RUNU PRADHAN Vs. STATE OF ORISSA

JUDGEMENT

(1.) First Appeal bearing No.249 of 1991 has been filed by the defendant nos.1(a) to (c) the legal heirs of the original defendant no.1 in the Court below involving the judgment & decree dated 3.07.1991 involving T.S. No.7 of 1985 whereas First Appeal bearing No.268 of 1991 is at the instance of the defendant nos.2 & 3 respectively in the Court below. Respondents in both the cases as respondent nos.1(a) to 1(f) are the legal heirs of the original plaintiff in the Court below whereas the respondent nos.2 & 3 in the F.A. No.249 of 1991 are proforma respondents but however not only contested the suit by filing an independent written statement but also filed a counter claim seeking appropriate relief against the plaintiff. Similarly in F.A. No.268 of 1991 the respondent nos.2(a) 2(b) 2(c) are also the proforma respondents, amongst which the respondent no.2(c) involving F.A. No.268 of 1991 however has been deleted vide order no.10 dated 6.05.1993 in F.A. No.268 of 1991. The First Appeal involves a successful suit alongwith rejection of the counter claim.

(2.) Short background involving the plaintiff's case is that the original plaintiff Nisamani Mohanty was working as Tahasildar under the original defendant no.1 since 1940. After vesting of the Estate "Chandra Family" still retained the Khasmal Pattadhari lands and also had several rent suits, for which they retained the plaintiff to serve under them and allotted him a house which is a Pucca one situated over the plot no.2825 for his residential purpose but free of cost. Since 1956 the plaintiff with his family member were in occupation thereof till filing of the suit. Adjoining the plot no.2825 is situated plot no.2823 towards the east consisting of thatched rooms and open courtyard facing the main Purighat road and having access to plot no.2825. While the matter stood thus the plaintiff brought his nephew and other family members to reside with him as the nephew was to continue his study along with his sons. As a consequence the plaintiff sought for permission from the "Chandra Family" to take the said thatched rooms on rent. In the result, the then Karta of the family Ganesh Chandra Chandra rented out the said house to the plaintiff in the name of his nephew Raikishore Mohanty at the rate of Rs.3/- per month since 1957 consisting of three thatched rooms alongwith the open courtyard. Over the plot no.2823 two other thatched rooms were there adjoining to the south of the rooms let out to the plaintiff and in those two rooms defendant no.2 Padmavati and her husband who was then alive were residing on rent as tenant under the "Chandra Family". Subsequently Padmavati's husband died and defendant no.2 her only son also expired and she brought her sister's son, defendant no.3 and kept him as her adopted son. There was absolutely good relationship between the plaintiff and the defendant nos.2 & 3 and as a matter of fact the plaintiff was patronizing the defendant no.2 and up till filing of the suit had permitted her to take electric connection from his house and even has allowed her to take water pipe connection from his houses. In the Chandra Family there was an amicable partition in the year 1963 and in the said partition, plot no.2823 and 2824 with structures along with other property fell to the share of the defendant no.1 and plot no.2825 fell to the share of Bibhuti Bhusan Chandra and he also allowed the plaintiff to continue as before without payment as the plaintiff was still serving the Chandra Family and was looking after their litigation and also involved in the realization rent from Darpattadars. So far as the plot no.2823 is concerned, which is the subject matter of the dispute and is described in detail in schedule 'A' of the plaint. The said plot along with the thatched and open courtyard adjoining to plot no.2823 along with other property fell to the share of defendant no.1, who was a practising lawyer and was staying at Puri. After the said partition, defendant no.1 Gobardhan Chandra Chandra directed the plaintiff to pay his rent along with the rent collected from Padmavati to his brother's son Binay Bhusan Chandra, who was then staying at Cuttack, he used to remit the same to defendant no.1 staying at Puri. When Binay Bhusan Chandra, who was working in a Bank, was transferred from Cuttack and remained unavailable at Cuttack, on the direction of the defendant no.1 the rent used to be