RSA 123/1999 BEFORE THE HON’BLE MR JUSTICE HN SARMA JUDGMENT AND ORDER (ORAL) This second appeal is directed against the judgment and decree passed in Title Appeal No. 17/98 by the learned Civil Judge, Sr. Division, Cachar at Silc har thereby allowing the appeal against the judgment and decree passed in Title Suit No. 70/95 by the learned Civil Judge, Jr. Division, Cachar, Silchar decreei ng the suit in favour of the plaintiff. 2. I have heard Mr. HRA Choudhury, learned Sr. Counsel assisted by Mr. FU B orbhuiyan, learned counsel appearing for the appellant. None appears for the def endants/respondents when the matter was called upon for hearing. 3. The plaintiff/resondent instituted the Title Suit No. 70/95 in the cou rt of the then Sadar Munsiff No.1, Silchar, Cachar impleading the present respon dent as the sole defendant. The pleaded case of the plaintiff/respondent is that on 15.5.75 the plaintiff No.1 and his brother late Jamiruddin Laskar transferr ed the suit land in favour of the defendant for valuable consideration of Rs. 5, 000/- by executing a registered sale deed. On the same day just after execution of the sale deed, the defendant also executed an agreement promising to reconve y the suit land in favour of the plaintiff if the plaintiffs pay back the consid eration money of Rs. 5,000/- within the stipulated period mentioned in the agree ment. Although the plaintiff offered the said consideration money of Rs. 5,000/- to the defendant, the defendant did not accept the same nor executed any deed of reconveyance in terms of the agreement. Finding no alternative, the plaintiff filed the suit praying for decree directing the defendant to accept a sum of Rs . 5,000/- from the plaintiff and reconvey the suit land by executing a register ed deed of reconveyance and deliver the possession to which the plaintiff is ent itled as per the agreement. 4. The suit was resisted by the defendant by filing written statement. Apar t from the usual plea of want of cause of action including the bar of limitatio n, the defendant also raised the plea that right of the plaintiff has been extin guished long before filing of the suit. The defendant also did not also admit th e allegation of promise made by him to reconvey the suit land. Further plea of t he defendant in the written statement is that on 2.3.79 the plaintiff executed a written document by which his right to get the suit land back on repayment of t he consideration money has been relinquished and accordingly it is claimed tha t the plaintiff is not entitled to get decree as prayed for and the suit is lia ble to be dismissed. It is the specific case of the defendant that the suit not having been filed within 15 years from the date of execution of the agreement, the same is barred by limitation in terms of the condition laid down in the agre ement itself. On the basis of the pleadings, the learned trial court framed the following issues : 1. Whether there is any cause of action for the suit ? 2. Whether the suit is barred by the law of limitation ? 3. Whether the suit of the plaintiff is barred by the principle s of estoppel, waiver and acquiescence ? 4. Whether the suit is bad for non joinder of necessary parties? 5. Whether the plaintiffs had perform their part of contract for tendering consideration money in terms of ekrarnama dated 15.5.75 to execute reconveyance ? 6. Whether the plaintiffs are entitled to a decree as claimed? 7. To what other relief/reliefs the parties are entitled ? 5. During the course of trial the plaintiff examined as many as two witness es and the defendant examined three witnesses. Both the parties exhibited certai n documents in support of their respective case including the agreement dated 15 .5.75 vide Exbt.1, the registered sale deed No.5589 as Exbt. ’A’, and the ag reement dated 2.3.79 as Exbt. ’B’ . At the conclusion of the trial the learned t rial court decreed the suit in favour of the plaintiff vide judgment and order dated 22.4.98 which was carried into a Title Appeal No. 17/98 before the learned Civil Judge, Sr. Division, Cachar at Silchar. The learned appellate court upon hearing the parties and considering the materials on record reversed the judgme nt and decree passed by the learned Sadar Munisff and dismissed the suit. Hence this appeal. 6. The appeal was admitted to be heard on the following substantial questio n of law : i. Whether the learned lower appellate court is right and correct in holdin g that the suit is barred by limitation ? ii. Whether the learned Lower appellate court was right and corre ct in holding that the Ext.B, an unregistered deed relating to immovable pr operty of more than Rs. 100/- confers right and title over the land in quest ion ? 