[ad_1]
Jharkhand High Court
Suresh Prasad vs Suraj Kumar Bhadani on 28 August, 2025
Author: Anubha Rawat Choudhary
Bench: Anubha Rawat Choudhary
2025:JHHC:25939
IN THE HIGH COURT OF JHARKHAND AT RANCHI
F. A. No. 149 of 2023
Suresh Prasad, aged about 58 years, son of Late Jodhi Prasad, resident
of Uliyan, Kadma, Near Old Bus Stand, Kadma, C/o. Jamshedpur
Furniture, Kadma, PO and PS-Kadma, Town-Jamshedpur, District-
East Singhbhum (Jharkhand)
... ... Plaintiff/Appellant
Versus
Suraj Kumar Bhadani, son of Late Jugal Kishore Bhadani, resident of
Flat No. D/2, Geetanjali Complex, Kadma, PO and PS-Kadma, Town-
Jamshedpur, District-East Singhbhum (Jharkhand)
... ... Defendant/Respondent
---
CORAM: HON’BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY
—
For the Appellant : Mr. A.K. Das, Advocate
: Ms. Swati Shalini, Advocate
: Mr. Kanishka Deo, Advocate
For the Respondent : Mr. Rohit Ranjan Sinha, Advocate
: Mr. Vishal Kumar, Advocate
: Mr. Kumar Rahul, Advocate
---
C.A.V. On 16.04.2025 Pronounced on 28.08.2025
1. This appeal has been filed against the judgment dated
30.01.2023 (decree signed on 04.02.2023) passed by learned Civil
Judge, (Senior Division,) III, Jamshedpur in Original Suit No. 112 of
2007 registered as T.P.E.S 112 of 2007 whereby the suit seeking
specific performance of agreement dated 01.06.2007 has been
dismissed.
2. The suit was filed for a decree of specific performance of
contract arising out of the agreement dated 01.06.2007 directing the
defendant to execute and register a regular sale deed transferring the suit
property described in the schedule-A in favour of the plaintiff on receipt
of balance consideration amount of Rs. 30,25,000/- and for delivery of
possession.
3. Case of the plaintiff:-
(a) The suit property was originally allotted by M/s. Tata
Iron & Steel Co. Limited in the name of Dina Nath Chakravorty
who died on 05.02.1982 and his wife Raj Laxmi Devi died on
2025:JHHC:2593920.12.1975, leaving behind the following legal heirs and
successors:-
(a) Jatindra Nath Chakravorty (died on 21.03.2001)
(b) Rabindra Nath Chakravorty
(c) Birendra Nath Chakravorty
(d) Sachindra Nath Chakravorty (died on 30.01.2001)
(e) Ranendra Nath Chakravorty
(f) Ahindra Nath Chakravorty
(g) Mrs. Shanti Bagchi, wife of Late B.N. Bagchi (aged
75 years)
(h) Mrs. Sovona Bagchi, W/o Late S.K. Bagchi (aged
73 years)
(i) Mrs. Sipra Lahiri, W/o Mr. S.C. Lahiri (aged 60
years)
(b) A deed of relinquishment vide deed No. 866 dated
07.03.1998 was executed on behalf of Mrs. Shanti Bagchi, Mrs.
Sovona Bagchi and Mrs. Sipra Lahiri in favour of their six
brothers in light of which Holding No. 2 was mutated and
recorded by M/s. Tata Iron & Steel Ltd. in the names of the six
brothers as sub-lessee.
(c) Jatindra Nath Chakravorty and his wife died issueless;
Sachindra Nath Chakravorty died on 30.01.2004 leaving behind
his wife Mrs. Lita Chakravorty. The youngest son of Late Dina
Nath Chakravorty namely, Ahindra Nath Chakravorty made his
brother Birendra Nath Chakravorty the legal constituted
attorney.
(d) Rabindra Nath Chakravorty, Birendra Nath Chakravorty
and Mrs. Lita Chakravorty jointly executed a general power of
attorney in favour of the sole defendant Suraj Kumar Bhadani
for selling off their shares of the suit property which was
registered on 04.10.2004 in favour of sole defendant in the
registry office at Kolkata. Similarly, Ahindra Nath Chakravorty
executed a general power of attorney in favour of sole defendant
2
2025:JHHC:25939
before the Solicitor & Notary Public Coodes 2, Princess Street,
Truro Cornwall TRI.2EZ, England on 04th October, 2004.
(e) It has been stated in the plaint that the original copies of
the general powers of attorney executed by Rabindra Nath
Chakravorty and others as well as one by Ahindra Nath
Chakravorty in favour of the defendant were with the defendant
and the photocopies of the same were given to the plaintiff.
(f) On the basis of the general powers of attorney, the
defendant had approached the plaintiff for selling the suit
property for a total consideration amount of Rs. 40,00,000/- and
agreement for sale was executed on 01.06.2007 which was duly
typed and signed by the parties in presence of the witness. The
defendant in pursuance of the agreement had duly
acknowledged receipt of Rs. 9,75,000/- by way of money
receipt which was also executed in presence of the witnesses.
The agreement provided that the final deed of sale is to be
registered within 30 days of the date of the said agreement on
receipt of the remaining balance amount of Rs. 30,25,000/-.
(g) It was stated in the plaint that despite the plaintiff
approaching the defendant several times for execution and
registration of the deed of sale on receipt of balance amount, the
defendant on and from 07.07.2007 started avoiding to accept the
balance amount and refused to register the deed of sale in
favour of the plaintiff, although the plaintiff was ready and
willing to perform his part of the contract arising out of the
contract and had performed a considerable part of it by paying
part of consideration amount. Even though a legal notice was
sent to the defendant dated 27.08.2007 requesting him to
perform his part of the agreement and execute the deed of sale,
but the defendant avoided to do so.
(h) The suit property was lying vacant and when the
defendant along with 3-4 persons threatened the caretaker to
leave the suit premises, the caretaker left the suit premises as on
10.11.2007.
3
2025:JHHC:25939
(i) The plaintiff asserted that he is ready and willing to
perform his part of the agreement dated 01.06.2007 and it is the
defendant who is avoiding to execute the written agreement on
and from 07.07.2007 in spite of repeated demands made on
behalf of the plaintiff.
4. Case of the defendant:-
(i) The defendant filed written statement stating that the suit
was barred under the provision of Specific Relief Act and was
not maintainable; the suit was bad for non-joinder of parties
since Ravindra Nath Chakraborty who had undivided 1/5th share
in the suit property was not made party; Sachindra Nath
Chakraborty had not only left behind his widow Mrs. Lita
Chakravorty but also left one son and one daughter who were
not made parties to the suit.
(ii) It was submitted that the general power of attorney
was executed for 4/5th share of the suit property by Ravindra
Nath Chakraborty, Birendra Nath Chakraborty, Mrs. Lita
Chakraborty and Ahindra Nath Chakraborty in favour of the
defendant but the defendant never offered or negotiated with the
plaintiff for selling the suit property or any portion thereof; the
market price of the suit property was actually Rs. 1 crore. The
agreement of sale dated 01.06.2007 was alleged to be a forged
document and that the signatures of the defendant was forged
and fabricated; defendant neither acknowledged nor admitted
the terms of the agreement nor admitted to have received a sum
of Rs. 9,75,000/- from the plaintiff and it was asserted that the
money receipt is a forged document; the defendant was never
approached by the plaintiff for receiving balance consideration
amount of Rs. 30,25,000/-; the defendant never received the
lawyer’s notice dated 27.08.2007 of the plaintiff and the
defendant never forcefully ousted the caretaker of the suit
property on 10.11.2007.
(iii) It was asserted that a deed of sale was already executed
by the defendant in favour of a bonafide purchaser long before
4
2025:JHHC:25939the alleged agreement for sale dated 01.06.2007. It was stated
that the suit of the plaintiff deserves to be dismissed.
5. On the basis of pleadings of the parties, the learned trial court
framed the following issues for consideration: –
(i) Is the suit as framed maintainable and have the
plaintiff valid cause of action for it?
(ii) Is the suit barred under the provision of Specific Relief
Act and CPC?
(iii) Is the plaintiff entitled to a decree for Specific
Performance of Contract as claimed?
(iv) Is the plaintiff entitled to any other relief or reliefs?
6. Findings of the learned trial court regarding the issues framed
for consideration are as under: –
“Issue No. III: Is the plaintiff entitled to a decree for
Specific Performance of Contract as claimed?
After referring to the provisions of section 10, 11, 14 and 16 of
the Specific Performance of Contract, the learned trial court
recorded the finding on issue no. III as under: –
Issue NO. III is taken up first for consideration since it is the
principal issue in contention between the plaintiff and the
defendant?
Section 10 ………………….
Section 11(2) …………………
Section 14 ……………………
Section 16 ………………………….
Hence the relief sought is not automatic as the Court is
required to see the totality of the circumstances which are to
be assessed by the Court in the light of facts and
circumstances of each case.
The Supreme Court in its decision in Kamal Kumar V
Premlata Joshi & Ors, in Civil Appeal No. 4453 Of 2009,
passed on 07.01.2019 held as under:
“It is a settled principle of law that the grant of relief of
specific performance is a discretionary and equitable
relief. The material questions, which are required to be
gone into for grant of the relief of specific performance,
are-
5
2025:JHHC:25939
1. Whether there exists a valid and concluded
contract between the parties for sale/purchase of the
suit property;
2. Whether the plaintiff has been ready and willing to
perform his part of contract and whether he is still
ready and willing to perform his part as mentioned in
the contract;
3. Whether the plaintiff has, in fact, performed his
part of the contract and, if so, how and to what extent
and in what manner he has performed and whether
such performance was in conformity with the terms of
the contract;
4. Whether it will be equitable to grant the relief of
specific performance to the plaintiff against the
defendant in relation to suit property or it will cause
any kind of hardship to the defendant and, if so, how
and in what manner and the extent if such relief is
eventually granted to the plaintiff; and lastly, whether
the plaintiff is entitled for grant of any other alternative
relief, namely, refund of earnest money etc. and, if so,
on what grounds.
