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2003 DIGILAW 1213 (JHR)

Krishna Ram Thakur @ Krishna Ram v. Mahesh Sao

2003-09-29

VISHNUDEO NARAYAN

body2003
JUDGMENT Vishnudeo Narayan, J. 1.This appeal has been directed at the instance of the plaintiff appellant against the impugned judgment and decree dated 13.5.1988 and 26.5.1988 respectively passed in title Appeal No. 59 of 1986 by Shri Lala Anjani Kumar Sinha 3rd Additional District Judge. Hazaribagh whereby and whereunder the said appeal filed by defendant Mahesh Sao was allowed and the judgment and decree dated 8.8.1986 and 22.8.1986 passed in Title Suit No. 80 of 1984 by Shri R.B. Singh, 2nd Additional Munsif, Hazaribagh was set aside. 2. The plaintiff appellant Krishna Ram had filed Title Suit No. 80 of 1984 for declaration that the sale deed dated 8.3.1984 executed by defendant respondent No. 2 Tara Ram in favour of defendant respondent No. 1 Mahesh Sao is null and void and it has conferred no title on defendant respondent No. 1 Mahesh Sao in respect of the suit property detailed in Schedule A of the plaint. A further relief has also been sought directing defendant respondent No. 2 Tara Ram to execute a sale deed in respect of the suit property in favour of the plaintiff appellant and also for confirmation of his possession thereon and in alternative for recovery of possession. 3. The case of the plaintiff appellant, in brief, is that plot Nos. 250 and 251 appertaining to khata No. 23 having an area of 18 decimals and 19 decimals respectively situate in village Kud P.S. Kathamsandi, District Hazaribagh were recorded in the name of Doman Bhuiyan and his son Sukar Bhuiyan inherited the said plots after his death and he was in possession thereon. Sukar bhuiyan died leaving behind his four sons and they came in possession of the said land and about 30 years ago a partition took place between them in respect of the said land and all the sons of Sukar Bhuiyan came in exclusive possession of the land in the aforesaid plots allotted to the respective shares. The further case of the plaintiff appellant is that defendant respondent No. 2 agreed to sell the suit land to the plaintiff appellant and in fact sold the same on 26.5.1982 for a consideration of Rs. 1300/- and delivered possession over the suit land to the plaintiff appellant but due to his illness he could not execute the sale deed in respect thereof and promised to execute the sale deed after his recovery from the illness. 1300/- and delivered possession over the suit land to the plaintiff appellant but due to his illness he could not execute the sale deed in respect thereof and promised to execute the sale deed after his recovery from the illness. It is alleged that the plaintiff appellant came in possession of the suit land and is still continuing in possession over the same. The further case of the plaintiff appellant is that the defendant respondent No. 2 evaded to execute the sale deed in respect of the suit land as promised on false pretext and the plaintiff appellant came to know in the month of Baishak, 1983 that defendant respondent No. 2 has dishonestly and surreptitiously executed a sale deed in respect of the suit land for Rs. 1.500/- in favour of defendant respondent No. 1 and the said sale deed is null and void and has not conferred any title on defendant respondent No. 1. 4. Defendant respondent No. 2 Tara Ram has died during the pendency of this appeal and his heirs/legal representatives stand substituted in his place. 5. The case of the defendant respondent No. 2 Tara Ram, inter alia, is that he has never agreed to sell the suit land nor did he actually sell the same on 26.5.1982 to the plaintiff appellant and has also never put him in possession over the suit land. It is also alleged that he was never ill on 26.5.1982. It is alleged that plaintiff appellant has purchased the share of Puran Ram, the brother of this defendant respondent in the suit plot on 26.5.1982 for Rs. 1,300/- and he delivered a cheque of Rs. 1,300/- to the said vendor which was drawn in the name of this defendant respondent and the amount under the cheque after being encashed was paid to Puran Ram in the registration office itself on the date of its execution. It is further alleged that this defendant respondent was in possession of the suit land till he executed the sale deed on 8.3.1984 when he executed the sale deed in favour of defendant respondent No. 1 Mahesh Sao for Rs. 1500/- and the plaintiff appellant was present when the sale deed in favour of defendant respondent No. 1 was executed and he did raise no objection and the defendant respondent No. 1 is a bona fide purchaser of the suit land for consideration. 