondent-defendant No.1
did not appear before the Court nor filed any written statement
denying the claim of the appellant-plaintiff.
The respondent-defendant No.2 appeared and filed
written statement denying the claims of the appellant-plaintiff.
He further submitted that he purchased the suit land. The
defendant No.2 further submitted that the plaintiff knew about
the sale of the suit land to him by the respondent-defendant
No.1 but inspite of knowing the same, the appellant-plaintiff in
collusion with defendant No.1 created this false document. The
defendant No.2 also submitted that the appellant-plaintiff got
information that the defendant No.1 sold the suit land to the
defendant No.2 and that time the plaintiff requested to give him
some time to shift to another place. The defendant No.2 agreed
to the request of the appellant-plaintiff but thereafter the
plaintiff-appellant in collusion with the respondent-defendant
No.1 made unregistered deed to grab the property of the
defendant No.2. So, by the written statement, the respondent-
defendant No.2 prayed for dismissal of the suit with costs.
7. Upon the pleadings of the parties, following issues were
framed:
i) Whether the suit is maintainable in its
present form and nature?
ii) Whether there was any agreement for sale
dated 29.01.2017 between the plaintiff and
the defendant No.1? If so, whether said
agreement is enforceable in law?
iii) Whether the plaintiff succeeded to prove his
readiness and willingness to perform his part
of the contract?
iv) Whether the sale deed bearing No.I-5075
dated 26.10.2017 is liable to be cancelled?
v) Whether the plaintiff is entitled to get a
decree as prayed for?
vi) Whether the plaintiff is entitled to get any
other relief or reliefs?
8. To substantiate the issues, both the parties have
adduced oral/documentary evidence on record which was
reproduced herein below:
Plaintiff‟s witness:
i) PW-1 : Sri Bapi Dey
ii) PW-2 : Sri Arup Debbarma
iii) PW-3 : Sri Sudip Bhattacharjee
iv) PW-4 : Sri Kingshuk Bhattacharjee
Plaintiff‟s Exhibits:
Exbt.-1 : Original unregistered agreement
for sale.
Defendant‟s witness:
i) DW-1 : Sri Meghnath Poddar
ii) DW-2 : Sri Ram Narayan Kar
iii) DW-3 : Sri Ashim Deb
Defendant‟s Exhibits:
i) Exbt.-A: Original sale deed bearing No.I-
5075, dated 26.10.2017.
ii) Exbt.-B : Authenticated copy of Khatian
No.1635 of Mouja-Agartala, sheet No.7.
9. Finally, on conclusion of trial, the Learned Trial Court
partly allowed the suit filed by the appellant. For the sake of
convenience, I would like to refer herein below the operative
portion of the judgment and order dated 06.03.2023 of the
Learned Trial Court which runs as follows:
Order
12. In consideration of my decisions on the
aforesaid points, the suit of the plaintiff is
decreed partly in favour of the plaintiff.
It is hereby declared that the plaintiff is not
entitled to a decree of specific performance of
contract and a decree of cancellation of the
registered sale deed bearing No.1-5075.
It is further declared that the plaintiff is
entitled to get compensation for an amount of
Rs.20,00,000/- (Rupees Twenty lakhs) only
with interest at the rate of 08 percent per-
annum from the defendant No.1 from the date
of agreement that is from 29.01.2017, till the
realization of the entire amount.
The defendant No.1 is directed pay the
amount of Rupees Twenty lakhs with interest
at the rate of 8 percent per annum to the
plaintiff as compensation for the loss
sustained by him, form the date of agreement
that is from 29.01.2017 within three months
from the date of the decree.
The defendant No.1 shall also be liable to pay
the costs of filing the suit to the plaintiff.
Prepare decree accordingly and place before
me within fourteen days from today.
Challenging that judgment and decree, the appellant
has filed this present appeal before the High Court.
10. In course of hearing of argument, Learned Counsel for
the appellant submitted that there is serious infirmity in the
judgment of the Learned Trial Court for which this appeal is
preferred. Learned Counsel for the appellant submitted that
before the Learned Trial Court, the respondent-defendant No.1
inspite of receipt of summons did not contest the suit by filing
any written statement nor adduced any oral/documentary
evidence on record to rebut the case of the appellant-plaintiff.
