FIn the High Court at Calcutta Civil Appellate Jurisdiction Appellate Side The Hon’ble Mr. Justice Sabyasachi Bhattacharyya And The Hon’ble Mr. Justice Supratim Bhattacharya F.A. No. 42 of 2024 With FAT 310 of 2023 Saikat Sarkhel -Versus- Kanchan Dey For the appellant : Mr. Vivekananda Bose, Mr. Abhishek Baran Das, Mr. Ratikanta Pal, Mr. Shubho Mukherjee, ...Advs. For the respondent : Mr. Sovan Bera, Ms. Puja Beriwal, ...Advs. Heard on : 02.07.2026, 09.07.2026 & 15.07.2026 Reserved on : 15.07.2026 Judgment on : 21.07.2026 Sabyasachi Bhattacharyya, J.:- 1. Both the present appeals arise at the behest of the defendant in a money suit, respectively challenging the money decree passed in the suit and the dismissal of the defendant/appellant’s counter claim, also for money. 2. The plaintiff/respondent alleges that an agreement for sale of a plot of land comprised in RS Dag no. 793 (LR Dag no. 1734) under RS Khatian no. 1015 2 (LR Khatian no. 4492), JL No. 7 of Mouza – Baxarah, PS – Jagacha, District – Howrah was entered into between the parties on September 2, 2012, whereby the defendant/appellant agreed to sell the subject property to the plaintiff/respondent. 3. In terms of the agreement, a total amount of Rs, 5,46,000/- (out of the total consideration of Rs. 19 lakh) was paid by the plaintiff in advance to the defendant in different tranches. However, the defendant/appellant dilly- dallied, prompting the plaintiff/respondent to right a letter through his learned advocate on March 18, 2013, requesting the defendant/appellant to receive the balance consideration and to execute and register the proposed sale deed, alternatively to return the amount of Rs. 5,46,000/-paid by the plaintiff as earnest/advance money. 4. According to the plaint case, the defendant/appellant sold another plot under LR Khatian nos. 4488 and 4489 (Dag no. 1734) to the plaintiff/respondent for a total consideration of Rs. 14 lakh. 5. However, since the appellant, despite several correspondences, refused to execute the sale deed in compliance of the agreement dated September 2, 2019, the present suit was filed for recovery of the earnest money of Rs. 5,46,000/- allegedly paid by the respondent to the appellant, with interest. 6. The defendant/appellant, in his written statement, admitted the execution of the agreement dated September 2, 2019, but took the stand that, pursuant thereto, on September 24, 2012, the appellant was taken by the respondent to the chamber of one Mr. Ashis Patra and on reaching there, the said Ashis Patra and others coerced the defendant/appellant to put his signature in a deed of sale of the said property, for a consideration of Rs. 14 3 lakh instead of the agreed amount of Rs. 19 lakh. Out of fear, the defendant executed such deed, which was registered as Deed no. 08196 for the year 2012. Subsequently, according to the defence case, the original agreement for sale dated September 2, 2012 was snatched away from the defendant but he was able to keep a photocopy of the same. Thus, a deed was actually executed by the appellant in terms of the agreement, although the entire consideration agreed upon was not paid by the respondent. 7. Along with the written statement, a counter claim was filed by the defendant/appellant for recovery of the balance consideration amount of Rs. 1,54.000/- out of the total agreed consideration of Rs. 19 lakh, after deduction of Rs. 17,46,000/- which was allegedly paid by the plaintiff/respondent to the defendant/appellant. 8. By the impugned judgment, the learned Trial Judge came to the finding that the description in the LR Records of Rights shows that the piece of land agreed to be sold by the defendant had not been sold to the plaintiff/respondent and that the sale deed dated September 24, 2012 has no reference to the agreement in question. It was further held that the Khatian no. in the agreement was 4492, which was changed in the deed to Khatian nos. 4488 and 4489, and that the consideration amount was also changed from Rs. 19 lakh, as mentioned in the agreement, to Rs. 14 lakh. 9. Thus, the plaint case was substantially accepted by the learned Trial Judge. However, the learned Trial Judge found from the evidence that payment of only Rs. 4,46,000/- (as opposed to the plaint case of Rs. 5,46,000/-) by the plaintiff to the defendant was established and passed a decree for the said amount, along with interest at the rate of 10% per annum till recovery. 