BIRABARA ROUT v. DULLABH ROUT — 1971 DIGILAW 215 (ORI)

JUDGMENT : B.K. Patra, J. - One Jagabandhu Rout died leaving behind him his four sons Banchhanidhi Defendant No. 5, Uchhab Defendant No. 6, Indramani Defendant No. 7 and Parikhit Defendant No. 8. The family had 7.91 acres of land. After Jagabandhu's death, his four sons separated from one another and without effecting a partition of the properties by mates and bounds, each cultivated according to his convenience a one-fourth share of the family lands. Round about the year 1951, Banchhanidhi (deft. 5) sold his one-fourth share in the suit properties to Defendants 1 to 4 and put them in possession of the lands which he was cultivating. On 2-1-1959 Parikhita (Deft. 8) sold his one-fourth share of the lands of which he was in possession to Defendants 9 to 12, and thereafter, the latter began to possess the same. On that very day, Defendant No. 7 Indramani also sold his one-fourth share of the lands to the Plaintiffs under the registered sale deed Ext. 1 and thereafter the Plaintiffs possessed the same. The facts stated above are not disputed. On 19-8-1963, Defendant No. 6 Uchhab executed a sale deed (Ext. 5) in respect of his one fourth share of lands in favour of the Plaintiffs and their brother Defendant No. 13 and the sale deed was duly registered. The Plaintiffs and Defendant No. 13 then applied for mutation of their names in respect of the properties purchased by them under Ext. 5. In the mutation proceeding, Defendants 1 to 4 put forth their claim that prior to the purchase by the Plaintiff's and Defendant No. 13 under the sale deed Ext. 5, these Defendant had purchased the one-fourth share of Uchhab, Defendant No. 6 and are in possession of the same and that consequently, the mutation applied for by Plaintiff's and Defendant No. 13 in respect thereof should Dot be allowed. In spite of this objection, mutation was allowed in favour of Plaintiffs and Defendant No. 13. But in the Mutation Sheet, possession of Defendants 1 to 4 in respect of the one-fourth share of Uchhab was recorded. The Plaintiffs thereafter instituted the suit giving rise to this appeal for partition of the 7.94 acres of land by metes and bounds and for allotment to the Plaintiffs and Defendant No. 13 of their share in the same. 2. The suit was contested only by Defendants 1 to 4. The Plaintiffs thereafter instituted the suit giving rise to this appeal for partition of the 7.94 acres of land by metes and bounds and for allotment to the Plaintiffs and Defendant No. 13 of their share in the same. 2. The suit was contested only by Defendants 1 to 4. Their case is that after the death of Jagabandhu, there was an amicable partition of the 7.94: acres of lands by metes and bounds amongst the four sons of Jagabandhu and thereafter each remained in possession of the lands allotted to him towards his share. It was not denied that Defendant No. 5 sold his one-fourth share to Defendants 1 to 4, that Defendant No. 8 sold his one-fourth share to Defendant Nos. 9 to 12 and that Defendant No. 7 sold his one-fourth share to the Plaintiffs. The dispute is only confined to the one-fourth share of Defendant No. 6 Uchhab. The case of the contesting Defendants is that on 2-1-1959, Defendant No. 6 agreed to sell his one-fourth share for a consideration of Re. 200/- to these Defendants and the sale deed (Ext. A) was accordingly executed by him. Defendant No. 6 received the entire amount of Rs. 200/- from Defendants 1 to 4 and delivered possession of the lands to them. But before the sale deed was registered, a doubt arose in the minds of the parties as to the identity and areas of certain plots of land and it was then decided that the lands should be got identified by an Amin and that thereafter the sale deed would be presented for registration. The sale deed was, however, handed over to Defendants 1 to 4 for keeping the same in safe custody till its presentation for registration. On that very day, namely, 2-1-1959, Defendant No. 7 executed a sale deed in respect of his share of lands in favour of the Plaintiffs and this sale deed was scribed by the very person who had also scribed the sale deed Ext. A in favour of Defendants 1 to 4. The Plaintiffs were thus fully aware of the transaction evidenced by the sale deed Ext. A and were also aware about the delivery of possession by Uchhab of his share of lands to Defendants 1 to 4. But in spite of it, the Plaintiffs colluded with Defendant No. 6 and obtained from him the sale deed Ext. The Plaintiffs were thus fully aware of the transaction evidenced by the sale deed Ext. A and were also aware about the delivery of possession by Uchhab of his share of lands to Defendants 1 to 4. But in spite of it, the Plaintiffs colluded with Defendant No. 6 and obtained from him the sale deed Ext. 5 in respect of his share of the lands on 19-8-1963. As Defendants 1 to 4 are in possession of the one-fourth share of lands of Uchhab in part performance of the contract evidenced by the sale deed Ext. A and as being fully aware of this contract the Plaintiffs have subsequently purchased the very same lands they are not entitled to recover possession of the same. In view of the fact that there was already a partition by metes and bounds amongst the sons of Jagabandhu a further suit for partition is not maintainable. 