In the present case it is the case of the plaintiff that by way
of an agreement for sale marked as Exhibit 1 the super
structure standing over the holding no. 2 Sura Bhawan Area,
South Park Bistupur, Town Jamshedpur measuring 7075 sq
feet was agreed to be sold by the defendant to the plaintiff. It
was submitted that the agreement for sale was entered into
between the plaintiff and the defendant, the signatures of the
plaintiff appearing on the agreement was marked as Exhibit
1/6 to 1/10 and of the defendants as Exhibit 1/11 to 1/15 and it
was pleaded on behalf of the plaintiff that they had signed in
presence of witnesses, Arvind Kumar Singh and Binod Kumar
Singh. Further the signature of the identifier, plaintiff witness
no. 3 was marked as Exhibit 1/1 to 1/5 on the agreement. The
plaintiff has submitted that he had signed on the agreement
dated 1.06.2007, however the defendant has denied the same
stating that his signature was forged on the agreement(Exhibit
1) as well as the money receipt(exhibit 3). However the
identifier of the agreement submitted that the defendant had
signed in his presence. When he was questioned by the
defendant as to whether he had checked for identification
document of the person claiming himself to be Suraj Kumar
6
2025:JHHC:25939
Bhadani, he stated that he had not seen identification
document even though he had asked for the same. It was
submitted that he knew Suraj Bhadani as he had seen him
frequent an advocate’s place. Further the opinion of the
handwriting expert was also called for wherein the specimen
signature of the defendant Suraj Kumar Bhadani was sent for
comparison with the signature appearing on the document
marked as Exhibit 1. However as per the report of the
handwriting expert (Exhibit 2) it was submitted that no opinion
could be expressed about the authorship of the disputed
signatures and it was felt that for proper opinion official
documents containing the signature of the defendant of the
year 2005-2010 were required so that the same could be
compared with the ones appearing on Exhibit 1. Hence no
definite opinion of whether the signature appearing on the
agreement dated 1.06.2007 was that of the defendant was
given. The plaintiff in their written arguments have submitted
that in a case that was instituted against the defendant by the
plaintiff (GR Case No. 1049/2008) by the defendant, the
institution of which was also admitted by the defendant in para
35 of his cross examination, the District and Sessions Judge
granted bail on the submissions of the lawyer that the
signatures on the document submitted to have been forged
were similar to the complaint petition filed by the defendant.
However, the order of the Court recording such an
observation has not been brought on record and as has been
submitted by the counsel for the plaintiff itself the same was a
mere submission made on behalf of the lawyer of the accused
and not a finding of fact recorded by the District and Sessions
Judge. Further even the typist of the agreement who was
examined (P.W.2) submitted that he did not remember the
name of the defendant, but he stated that he had signed on the
agreement. However, when questioned he stated that he knew
the plaintiff since the last 30 years. Further even the identifier
of the agreement examined (P.W.3) stated that he had not seen
any identification document of the defendant and that even
though he had asked for one he had not shown him any. Hence
no document on the basis of which he had identified the
executant to be defendant Suraj Kumar Bhadani and to be the
same person signing on the document has been brought on
record. Further when questioned he stated that he knew the
defendant because he had seen him frequent an advocate’s
place. However, the advocate was also not examined to show
that if the defendant did indeed frequent his place so much so
7
2025:JHHC:25939
as to afford P.W. 3, the basis and sufficient knowledge to
identify the defendant’s signature on the agreement dated
01.06.2007. Further none of the witnesses to the agreement
were examined. It was submitted that the witness Binod Kumar
Singh had died whereas the witness Arvind Kumar Singh was
not examined. No witness familiar with the signature of the
witness Binod Kumar Singh was examined. Hence the
witnesses in whose presence the document was submitted to
have been executed by the defendant were not examined.
Further even the person who signed as an identifier of the
signatures on the document could not state as to on what basis
he identified the defendant to be present and to have signed the
agreement marked as Exhibit 1 and nothing has been brought
on record to show that in the usual course of things he was
familiar with the signature of the defendant and therefore
capable of identifying his signature on the agreement. Further
he also submitted that it was the plaintiff who had got the
defendant along and that it was him who told him that the
person accompanying him was the defendant and that he had
seen no identification document of the defendant. Moreover it
was submitted on behalf of the plaintiff that it was the
defendant who had approached him for selling the property
described in the Schedule of the plaint which the defendant
has denied and it was pleaded by the plaintiff that when such
an offer was made, he was even given custody of the
photocopies of the powers of attorney executed in favour of
the defendant. However, the same photocopies have not been
brought on record. Therefore, the circumstances attending
the execution of the agreement dated 01.06.2007 and what
led to the alleged execution of the document (Exhibit 1)
between the plaintiff and defendant has not been brought on
record. However, even though the defendant admitted to have
been partners of the firm Karishma along with the plaintiff and
one other (para 41 of his cross examination), nothing was
brought on record to show that in the course of this
partnership the present agreement to sell had been executed or
that there was occasion for the plaintiff and defendant to enter
into the present agreement. Hence the plaintiff has not been
able to prove the execution of the agreement dated 1.06.2007
by the defendant in light of the fact that the witnesses to the
agreement dated 01.06.2007 were not examined and the typist
(p.w 1) who was examined did not even remember the name of
the defendant whom he stated had signed on the agreement in
his presence as well as the fact that the identifier of the
8
2025:JHHC:25939
document examined Sheo Shankar Singh could not prove the
basis of which identity document he had identified the person
signing on the document to be Suraj Kumar Bhadani
(defendant). Further the agreement in itself provides that the
same was purportedly executed by the defendant as power of
attorney holder of a total of 4 co sharers of the property out
of the 5. Moreover the plaintiff submitted that the
photocopies of the powers of attorney i.e. one executed by the
legal heirs and successors of the original allottee i.e.
Dinanath Chakravorty, of the TISCO lease hold property
Rabindra Nath Chakravorty, Birendra Nath Chakravorty
and Lita Chakravorty i.e deed no. IV-4492 and IV-4493 and
IV-4494 as well as one by Ahindra Nath Chakravorty in
favour of the defendant were given to him while originals
were with the defendant. However no such photocopies were
brought on record by the plaintiff which would show the
basis on which he had agreed to the offer of the defendant to
enter into an agreement for sale of property as described in
the Schedule A of the plaint. The defendant has not denied
the existence of the power of attorney but has denied
approaching the plaintiff on the basis of the same and
offering to sell him the property described in the Schedule of
the plaint. Further the defendant has submitted that a sale
deed no. 3843 dated 17.05.2005 had already been executed by
him in favour of a purchaser much before the present
agreement. However, the sale deed was not brought on record.
Further even the agreement for sale provides that the same
was for sale of super structure standing on the lease hold land
which admittedly belonged to TISCO Ltd. The superstructure
that was standing thereon has not been described. Hence the
agreement to sale was not a sale by the absolute owner of the
land but was by the power of attorney holder of the legal heirs
of the original allottee of the lease of the company. Therefore,
what has been sought to be enforced is the sale of
superstructure standing on the lease hold land. However, no
description of the superstructure has been given in the
agreement to sale (Exhibit 1) nor has the same being brought
on record by way of any evidence. Further S.17 of the Specific
Relief Act, provides Contract to sell or let property by one who
has no title, not specifically enforceable
(1) A contract to sell or let any immovable property
cannot be specifically enforced in favour of a vendor or lessor-
(a) who, knowing himself not to have any title to the
property, has contracted to sell or let the property;
9
2025:JHHC:25939
(b) who, though he entered into the contract believing that
he had a good title to the property, cannot at the time fixed by
the parties or by the court for the completion of the sale or
letting, give the purchaser or lessee a title free from
reasonable doubt.