4 10. Simultaneously, it was observed that the counter claim was not maintainable as it could not be proved. However, in the ordering portion, no separate decree dismissing the counter claim was passed. 11. Learned counsel appearing for the appellant argues that the sale deed dated September 24, 2012 itself indicates that the defendant/appellant purchased plots from Khatian nos. 4488 and 4489 from his vendors, namely Chinmoy and Dipali Sarkar. However, at the time of mutation of his name, the appellant was informed by the authorities that the said Khatian nos. did not exist and the actual Khatian no. was 4492. Accordingly, the defendant’s name was mutated in respect of Khatian no. 4492 and was duly recorded in the LR Records of Rights. 12. It is submitted that the description of the subject-property in the sale deed dated September 24, 2012 and the map annexed thereto clearly indicate that the transfer was effected in respect of Khatian no. 4492 itself, in terms of the agreement between the parties. Hence, the learned Trial Judge overlooked such vital evidence to come to the perverse conclusion that no sale deed was executed in terms of the agreement. 13. It is contended by the appellant that out of the total agreed consideration of Rs. 19 lakh, only Rs. 17,46,000/- was paid by the respondent to the appellant. Thus, the appellant is entitled to Rs. 1,54,000/- more and, accordingly, the learned Trial Judge erred in law and in fact in dismissing the counter claim for all practical purposes. 14. Learned counsel appearing for the plaintiff/respondent opposes the contentions of the appellant and argues that the appellant had falsely alleged in his written statement that he had lodged a complaint with the 5 Santragachi Police Station in the month of September, 2012 regarding the appellant being forced to sign the sale deed in question. However, in its FRT, submitted upon investigation, the police disclosed that the Santragachi Police Station was itself constituted much later, on March 18, 2013, and, as such, the allegation against the respondent was false and accordingly dropped. 15. Learned counsel for the respondent submits that the copy of Exhibit 1, which is an extract of the LR Records of Rights, incorporated in the paper book by the appellant, is incorrect. From the trial court records, it is pointed out that the name of the respondent was recorded in respect of a different plot. Thus, it is contended that the defendant misled the plaintiff/respondent as regards the ownership of Khatian no. 4492 and instead of the same, sold plots in LR Khatian nos. 4488 and 4489 by the sale deed dated September 24, 2012, which was independent of, and not in consonance with, the agreement between the parties. 16. Thus, the learned Trial Judge rightly held that the plaintiff/respondent is entitled to refund of the earnest money paid by the plaintiff to the defendant/appellant. 17. Upon a perusal of the impugned judgment, we find that the learned Trial Judge proceeded to disbelieve the defence case that the sale deed dated September 24, 2012 was executed in pursuance of the agreement between the parties dated September 2, 2012. While holding so, the learned Trial Judge observed that from the LR records, it was found that the piece of land agreed to be sold by the defendants had not been sold to the plaintiff. The learned Trial Judge further observed that the sale deed dated September 24, 6 2012 has no reference to the agreement between the parties, that the Khatian no. in the agreement was 4492 and was changed in the deed to 4488 and 4489 and also that the consideration was changed from Rs. 19 lakh in the agreement to Rs. 14 lakh in the deed. 18. In order to adjudicate the appeal, the contents of the deed dated September 24, 2012, marked as Exhibit 2 in the suit by the plaintiff/respondent, are required to be looked into, since the same holds the key to the dispute. 19. In the body of the deed, it is categorically mentioned that the vendors of the appellant, namely, Chinmoy and Dipali Sarkar, had respectively mutated the subject-property in their name against Khatian nos. 4488 and 4489 respectively. 20. It is further stated in the deed that upon purchase of the property, the appellant mutated the property from the office of the BL & LRO, pursuant to which the name of the appellant was recorded in the LR records of Rights against Khatian no. 4492. In the schedule of the deed, the property is described to be situated in Khatian nos. 4488 and 4489, “at present recorded in the name of the vendor (appellant) under Khatian no. 4492.” Again, in the deed plan, which is a part of the deed and exhibited by the plaintiff/respondent himself, the LR Khatian no. is mentioned as 4492. By an interpolation by hand, the following was inserted immediately before the No. 4492. “4488 and 4489 now at present .......” 