Learned Counsel further submitted that the respondent-
defendant No.2 had knowledge about the execution of
unregistered agreement for sale but knowingly fully he
purchased the suit land for which the appellant-plaintiff filed the
suit for cancellation of the deed and for enforcement of the
contract but the learned Trial Court below did not consider the
oral/documentary evidence on record and passed an erroneous
judgment which cannot be sustained in the eye of law and
urged for setting aside the judgment of the Learned Trial Court
by allowing this appeal. It was further submitted that although
the deed was executed by the defendant No.1 in favour of
defendant No.2 but no possession was handed over because the
suit land still remains under the possession of appellant-plaintiff
since a long period because he entered into the suit land as
tenant. It was also submitted that on the prayer of the
appellant-plaintiff, Learned Trial Court ordered injunction
restraining the defendants from entering into the suit land but
that order also has not been challenged by the respondent-
defendant but the Learned Trial Court below came to an
erroneous observation that the respondent-defendant No.2 had
no knowledge about the existence of any agreement and thus
dismissed the suit of the appellant-plaintiff regarding
cancellation of instrument executed by defendant No.1 in favour
of respondent-defendant No.2. Learned Counsel for the
appellant also submitted that the appellant-plaintiff also has
submitted another prayer for adducing additional evidence
which the Learned Court below did not consider and urged for
allowing the said prayer of the appellant-plaintiff and referred
few citations which would be discussed later on.
11. Learned Counsel for the defendant No.1 appeared and
referred few citations of the Hon'ble Apex Court and submitted
that although he did not contest the suit but since there was
direction against him, so he is at liberty to raise some legal
points before the Appellate Court and further submitted that on
the basis of unregistered deed of agreement in view of the
provision of Section 17(1-A) of the Indian Registration Act,
there was no scope to pass any part decree by the Learned Trial
Court. But the learned Trial Court below instead of dismissing
the suit partly allowed the same for which intervention of the
Court is required. He further submitted that Section 17(1-A) of
the Indian Registration Act be conjointly read together with
Section 53A of the Transfer of Property Act. Learned Counsel
Mr. Lodh further submitted that without seeking any declaration
under Section 34 of Specific Relief Act, there was no scope on
the part of the appellant-plaintiff to seek any relief under
Section 31 of Specific Relief Act for cancellation of instrument
and enforcement of agreement of contract under Section 39 of
Indian Contract Act. So, according to Learned Counsel for the
respondent-defendant No.1, the suit filed by the appellant-
plaintiff was not maintainable before the Learned Court below
but the Learned Court below did not consider the same and
urged for setting aside the judgment of the Learned Trial Court
dismissing the present appeal also.
12. Learned Counsel for the respondent-defendant No.2,
Mr. A. Sengupta participating in the hearing submitted that the
Learned Trial Court below rightly and reasonably after
considering the evidence on record partly allowed the claim of
the appellant-plaintiff but rejected the prayer of the appellant-
plaintiff for cancellation of the instrument on the basis of which
the respondent-defendant No.2 as bona fide purchaser
purchased the suit land from respondent-defendant No.1.
Learned Counsel further submitted that the said defendant had
no knowledge about the execution of any agreement in between
the plaintiff and respondent-defendant No.1 and furthermore,
on the basis of his constructive possession, the mutation
authority allowed mutation in his favour. So, the present appeal
has got no merit and urged for dismissal of the appeal with
costs.
Learned Counsel Mr. Sengupta further submitted that in
view of the Section 54 of Transfer of Property Act, no attesting
witness was required to be produced for proving the sale deed
since the respondent-defendant No.1 did not challenge the
validity of the deed before the Court. Even there was no
objection from the side of appellant at the time of admission of
document as Ext. A.
He further submitted that the appellant-plaintiff all
along admitted that he was a tenant under defendant No.1 and
the appellant also failed to satisfy the Learned Trial Court that
the respondent-defendant No.2 had notice about the execution
of agreement in between the appellant-plaintiff and the
respondent-defendant No.1. So, the bona fide purchase of the
suit land by the respondent-defendant No.2 was valid and
lawful in the eye of law and the Learned Trial Court below after
considering the materials on record rightly dismissed the claim
of the appellant-plaintiff for cancellation of the purchased deed
of the respondent-defendant No.2, as void.
13. Learned Counsel Mr. Sengupta further submitted that
although there was an injunction order earlier but when the suit
was finally disposed of, that time, that injunction order became
infructuous. So, the contention of learned Counsel for the
appellant has got no sound footing in the eye of law. Learned
Counsel for the respondent No.2 further submitted that
although the suit of the appellant-plaintiff was partly decreed by
the Learned Trial Court but the Learned Trial Court below at the
time of delivery of judgment awarded damage in favour of the
appellant-plaintiff. So, there was no perversity in the judgment
of Learned Trial Court and urged for dismissal of this appeal
upholding the judgment of the Learned Trial Court.
Learned Counsel Mr. Sengupta further submitted that
the respondent-defendant No.1 never disclosed to him
regarding execution of any sort of unregistered deed of
agreement. Now, with a view to harass the respondent-
defendant No.2 and to cause loss to the defendant No.2, the
appellant-plaintiff in connivance with respondent-defendant
No.1 has filed the suit.
14. I have heard detailed argument of Learned Counsel for
the contesting parties and perused the record of the Learned
Court below and also gone through the citations referred by
Learned Counsel for the parties.
In course of hearing of argument, Learned Counsel for
the appellant relied upon few citations. In Aloka Bose v.
