Gauhati High Court
2: Jahanur Khanam vs Shri Ramen Sarma And 6 Ors on 27 February, 2025
Author: Devashis Baruah
Bench: Devashis Baruah
Page No.# 1/16
GAHC010105792010
2025:GAU-AS:2260
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : RSA/20/2010
ON THE DEATH OF MD. JAMAL KHAN, HIS LEGAL HEIRS
NAMELY-
1.1: ABUL KALAM
S/O JAMAL KHAN
R/O VILL. GOLIBANDHA
DIST. BARPETA
ASSAM. PIN 781301
1.2: JAHANUR KHANAM
D/O JAMAL KHAN
W/O LOKMAN ALI
R/O VILL. GOLIBANDHA
DIST. BARPETA
ASSAM. PIN 78130
VERSUS
SHRI RAMEN SARMA and 6 ORS
S/O LATE YADAV SARMA.
2:KHAGEN SARMA
S/O LATE YADAV SARMA
BOTH R/O KUMARHATI
BARPETA TOWN
P.O. BARPETA
DIST. BARPETA
ASSAM.
3:SURENDRA SARMA
S/O LATE MADHAB SARMA.
Page No.# 2/16
4:KALIKANTA SARMA
S/O LATE MADHAB SARMA
BOTH R/O GOBARDHANA
BARPETA ROAD TOWN
P.O. BARPETA ROAD
DIST. BARPETA
ASSAM.
5:SAILENDRA SARMA
S/O LATE YADAV SARMA.
6:HIRENDRA SARMA
S/O LATE YADAV SARMA.
7:TIKENDRA SARMA
S/O LATE YADAV SARMA
ALL R/O KUMARHATI
BARPETA TOWN
MAUJA BARPETA
P.O. BARPETA
DIST. BARPETA
ASSAM
For the Appellant(s) : Mr. A.R. Sikdar, Advocate
For the Respondent(s) : Mr. K.R. Patgiri, Advocate
Date of Hearing : 27.02.2025
Date of Judgment : 27.02.2025
BEFORE
HONOURABLE MR. JUSTICE DEVASHIS BARUAH
JUDGMENT AND ORDER (ORAL)
Heard Mr. A.R. Sikdar, the learned counsel appearing on behalf of the
appellants. Mr. K.R. Patgiri, the learned counsel appears on behalf of the
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respondents.
2. This is an appeal filed under Section 100 of the Code of Civil Procedure,
1908 (for short, “the Code”) challenging the judgment and decree dated
27.04.2009 passed by the Court of the learned Additional District Judge (FTC),
Barpeta (hereinafter referred to as, “the learned First Appellate Court”) in Title
Appeal No. 7/2006, whereby the judgment and decree dated 31.03.2006 passed
by the learned Civil Judge (Senior Division), Barpeta (hereinafter referred to as,
“the learned Trial Court”) in Title Suit No. 51/2003 was reversed.
3. It is seen that the learned Coordinate Bench of this Court vide an order
dated 24.02.2010 had admitted the instant appeal by formulating 2 (two)
substantial questions of law which are reproduced herein under:
“(1) Whether the learned First Appellate Court is right in allowing the
appeal preferred by th defendant by reversing the judgment and decree
passed by the learned Trial Court in a suit filed by the appellant for specific
performance of the contract, by applying the provisions of Section 53 (A)
of the Transfer of Property Act?
(2) Whether the findings recorded by the learned First Appellate Court
that there are no pleadings in the plaint that the plaintiff was ready and
willing to perform his part of the contract, is perverse?”
The question arises in the instant appeal is, as to whether, the 2 (two)
substantial questions of law so formulated are involved in the instant appeal.
4. For ascertaining the same, this Court finds it relevant to take note of the
facts which led to the filing of the instant appeal. For the purpose of
convenience the parties herein are referred to in the same status as they stood
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before the learned Trial Court.
