Page 1 of 22

IN THE HIGH COURT AT CALCUTTA

CIVIL REVISIONAL JURISDICTION

APPELLATE SIDE

Present:-

HON’BLE JUSTICE RAVI KRISHAN KAPUR

AND

HON’BLE JUSTICE CHAITALI CHATTERJEE DAS.

F.A. 87 OF 2011

DIBYENDU BERA & ANR.

VS.

MAHADEB PAN & ORS.

For the Appellants : Mr. Rabindranath Mahato, Adv.

Mr. Aritra Shankar Roy, Adv.

For the Respondents : Mr. Tapas Kumar Sinha, Adv.

Last heard on : 15.07.2026

Judgement on : 04.08.2026

Uploaded on : 04.08.2026

CHAITALI CHATTERJEE DAS, J.: -

1. This appeal has been filed against judgement and decree dated October 5,

2010 passed by the Learned Civil Judge, Senior Division at Ghatal, District

Medinipur (West) in Title Suit no. 39 of 2003.

Page 2 of 22

Brief fact of the case

2. The factual matrix of the case discloses that a title suit being T.S no. 39 of

2003 was filed by the plaintiffs/appellants for specific performance of a

contract for sale against the defendant/respondent on the basis of an oral

agreement dated 12.08.1409 B.S. The plaintiffs as well as the defendants

having their property adjacent to each other that the plaintiffs being the owner

of “ka” schedule property where in possession .In the month of Kartick 1409

B.S the defendants No 1& 2 declared to sale the “ka” schedule property and

since said “Ka” schedule property was adjacent property to the paternal

property of the plaintiffs who wanted to purchase the suit property and

accordingly sent their father Madhab Chandra Bera to defendant no 1 and 2 ,

the father and two brothers of the defendant no. 1 on 2

nd

kartick 1409 B.S.

3. It is the further case of the plaintiff that defendants agreed to sale out the “ka”

schedule property to the plaintiff and on the same day in presence of other

gentleman the consideration price of “ka” schedule property at Rs. 10,91,000/.

On the said date an oral agreement was entered into between the father of the

plaintiff and Jashabant Pan the father of defendant no. 1 and defendant no. 3

and 4, the brothers of defendant no. 1 in presence of some other gentleman

and that oral agreement was confirmed. It was decided thereby that the

defendant no. 1 and 2 would transfer ‘ka” schedule property in favour of the

plaintiffs by executing two separate register deed and the valuation was fixed

as Rs. 10,91,000/-. In order to avoid income tax hazard it was further decided

that in each deed such valuation of half of “ka” schedule property would be

Rs.3 Lakhs and the plaintiffs would pay Rs.7,41,000/- out of Rs. 10,91,000/-

Page 3 of 22

before the registration of the deed to the defendant no. 3 and 4 on behalf of

defendant/respondent no. 1 and 2 upon issuing receipts and further balance

amount Rs. 3,50,000/- would be given to respondent/defendant no. 1 and 2

at the time of registration of such sale deed. The defendant no. 1, 3 and 4 and

their father Jashabant Pan are members of joint family and Jashabant Pan is

the Karta of such joint family and accordingly the aforesaid agreement was

made.

4. In terms of said oral agreement Madhab Chandra Bera on behalf of the

plaintiffs paid an amount of Rs. 1,91,000/ - and on 4

th

kartick 1409 B.S.

corresponding to October 22, 2002 as advance to the brother of the

respondent/defendant no. 1 ,Sukdeb Pan who is the respondent /defendant

and received such money by issuing receipts. However, erroneously his name

has been written as on 05.07.1409 B.S, instead of 04.07.1409 B.S.

Additionally, in terms of the said agreement on 01.02.1409 B.S. again paid

Rs.2, 00,000/- to the brother of the respondent/defendant no. 1 being the

respondent/defendant no. 4 and he received such amount and issued receipts.

