In this second appeal, the High Court dismissed the challenge to the first appellate court's decree granting specific performance of an agreement for sale. The Court held that Section 17 of the Specific Relief Act was inapplicable as the vendor had exclusive title, and the appeal lacked merit.
The appeal was dismissed without costs.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
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S.A. No. 336 of 2017
IN THE HIGH COURT OF JHARKHAND AT RANCHI
S.A. No.336 of 2017
.... .... …. Defendants/Respondents/Appellants
Versus
All permanent resident of village –Sillidih, P.O. –Tutkee (T.) Nawadih and P.S. –Silli, District –Ranchi, PIN Code -835102
.... .... …. Plaintiffs/Appellants/Respondents 6. Priya Sarkar, wife of Subonik Roy, daughter of Late Arup Kumar Sarkar, resident of P.O. & P.S. –Bailgachiya, District –Kolkata -700037
.... .... …. Defendant/Respondent/Performa Respondent
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For the Appellants : Mr. Badal Vishal, Advocate
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P R E S E N T
HON’BLE MR. JUSTICE ANIL KUMAR CHOUDHARY
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By the Court:-
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aside the judgment and decree passed by the trial court being the SubJudge-II, Ranchi, in Title Suit No. 160 of 1998 dated 05.10.2015 and allowed the appeal and directed the respondent-defendants to execute the sale deed as per the agreement to sale (marked Ext.1) within three months from the receipt of the judgment of the first appellate court by the trial court; failing which the appellants-plaintiffs shall be at liberty to take the recourse of law for execution of the judgment and decree passed by the first appellate court and further permanently restrained the defendants-respondents from entering into any agreement and/or in disposing of the suit property by way of sale, gift, exchange or otherwise to any other person except the plaintiffs-appellants.
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24.11.1995 vide Ext.2 in presence of the witnesses and Sanjit Kumar Sarkar promised to execute the registered deed of sale in favour of the plaintiffs-appellants within a month and put the plaintiff no.1 and Smt. Sima Chand in possession of 3 Kathas of land as part performance of agreement. Smt. Sima Chand died on 16.10.1997 leaving behind the plaintiff no.1 and their daughters and one minor son. The plaintiff no.1, after the death of Smt. Sima Chand requested Sanjib Kumar Sarkar several times and lastly on 17.08.1998, to execute and get register a deed of sale in favour of the plaintiffs but the defendant went on postponing the matter on one pretext or the other. The plaintiffs asserted that the plaintiffs were always ready and willing to perform their part of the agreement and are still ready and willing to perform their part of the agreement. The plaintiffs further pleaded that the plaintiffs sent a legal notice to Sanjib Kumar Sarkar on 07.09.1998 by registered post, requesting to execute the registered deed of sale in favour of the plaintiffs but Sanjib Kumar Sarkar did not pay any heed to the same inspite of receiving the entire consideration amount of Rs.81,000/-. Hence the plaintiffs filed the suit for specific performance of the agreement dated 14.09.1995 with respect to the suit property described in ScheduleA of the plaint.
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for a fixed term but as the plaintiff no.2 defaulted in payment of the rent and locked the room after removing all the valuable things and thereafter the plaintiff no.2 fraudulently got the signature of Sanjib Kumar Sarkar on some blank papers on the plea of taking steps for mutation and the suit property still stands in the name of the father of Sanjib Kumar Sarkar namely Mahendra Nath Sarkar. The defendants further denied that Sanjib Kumar Sarkar ever received any legal notice dated 07.09.1998.
trial court settled the following eight issues:
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have been marked Ext. A to G.
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trial court, the plaintiffs preferred Civil Appeal No. 53 of 2015 which was ultimately heard and disposed of by the learned first appellate court vide the impugned judgment and decree.