1500/- and the plaintiff appellant was present when the sale deed in favour of defendant respondent No. 1 was executed and he did raise no objection and the defendant respondent No. 1 is a bona fide purchaser of the suit land for consideration. It is also alleged that the plaintiff appellant is a shrewd litigant and he brought this defendant respondent to his house for dinner and in intoxicated state he got a document executed by him in his favour without making payment of a single pie and the said document is antedated and without consideration and it was not executed by this defendant respondent in a sound state of mind and he had also lodged a complaint in respect thereof before the Commissioner. North Chotanagpur at Hazaribagh when he came to know regarding the execution of the said document. Lastly it has been alleged that the sale deed executed by him in favour of defendant respondent No. 1 is legal and valid which has conferred perfect right and title on defendant respondent No. 1 in respect of the suit property. 6. The case of the defendant respondent No. 1 Mahesh Sao, inter alia, is that the sa deed dated 8.3.1984 executed by defendant respondent No. 2 in his favour is genuine, valid and for consideration and this defendant has acquired valid right, title and interest in the suit property and he is in possession over the suit property by virtue of the said sale deed. It is further alleged that there was no prior agreement between the plaintiff appellant and defendant respondent No. 2 in respect of the sale of the suit land in favour of the plaintiff appellant and the plaintiff appellant was present in the registration office at the time of execution of the sale deed dated 8.3.1984 but no objection was raised by him. It is also alleged that neither the plaintiff appellant nor defendant respondent No. 2 has ever informed him about the existence of any alleged agreement and this defendant respondent No. 1 had no notice of the existence of the alleged agreement in respect thereof. Other averments in his written statement is similar as stated in the written statement of defendant respondent No. 2. 7. In view of the pleadings of the parties the learned trial Court framed the following issues for adjudication in the case :-- (i) Is the suit legally maintainable? Other averments in his written statement is similar as stated in the written statement of defendant respondent No. 2. 7. In view of the pleadings of the parties the learned trial Court framed the following issues for adjudication in the case :-- (i) Is the suit legally maintainable? (ii) Is the suit barred by law of limitation, estoppel and Specific Relief Act? (iii) Has the plaintiff valid cause of action to file the suit? (iv) Is there any agreement to sell the disputed land to plaintiff and whether the plaintiff was put in possession of the disputed land by the defendant No. 1? (v) Is the plaintiff entitled to get any decree as claimed? (vi) What other relief the plaintiff entitled? 8. In view of the evidence oral and documentary on the record and deciding issue Nos. (iv) and (v) the learned trial Court came to the finding that defendant respondent No. 2 Tara Ram after having received the entire consideration money had agreed to execute the sale deed in respect of the suit land in favour of the plaintiff appellant and he put the plaintiff appellant in possession thereon but he did not execute the sale deed in favour of the plaintiff appellant as agreed and he had, thereafter, sold the suit land to defendant respondent No. 1 for Rs. 1500/- violating the agreement and thus the sale deed dated 8.3.1984 in favour of defendant respondent No. 1 is null and void. In view of the finding aforesaid the learned trial Court decreed the suit. 9. Aggrieved by the said judgment and decree of the trial Court defendant respondent No. 1 Mahesh Sao preferred Title Appeal No. 59 of 1986. The lower appellate Court after re appreciation of the evidence allowed the appeal and set aside the judgment and decree of the trial Court and dismissed the suit. 9. Aggrieved by the said judgment and decree of the trial Court defendant respondent No. 1 Mahesh Sao preferred Title Appeal No. 59 of 1986. The lower appellate Court after re appreciation of the evidence allowed the appeal and set aside the judgment and decree of the trial Court and dismissed the suit. The lower appellate Court has held that defendant respondent No. 1 Mahesh Sao is a bona fide purchaser for value having no knowledge about the alleged agreement between the plaintiff appellant and defendant respondent No. 2 and the plaintiff appellant was never in possession over the suit land and the defendant respondent No. 1 Mahesh Sao has acquired a valid right and title in respect of the suit land by virtue of the said sale deed executed by defendant respondent No. 2 Tara Ram in his favour and the said sale deed cannot be challenged by the plaintiff appellant. 10. This Court while admitting the appeal for hearing had formulated the following substantial question of law which runs thus :-- "Whether the learned Court of appeal below have erred in reversing the judgment and decree passed by the learned trial Court even upon coming to the conclusion that sale deed executed in favour of the defendant No. 2 by the defendant No. 1 on the ground that defendant No. 2 had no knowledge about the said agreement with the plaintiff?" 