The 3

rd

payment was made on 20.08.1409 B.S. of an amount of Rs.1, 02,600

along with gold ornaments of Rs.47 , 400 totally Rs.1, 50,000 and the

defendant no. 4 issued receipt on behalf of respondent/defendant no. 1.The

last payment made by Madhab Chandra Bera on 24.08.1409 B.S. of Rs. 2 .00,

000/- when the brother of the defendant/respondent no. 1 Rabindra nath Pan

being defendant no. 4 in similar manner received the amount and issued

receipts. In this way Madhab Chandra Bera on behalf of the plaintiff paid to

the defendant no. 1 and 2 through defendant no. 4 of Rs. 7,41,000/- therefore

in terms of the oral agreement made between the parties the amount of

Page 4 of 22

Rs.7,41,000/-out of total consideration money of Rs. 10,91,000/ - before

registration of the deed was made and an advance. Thereafter Jashabant Pan

father of the defendant no. 1 handed over to Madhab Chandra Bera the

original deed and tax payment receipts in respect of “ka” schedule property

and agreed that they would execute an register two deed in respect of “ka”

schedule property in favour of the appellant on 26

th

Agrayan, 1409 B.S. On

being asked the plaintiffs purchased stamp paper on 10.12.2002 of Rs.

24,000/- and prepared two separate deeds mentioning the consideration

prices of each deed as of Rs. 3 lakh total Rs. 6 lakh and according to such

settlement the deeds were written by the deed writer on 25

th

Aghrayan,1409

B.S. corresponding to 12.12.2002. Thereafter, on Agrayan 1409 B.S when the

plaintiffs and their father Madhab Chandra Bera as well as the deed writer Sri

Shibram Gope and other witnesses came to the residents of the respondent no

1 and request to execute the deed of sale in terms of the agreement they

demanded more amount and refuse d to accept the balance of Rs. 3, 59,000/-

as well as refused to execute and register the deed as agreed.

5. Having no other alternative the plaintiffs through their advocate Tapan kumar

Sinha issued separate notice on 23.05.2003 to the respondent no. 1 and 2 in

order to execute and register the deed upon receipt of balance amount of Rs. 3,

50,000/- but despite receiving the notice they refused to execute and register

the sale deed and hence the plaintiffs had to file the suit against them praying

for decree of specific performance of contract.

Page 5 of 22

Submissions

6. It is the contention of the Learned Advocate representing the appellants that

the Learned Trial Judge though held that the execution of oral agreement was

proved in respect of the suit property and found the suit to be maintainable

dismissed the suit on the ground that the valuation of the suit property was

described in the deeds as of Rs6 Lakhs when the proposed consideration

prices agreed was of Rs. 10,91,000/-hence the agreement is void as by such

agreement the parties intended to defraud the Income Tax Department. It is

further contended that the finding of the Learned Trial Court regarding the

acceptance of the oral agreement was not challenged by the respondent by

filing a cross appeal and is binding between the parties which cannot be

assailed at this stage. In this reliance is placed upon the decision in

Ranchhoddas Chhaganlal vs Devaji Sudpu Dorik and Ors

1

. para 9.

7. It is further argued that the finding of the Learned Judge to the effect of non-

description of the schedule property in the deed of sale in two different sale

deeds and that in whose name the plots are lying or the rate of land have not

been proved, is perverse because of non-consideration of exhibit 6 and 6/1

where in the schedule as well as in the schedule of the deed the price of

specific land to be transferred was properly described.

8. The further argument made before the Court is that the Learned Trial Court

without considering exhibit 3/2 , one of the money receipts where it was

mentioned that the money transaction is for land, held that plaintiffs have

failed to prove the transaction between the parties was for the purpose of

purchasing the suit land. It is specifically argued that the consideration price

1

(1977) 3 SCC 584

Page 6 of 22

which was mentioned in exhibit 6 and 6/1 can b e cured by describing the

present market price as the appellant is ready and willing to pay the present

market price and the oral agreement cannot be held as invalid on the ground

of non-mentioning of actual transaction amount with the intention to defraud

the Income Tax Department for Rs.4, 91,000/- which can be cured by

mentioning the actual money transaction. The appellant throughout shown

their readiness and willingness to purchase the suit properties and made

payments which have been proved and also the deeds were prepared for such

proposed transfers were also exhibited.