Parmatma Devi and others dated 17.12.2008 reported in
(2009) 2 SCC 582, wherein in para Nos.23 and 24, Hon'ble
the Apex Court observed as under:
"23. The trial court as well as the Division Bench of
the High Court on the analysis of the materials in
the form of oral and documentary evidence
concluded that the vendee had performed her part
by paying the earnest money and sent a notice
conveying her willingness and readiness to pay the
balance of sale consideration. The said notice was
acknowledged by the defendant. The clauses in the
agreement clearly show that the vendor had to
perform and fulfil the terms of agreement by
executing the sale deed on receipt of the
consideration. We have already adverted to the fact
that the vendee had performed her part of the
contract.
24. The trial court and the Division Bench also
concluded that the plaintiff had fulfilled the
conditions as stated in Section 16(C) of the Specific
Relief Act and in that event the plaintiff is entitled to
decree for specific performance which was rightly
granted by the trial court. Though learned counsel
for the appellants pointed out that the claim of the
plaintiff that she was put in possession of a portion
of the suit property in part-performance was not
accepted by the trial court, in the light of the
categorical findings about the validity of Ext.2 and
satisfactory proof of other conditions for granting
the decree for specific performance, we are unable
to accept the said contention. On the other hand, we
agree with the conclusion arrived at by the Division
Bench and hold that the agreement of sale was
enforceable and the trial court has rightly granted
the decree which was affirmed by the Division
Bench of the High Court."
In Maharaj Singh and others v. Karan Singh(Dead)
Thr. Lrs. And Others dated 09.07.2024 reported in 2024 SCC
OnLine SC 1668, wherein in para Nos.10.(c) and 13, Hon'ble
the Apex Court observed as under:
"10. c) Were the second to fourth defendants bona
fide purchasers for value without notice of the suit
agreement?
ON QUESTION (c)
13. The three Courts concurrently found that under
the Uttar Pradesh Civil Laws (Reforms and
Amendment) Act, 1976, clause (v) of Section 17(2)
of the Registration Act, 1908 was amended, which
made an agreement for the sale of an immovable
property, a compulsorily registerable document in
the State. On this aspect, no arguments have been
canvassed by the appellants. Therefore, in view of
explanation 1 to Section 3 of the TP Act, the second
to fourth defendants shall be deemed to have
knowledge of the suit agreement, which was duly
registered. It cannot be said that the second to
fourth defendants had no knowledge of the suit
agreement in view of the constructive notice. It is
not their case that they took a search in the office of
the Sub-Registrar before getting the sale deeds in
their favour. Hence, it cannot be said that they paid
money in good faith to the first Defendant.
Therefore, the second to fourth defendants can
never be held to be bona-fide purchasers who have
paid consideration in good faith without the notice
of the suit agreement."
Referring the same, Learned Counsel for the
appellant drawn the attention of the Court that the appellant
before the Learned Trial Court below could prove his case by
adducing oral/documentary evidence on record but the
Learned Trial Court below did not consider the same and
partly decreed the suit.
15. Learned Counsel further submitted that although the
respondent-defendant No.2 claimed to be a bona fide
purchaser of the suit property but from the facts and
circumstances of the case, it was clearly established that the
said respondent No.2 was not a bona fide purchaser and he
had full knowledge about the execution of unregistered deed
of agreement. So, Learned Counsel urged for allowing this
appeal by setting aside the judgment of the Learned Trial
Court and to grant a decree as per prayer made in the plaint
by the appellant-plaintiff at the time of filing of the suit.
16. Learned Counsel Mr. S. Lodh on behalf of the
respondent-defendant No.1 in course of hearing of argument
referred few citations. In Ravinder Kumar Sharma v. State
of Assam and others dated 14.09.1999 reported in (1999) 7
SCC 435 wherein para Nos.13 and 23, Hon'ble the Apex Court
observed as under:
"13. Though in certain earlier cases in the Madras
High Court, a view was taken that the defendant-
respondent in such situations could attack such a
finding, a Full Bench of the Madras High Court in
Gaddem Chinna Venkata Rao v. Koralla
Satyanarayanamurthy:AIR 1943 Mad 698 set the
controversy at rest by holding that the respondent
could attack a finding upon which part of the decree
against him was based, for the purpose of
supporting the other part of the decree which was
not against him. In that case, Leach, C.J. accepted
the view of the referring Judges Wadsworth, J. and
Patanjali Sastri, J. (as he then was) to the following
effect:
"Under Order 41 Rule 22, it is open to a
defendant-respondent who has not taken any
cross-objections to the partial decree passed
against him, to urge in opposition to the
appeal of the plaintiff a contention which if
accepted by the trial court, would have
necessitated the total dismissal of the suit."
23. In our view, the opinion expressed by
Mookerjee, J. of the Calcutta High Court on behalf of
the Division Bench in Nishambhu Jena case:(1984-
85) 86 CWN 685 and the view expressed by U.N.