3. The learned Munsif found that there was never any partition by metes and bounds of the disputed lands amongst the four sons of Jagabandhu but that each of the four sons of Jagabandhu was possessing according to his convenience a portion of the disputed lands almost equal to his share therein. He believed the case of Defendants 1 to 4 that Uchhab sold his one-fourth share to Defendants 1 to 4 and received the consideration of Rs. 200/- thereunder and put them in possession of his share of the lands, and being fully aware of this transaction, the Plaintiffs have subsequently purchased Uchhab's share of lands under the sale deed Ext. 5. He, therefore, found that the Plaintiffs and their brother Defendant No. 13 have not acquired any valid title in respect of the share of Uchhab. Accordingly he held that their right is limited only to the one-fourth share purchased by them from Indramani under the sale deed Ext. 1. He therefore, passed a decree directing partition and allotment to the Plaintiffs and Defendant No. 13 of one-fourth share of the disputed lands of 7.94 acres. 4. Being aggrieved by this decision, the Plaintiffs filed an appeal. The learned Subordinate Judge came to the conclusion that Ext. A was executed by Uchhab in favour of Defendants 1 to 4 but that the terms of the contract cannot be ascertained from this document with reasonable certainty. 4. Being aggrieved by this decision, the Plaintiffs filed an appeal. The learned Subordinate Judge came to the conclusion that Ext. A was executed by Uchhab in favour of Defendants 1 to 4 but that the terms of the contract cannot be ascertained from this document with reasonable certainty. He held that Defendants 1 to 4 failed to prove that they were in possession of Uchhab's share by the time the Plaintiffs purchased the same under the sale deed Ext. 5, and he further held that by the time Ext. 5 was executed, Plaintiffs were not aware of the contract evidenced by Ext. A in favour of Defendants 1 to 4. He, therefore, held that besides the one-fourth share which the Plaintiffs and Defendant No. 13 had acquired under Ext. 1 from Indramani Defendant No. 7, they also acquired valid title to the one-fourth share belonging to Uchhab Defendant No. 6. He, therefore, ordered that the disputed properties should be partitioned and a half share therein be allotted to the Plaintiffs and Defendant No. 13. Being dissatisfied with this decision, Defendants 1 to 4 have filed the present appeal. 5. Admittedly the Appellants who were the contesting Defendants 1 to 4 in the Court below had not acquired a valid title to the one-fourth share of Uchhab in the disputed lands because the sale deed Ext. A executed in their favour by Uchhab is not registered. 5. Admittedly the Appellants who were the contesting Defendants 1 to 4 in the Court below had not acquired a valid title to the one-fourth share of Uchhab in the disputed lands because the sale deed Ext. A executed in their favour by Uchhab is not registered. Defendants 1 to 4, however, in defence of their alleged possession of the disputed property rely on Section 53-A of the Transfer of Property Act which runs thus: 53-A. Where any person contracts to transfer for consideration any immoveable property by writing signed by him or in his behalf from which the terms necessary to constitute the transfer can be ascertained with reasonable certainity 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 possession, 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 contract, then, notwithstanding that the contract, though required to be registered, has not been registered, or, where there is an instrument of transfer, that the transfer has not been completed in the manner prescribed therefore by the law for the time being in force, the transferor or any person claiming under him shall be 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 continued in possession, other than a right expressly provided by the terms of the contract: Provided that nothing in this section shall affect the rights of a transferee for consideration who has no notice of the contract or of the part performance thereof. It is not the case of Defendants 1 to 4 that before execution of the unregistered sale deed Ext. A in their favour, they were in possession of Uchhab's one-fourth share. Their case is that it is only after the execution of the