RFA 130/2003 BEFORE THE HON’BLE MR. JUSTICE AFTAB H.SAIKIA THE HON’BLE JUSTICE SMTI ANIMA HAZARIKA JUDGEMENT & ORDER (ORAL) SAIKIA,J/ Heard Mr. M K Choudhury, the learned Sr.counsel assisted by Mr.J.I.Barb huiya, learned counsel appearing for the appellant as well as Mr. Mr.A.C.Borbora , learned Sr. counsel assisted by Mr. M.G.Singh, learned counsel representing the respondents. 2. This First Appeal has been directed against the judgment and decree date d 26.09.2008 passed by the Additional District Judge (Fast Track Court), Manipur East, Imphal in Original Suit No.45/2000/3/2003 whereby the suit for specific p erformance of contract for sale of suit land instituted by the appellant as pl aintiff (hereinafter called as ’the appellant’) against the respondents arraying them as the defendants (hereinafter referred to as, ’the respondents.’) was dis missed by the trial Court. 3. It was pleaded in the plaint by the appellant that the suit land describ ed fully in the Schedule to the plaint originally belonged to and owned by one late Kshetrimayum Tomba Singh, father of the respondent No.1, Kshetrimayum Iboha l Singh. During the life time, Tomba Singh who died in 1987 constructed one sem i pucca building inside the suit plot and let the same to Dwarika Prasad father of the appellant. On his death, the respondent No.1 inherited the suit plot and the building therein and became the absolute owner thereof. From 1988 to 1990 th e respondent No.1 completed the construction of a three storied pucca building i nside the suit plot, but the appellant’s father Dwarika Prasad as before contin ued to occupy the pucca building as tenant of the respondent No.1 till he died i n 1995. After the death of his father, the appellant became a tenant of the res pondent No.1 in respect of two shop rooms, two godown rooms on the ground floor of the pucca building and a residential flat consisting of four living rooms et c. for using the same for his residential purpose and business under the style a nd name of Capital Watch Company Paona Bazar, Imphal under a registered agreem ent dated 1.3.2000 on monthly rent of Rs.2000/- . At the same time, the responde nt No.1 used to borrow money from time to time from the appellant in order to meet his financial needs and in the process the respondent No.1 already took an d received Rs.12,50,000/- till the month of June,2000. But in the Ist week of Ju ne,2000 the appellant demanded from the respondent No.1 repayment of the said su m to him. Being unable to repay, the respondent No.1 agreed to sell the suit plo t and the three storied pucca building therein to the appellant at Rs.20,00,000 /- (Rupees twenty lakhs) only under an agreement of sale dated 12.6.2000 with th e undertaking that the respondent No.1 would execute a pucca registered deed of sale on payment of Rs.7,50,000/- to him by the appellant and the sum of Rs.12,5 0,000/- already received by the respondent No.1 on his borrowing from the appel lant being treated and adjusted as part of the total consideration of Rs.20,00 ,000/- . But as the respondent No.1 failed to complete the sale transaction and to execute the said registered deed as agreed on 30.11.2000, though the appella nt was ready to do the needful on his part. At the same time the respondent No. 1 got mutated the suit plot in the name of the respondents No.2 and 3, vide Muta tion Case No.270/A.S & S.O.(H.Q) on 7.8.2000, as per a registered gift deed exec uted by the respondent No.1 in favour of the respondents on 20.7.2000. Hence, th e appellant filed this present suit. 4. The respondents contested the suit by filing their joint written state ment dated 22.9.2001 wherein the respondents denied the allegations made by th e appellant in his plaint excepting that appellant and his father were the ten ants of the respondent No.1 and his father. It was submitted by the respondents that the suit plot was gifted by Tomba Singh in favour of the respondent Nos 1 and 2 on 2.6.1972 and mutation was accordingly made by the S.D.C., Imphal West Central on 5.6.1981 in his Mutation Case No.505 of 1981 and since then both of them were owners of the same. It was submitted that the respondent No.1 alone c ould not do the transactions in favour of the appellant as alleged by him in h is plaint. Hence, the respondents prayed that the appellant’s suit be dismisse d with costs. 5. The trial Court after going through the pleadings of the parties and up on hearing the learned counsel representing the parties, framed as many as five issues which are as follows: 1) Is there cause of action ? 2) Is the suit properly valued and court-feed ? 3) Is plaintiff tenant of defendants in respect of the suit structure ? 4) Is the agreement of sale of the suit plot and suit-structure dated 12.6. 