directly sent by the plaintiff to defendant no.1 including the rent so collected from defendant no.2. Since 1979, rent was increased to Rs.10/- per month for the portions occupied by the plaintiff and Padmavati's rent was also increased to Rs.10/- per month. When the plaintiff thought it proper that they should sent their rent separately Rs.10/- each by money order to the landlord defendant no.1 and this state of affairs was claimed to be continuing till filing of the suit. While the matter stood thus, the defendant no.1 expressed his desire to sell out the entire plot no.2823 alongwith another adjoining plot to the south of the said plot no.2824, which also got thatched house and was let out since long to one Balaram Mishra on rent and it was decided by defendant no.1 that he will not sell the property to outsiders but would sell each portion to the tenants who are in actual physical possession thereof. The plaintiff, who had discharged his duties since 1940 sincerely and honestly to the satisfaction of the Chandra Family, was hopeful that he would be permitted to purchase the entire plot no.2823 as Padmavati and Balram Mishra had decided to share between them the plot no.2824 and would leave the plot no.2823 measuring an area Ac.0.020 decimals to the plaintiff who can acquire the same on some concession rate. Accordingly, the plaintiff alongwith one Chaitan Chandra Das, a scribe and Advocate's clerk of Cuttack and Sri Jadunath Singh, Advocate Cuttack who was the Secretary of the Choudhury Bazar and a prominent person of the locality and whose residential house is also, nearby all went to Puri to negotiate the matter with defendant no.1 on 3.06.1984. At Puri in the house of defendant no.1 Shri Jadunath Singh, Advocate expressed his desire that if it is possible he would purchase out the entire plot no.2823 and 2824 to which the defendant no.1 did not agree and on that date in presence of Chaitan Chandra Das and Jadunath Singh, Advocate it was agreed that the entire plot no.2823 with thatched house and other structure would be sold to the plaintiff at a consideration of Rs.25,000/- to which the plaintiff and defendant no.1 agreed. The plaintiff on the very day wanted to get a written document from defendant no.1 evidencing the contract, but the defendant no.1 stated that the agreement has become final as he has given his word and agreed upon the consideration of Rs.25,000/-. The defendant no.1 further expressed that the plaintiff being a trusted employee of their family since 1940 he should not think that defendant no.1 would back out from the transaction. Defendant no.1, in the process directed Chaitan Chandra Das to purchase stamps for the purpose of sell deed on his behalf at Cuttack and to get a draft agreement prepared so that when he would be next visiting Cuttack, he would receive advance towards the consideration fixed Rs.10,000/- and then only he would sign the agreement in presence of the witnesses on approving the draft. The plaintiff as such agreed to the terms of defendant no.1 and the matter under negotiation was finalized. Plaintiff, Chaitan Ch. Das and Jadunath Singh returned to Cuttack with direction from defendant no.1 to Sri Chaitan Ch. Das to purchase the agreement stamp on his behalf and to get a draft ready and defendant no.1 also stated that he will write a letter intimating the date of his arrival at Cuttack, so that the plaintiff would be ready with the cash of Rs.10,000/- and the draft would also be kept ready by that time to be approved and engrossed upon the agreement paper. While the matter stood thus the defendant no.1 wrote a letter on 19.07.1984 to the plaintiff in a post card intimating him that he would be arriving at Cuttack on 25.07.1994. Upon receipt of the said letter the plaintiff got Rs.10,000/- in cash in hand and Sri Chaitan Ch. Das also got the draft ready being approved by the plaintiff but waiting for approval of the defendant no.1. Upon receipt of the cash in advance and as a consequence of engrossing the Stamp Paper on 25.07.1984 the defendant arrived at Cuttack and stayed at "Chandra House" and there in presence of the plaintiff, Sri Chaitan Ch. Das and Sri Jadunath Singh, Advocate and his cousin Binaya Bhusan Chandra and another cousin AmulyaBhusan Chandra expressed that during the period between 8.06.1984 and 25.07.1984 the defendant nos.2 & 3 alongwith Balaram Mishra had gone to Puri and defendant nos.2 and 3 have given an offer of