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2009 Supreme(Gau) 617
IN THE HIGH COURT OF GAUHATI (SHILLONG BENCH)
Biplab Kumar Sharma, J.
Sudhir Ranjan Chanda - Appellants
Vs.
Uma Dutta - Respondent
R.S.A. 1(SH) of 2004
Decided On: 28.08.2009
Advocate Appeared:
For Appellant/Petitioner/Plaintiff: R. Choudhury, Adv.
For Respondents/Defendant: S. Chakraborty, Adv.
Headnote:
Transfer of Property Act - Section 53A – Evidence – Family - Shares – However competent authority of State Government rejected application submitted by father of plaintiff and refused permission to transfer plot of land defendant appellant - Such refusal was communicated to father of plaintiff by Deputy Commissioner East Khaki Hills District Shilling vide his letter – Held, In instant case apart from contract agreement being for an act of impossibility agreement also spent its force once permission was rejected by competent authority of Government of Meghalaya - Subsequent permission granted after long expiry of one of joint applicants father of plaintiff respondent is of no consequence - Moreover said permission has been withdraw doctrine of part performance and protection sought for there under is a mixed question of fact and law - As notice above said protection was neither pleaded in written statement nor brought on evidence – Now appellate stage appellant without any material whatsoever cannot be permitted to fall back on said doctrine so as to frustrate legitimate claim of plaintiff respondent - Further Section 53A of Act also does not have any application to facts and circumstances of instant case discussed in detail above - Appeal dismissed
B.K. Sharma, J.
1. This second appeal is against the concurrent findings of fact and law arrived at by the learned courts below. The trial courts judgment and decree is dated 7.7.2003, while the first appellate courts judgment and decree is dated 14.5.2004.
2. Briefly stated the facts leading to filling of the Title Suit being TS No. 25(H)/1997 is that the father of the plaintiff respondent late Kamini Kumar Gupta was the absolute owner of a landed property covered by Patta No. 112, plot No. 20 and holding No. 53 (new No. 45) of the Shillong Municipality. The land is situated at Jail Road, Shillong, which is specifically described in the schedule to the plaint.
3. Shri Sudhir Ranjan Chanda, the defendant appellant had entered into an un-registered agreement of sale with the plaintiff, respondent's father on 26.2.1978 in respect of a plot of land measuring more or less 3,000 sq. ft., which forms part of the aforesaid landed property described in the schedule to the plaint. The consideration stipulated in the agreement was Rs. 8,000. Again on 8.3.1978, another agreement was entered into by and between the parties, i.e., the appellant and the plaintiff respondent's father in respect of the same plot of land raising the consideration money from Rs. 8,000 to Rs. 12,000.
4. The property being situated in the normal area of Shillong, permission for transfer of property by way of clear sale was mandatory. Accordingly, the father of the plaintiff respondent and the defendant appellant submitted an application to the competent authority of the State Government seeking the statutory permission for transfer of the suit land. Pending permission for the transfer, the defendant appellant was allowed by the father of the plaintiff to occupy his servant's quarter standing on the plot of land on the presumption that the permission for the transfer of the land would be accorded by the concerned authority. However, the competent authority of the State Government rejected the application, submitted by the father of the plaintiff and refused the permission to transfer the plot of land to the defendant appellant. Such refusal was communicated to the father of the plaintiff by the Deputy Commissioner, East Khasi Hills District, Shillong vide his letter dated 6.1.1986.
5. The father of the plaintiff died on 8.7.1992 leaving behind his widow and the plaintiff respondent as the surviving legal heirs, following which the entire property together with the suit land devolved on the plaintiff respondent and her mother. The plaintiff respondent approached the revenue authority for mutating her name in the suit property to which her mother had given full consent. Accordingly, the application for mutation submitted by the plaintiff respondent, was registered as Mutation Case No. 35/1994 and the mutation was allowed vide order dated 26.8.1994.
6. According to the plaintiff respondent, in view of the refusal of permission by the concerned authority to transfer the suit land and on the death of her father, the agreement (Ext. 1 and 2) became infructuous, leaving no scope for transfer of the suit land to the defendant appellant in accordance with law.
7. The case of the plaintiff respondent in the suit is that the defendant appellant is a rank trespasser and after refusal of the permission for sale of the land, he ought to have vacated the suit land. Her request for vacating the land having not been yielded any result, she filed the suit after following the due procedure.
8. The suit was resisted by the defendant appellant raising the usual plea like non-maintainability of the suit, no cause of action, under valuation of the suit land, the suit being barred by principles of waiver, estoppel and acquiescence, and being bad for non-joinder and mis-joinder of necessary parties, etc. On merit, it was contended that the suit land was disposed of by the father of the plaintiff respondent in favour of the defendant appellant. On the basis of the pleadings, the following