11. Assailing the impugned judgment it has been submitted by the learned counsel for the plaintiff appellant that there is unimpeachable evidence on the record that the plaintiff appellant had paid the consideration amount i.e., Rs. 1300/- of the proposed sale deed in respect of the suit land to defendant respondent No. 2 Tara Ram on 26.5.1982 by cheque in pursuance of the agreement Ext. 2 executed on that very day by defendant respondent No. 2 aforesaid and the plaintiff appellant was put in possession over the suit property and since then he is continuing in possession thereon and, thereafter, defendant respondent No. 2 evaded to execute the sale deed in favour of the plaintiff appellant. 2 executed on that very day by defendant respondent No. 2 aforesaid and the plaintiff appellant was put in possession over the suit property and since then he is continuing in possession thereon and, thereafter, defendant respondent No. 2 evaded to execute the sale deed in favour of the plaintiff appellant. It has also been submitted that defendant respondent No. 2, thereafter, executed a sale deed on 8.3.1984 in respect of the suit land fraudulently in favour of the defendant respondent No. 1 Mahesh Sao who had notice of the existence of the said agreement and the said sale deed cannot be held to be legal and valid conferring title oh defendant respondent No. 1 regarding the suit land end the learned appellate Court below did not construe the evidence on the record in proper perspective and has misread the evidence which has occasioned failure of justice in this case and in this view of the matter the impugned judgment of the appellate Court below suffers with infirmity and illegality and this Court has jurisdiction to set aside the erroneous finding of the learned appellate Court below and to take a different view. In support of his contention reliance has been placed on the ratio of the case of Neelkantan and Ors. v. Mallika Begum, AIR 2002 SC 827 , in which it has been observed by the Apex Court which runs hereunder :-- "It is well settled that the High Court while considering the matter in exercise of its jurisdiction in second appeal of civil revision would not reverse the finding of fact as recorded by the Courts below. But it is not an absolute proposition. In a case where the finding is recorded without any legal evidence on the record, or on misreading of evidence or suffers from many legal infirmity, which materially prejudices the case of one of the parties or the finding is perverse, it would be open for the High Court to set aside such as a finding to take a different view.". 12. 12. Refuting the contention aforesaid it has been submitted by the learned counsel for the defendant respondent No. 1 that the plaintiff appellant has filed the suit for declaration that the sale deed dated 8.3.1984 executed by defendant respondent No. 2 Tara Ram in favour of this defendant respondent is null and void conferring no title on him and he has also further sought a relief directing defendant respondent No. 2 Tara Ram to execute a sale deed in respect of the suit property in favour of the plaintiff appellant and also for confirmation of the possession thereon and in the alternative for recovery of possession and the basis of the suit filed by the plaintiff appellant is the alleged agreement (Ext. 2) and the learned appellate Court below in para 20 of the impugned judgment has observed that the story propounded by the plaintiff appellant that Tara "Ram had agreed to sell the suit land to the plaintiff appellant and had actually sold the land by executing Ext. 2 after receiving a sum of Rs. 1300/- by means of a cheque could not be accepted. It has also been submitted that Ext. 2 cannot be construed as an agreement for sale of the suit land and it can also not be construed as a sale deed in respect of the suit property in favour of the plaintiff appellant and the plaintiff appellant has no right or title to get the relief by virtue of Ext. 2 and the declaration as prayed for cannot be granted to him. It has also been submitted that Ext, 2 cannot be a basis for the plaintiff to sue. It has also been submitted that the suit as framed by the plaintiff appellant is wrong in this case and he ought to have filed a suit for specific performance of contract and not doing so the plaintiff appellant cannot get the decree for declaration as prayed. It has also been submitted that there is no illegality in the impugned judgment of the learned Court below and the defendant-respondent No. 2 is a purchaser of the suit land without notice of the alleged agreement (Ext. 2} and in this view of the matter there is no substantial question of law at all involved in