Rs.35,000/- for plot no.2823 with structure and Balaram Mishra has given an offer of Rs.40,000/- for plot no.2824 with structure and he has also contracted to sell out at a higher rate and expressed that he has given something in writing to the said Balaram Mishra and defendant nos.2 & 3. To this statement of the defendant no.1 the plaintiff who is an employee under defendant no.1 expressed his regret and felt very sentimental about it, whereafter defendant no.1 directed Sri Jadunath Singh, Advocate, who is the Secretary of Chaudhury Bazar to decide the matter in a way that the plaintiff would take the portion over which he is a tenant and defendant nos.2 & 3 would take the portion in respect of which she is a tenant, to which the plaintiff was of course not agreeable, plaintiff rather insisted upon signing the agreement, the draft of which had been seen approved by the plaintiff. Jadunath Singh, Advocate then asked the plaintiff that he would decide the matter and as such the agreement was not signed nor engrossed but the draft was kept ready and the plaintiff insisted that he as per the original contract between him and the defendant no.1 get the entire plot no.2823 area Ac.0.020 decimal with thatched house for Rs.25,000/- on hearing, this the defendant no.1 left the entire matter to be decided by Sri Jadunath Singh, Advocate and left for Puri. Thereafter Sri Jadunath Singh in spite of several requests by the plaintiff could not decide the matter nor the defendant no.1 was agreeable to sell out the entire property to the plaintiff and it is at this point of time, the plaintiff could come to learn that defendant nos.2 & 3 and Balaram Mishra, who have gone several times to Puri and have induced defendant no.1 to obtain Ceiling Authority and over necessary stamp papers for the purpose of transfer has been purchased in favour of the defendant nos.2 & 3 and Balaram Mishra and defendant no.1 only to execute and register sell deed in their favour. Plaintiff further alleged that ceiling permission as well as permission from the Orissa Development Authority have all been illegally obtained even suppressing that there is no legal partition of the property and the defendant no.1 holds property more than the ceiling limit. The plaintiff thus was compelled to issue Lawyer's notice with draft sell deed to defendant no.1 at Puri calling upon defendant no.1 to execute and register the necessary sell deed. It is alleged that in spite of receipt of the legal notice along with draft sell deed defendant no.1 neither gave his reply nor expressed his willingness to receive the entire consideration amount and to execute and register the required sell deed. It is in the above circumstance and for the developments taken place in between establishing a case of requirement of a direction for specific performance of contract involving the defendant no.1 on the premises of a concluded contract, the plaintiff filed the suit with the following prayer:

(3.) The defendant no.1 contesting the suit filed written statement while denying each of the plaint averments claimed that the suit is not maintainable. Defendant no.1 also claimed that the plaint is based on false and frivolous statements and the suit is also barred by limitation and further on the premises that the plaintiff having no cause of action and locus standi to initiate such suit. The defendant contended that relief claimed by the plaintiff does not stand to scrutiny. Defendant no.1 also contested the suit on the premises of the suit not being maintainable on the ground of being filed in absence of proper and necessary party. While admitting the description of the property in paragraph no.1 the defendant no.1 claimed that the properties involved herein were partitioned amicably since 1.1.1963 thus while denying the rest part of the averments made in paragraph no.1 and attending to the statement made in paragraph no.2 and denying the same the defendant no.1 disputed the fact that the plaintiff was working as a Tahasildar at the relevant point of time. The defendant no.1 on the other hand claimed that for the partition of the property already taking effect since 1.1.1963 the plaintiff seized to be an employee of the "Chandra Family". It is also claimed by the defendant no.1 that there never existed any joint family property in order to employing the plaintiff any further. The allegation that the plaintiff was collecting rent along with other Tahasildar since 