9. The Learned Advocate relied upon the decision reported in Panchanan Dhara

and Others vs Monmatha Nath Maity ( Dead) through legal

representatives and another

2

para 35 to substantiate his contention that

oral agreement is permissible in law. Further reliance is placed upon the

decision in V.R Sudhakara Rao and Ors vs T.V Kameswari

3

para 4,8 that

oral agreement for sale can be entered into by representative or agent on

behalf of the vendor or purchaser . The defendant /respondent no. 3 and 4

who never appeared in the suit nor filed any written statement and did not

adduce evidence to the effect that they did not receive the money on behalf of

respondent no.1 and 2 or the amount was received for any other purposes and

never authorised the respondent no 3 and 4 to act on their behalf and hence

their objection cannot be accepted at this stage particularly when it is

established that the defendant no. 4 was a witness in the deed being exhibit

4/3. In this regard put reliance on the decision in Lateefa Begum Vs B.G

2

(2006) 5 SCC 340

3

(2007) 6 SCC 650

Page 7 of 22

Kirloskar (Dead) by Lrs

4

. In addition reliance is placed upon the decision in

V.R Sudhakara Rao and Ors vs T.V Kameswari (supra) para 13 to

substantiate that considering the evidence relating to part performance by the

appellant by paying Rs.7, 41,000/- to the defendants and handing over the

original title deeds by the respondent to the plaintiffs and by preparing the

proposed sale deeds the Learned Court ought to have decreed the suit.

10. The suit for specific performance or oral contract merely because of denial

made by the defendant/respondent regarding of entering into oral agreement

and payment of part of consideration prices cannot be denied when the

appellant plaintiff all through expressed their readiness and willingness to

purchase the suit property and even now ready to purchase at the present

market price. In this regard relied upon the decision reported in U.N.

Krishnamurthy (since deceased) through Legal Representatives vs A.M.

Krishnamurthy

5

, para 8, 2,11,21,34.

11. Per contra the respondent nos. 1 and 2 submitted the respondents no. 1

and 2 are admittedly the owner and in possession of 5 decimal and 1 decimal

of suit land respectively. The entire averment that the appellant sent their

father Madhab Chandra Bera to represent respondent no 1 and the father and

two brother of respondent no.1 on 2

nd

Kartick ,1409 B.S. and in presence of

other gentleman the consideration price was settled at Rs. 10,91,000/-

specifically denied by the present defendant. The defendant never asked the

appellant or their father to purchase the stamp paper or prepared the sale

deed and in written statement specifically denied such contention .It was

4

(2005) 11 SCC 515

5

(2023) 11 SCC 775

Page 8 of 22

further averred that their father was alive and was residing separately at

Cuttack in Odissa for last 12 years and carrying on his business over there.

They never authorised the defendantand Jashabant Pan for sale of “ka”

schedule property or any other property. The respondent no. 1 and 2 never

received any advanced money for “ka” schedule property in the appellant or

their father or from any other persons. The defendant lodged a complaint

before Ghatal Police Station since the original document of “ka” schedule

property was lost.

12. It is the further contention that there was no privity of contract between the

appellants who are the owner of suit property and respondents 1 and 2 . No

pleading was made that Madhab Chandra Bera , the father of the present

appellant was constituted attorney or authorised agent of the appellant. The

appellants failed to prove by evidence that father of the appellant was

authorised to enter into or the oral agreement on the contrary on the date of

oral agreement the appellants were present with their father which would be

evident from deposition of P.W. 1 and P.W. 2. The plaintiffs appellants also

failed to prove that father of the defendant no 1 and defendant no. 3 and 4 are

the constituted attorney or authorised agent of defendant no. 1 and 2 as they

specifically denied in their deposition to ever authorised the respondent no. 3,4

and Jashabant Pan to sale the “ka’ schedule property or to receive money for

that purpose in this regard. In this regard relied upon a decision reported in,

Aries Advertising Bureau vs C.Y. Deyaraj (dead) by LRs

6

.