Bachawat, J. in Tej Kumar case:AIR 1981 MP 55 in
the Madhya Pradesh High Court reflect the correct
legal position after the 1976 Amendment. We hold
that the respondent-defendant in an appeal can,
without filing cross-objections attack an adverse
finding upon which a decree in part has been passed
against the respondent, for the purpose of
sustaining the decree to the extent the lower court
had dismissed the suit against the defendant-
respondent. The filing of cross-objection, after the
1976 Amendment is purely optional and not
mandatory. In other words, the law as stated in
Venkata Rao case:AIR 1943 Mad 698 by the Madras
Full Bench and Chandre Prabhuji case:(1973) 2 SCC
665 by this Court is merely clarified by the 1976
Amendment and there is no change in the law after
the amendment."
Learned Counsel also referred another citation of the
Karnataka High Court reported in 2020 SCC OnLine Kar
2964. In Khaja Moinuddin Ameer and Others v. Zulekha
Begum and another dated 29.09.2020 where in para Nos.18,
19, 21 and 22, Karnataka High Court observed as under:
"18. Admittedly the defendants have not filed any
cross appeal/cross objection in respect of finding of
trial court on issue No. 2 which is answered against
them. But the trial court has indirectly given relief
to them holding that, they are the owners in
possession of the schedule „A‟ to „D‟ and „F‟ to „K‟.
Therefore, the Judgment and decree passed in this
case has not given any relief to the plaintiffs in
respect of those properties but the possession and
ownership of the defendants in respect of the above
said properties is conferred on the defendants
though for a different reasons. Therefore, when the
defendants have not filed cross appeal whether they
can be denied hearing them in respect of issue No. 2
is to be considered. In this regard it is useful to
refer power of 1st appellate court. The provisions of
Order 41 Rule 22 and Order 41 Rule 33 of C.P.C.
empowers the court to consider the said aspect.
They reads as under:
ORDER 41 RULE 22 CPC - Upon hearing,
respondent may object to decree as if he had
preferred separate appeal. - (1) Any respondent,
through he may not have appealed from any part
of the decree, may not only support the decree,
[but may also state that the finding against him
in the Court below in respect of any issue ought
to have been in his favour; and may also take
any cross-objection to the decree which he could
have taken by way of appeal, provided he has
filed such objection in the Appellant Court within
one month from the date of service on him or his
pleader of notice of the day fixed for hearing the
appeal, or within such further time as the
Appellate Court may see fit to allow.
[Explanation. - A respondent aggrieved by a
finding of the Court in the judgment on which the
decree appealed against is based may, under this
rule, file cross-objection in respect of the decree
in so far as it is based on that finding,
notwithstanding that by reason of the decision of
the Court on any other finding which is sufficient
for the decision of the suit, the decree, is, wholly
or in part, in favour of that respondent.
ORDER 41 RULE 33. Power of Court of Appeal. -
The Appellate Court shall have power to pass any
decree and make any order which ought to have
been passed or made and to pass or make such
further or other decree or order as the case may
require, and this power may be exercised by the
Court notwithstanding that the appeal is as to
part only of the decree and may be exercised in
favour of all or any of the respondents or parties,
although such respondents or parties may not
have filed any appeal or objection [and may,
where there have been decree in cross-suits or
where two or more decrees are passed in one
suit, be exercised in respect of all or any of the
decrees, although an appeal may not have been
filed against such decrees]:
Provided that the Appellate Court shall not make
any order under Section 35-A, in pursuance of
any objection on which the court from whose
decree the appeal is preferred has omitted or
refused to make such order].
19. Further in this regard the Hon'ble Supreme
Court in a decision reported in (2007) 2 KCCR SN 49
in case of S. Nazeer Ahmed v. State Bank of Mysore
wherein it is held as under:
B. CODE OF CIVIL PROCEDURE - Order 41, Rule
22 - Respondents right in appeal - Cross
objections not filed - The High Court, was clearly
in error in holding that the appellant not having
filed a memorandum of cross-objections in terms
of Order XLI, Rule 22 of the Code, could not
challenge the finding of the trial Court that the
suit was not barred by Order II, Rule 2 of the
Code. The respondent in an appeal is entitled to
support the decree of the trial Court even by
challenging any of the findings that might have
been rendered by the trial Court against himself.
For supporting the decree passed by the trial
Court, it is not necessary for a respondent in the
appeal, to file a memorandum of cross-
objections challenging a particular finding that is
rendered by the trial Court against him when the
ultimate decree itself is in his favour. A
memorandum of cross-objections is needed only
if the respondent claims any relief which had
been negatived to him by the trial Court and in
addition to what he has already been given by
the decree under challenge.