In the present case Exhibit 1 itself provides that the
agreement for sale was for only the superstructure and that the
land it was standing on was a lease hold land. In the present
case, the documents of title of the defendant i.e power of
attorney alleged to have been executed in favour of the
defendant by the original allottees have not been brought on
record. Further even the agreement to sell was for the 4/5th
share of the superstructure that the defendant could by virtue
of the power of attorney sell on behalf of the legal heirs of the
original allottee of the lease as has been pleaded. Further the
defendant has also submitted that Sachindra Nath Chakravorty
had not only left behind his wife Lita but had also left behind a
son and daughter who was not mentioned by the plaintiff in the
plaint and therefore the agreement to sell as power of attorney
holder on behalf of four persons Sri Rabindra Nath
Chakravorty, Birendra Nath Chakravorty, Ahindranath Nath
Chakravorty and Lita Chakravorty purportedly by the
defendant could not have been for selling 4/5th share of suit
property. However no evidence to that effect was led by the
defendant. The plaintiff has brought the present suit only
against the purported power of attorney holder of the legal
heirs of the original allottee but has failed to bring on record
the power of attorney on record nor has the plaintiff brought
on record the documents on the basis of which it was
submitted that only Sri Rabindra Nath Chakravorty, Birendra
Nath Chakravorty, Ahindranath Nath Chakravorty and Lita
Chakravorty had rights over the property of which sale by way
of specific performance was sought to be enforced. Therefore
the plaintiff has not been able to prove the capacity of the
defendant, i.e his right over the suit property, agreement for
sale of which was sought to be enforced. Further Section
16(c) of the Specific Relief Act also provides that the plaintiff
should prove that he had performed or was ready and willing
to perform the contract sought to be enforced. It was pleaded
on behalf of the plaintiff that he had insisted upon the
defendant to execute the agreement for sale on 07.07.2007 and
that defendant kept avoiding the same. It was submitted that a
legal notice was sent to the defendant dated 27.08.2007 asking
him to perform his part of the contract, however the legal
10
2025:JHHC:25939
notice has not been brought on record and the defendant has
denied receiving the same. Further the plaintiff has pleaded
that his readiness and willingness can be inferred from the fact
that he had paid a substantial sum of Rupees 9,75,000 to the
defendant, the money receipt of which was marked as Exhibit
3. The defendant however has denied receiving any amount
from the plaintiff and submitted that the signature appearing
on the money receipt is forged. The plaintiff has not examined
any witness to the money receipt and submitted that witness
Binod Kumar Singh had died and witness Arvind Kumar Singh
was not examined before the Court. Further the money receipt
was proved by the witness P.W. 4 who was an advocate clerk,
who stated that defendant had signed on it. However, when
questioned as to whether he had seen any monetary
transaction happening between the plaintiff and the defendant,
the witness submitted that he had not. Further in absence of
examination of witnesses to the money receipt, it is the word of
a witness who claims to be present at the time of making of the
money receipt and the maker of the instrument. The purported
executor of the document, the defendant has denied his
signature on the money receipt and the witness who was
brought to prove the document, does not have his presence
recorded on the document. Hence, he is neither the maker of
the document, or the witness to the money receipt. Further the
plaintiff has also not brought on record any documentary
record of the transaction showing how the large amount of
cash was paid by him, i.e. bank statements showing
withdrawal of the amount from his account, or if the payment
was made by demand draft or cheque, the record of those
documents. Hence in absence of the legal notice being brought
on record and the payment of consideration being proved, it
cannot be said that the plaintiff was ready and willing and had
already performed the substantial part of his obligation under
the agreement for sale dated 01.06.2007. Therefore, not only
has the agreement dated 01.06.2007 not been proved even the
fact of the plaintiff having performed or ready and willing to
perform his obligation under the agreement also could not be
proved by the plaintiff. Therefore, in light of the aforesaid
discussion the relief of the specific performance of agreement
dated 01.06.2007 cannot be granted. Further the plaintiff had
also prayed for the relief of recovery of possession of the suit
property. However, the fact that the agreement for sale of the
suit property cannot be specifically enforced in favour of the
11
2025:JHHC:25939
plaintiff does not entitle the plaintiff to recover possession
thereof.
Coming to Issue No. I and II which are as follows :-
I. Is the suit as framed maintainable and have the plaintiff
valid cause of action for it ?
II.Is the suit barred under the provision of Specific Relief Act
and CPC ?
The defendant has submitted that the suit was barred
for non joinder of necessary parties, however no evidence has
been led to that effect. It was averred in the written statement
that Lita Chakravorty ought to have been joined by her son
and daughter so as to bind the share of the Late Sachindra
Nath Chakravorty in the undivided suit property that was
purportedly sold by the defendant. However, no evidence
showing that Sachindra Nath Chakravorty had a son and
daughter besides his wife surviving him has been brought on
record. Moreover in a suit for specific performance of contract
the necessary parties to the suit are the executants of the
contract. It is a settled principle of law that even if a member
of the joint family property has executed an agreement for sale
, it is not necessary that in a suit for specific performance of
agreement for sale, all members of joint family are to be vexed
and made parties to the suit only because their shares in the
property agreed to be sold are joint. Moreover no evidence
has been led on behalf of the defendants to show that the suit
was barred under the Civil Procedure Code, 1908. Further
since the plaintiff has not been able to prove the execution of
the agreement dated 01.06.2007, it cannot be said that the
plaintiff had a valid cause of action for the present suit. Hence
in light of the ISSUE III already decided aforesaid and in view
of the discussions made, these issues are also decided against
the plaintiff.
7. The suit was dismissed on contest.
Arguments of the appellant:-
8. Learned counsel for the appellant placed the plaint and the
written statement and submitted that the defendant was power of
attorney holder of the owners of the property to the extent of 4/5 th
share and had entered into an agreement of sale with the plaintiff in
the capacity of power of attorney holder. It was stated in the plaint that
copies of the power of attorney were handed over to the plaintiff as
reference but the original was retained by the defendant.
12
2025:JHHC:25939
9. It was the case of the plaintiff that in accordance with the
agreement of sale dated 01.06.2007 an amount of Rs. 9,75,000/- was
paid in good faith with respect to the suit property and the plaintiff
never doubted the bonafide of the defendant in abiding the terms of
the said agreement in question as good relation existed between the
parties and accordingly the plaintiff waited for the stipulated period 30
days. After expiry of the said stipulated period, the plaintiff
approached the defendant and requested several times for execution
and registration of the sale deed of the suit property in favour of the
plaintiff and for receiving the balance consideration amount of Rs.
30,25,000/- by the defendant, but on and from 07.07.2007 the
defendant started avoiding to accept the balance consideration amount
from the plaintiff and refused to execute and register the sale deed,
although the plaintiff was all along ready and willing to perform his
part of the contract arising out of the agreement dated 01.06.2007 and
had performed his part of the contract arising out of agreement dated
01.06.2007 and in accordance with the said agreement he had
performed a considerable part of it.
10. It was further case of the plaintiff that the plaintiff served a
registered legal notice upon the defendant requesting him to perform
his obligation by executing a deed of sale on receipt of balance
consideration amount and the notice was dated 27.08.2007 but the
defendant deliberately avoided to perform his part of the contract and
consequently the suit for specific performance of contract was filed.
As per the plaintiff, the suit property was kept locked and keys of the
front room was handed over to a caretaker for looking after the house
as because the co-sharer of the suit property namely Rabindra Nath
Chakraborty, Birendra Nath Chakraborty, Lita Chakraborty, wife of
Late Sachindra Nath Chakraborty and Ahindra Nath Chakraborty have
not been living in the suit premises.
11. It was his further case that the care taker informed the plaintiff
over telephone that the suit property was lying vacant and on the
evening of 10.11.2007 the defendant came with 3-4 persons to the suit
premises and threatened the care taker with dire consequences to leave
13
2025:JHHC:25939
the suit premises because the defendant had purchased the suit
property with all structures standing thereon and the defendant said
that he will dispose the same. The learned counsel has submitted that
the agreement was exhibited as exhibit-1.
12. The learned counsel for the appellant further submitted that the
legal notice and A/D of the registry notice was filed before the court
but inadvertently the same was not exhibited and consequently an
interlocutory application being I.A No. 4092 of 2025 has been filed
seeking to adduce additional evidence and the photocopy of the legal
notice and the A/D has been annexed along with the interlocutory
application as the original was lying with the concerned court. The
learned counsel has referred to order dated 05.02.2008 wherein it has
been recorded that the plaintiff filed the documents along with the list.
She has submitted that on 05.02.2008 deficit court fee was filed and
certain documents as per list with a petition praying therein to keep
the same in safe custody was also filed. She submits that on the same
day, the case was admitted and the petition to keep document in safe
custody was allowed and documents were directed to be kept in the
safe custody under envelope furnished by the plaintiff.
13. However, during the course of hearing, it appears from the
Interlocutory Application that the date of furnishing the additional
documents which are sought to be adduced in evidence at this stage
has not been mentioned nor the list of documents which were
furnished on 05.02.2008 has been placed on record by the learned
counsel seeking to adduce additional evidence.
14. The learned counsel has also submitted that the learned Trial
Court did not frame any issue on readiness and willingness on the part
of the plaintiff to perform the contractual obligation as per the
agreement of sale and has simply framed an issue no. (iii) as to
whether the plaintiff is entitled to a decree for specific performance of
contract and also further issue as to whether the suit was barred under
the provision of Specific Relief Act and CPC. In spite of having not
framed an issue, the learned court came to a finding that the plaintiff
was not ready and willing to perform his part of the contract. The
14
2025:JHHC:25939
learned counsel has relied upon the judgment passed by the Hon’ble
Supreme Court reported in 2022 SCC OnLine SC 1545 (V.S.
Ramakrishnan versus P.M. Muhammed Ali) and has submitted that
in the said case also the trial court framed only two issues (i) whether
the plaintiff is entitled to a decree of specific performance as sought
for? and (ii) whether the plaintiff is entitled to return of advance paid
and if so its quantum?
15. The learned counsel submitted that the Hon’ble Supreme Court
was of the view that the finding regarding readiness and willingness to
perform the part of the agreement could not have been given in
absence of any specific issue framed by the trial court and the matter
was ultimately remanded to the trial court to dispose of the suit afresh
by framing an issue regarding readiness and willing to perform the
contract.
16. The learned counsel submitted that on this score the matter is
fit to be remanded to the court concerned. The learned counsel has
also submitted that the question of remand would arise only when
the other findings which have been recorded by the learned court
are set aside.
17. The learned counsel submitted that the learned trial court has
recorded a finding that the plaintiff has not been able to prove the
execution of the agreement dated 01.06.2007. She has submitted that
the defendant had raised a plea that his signature on the document was
forged and fabricated and his signatures were also sent for
examination by handwriting expert but the handwriting expert could
not give a definite opinion with regard to genuineness of the signature
and asked for furnishing further signatures, but the defendant did not
take any step for the same and consequently the plea that the signature
was forged and fabricated could not be proved by the plaintiff. The
learned counsel relied upon the judgment passed by the Hon’ble
Supreme Court reported in (2025) 3 SCC 286 (Shyam Kumar Inani
versus Vinod Agrawal and Others) paragraph 89 to submit that where
fraud and misrepresentation are alleged by the defendants, the burden
of proof lies upon them to substantiate such claim. The learned
15
2025:JHHC:25939
counsel submitted that the defendant failed to prove the allegation of
fraud, inasmuch as, though he had denied his signature on the
agreement but failed to prove the same by leading credible evidence to
support this allegation.