7 21. Thus, the original printed deed plan was obtained in respect of Khatian no. 4492, the previous numbers of which was depicted as 4488 and 4489 by handwriting. 22. It is noteworthy that the rest of the description of the property, including the Dag no., JL No, etc. are exactly identical between the agreement and the deed. 23. The peculiarity of this case is that the original agreement was never produced by either of the parties. A photocopy thereof was produced and looked into by the Trial Court. However, since the said document was not marked as an exhibit, the learned Trial Judge transgressed his jurisdiction in considering the same. Be that as it may, the defendant/appellant categorically admitted the existence of the agreement dated September 2, 2012 and did not adduce any evidence of his own in the suit. Thus, the learned Trial Judge rightly proceeded on the basis of such admission to the effect that the agreement between the parties dated September 2, 2012 was actually executed. 24. Although the exact terms of the said agreement were not placed before the court, since neither the original of the agreement nor its photocopy was formally marked as exhibit, the consensus between the parties is that the agreement was for sale of his concerned plots in Khatian no. 4492. 25. Remarkably, the entire description of the subject plots, Mouza, JL No, Police Station and District are identical between the agreement, as described in the plaint, and the sale deed dated September 24, 2012, marked as exhibit 2 in the suit. The only dispute is regarding the Khatian no. The admitted case is that the agreement was in respect of Khatian no. 4492. 8 26. As discussed above, a bare perusal of the deed of September 24, 2012 shows that the property which was being sold was clearly described to pertain to LR Khatian no. 4492, which is in consonance with the agreement. In the schedule as well as the body of the deed, it was mentioned that the previous LR Khatian nos. of the subject-property were 4488 and 4489, subsequently recorded as Khatian no. 4492. The deed plan annexed to the deed goes one step ahead and describes the Khatian no. as 4492 in print. It is only by a handwritten interpolation that it is sought to be made out that the previous numbers of Khatian no. 4492 was 4488 and 4489. 27. The deed dated September 24, 2012 (Exhibit 2) was admittedly executed between the parties. Thus, the content of the same cannot be disputed by the plaintiff/respondent as well. It is the deed which was required to be looked into by the learned Trial Judge to ascertain whether the agreed Khatian was sold by the same. Instead of doing so, the learned Trial Judge relied on the recording of the name of the vendors of the defendant/appellant in respect of the Khatian nos. 4488 and 4489 to hold that a different plot was sold by the said deed. Such finding is perverse, inasmuch as the contents of the deed itself were overlooked by the learned Trial Judge in holding so. 28. From Exhibit 1 in the suit, which we ascertain from the trial court records in view of the copy in the paper book being erroneous, it is crystal clear that Khatian no. 4492 was recorded in the LR Records in the name of the defendant/appellant. Thus, such recording, coupled with the mention of Khatian no. 4492 in the body, schedule and plan of the sale deed dated September 24, 2012, leaves no manner of doubt that it is the concerned Dag 9 no. in Khatian no. 4492 which was sold by the appellant to the respondent by the said deed. 29. In the written statement, which is relied on by the learned Trial Judge to bank upon the admission of the defendant/appellant as to execution of the agreement, we also find categorical explanation as to the previous Khatain nos. 4488 and 4489, against which the names of the vendors of the appellant were recorded, being subsequently mutated as Khatian no. 4492 in favour of the defendant/appellant. Such explanation also finds place in the deed itself, which is an admitted document and relied on by the plaintiff/respondent himself, being marked as exhibit at his behest only. 30. Hence, there cannot be any manner of doubt as to the deed being executed in pursuance of the agreement dated September 2, 2012. 