C. CODE OF CIVIL PROCEDURE - Order XLI, Rule
33 Invoking of - This is a case where the suit
filed by the plaintiff - Bank had been dismissed
by the trial Court. The plaintiff - Bank had come
up in appeal. It was entitled to challenge all the
findings rendered against it by the trial Court
and seek a decree as prayed for in the plaint,
from the appellate Court. Once it is found
entitled to a decree on the basis of the reasoning
of the appellate Court, the suit could be decreed
by reversing the appropriate findings of the trial
Court on which the dismissal of the suit was
based. For this, no recourse to Order XLI, Rule
33 is necessary. Order XLI, Rule 33 enables the
appellate Court to pass any decree that ought to
have been passed by the trial Court or grant any
further decree as the case may require and the
power could be exercised notwithstanding that
the appeal was only against a part of the decree
and could even be exercised in favour of the
respondents, though the respondents might not
have filed any appeal or objection against what
has been decreed. There is no need to have
recourse to Order XLI, Rule 33 of the Code, in a
case where the suit of the a plaintiff has been
dismissed and the plaintiff has come up in appeal
claiming a decree as prayed for by him in the
suit. Then, it will be a question of entertaining
the appeal considering the relevant questions
and granting the plaintiff the relief he had
sought for if he is found entitled to it. In the case
on hand therefore there was no occasion for
applying Order XLI, Rule 33 of the Code. If the
view of the High Court was that the suit was
barred by Order ll, Rule 2 of the Code, it is
difficult to see how it could have resorted to
Order XLI, Rule 33 of the Code to grant a decree
to the plaintiff in such a suit. In that case, a
decree has to be declined. That part of the
reasoning of the High Court is therefore
unsustainable.
21. This court in ILR 2007 Kar 2395 in case of Sri.
Annasaheb Balesha Waghe v. Sri. Appasaheb Dada
Promai wherein at para Nos. 15 & 16 it is held as
under:
15. Rule 22 is a special provision which gives
a respondent, who being satisfied with partial
success has not appealed within limitation,
another opportunity of challenging the part of
the decree which has gone against him upon
his opponent preferring an appeal by filing a
cross-objection. However, respondent can
challenge adverse findings without filing
appeal or cross objection. If no cross-
objections are filed at all by a respondent, the
appellate court has no power to grant any
relief to him in a case where the granting of
such relief is not necessarily incidental to the
relief granted to the appellant; nor has the
appellate court the power, in the absence of
cross-objections to disturb so much of the
original decree as is favourable to the
appellant so as to place him in a worst
position. However, now as the law stands,
even against the finding, a cross objection is
permitted. But it is left to the choice of the
party. Even without filing such cross-
objection, it is open to the respondent to
challenge the finding which is held against
him though the decree is in his favour. But on
the ground that he has not preferred cross-
objections, as contemplated in the
explanation, the appellate Court hearing the
appeal cannot refuse to hear the respondent
on the finding against his interest. However
in spite of all these amendments, still no
appeal lies against a finding.
16. Therefore, what emerges from the
aforesaid discussion is:
An appeal lies only against the decree and no
append lies against a finding. A party who has
not preferred on appeal against a portion of
the decree of which he is aggrieved may
prefer a cross objection which is in the nature
of a cross appeal, in an appeal preferred by
the opposite party against the decree, which
is partly in his favour and partly against him.
However, in an appeal against a decree, the
respondent can challenge a finding which is
against him though decree is in his favour,
without filing a cross objections. He can also
file cross objection challenging the said
adverse finding. The difference is when the
respondent challenges an adverse finding,
without filing a cross objection and if the
appellant withdraws the appeal or the appeal
is dismissed for default, then the right of the
respondent to get that adverse finding set
aside is lost. But if he has filed a cross
objection challenging the said adverse
finding, notwithstanding the appellant
withdrawing the appeal or the appeal is
dismissed for default he can independently
prosecute this cross objection and the Court
is under on obligation to consider the said
cross objection and pass order on merits.
22. So in view of the principles stated in the above
decision the defendants/respondents are entitled to
argue before this Court to reconsider issue No.2
based on the evidence led before the trial court
when the Judgment and decree is indirectly in their
favour."
Referring the same, Learned Counsel for the
respondent No.2 submitted that although before the Learned
Trial Court, the said respondent did not file any written
statement nor adduced any oral/documentary evidence on
record but in view of the aforesaid citations, he has got every
right to raise his voice before the High Court against the finding
of the Learned Trial Court.
