Uma Majumder Nee Sen Chowdhury v. Rakhal Ch Andra Majumder And ANR
INTHEHIGHCOURTOFTRIPURA AGARTALA R.S.A.No.33of2009 Smti.UmaMajumderNeeSenChoudhury,
! """"Appellant -Versus- 1. ShriRakhalChandraMajumder,
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! ............Respondents BEFORE THEHON'BLEMR.JUSTICES.TALAPATRA ,
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8 "So, in conclusion it has transpired that the execution of the sale deed in respect of the purchasedlandisnotdisputablebutthepath way claimed by the plaintiff does not form part of the purchased land and it appears probable that Sri Maran Chakraborty and others who raised objection against the use ofpathwaybytheplaintiffaretheownerand possessor of it. It was duty incumbent upon theplaintifftopreparethesaledeedkeeping in mind the path way which will lead to the mainroadformthepurchasedland." [3] - $
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035520038 (a) Whether the statutory obligation of a vendor conferred under Section 55(2) of the T.P. Act, 1882 can be avoided and the purchaser can be denied the right which the vendorexercisedbeforetransfer? (b) Whether any separate agreement for ingress and egress road is at all necessary when the registered sale deed itself is clear andexplicitonthatpoint?
(c)Whetherabonafidepurchaseroflandon valuable consideration can be refused the ingress and egress path by the vendor and thus render the purchaser unable to utilize thesaidpurchasedland? (d)Whetherselling ofa landby apersonby showing the private path of another person and without arranging of his own is permissibleunderlaw? [4] % % (
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8 "The seller shall be deemed to contract with the buyer that the interest which the seller professes to transfer to the buyer subsists andthathehaspowertotransferthesame: Provided that, where the sale is made by a person in a fiduciary character, he shall be deemed to contract with the buyer that the seller has done no act whereby the property is encumbered or whereby he is hindered fromtransferringit. Thebenefitofthecontractmentionedinthis rule shall be annexed to, and shall go with, the interest of the transferee as such, and may be enforced by every person in whom that interest is for the whole or any part thereoffromtimetotimevested." [6] !
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8 Thisissuedealswiththecruxofthissuit.The execution of sale deed bearing No.IJ487 dated10.03.2004bythedefendantsinfavour of the plaintiff for the purchased land is not disputed. The defendants admitted the
execution of the sale deed. The point in dispute relates to the path way leading from the purchased land to the main road. The plaintiff claims that during execution of sale deed the defendants showed her the path way on the western side of the purchased land which is to be used to reach the main road. The defendants denies of giving such assurance. Theaboveclaimanditsdenialrequiresusto focus on the language of the sale deed. It does not reveals any such agreement or assurance by the defendants to the plaintiff toprovidepathway.Thesaledeedisvividin respect of the purchased land for a consideration value of Rs.1,00,000/J. The plaintiff (P.W.
J1), PWJ2, Jiban Sen Choudhury,PWJ3,HimangshuBadyaandPWJ 4 Ashutosh Majumder although in their evidencedeposedabouttheassurancebythe defendants but the fact remains that it finds noplaceinthesaledeed.Thedefendantside with reference to the above focused on section 92 of the Indian Evidence Act and contended that the documentary evidence will over ride the oral evidence. This contentionhasforceastheentiretransaction relating to the purchased land was written down in the sale deed and as stated above theassuranceoragreementofprovidingpath wayfindsnomentioninthesaledeed.
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JUDGE