2000 alleged to have been executed by the respondentNo.1 in favour of plaintiff valid in law? If so, is it enforceable against defendants ? 5) Is plaintiff entitled to the reliefs claimed ? 6. In deciding the issue Nos. 1 to 3 the trial Court, having carefully appr eciated the materials evidence on record as well as on perusal of the relevant d ocuments so produced and exhibited, arrived at the findings in favour of the a ppellant holding that there was cause of action for filing the instant suit, t hat the suit was properly valued and that the appellant was a tenant in respect of the western portion of the suit land including the ground floor and 2nd floo r of the building thereon. 7. However, in deciding the issue No.4, being the cardinal issue, in the p resent suit the trial Court held that Ext.A/4, the alleged promissory note by wh ich the respondent No.1 was alleged to have borrowed an amount of Rs.3 lakhs on four different dates i.e. (i) on 6.2.94- Rs.40,000/-; (ii) 8.2.87-Rs.10,000/-; ( iii) 19.12.97 a sum of Rs.1,50,000/- and (iv) on 2.4.99 -Rs.1,00,000/-; could not be recorded as promissory note. And Ext.A/7 the agreement of sale dated 12.6 .2000 was also not accepted by the learned trial Judge as the trial Court foun d that there were no reliable and acceptable evidence as to when the appellant d elivered possession of the suitland and suit structure in part performance of th e contract under Ext.A/7. Accordingly Ext.A/7 was not valid and enforceable und er the law. 8. Assailing the impugned judgement, Mr. Choudhury, learned Sr. counsel has forcefully contended that although the appellant categorically proved the payme nt of Rs.12.50,000/- earlier citing that Ext.A/3, stood as the money receipt by which the respondents No.1 was alleged to have received a sum of Rs.1,50,000/- and Ext.A/4, the promissory note given by the respondent No.1 exhibiting clear ly borrowing of a sum of Rs.3,00,000/- from the appellant. The learned Sr. Co unsel’s case is that the learned Judge below failed to appreciate the same and i n the process committed grave error in facts and on law in holding Ext A/7 dated 12.6.2000, the agreement to sale, as not valid and enforceable under the law on the ground that there was no reliable evidence to show that the respondent No.1 fully received a sum of Rs.12,50,000/-. According to him, Ext.A/4, although mon ey receipts the trial Court acted illegally in brushing aside the same as not be ing promissory note. Learned counsel has further submitted that even assuming th at by virtue of Ext.B/1, the registered gift dated 2.6.1972, the original owner the father of respondent No.1 Tomba Singh gifted the property to Respondent No.1 and Respondent No.2, yet Ext.A/7, being the agreement to sale dated 12.6.2000 , cannot be said to be invalid inasmuch as the same could be made legally enfo rceable against the respondent No.1 to the extent of his share on the suit lan d and in view of the same, the learned trial Judge was wholly incorrect and not justified in dismissing the entire suit. The findings so recorded by the trial Court as regards no evidence as to when the plaintiff took possession of the sui t property in pursuance of Ext.A/7, according to the learned Sr. counsel, was ab solutely perverse and not based on record. It is further urged that Ext.A/7, b eing an agreement for sale is not chargeable with duty under Section 35 of the Indian Stamp Act and also the same is not required to be compulsory registered and under such circumstances the finding of the learned trial Judge that the ag reement to sale was being instrument chargeable with duty under Section 35 of th e Indian Stamp Act is not legally tenable. It is finally argued by the learned S r. counsel that while admitting the Ext.B/1, being the gift deed by which the f ather of the respondent No.1 gifted the suit property to the respondents No.1 a nd 2, the learned trial Jude ought to have allowed the suit that specific perfo rmance restricting the claim of the appellant to the extent or portion of the l and that falls in the share of the respondent No.1 who can specifically perform to the extent of his share and an issue ought to have been framed in this reg ard by the trial Court. Accordingly a request has been made to remit the matter to the trial Court for framing a new issue on this point to the extent of enfor ceability of Respondent No 1’s share which can be specifically performed by the respondent No.1. 