17. In addition to that, Learned Counsel for the respondent
No.1 further referred another citation of the Hon'ble Supreme
Court reported in (2017) 4 SCC 760. In Satish Kumar Gupta
and Others v. State of Haryana and others dated
21.02.2017, wherein in para Nos.19, 20 and 21, Hon'ble the
Apex Court observed as under:
"19. The other part of the impugned order
permitting additional evidence and remanding the
case for fresh decision is uncalled for. No case was
made out for permitting additional evidence on
settled principles under Order 41 Rule 27 CPC. The
provision is reproduced below:
"27. Production of additional evidence in
appellate court.-(1) The parties to an appeal
shall not be entitled to produce additional
evidence, whether oral or documentary, in
the appellate court. But if-
(a) the court from whose decree the
appeal is preferred has refused to admit
evidence which ought to have been
admitted, or
(aa) the party seeking to produce
additional evidence, establishes that
notwithstanding the exercise of due
diligence, such evidence was not within
his knowledge or could not, after the
exercise of due diligence, be produced by
him at the time when the decree appealed
against was passed, or
(b) the appellate court requires any
document to be produced or any witness
to be examined to enable it to pronounce
judgment, or for any other substantial
cause,
The appellate court may allow such evidence
or document to be produced, or witness to be
examined.
(2) Wherever additional evidence is allowed
to be produced by an appellate court, the
court shall record the reason for its
admission."
20. It is clear that neither the trial court has refused
to receive the evidence nor it could be said that the
evidence sought to be adduced was not available
despite the exercise of due diligence nor it could be
held to be necessary to pronounce the judgment.
Additional evidence cannot be permitted to fill in the
lacunae or to patch up the weak points in the
case:(2001) 7 SCC 503. There was no ground for
remand in these circumstances.
21. We may also refer to the argument that this
Court, while remanding the matter in the earlier
round, had given liberty to MSIL to file an
application for impleadment or to act as an
intervenor which implied that such application was
to be accepted. We do not find any merit in this
contention also. It cannot be held that any right was
crystallized by the said observation and such prayer
had to be considered according to law. We have
already held that the post-acquisition allottee had
no right in the matter."
Referring the same, Learned Counsel for the
respondent No.1 submitted that the prayer for adducing
additional evidence as claimed by the appellant-plaintiff has got
no legal basis at this belated stage because this petition has fill
up the lacunae of the case of the appellant which also cannot be
accepted as per law.
18. I have also gone through the aforesaid citations. On
perusal of the principles of law laid down by the Hon'ble Apex
Court and the High Court, it appears that the respondent No.1
although did not contest the suit before the Learned Trial Court
below but he is at liberty to contest the appeal only for limited
purpose. The appellant-plaintiff filed the suit for enforcement of
the contract i.e. the agreement dated 29.01.2017 and to pass a
decree for cancellation of registered deed bearing No.1-5075
dated 26.10.2017 to be void and to be delivered up and also for
a decree for permanent injunction with further relief to direct
the respondent-defendant No.1 to register the deed in favour of
the appellant in view of the agreement dated 29.01.2017 and
for damages and loss. But Learned Trial Court below only
granted compensation of Rs.20,00,000/- with interest for the
loss sustained by him along with cost of the suit but dismissed
the other relief of the appellant.
19. In course of hearing of argument, learned Counsel for
the respondent No.1 submitted that as the registered
agreement was unregistered, so in view of provision of Section
17(1-A) of Indian Registration Act read with Section 53A of
Transfer of Property Act, the suit of the appellant-plaintiff was
not maintainable. For the sake of convenience, I would like to
refer herein below the relevant provision of Section 17(1-A) of
Indian Registration Act and Section 53A of Transfer of Property
Act which runs as follow:
Section 17(1-A)
The documents containing contracts to transfer for
consideration, any immovable property for the
purpose fo Section53-A of the Transfer of Property
Act, 1882 (4 of 1882), shall be registered if they
have been executed on or after the commencement
of the Registration and Other Related Laws
(Amendment) Act, 2001 and, if such documents are
not registered on or after such commencement,
then, they shall have no effect for the purposes of
the said Section 53-A.]
Section 53A
Part performance.--Where any person contracts to
transfer for consideration any immoveable property
by writing signed by him or on his behalf from
which the terms necessary to constitute the transfer
can be ascertained with reasonable certainty:
and the transferee has, in part performance of the
contract, taken possession of the property or any
part thereof, or the transferee, being already in
possession, continues in possession in part
performance of the contract and has done some act
in furtherance of the contract,
and the transferee has performed or is willing to
perform his part of the contract,
then, notwithstanding that 50[***], or, where there
is an instrument of transfer, that the transfer has
not been completed in the manner prescribed
therefor by the law for the time being in force, the
transferor or any person claiming under him shall be
debarred from enforcing against the transferee and
persons claiming under him any right in respect of
the property of which the transferee has taken or
continued in possession, other than a right
expressly provided by the terms of the contract,
Provided that nothing in this section shall affect the
rights of a transferee for consideration who has no
notice of the contract or of the part performance
thereof.