5. The appellant herein who is the plaintiff had filed a suit seeking specific
performance of a contract for sale of the Schedule land by executing a
registered sale deed by the defendants in favour of the plaintiff by taking the
unpaid portion of the value i.e. Rs. 35,000/- from the plaintiff. It was also
prayed that in the circumstance, the defendants refused to execute the deed of
sale, the Court may execute a registered deed of sale in favour of the plaintiff
by taking the unpaid portion of Rs. 35,000/- of the value of Rs. 1,20,000/- from
the plaintiff.
6. From the contents of the plaint, it is seen that the plaintiff has categorically
stated in the plaint that the main defendants and the brothers have joint landed
properties in village Golibandha and adjacent villages namely Barola, Niz Barola
and Kirkira to the tune of more than 100 Bighas of land. It was mentioned that
the defendant Nos. 1 and 2 had taken an earnest amount of Rs. 85,000/- from
the plaintiff for sale of 12 Bighas of land which was fixed at the rate of
Rs.10,000/- per Bigha, i.e., the total consideration being Rs.1,20,000/-. The
details how the amount of Rs.85,000/- was paid was narrated in the plaint
stating inter alia that the defendant No. 1 took Rs. 17,055/- on 23.09.1998 and
the defendant No. 2 took Rs. 2,000/- on 30.09.1998. It was also mentioned that
the defendant No. 2 had also taken Rs. 11,500/- on 13.02.1999 and the
defendant No. 1 had taken Rs. 11,000/- on 08.06.1999. Further to that, on
15.06.1999 the plaintiff was approached by the defendant No. 1 and informed
that the defendant No. 2 was seriously ill at the Hospital and money was
necessary for the treatment. The plaintiff was asked to pay an amount of Rs.
50,000/-, but the plaintiff could collect only Rs. 41,445/- and went to the
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Guwahati Hospital and paid the said amount to the defendant No. 2 in front of
his family members. It is under such circumstances, it is the case of the plaintiff
that an amount of Rs. 85,000/- out of the total amount of Rs. 1,20,000/- was
paid. In paragraph No. 2 and 3 of the plaint, the plaintiff has mentioned about
the description of the land and there is a reference to Schedule A and Schedule
B to the plaint. Be that as it may, in the plaint there is no Schedule A or B. It
was further mentioned that the plaintiff was given possession of a plot of land
admeasuring 4 Bighas 4 Kathas in Dag number 176 covered by P.P. No. 82 of
Village Golibandha; a plot of land under Dag No. 28 admeasuring 1 Bigha 3
Kathas and 10 Lechas; a plot of land admeasuring 0 Bigha 4 Katha 0 Lecha
under Dag No. 203 by the defendant on 08.06.1999. It is therefore the case of
the plaintiff that in total the plaintiff was given 7 Bighas 1 Kathas and 10
Lechas. Additionally, another 2 Bighas 3 Kathas 10 Lechas was to be handed
over to the plaintiff by the defendant which the defendant had stated that they
would do so at a later point of time. It is further stated in the plaint that the
defendant No. 1 had filed a false case against the plaintiff under Section 145
which was pending. It was specifically mentioned at paragraph No. 9 of the
plaint that on 12.07.2002 when the plaintiff had come to Barpeta to request the
defendant to get the permission for sale and take steps for execution of the
registered sale deed, the defendant refused to do so and it is under such
circumstances, the plaintiff was compelled to file the suit. The record reveals
that the suit was filed on 26.09.2003.
7. The defendants filed their written statement wherein various pleas were
taken as regards, the non-maintainability of the suit on the ground of limitation,
on the ground that there was no description of the suit land in the so called
agreement. The defendants duly admitted that they had received an amount of
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Rs. 17,055/-, Rs. 4,000/- and Rs. 11,000/-, however denied receipt of Rs.