18. The learned counsel also submitted that a criminal case was
instituted by the defendant against the plaintiff in connection with the
same agreement which was alleged to be forged and fabricated and the
appellant has been acquitted in the said case. She has submitted that
the judgement of acquittal has also been sought to be brought on
record by way of additional evidence and this is on account of
subsequent development in as much as the judgement of acquittal is
dated 11.05.2023. The learned counsel has submitted that the Court
while acquitting the defendant in the criminal case has referred to the
evidence of P.W. 2 Shiv Shankar Singh in the criminal case and said
witness was examined as P.W. 3 in the suit. The P.W. 2 in the criminal
case had stated that both the parties had come to him and agreement
for sale for superstructure was prepared in his presence and this
witness had put signature on each page of the agreement as identifier
and this witness has also stated that Rs. 9,75,000/- was also given to
the informant by the accused in presence of the witnesses.
19. The learned counsel has submitted that there is enough oral
evidence on record to substantiate that the agreement was duly signed
between the parties. She submitted that one of the witnesses to the
agreement had expired and so far as other witness is concerned, his
evidence in chief was filed but he did not turn up for cross
examination and therefore his evidence could not be taken into
consideration. The learned counsel has submitted that other witnesses
to the agreement have deposed in favour of the plaintiff and they were
also duly cross examined. She submits that considering the fact that
the allegation of forgery has been turned down by the criminal court in
which one of the common witnesses namely Shiv Shankar Singh was
also examined, the finding of the learned court that the plaintiff could
not prove the agreement is not sustainable in the eyes of law.
16
2025:JHHC:25939
20. The learned counsel has also submitted that even the court had
the power to compare the signature on the face of it but even this
power has not been exercised by the court concerned once the
handwriting expert declined to give any specific finding while
comparing the signature.
21. The learned counsel for the appellant has placed the agreement
of sale which relate only to superstructure which is dated 01.06.2007
and refers to the power of attorney which has been mentioned above
and has submitted that as per the document itself the consideration
was Rs. 40 Lakhs and Rs. 9,75,000/- was paid in advance and money
receipt was issued and as per the 1st clause of agreement, the
defendant had undertaken to execute and register proper sale deed of
the super structure standing over the property within 30 days from the
date of the agreement and at that time the plaintiff was to pay the
remaining amount of Rs. 30,25,000/- to the defendant. She submitted
that the defendant undertook that the schedule property was free from
all encumbrances and prior to date he would not transfer the property
in any manner in favour of any person or firm.
22. The learned counsel has submitted that the defendant in the
written statement has simply stated that the suit property was
transferred to third person but neither the name nor the details of such
transfer was mentioned in the written statement. However, during
evidence the defendant had deposed that the suit property was
transferred in the year 2005. He has stated in the written statement that
prior to agreement of sale the property was already sold to third party
but no foundational details was mentioned therein. However, during
his evidence he has given the sale deed no. and the date of execution
of sale-deed, but did not produce the same before the court. It also
transpired during the course of hearing that the plaintiff in his
evidence also has stated that during the pendency of the suit the
defendant sold the property in favour of M/s. Vinayaka Home Makers
and defendant was a partner in the said firm and the said property was
also sold in favour of Sunita Seth wife of Sunil Kumar Seth, by means
of a registered sale deed bearing No. 3124 dated 22.05.2009 and she
17
2025:JHHC:25939
got her name mutated in the records of Tata Steel Limited and had
constructed a multi storied building on the same.
23. During the course of argument, the learned counsel has fairly
submitted that the purchaser of the suit property has not been made
party in the suit proceedings. She has submitted that there is no need
to make the purchaser of property party and for that purpose she has
relied upon the judgment passed by the Hon’ble Supreme Court
reported in (2020) 13 SCC 773 (Gurmit Singh Bhatia versus Kiran
Kant Robinson and Others) and has submitted that it is for the
plaintiff to decide as to who would be the party in the proceeding and
merely because the subsequent purchaser was not party in the
proceeding, the same is not fatal to the case. She has submitted that in
the said case in spite of an interim order passed by the court the suit
property was transferred in favour of third party and the Trial Court at
the instance of the third party had allowed the petition under Order I
Rule 10 of CPC. The said order was set aside by the High Court in
writ petition against which the matter was before the Hon’ble
Supreme Court. The appellant before the Hon’ble Supreme Court was
the third party whose name was ultimately deleted by virtue of the
order passed in the writ court.
24. The learned counsel has submitted that the position is different
when the plaintiff files an application for impleadment but the court
cannot force the plaintiff to make third party as party in the
proceedings. She has submitted that impleading third party as party in
the proceedings would change the scope of the suit and therefore in
order to grant relief to the plaintiff, there was no need to join the third
party in the proceedings.
25. The learned counsel has further submitted that the subsequent
sale deed was barred under Section 52 of the Transfer of Property Act.
The learned counsel has submitted that subsequent transfer would be
governed by doctrine of dominus litis.
26. However, as recorded in the impugned judgment and not
disputed by the learned counsel for the appellant that it was
submitted by the plaintiff himself that the suit property was
18
2025:JHHC:25939
transferred to Sunita Seth by virtue of registered sale deed no. 3124
dated 22.05.2009 and this was preceded by another sale deed.
However, the details and date of the other sale deed have not been
brought on record.
27. In the aforesaid context, the learned counsel has submitted that
the judgment passed by the Hon’ble Supreme Court in the case
reported in (2005) 6 SCC 733 (Kasturi Vs. Iyyamperumal and others)
has been followed in the judgement reported in (2020) 13 SCC 773
and the judgment passed in the case reported in (2024) 8 SCC 83
[Maharaj Singh and Others versus Karan Singh (dead) through
legal Representatives] as also the judgment reported in (1953) 2 SCC
509 (Lala Durga Prasad and Others versus Lala Deep Chand and
Others) have no applicability in the present case.
Submission of the defendant-respondent:-
28. With respect to the cross-examination of P.W. 1 (plaintiff), the
learned counsel for the defendant has submitted that a suggestion was
put to the plaintiff (P.W. 1) that the signature on the agreement was
forged. The learned counsel has submitted that the agreement was
exhibited by the P.W. 2 Sudeb Chandra Mandal who was the typist.
He submits that during the cross examination though he has stated that
the plaintiff and the defendant had put their signature on the
agreement in his presence but he could not recollect as to who were
the witnesses to the agreement and he could not recollect as to
whether the agreement was notarized or not. During his cross
examination he also stated that he did not remember as to how many
documents relating to Suresh Prasad were typed by him and he has
known Suresh Prasad, the plaintiff, for the last 30 years. Learned
counsel for the defendant has also submitted that so far as the money
receipt is concerned, the same was also not duly proved by the persons
who were party to it and it was exhibited by Advocate clerk of another
Advocate, who was not examined as a witness.
29. The learned counsel submitted that so far as acquittal of the
appellant in the criminal case is concerned, the same has no bearing in
this case. He referred to the judgment passed by the Hon’ble Supreme
19
2025:JHHC:25939
Court reported in (2010) 8 SCC 775 [Kishan Singh (dead) through
LRS. Versus (Gurpal Singh and Others] paragraph no. 18. He has
submitted that it has been held that the finding of fact recorded by the
civil court do not have any bearing so far as criminal case is concerned
and vice versa. The standard of proof is different in civil and criminal
cases. In civil cases it is preponderance of probabilities while in the
criminal case it is proved beyond reasonable doubt. He has also
submitted that it has been observed in the aforesaid judgment that
there is neither any statutory nor any legal principle that finding
recorded by both either in civil or criminal proceeding are binding on
the same parties while dealing with the same subject matter. Both the
cases are to be decided on the basis of evidence adduced therein.
However, there may be cases where the provisions of Section 41 and
43 of the Evidence Act, 1872 dealing with the relevance of the
previous judgment in subsequent cases may be taken into
consideration. The learned counsel has also submitted that neither the
deposition of P.W. 2 in the criminal case was exhibited before the
learned Trial court in the present suit nor his deposition has been
placed on record by way of additional evidence before this Court. He
has submitted that the evidence of one or the other witness in criminal
case if at all has to be taken into consideration, then the entire
evidence has to be taken into consideration including the cross
examination. Merely because a finding has been recorded in the
criminal case, the same will have no bearing in the civil case unless
the deposition itself is exhibited in the case.
30. The learned counsel has referred to the reply filed to the
petition seeking additional evidence. The learned counsel for the
respondent has referred to Order XLI Rule 3 of CPC to submit that the
materials from which issues to be framed are the plaint and the written
statement and also the documents which are produced. The learned
counsel submitted that since the legal notice was never produced, the
point of readiness and willingness was not available and therefore
there was no need to frame any issue regarding readiness and
willingness. He has also submitted that since only a bald statement
20
2025:JHHC:25939
that the plaintiff was ready and willing to perform his part of the
contract was made without any further pleading as to the availability
of the fund/source of the fund, therefore on such vague pleading, no
issue of readiness and willingness to perform the part of the contract
would be made. The learned counsel has submitted that by now it is
well settled that statement regarding readiness and willingness to
perform the contract with some details is required and the same not
only to be pleaded but also to be proved. He has relied upon the
judgements passed by the Hon’ble Supreme Court reported in (1995)
5 SCC 115 [N.P. Thirugnanam (dead) by LRS. Versus Dr. R. Jagan
Mohan Rao and Others] para 5; (2023) 11 SCC 775 (U.N.
Krishnamurthy versus A.M. Krishnamurthy) paragraph 24 and 2024
SCC Online 3586 (R.Shama Naik versus G. Srinivasiah) paragraph 8
and 10. The learned counsel has submitted that in absence of any
pleading that the balance fund was available with the plaintiff to make
payment in terms of the contract, there was no occasion to frame any
issue to that effect.
31. The learned counsel for the respondent has further submitted
that evidence of both the parties reveal that there were sale deeds prior
to and post execution of the agreement and therefore there was no
occasion for the defendant to enter into any agreement of sale with the
plaintiff, but both the parties did not take any step to bring the sale
deeds on record. The learned counsel has submitted that defendant or
the original owners of the property do not have the title over the suit
property which can be passed on to the plaintiff. He has also submitted
that the original owners of the suit property were not made party in the
suit proceedings and therefore the suit was bad for non-joinder of
necessary parties.