13. The second point raised is that the oral agreement was not specific and

plaintiffs failed to prove the oral agreement. It is submitted that in the alleged

6

AIR 1995 SC 2251

Page 9 of 22

oral agreement the consideration money of land of respondent no. 1 and 2 was

not separately determined. There was no oral agreement for land of respondent

no. 2 ,no instalment amount and date of payment of instalments amount for

payment of Rs. 7,41,000/ - out of alleged consideration money of

Rs.10,91,000/- was fixed in the oral agreement and the alleged payment was

shown to have been made according to convenient dates in order to

manufacture the money receipt as the respondent no 3 and 4 and father of the

appellants both have jewellery business and had business relations. That

apart the money receipts failed to show that any advance consideration money

was paid to the respondent no. 3 and 4 in the suit land and or that such

alleged advance consideration money was paid for the “ka” schedule land. In

this regard relied upon the judgement reported in (Ganesh Seth vs. Dr.

C.S.G.K Setty and Ors.

7

, (K. Nanjappa) dead by legal representatives vs.

R. A. Hameed @ Ameersab (dead) by legal representatives and anr.

8

and

Mayawanti vs Kaushalya Devi

9

. It is further argued that where there is a

case of oral agreement greater amount certainty is required in terms of an

agreement which is to be specifically executed in equity than is necessary in a

contract which is to be the basis of an action at law of damages.

14. Further the plaintiffs are not entitled to obtain specific performance of the

oral agreement which was allegedly entered into between Madhab Chandra

Bera, father of the plaintiffs, father of the respondent no. 1 and respondent

no. 3 and 4 as the appellants who are neither representatives in interest nor

the principle and according to the provision of Section 15 (a) 15 (b) of the

7

(1998) 5 SCC 381

8

(2016) 1 SCC 762

9

(1990) 3 SCC 1

Page 10 of 22

specific Relief Act, 1963 the title suit filed by the plaintiff/appellant is not

maintainable.

Analysis

15. On perusal of the materials on record coupled with the submission

advanced the moot question which falls for consideration as to how far the

claim of the appellants praying for a decree for specific performance of contract

is established in respect of the scheduled suit premises.

16. The Trial Court eventually considering the materials and the evidences

adduced was satisfied about the oral agreement which took place between the

father of the Appellant Madhab Bera and the father of the Respondents

Jasbant Pan in presence of other persons. The Trial Court however was not

convinced that such oral agreement was for the suit property or any advance

amount was received towards the consideration amount. It is a settled law that

existence of a concluded contract is essential pre condition to maintain suit for

specific performance. It is equally settled law that such suit is well

maintainable on the basis of oral agreement but the necessity of proof of fully

concluded contract is sine qua non. In the decision relied upon by the Learned

Advocate representing the appellant in Ranchhoddas Chhaganlal (supra)

there was an oral agreement to sell the agricultural land for Rs 17,000/-and a

suit was filed for specific performance of contract and the case of the plaintiffs

was that the defendants was never ready and willing perform their part.

17. In the case of V.R. Sudhakara Rao and Ors. Vs. T.V. Kamaleswari

(supra) an oral agreement of sale was made and it was observed that the defence

under Section 53A of the TP Act is not available to a party who alleges to be in

Page 11 of 22

possession of the property. In the said case the father of the plaintiff approached

the first defendant for purchase of site and the first defendant agreed to sell at a

total consideration of Rs. 42,575 and the allegation was raised that the oral

agreement was entered into between them are false and denied. It was held by

the Hon’ble Supreme Court that-

“The High Court rightly concluded that there is no clear proof

relating to the other terms and conditions. The relief of

specific performance is discretionary relief and except the

oral evidence, there is no clear evidence to prove several of

the essential terms which have been taken note of by the

High Court. The High Court, on analysing the evidence came

to such observation that except exhibit B-1 and the oral

evidence of D.W. 1 and D.W. 2 , there is no clear proof

regarding the other terms and conditions of the contract

which can be turned as essential conditions like delivery of

possession and also the obtaining of permission from the

Urban Land Ceiling Authorities and therefore, it cannot be

said that all the essential terms and conditions of a well

concluded contract had been established in the case in

hand.”

