Back
1996 Supreme(Ori) 181
High Court Of Orissa
DEEPAK MISRA
NIGAMANANDA PATRA - Appellant
Versus
SARAT CHANDRA PATRA - Respondent
Second Appeal 50 Of 1983
Decided On : 11/18/1996
BIBHUTI BHUSAN MISHRA, P.K.MALICK
A party to a contract can abandon the relief of specific performance of contract by amendment of the plaint at the appellate stage and pursue the relief against the other party for recovery of possession, provided that the amendment does not change the nature and character of the suit and does not cause any prejudice to the other party.
Headnote:
SPECIFIC PERFORMANCE OF CONTRACT - AMENDMENT OF PLAINT - RELIEF ABANDONED - RECOVERY OF POSSESSION - S. 53-A OF THE TRANSFER OF PROPERTY ACT - ESTOPPEL - S. 115 OF THE EVIDENCE ACT - APPLICABILITY.
Fact of the Case:
Plaintiffs sued for specific performance of an oral contract for exchange of properties or, in the alternative, for recovery of possession. The trial court allowed the prayer for recovery of possession and realization of the price of trees cut by the defendants. The appellate court concurred with the findings of the trial court and dismissed the appeal. The defendants appealed to the Supreme Court.
Finding of the Court:
The Supreme Court held that the plaintiffs were entitled to abandon the relief of specific performance of contract by amendment of the plaint at the appellate stage and pursue the relief against the defendants for recovery of possession. The court also held that the defendants were not entitled to the protection provided under S. 53-A of the Transfer of Property Act as their possession was purely permissive and they were not the owners of the property on their own showing. The court further held that the defendants were not estopped from claiming ownership of the property under S. 115 of the Evidence Act.
Issues: 1. Whether the plaintiffs were entitled to abandon the relief of specific performance of contract by amendment of the plaint at the appellate stage and pursue the relief against the defendants for recovery of possession? 2. Whether the defendants were entitled to the protection provided under S. 53-A of the Transfer of Property Act? 3. Whether the defendants were estopped from claiming ownership of the property under S. 115 of the Evidence Act?
Ratio Decidendi: 1. The court held that the plaintiffs were entitled to abandon the relief of specific performance of contract by amendment of the plaint at the appellate stage and pursue the relief against the defendants for recovery of possession because the amendment did not change the nature and character of the suit and did not cause any prejudice to the defendants. 2. The court held that the defendants were not entitled to the protection provided under S. 53-A of the Transfer of Property Act because they had denied the existence of the contract and because they had not performed or were not willing to perform their part of the contract. 3. The court held that the defendants were not estopped from claiming ownership of the property under S. 115 of the Evidence Act because they knew very well that they were not the owners of the land.
Final Decision: The appeal was dismissed.
DIPAK MISRA, J.
( 1 ) DEFENDANTS Nos. 3 (a) and 4 originally were appellants against an affirming judgment in a suit for specific performance of contract and in the alternative for recovery of possession. During pendency of the appeal, due to death of defendant No. 4 (appellant No. 2) his legal representatives being substituted have prosecuted the present appeal.
( 2 ) THE case of the plaintiffs is that they are the owners of 'b' schedule property measuring Ac. 1. 45 decimals and the defendants are, the owners of 'a' schedule property measuring Ac. 0. 34 decimals. As shown in the plaint genealogy the defendants are the descendants of a common ancestor. Defendant No. 1 represents one branch, defendant No. 2 the second and defendants Nos. 3 and 4, the third branch. In the year 1971, the defendants approached the plaintiffs to give them 'b' schedule properties in exchange of 'a' schedule properties. The plaintiffs agreed and an oral contract was effected on 24-8-71. In part performance of the contract, the defendants 2, 3 and 4 shifted to the 'b' schedule land. It was only defendant No. 1 who did not comply with the terms of the contract. As the defendant No. 1 did not shift, 1/4th of the 'b' schedule property was left vacant. The defendants 2 to 4 constructed their residential houses and delivered possession of their respective shares in the 'a' schedule land and bari. Defendant No. 2 gave delivery of possession of his portion of 'a' schedule homestead land. When the plaintiff wanted to possess the same, defendant No. 1 created disturbance which led defendant Nos. 3 and 4 not to deliver possession of their portion of the homestead. Later on, defendant No. 1 wanted to back out from the agreement on the allegation that defendant Nos. 3 and 4 had no interest in the suit schedule land. Defendant No. 1 dispossessed the plaintiff from an approximately 1/4th of the 'a' schedule bari land. The further case of the plaintiff is that the defendant Nos. 2 to 4 while constructing their residential houses over 'b' schedule land had cut trees valued at Rs. 95/- and, therefore, the said amount was recoverable as damages. With the aforesaid averments the plaintiff prayed for the reliefs as indicated earlier.
( 3 ) THE defendants 1, 2 and 4 filed a joint written statement. The original defendant No. 3 having died during pendency of the suit his legal heirs were brought
on record, as defendant Nos. 3, 3/a and 3/b. The case of defendant Nos. 1, 2 and 4 is that the father of the defendants No. 3 and 4 was given in adoption to one Chintamani and he inherited the properties of the said Chintamani. As their father was adopted by Chintamani they had no title in respect of 'a' schedule homestead and, therefore, they were incapable of validly entering into any agreement concerning the said land. They have further pleaded that the fathers of defendant Nos. 1 and 2 were the only owners of 'a' schedule land and the same was apparent from the settlement record of rights of 1923-24. These defendants have also disputed the existence of the alleged agreement referred to in the plaint and questioned its validity. They have disputed the fact of delivery of possession. Their positive case is that the defendant Nos. 2 to 4 have made constructions over the 'b' schedule Bagayat. To justify the said construction, they have indicated that the father of the plaintiffs encroached six decimals out of homestead plot No. 2429 and for that reason the fathers of defendant Nos. 1 and 2 came to possess half of the Bagayat land, and later on there was an agreement in 1973 to exchange the other half of the Bagayat of the land with the half of the bari of defendant Nos. 1 and 2. After this agreement was entered into the defendant Nos. 1 and 2 came to be the owners of the entire Bagayat but however the plaintiffs fraudulently transferred a portion of that Bagayat in favour of one Bijoy. Defendant Nos. 2 to 4 constructed their residential houses on the rest portion of 'b' schedule