32. The defendant was made party not in the capacity of power of
attorney holder but in his individual capacity by stating in the plaint
that he was power of attorney holder of the owners of the suit
property. The learned counsel has submitted that defendant was at best
power of attorney holder with respect to only 4/5th of the suit property
and the agreement was not only in connection with land but also in
21
2025:JHHC:25939
connection with superstructure over the land, but no specific details to
segregate remaining 1/5th was furnished. He submits that the care taker
was appointed by the plaintiff.
33. The learned counsel further submitted that the learned Trial
Court has considered the evidences on record and has held that neither
the agreement nor the money receipt was proved. He has also
submitted that the learned Trial Court has also taken note of the fact
that the power of attorney was not produced although the plaintiff
claimed that the photocopies of the power of attorney were handed
over to the plaintiff, but even the photocopy was not produced before
the court. The learned court has also held that the plaintiff has not
been able to prove the capacity of the defendant i.e. his right over the
suit property for executing the agreement of sale which was sought to
be enforced.
34. The learned counsel has submitted that the learned trial court
has passed a well-reasoned judgement which does not call for any
interference. The learned counsel has also submitted that one of the
witnesses whose evidence was produced and who was a witness to the
agreement did not appear for cross examination and therefore adverse
inference has to be drawn and for that he referred to the judgment
passed by the Hon’ble Supreme Court reported in (2021) 2 SCC 718
(Iqbal Basith and Others versus N. Subbalakshmi and Others)
paragraph 10.
35. The learned counsel also submitted that the interlocutory
application seeking to adduce additional evidence is fit to be
dismissed.
36. The learned counsel thereafter submitted that on account of the
law laid down by the Hon’ble Supreme Court in the judgment reported
in (2024) 8 SCC 83 (Supra) by relying upon the earlier judgment
reported in (1953) 2 SCC 509 (Supra), the subsequent purchaser was
required to be made party and in absence of the subsequent purchaser,
no effective decree can be passed.
Rejoinder argument of the appellant:-
22
2025:JHHC:25939
37. The learned counsel for the appellant has submitted that the suit
was filed in the year 2007 and it relates to pre-amendment provisions
with regard to section 16(c) of the Specific Relief Act as the Act was
amended only in the year 2018 by which there is a requirement to
plead and prove regarding readiness and willingness. It has been
submitted that as the law stood earlier, the plaintiff was required to
prove his readiness and willingness during trial and a statement in the
plaint was sufficient. The present case is guided by pre-amendment
and not post amendment provisions and the judgment cited by the
learned counsel for the respondent on the point of readiness and
willingness does not apply to the facts and circumstances of this case.
She submitted that the learned court has not framed any issue on the
readiness and willingness; the matter is fit to be remanded.
Findings of this Court
38. As recorded above, the learned counsel for the appellant has
submitted that on account of non-framing of issue regarding readiness
and willingness to perform the part of the agreement by the plaintiff
the matter is fit to be remanded to the court concerned, but the
question of remand would arise only when the other findings which
have been recorded by the learned court are set aside.
39. Points for determination are as follows: –
I. Whether the suit as framed is maintainable?
II. Whether the alleged agreement of sale dated
01.06.2007 is a valid document?
III. Whether the purchaser of the suit property is a
necessary party?
If the findings of the aforesaid points are in favour of the
plaintiff, then further question would arise,
IV. Whether the matter has to be remanded to learned trial
court to examine, frame and decide the issue of
readiness and willingness on the part of the plaintiff to
perform his part of the contract?
I.A. No. 4092 of 2025 (additional evidence)
40. This petition has been filed under Order XLI Rule 27 of Code
of Civil Procedure (in short ‘CPC‘) seeking to adduce additional
23
2025:JHHC:25939
evidence before this Court. This has been filed to demonstrate
readiness and willingness of the plaintiff to perform his part of the
agreement by bringing on record the legal notice and the postal receipt
and further to show that the plaintiff has been acquitted in the criminal
case wherein it was alleged that the agreement of sale and money
receipt involved in this case is forged and fabricated. The
interlocutory application has been opposed by the respondent.
41. The documents which are sought to be adduced as additional
evidence have been placed along with the supplementary affidavit
dated 28.03.2025 which are: –
(a) Certified copy of the judgment dated 11.05.2023 passed in
G.R. Case No. 1049 of 2008 in which the present plaintiff
has been acquitted in the criminal case lodged by the
present defendant. The allegation against the plaintiff was
that the agreement dated 01.06.2007 and also a money
receipt was manufactured which are subject matter of the
present suit.
(b) Photocopy of the legal notice dated 27.08.2007 along with
photocopy of the postal receipt.
42. The judgment contained in the document at Serial No. (a) was
passed after the impugned judgment. So far as the document at Serial
No. (b) is concerned, it has been stated that though the copy of the
legal notice along with the A/D was filed in the trial court and
mentioned in the plaint as well as in the affidavit statement of the
plaintiff, but due to inadvertence the same could not be exhibited.
43. This Court is of the considered view that the point as to whether
the agreement dated 01.06.2007 and the money receipt were forged
and fabricated was in issue in the criminal case and also in this case
but the set of witnesses are not the same. Further, the two powers of
attorney, on the basis of which the agreement of sale dated 01.06.2007
was allegedly executed having not proved, the agreement has no legal
sanctity which would appear from the discussions made in the latter
portion of this judgement. This Court is of the considered view that
judgment of acquittal in criminal case has no bearing in this case nor
the same is required to pronounce the judgment in this appeal.
24
2025:JHHC:25939
44. So far as the legal notice dated 27.08.2007 and its postal receipt
is concerned, the same is not required to be exhibited as additional
evidence before this court as the occasion to consider this aspect of the
matter will not arise in view of the findings recorded in the latter part
of this judgement upholding the finding of the learned trial court and
also recording that the suit property was sold prior to the alleged
agreement of sale involved in this case . The case of the plaintiff that
the defendant had entered into agreement of sale on behalf of the
executors of the power of attorney in favour of the defendant has not
been proved so as to bind the owners of the property who have not
even been made party in this case.
45. In view of the aforesaid, I.A. No. 4092 of 2025 seeking to
adduce additional evidence is dismissed.
46. The plaintiff has examined as many as four witnesses in support
of his case, they are, PW-1 Suresh Prasad (The Plaintiff); PW-2 Sudeb
Chandra Mandal; PW-3 Sheo Shankar Singh and PW-4 Hargovind
Das.
47. The following documents were produced by the plaintiff in
support of his case: –
Exhibits Documents
Exhibit-1 Agreement for sale dated
01.06.2007 (with objection)
Exhibit-2 Report of the handwriting expert.
Exhibit-1/1 Signatures of identifier S.S. Singh on
to 1/5 each page of agreement for sale
Exhibit-1/6 Signatures of the plaintiff Suresh
to /10 Prasad on each page of agreement
for sale.
Exhibit-1/11 Signatures of the defendant Suraj
to 1/15 Kumar Bhadani on each page of
agreement for sale (with objection)
Exhibit-3 Money receipt dated
01.06.2007 (with objection)
48. The defendant examined one witness in support of his case, that
is, DW-1 Suraj Kumar Bhadani, the defendant himself.
Point of Determination No. I – Whether the suit as framed is
maintainable?
25
2025:JHHC:25939
49. This Court finds that the plaintiff has filed the suit against Suraj
Kumar Bhadani, son of Late Jugal Kishore Bhadani and in the cause-
title of the suit, the defendant Suraj Kumar Bhadani has not been
shown to be representing the owners of the suit property in any
manner nor he has been shown to be the power of attorney holder of
the owners of the suit property. The owners of the suit property were
descendants to Dina Nath Chakravorty who died on 05.02.1982 and
his wife died on 20.12.1975. Admittedly, there is only one defendant
i.e., Suraj Kumar Bhadani who has been made party in individual
capacity. Although in the body of the plaint, the plaintiff has described
the defendant as power of attorney holder, but such status is
completely missing from the cause-title and the plaintiff is seeking a
direction upon the defendant i.e., Suraj Kumar Bhadani to execute the
sale-deed pursuant to agreement of sale dated 01.06.2007 in a suit
seeking specific performance of contract. In case the suit for specific
performance of the agreement of sale dated 01.06.2007 is decreed,
then the defendant would be directed to execute the sale-deed in
favour of the plaintiff. Since the defendant has been made party in
individual capacity, there would be no question of execution of sale
deed in the capacity of the power of attorney holder of the real owners
of the property. This is over and above the fact that the defendant, who
has been examined as D.W-1, has stated in his evidence that he is not
aware as to whether the executors of the power of attorney are dead or
alive. In case the sale deed has to be executed through the process of
court, the same will be executed on behalf of the defendant who has
been made party in individual capacity and such a sale deed would
certainly not be said to have been executed on behalf of the real
owners of the suit property. In such circumstances, if the description
of the defendant in the cause-title does not reflect that defendant has
been made party in the capacity of being the power of attorney holder
of 3rd parties, then the court would execute the sale-deed as if the
property belongs to the defendant who has been made party in
individual capacity. The fact also remains that the two powers of
26
2025:JHHC:25939
attorney which have been referred have not been exhibited so as to
ascertain the nature and the extent of power extended to the defendant.
50. This Court is of the considered view that the omission to
represent the defendant as power of attorney holder of the real owners
of the suit property is a serious defect in the frame of the suit and is of
the considered view that suit as framed, was itself not maintainable.
51. The point of determination no. (I) is accordingly answered
against the appellant.
Point of Determination No. 2 – Whether the alleged agreement of
sale dated 01.06.2007 is a valid document?