18. In the case of Lateefa Begam vs. B.G. Kirloskar (D ead) by LRS (supra)

the appeal arose out of a suit seeking specific performance of agreement of sale

based on an oral agreement by the defendant no. 1 who is successor in title of

the original owner and is the appellant before the Court. The negotiations for

Page 12 of 22

sale took place through defendant no. 2 who was alleged to agent and nephew

of defendant no. 1 and the receipt was issued by defendant no. 2 for and on

behalf of defendant no. 1. Before filing the suit for specific performance, the

plaintiff served a legal notice to both the defendant and defendant no. 2 alone

gave a reply repudiating the contract. It was held by the Learned Single Judge

the Trial Court as well as the Learned Single Judge of the High Court that an

oral agreement did take place between the defendant no. 2 on behalf of

defendant no. 1 and the plaintiff and aforementioned part consideration for

sale was paid and the decree for specific performance for executing the sale of

land was granted. The Hon’ble Supreme Court held that no specific issue was

raised on the question of the existence of any alleged agency between

defendant no. 1 and defendant no. 2. No specific issue was raised on the

existence and validity of the agreement for appointment of defendant no. 2 as

an agent of defendant no. 1. The defendant no. 1 kept herself away from the

witness box and sent no reply to the legal notice to deny that she had not

authorised her own nephew to act as an agent and negotiate for sale. A similar

transaction took place earlier where defendant no. 2 acted as an agent on

behalf of defendant no. 1 and considering the concurrent finding of the fact

recorded by all courts that there was an oral agreement of sale evidenced by

payment of part price by cash and cheque evidence by a formal issuance of

receipt and concurrent finding recorded that defendant no. 2 was acting as an

agent of defendant no. 1 decline to re-appreciate the evidence and take a

contrary view and accordingly dismissed the appeal.

Page 13 of 22

19. In the decision of U.N. Krishna Murthy (Supra) as relied upon by the

Learned Advocate of the respondent it was observed that readiness and

willingness to perform an obligation to pay money must be averred and proved.

The Hon’ble Supreme Court took note of the decision of H.P. Pyarejan vs.

Dasappa

10

wherein the judgement of the High Court was reversed and it was

held that High Court did not provide reasoning for its conclusion that the

plaintiff was ready and willing to perform his part of contract as relied upon by

the Learned Advocate of the respondent.

20. In the decision of K. Nanjappa (dead) by legal representative (Supra) as

relied by the Learned Advocate of the respondent the Hon’ble Supreme Court

held that oral agreement for sale of immovable property is permissible but

“heavy burden lies on the plaintiff to prove that there was consensus ad idem

between the parties for the concluded agreement for sale of immovable property.

Whether there was such a concluded contract or not would be a question of fact

to be determined in the facts and circumstances of each individual case”. It was

further held that “Section 20 of the Specific Relief Act, 1963 preserves judicial

discretion to grant decree of specific performance; however the court is not bound

to grant specific performance merely because it is lawful to do so. The Court

should meticulously consider all facts and circumstances of the case and to see

that it is not used as an instrument of operation to have an unfair advantage not

only to the plaintiff but also to the defendant”. In paragraph 25 of the said

decision it was that :-

“25. It is equally well-settled that relief of specific

performance is discretionary but not arbitrary, hence,

10

(2006) 2 SCC 496

Page 14 of 22

discretion must be exercised in accordance that sound

and reasonably judicial principles. The cases

providing for a guide to courts to exercise discretion

one way or the other are only illustrative and they

are not intended to be exhaustive, in England, the

relief of specific performance pertains to the domain of

equity, but in India the exercise of discretion is

governed by the statutory provisions.”

