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Shib Kumar Banerjee Vs. Rasul Bux - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata High Court
Decided On
Case NumberSuit No. 1546 of 1952
Judge
Reported inAIR1959Cal302
ActsCode of Civil Procedure (CPC) , 1908 - Order 7, Rule 18; ;Specific Relief Act, 1877 - Section 19
AppellantShib Kumar Banerjee
RespondentRasul Bux
Appellant AdvocateR.N. Mitra, Adv.
Respondent AdvocateS. Das, Adv.
Cases ReferredSuresh Chandra Khasnabis v. Bank of Calcutta Ltd.
Excerpt:
- .....nature of the suit, let me consider whether the suit can be said to be a 'suit for land' and the land in suit being situate outside jurisdiction, this court is competent to entertain the suit. it seems to be that on the authorities previously referred to, this suit in so far as it does not involve delivery of possession but only execution of a conveyance by the defendant, cannot be consideredto be a 'suit for land' within clause 12 of the letters patent.9. dr. das strongly relies on a decision of this court in the case of sm. bimal kumari v. asoke mitra, : air1955cal402 . it is also a purchaser's suit for specific performance in respect of land situate outside the jurisdiction of this court. according to dr. das, this case is a clear authority in support of the proposition that such a.....
Judgment:

P.C. Mallick, J.

1. This is a suit for specific performance of an agreement for sale of two items of immovable properties, both situate at Baranagar, outside the jurisdiction of this Court. One of the two properties, being premises Nos. 14, 15, 15/1, 15/2 & 15/A Nainan Musalmanpara Lane consist of a very substantial building on land measuring 13 cottas 4 chs., the other being premises No. 78 Nainan Musalmanpara Lane, consisting of 7 cottas of open land with practically no structure. It is pleaded in the plaint that the agreement was arrived at on 21-3-1950 at Calcutta, within the jurisdiction of this court and the entire consideration money of Rs. 20,000/- was paid in cash. It was agreed that the defendant would execute a proper sale deed within a year. This agreement and the payment of consideration are evidenced by a receipt. It appears from the said reciept that the defendant also agreed to give full possession within the same period of one year. A copy of the receipt is annexed to the plaint. It is alleged that the defendant has failed and neglected to execute the conveyance, though called upon. The decree claimed is a decree for specific performance of the agreement of sale simpliciter and an order on the defendant to execute a conveyance. Delivery of possession is not claimed. There is an alternate claim for a refund of the consideration money with interest at the rate of 6 per cent. per annum and damages assessed at Rs. 3,000/-.

2. In the written statement filed the claim is disputed. The agreement for sate is denied. It is denied that the title deeds were made over to the plaintiff pursuant to the agreement for sale, as alleged in the plaint. So also the payment of consideration money is totally denied. It is alleged that the title deeds were made over by the defendant to one J.N. Sinha for safe custody during the period of communal tension in February, 1950. when the defendant fled from Baranagar to Barrackpore. The receipt is alleged to be a forged and/or manufactured document. The jurisdiction of this court to entertain the suit has been denied and it is prayed that leave under Clause 12 of the Letters Patent, if granted, should be revoked.

3. On the pleadings, the following issues were settled :

1. Was there any agreement for sale as stated in paragraph 2 of the plaint?

2. Did the plaintiff pay the sum of Rs. 20,000/-to the defendant as alleged in paragraph 3 of the plaint?

3. Was there any agreement to execute the conveyance within a year on 21-3-1953 as allegedin paragraph 3 of the plaint?

4. Did the defendant grant the receipt embodying as agreement as alleged in paragraph 3 of the plaint?

5. Did the plaintiff suffer any loss as alleged in paragraph 7 of the plaint?

6. Is the document mentioned in paragraph 3 of the plaint forged, as alleged in the Written statement?

7. Did the defendant hand over the title deeds and other movables to J.N. Sinha for safe custody in the circumstances as stated in different clauses of paragraph 5 of the written statement?