20. In this regard, I would like to refer one citation of the
Hon'ble Supreme Court reported in (2018) 7 SCC 639. In
Ameer Minhaj v. Dierdre Elizabeth (Wright) Issar and
others dated 04.07.2018 wherein in para Nos.10, 11 and 12,
Hon'ble the Apex Court observed as under:
"10. On a plain reading of this provision, it is amply
clear that the document containing contract to
transfer the right, title or interest in an immovable
property for consideration is required to be
registered, if the party wants to rely on the same for
the purposes of Section 53-A of the 1882 Act to
protect its possession over the stated property. If it
is not a registered document, the only consequence
provided in this provision is to declare that such
document shall have no effect for the purposes of
the said Section 53-A of the 1882 Act. The issue, in
our opinion, is no more res integra. In S. Kaladevi v.
V.R. Somasundaram:(2010) 5 SCC 401 this Court
has restated the legal position that when an
unregistered sale deed is tendered in evidence, not
as evidence of a completed sale, but as proof of an
oral agreement of sale, the deed can be received as
evidence making an endorsement that it is received
only as evidence of an oral agreement of sale under
the proviso to Section 49 of the 1908 Act.
11. Section 49 of the 1908 Act reads thus:
"49, Effect of non-registration of documents
required to be registered.--No document
required by Section 17 or by any provision of
the Transfer of Property Act, 1882 (4 of 1882),
to be registered shall--
(a) affect any immovable property
comprised therein, or
(b) confer any power to adopt, or
(c) be received as evidence of any
transaction affecting such property or
conferring such power,
unless it has been registered:
Provided that an unregistered document
affecting immovable property and required by
this Act or the Transfer of Property Act, 1882 (4
of 1882), to be registered may be received as
evidence of a contract in a suit for specific
performance under Chapter II of the Specific
Relief Act, 1877 (1 of 1877), or as evidence of
any collateral transaction not required to be
effected by registered instrument."
12. In the reported decision, this Court has adverted
to the principles delineated in K.B. Saha & Sons (P)
Ltd. v. Development Consultant Ltd.:(2008) 8 SCC
564 and has added one more principle thereto that a
document is required to be registered, but if
unregistered, can still be admitted as evidence of a
contract in a suit for specific performance. In view
of this exposition, the conclusion recorded by the
High Court in the impugned judgment:2016 SCC
OnLine Mad 31541 that the sale agreement dated 9-
7-2003 is inadmissible in evidence, will have to be
understood to mean that the document though
exhibited, will bear an endorsement that it is
admissible only as evidence of the agreement to sell
under the proviso to Section 49 of the 1908 Act and
shall not have any effect for the purposes of Section
53-A of the 1882 Act. In that, it is received as
evidence of a contract in a suit for specific
performance and nothing more. The genuineness,
validity and binding nature of the document or the
fact that it is hit by the provisions of the 1882 Act or
the 1899 Act, as the case may be, will have to be
adjudicated at the appropriate stage as noted by the
trial court after the parties adduce oral and
documentary evidence."
On perusal of the aforesaid citation of law, it appears
that admittedly in this case, the Ext.1 was unregistered but that
was taken into evidence and marked as Exhibit without any
objection from the other side. Even during cross-examination of
the witness of the appellant-plaintiff, no such objection was
raised from the side of contesting defendants and also on
perusal of the aforesaid citation, it appears that the said
document can be received in evidence of a suit for specific
performance under the provision of Section 49 of the Indian
Registration Act. So, as submitted by Learned Counsel for the
appellant, there is no scope to accept the submission made by
Learned Counsel for the respondent No.1.
21. Now we are to see whether the respondent No.2 was a
bona fide purchaser or not. It was case of the appellant that the
respondent-defendant No.2 knowing fully the existence of Ext.1
i.e. the unregistered agreement for sale, through Exhibit-A
purchased the suit land but no possession was handed over to
him. Rather the suit land was/is all along remained under the
possession of the appellant-plaintiff. So, according to the
appellant, Ext.A was nothing but a sham, concocted document
for which the appellant-plaintiff sought for relief for cancellation
of the same but the Learned Court below failed to appreciate
the evidence on record and refused to grant relief in respect of
cancellation of Ext.A.
22. On the other hand, Learned Counsel for the respondent
No.2 fairly submitted that the respondent No.2 is a bona fide
purchaser and he had no knowledge about execution of Ext.1 at
any point of time by the respondent No.1 in favour of appellant-
plaintiff. After receipt of summons from the Court, the matter
came to his knowledge. So, Learned Counsel for the respondent
No.2 submitted that the Learned Court below after considering
the materials on record rightly delivered the judgment for which
there is no scope to interfere with the judgment of the Learned
Trial Court.
23. I have gone through the judgment of the Learned Court
below. It appears that Learned Court below at the time of
delivery of judgment relied upon Section 19(b) of Specific Relief
Act and came to the observation that the said respondent No.2
had no knowledge about the existence of Ext.1 at any point of
time. For the sake of convenience, I would like to refer herein
below Section 19(b) of the Specific Relief Act:
19. Relief against parties and persons claiming
under them by subsequent title.- Except as
otherwise provided by this Chapter, specific
performance of a contract may be enforced against-
(b) any other person claiming under him by a title
arising subsequently to the contract, except a
transferee for value who has paid his money in good
faith and without notice of the original contract;
Here in the given case, from the evidence on record, it
appears that the appellant-plaintiff either in the plaint or by any
oral/documentary evidence on record failed to satisfy the Court
below that the respondent-defendant No.2 had
knowledge/notice about the execution of Ext.1 at any point of
time prior to his purchase of the suit land.