1940 and he has been serving the Chandra Family also claimed to be false and concocted. Now coming to the statement made in paragraph no.3 to the effect that after vesting of the estate the "Chandra Family" retained the Khasmal Pattadhari lands under the Dar-pattadars and had filed several rent suits and for that they retained the plaintiff to serve them and allotted pucca house situated over plot no.2823 for his residential purpose, free of cost since 1956, all these also claimed to be false and fabricated. Defendant no.1 also denied the claims of the plaintiff in paragraph no.4 saying that there was in fact no access from the plot no.2825 to plot no.2823. Defendant no.1 rather claimed that there already existed a compound wall in between being constructed by the predecessor in interest of the defendant and they had constructed a passage under the said compound wall for the egress and ingress of his sweepers to clean service latrine and opening passage was only meant for the sweeper and was not accessible for any public or any person. Similarly attending to the averments made in paragraph no.5 and denying the whole the defendant no.1 denied the claim of the plaintiff that he took three thatched rooms along with open courtyard since 1957 from Shri Ganesh Chandra Chandra the then Karta of the Chandra Family. It is claimed that in fact only one room was let out to Shri Rajkishore Mohnty who soon after the partition suo motu vacated the said one room which he was occupying and the whole portion of the plot No.2823 came to be occupied by the defendant no.2 and her son. In all, the defendant no.2 and her son was occupying the rooms and open courtyard since that time. In responding to the averments made in paragraph no.6 while admitting some of the statement made by the plaintiff therein the defendant claimed that after Sri Rajkishore Mohanty left the said rooms it was let out to defendant no.2 and her son. Accordingly, the defendant nos.2 and her son was in occupation of the three rooms with the open courtyard till it was sold to the defendant no.3 as per registered sell deed no.209 dated 15.1.1985. The defendant no.1 also refuted the claim of the plaintiff made in paragraph no.7 and submitted that all the three rooms were in possession of the defendant no.2 till defendant no.1 sold the suit premises to defendant no.3. Responding to the statements made in paragraph nos.8 & 9 the defendant no.1 while disputing the claim of the plaintiff with regard to relationship between the plaintiff and defendant nos.2 & 3 defendant no.1 however submitted that it is a fact that there was an amicable and complete partition of the Chandra House and other properties belonging to the Chandra Family. Defendant no.1 also admitted that on partition of plot no.2123 and 2124 and the part of the plot no.2811 measuring an area of Ac.0.020 decimal, Ac.0.021 decimal and Ac.0.055 decimal respectively with structure standing thereon fell to the share of late Rai Bahadur Nidheswar Chandra Chandra, father of the defendant no.1. The plot no.2825 fell to the share of Smt. Radharani Chandra, wife of late Sidheswar Chandra Chandra and her sons after partition of the Chandra Family. Defendant no.1 claimed that partition-cum-family settlement was drawn up on 1.1.1963 and has been executed by the parties and through their authorized agent. It is claimed that the said partition was fully acted upon with opening of separate Sadar Doors having ownership with each groups. On the pretext that the defendants 2 & 3 were in possession of the disputed property and residing in three rooms and open courtyard attached therewith defendant no.1 expressed to sell the same to defendant nos.2 & 3 for a consideration of Rs.30,000/- on 25.5.1984 and an agreement for sell and purchase was also accordingly executed by the defendant no.1 on that day after receiving a sum of Rs.5,000/- as advance. The defendant no.1 further claimed that after obtaining necessary permission the defendant no.1 sold the suit property by way of registered sell deed on 15.1.1985 to the defendant no.3 and thereafter the defendant nos.2 & 3 became the absolute owner in possession thereof. After coming to know the sell in favour of the defendant no.3 the defendant no.1 claimed that the plaintiff deliberately filed suit on falsehood with intention to grab the suit property making therein false and fabricated stories and thus, the defendant no.1 claimed for dismissal of the suit.