7. In respect of the 1st substantial question of law so framed in the appea l, Mr. Choudhury, referring to the impugned judgment rendered by the first appe llate court submits that bare perusal of the Exbt. 1 would disclose that the de fendant was entitled to enjoy the suit property for a period of 5(five) years a nd thereafter within 15 years in the event the plaintiff returns the considerat ion money of Rs. 5,000/- the defendants would be required to re-transfer the sui t land in favour of the plaintiff by executing a reconveyance deed and to that e ffect the learned trial court has arrived at a correct finding. It is contended by Mr. Choudhury that the learned 1st appellate court committed grave illegalit y in reversing the finding of the learned trial court in this regard holding tha t as per Exbt.1, the plaintiff appellant was required to return the suit land wi thin a period of 15 years from the date of agreement. 9. Submission of the learned counsel led may to go through the relevant por tion of the Exbt.1. In the Exbt.1 it is specifically provided that after enjoyme nt of the suit property for five years from the date of execution of the agreeme nt, and within a period of 15 years in the event the plaintiffs refusal the con sideration money of Rs. 5,000/- to the defendant/purchaser, the suit land would be returned to the plaintiff by executing a deed. In the aforesaid agreement th e outer limit provided is 15 years within which the plaintiff would return the c onsideration money to the defendant and the inner limit is 5 years for which th e defendant would be entitled to enjoy the suit property. Thus, the intention of the parties as appears from Exbt. 1 is clear and specific to the effect that t he plaintiff would be entitled to get the suit land reconveyed on refund of th e consideration money within 15 years from the date of agreement, whereas the s uit in question has been filed on 8.5.75 and is much beyond the prescribed perio d of 15 years. Consequently, the learned 1st appellate court has rightly reverse d the finding on Issue No. 3 arrived at by the learned trial court holding that the suit was barred by the period fixed as per agreement vide Exbt.1. Accordingl y, the 1st substantial question of law so framed in the suit is answered in affi rmative and against the appellant. 8. The basic claim of the plaintiff in the suit rests on the agreement, Exb t.1. Exbt. 1 was executed on the same day i.e., 15.5.75 on which date the plain tiff sold the suit land to the defendant by executing a registered sale deed for valuable consideration of Rs. 5,000/-. In the recital of the sale deed, Exbt.’A ’ nothing has been mentioned about the reconveyance or retransfer of the proper ty in the event of refund of the consideration money of Rs. 5,000/- within the s tipulated period of 15 years by the vendors. Such right was reserved by executin g a separate agreement as Exbt.1. Perusal of the recitals in the Exbt. 1 disclos e that it has got the definite reference to the sale deed and it pertains to th e property which was conveyed by the sale deed, Ext. ’A’. The transaction that w as completed by the Exbt. ’A’ is out and out a sale transaction within the mean ing of Section 54 of the transfer of property Act. No condition was incorporated in the sale deed relating to the transfer of the suit property and the transfe r was not a conditional one nor it is a case of mortgage by way of conditional sale as defined under Section 58(c ) of he Transfer of Property Act. The claim for re-transfer of the transferred property by the transferee in the event of pa yment of the consideration money is not permissible in case when sale transacti on is absolute as in the present cases. Sale is a transfer of ownership in e xchange for a price in terms of Section 54 of the Transfer of Property Act. T he agreement made vide Exbt. 1 itself appears to be repugnant to the interest c reated by the sale of the suit land made in favour of the defendant. That being the position, the plaintiff is not entitled to raise its claim on the basis of the condition mentioned in the agreement Vide Exbt.1 and the same being repugnan t to the principle contained in Section 11 of the Transfer of Property Act. 9. It is submitted by Mr. Choudhury that the aforesaid plea has not been ra ised in the written statement nor any issue has been raised to that effect. In order to claim the suit property back, the plaintiff must show and establish tha t he has the valid and legally sustainable right before taking such a plea and t he agreement is in consonance with law, which is not found in the instant case . On the basis of the Exbt.1, the plaintiff is not entitled to claim or reconv eyance the suit property upon refund of the consideration money to the defendan t/vendor which was sold in absolute terms to the defendant. Nor it is the case o f the plaintiff that the Exbt. ’A’ is not a sale deed of the type of conditiona l sale as defined under Section 58 ( c) of the Transfer of Property Act. 10. In view of the above discussion, the second substantial question of law is not required to be dealt with. 11. In view of the above discussion, I do not find any merit in this second appeal and the same stands dismissed. Transmit the LCR forthwith.