41,455/-. It is further stated that the statement made that the defendant No. 2
was ill at the Guwahati Hospital for which the amount of Rs. 41,445/- was paid
by the plaintiff to the defendant No. 2 was denied. In the written statement, it
was mentioned that the plaintiff had requested the defendant to sell 12 Bighas
of land at a low price as he did not have sufficient agricultural land. On
23.09.1998, the defendant No. 1 made a vague agreement that he would sell 12
Bighas of land in favour of the plaintiff against Rs. 1,20,000/- without specifying
any land as well as the village in which the land is to be situated. It was
mentioned that initially the plaintiff paid an amount of Rs. 17,055/- on
23.09.1998 and thereupon paid amount of Rs. 4,000/- on 30.09.1998, Rs.
11,500/- on 13.02.1999 and Rs. 11,000/- on 03.06.1999. It was the further case
that the plaintiff thereupon failed to pay the remaining consideration in spite of
expiry of long period. It was mentioned that on 30.09.1998, the plaintiff
requested the defendant to allow him to possess 12 Bighas of land at Village
Golibandha to facilitate him to earn some money to pay the rest consideration
and considering the poverty of the plaintiff, the defendants handed over
possession of 12 Bighas of land sometime in the month of October, 1998.
However, the plaintiff not to speak of making payment of the rest of the
consideration to the defendants did not keep any touch with the defendants and
was enjoying the defendant’s land. It is under such circumstances, cases were
instituted being Case No. 57/2000 and 112/2000 against the plaintiff under
Section 145 Cr.P.C. to get possession of the land declared in favour of the
defendants. It was further mentioned that even then also the plaintiff did
neither came forward to purchase the land from the defendants nor instituted
the suit within the period of limitation. On the basis of the said pleadings, the
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learned Trial Court framed 5 (five) issues which being relevant are reproduced
herein under:
“1. Whether the defendants received Rs. 85,000/- from plaintiff and executed
the agreement of sale to sell 12 Bs of land on 23-9-98?
2. Whether the suit is barred by limitation?
3. Whether the plaintiff failed to perform his part of contract and failed to
pay the rest amount to defendants for execution of the sale deed?
4. Whether the agreement dtd 23-9-98 is vague as it does not specify the
land for sale as well as village of the land?
5. Whether the plaintiff is entitled for the decree as prayed for?”
8. On behalf of the plaintiff and defendants evidence were adduced.
It is very interesting at this stage to take note of Exhibit 1 which is the
agreement on the basis of which the suit was filed. The translated
version of the said agreement dated 23.09.1998 is reproduced herein
under:
“Date:23.09.1998
I have received an amount of Rs. 17,055/- from Md. Jamal Khan as advance against
12 Bighas of land (Bigha 10,000/- /thousand).
Ramen Sarma
Kumar Hati, Barpeta
23.09.1998″
9. The learned Trial Court while deciding the said Issue No. 1 came to a
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categorical finding that the defendants had admitted of having received only Rs.
43,555/-. The plaintiff had failed to prove the payment of Rs. 41,445/-. On the
question of limitation, the learned Trial Court came to a finding that as it was
stated in the suit that the last cause of action arose on 12.07.2002 and the suit
was filed on 29.09.2003, the said was within the period of limitation. At this
stage, this Court finds it relevnt to take note of that in paragraph No.8 of the
plaint it was specifically mentioned that a mel (meeting) was held on
10.09.1999 at Golibandha M.E. School about the dispute on account of the
defendant not adhering to the said agreement but the defendant did not appear
on 10.09.1999. From the said, it was apparent from the admission of the
plaintiff itself that there was an implied knowledge of the plaintiff that the
defendant had refused to adhere to the alleged contract for sale on 10.09.1999.
The suit however was filed on 26.09.2003 i.e. almost after 4 (four) years.
However, the learned Trial Court did not take into consideration this vital aspect
of the matter.
10. The Issue No. 3 pertains to, as to whether, the plaintiff failed to perform
his part of the contract for the execution of the sale. The said issue was decided
in favour of the plaintiff holding inter alia that there was no negligence on the
part of the plaintiff for execution of the registered sale deed as per Exhibit 1.