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appellants and the said information was given by the Public Relation Officer-cum-Executive Officer, Ranchi Nagar Nigam, Ranchi under which it has categorically been mentioned in unequivocal words that the suit property was standing in the name of Sanjib Kumar Sarkar who is the vendor of agreement for the sale (Ext.1) of the suit property in favour of the plaintiffs-appellants and came to the conclusion on the basis of the testimony of the witnesses examined as D.W.1 to D.W.5 read with Ext.7 that the partition has been effected between the shareholders and the suit property was the exclusive property of the vendor Sanjib Kumar Sarkar at the time of the execution of the agreement to sale of suit property. The learned first appellate court found fault with the trial court for completely ignoring the deposition of the witnesses examined on behalf of the defendants. The learned first appellate court also considered that the original defendant and vendor –Sanjib Kumar Sarkar delivered the possession of the suit property to the plaintiffs-appellants which was possible only because Sanjib Kumar Sarkar possessed exclusive right over the property and there was categorical declaration of Sanjib Kumar Sarkar in the agreement to sale marked –Ext.1 that the suit property was in his absolute share. Hence, it is not open for the D.W.5 –Sanjib Kumar Sarkar to take a defence that the property sold by him is a joint property to refuse execution of the sale deed. The learned first appellate court also relied upon the Judgment of Hon’ble Supreme Court of India, in the case of Kartar Singh Vs. Harijinder Singh & Others , reported in AIR 1990 SC 854 wherein in the facts of that case where the property held jointly, the Hon’ble Apex Court held that the vendor is entitled to enter into agreement for himself and on behalf of his sister and if the sister refuses to sale her property, specific performance can be granted in respect of
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vendor’s share. By referring to the boundaries of the suit land described in Ext.1, the learned first appellate court observed that the agreement for sale between the parties clearly mentions and describes the boundaries of the four sides of the suit property. The first appellate court then observed that thus, the finding of the learned trial court in respect of issue nos. 4, 5 & 6 was decided against the plaintiffs illegally and such finding of the learned trial court is not sustainable in law. The learned first appellate court then considered that the agreement entered into between the parties was valid and clearly specifies the boundary of the said property and held that the agreement is definite, clear and certain that the performance of each party was pre-determined and assigned. The learned first appellate court found fault with the trial court on the ground that though the trial court mentioned in para-18 of its judgment that it finds the plaintiffs were and are ready and willing to get executed the registered sale deed in their favour but failed to consider the same in the final judgment. The learned first appellate court next relied upon the Judgment of Hon’ble Supreme Court of India in the case of Rathnavathi and another vs. Kavita Ganashamdas , reported in (2015) 5 SCC 223 where in the facts and circumstances of that case, it was held by the Hon’ble Supreme Court of India that when the vendee is ready and willing to perform the part of obligation then it is justified to grant specific performance. The learned first appellate court has further held that the plaintiffs-appellants have already performed their part of performance of the contract by firstly paying Rs.70,000/- and then paying the balance of Rs.11,000/- towards sale consideration to the sole original defendant and it was the defendants-respondents who did not perform their part of the agreement and went on to set aside the
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judgment and decree passed by the learned trial court and decreed the suit as already indicated above.
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(b) who, though he entered into the contract believing that he had a good title to the property, cannot at the time fixed by the parties or by the court for the completion of the sale or letting, give the purchaser or lessee a title free from reasonable doubt. (2) The provisions of sub-section (1) shall also apply, as far as may be, to contracts for the sale or hire of movable property.‖
A bare perusal of the Section 17 reveals that the same envisages enforcement of a contract to sale at the instance of the vendor, such contract for sale cannot be decreed if the vendor knew at the date of agreement for sale of land that the vendor had no title to the property, contracted to sell but the Section 17 of the Specific Relief Act does not bars enforcement of a contract to sale or let the property; against a vendor. Therefore in the facts of the case, the provisions of Section 17 of the Specific Relief Act has no application as the learned first appellate court, in categorical terms has arrived at the finding of fact that Sanjib Kumar Sarkar possessed exclusive right over the property and such finding of fact has not been arrived at by the learned first appellate court by ignoring or excluding relevant materials or by taking into consideration the irrelevant materials nor the finding so outrageously defies logic as to suffer from the vice of irrationality incurring the blame of being perverse.
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reversing the judgment and decree of the trial court and decreeing the suit. Further, no substantial question of law is involved in this appeal.
concerned forthwith.
(Anil Kumar Choudhary, J . )
High Court of Jharkhand, Ranchi Dated the 1st of March, 2023 AFR/ Sonu-Gunjan/-
3 issues framed by the court
Whether Section 17 of the Specific Relief Act bars enforcement when the vendor is found to have exclusive title.
Whether the finding of exclusive ownership by the first appellate court is perversely arrived at or irrational.
Whether the second appeal involves a substantial question of law warranting interference under Section 100 CPC.
Colour shows how this judgement treated each authority
Malabika Ghosh & Anr. Vs. Smt. Balwant KaurDistinguished¶28
Malabika Ghosh & Anr. Vs. Smt. Balwant Kaur, 2015 (3) JLJR 546
Kartar Singh Vs. Harijinder Singh & OthersReferred¶57
Kartar Singh Vs. Harijinder Singh & Others, AIR 1990 SC 854 · Who else cites this
Rathnavathi and another vs. Kavita GanashamdasExplained¶62
(2015) 5 SCC 223 · Who else cites this
2 provisions across 2 enactments
Deepshikha Sarkar
Prema Jalan
Priya Sarkar
Dhirendra Prasad Chand
Birendra Prasad Chand
Anil Kumar Choudhary
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court