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2002 DIGILAW 483 (ORI)

SRIHARI JENA ALIAS DAS v. KHETRAMOHAN JENA

2002-08-02

L.MOHAPATRA

body2002
L. MOHAPATRA, J. ( 1 ) PLAINTIFF is the appellant before this Court against a reversing judgment. ( 2 ) THE plaintiff-appellant filed the suit for declaration of title, confirmation of possession or in the alternative recovery of possession and permanent injunction. The case of the plaintiff-appellant is that the 'ka' schedule land was originally recorded in the name of the father of the plaintiff and defendant. During the life time of the father of the parties he had alienated the same by a registered sale deed dated 25-4-1952 in favour of the defendant. The plaintiff had no male issue for which the defendant had an evil eye on the share of the plaintiff over the ancestral properties. The plaintiff for his future security kept his daughter and grandson in his house which the defendant could not relish and started a number of criminal cases against the plaintiff. The defendant went to the extent of setting fire to the house of the plaintiff as a result of which a case was registered against him for the offence under Section 436 of the Indian Penal Code. While different criminal cases were pending between the parties, the gentlemen of the village came forward to bring about settlement and a settlement was arrived at. As per the said settlement, 'ka' and 'kha' schedule properties were exchanged between the plaintiff and defendant. Under the said deed of exchange the 'ka' schedule land was allotted to the plaintiff and 'kha' schedule land was allotted to the defendant. After execution of the said deed of exchange on 11-9-71 the parties possessed their respective lands and the plaintiff got the 'ka' schedule land mutated in his name and during such mutation the defendant did not object. Even after the deed of exchange was executed, the defendant continued to create problem as a result of which an Amin was taken and the land was demarcated. The registration receipt of the deed of exchange was kept with a third party as per consent of the plaintiff and defendant and taking advantage of loss of the said receipt, the defendant again started the trouble resulting in filing of the present suit. ( 3 ) THE defendant-respondent filed his written statement stating that though the deed of exchange was executed in respect of 'ka' and 'kha' schedule lands, the same was not as per the consent of the defendant. ( 3 ) THE defendant-respondent filed his written statement stating that though the deed of exchange was executed in respect of 'ka' and 'kha' schedule lands, the same was not as per the consent of the defendant. The plaintiff had initiated a false criminal case alleging commission of an offence under Section 436 of the Penal Code which was registered as G. R. Case No. 376 of 1971. Due to the intervention of the gentlemen of the village, it was agreed that the deed of exchange shall be acted upon provided the plaintiff does not pursue the criminal case and acts in such a manner so that the defendant and his co-accused persons get a clean order of acquittal. But after the execution of the deed of exchange, the plaintiff continued to pursue the criminal cases violating the terms of settlement and accordingly the deed of exchange was not acted upon. Since the plaintiff violated the terms of the agreement, the original deed of exchange was not obtained from the office of the sub-Registrar and the same was destroyed in accordance with law. ( 4 ) THE trial Court on consideration of the pleadings of the parties, framed five issues and while answering issue Nos. 2 and 3 it found that the deed of exchange is valid, legal and has been acted upon. Such finding was based on the observation of the learned Civil Judge, (Junior Division) that after execution of the deed of exchange the plaintiff was in possession of the 'ka' schedule land and possession with regard to 'ka' schedule by plaintiff is acceptable. Having found the deed of exchange valid and legal and having found the plaintiff in possession of the 'ka' schedule properties the trial Court allowed the suit. In appeal, before the learned Civil Judge, (Sr. Division), Balasore the defendant succeeded and the suit was dismissed solely on the basis of the interpretation of the deed of exchange which was found to be hit by Section 23 of the Contract Act. The appeal filed by the defendant having been allowed, the plaintiff has approached this Court in the present second appeal. ( 5 ) AT the time of admission, this Court formulated the substantial questions of law as enumerated in ground Nos. 2 to 5 of the memorandum of appeal which are quoted below :-"2. The appeal filed by the defendant having been allowed, the plaintiff has approached this Court in the present second appeal. ( 5 ) AT the time of admission, this Court formulated the substantial questions of law as enumerated in ground Nos. 2 to 5 of the memorandum of appeal which are quoted below :-"2. For that the learned lower appellate Court having rightly held that if the document (Ext. 4) is read as it is, the recitals are not against the public policy, grossly erred in law in holding that the said document is hit by Section 23 of the Contract Act and further erred in holding that the said document (Ext. 4) is illegal and void. 3. For that the learned lower appellate Court committed an error of law in interpretation of the document of title, Ext. 4 by placing reliance on inadmissible evidence, clearly in contravention of the provisions of Section 92 of the Evidence Act. This error of law has vitiated the impugned decision of the learned lower appellate Court. 