11. On the Issue No. 4 which was of vital significance, as to whether the
agreement dated 23.09.1998 was vague as it did not specify the land for sale as
well as the village of the land, the learned Trial Court came to a finding that the
plaintiff by adducing oral evidence was able to prove that the defendants agreed
to sell the land to him situated at Golibandha and Barala Village and therefore
the agreement dated 23.09.1998 i.e. Exhibit 1 cannot be said as vague. On the
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basis of the decisions in Issue Nos. 1 to 4, the learned Trial Court decreed the
suit thereby directing the plaintiff to pay an amount of Rs. 76,445/- to the
defendants as the rest of the consideration of the suit land within a period of 2
(two) months from the date of the said judgment and decree and the
defendants were also directed to execute the registered sale deed after
receiving the said amount. The said judgment and decree was passed on
31.03.2006.
12. Being aggrieved, the defendant Nos. 1 and 2 preferred an appeal which
was registered and numbered as Title Appeal No. 7/2006. In the said appeal,
the learned First Appellate Court vide the judgment and decree dated
27.04.2009 allowed the appeal thereby dismissing the suit.
13. The learned First Appellate Court came to a categorical finding that Exhibit
1 was vague as it had neither any description of the land nor there was any
schedule given. It was a categorical finding of the learned First Appellate Court
that it cannot be ascertained with certainty which land the defendants wanted
to sell to the plaintiff and on the basis thereof, opined that the agreement dated
23.09.1998 was vague and the plaintiff is not entitled to get any benefit on the
basis of the said agreement. The learned First Appellate Court further took note
of Section 16 (c) of the Specific Relief Act, 1963 (for short, “the Act of 1963”)
and opined that from a perusal of the plaint, the plaint did not confirm to the
requirement prescribed in Form 47 and 48 of Appendix A of the Code. The
learned First Appellate Court further opined that there was no pleading that the
plaintiff was still ready and willing to specifically perform his part of the
agreement and as such, the plaintiff was not entitled to get the decree as
prayed for. The learned First Appellate Court further took note of Section 53A of
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the Transfer of Property Act, 1882 (for short, “the Act of 1882”) and opined that
as the Exhibit 1 was vague, the defendants were not bound to perform their
part of the contract as it violates the essential conditions as enumerated in
Section 53A of the Act of 1882. On the basis of the above observations, the First
Appeal was allowed by the judgment and decree dated 27.04.2009 for which the
present appeal has been filed.
14. I have heard the learned counsels appearing on behalf of the parties and
have also perused the materials on record, including the records which have
been called for.
15. This Court has duly taken note of that the learned Coordinate Bench of this
Court vide an order dated 24.02.2010 had formulated 2 (two) substantial
questions of law. The question arises as to whether the two questions of law as
framed are substantial questions of law involved in the instant appeal.
16. Before proceedings with the determination of the two substantial questions
of law formulated, it is of prime importance that without interfering with the
finding of the learned First Appellate Court in respect to Issue No. 4, the
substantial questions of law so formulated cannot be substantial questions of
law inasmuch as if the Agreement for sale is vague and cannot be specifically
enforced, the question of Section 53A of the Act of 1882 or Section 16(c) of the
Act of 1963 would have no relevance.
17. Accordingly, let this Court first deal with whether, the learned First
Appellate Court was justified in coming to an opinion that the so called
agreement i.e. Exhibit 1 being vague, cannot be enforced. Section 29 of the
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Indian Contract Act, 1872 (for short, “the Act of 1872”) is reproduced herein
below:
“Agreements void for uncertainty.- Agreements, the meaning of which is not
certain, or capable of being made certain are void.”
18. From a perusal of this above quoted Section, it would be seen that
agreements, the meaning of which is not certain or capable of being made
certain are void. This Court further would like to take note of the illustration (a)
to Section 29 of the Act of 1872 which is also reproduced herein under:
“Illustrations
(a) A agrees to sell B “a hundred tons of oil”. There is nothing whatever
to show what kind of oil was intended. The agreement is void for uncertainty.”