52. The plaintiff who has been examined as P.W. 1 has stated that
the suit property is the super structure on house no. 2, Sura Bhawan
Area, Bistupur, Jamshedpur measuring 64 ft x 110 ft 6 inches i.e.,
more or less 7075 sq. ft. which belonged to Dina Nath Chakravorty
who expired in the year 1982 and his wife had pre-deceased him on
20.12.1975. He died leaving behind five sons and 3 daughters. He
further asserted that the daughters relinquished their share in favour of
their brothers vide registered deed pursuant to which the mutation was
carried out with M/s Tata Steels Limited vide TISCO letter no.
TAL/2691 dated 08.06.1998. One of the brothers, Jatindra Nath
Chakravorty and his wife expired on 21.03.2001 and 26.12.1994
respectively and they died issueless. Sachindra Nath Chakravorty died
on 30.01.2001, his successor was his wife, Mrs. Lita Chakravorty.
53. This witness (P.W. 1) further stated that the property devolved
upon Lita Chakravorty and surviving brothers.
54. Although the name of Abindra Nath Chakravorty has been
mentioned amongst the sons of Dina Nath Chakravorty, but plaintiff in
paragraph 11 of his evidence-in-chief has stated that Abindra Nath
Chakraborty is now settled abroad and his brother Birendra Nath
Chakraborty residing in Calcutta is the constituent attorney of Abindra
Nath Chakraborty to look after his interest in the suit property. He has
then stated that Rabindra Nath Chakraborty, Birendra Nath
Chakraborty and Abindra Nath Chakraborty all sons of Late Dina
Nath Chakravorty along with Lita Chakraborty have executed general
27
2025:JHHC:25939
power of attorney in favour of the defendant in order to sell their share
in the property which is a registered power of attorney dated
04.10.2004. There is a separate general power of attorney executed by
Abindra Nath Chakraborty in favour of the defendant before the
solicitor and the Notary Public at England on 04.10.2004. The original
power of attorney was retained in the custody of the defendant and
photocopies were handed over to the plaintiff for reference.
55. The plaintiff further stated in paragraph 13 of his evidence-in-
chief as under:
“Rabindra Nath Chakraborty, Birendra Nath Chakraborty, Smt
Lita Chakraborty, widow of Late Sachindra Nath Chakraborty
and Abindra Nath Chakraborty have executed the said General
Power of Attorney individually in favour of the Defendant with
respect to their 1/5th share in the suit holding leaving the share
of Rabindra Nath Chakraborty in North out of Total area of
Tisco Holding No. 2.”
56. This Court finds that in the plaint there is no mention of
Abindra Nath Chakraborty (name of Ahindra Nath Chakravorty has
been mentioned in the plaint), but in the evidence on affidavit, name
of Abindra Nath Chakraborty is appearing as son of Dina Nath
Chakravorty. Further, sons of Late Dina Nath Chakraborty have
been enlisted at paragraph 7 of the evidence in chief of the P.W.1 in
which the name of Abindra Nath Chakraborty has not been
mentioned, rather name of one Ranendra Nath Chakraborty has
been mentioned, whose name does not find reference in the
remaining evidence of P.W. 1. Further, the portion of evidence in
chief of the P.W-1 at paragraph 13 is self-contradictory as in the 1st
part of paragraph 13 it has been stated that Rabindra Nath
Chakraborty along with others had executed general power of
attorney individually in favour of the defendant with respect to their
1/5th share of the suit property and at the same time, it has been
stated that “leaving the share of Rabindra Nath Chakraborty in
North out of Total area of Tisco Holding No. 2”.
57. This Court finds that there is mismatch in the genealogy in
the evidence of P.W-1 (plaintiff) and the plaint and also with respect
to the persons who had executed the power of attorney in favour of
28
2025:JHHC:25939
the defendant. This is over and above the fact that the two powers of
attorney have not been exhibited. One of the powers of attorney was
said to be a registered document, even a certified copy of the same
has not been exhibited.
58. The plaintiff in his evidence in paragraph 20 has stated that it is
not a fact that the defendant never handed over a copy of the
registered power of attorney executed by Rabindra Nath Chakraborty
and others to the plaintiff and it is not a fact that the defendant had
never dealt with the plaintiff with respect to the suit property as an
attorney and that there was no negotiation with respect to the sale of
the suit property.
59. It is the specific case of the plaintiff in his evidence that the
defendant on the basis of general power of attorney proposed to sell
the suit property for a consideration amount of Rs. 40 lakhs and the
agreement was reduced into writing on 01.06.2007. The defendant,
pursuant to the said agreement, received a sum of Rs. 9,75,000/- as
advance and issued a receipt which was duly acknowledged and
admitted by the defendant in the sale agreement as well as grant of
money receipt which was duly signed by the defendant in presence of
witnesses. The sale-deed was to be executed within 30 days. The
defendant on and from 07.07.2007 started avoiding to accept the
balance consideration amount and refused to execute the registered
sale-deed in spite of repeated demand. A registered legal notice was
issued on 27.08.2007 but the defendant avoided to perform his part of
the contract.
60. During the course of evidence, the legal notice or its postal
receipt or its acknowledgement was not exhibited nor the plaintiff
referred about the postal receipt or the acknowledgement of the legal
notice.
61. The plaintiff (P.W-1) further stated that the caretaker of the
property was thrown out of the property on 10.11.2007 stating that the
defendant had purchased the suit property with all structure. The
plaintiff himself has disclosed that during the pendency of the suit
the defendant had sold the suit property in favour of Vinayaka
29
2025:JHHC:25939
Home Makers in which the defendant was a partner and later on,
M/s. Vinayaka Home Makers had also sold the suit property in
favour of Smt. Sunita Seth by means of a registered sale-deed
bearing no. 3124 dated 22.05.2009 and asserted that the sale-deed
comes within the purview of lis pendence. However, the plaintiff
though admitted in his evidence that the suit property was sold by
the defendant in favour of M/s. Vinayaka Home Makers in which
the defendant was a partner, but has not disclosed the date of such
sale so as to enable this Court to find out as to whether the date of
sale was prior to the agreement of sale or it was after the agreement
of sale. So far as the sale deed no. 3124 dated 22.05.2009 by which
the suit property was sold by M/s. Vinayaka Home Makers to Sunita
Seth is concerned, certainly the same is subsequent to the alleged
agreement involved in this case which is dated 01.06.2007.
62. This witness (P.W.1) has been cross-examined. During his
cross-examination he has stated that Dina Nath Chakravorty had five
sons and 3 daughters and the name of sons were Rabindra Nath
Chakravorty, Sachendra Nath Chakravorty, Birendra Nath
Chakravorty and Anindra Nath Chakravorty and he could neither
recollect the name of other brothers nor he could recollect the name of
the daughters. He has stated that he had entered into agreement with
the defendant Suraj Kumar Bhadani but had not seen any sale-deed in
favour of Suraj Kumar Bhadani. He had seen the power of attorney in
the name of Suraj Kumar Bhadani and the power of attorney was a
registered power of attorney. He has also stated that he had not seen as
to what power was granted to the defendant Suraj Kumar Bhadani by
virtue of the power of attorney. He has stated that he has filed
photocopy of the power of attorney. He has further stated in cross-
examination that it is true to say that he had entered into agreement
with Rabindra Nath Chakravorty, Birendra Nath Chakravorty, Lita
Chakravorty and Ahindra Nath Chakravorty and it is also correct to
say that all the four persons were not made party in the present
proceedings and that he has not paid any money to all the aforesaid
persons. He has denied the suggestion that the agreement dated
30
2025:JHHC:25939
01.06.2007 is forged and fabricated. He has stated that Binod Kumar
Singh and Arvind Kumar Singh had signed as witness on the
agreement; Binod Kumar Singh has expired and Arvind Kumar Singh
can be produced as witness. He has also denied the suggestion that the
signature of the defendant on the agreement is forged and fabricated.
63. This Court finds that the P.W. 1 i.e., the plaintiff has admitted
that he did not enter into the agreement with the owners of the
property, rather he was dealing with the power of attorney holder
who was the defendant namely Suraj Kumar Bhadani and that the
power of attorney was registered but he had not seen the contents of
power of attorney. One of the witnesses (out of two) namely, Arvind
Kumar Singh had filed his evidence in chief before the learned court
but did not appear for cross examination and accordingly his
evidence was expunged.
64. P.W. 2 is Sudeb Chandra Mandal who is the typist of the
agreement dated 01.06.2007 and he stated in his evidence-in-chief that
the plaintiff and the defendant had put their signatures in the
agreement in his presence and thereafter, all the witnesses had put
their signatures as witnesses and he signed as typist. Thereafter, S.S.
Singh, Advocate, had identified the signatures in the agreement which
was notarized from the Notary Public Virendra Nath Pandey. This
witness has got the agreement exhibited.
65. P.W. 2 has stated before Court during chief that the plaintiff
Suresh Prasad and the defendant whose name he could not recollect,
had signed in his presence after typing of the agreement. He could not
recollect the names of witnesses to the agreement. He could not say as
to whether the agreement was notarized or not. The agreement was
marked with objection. He could not name as to who was the
defendant and as to who were the witnesses to the agreement.
66. During his cross-examination, he could not recollect as to how
many pages he had typed. He does not maintain any register of the
agreements he types. He could not remember as to which documents
he had typed on 01.06.2007. He has stated that he knows Suresh
Prasad for the last 30 years. He could not recollect as to what all
31
2025:JHHC:25939
documents of Suresh Prasad he typed. He denied the suggestion that
he had not typed the agreement and he had falsely deposed before the
court.