21. In Mayawanti vs Kaushalya Devi (supra) where in the matter of Specific

Relief Act, 1963 and its applicability it was held that there must be a valid and

binding contract between the parties in respect of which parties should be

consensus ad idem. Burden of proof is on plaintiff seeking specific performance

of contract.

22. In Ganesh Shet (supra) again it was reiterated by the Hon’ble Supreme

Court that discretionary power of court in granting relief of specific

performance and the variations between pleading and in regard the terms of

the contract the decision in differences between suit for specific performance

and the other suits, the Court should not exercise its discretion in such

situation to grant a decree for specific performance.

23. Lastly in the decision of Hon’ble Supreme Court reported in Aries

Advertising Bureau vs. C.T. Devraj (dead) by LRS respondent (supra), the

Court observed that “The High Court, on appeal, found that there was no privity

of contract. Though the appellant relied on Section 70 of Indian Contract Act,

1972 admitted to fasten the liability on the respondent , it was found that the

respondent did not derive any benefit under the contract between him and

Balakrishnan”. It was further held that “agreement Exhibit A-3 is bilateral

Page 15 of 22

between the respondent and Balakrishnan and the appellant was not a party to

that agreement so there was no privity of contract between the appellant and

Devraj”.

24. In the instant case that respondent no. 1 and 2 being the respondent herein

are the joint owners of the suit property. In the entire pleading nowhere it was

stated that the father of respondent no. 1 Jaswant Pan was authorised to act

as an agent on their behalf to approach the father of the appellant regarding

the sale of suit property. It is nowhere found from the pleadings that Madhab

Chandra Bera the father of the present appellant were also authorised by the

present appellant to pay the money or to enter into the oral agreement in

respect of the suit property of which Jaswant Pan was not the owner. It is

found from the record as well as the exhibits that the certain amounts were

paid on various occasions which were received by respondent no. 3, son of

Jaswant Pan, respondent no. 4 another son of Janwant Pan and but it was

categorically denied in course of cross-examination on behalf of the respondent

that at no point of time the owner of the property authorised those persons to

receive money on their behalf in respect of sale of the disputed property.

Defendant Respondent no. 1 adduced evidence as D.W. 1 a nd the

respondent/defendant no. 2 filed written statement along with him, who

admitted that the property belongs to them and he was deposing on behalf of

the respondent no. 2 and himself. He clearly denied that he or defendant no. 2

ever declared to sale out “ka” schedule property. It further transpires from

such evidence that D.W. 1 had 5 decimal of land and the defendant no. 2 had

one decimal of land in plot no. 470 and there was no talk of sale between them

Page 16 of 22

and plaintiff no. 1 and 2 or their father on the alleged day of Kartick 1409 B.S.

or any other dates. He denied to have accepted any money as a dvance for

selling out such “ka” schedule property either from the plaintiff or form their

father. He is a resident of Cuttack, State of Orissa for about 15 to 17 years

having a jewellery business there in and they never handed over to the

authority to sold out such “ka’ scheduled property over defendant/respondent

no. 3 and 4 or their father Jaswant Pan. He admitted that they are six brothers

and they have relation with Biman Ghosh as neighbour. He denied that on

22.10.2002 Madhab Bera on behalf of plaintiff paid Rs. 1, 91,000/- to Sukdeb

Pan as per oral agreement and Sukdeb Pan issued receipt to that effect or

Madhab Bera paid further Rs. 2 lakhs on 12.08.1409 B.S. and Rabin Pan

issued the receipt as per oral agreement. He also denied that on 24.08.1409

B.S. or on 20.08.1409 B.S. Rabin Pan received an amount of Rs. 2 lakh or Rs.

1 lakh 50 thousand from Madhav Bera as well as gold jewelleries as per oral

agreement and issued the money receipt accordingly.

25. As D.W. 2 Biman Ghosh adduced evidence who is a joint owner of the suit

property. He also denied that they ever agreed to sale “ka” schedule property or

had any talk with the plaintiffs of their father relating to sale out the suit

property. They never authorised defendant/respondent no. 3 and 4 or Jaswant

Pan to sale out property on their behalf or to receive any money towards sale of

suit property. It is further stated by both the witness that in the year 2002 the

market price of such property was more than Rs. 30 lakhs and therefore it

cannot be said that the value of property could have been agreed at Rs.