sale deed that possession was delivered to them in part performance of the contract evidenced by the unregistered sale deed. After an exhaustive consideration of the evidence on this point, the lower Appellate Court has disbelieved this part of the contesting Defendants case and this finding is assailed on the ground that Exts. After an exhaustive consideration of the evidence on this point, the lower Appellate Court has disbelieved this part of the contesting Defendants case and this finding is assailed on the ground that Exts. F, G, H, and K were not taken into consideration by the Court below in arriving at this finding. Exts. F, G and H are mutation sheets which show that Defendants 1 to 4 were recorded in place of the previous royats the sons of Jagabandhu in respect of certain lands. It is not disputed that these documents do not relate to the lands which Defendants I to 4 claim to have purchased from Uchhab. Obviously, Exts F, G and H relate to the lands which Defendants 1 to 4 had purchased from Banchhanidhi Defendant No. 6 It is Ext. K the mutation sheet which relates to the lands alleged to have been purchased from Uchhab. As already stated, Plaintiffs and Defendant No. 13 applied for mutation of these lands in their names and mutation Case No. 105697 of 1965 was registered. It is in that case that Defendants 1 to 4 filed their objection as a result of which although mutation was allowed in favour of the Plaintiffs and Defendant No. 13, a note of possession was made in favour of Defendants 1 to 4. It is not one of the duties of the Mutation Officer to record who is in possession of any particular lands nor to make a regular enquiry about the same. That apart, if full effect is given to the entry relating to possession of Defendants 1 to 4, such an entry was made in the year 1965, whereas the Plaintiffs and Defendant No. 13 had purchased the share of Uchhab on 19-8-1963. There is nothing in Ext. K to indicate that by 1963, Defendants 1 to 4 were in possession of the lands much less that they were in possession since 1959. I, therefore, fail to see how Ext. K can in any way affect the clear finding recorded by the learned Subordinate Judge that possession of the share of Uchhab in the disputed lands was not delivered to Defendants 1 to 4 on execution of the unregistered sale deed Ext. A in their favour. 6. There is one other circumstances which belies the case of Defendants 1 to 4 on this point. A in their favour. 6. There is one other circumstances which belies the case of Defendants 1 to 4 on this point. It was their case in the written statement that the sale deed Ext. A could not be registered because a doubt arose in the minds of the parties regarding the identity and areas of certain plots of lands and it was therefore considered necessary to get the same identified by an Amin and thereafter to get the sale deed registered. If that was the position, it passes one's comprehension how possession of the lands could have been delivered to Defendants 1 to 4, when identity of certain plots of land was in dispute. 7. Defendant No. 6 Uchhab Nath examined himself as d.w. 1 in the suit and he stated that although he executed the sale deed Ext. A ill favour of Defendants 1 to 4 in respect of his one-fourth share in the disputed lands, the latter did not pay the consideration money to him and that therefore he did not deliver possession of the lands to them. The learned Subordinate Judge on a consideration of the evident also arrived at that finding and in doing so he relied upon Exts. 6 and 7. Ed 6 is a certified copy of the deposition of Hrushikesh Raut Defendant No. 3 who had been examined in the Mutation Case No. 1956/97 of 1965. He had admitted in cross-examination in the Mutation Case that on the day the Kabala Ext. A was executed, the Defendants 1 to 4 did not pay any consideration money to Uchhab nor was it paid afterwards, his case being that the money had been paid to Uchhab sometime before the execution of Ext. A. Defendant No. 3 did not examine himself in the present suit. But his previous deposition was admitted in evident as containing his admission. D.W. 3 is the scribe of Ext. A and he stated that consideration was paid in his presence by Defendants 1 to 4 to Uchhab at the time the sale deed was executed. This does not fit in with the statement made by Defendant No. 3 made in the Mutation case referred to above. That apart, this scribe d.w. 3 had also been examined in the Mutation case where he stated that no consideration was paid in his presence. This does not fit in with the statement made by Defendant No. 3 made in the Mutation case referred to above. That apart, this scribe d.w. 3 had also been examined in the Mutation case where he stated that no consideration was paid in his presence. While the scribe d.w. 3 was being cross-examined in the trial