LAWS(GAU)-2005-6-2

PRABIR KUMAR DAS Vs. AMULYA BHUSHAN PAUL

Decided On June 20, 2005
PRABIR KUMAR DAS Appellant
V/S
AMULYA BHUSHAN PAUL Respondents

JUDGEMENT

(1.) This Letters PatentAppeal has a fairly long history. The plaintiffs-appellants instituted the suit for specific performance of the agreement for sale of the suit property. The trial Court decreed the suit. The defendants preferred the first appeal before the Judicial Commissioner, Tripura, which was, subsequently, transferred to this High Court. The learned single Judge of the High Court, on 5-7-1974, allowed the appeal of the defendant and set aside the impugned decree. The plaintiffs, on 3-8-1974, filed a Letters Patent Appeal in the High Court, but when the appeal came up for hearing, the same was dismissed on the ground that it was not maintainable in view of Section 100-A of the Civil Procedure Code (in short "the Code"), which had come into force as a result of the amendment of the Code, with effect from 1-2-1977. The plaintiff appellants, then, carried the matter' to the Hon'ble Supreme Court and by judgment and order, dated 13-3-2001, passed in Civil Appeal No. 11884 of 1995, the Hon'ble Supreme Court set aside the judgment under the LPA and remitted the matter to the High Court for deciding the LPA in accordance with law. However, before the LPA could be taken up for hearing, the Code underwent another set of broad based amendments and in terms of the Civil Procedure Code Amendment Act, 2002, the provisions of Letters Patent Appeal have been done away with. Then the question arose as to whether the LPA was maintainable. A Division Bench of this Court Pinku Trading Corpn. v. Bank of Baroda reported in (2004) 2 Gauhati LR 478, has, however, laid down that the Letters Patent Appeal, which have been instituted before coming into force of the said Amendment Act, are maintainable. The LPA has accordingly been taken up for hearing by us.

(2.) The case of the plaintiff appellants may, in brief, be set Out as follows :-

(3.) The -defendant Nos.1, 2 and 4 each filed separate written statement and contested the suit. The defendant Nos. 5 and 6, however, filed joint written statement and supported the case of the plaintiffs. In their written statements, though separately filed, the defendant Nos.1 and 2 contended to the effect, inter alia, that the suit was barred by limitation, estoppel, acquiescence, waiver and want of cause of action and that the suit was the result of collusion amongst the plaintiffs and the defendant Nos. 4, 5 and 6, the case of the contesting defendant Nos. 1 and 2 being, in brief, thus : Haripada had no contract for sale of the suit property with the defendant Nos. 5 and 6. Neither Haripada was in need of money nor did he accept any money as loan from the plaintiff No. 1 in terms of any agreement of tenancy as alleged by the plaintiffs. No agreement was ever reached between Haripada and the father of the plaintiff No.2 with regard to the construction of the said building. No agreement for sale of the suit premises between Haripada, on the one hand, and the defendant Nos.5 and 6, on the other, was ever entered into nor have the two plaintiffs jointly purchased the agreement for sale from the defendant Nos.5 and 6. The plaintiff No.1 was inducted into the ground floor of the suit property by Haripada as a monthly tenant on rental of Rs.100/- per month with effect from 15-4-1957 and it was settled between the parties concerned that the plaintiff No. 1 would execute a lease deed in favour of Haripada. But sometime, thereafter, Haripada fell seriously ill, he became paralytic in June and July, 1957, and, eventually, died in January, 1960. So, the lease deed could not be executed. Having fallen ill and becoming paralytic, Haripada lost his sense of understanding and suffered from mental derangement. The defendant No.2, Misribala, widow of Haripada, and the defendant No.3, Kalpana, minor daughter of the said deceased, being represented by her mother as natural guardian, entered into an agreement with the defendant No. 1 for sale of the suit property including the first floor thereof on a consideration of Rs. 12,000/- and executed an agreement, in this regard, in favour of the defendant No. 1, the same having been registered, on 24-10-1961, on accepting Rs.3,000/- as advance towards the said consideration amount and handed over the possession of the suit property to the defendant No.1. Neither the defendant No.1 nor the defendant Nos. 2 and 3 were aware of any agreement existing between Haripada, on the one hand, and defendant Nos. 5 and 6, on the other. The defendant No. 1 is, thus, bona fide purchaser of the suit property for value without notice and, hence, the plaintiffs are not entitled to claim specific performance of the alleged contract for sale. The defendant No.4, i.e. the mother of Haripada and her two sons have been gained over by the plaintiffs and they have accordingly supported the false and manipulated case set up by the plaintiffs.