10,91,000/-.

Page 17 of 22

26. Therefore curiously enough neither Jaswant Pan nor the witnesses who

issued the receipts were examined. Similarly, on behalf of the plaintiff the

plaintiff /appellant no. 2 his father Madhab Bera , one Brigendra Nath Karak,

one Sibram lal and Narohaur Mal was examined as plaintiff w itnesses. The

appellant respondent no. 2 did not adduce any evidence. On close scrutiny of

the evidence of Madhab Chandra Bera it appears that the land, where his

residence is there was purchased by him from the brother of appellant

respondent no. 1 Sukdeb Pan and the brother of respondent/defendant no. 2

Bibhas Ghosh and Balaram Jana . He specifically deposed that the

respondent/defendant no. 4 Rabindranth Pan told his eldest son Suvendu

Bera that Mahadeb Pan and Biamn Ghosh are intended to transfer the su it

property by way of sale. On being asked by his son he went to the house of

respondent/defendant no. 1 on 2

nd

Kartick 1409 B.S. and Biman Ghosh told

him that they intended to sale the suit property and on that day he came to

the house in the afternoon with his two sons and two other persons. On the

same day in the afternoon the father of defendant no. 1 and 3 and 4 shown

them the deed related to the suit property and also the Dakhilas which were

gone through by the said witness along with his sons and S.Lal and came to

conclusion that suit property of Madhab Pan has his five decimal while Biman

Ghosh has only one decimal. It was agreed that defendant no. 3 and 4 will

receive the advance money on behalf of plaintiff no. 1 and 2 through him and

they will issue the receipt of the effect.

27. It appears from the evidence that the amount of Rs. 7, 41,000/- was paid in

cash and excepting the receipt shown no other document was filed to establish

Page 18 of 22

that such hefty amount was paid by the father. So far the jewelleries are

concerned in the receipts are bereft of any description of the jewelleries

received and or how the valuation of such jewelleries were calculated. It is

admitted both Madhab Pan as well as the defendants have goldsmith business.

Sibram Lal is a deed writer by profession and he accompanied the father of the

appellant to the house of madhab Pan on 2

nd

Kartik 1409 and he found

Suvendu Bera , Dibendu Bera, Madhab Bera,Mrigen Karok and Narottamm

Mal,Mahadebn Pan, Biman Ghosh, Sukdeb Pan , Biman Ghosh, Jaswant Pan

and some other persons when that sale of plot was discussed. The evidence

manifest that Madhab Pan showed them six deeds and two Khajna Dakhila

which were read over and he purchase d the stamp through treasury for

preparation of the deeds which also drafted and handed over to him and the

appellants herein which also was typed by him through competitor. He

produced two computerised unregistered sale deed in the name of Dibendu

Bera and Suvendu Bera with the signature of one Swapan Mondal, from whose

laser printer the deeds were printed. None of their evidence disclosed the

denomination of such huge amount of money of Rs. 1 Lakh 50 thousand or Rs.

2 Lakhs or Rs. 1 Lakh 91 thousand which were alleged to have been paid

neither it appears in the receipts issued in favour of them.

28. Swapan Mondal was not examined though he was alive. No challan produced

to show the stamp paper was purchased . This witness further deposed that

the value of property was settled by calculation but no paper or deeds were

consulted at the time of determination of the value of the property. No

measurement was taken regarding the suit property before fixing its value.

Page 19 of 22

Besides settlement of valuation there were talks about registration of the deeds

but no date was fixed when the money is to be paid in advance though what

amount would be paid was decided and accordingly Rs. 7, 41,000 was paid as

advance. He admitted that there is no mention of the advance money in the

printed deeds though he admitted that actual consideration money and the

property which is the subject matter of transfer to be mentioned in the deed.