67. P.W. 3 is Sheo Shankar Singh. He claims to know the plaintiff
and has stated that the agreement was typed by Sudeb Chandra
Mandal (P.W. 2). He has stated that after typing, the plaintiff and the
defendant had put their respective signature at all the pages in the
agreement in his presence and thereafter, all the witnesses had put
their signatures as witnesses and he had put his signature as Advocate
in the agreement and had identified all the signatures in the agreement
and thereafter, the same was notarized from notary public Shri
Virendra Nath Pandey. He claimed to have known and identified the
agreement. Before the Court during chief, he has stated that he could
not recollect the name of the witnesses but all had signed in his
presence and the signatures were marked as exhibits 1/1 to 1/15.
68. During his cross-examination, this witness (P.W.3) has stated
that he could not recollect as to how many pages were there in the
agreement. He could not recollect as to who had signed as witness. He
knew Suresh Prasad personally. He has stated that Suresh Prasad had
brought one person and Suresh Prasad himself disclosed name of that
person as Suraj Kumar Bhadani and the person also said that it was his
name. He has stated that he had asked for the identification document
of Suraj Kumar Bhadani, but he did not produce any such document of
identification. He denied the suggestion that somebody else had
signed in place of Suraj Kumar Bhadani. This witness has clearly
stated that in spite of asking for identification document, the person
who had come as Suraj Kumar Bhadani did not produce any such
document of identity and admittedly, this witness did not know the
defendant from before.
69. P.W. 4 is Hargovind Das. He has stated that the money receipt
dated 01.06.2007 executed by the defendant in favour of the plaintiff
was typed by Sudeb Chandra Mandal in his presence and after tying,
the defendant had put his signature in his presence and he identified
the money receipt dated 01.06.2007. However, it is important to note
32
2025:JHHC:25939
that Sudeb Chandra Mandal (P.W. 2) has not mentioned about
typing of any money receipt and he has only referred to the
agreement of sale dated 01.06.2007.
70. Before the Court also, P.W. 4 stated that money receipt was
typed by S.C. Mandal and it was signed by S.C. Mandal, Suraj Kumar
Bhadani and two other witnesses. The money receipt was marked as
exhibit- 3 with objection.
71. This witness (P.W.4) has been cross-examined. He is the
advocate clerk of Deepak Das. He has stated that Suresh Prasad had
given the money receipt for typing. He had no idea as to who drafted
the money receipt and he had seen the money receipt in the file after
signature. He has stated that the money receipt had the signature of
Suraj Kumar Bhadani, Arvind Kumar Singh and Binod Kumar Singh.
This witness has further stated that he is not aware of all the
documents prepared by advocate Deepak Das but by and large he had
idea of the document so prepared. He had stated that he had not seen
the transaction of money. This witness although claims to be the
person in whose presence the money receipt was typed and signed
but he has clearly denied to have seen the transaction of money.
72. This Court finds that neither the persons who had signed as
witness to the agreement (though only one was dead) nor the
persons who had signed as witness to the money receipt have
deposed before the court and there is no explanation for not
producing those witnesses who were alive. Even the advocate, P.W-3
asked for identification document from the person who had come as
Suraj Kumar Bhadani, but no such identification document was
produced and this makes the identity of the person signing the
document as Suraj Kumar Bhadani doubtful as admittedly, this
witness did not know the defendant from before. This court is of the
considered view that neither the money receipt nor the execution of
agreement of sale has been proved by the plaintiff through cogent
evidence.
73. The sole witness of the defendant is Suraj Kumar Bhadani- the
defendant himself who has been examined as D.W. 1. During his
33
2025:JHHC:25939
evidence-in-chief, he has alleged that the plaintiff has no legal right
and that the agreement is forged and fabricated which was never
executed by the defendant. He also stated that the co-sharer of the
property Sachindra Nath Chakraborty died leaving behind not only his
widow Smt. Lita Chakraborty, but also one son and one daughter. He
denied having handed over copies of general power of attorney to the
plaintiff at any point of time and stated that he had never dealt with
the plaintiff regarding the suit property as an attorney holder. He
asserted that the plaintiff might have come in possession of
photocopies of the power of attorney through some other agencies and
accordingly, the plaintiff has come to know about genealogy of Dina
Nath Chakraborty, share of his sons in the suit property and
relinquishment made by his daughters and accordingly, narrated this
fact in the plaint and evidence, although the plaintiff is totally
unknown to the family members of Late Dina Nath Chakraborty and
the suit property. He stated that the market price of the suit property
was more than Rs. 1 crore in the year 2007 and he never agreed to sell
the property at Rs. 40 lakhs and never entered into memorandum of
agreement with the plaintiff on 01.06.2007 regarding the sale or
purchase of the suit property. He asserted that all the terms and
conditions of the alleged agreement dated 01.06.2007 are imaginary
and not binding upon him.
74. With regard to advance payment of Rs. 9,75,000/-, this witness
has completely denied having received any such amount and has also
denied having issued money receipt to the plaintiff. He has asserted
that he had no transaction with the plaintiff at any point of time and
therefore, the question of receiving balance consideration amount does
not arise. He denied having received the legal notice dated 27.08.2007
sent by the plaintiff and has stated that if he had received the notice,
he would have given a suitable reply. He also denied that the caretaker
of the suit property was ousted by him on 10.11.2007. He asserted that
he has been given peaceful possession over the 4/5 th share in the suit
property by 4 co-sharers of the suit property.
34
2025:JHHC:25939
75. This witness (D.W. 1) has also stated that he has already
executed a sale-deed in respect of the suit property in favour of the
bonafide purchaser on 17.05.2005 and handed over possession to them
much before the alleged agreement of sale dated 01.06.2007 which is
suggestive of the fact that the entire case of the plaintiff is false.
76. D.W-1 has been duly cross-examined. During his cross-
examination, he has admitted that he had received power of attorney
from Rabindra Nath Chakraborty, Birendra Nath Chakraborty,
Sachindra Nath Chakraborty and Lita Chakraborty. He is not aware as
to whether they are alive or dead. He has asserted that power of
attorney was made at Kolkata. He has further stated that Rabindra
Nath Chakraborty used to live in Jamshedpur and remaining 3 used to
stay in Kolkata. He has also stated that Rabindra Nath Chakraborty
were 6 brothers; one of them died issueless; 4 brothers and wife of one
brother Lita Chakraborty had given him power of attorney. He further
asserted that the building consists of 5 parts and he has the power of
attorney with respect to 4 parts. He could not recollect the name of the
brother who had not given him the power of attorney. He has also
stated that as on date, all the brothers live separately. He has stated
that he is into business of real estate. His office is at Bistupur. He has
also stated that he has registered one criminal case against the plaintiff
whose G.R. number is 1049 of 2008 in which the plaintiff has got
anticipatory bail. He has stated that he had sold the property on
17.05.2005 to Vinayaka Home Makers; in Vinayaka Home Makers,
Kamal Kishore Bhadani, Sujit Bhadani and Suraj Kumar Bhadani
(himself) were there. He had put his signature on the sale-deed as
power of attorney holder. He has heard the name of Karishma
company and he was informed about this company by Suresh Prasad.
He has stated that he was partner in the company. In the said
company, Suresh Prasad, Manokul Chandra Thakur and he himself
were partners. He has further stated that Akhilesh Kumar Katyian and
Kanchan Katyian are relatives of Manokul Chandra Thakur. He did
not know as to whether Poonam Thakur was a partner in Karishma
company. The Karishma company had loan with UCO bank and he
35
2025:JHHC:25939
has stated that it is not correct to say that when UCO Bank had filed
case against partners of Karishma, at that point of time this witness
was a partner. He asserted that he had resigned prior to the case. He
had no idea that Suresh Prasad was given clean chit in the UCO bank
case. He has stated in paragraph 46 of his cross-examination that when
power of attorney was executed at Kolkata, at that point of time Sujeet
Kumar Bhadani had signed as a witness and he could not recollect the
name of others. He knew Shankar Vardhan from before. He was the
co-holder. He does not know his whereabouts and Shankar Vardhan
was not a witness to the power of attorney. He denied his signature on
the agreement dated 01.06.2007. He denied his signature on the
money receipt. He denied having received any payment by way of
cash or draft from the plaintiff.
77. This Court finds that so far as D.W. 1 is concerned, he has
admitted that he is the power of attorney holder to the extent of 4/5th
share. However, he is not aware as to whether the executors of power
of attorney are alive or dead. He has completely denied any dealing
with the plaintiff with respect to the suit property. He has also denied
having handed over photocopies of the power of attorney to the
plaintiff and has stated that the plaintiff might have got it from some
other agency. He has also denied that the plaintiff has any connection
and knowledge with respect to the genealogy of original owners of the
property (Chakrabortys) and has stated that whatever the plaintiff has
stated, he has picked up from the narrations made in the power of
attorney itself. He has denied the execution of agreement dated
01.06.2007. He has denied issuance of money receipt. He has denied
receipt of advance money. However, the fact remains that the
defendant has also not exhibited power of attorney nor he has
exhibited the deed of sale dated 17.05.2005 executed by him with
respect to the suit property in favour of M/s. Vinayaka Home Makers
or subsequent deed executed by M/s. Vinayaka Home Makers to 3rd
party. Thus, as per this witness, the suit property was sold prior to the
so-called agreement involved in this case, but the sale deeds have not
been exhibited.
36
2025:JHHC:25939
78. This Court is of the considered view that mere admission of
existence of power of attorney with respect to the suit property with
that of the defendant is of no consequence as the power which was
conferred through power of attorney can be proved only through the
document. Moreover, the defendant is not even aware as to whether
the executors of power of attorney are alive or dead. This is over and
above the fact that the defendant claimed that he had already sold the
property on 17.05.2005 to M/s. Vinayaka Home Makers who had
subsequently sold the property to 3rd parties. The fact that the property
was already sold has also been mentioned by the plaintiff in his plaint,
but the plaintiff has not disclosed the date of sale of the property. In
absence of the power of attorney having been brought on record, the
relationship of the defendant with the actual owners of the property
i.e., Chakrabortys and the nature and extent of power conferred upon
the defendant to deal with the property has not been proved by the
plaintiff whose claim as per the suit is that the defendant had entered
into agreement of sale dated 01.06.2007 in the capacity of power of
attorney holder and it was this agreement which was sought to be
enforced through suit for specific performance of contract. The power
of attorney having not been proved, the agreement dated 01.06.2007
also cannot be said to have been proved. It is important to note that the
plaintiff claimed that the defendant had given photocopies of the
power of attorney to the plaintiff, but even the photocopies have not
been produced during evidence to prove this point.