9. In support of the impugned judgment and decree, Mr. Borbora learned Sr. Counsel refuting all the contentions, averments and submissions made on behalf o f the appellant, has submitted that both Ext.A/3 and Ext.A/4, being the money receipt and promissory note respectively, cannot be accepted as valid documents for the purpose of decreeing the suit as the Ext.A/3 being a letter head in th e name of respondent No.1 did not indicate the amount of Rs.1,50,000/- was recei ved from the appellant. In the same time, Ext.A/4 the promissory note, would go to show that an amount of Rs.3 lakhs only was taken by the respondent No.1 on different dates from the appellant as already mentioned. Save and except tho se two documents, there was no such document whatsoever placed on record to prov e that respondent No.1 had taken Rs.12,50,000/- as a whole as earnest money as recorded in Ext.A/7. It is also submitted that respondent No.1 had no authority to execute the agreement of sale, Ext.A/7 alone in his name as the entire prope rty was gifted by the father of the respondent No.1 to him and respondent No.2 w ho was the son of respondent No.1. Having considered the entire facts and circum stances of the case on the basis of the appreciation of the evidence on record including those documents submitted as exhibits, it is contended, the learned District Judge was wholly justified and absolutely correct in dismissing the su it without granting any relief as sought by the appellant. 10. We have given our minute consideration to the extensive and full length argument so advanced on behalf of the parties. Also carefully examined the mate rial evidence on record including Ext.A/3, A/4, A/7 and Ext.B/1. It is seen that those documents abovenoted so placed on record as Exhibits do not persuade to convince us to approve Ext.A/7, the alleged agreement of sale, as a legally enforceable document. The same is designed on a letter head of ’Single Group (Ho use)’ with contention that Rs.12,50,000/- was already taken by the respondent No .1 as ’earnest money’. In the evidence adduced by the respondent No.1 as D.W.1, it was deposed that all those documents namely A/2, A/3, A/4 and A/7 were his blank letter heads but his signatures were taken by the appellant for using them to his income tax purpose. According to D.W.1, Exts A/4, A/5 and A/7 had t ype written contents and those were manufactured and fabricated by the appellant . Even the agreement for sale was not executed in a non-judicial stamp paper . 11. Mr. Choudhury the learned Sr.counsel, objecting to such allegations made in the deposition of respondent No.1 before the Court of law, has emphatically stated that such deposition is not admissible in law because those are made beyo nd the pleadings. His basic contention is that written statement filed by the respondents did not contain such contentions as regards manipulation and manufac ture of Ext.A/4,Ext.A/5 and Ext.A/7 including non execution of the agreement for sale i.e Ext A/7 in a non-judicial stamp paper. 12. In support of his submissions Mr. Choudhury, learned Sr. counsel has re lied upon a decision of the Supreme Court in a case of Kalyanpur Lime Works Ltd- Vs- State of Bihar and another reported in AIR 1954 SC 165 wherein paragraph-18 and 19 the Apex Court held that the provisions contained in Order 6 Rule 8 and Order 8 Rule 2 C.P.C. left no doubt that the party denying merely the factum of the contract and not alleging its unenforceability in law must be held bound by the pleadings and be precluded from raising the legality or validity of the con tract. Thus where the question whether a lease granted by the Government conform ed to the provisions of Section 30 of the Government of India Act, 1915 was not raised in the pleadings nor in the memorandum of appeal to the High Court but wa s mentioned for the first time in course of arguments in that Court, such questi on could not be allowed to be raised at the time of argument when the plaintiff /lessee had no opportunity to adduce evidence upon question of fact whether the lease was signed on behalf of the Government. 13. The learned Sr. counsel, relying on the provisions of Order 6 Rule 8 CPC which provides that when a contract is alleged in any pleadings, a bare perusal of the same by the opposite party shall be construed only as a denial in fact o f the express contract alleged or of the matters of fact from which the same m ay be implied and not as a denial of the legality or sufficiency in law of such contract and Order 8 Rule 2 CPC which stipulates that the defendant must raise by his pleadings all matters which show the suit not to be maintainable, or that the transaction is either void or voidable in point of law, and all such ground s of defence as, if not raised, would be likely to take the opposite party by su rprise, or would raise issues of fact not arising out of plaint, as, for instanc e, fraud, limitation, release, payment, performance or facts showing illegality , has forcefully submitted, that in the instant case, the plea as regards fraud, manufacture and fabrication of the Ext.A/4,Ext.A/5,Ext.A/7, not being duly rais ed in the written statement itself cannot be permitted to be adduced in any evid ence. 14. At this stage, refuting such contention, Mr. Barbora the learned Sr.cou nsel has submitted that an application under Order 6 Rule 17 CPC in this regard seeking for amendment of paragraph 18 of the written statement was also submitt ed before the trial Court and vide order dated 19.5.2003, the Court considered such prayer and directed for framing of issue whether agreement for sale alleg ed to have been executed in non-judicial stamp paper is false and fabricated. ? In such premises the evidence adduced by the respondent No.2 was within the co ntents of the pleadings. 