Arbind Kumar Burnwal Vs Suresh Kumar Burnwal

IN THE HIGH COURT OF JHARKHAND AT RANCHI

S.A. No. 396 of 2019

Arbind Kumar Burnwal, aged about 55 years, son of Late Suraj Narayan Burnwal, resident of Burning Ghat Road, Barmasia, P.O.Makatpur, P.S.- Giridih (T), District - Giridih.

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… … Plaintiff/Appellant/Appellant -Versus-

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Suresh Kumar Burnwal

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Dinesh Kumar Burnwal (Abated vide order dated 01.08.2024)

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Mahesh Kumar Burwal (Abated vide order dated 01.08.2024)

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Rajesh Kumar Burnwal All sons of Late Badri Narayan Burnwal Respondent No.1 R/o G.T. Road, Pandho Vastralaya, Opposite to Head Post Office, Asansol Respondent No.2 R/o Pueer Bazar, Asansol Respondent No.3 R/o Durga Sagar, Opposite to Head Post Office, Asansol Respondent No.4 R/o R.C. Banerjee Lane, Ghati Gali, Asansol All within P.O. & P.S.- Asansol, District-Burdwan (W.B.)

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… … Defendants/Respondents/Respondents

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CORAM: HON'BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY

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--For the Appellant : Mr. A.K. Sahani, Advocate : Mr. Sanket Kumar, Advocate For Respondent No.1&4 : Mr. S.K. Murtty, Advocate : Mr. P.K. Mukhopadhyay, Advocate

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09 /08.01.2025 Heard the learned counsel for the parties.

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2. Vide order dated 01.08.2024, the appeal was abated against Respondent Nos. 2 and 3.

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3. This appeal has been filed against the judgment and decree dated 07.06.2019 (Decree signed on 21.06.2019) passed by the Learned District Judge-VIII, Giridih in Civil Appeal No. 94 of 2017 confirming the judgment and decree dated 28.6.2017 (Decree signed on 07.07.2017 passed by the learned Civil Judge (Senior Division)-V Giridih in Title Suit No. 49 of 2004.

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4. The plaintiff is the appellant before this Court.

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5. The learned counsel for the appellant while assailing the impugned judgments has submitted that the suit was filed for a decree of specific performance of contract dated 28.02.2004 and a prayer was

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also made seeking a direction upon the defendants to execute a sale deed after receiving the balance consideration amount of Rs.1,60,000/from the plaintiff failing which the plaintiff may deposit the said balance consideration amount in the court for execution of the sale deed in favour of the plaintiff.

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6. Learned counsel submitted that both the courts have failed to consider that the defendants had taken Rs.40,000/- for the purposes of the property and therefore there could be no doubt that there was an agreement of sale and it was an admission on the part of the defendants that they would sell the property to the plaintiff once the partition takes place in connection with the properties. The learned counsel for the appellant also referred to Section 44 of the Transfer of Property Act and submitted that there can be an agreement of sale with regard to undivided share of the property.

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7. This Court finds that as per the case of the plaintiff, one Mahavir Lal purchased 44 ¾ decimals of land in Plot No. 619, Khata No. 60, Plot No. 658, Khata No. 67 Schedule-I and 20 decimals of land in the same Plot No. 619 of Mouza Sehodih Schedule-II by virtue of two registered Sale Deeds dated 09.12.1942 and 27.04.1942 and came in joint possession of the property with his sister Most. Sahodari Devi. Most. Sahodari Devi died leaving behind one son namely, Badri Narain Lal, who inherited the property and came in possession over the purchased land jointly with Mahavir Lal. Badri Narain Lal also died leaving behind his four sons namely, Suresh Kumar Burnwal, Dinesh Kumar Burnwal, Mahesh Kumar Burnwal and Rajesh Kumar Burnwal, who jointly inherited the property with the heirs of Mahavir Lal. The defendants are the heirs of Sahodari Devi and they agreed to sell their share to the plaintiff on 28.02.2004 for a consideration of Rs.2,00,000/- and received Rs.10,000/- each i.e. total Rs.40,000/- and agreed that they would transfer the said property described in scheduled of the plaint to the plaintiff on receipt of balance consideration money of Rs.1,60,000/- and they would appoint Sri Suraj Narain Burnwal as Attorney Holder to execute and sign for

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execution of the Sale Deed in favour of the plaintiff. The agreement was reduced in writing and was signed by both the parties on 28.02.2004 and defendants handed over the said agreement for sale to the plaintiff as part performance of the said contract. It was the case of the plaintiff that they tried to tender the balance consideration money to the defendants and requested them to execute the Sale Deed, but the defendants avoided to do so which ultimately led to filing of the suit for specific performance of the contract.