8. Has this court jurisdiction to entertain and try this suit?

9. Is the plaintiff entitled to any relief? If so, what reliefs?

4. The trial began at the end of April last. After the examination of the plaintiff had progressed to some extent, it became clear that the plaintiff had many documents which would be of assistance to the court in arriving at a decision in this suit and which had not been disclosed. The plaintiff was apparently advised that the receipt was a clinching document which would prove the plaintiff's case and no other document need be disclosed or proved. When it appeared that there were other documents not disclosed, Mr. R.N. Mitter, learned Counsel for the plaintiff, asked for an adjournment to disclose those other documents. I granted the adjournment. Thereafter, a number of other documents were disclosed and when the trial again started at the end of July, these documents were tendered in evidence. Dr. Das appearing for the defendant, submitted that these subsequent documents should not be accepted as genuine and must be held to have been manufactured for the purpose of this case. I do not agree. Within a week after the suit was adjourned, these documents were disclosed. I have looked into these documents carefully and I have no reason to think that these documents have been manufactured for the purpose of this case. Further, in my judgment, the plaintiff is not a man who can manufacture all these documents. From the mere fact that the documents were not originally disclosed, but disclosed at a very late stage during the trial, I will not be justified in holding that the documents have been manufactured.

5. The plaintiff tendered his own evidence and the evidence of two other witnesses. The defendant tendered his own evidence and the evidence of a number of the other witnesses. Over and above this oral evidence, a number of documents have been tendered by either side in evidence.

6. It is convenient to consider, at this stage the only point of law raised by the defence. The point of law raised is as to the jurisdiction of this court to entertain this suit. It is contended that inasmuch as the subject-matter of the agreement for sale is wholly situate outside the jurisdiction of this court, this court has no jurisdiction to entertain this suit. In other words, this suit by a purchaser to enforce an agreement to sell land is a 'suit for land' within the meaning of Clause 12 of the Letters Patent. If it is a 'suit for land,' then clearly this court is incompetent to hear this suit. For the purpose of jurisdiction, suits by a purchaser for specific performance are divided into two categories : First, a suit for specific performance simpliciter, in which all that is claimed is that the vendor do execute a conveyance. As I understand the law as laid down in different judicial decisions, it is only a 'personal action' which is enforceable by a court of equity and can be entertained by such a court, even though the land is situtate outside. The purchaser having accepted title, such a suit does not involve determination of any question of title or interest in land. As such, it is not a suit for land. If in such a suit the plaintiff claims not merely a conveyance but posession of the land as well, then it ceases to be a suit for specific performance simpliciter. In such a suit decree claimed is not merely a decree directing the defendant to execute a conveyance but the decree must also direct making over possession of the land. Such a suit has been held to be a suit for land Reference may be made to the decision of Das, J., in the case of Khatun Bibi v. Lilabati Dassi, 49 Cal WN 80 : (AIR 1949 Cal 128) and to the judgments of the learned Judges constituting the Federal Court in the case of Mooljee Jaitha and Co. v. Khandesh Spinning and Weaving Mills Co. Ltd., AIR 1950 FC 83. Reliance has been placed by Dr. Das on a recent decision of this court, which will be considered later.

7. The first point to be considered, therefore, is whether the instant suit is a suit for specific performance simpliciter or it involves a decree for possession as well. The prayers in the plaint are : (1) specific performance of the agreement, (2) execution of a conveyance by the defendant, (3) delivery by the defendant of the other title deeds. The other prayers are not material for the determination of this question. The material allegations in support of the reliefs and the agreement for sale which is sought to be enforced are to be found in paragraphs 2 and 3 of the plaint. In paragraph 2 it is pleaded that the defendant agreed to sell on 21-3-1950 the properties free from encumbrances for the price of Rs. 20,000/-. In paragraph 3 it is pleaded that the plaintiff paid the entire consideration money of Rs. 20,000/- to the defendant at the said date and the defendant agreed to execute a proper sale deed within a year from the said date. The last sentence in paragraph 3 reads as follows :

'A copy of the receipt for the said sum of Rs. 20,000/- granted by the defendant to the plaintiff and embodying the said agreement for sale is annexed hereto and marked with the letter 'A'.'

The receipt, a copy of which is annexed to the plaint, records the following facts (i) a declaration that the properties are free from encumbrances, (ii) receipt of Rs. 20,000/- paid in cash; (iii) an obligation by the defendant to execute a proper sale deed, and (iv) a similar obligation to give full possession. The signature of the defendant appears on the face of the receipt witnessed by Jagadananda Sinha and Anil Kumar Basu.