4. For that the learned lower appellate Court has further committed an error of law apparent on the face of the record in holding that the order in favour of the plaintiff in Mutation Case No. 1037 of 1977 was not proper without any prayer or issue to that effect in the suit. The learned lower appellate Court had absolutely no jurisdiction to hold that the valid order obtained by the plaintiff in the aforesaid Mutation case No. 1037 of 1977 was not correct and proper. |5. For that the learned lower appellate Court grossly erred in law in reversing the decision of the learned Munsif who had rightly held that no importance could be given to Ext. D series which were only Parchas and not final R. O. R. It is well-settled in law that presumption of possession is attached only through the entries in the record-of-rights and not through Parchas. " ( 6 ) THE learned counsel for the appellant in reference to the substantial questions of law on which the appeal has been admitted submitted that Section 23 of the Contract Act has absolutely no application to the facts of the present case. According to him, there is no evidence on record to show that the deed of exchange was executed for the purpose of stifling the prosecution. Regarding the documents vide Ext. According to him, there is no evidence on record to show that the deed of exchange was executed for the purpose of stifling the prosecution. Regarding the documents vide Ext. 3/a and Ext. 4, the learned counsel submitted that because of pendency of several criminal cases between the parties, the gentlemen of the village intervened and brought about a settlement and in terms of the said settlement, the deed of exchange was executed. The execution of the deed of exchange was not for the purpose of stifling the prosecution but to bring an end to the ill-feeling between the parties. He further submitted that the deed of exchange was acted upon and the evidence on record clearly goes to show that after execution of the deed of exchange, the plaintiff was put in possession of the 'ka' schedule property and remained in possession thereof till filing of the suit. ( 7 ) THE learned counsel appearing for the respondent, on the other hand, submitted that the Ext. 3/a and Ext. 4 clearly indicate the intention of the parties and recital in both the documents clearly proved that the same were executed for the purpose of stifling prosecution and in violation of terms of the compromise, the plaintiff pursued the criminal cases initiated at his instance against the defendant for commission of an offence under Section 436 of the Penal Code. He further submitted that the deed of exchange was not acted upon as in violation of terms of the settlement, the plaintiff continued to pursue the criminal cases and accordingly the deed of exchange was never obtained from the office of the Sub-Registrar and the same was destroyed. ( 8 ) ON consideration of the submission of the learned counsel for the parties, two questions arise in this appeal : i) Whether there is evidence on record to show that the deed of exchange was executed between the parties for the purpose of stifling the prosecution? ii) Whether the deed of exchange is hit by Section 23 of the Contract Act? ( 9 ) SO far as the first point is concerned, it is necessary to refer to both the documents Ext. 3/a and Ext. 4. Ext. 3/a is a compromise between the parties executed on 3-10-1971 on a plain paper. ii) Whether the deed of exchange is hit by Section 23 of the Contract Act? ( 9 ) SO far as the first point is concerned, it is necessary to refer to both the documents Ext. 3/a and Ext. 4. Ext. 3/a is a compromise between the parties executed on 3-10-1971 on a plain paper. It is mentioned in the said document that prior to execution of the same, some criminal cases were disposed of on the basis of the compromise and in order to bring about a good relationship between the parties, the said document was executed. Ext. 4 is a registered document and relevant recitals thereof are translated into English. "we, both the parties, are brothers. After spending a lot of money in criminal cases they were compromised. In presence of the gentlemen we compromise our disputes. As per decision of the gentlemen and to prevent future disputes we are executing the deed of exchange. " ( 10 ) ADMITTEDLY, after the said deed of exchange was executed, the document was not obtained from the office of the Sub-Registrar and receipt thereof was kept with a third party who was examined as P. W. 4. The said witness in his evidence has stated that a deed of exchange was executed between the parties in his presence and he had kept the ticket with him as by that time the criminal cases had not been disposed of. He has further stated that only after the criminal cases are disposed of he was required to obtain the deed and hand over to the parties. From the evidence of the said witness it is clear that the parties had agreed to execute the deed of exchange on the condition that only after disposal of the criminal cases, the same would be obtained from the sub-Registrar's