79. This Court is of the considered view that the agreement dated
01.06.2007 has not been proved by the plaintiff. This is irrespective of
the fact as to whether the signatures over the agreement were
matching or not matching with signature of the defendant, as the hand
writing expert did not give a clear opinion.
80. Exhibit 1 is the so-called agreement of sale dated 01.06.2007
which has been marked with objection of the defendant. It was the
specific case of the plaintiff that he had entered into agreement of sale
with the defendant who was representing most of the family members
of the family of Dina Nath Chakravorty being their power of attorney
37
2025:JHHC:25939
holder, but the two powers of attorney which were claimed to have
been executed were neither produced by the plaintiff nor by the
defendant.
81. This Court also finds that it was the specific case of the plaintiff
that photocopies of the powers of attorney were handed over to the
plaintiff and the original were retained by the defendant, but even the
photocopies have not been produced by the plaintiff for identification
of the defendant and therefore, it has not been proved that the plaintiff
was even handed over photocopies of the powers of attorney.
82. This Court finds that the actual owners of the property are not
party in the present proceedings and in absence of power of attorney
being exhibited before the court, the exact purpose for which the
power of attorney was allegedly given to the defendant is also not
clear and in absence of power of attorney having been exhibited, it is
not clear as to whether the defendant had the power to enter into any
agreement of sale or even had the power to represent the owners of the
property in the suit. Admittedly, the suit was not filed against the
defendant in any representative capacity. Had it been done, then the
defendant had no option but to exhibit the power of attorney at the
time of entering appearance on behalf of the owners of the property.
83. This Court finds that the plaintiff claimed that there was an
agreement of sale between the plaintiff and the family members of
Chakravortys dated 01.06.2007 who were represented through their
power of attorney holder namely, the defendant. However, unless the
power of attorney itself is exhibited before the court, the capacity of
the defendant to represent the Chakravortys to enter into agreement of
sale with the plaintiff cannot be said to have been established and
therefore, it cannot be said that there was any binding agreement much
less alleged agreement of sale dated 01.06.2007 between the plaintiff
and Chakravortys through the defendant. Merely because in the
agreement of sale it has been mentioned that the defendant was the
power of attorney holder and merely because the defendant has not
disputed that he was the power of attorney holder, the same is not
sufficient, unless the powers of attorney, which are vital documents
38
2025:JHHC:25939
are exhibited before the court particularly when one of the powers of
attorney is said to be a registered document. This Court is of the
considered view that the very basis of the case i.e., the alleged
agreement of sale dated 01.06.2007 said to have been executed by the
defendant in favour of the plaintiff on the basis of powers of attorney
itself has not been proved.
84. It is also important to note that the defendant who claimed to be
power of attorney holder was not even aware as to whether the
executors of powers of attorney were still alive during his cross-
examination.
85. This witness during his cross-examination has also stated that
he had the power of attorney of 4 brothers and he did not remember
the name of the brother whose power of attorney he did not have. He
has stated that he has a real estate business in Bistupur, Jamshedpur
and he had sold the property on 17.05.2005 through power of attorney
to M/s. Vinayaka Home Makers. He has stated that Sujeet Kumar
Bhadani was a witness to the power of attorney and he did not
remember as to whether Shankar Vardhan was a witness to the power
of attorney. He also denied his signature on the agreement dated
01.06.2007 and the money receipt and he also denied any payment of
money by cheque or cash.
86. None of the witnesses who were signatory to the agreement was
examined. It was stated that the witness Binod Kumar Singh had died
whereas one of the witnesses (out of two) namely, Arvind Kumar
Singh had filed his evidence in chief before the learned court but did
not appear for cross examination and accordingly his evidence was
expunged.
87. Nobody had come to the dock who was familiar with the
signature of Binod Kumar Singh.
88. This Court is of the considered view that the learned trial court
has rightly observed that the plaintiff has brought the suit only against
the purported power of attorney holder of legal heirs of original
allottee of the property, but failed to bring on record the powers of
attorney and therefore, the plaintiff has not been able to prove the
39
2025:JHHC:25939
capacity of the defendant, that is, his right over the property through
the agreement which was sought to be enforced. The learned trial
court has rightly recorded that the agreement itself was not proved and
the entire foundation of the case is the agreement of sale i.e., exhibit 1.
Once the agreement is not proved, the suit has to fail.
Point of Determination No. III – Whether the purchaser of the suit
property is a necessary party?
89. Admittedly, the suit property was sold to 3rd party vide a
registered sale deed bearing No. 3124 dated 22.05.2009. This Court is
of the considered view that the purchaser of the suit property after the
agreement of sale is not a necessary party, but certainly a proper party
in whose absence, a proper decree cannot be drawn. The law is well-
settled that in case the property is sold, then the subsequent sale-deed
need not be challenged , but the buyer of the property can be made
party to the suit proceedings and relief can be granted directing the
buyer of the property to join in for the purposes of execution of sale-
deed along with the vendor in favour of the plaintiff, if otherwise the
suit for specific performance of contract is found fit for a decree. Not
all the sale-deeds executed after the agreement of sale are void, but the
sale-deeds which are executed without knowledge of the previous
agreement of sale and upon payment of the entire consideration
amount and in good faith, are protected under section 19(b) of the
Specific Relief Act. If the purchaser of the property is not made party
in the suit proceedings, then such an opportunity to prove purchase in
good faith and without notice of the agreement in order to sustain the
sale-deed in favour of 3rd party will not be granted. Certainly, the court
cannot force the plaintiff to make any person a party to the suit
proceeding, but having come to know that the suit property has
already been sold and the 3rd party is not a party to the proceedings,
the court would not pass a decree for specific performance of contract
and even if that is done, the same will have no bearing on the previous
sale-deed executed in favour of the 3rd party and the execution of the
sale-deed pursuant to judgement allowing specific performance of
contract would be a futile exercise undertaken by the court as the
40
2025:JHHC:25939
previous sale-deed in favour of 3rd party would prevail over the
subsequent sale-deed. The relief to be granted under Specific Relief
Act is purely discretionary remedy and the court would certainly not
enter into futile exercise which, in fact, would not pass title to the
plaintiff if the suit property has already been sold to 3 rd party who is
not a party to the proceedings and accordingly cannot be asked to join
in the execution of the sale deed pursuant to the decree , if any, passed
for specific performance of contract. In such circumstances, this Court
is of the considered view that the 3rd party in whose favour the suit
property has been admittedly sold by registered sale deed is a
necessary party as such party has to be directed to join in the
execution of the sale deed, if otherwise the suit for specific
performance is to be decreed.
90. It is also important to note that the plaintiff had filed an
application seeking amendment of the plaint on 08.07.2009
challenging the registered sale deed with respect to the suit property
executed by the defendant bearing number 3843 of 17.05.2005 in
favour of Vinayaka Home Makers and also seeking addition of the
purchaser as party to the suit but the petition was rejected vide order
dated 05.11.2009 whose operative part reads as follows: –
“From perusal of plaint, it appears that the present suit is
for the specific Performance of Contract for sale on the basis
of agreement executed on 01.06.2007 but as per the
amendment petition, plaintiff wants to amend the present suit
inserting the facts of transfer of 4/5th portion of suit land
already made on 17.5.2005 through sale deed no. 3843 much
prior to agreement for sale dt. 1.6.2007 and plaintiff wants to
implead the purchasers of said sale deed no. 3843 dt.
17.5.2005 as party defendant in the instant suit along with
amendment in relief portion for a declaration that sale deed
no. 3843 dt. 17.5.2005 is null and void. The land has already
been sold much prior to the institution of the present suit, so,
such declaration asked for by way of amendment can not be
allowed and purchaser of sale deed no. 3843 dt. 17.5.2005
can not be made party in the present suit because provisions
of lispendence is not attracted in the present suit as the suit
has been filed on the basis of agreement for sale dt. 1.6.2007
much after the date of sale i.e. 17.5.2005.
41
2025:JHHC:25939
So, the present amendment asked for by the plaintiff
bears no merit and accordingly stands rejected.”
91. This court also finds that the defendant examined as D.W-1 has
also stated in his evidence that the suit property was already sold on
17.05.2005 but the sale deed has not been exhibited. It has also come
in the evidence of the plaintiff examined as P.W-1 that the suit
property has further been sold to Vinayaka Home Makers and then by
Vinayaka Home Makers vide a registered sale deed bearing No. 3124
dated 22.05.2009.
92. In the aforesaid circumstances, there is no doubt that the suit
property was sold by registered sale deed bearing no. 3843 dated
17.05.2005 prior to the agreement of sale involved in this case
followed by another registered sale deed bearing No. 3124 dated
22.05.2009. In such circumstances, the suit for specific performance
of contract dated 01.06.2007 was itself not maintainable.
93. This court is of the considered view that since the suit as
framed is not maintainable, agreement of sale itself has not been
proved and the suit property was already sold prior to agreement of
sale involved in the present case, there is no point entering into the
point of determination no. IV regarding readiness and willingness on
the part of the plaintiff to perform his part of the contract.
94. I.A. No. 4092 of 2025 seeking to adduce additional evidence
has already been dismissed above.
95. As a cumulative effect of the aforesaid findings, this appeal is
dismissed.
96. Pending interlocutory application, if any, is also dismissed.
(Anubha Rawat Choudhary, J.)
Pankaj/Binit
42
[ad_2]
Source link