31. Another aspect of the matter cannot be overlooked. It is nobody’s case that two lands were separately agreed to be sold between the parties. It is too much of a coincidence that another land was sold contemporaneously with the agreement by the defendant/appellant to the plaintiff/respondent all on a sudden. There is no explanation forthcoming from the plaintiff/respondent as to the backdrop of, and build-up to, the sudden execution of the said deed, almost immediately after the agreement. The agreement was dated September 2, 2012 whereas deed was executed and registered on September 24, 2012, there being a gap of only 22 days in between. 32. Such turn of events compels this court to hold that preponderance of probabilities leans in favour of the fact the deed was in consonance with the agreement and not a separate transaction. 10 33. Such fact is also corroborated by the recording of the defendant’s name in the LR Records of Rights against Khatian no. 4492, which was the subject of the agreement as well as the sale deed. Hence, the prior recording of the names of the defendant’s venders in respect of the Khatian nos. 4488 and 4489 pales into insignificance, particularly since the explanation for such transition finds place in the deed itself. The learned Trial Judge relied on the recording of the appellants’ vendors’ names in respect of Khatian no. 4488 and 4489 erroneously, by overlooking that the appellant’s name itself had been recorded against Khatian no. 4492, thus corroborating the fact that it is the said Khatian which was the subject matter of the sale as well as the agreement. 34. The learned Trial Judge also took into consideration the deviation from the agreed consideration amount of Rs. 19 lakh, as the sale consideration came down to Rs. 14 lakh, as depicted in the deed. However, the parties might very well have agreed to a lesser amount and such fact, ipso facto, does not vitiate the deed being executed in pursuance of the agreement in question. 35. The plaintiff, thus, cannot be held to be entitled to refund of the earnest money paid in terms of the agreement, in view of a sale deed having duly been executed in terms of the same. 36. Insofar as the counter claim of the defendant/appellant is concerned, however, the learned Trial Judge was justified in holding that the same failed since the defendant/appellant did not adduce any independent evidence in support of the counter claim but banked solely upon the evidence of the plaintiff/respondent and the materials on record. In absence 11 of any proof being furnished in support of the counter claim, the same was rightly not allowed. 37. Even otherwise, no independent case was proved by the defendant/appellant as to him being coerced into signing the sale deed of September 24, 2012. In the absence of such foundational proof, there was no scope for the learned Trial Judge directing payment of the difference between the agreed consideration and the actual consideration for the sale. The presumption that the parties entered into the sale transaction of September 24, 2012 of their own volition could not be dislodged by the defendant/appellant by adducing any independent evidence whatsoever. 38. However, the learned Trial Judge ought to have specifically incorporated the dismissal of the counter claim in the ordering portion of the impugned judgment and also drawn up a decree dismissing the counter claim, in view of the categorical finding in the judgment that the counter claim failed. Yet, since there is no manner of doubt from the findings in the impugned judgment that the counter claim was turned down for all practical purposes, it is deemed that the counter claim was dismissed. CONCLUSION 39. In view of the above findings, FA 42 of 2024 is allowed on contest, thereby setting aside the impugned judgment and decree dated July 27, 2022 passed by the learned Civil Judge (Senior Division), Third Court at Howrah in Money Suit No. 70 of 2013 and dismissing the said suit. 40. FAT 310 of 2023 is dismissed on contest, thereby affirming the judgment and decree whereby the counter claim filed by the defendant/appellant in 12 Money Suit No. 70 of 2013 of the Third Court of Civil Judge (Senior Division) at Howrah was turned down. 41. Interim orders, if any, stand vacated. 42. There will be no order as to costs. 43. Formal decrees be drawn up accordingly. 44. The trial court records be sent down immediately. (Sabyasachi Bhattacharyya, J.) I agree. (Supratim Bhattacharya, J.)