19. In the backdrop of the above, let this Court now take note of Exhibit 1.
This Court in the previous segment of the instant judgment has duly quoted the
translated version of the so called agreement dated 23.09.1998. From the said
agreement, it is seen that an amount of Rs. 17,055/- was taken as an advance
by the defendant No. 1 for sale of 12 Bighas of land at the rate of Rs. 10,000/-
per Bigha. This Court further finds it relevant to take note of paragraph No. 2 of
the plaint wherein it has been categorically mentioned that the defendants,
along with the proforma defendants are owners of more than 100 Bighas of
land. The so called agreement though makes reference to the consideration and
for the area of the land, but there are no specific details as regards, the identity
of the land. The learned First Appellate Court in its opinion in view of the
absence of the clear identity of the land had held that the so called agreement
i.e. Exhibit 1 was vague and was accordingly not enforceable. In this regard,
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this Court finds it relevant to take note of the judgment of the Supreme Court in
the case of Pawan Kumar Dutt and Another Vs. Shakuntala Devi and
others reported in (2010) 15 SCC 601. In the said case before the Supreme
Court, the suit was for specific performance of an agreement in respect to a
land admeasuring 4 Bighas 2 Biswas over Khasra No. 608. The learned Trial
Court therein on the question whether the agreement on which the suit for
specific performance was based was vague held that the suit for specific
performance could not be decreed for want of certainty as to the description of
the suit property, for which, the suit was dismissed. Thereupon, the High Court
affirmed the said view and the matter reached the Supreme Court. The
Supreme Court observed in clear and categorical terms that from the suit
agreement it was clear that the total area of land in Khasra No. 608 is 12 Bighas
1 Biswa out of which the defendants agreed to sell only 4 Bighas and 2 Biswas.
The Supreme Court making a copious detail of other judgments of the Supreme
Court came to a finding that a portion out of the total larger portion was agreed
to be sold was without specification of the area agreed to be sold. It was further
observed that from a perusal of the suit agreement there was no boundary of
the suit land property specified which was to be sold in the agreement. It was
further observed that the Courts are not expected to pass a decree which is not
capable of enforcement in a Court of law when there is no clear identity of the
property agreed to be sold. Further to that, the Supreme Court observed that if
a decree is granted for specific performance without identification of the suit
property, it will not be possible to enforce such a decree. Paragraph Nos. 3 to 8
of the said judgment are reproduced herein under:
“3. In Kandamath Cine Enterprises (P) Ltd. v. John Philipose it is stated that
throughout the law of contract there is respect for the sanctity of contract and the
Page No.# 13/16need to give effect to the reasonable expectation of an honest man. It is important
that law ought to uphold rather than destroy apparent contracts. Solemn contracts
entered into between parties are not to be readily declared invalid for uncertainty or
vagueness.
4. Looking to the facts of that case, as is clear from the description made in para 8,
the property was identifiable, which was marked as CXJK, on the basis of the material
that was placed on record, including the report of the Commissioner. In the same
judgment, in para 7 it is stated that the plea that a particular contract is void for
uncertainty under Section 29 of the Contract Act is a question of law and if the terms
of the contract are vague and uncertain, the contract itself would be void and
unenforceable under Section 29 of the Contract Act.
5. On the facts found in the present case, the courts have concluded that the identity
of the suit property was not established. In that, the terms of the agreement as
regards the description of the property are uncertain and vague.
6. In Kartar Singh v. Harjinder Singh it is held that where a joint property is sold by
one co-sharer, such an agreement could be enforced to the extent of the share of the
person who executed the document. It is ruled that if there is a difficulty in
demarcating the share, the decree to the extent of his share can be granted and the
property can be carved out by filing a suit for partition.
7. But the position in the present case is different; that a portion out of the total larger
extent was agreed to be sold, but, without specification of the area agreed to be sold.
It is clear from the suit agreement that no boundaries of the suit property which was
sold are specified in the agreement. It is not clear from what point the area is to be
measured. It is also not clear that these 4 bighas 2 biswas is a portion of the land
situated in the middle of the total land or in one portion or at the extreme end or at a
particular place, in other words, there is no clear identity of the property agreed to be
sold. The courts are not expected to pass a decree which is not capable of
enforcement in the courts of law. If the argument of the learned counsel for the
Page No.# 14/16appellants is to be accepted and if a decree is to be granted for specific performance,
without identification of the suit property, it will not be possible to enforce such a
decree.