Court, his attention was drawn to the previous statement made by him in the Mutation Case and he replied that he did not remember whether he stated in the Mutation Case that no consideration was paid in his presence. Despite this being done, his previous deposition was not formally marked as an exhibit in the trial Court. An application was, therefore, filed under Order 41, Rule 27 of the CPC in the first Appellate Court to give an exhibit mark to the previous deposition and it was marked as Ext. 7. Mrs. Padhi, learned. Advocate for the Appellants contends that Exts. 6 and 7 are not admissible in vident and should not have been relied upon by the learned subordinate Judge, because, as far as Ext. 5 is concerned the maker of the statement namely, Defendant No. 3 had not been examined at the trial, and so far as Ext. 7 is concerned, the attention of the witness D.W. 3 was not drawn to his previous statement in the manner provided by Section 145 of the Evidence Act. I am unable to accept either of these two contention. An admission by itself is substantive evident in view of Sections 17 and 20 of the Evident Act, though it is not conclusive proof of the matter admitted. An admission duly proved is admissible evident irrespective of whether the party making it appears in the witness box or not and whether such party appearing as witness was confronted with those statements in case the party made a statement contrary to the admission. The purpose of contradicting the witness u/s 145 of the Evident Act is quite different from the purpose of proving the admission. Admission is substantive evident of the fact admitted while a previous statement used to contradict a witness does not become substantive evident and only serves the purpose of throwing doubt on the veracity of the witness. The purpose of contradicting the witness u/s 145 of the Evident Act is quite different from the purpose of proving the admission. Admission is substantive evident of the fact admitted while a previous statement used to contradict a witness does not become substantive evident and only serves the purpose of throwing doubt on the veracity of the witness. Weight to be attached to an admission made by a party is a matter different from its use as admissible evidence, Bharat Singh and Another Vs. Bhagirathi, It is, therefore that so far as Ext. 6 is concerned, there is no reason why it cannot be used in evidence as an admission made by Defendant No. 3 who is a party to the suit and this admission made by Defendant No. 3 directly contradicts the testimony given by d.w. 3 in this case that consideration under Ext. A was paid at the time the document was executed. That d.w. 3 had made two contradictory statements on two different occasions regarding the passing of consideration under Ext. A is sufficient to throw considerable doubts on the varacity of his testimony. The objection taken to the reception in evident of the previous testimony of D.W. 3 does not appear to be valid in view of the fact that I find that the provisions of Section 145 of the Evident Act had been substantially complied with in confronting d.w. 3 with his previous testimony. Having regard, therefore, to the evident discussed above the learned Subordinate Judge was justified in coming to the conclusion that Defendants 1 to 4 have failed to prove that they paid any consideration under Ext. A. This conclusion fits in also with the statement made by Uchhab (d.w. 1) that no consideration was received by him and that consequently he did not get Ext. A registered and did not deliver possession of the lands to Defendants 1 to 4. 8. While dealing with the question of notice, the learned Advocate for the Appellants referred to Explanation II to the definition of "notice" in Section 3 of the transfer of Property Act which says that any person acquiring immoveable property shall be deemed to have notice of the title, if any, of any person who is for the time being in actual possession thereof. If as a matter of fact, it had been established in this case that Defendants 1 to 4 wherein possession of the share of Uchhab when Plaintiffs purchased the property from Uchhab under Ext. 5, it could have been contended that Plaintiffs are not bona fide purchasers of the disputed property. But in view of the finding that the Defendants 1 to 4 not only have failed to prove their possession of the disputed lands at any time and much less at the time when Ext. 6 was executed, and in view of the circumstantial evident which go to show that, Defendants 1 to 4 would not have got such possession, I must hold that the Plaintiffs and Defendant no. 13 are bona fide purchasers of Uchhab's share in the property. 9. Accordingly I would uphold the judgment and decree passed by the learned Subordinate Judge and dismiss the appeal, but, in the circumstances without costs.