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IN THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
DEVASHIS BARUAH, J.
Jalaluddin Ali S/o Late Rahizuddin Ali – Appellant
Versus
Mrs Manju Begum And 3 Ors – Respondents
RFA 81 of 2018
Decided on : 10-06-2022
Code of Civil Procedure, 1908 - Section 96 read with Order XLI Rule 1 - Limitation Act, 1963 - Article 54 - General Clauses Act, 1897 - Section 27 - Indian Evidence Act, 1873 - Section 114 - Specific Relief Act, 1963 - Section 16 (c) - Agreement for sale -readiness and willingness of the plaintiffs to perform their part of the contract. The -whether the plaintiff was ready and willing to perform his part of the contract can be inferred from the facts and circumstances of a particular case. It was observed that it is not necessary for the plaintiff to produce ready money but it is mandatory on his part to prove that he has the means to generate the consideration amount. (Para 44,45)
Finding of the Court:
Defendant had failed to produce any evidence to show that he had requested predecessor-in-interest of the plaintiffs or even after death of predecessor-in-interest of plaintiffs to produce their necessary documents for purpose of obtaining sale permission as well as execution of the sale deed - On other hand, he had specifically mentioned that he had not taken any steps for obtaining sale permission and even if balance consideration was paid then also he shall not execute sale deed by obtaining sale permission - Relevant to take note of that Clause 2 of agreement specifically mentioned that it was responsibility of the defendant to obtain sale permission but there is no material placed on record to show that defendant had taken any steps in that regard rather he had admitted that he had not taken any steps towards obtaining sale permission - relevant to take note of that total consideration for suit land was already been paid which has been duly admitted by defendant and remaining amount plaintiff has specifically admitted that they are ready and willing to pay the same - Agreement for sale being a duly admitted document as well as also the receipt of consideration total consideration amount - Court is in agreement with the judgment and decree passed by the trial court, and accordingly, affirms the same thereby dismissing instant appeal - plaintiffs are entitled to for specific performance of agreement and plaintiffs are directed to pay the remaining balance amount within a period of 2 (two) months - Decreed that the plaintiffs are entitled to permanent injunction suit thereby restraining the defendant, his men, agents etc. from alienating or transferring schedule land in favour of any other person or persons and not to change the nature and character of same.
Result: Ordered Accordingly
Unchallenged evidence is considered to be accepted as true and reliable, as it has not been disputed or contradicted through cross-examination or specific denial. When evidence is not effectively challenged by the opposing party, it generally holds significant weight in establishing facts and can be used as a basis for the court's findings. In the context of legal proceedings, such evidence can be relied upon to support claims, demonstrate conduct, or affirm the existence of certain facts, provided that procedural requirements and rules of evidence are satisfied (!) (!) (!) (!) .
JUDGMENT :
Heard Mr. Z. Mukit, the learned counsel for the appellant and Mr. R. Ali, the learned counsel appearing on behalf of the respondents.
2. This is an appeal under Section 96 read with Order XLI Rule 1 of the Code of Civil Procedure, 1908 (for short, the CPC) against the judgment and decree dated 23.04.2018 passed by the Court of the Civil Judge, Kamrup at Amingaon in Title Suit No. 84/2015.
3. For the purpose of deciding the instant appeal, the brief facts of the case may be taken into account. For the sake of convenience, the parties herein are referred to in the same status as they were in the suit.
4. The predecessor-in-interest of the plaintiffs one Insan Ali (since deceased) had entered into an agreement for sale of land with the defendant on 24.04.2010. The subject matter of the said agreement for sale was a plot of land measuring 1 Bigha covered by Dag No. 906 of KP Patta No. 55 situated at Village-Koch Para (Mirza) under Mouza-Chayani in the district of Kamrup, Assam. The said plot of land has been specifically described in the Schedule of the plaint. As per the terms of the said agreement, the total consideration of the land was Rs.18 lakh and the predecessor-in-interest of the plaintiffs had agreed to pay a sum of Rs.4 lakh as advance and the balance amount of Rs.14 lakh would be paid subsequently. In terms of the Clause 2 of the said agreement, the necessary sale permission would be obtained by the defendant from the authority concerned and in terms with Clause 4 if the defendant failed/neglected to execute the registration of the sale deed after obtaining the permission, the predecessor-in-interest of the plaintiffs would be at liberty to take legal action. It was also one of the terms of the said agreement as stipulated in Clause 5 that the defendant shall bound to take responsibility regarding the schedule land if there is any fault/defect in record or in possession. Pursuant to the said agreement for sale being executed and Rs.4 lakh paid as advance, the defendant was further paid on 26.06.2010, 01.09.2010 and 26.01.2011 further advances to the tune of Rs.4 lakh, Rs.4 lakh and Rs.3 lakh respectively thereby the defendant in total was paid a total consideration of Rs.15 lakh as advance against the agreed total sale consideration of Rs.18 lakh. It was alleged in the plaint that after receipt of Rs.15 lakh as advance, the defendant had handed over the possession of the schedule land in favour of the predecessor-in-interest of the plaintiffs by doing the proper demarcation of the land and predecessor-in-interest of the plaintiffs, during his lifetime, possessed the said plot of land by constructing boundary walls and an Assam Type house over the schedule land with the permission from the defendant. It was further alleged in the plaint that the predecessor-in-interest of the plaintiffs was always ready and willing to purchase the suit land and for which he had executed all the necessary papers for obtaining the sale permission and handed over the same to the defendant. The predecessor-in-interest of the plaintiffs also agreed to pay the necessary money to purchase the stamps and registration of the sale deed after obtaining the sale permission by the defendant from the concerned authority in respect of the schedule land by receiving the agreed balance amount.
5. During the lifetime of the predecessor-in-interest of the plaintiffs, on several occasions, he went to the residence of the defendant personally and requested him to take steps for obtaining the sale permission and to execute the sale deed immediately in his favour by receiving the balance amount of Rs.3 lakh but the defendant remained silent. Under such circumstances, the predecessor-in-interest of the plaintiffs, through his advocate on 07.06.2011, had issued a legal notice and thereby requested the defendant to take immediate steps for obtaining
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