P.W. 3 Mrigendra Nath Karok stated that he was present when the agreement

took place in between the parties regarding the sale of the property but in his

cross-examination he stated that on the date of agreement that is on 2

nd

day

Kartick, 1409 B.S. no talk took place regarding execution of the deed and on

that day no money was transacted. This witness found to a tenant of shop

room under Madhab Bera.

29. The Learned Trial Court meticulously discussed the evidence and arrived at a

finding that an oral agreement took place between the parties. Such

observation has not been challenged by the present respondent and no cross

appeal has been filed against the same. Therefore the point raised questioning

about the oral agreement at this stage is not permissible in the eye of law.The

Learned Court further observed that the plaintiffs failed to established that

such oral agreement was for the sale of the suit property and also that in order

to defraud the Income tax authorities such agreement was entered into to

prepare two different deeds showing less valuation of the property. In the

alleged Deed dated 12.12.2002 which was said to be prepared and marked

with exhibit 6 primarily disclose the name of purchaser as Dibyendu Bera and

vendors are Mahadev Pan and Biman Ghosh .No name of witnesses are

Page 20 of 22

mentioned , no consideration Memo is found showing that out of total

consideration any amount has been paid. In schedule ka and kha two

schedule described but no recital part to show who is the owner of which part.

Ka schedule is bereft of any detail of its surroundings. Definitely the deed is

prepared in a cryptic manner without complying with the formalities as

required in accordance with law.

30. In (Ranchhoddas Chhaganlal vs Devaji Sudpu Dorik and Ors (supra)

since the oral agreement was between the owner and the purchaser 30 and on

failure of paying the remaining amount the suit was filed when in this case

admittedly the fathers of the property being the appellants and the father of

the respondents entered into such alleged agreement were not owners. More so

the receipts failed to prove that the amount was received as an advance for

sale of suit property. The judgment relied upon by the appellant in V.R

Sudhakara Rao and Ors vs T.V Kameswari (S upra) is distinguishable in

the present case as the oral agreement in that case at the time of receiving the

amount the name of the vendee’s agent and son-in-law and further mentioned

the sale consideration along with its rate and despite that the High Court

decided that there is no clear proof relating to the other terms and condition

and the said observation was upheld by the Hon’ble Supreme Court.

31. The remedy for specific performance is an equitable remedy and the Court

while granting relief for specific performance exercises discretionary but such

discretion must be exercised in accordance with the sound and reasonable

judicial pronouncement. It is no longer in dispute that the suit for specific

performance of contract of sale of immovable property is maintainable even on

Page 21 of 22

the basis of oral agreement but the burden of prove the same lies upon the

plaintiff and it is the plaintiff to ascertain that no uncertainty arises in the

mind of the court. Therefore even if the finding of the Learned Court is

accepted that there was an oral agreement ,the plaintiff failed to proof that the

subsequent payment was made towards consideration or at all any amount

was paid by the plaintiff in absence of the person who received the amount on

behalf of the appellant ,Any deeds were executed as alleged when no

signature of the parties or the witness are there in the deed as

exhibited.Merely because the Deed were prepared do not fulfil the required

level of evidence to establish that des pite receiving the amount ,the

respondents no 1 & 2 did not went for registration. Therefore even though the

observation made by the Learned trial court that the decree cannot be passed

since in order to defraud the Income Tax authority two agreements were

executed with much less price than agreed is not accepted by this Court, no

merit can be found in the appeal in view of the above discussion and hence the

appeal is liable to be dismissed.

Conclusion

32. Accordingly this F.A 87 of 2011 stands dismissed .The judgement and decree

passed by the Learned Trial Court is hereby affirmed.

33. No order as to the costs.

34. Decree be drawn up in accordance with law.

35. The T.C.R be sent down to the concerned court forthwith.

Page 22 of 22

36. Urgent certified copy if applied by any of the parties to be supplied subject to

observance of all formalities.

I agree

[RAVI KRISHAN KAPUR,J.] [CHAITALI CHATTERJEE DAS.J.]