office and handed over to the parties. At this juncture, the learned counsel for the appellant objected on the ground that when the document is clear and unambiguous, the Court should not take help of the evidence to find out the intention of the parties in executing such a document. In this connection, reference may be made to a decision of this Court in the case of biswanath Nanda v. Madhu Sethi reported in (1991) 1 Orissa LR 126 :"if terms of document are clean and unambiguous, extrinsic evidence to ascertain true intention is inadmissible. In this connection, reference may be made to a decision of this Court in the case of biswanath Nanda v. Madhu Sethi reported in (1991) 1 Orissa LR 126 :"if terms of document are clean and unambiguous, extrinsic evidence to ascertain true intention is inadmissible. This is subject to exception that if language is ambiguous, or admits of variety of meanings, 6th Proviso to the section can be invoked which permits tendering of extrinsic evidence as to the acts, conduct and surrounding circumstances to enable the Court to ascertain the real intention of parties. In such a case subsequent conduct of the parties also provides materials to ascertain the true intention of the author of document. Sec. 92 cannot be isolated from Sec. 91. Sec. 91 is based on "best Evidence Rule". " ( 11 ) NOW it is required to be seen as to whether the documents vide Ext. 3/a and Ext. 4 conveyed a clear intention of the parties or it is necessary to refer to the evidence of the witnesses to find out the intention of the parties. It appears that the Ext. 4 was executed on 11-9-1971, whereas Ext. 3/a was executed on 3-10-1971. The recitals in Ext. 4 as quoted above indicate that both the parties were involved in some criminal cases and the same were compromised between the parties and that the document was being executed to avoid future disputes. Ext. 3/a also appears to be in the same line but both the documents do not indicate as to whether prior to execution of the deed of exchange all the criminal cases between the parties had been compromised or not. On the other hand, the evidence of P. W. 4 clearly goes to show that the registration ticket had been kept with him with the understanding that only after the criminal cases are compromised, the deed of exchange shall be obtained from the registration office. The above evidence clearly goes to show that even on the date of execution of the deed of exchange some criminal cases were pending between the parties and they were sought to be compromised in view of the deed of exchange and the deed of exchange was to be obtained from the registration office only after the criminal cases are compromised. I am, therefore, of the view that the lower appellate Court was justified in not accepting the documents Ext. 3/a and Ext. 4 on their face value and referring to the evidence adduced by the parties to know the actual intention of the parties. I am, therefore, in agreement with the lower appellate Court that the deed of exchange was executed for the purpose of compromising some criminal cases pending between the parties. ( 12 ) COMING to the second point as to whether such a deed of exchange is hit by Section 23 of the Contract Act, reference may be made to the decision of the Apex Court in the case of V. Narasimharaju v. V. Gurumurthy Raju reported in AIR 1963 SC 107 . Reference may also be made to the decision of the Apex Court in the case of Ouseph Poulo v. The Catholic Union Bank Ltd. reported in AIR 1965 SC 166 . The Apex Court in both the cases held as follows :"it is only where the agreement is supported by the prohibited consideration that it falls within the mischief of the principle that agreements which intend to stifle criminal prosecutions are invalid. The party challenging the validity of the impugned transaction must show that it was based upon an agreement to stifle prosecution. If it is shown that there was an agreement between the parties that a certain consideration should proceed from the accused person to the complainant in return for the promise of the complainant to discontinue the criminal proceedings that clearly is a transaction which is opposed to public policy. Where the validity of an agreement is impeached on the ground that it is opposed to public policy under Section 23 of the Act, the party setting up the plea must be called upon to prove that plea by clear and satisfactory evidence. Reliance on a mere sequence of events may tend to obliterate the real difference between the motive for the agreement and the consideration for it. " ( 13 ) IN view of my earlier finding that the deed of exchange was executed with the intention of compromising some criminal cases pending between the parties, as decided by the Apex Court in two decisions, it is clearly hit by Section 23 of the Contract Act and accordingly, is not a valid contract. " ( 13 ) IN view of my earlier finding that the deed of exchange was executed with the intention of compromising some criminal cases pending between the parties, as decided by the Apex Court in two decisions, it is clearly hit by Section 23 of the Contract Act and accordingly, is not a valid contract. ( 14 ) I, therefore, do not find any reason to differ with the finding of the lower appellate Court. Accordingly, I do not find any merit in the appeal and the same stands dismissed. Appeal dismissed.