High Court of TripuraRSA/7/2010dismissed

Hamlata Ghosh Andfive ORS v. Rani Bala Acharjee And 16 ORS

2015-03-10Hon'Ble Mr. Justice S. Talapatra13 pages

INTHEHIGHCOURTOFTRIPURA AGARTALA R.S.A.No.07of2010 1. Smt.HemlataGhosh,

2. ShriPradipGhosh,

3. ShriAjitGhosh,

4. ShriRabiGhosh,

5. ShriAsitGhosh,

6. Smt.RinaGhosh,

! #$ %%%%Appellants -Versus- 1. RaniBalaAcharjee,**** &

2. (On death is substituted by the LRs,therespondentsherein)Nani GopalAcharjee**** [On death is substituted by the LRs] (a) Smt.DipaliAcharjee(wife), (b)SriDilipAcharjee(son), (c)Smt.RupaliAcharjee(daughter), (d)SriPradipAcharjee(son), (e)Smt.SimaAcharjee(daughter), (f)Smt.GopaAcharjee(daughter),

3. ShriHaridasAcharjee,

4.ShriDwijenAcharjee,

5.ShriRanjitAcharjee,

6.ShriSanjitAcharjee,

7.ShriSujitAcharjee,

8. ShriAjitAcharjee,

9. ShriSwarajitAcharjee,

10. ShriBikashAcharjee,

11. Smt.GitaDeb, '() * $+ " 12. ShriSankarDeb,

'() * $+ " 13. Smt.UmaRaniDeb, '() * $+ " 14. ShriDipakDeb,

'() * $+ " 15. Smt.BiplabDeb,

'() * $+ " 16. Smt.SikhaDutta,

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17.SudhangshuAcharjee /! ) )$ ( 0 (a) Smt.SitaAcharjee(wife), (b) SriSubhashAcharjee(son), (c) Smt.SucharitaAcharjee(daughter), ) # ) . . & (d) Smt.SebikaAcharjee,

# (e)Lt.DevikaAcharjee,

/**** As per order dated 13.01.2011 passed in CM Appl. No.87 of 2010, the name of the respondent No.1, namely RaniBalaAcharjeehasbeendeleted] [**** As per order dated 13.01.2011 passed in CM Appl. No.82 of 2010, the legal heirs of the respondents No.2 & 17 havebeensubstituted] ............Respondents BEFORE THEHON'BLEMR.JUSTICES.TALAPATRA 1

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. )$ 69755766 ) < = Whether in view of the judgment and decree dated17.01.1985passedinT.S.No.04of1979, the present suit was barred by Section 11 of C.P.C.i.e.thelawof

andif,whether courts below committed error by deciding the suitinfavouroftheplaintiff? [4] +

). )$ #. 69766:>? * &7; 6:9: + ) * = Theplaintiff(PWG1)statedonoaththattheB- Schedulelandisthesuitlandwhichwasletout to the Defendant No.1. After that a suit for specific performance of contract bearing No.T.S.71/62 was brought before Sadar Munsiff against the plaintiff wherein it was observed (ExbtsG 1 & 2) that the defendant No.1 is in possessionofthesuitlandbyvirtueofadeedof agreement and it was further observed that the plaintiffsettledtosellthelandtothedefendant No.1atacompensationofRs.400/Gandtowards

that consideration the defendant No.1 paid Rs.101/G as earnest money. This fact has been admittedbytheplaintiffinhiscrossGexamination also.Ithasbeenfurtheradmittedbytheplaintiff (PWG1) in his crossGexamination that on the basis of the said contract defendant No.1 took delivery of possession of the suit land. The defendantno.2(DWG1)statedonthebasisofthe contract as aforesaid, defendant No.1 took delivery of possession of the suit land as a part performance of the said contract and after that he purchased the front portion of the suit land from the defendant No.1 and has been in possessionofthesuitlandsince19yearsback.

According to provision of Section 53 A of the TransferofPropertyAct: "Where any person contracts to transfer for consideration any immovable by writing singed 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 for the contract taken possession of the property from anypartthereof,orthetransfereebeingalready in possession continues in possession in part performance of the contract has done some act infurtheranceofcontract,andthetransfereehas performed or willing to perform his part of the contract,thennotwithstandingthatthecontract, though required to be registered, has not been registeredorwhereisaninstrumentoftransfer, that the transfer has not been completed in the manner prescribed therefore by the law for the timebeinginforce,thetransferororanyperson 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 expresslyprovidedbythetermsofthecontract."