15. We have also closely perused the order dated 19.5.2003 passed by the tri al Court in the application being Misc.Case No. 192 of 2001/25/2000/3/2003 permi tting such prayer of proposed amendment. Having considered the same, we have no hesitation to accept the submissions made on behalf of the respondents. 16. The prime issue involved in this lis is basically governed by doctrine of part performance contained in Section 53 A of Transfer of Property Act, 188 2 (hereinafter referred to as ’the Act’). Section 53 A provides as under: 53A. Part performance.- Where any person contracts to transfer for consideratio n any immoveable property by writing signed by him or on his behalf from which t he terms necessary to constitute the transfer can be ascertained with reasonable certainty, and the transferee has, in part performance of the contract, taken possession of the property or any part thereof, or the transferee, being already in possessio n ,continues in possession in part performance of the contract and has done some act in furtherance of the contract, and the transferee has performed or is willing to perform his part of the contra ct, then, notwithstanding that where there is an instrument of transfer, that the tr ansfer has not been completed in the manner prescribed therefore by the law for the time being in force, the transferor of any person claiming under him shall b e debarred from enforcing against the transferee and persons claiming under him any right in respect of the property of which the transferee has taken or contin ued in possession, other than a right expressly provided by the terms of the con tract : Provided that nothing in this section shall affect the rights of a transferee fo r consideration who has no notice of the contract or of the part performance the reof, 17. There are fundamentally six necessary conditions, which are required to be fulfilled under Section 53 A of the Act. Those are as follows: (1) there must be a contract to transfer for consideration of any immovable pro perty ; (2) the contract must by writing , signed by the transferor, or by some one on his behalf.(3) the writing must be in such words from which the terms ne cessary to construe the transfer can be ascertained;(4)the transferee must in p art-performance of the contract take possession of the property or in part there of ;(5)the transferee must have done some act in furtherance of the contract and (6) the transferee must performed or be willing to perform his part of contrac t. 18. In the instant case, on perusal of the agreement to the contract we ful ly agree to hold that the agreement for sale, Ext.A/7 was not genuine and having gone through the contents of the same it can be said that such agreement is not enforceable in law. We do also not find anything in the records to get the info rmation that an amount of Rs.12,50,000.00 was already paid by the appellant to t he respondent No.1 save and except the alleged money receipt and the alleged pro missory note i.e. Ext.A/3 and Ext. A/4 respectively. We also find no faintest indication from the materials available on record that apart from possession of the land by the appellant by virtue of his tenancy under Respondent No.1, being the landlord, the appellant in part-performance of the contract took possession of the property or in part thereof. Even there is nothing on records by which C ourt can accept something independent of mere retention of possession to evidenc e of part performance and some act done in furtherance of the contract. 19. Having scrupulously scrutinized and surveyed the exhibits above mentio ned and also taking into account the evidence adduced by the respondents, we are of the view that the appellant failed to make out a case for specific performan ce of the Ext.A/7, the agreement of sale dated 12.6.2000, and consequently we are in full agreement with the view expressed and findings recorded by the tria l Court in dismissing the suit of the appellant.The impugned judgment and decree in our opinion, deserves not interference by this Court. 19. In the result, the appeal stands dismissed. However there shall be no or der as to costs.