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8. The defendants opposed the suit by claiming that it was barred by limitation and also under Section 34 of the Specific Relief Act. It was asserted that, interalia, it was agreed that upon receiving balance consideration amount the concerned defendants would execute a power of attorney in favour of Suraj Narain Burnwal authorizing him to execute sale deed either in favour of his son, the plaintiff or in favour any other person. It was asserted that agreement between both the parties was incomplete, vague and not executable or enforceable under law and it was also asserted that if there is any agreement of sale, the same must be forged and fabricated. The tendering of balance consideration amount was also denied. It was also asserted that Sri Suraj Narain Burnwal had also assured that he would wait till final partition of land between the defendants and their co-sharers, but the defendants were surprised to receive the summons.

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9. The learned Trial Court framed issues including Issue Nos. (ii) & (iii) as to whether there was any agreement between the plaintiff and the defendants to sale the suit land to the plaintiff on 28.02.2004 and as to whether the agreement of sale was legal, valid, genuine and enforceable in law? Both the issues were decided against the plaintiff. 10. The learned Trial Court after considering the materials on record and upon going through the agreement of sale [Exhibit-1] held that there was really neither any specification and boundary of the land for which the said agreement was held, nor there was any prescribed period in which the deed for sale was to be executed by both the parties. The learned trial court held that the essential

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ingredients of the agreement of sale could not be complied and held that it could not be said to be an enforceable agreement for sale. Learned Trial Court also held that the plaintiff failed to prove readiness and willingness and that the plaintiff had not tendered balance consideration money of Rs.1,60,000/- so as to perform his part of the contract. However, the learned Court directed the defendants to return the amount of Rs.40,000/- to the plaintiff with interest @ 9% per annum from 05.05.2004, the date of admission of the suit till the date of payment and issued a direction to prepare a decree accordingly.

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11. The Appellate Court also considered the materials on record and framed following points for determination:

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I. Whether the agreement dated 28.02.2004 was/is enforcible?

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II. Whether the plaintiff/appellant was ready and willing to perform his part of contract or not?

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12. The Appellate Court also considered Exhibit-1, the agreement of sale which was the basis for the suit for specific performance of contract and held that it does not reveal the description of the suit property for which the agreement for sale was made, rather, it depicts that sale amount was settled at Rs.2,00,000/- for which each of the defendants received Rs.10,000/- and Exhibit-1 (Agreement of Sale) revealed that after receiving Rs.1,60,000/-, power of attorney would be executed. The Appellate Court recorded the findings as follows and ultimately dismissed the appeal:

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“From perusal of Ext.-1, I find that there had been no contract for sale, rather there was a contract, if Ext.-1 is assumed to be true, for execution of power of attorney since there was an agreement for execution of power of attorney and the suit has been brought by the plaintiff/ appellant for execution of Sale Deed on receiving Rs. One lac sixty thousand which is not the terms of contract. It is settled Principle of law that an agreement enforceable by law is a contract and the parties entered into agreement for execution of power of attorney after receiving Rs. One lakh sixty thousand balance which apparently reveals that there had been no contract for execution of sale. Apart

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from this, purpose of execution of power of attorney is not disclosed in the alleged agreement.

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So far, the readiness and willingness is concerned, as discussed above, there is no agreement for sale, therefore, no question of readiness and willingness to perform his part of contract arises.

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Thus, suit is not maintainable and the Judgment passed by the learned Court below does not suffer to be any illegality. Hence, the Appeal deserved to be dismissed.”

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13. This Court finds that both the learned Courts have scrutinized the materials on record including the agreement of sale (Exhibit-1) and have come to a finding that the so-called agreement of sale dated 28.02.2004 was not an agreement of sale at all which could be enforceable through the process of law. The appellate court has specifically recorded that Exhibit -1 was a contract for the execution of power of attorney and not an agreement of sale.

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14. Considering the findings of both the Courts with regard to interpretation of Exhibit-1 that the document was not an agreement of sale, this Court is of the considered view that the learned courts have rightly refused to decree the suit for specific performance of Exhibit-1. The appellate court has held that the Exhibit -1 was a contract for the execution of power of attorney and not an agreement of sale.

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15. This Court finds no question of law, much less any substantial question of law involved for consideration in this appeal which is hereby dismissed.

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16. Pending I.A., if any, is closed.

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(Anubha Rawat Choudhary, J.)

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Rakesh/Kunal

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Arbind Kumar Burnwal v. Suresh Kumar Burnwal

Case brief

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Arbind Kumar Burnwal v. Suresh Kumar Burnwal

Case brief

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