It is further noticed from the deposition of the D.W.1thatasperorderinthedocumentmarked Exbts. 1 & 2 and as per the said direction defendantNo.1depositedthebalanceamountof Rs.299/G in the local treasury by means of treasury challan marked Exbt.A. So, I find that according to provision of Section 53GA of TransferofPropertyAct,thedefendantNo.1has complied with the direction of the court, and completedthecontractbydepositingthebalance amountinthetreasurybymeansofachallanas aforesaid and it is also noticed from the deposition of the plaintiff (PWG1) that the defendant No.1 has been in possession of the suitlandsincethetimeofinitialagreement.Itis alsofurthernoticedthatthedefendantNo.

in accordance with the law as provided in the Section mentioned above. It is further noticed fromthedepositionofthedefendantNo.1(DWG 1)thatthedefendantNo.1transferredaportion of the suit land to him and accordingly he has beenpossessingthe saidportion since19years back by virtue of his purchase. It is further noticed from the deposition of DWG1 that the plaintiffbysuppressingtherealfact,hasbrought this suit for declaration of title and for khas possessionalthoughtheplaintiffhadalreadylost his title and interest over the suit land. In view ofthediscussionasabovethesuitoftheplaintiff is not maintainable in its present form and nature. Hence, issue No.1 & 3 are decided againsttheplaintiff.

[5] @ ) ) * #. = It is noticed from the deposition of the plaintiff (PWG1)andfromthedepositionoftheDWG1that the defendant No.1 entered into an agreement withtheplaintiffforpurposeofthesuitlandand it is also noticed from the documents marked Exbts.1&2thattheplaintiffreceivedRs.101/G from the defendant No.1 by way of earnest moneyandasapartperformance,thedefendant No.1tookdeliveryofpossessionofthesuitland afterthatasperdecisionofthecourt,defendant No.1 deposited the balance amount Rs.229/G in favour of the plaintiff by a treasury challan markedExbt.A,inappropriateHeadofAccountin due time. Thus I find that the defendant No.

1 had already complied with the terms and conditionofthecontractandafterthataportion ofthesuitlandwassoldtodefendantNo.2.So,I find that the plaintiff suppressing the real fact broughtthissuitwhohasalreadypartedwithhis right,title,interestandpossessionoverthesuit land, hence, the plaintiff is not entitled to get any decree of khas possession of 'B' schedule land. So, this issue is also decided against the plaintiff.

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= "Adecreeofthespecificperformancecontractof sale does not create interest in the immovable property contracted to be sold. It only gives a righttothedecreeholderto enforcethe decree throughtheinstrumentabilityoftheCourtandhe getstherightoftheJ.D.atthetimeofexecution. But, in this instant suit the decree was not executedbutitwasadjustedandtheD.H.Kartik Lal Deb did not get the title of the land. A contract for sale creates no right in the land contracted to be sold. A decree for specific performance only entitles the decree holder to enforcethedecreebyexecutionbutthedecreeis frustrated by compromise and adjustment.

So, Kartik Lal Deb did not get the land and his contracttotransferthelandtothepredecessorG inGinterest of defendants, create no interest for thedefendants.Defendantsareinductedintothe landbythepermissivepossessorKartikLalDeb. Theyhavenorightinthesuitland.Plaintiffsare entitled to get declaration that they are the coG sharers of the suit properties to the extent of 50% along with proGdefendant No.13 and entitled to recover the possession of the BG SchedulelandbyevictionofthedefendantNos.1 to5andentitledtogetnootherreliefs."

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) . $* = (i)certifiedcopyofthepetitionofKartikLalDeb inT.S.Ex.(T)16of1997,Exbt.F. (ii) certified copy of the orders passed in the executioncasedated18.06.1999(Exbt.Gseries) andtheorderdated05.09.1999(Exbt.F)andone cancellation of power of attorney (Exbt.C) were alsobroughtonrecord. [10] @

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& FB, -6A6::9 ) * = In view of my foregoing discussions, I come to the conclusion that the Attorney has lost all his forcetotakeanystepinthepresentproceeding on behalf of the D.H. due to cancellation of the PowerofAttorney. Now the question is whether the compromise petitionfiledbytheD.H.andJ.DsU/Or.23,Rule 3 C.P.C. is maintainable. Order 23, RuleG3 deals with the circumstances when a compromise

petition is filed by the parties in a pending suit on the basis of which the court has been empowered to pass a decree. So it is clear that an application U/Or. 23, RuleG3 C.P.C. is not applicable in case of an execution proceeding. However, when a decree has been otherwise adjusted in whole or in part to the satisfaction out of court, the D.H. may certify such payment of adjustment to the court U/Or. 21, RuleG2 C.P.C.andthereafterthenecessaryordermaybe passed. With the above observation, the application U/Or.23Rule3oftheC.P.C.standsdismissed. [12] @ ) ) * 7?796:::

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( JUDGE