ARBINDA SARMA SIDHANTA Vs. LUTFUN NISSA AND ORS.

JUDGEMENT

(1.) The appellate judgment and order dated 07.07.2008 passed by the learned Civil Judge, Jorhat in Title Appeal No. 11/2008 has been called in question in the present appeal by the defendant. By the impugned judgment and order, the learned first appellate court remanded the case to the trial court. Hence, this appeal under Order XLIII Rule 1(u) of the Code of Civil Procedure.

(2.) The brief facts involved in this appeal are required to be stated at the threshold. One Akas Ali, as plaintiff, instituted Title Suit No. 16/2006 on 14.02.2006 in the Court of learned Civil Judge (Sr. Divn.) at Jorhat stating that the sole defendant being the exclusive owner in possession of the suit land described in Schedule A to the plaint, agreed to sell the same to him at a consideration of Rs. 8000/- per katha and accordingly executed a written agreement on 20.05.1979 on receipt of a sum of Rs. 20,000/- as advance from the plaintiff. The defendant undertook to execute sale deed in favour of the plaintiff upon receipt of balance sum of Rs. 20,000/-. On receipt of the possession of the suit land, plaintiff raised a kacha house on a part of it with C.I. sheet roofing. After some days, few strangers entered into suit land forcefully by removing bamboo fencing and they raised another kacha house and continued possessing the same. Having come to know about such dispossession, the defendant instituted T.S. No. 82/1980 against the strangers for declaration of his right, title and interest and recovery of possession. The suit was decreed in favour of the defendant and T.A. No. 79/1983 preferred there-against was dismissed by the first appellate court on 07.01.1986. The defendant of that suit i.e. T.S. No. 82/1980 preferred second appeal No. 49/1986 before this High Court and thereupon the matter was remanded by judgment and order dated 25.09.1991 to the first appellate court. On remand, the case was re-numbered as T.A. No. 6/1993 and the same was dismissed again on merit by the learned Additional District Judge on 08.12.1993. There was no further second appeal and the defendants of T.S. No. 82/1980 put the decree into execution vide Title Execution Case No. 4/2000. In course of the execution proceeding, not only the encroachers who are the defendants of the T.S. No. 82/1980, the executing court proceeded against the plaintiff as well for which the plaintiff filed an application under Order XXI Rule 97 of the Code of Civil Procedure read with Section 151 of the Code of Civil Procedure before the executing court ascertaining their right of part performance. The decree holder in T.S. No. 82/1980 objected to the application filed by the present plaintiff under Order XXI Rule 97 of the Code of Civil Procedure and thereupon the executing court confirmed possession of the present plaintiff over the suit land by order dated 10.01.2002. This order passed by the executing court was challenged in civil revision No. 123/2002 of the High Court and this court disposed of the revision petition on 03.01.2005 reversing the finding of the executing court and in favour of the decree holder of Title Execution No. 4/2000. The execution was thus complete and the plaintiff of the present suit got evicted along with encroachers. The defendant thus, got possession of the suit land on 07.01.2006 by virtue of Title Execution No. 4/2000.

(3.) The plaintiff further pleaded that in the mean time the defendant executed another agreement on 29.03.1980 in favour of the plaintiff and returned a sum of Rs. 15,000/- to the plaintiff out of the earlier advance of Rs. 20,000/-. It was stipulated in the fresh agreement that after the suit land is vacated by the encroachers in the execution proceeding and the defendants got khas possession, registered sale deed would be executed in favour of the plaintiff within one month from the date of getting khas possession of the suit land. The defendant retained Rs. 5,000/- as advance. The plaintiff fixed the market price of the suit land at Rs. 8,000/- per katha and the defendant accepted the same. Thereupon first instalment was paid on 24.02.1982 amounting to Rs. 5,000/-. The second instalment was paid on 12.11.1985 for Rs. 10,000/-, third instalment was paid on 24.12.1985 for Rs. 10,000/- and the last instalment was paid on 21.11.1986 for a sum of Rs. 10,000/- and thus entire money was paid by the plaintiff to the defendant which the defendant acknowledged by giving receipt. Since the defendant received the khas possession of the land on 07.01.2006, he was duty bound to execute sale deed within one month thereafter and thus plaintiff having completed his part as per terms of the contract, the defendant failed to perform his part and rather, he was seeking to sell the suit land on higher rate to other persons. The plaintiff claimed to be always ready and willing for purchasing the land and so the suit was instituted for specific performance of contract.