8. This Court, in Nahar Singh v. Harnak Singh in para 5, has also taken a view that if
the property itself cannot be identified, the relief of specific performance cannot be
granted.”
20. In the instant case, it would be seen that the plaintiff admitted in his plaint
that the defendants as well as the proforma defendants were joint owners of
more than 100 Bighas of land in various villages. There was no identification of
any land in Exhibit 1. Merely, it was stated that the defendant No. 1 had taken
an amount of Rs. 17,055/- for sale of 12 Bighas of land at the rate of Rs.
10,000/- per Bigha. In the opinion of this Court, the learned First Appellate
Court was therefore justified in its decision insofar as the Issue No. 4 to hold the
so called agreement that is Exhibit 1 was vague and cannot be specifically
enforced.
21. In the backdrop of the above discussion, though a further discussion on
the substantial questions of law so formulated by this Court becomes merely
academic, but taking into account that the learned Coordinate Bench of this
Court had formulated these substantial questions of law, this Court would like to
deal with the same. The first substantial question of law so formulated is on the
question, as to whether, in a suit filed by the appellant for specific performance
of the contract, the judgment and decree passed by the learned Trial Court
could have been reversed by applying the provisions of Section 53A of the Act
of 1882. In the opinion of this Court, the application of Section 53A of the Act of
1882 is not at all involved though the learned First Appellate Court had made a
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reference to it inasmuch as it is not the case, as would be seen from the plaint,
that the plaintiff had sought for any protection on account of part performance
of the decree. Accordingly, the said substantial question of law so formulated by
the learned Coordinate Bench of this Court is not involved in the instant appeal.
22. The second substantial question of law is whether the findings recorded by
the learned First Appellate Court that there were no pleadings in the plaint, to
the effect that the plaintiff was ready and willing to perform his part of the
contract is perverse. It is seen that the learned First Appellate Court arrived at a
decision that there was a requirement that a plaint in respect to a suit for
specific performance should be in terms with Section 16(c) of the Act of 1963
read with Form 47 and 48 of Appendix A of the Code. The learned First
Appellate Court opined that the pleadings were not in consonance with Form 47
and Form 48 of Appendix A of the Code. It is seen from a perusal of paragraph
No. 9 of the plaint that the plaintiff had made an averment to the effect that the
plaintiff was ready and willing to perform his part of the contract.
23. Be that as it may, it is very important to take note of that a perusal of the
relief claimed for in the suit categorically shows that the plaintiff is ready and
willing to pay the remaining amount of Rs. 35,000/- which was the remaining
consideration out of the plaintiff’s claim that he had already parted with an
amount of Rs. 85,000/-. The learned Trial Court however came to a categorical
finding that the plaintiff had only paid an amount of Rs 43,555/- and as such,
had directed the plaintiff to pay the remaining consideration of Rs. 76,445/-.
This finding in respect to Issue No. 1 was neither challenged by the plaintiff by
filing a cross appeal nor the learned First Appellate Court interfered with the
same. There is also no additional pleadings or evidence led during the Appellate
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Stage that the plaintiff was ready and willing to pay the amount of Rs. 76,445/-
which the learned Trial Court directed the plaintiff to deposit. Under such
circumstances, there was no pleading or proof that the plaintiff was ready and
willing to pay the amount of Rs. 76,445/-. On this count also this Court is of the
opinion that there was no pleading as proof that the plaintiff was ready to pay
the amount as adjudged by the learned Trial Court.
24. Consequently from the above, it is the opinion of this Court that the
substantial questions of law so formulated by this Court are not involved in the
instant appeal.
25. Accordingly, the instant appeal stands dismissed with cost quantified at Rs.
11,000/-.
26. The Registry shall send back the LCR to the learned Courts below.
JUDGE
Comparing Assistant