8. It is clear that the contract for sale is not this document which ex facie is only a receipt. It is not in form an agreement between two parties. It is an unilateral document. It evidences certain facts. In my judgment, the document is not the agreement, but only evidence of an agreement arrived at between the parties. The agreement as evidenced by the document no doubt embodies twofold obligations undertaken by the vendor defendant, namely, not merely to execute a proper sale deed but to give possession as well. But the agreement pleaded in paragraphs 2 and 3, which is sought to be enforced in this suit, is the agreement undertaken by the defendant to execute a sale deed only and not the agreement to give possession. The suit as framed, therefore, is a suit to compel the defendant to execute a conveyance only and no decree for possession of the properties is eitherasked for or can be granted in this suit. Even if it is held, on the construction of paragraphs 2 and 3 of the plaint, that the agreement was to theeffect that the defendant would not only executea conveyance but also make over possession as well, the relief for possession is left out in the plaint and no leave under Order 2, Rule 2 of the Code isclaimed to institute a suit for possession of the same premises under the same contract. In other words, the claim for possession is totally abandoned. This being the nature of the suit, let me consider whether the suit can be said to be a 'suit for land' and the land in suit being situate outside jurisdiction, this court is competent to entertain the suit. It seems to be that on the authorities previously referred to, this suit in so far as it does not involve delivery of possession but only execution of a conveyance by the defendant, cannot be consideredto be a 'suit for land' within Clause 12 of the Letters Patent.

9. Dr. Das strongly relies on a decision of this court in the case of Sm. Bimal Kumari v. Asoke Mitra, : AIR1955Cal402 . It is also a purchaser's suit for specific performance in respect of land situate outside the jurisdiction of this court. According to Dr. Das, this case is a clear authority in support of the proposition that such a suit is a suit for land, even though the decree claimed is not a decree for possession. Dr. Das reminded me of the dictum of the Appeal Court in the case of Suresh Chandra Khasnabis v. Bank of Calcutta Ltd., 54 Cal WN 832 to the following effect :

'Where there is a decision of a single Judge upon a question of law (not given per incuriam), it is not right for any other single Judge of thatcourt to depart from it whatever his own views may be. The Judge may express his own views about that matter but his decision must be in accordance with the previous decision.'

On the strength of this dictum, Dr. Das submitted that even if my views in this matter do not agree with the views expressed by G.K. Mitter, J., in the above suit, I should follow that decision. The decision of a learned Judge of this court is always a persuasive authority and there are occasions when such a decision, even though it does not agree with the view of a learned Judge trying a subsequent suit, is followed by the learned Judge trying the subsequent case. His disagreement with the view previously expressed by a single Judge may not be strong enough to enable him to decide against that view. That is true enough. But all the same, the decision of a learned single Judge on his brother Judges is only a persuasive and not a compelling authority. It is not necessary for me in the instant case to express my opinion on the point, because in my view, if correctly read, the decision in : AIR1955Cal402 does not lay down any broad proposition that conclusively establishes the proposition contended by Dr. Das. The dictum of the Appeal Court above referred to, in my view, is nothing more than a rale of prudence laid down, namely, that a single Judge should normally follow a decision of a single Judge and should not depart from it lightly. It was never intended to lay down a proposition of law that the decision of a single Judge is a compelling decision on his brother Judges.

10. The case before G.K. Mitter, J. reported in : AIR1955Cal402 is a suit by a purchaser for specific performance of a contract for sale of land situate outside the jurisdiction of this court. The contract was embodied in a formal document in writing and containedthis provision that simultaneously with the execution of the conveyance the vendor shall give vacant and peaceful possession of the said premises to the purchaser or her nominee or nominees. The reliefs claimed, inter alia, are: (1) Specific performance of the agreement for sale; (2) leave under Order 2 Rule 2 C.P.C. in respect of possession of the said premises. The court held that if specific performance of the agreement is asked for simpliciter, in the instant case possession is involved, having regard to the agreement in suit. Reference may be made to the observation of the learned Judge at page 109. But the plaintiff claimed leave under Order 2 Rule 2 to sue for possession in a separate suit. The court held that granting or withholding leave is discretionary and if discretion is withheld in the circumstances of the case, as it should be, it becomes a suit for specific performance of an agreement in which possession is involved. This court had, therefore, no jurisdiction to fay the suit. The plaintiff in that case did not give up her right to possession under the agreement. On the contrary, he sought to keep that right alive. Had the plaintiff abandoned his right to possession, the case perhaps would have been different, as the observation of the learned Judge at page 113 (of Cal LJ): (at p 408 of AIR) clearly indicates:--

'It might have been open to her to give up her right to possession under the agreement and she could have asked for it if and when the document was executed on the strength of that conveyance, but that is not a course which she has chosen to adopt. It may be that in that case there would be other difficulties in her way. However that may be on the facts of this case I am not prepared to hold that the discretion of the court should be exercised in favour of the plaintiff in giving leave under Order 2 Rule 2.'