24. More so, Ext.1 is also an unregistered agreement for
sale. So, it was quite natural that there was no scope on the
part of said respondent No.2 to have prior knowledge about
existence of Ext.1. So, Learned Court below rightly decided that
the respondent No.2 had no prior notice about the execution of
Ext.1.
25. Furthermore, regarding absolute possession over the
suit land, the appellant also could not adduce any cogent
evidence on record. Rather from Ext.A and B as relied upon by
the respondent No.2, it appears that respondent No.2 was a
bona fide purchaser of the suit land and he has got constructive
possession over the suit land and on the basis of his
constructive possession, the appropriate authority allowed
mutation of the suit land in his favour.
26. Further, to ascertain the matters in controversy, I have
also taken assistance of chatGPT asking a specific query on the
same issue:
Question: If there is any unregistered agreement of sale
between two parties for transfer of a land and during
pendency of agreement, the owner transfer the said land
to a bona fide purchaser without any notice to the bona
fide purchaser, and if thereafter any suit is filed then what
would be fate of the case?
Answer from the side of chat gpt: In the scenario you‟ve
described the situation involves an unregistered
agreement for the transfer of land, followed by a sale of
the land to a bona fide purchaser without notice of the
previous agreement, and then the filing of a lawsuit by the
original party to enforce the unregistered agreement.
Here‟s how the situation might unfold legally:
1. Unregistered Agreement:
Legal State of Unregistered Agreement: In many
jurisdictions, an unregistered agreement concerning
the transfer of immovable property (like land) is not
considered valid for the transfer of ownership.
However, it may still be enforceable as a contract
between the parties, depending on the local laws.
Specific Performance: If the original party to the
unregistered agreement files a lawsuit seeking
specific performance (enforcement of the contract),
the court will first consider whether the agreement
is enforceable despite being unregistered. Courts
may enforce such an agreement if they find the
contract to be valid, binding and equitable, but this
varies depending on jurisdiction.
2. Transfer to a Bona Fide Purchaser:
Rights of the Bona Fide Purchaser: A bona fide
purchaser who buys the property, free from claims
arising out of prior unregistered agreements. This
principle is often upheld to protect the interests of
innocent third parties.
Effect of Notice: Since the bona fide purchaser had
no notice of the prior unregistered agreement their
rights to the property would typically be protected,
and they would likely retain ownership of the land.
3. Fate of the Lawsuit:
Impact on the Original Plaintiff: If the original party
files a lawsuit after the land has been transferred to
a bona fide purchaser without notice, the likelihood
of the court ordering specific performance is
reduced. The court may find that the bona fide
purchaser‟s rights should be protected, and the
original party may instead be limited to seeking
damages or other remedies from the original seller.
Possible Outcomes:
The court might dismiss the claim for specific
performance if it determines that the bona fide
purchaser‟s rights are superior.
The original party might be awarded damages instead
of the land.
The court might consider whether the original seller
acted in bad faith and could provide some form of
equitable relief, but this is less likely to impact the
bona fide purchaser.
Conclusion:
In most cases, the property is sold to a bona fide
purchaser without notice of the prior unregistered
agreement, the purchaser‟s rights to the property are
typically protected. The original party to the
unregistered agreement may still have legal remedies,
but they would likely be limited to claims for damages
against the original seller, rather than reclaiming the
land from the bona fide purchaser.
So, after hearing detailed argument of the rival parties
and also after going through the observation of chat gpt and as
well as after going through the judgment of the Learned Court
below, it appears that for want of notice the right of bona fide
purchaser in this case appears to be superior and in my
considered view, Learned Trial Court below rightly delivered the
judgment after considering all the aspects and also in awarding
damage to the appellant-plaintiff, as such, I find no perversity
in the judgment of the Learned Trial Court below. The
substantial question of law is accordingly answered in negative
against the appellant of this case.
27. In the result, the appeal filed by the appellant stands
dismissed being devoid of merit. The judgment dated
06.03.2023 and decree dated 15.03.2023 delivered by Learned
Civil Judge(Sr. Div), Court No.1, West Tripura, Agartala in
connection with TS No.58 of 2018 is hereby upheld and
accordingly it is affirmed.
Prepare decree accordingly.
Send down the LCR along with a copy of this judgment.
JUDGE
MOUMITA Digitally signed by
MOUMITA DATTA
DATTA Date: 2024.08.17
17:02:27 -07'00'
Deepshikha