On this important point the instant case is distinguishable from the cited case. Mr. Das laid considerable emphasis on the observation of the learned Judge to this effect:

'The obligation to deliver possession is an integral part of the agreement for sale of land and the cause of action for possession is not different from the cause of action for specific performance.'

Dr. Das argued that if this be so, the purchaser's suit for specific performance of land must necessarily involve possession as well and as such it must be held to be a suit for land. The observations above referred to must be read in the background of facts in that case. It cannot be divorced from the context of the facts of that case. The facts in that case, as noted in the judgment, are that the formal agreement contained an express clause that simultaneously with the execution of the conveyance, possession must be made over. Hence, having regard to the terms of the agreement in that suit, there is no doubt that the obligation to deliver possession is an integral part of the agreement for sale and the cause of action for possession is not different from the cause of action for specific performance. The reasons given in support of the above observation 'make it abundandy clear that the learned Judge made the above observation only with reference to the facts of that case. He points out that the same facts essential to prove the case of specific performance are also both necessary and sufficient to support a case for possession. When the agreement is proved, the right to possession which is a clause in the agreement is proved as well. No additional fact need be proved to get a decree for possession. It is because of this that in the cited case 'the obligation to deliver possession is an integral part of the agreement.' In a case where the agreement is not embodied in a document and in which there is no express obligation to deliver possessionsimultaneously with the execution of a document or when the obligation to ' deliver possession is apart from and/or subsequent to and/or collateral to the agreement for sale, the obligation todeliver possession does not become an integral partof the agreement for sale. In order to obtain a decree for possession in such a case it will not beenough to prove the agreement for sale, but the agreement to deliver possession must be provedas well. It is impossible, therefore, to argue that the learned Judge intended in the cited case to lay down a broad proposition of law that in every agreement for sale of land whether there is a clause directing the vendor to give possession or not, the obligation to deliver possession is thereas an integral part of the agreement and as such all such suits by a purchaser against the vendor must be held to be a suit for land. In the instant case, there is no written agreement in which the obligation to deliver possession is made an integral part of the contract. The contract as pleaded in paragraph 2 of the plaint imposes an obligation on the vendor only to execute a conveyance. In the receipt no doubt there is evidence 'that there was a further obligation to make over possession. But whether such an obligation is an integral part of the contract or a collateral obligation is a question which has to be pleaded and an issue raised and proved before the defendant can bring the suit within the decision of the case reported in : AIR1955Cal402 . In the instant case, no plea was raised that the obligation to deliver possession was an integral part of the contract. There is no evidence to that effect, except the receipt. The plaintiff was not asked a single question on this point. In my view, it is an important fact which should have been raided in the written statement, so that an issuecould be raised thereon and evidence led on the point. In the absence of this averment in the written statement, and in the present state of evidence, it is impossible for me to record a findingthat making over possession was an integral part of the contract for sale in the present case and on such finding divest the jurisdiction of the court to hear the suit. As indicated before, the case of : AIR1955Cal402 is clearly distinguishable. I am unable to hold that on thebasis of the authority of this case that the instantsuit is a suit for land and as such this court is incompetent to try this suit.

11. Coming now to the facts. It must be recognised that the clinching document on which the plaintiffs case rests is the receipt. This receipt contains an admission by the defendant that he has sold the property, that he got the full consideration of Rs. 20,000/- in cash, and that he will execute a conveyance within one year from date. It is made crystal clear by the plaintiff that his whole case rests on the receipt, a copy of which is annexed to the plaint. The plaintiff would be entitled to a decree on the strength of the receipt unless the defendant succeeds in proving that the receipt is not a genuine document. The receipt contains a clear admission on the part of the defendant to have received the entire consideration money in cash and a clear undertaking to execute a conveyance within one year from the date of the receipt. This fact is realised by the defence. We have seen that the the plaintiffs case as to the agreement and the receipt has been pleaded in paragraphs 2 and 3 of the plaint. In paragraph 5of the written statement, paragraphs 2 and 3 ofthe plaint have been dealt with. The agreement and the receipt are denied and then in the varioussub-paragraphs of the said paragraph 5, the defendants case has been set out. The case made out is that the defendant had dealings with one Jagadananda Sinha who was a next door neighbour of the defendant. In or about 7-2-1950 there was communal tension at Baranagore and the defendant was forced to leave his Baranagore residence in a hurry. At that time the defendant handed over some moveables and title deeds of the properties in suit to J.N. Sinha for safe custody. I.N. Sinha agreed to keep them safely in his custody and return them to the defendant on demand. J. N. Sinha made arrangement for purchasing air passage to Dacca for the defendant and his family and at the request of J. N. Sinha the defendant put his signature on several blank papers including some demi papers which the said J.N. Sinha represented would be necessary for the purpose of getting air passage for the defendant and other members of his family. The defendant in good faith signed those papers and handed them over to the said J. N. Sinha. The present suit has been instituted by the plaintiff at the instigation, collusion and conspiracy with the said J. N. Sinha on a forged and/or manufactured document with the ultimate intention to grab the said valuable properties. In sub-paragraphs (d)(yi) of paragraph 5 the case as to receipt is stated in the following terms :

'The defendant denies that he granted any receipt to the plaintiff as alleged or at all. The defendant states that the said purported receipt annexed to the plaint and marked with the letter 'A' is a forged and/or manufactured document, it was never executed by the defendant nor granted by the defendant to plaintiff and/or at all and the alleged consideration under it never passed.'

12-20. (His Lordship then considered the evidence and circumstances of the case and continued as follows) :

On a consideration of the entire evidence onrecord, I hold that the agreement for sale was arrived at between the parties, that the entire consideration of. Rs. 20,000/- was paid by the plaintiff to the defendant on 21-3-1950 when the agreement for sale was concluded, that the plaintiff performed his part of the bargain and that the defendant has committed a breach in not executing a conveyance in favour of the plaintiff.

21. The point has still to be considered whether I should enforce the agreement in this case even though there is a binding contract between the parties and one of the parties has committed a breach. A Court of Equity is not bound to grant a decree for specific performance of an agreement even though the agreement is proved and the plaintiff has performed and/or is ready and willing to perform his part of the bargain. I have to take into consideration the transaction itself and the circumstances surrounding the transaction to decide whether specific performance should be decreed. The defendant entered into the agreement for sale under traffic circumstances. It was a time of great tension when under a sense of insecurity of his life and property the defendant agreed to sell his properties including the bastu. It is clear that the price at which the defendant agreed to sell is very much less than its proper price. The evidence of valuation of the property given by the valuer called by the defendant may be absolutely worthless. But the plaintiff himself admitted that the value of the properties would be at least Rs. 30,000/- to Rs. 35,000/-. According to the defendant the value as much more. In my judgment the properties have been agreed to be sold at less than half its real value and the defendant was induced to enter intothis agreement for sale under such circumstances,that the Court of Equity should not compel him toperform such agreement. Consideration of equityprompts me not to enforce this contract. On theother hand the plaintiff has paid the sum ofRs. 20,000/: to the defendant and for all these yearsthe plaintiff is deprived of the user of this money.The plaintiff in law is entitled to compensation insubstitution for specific performance. Indeed theplaintiff has claimed an alternate relief in this suit,namely, return of the Rs. 20,000/- plus interest plusRs. 3,000/- as compensation. In my judgment thedecree that should be passed in favour of the plaintiff in this case is a decree for Rs. 20,000/- withinterest at the rate of six per cent, per annum from21-3-1950 up to this date with further interest onRs. 20,000/- at the same rate till the date of realisation, and no further compensation and I pass adecree accordingly. The decretal amount is recoverable by attachment and sale of the properties inexecution of this decree. It will take time for theplaintiff to effect such attachment and to protect theplaintiff. I should injunct the defendant from dealing in any way with the properties by way of mortgage, sale or otherwise for a period of six monthswithin which period the plaintiff is expected tolevy attachment on the properties in execution ofthis decree. Though the plaintiff would be entitled to levy attachment he will not be entitled tobring the properties to sale in execution of thisdecree for a period of six months from this date.The plaintiff will also get the costs less one day'shearing costs. I deduct one day's hearing costs because at the instance of the plaintiff the suit hadto be adjourned to enable the plaintiff to disclosefurther documents.


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