this appeal. It has also been submitted that there is no illegality in the impugned judgment of the learned Court below and the defendant-respondent No. 2 is a purchaser of the suit land without notice of the alleged agreement (Ext. 2} and in this view of the matter there is no substantial question of law at all involved in this appeal. Lastly it has been contended that the finding of the learned Court below is based on the proper appreciation of the evidence on the record and it is not within the domain of this Court to investigate the grounds on which the findings were arrived at by the last Court of fact, being the first appellate Court and in a case where from a given set of circumstances two inferences are possible, one drawn by the lower appellate Court is binding on the High, Court in second appeal and adopting any other approach is not permissible and in such a situation the High Court cannot substitute its opinion for the opinion of the first appellate Court unless it is found that the conclusions drawn by the lower appellate Court were erroneous being contrary to the mandatory provisions of law applicable or its settled position on the basis of pronouncements made by the Apex Court or is based upon inadmissible evidence or arrived at without evidence. In support of his contention reliance has been placed upon the ratio of the cases of Delhi Motors Co. and Ors. v. U.A. Basurkar (dead) by his legal representatives and Ors., AIR 1968 SC 794 , Probodh Kumar Das and Ors. v. Dantmara Tea Co. Ltd. and Ors. AIR 1940 Privy Council 1, B. Sitaram Rao and Ors. v. Bibhisano Pradhan, AIR 1978 Orissa 222, and Garaj Narain Singh v. Babulal Khemka, AIR 1975 Pat 58 . 13. It is essential to mention at the very outset that the plaintiff appellant has based his claim on the basis of agreement (Ext. 2) in this suit. The said agreement is dated 26.5.1982. It recites that defendant respondent No. 2 Tara Ram had received Rs. 13. It is essential to mention at the very outset that the plaintiff appellant has based his claim on the basis of agreement (Ext. 2) in this suit. The said agreement is dated 26.5.1982. It recites that defendant respondent No. 2 Tara Ram had received Rs. 1300/- by cheque drawn at Canara Bank, Hazaribagh from the plaintiff appellant and due to his illness he is not executing the sale deed in respect of the suit land and a promise has been made therein that he will execute the sale deed after recovery from his illness and he has delivered the possession over the said land to the plaintiff appellant. The agreement Ext. 2 can not be construed as sale deed conferring any right, title and Interest on the plaintiff appellant in respect thereof. Sale as defined under Section 54 of the Transfer of Property Act is a transfer of ownership in exchange for a price paid or promised or part-paid and part-promised. Such transfer in the case of tangible immoveable property of the value of one hundred rupees and upwards can be made only by a registered instrument. A contract for the sale of immovable property is a contract that a sale of such property shall take place on terms settled between the parties and it does not of itself create any interest in or charge on such property. It, therefore, appears that title in property under Section 54 of the Transfer of Property Act can be transferred only by a conveyance and not by mere agreement between the parties. An agreement to sale gives rise to a right to enforce specific performance not only against the vendor but also against the transferee from the vendor with notice of the said agreement. In the case of Radhaklshan Laxminarayan Toshniwal v. Shridhar Ramchandra Alshi and Ors., AIR 1960 SC 1368 , it has been observed by the Apex Court that under Section 54 of the Transfer of Property Act, a contract for sale does not of itself create any interest in or charge on immoveable property and where, therefore, the parties entered into a mere agreement to sell it create no interest in favour of the vendee and the proprietary title does not validly passed from the vendors to the vendee until that is completed no right to enforce preemption arise. In the case of Prabodh Kumar Das and Ors., (supra) it has been observed by the Privy Council that the amendment of the law effected by the enactment of Section 53A in the Transfer of Property Act conferred no right of action on a transferee in possession under an unregistered contract of sale. The right conferred by Section 53A is a right available only to the party in possession to protect his possession and it imposes a statutory bar on the transferor but it confers no active title on the transferee. In the case of Delhi Motors Co. and Ors., (supra) it has been observed by the Apex Court that Section 53A of the Transfer of Property Act is only meant to bring about a bar against enforcement of rights by a lessor in respect of property of which the lessee had already taken possession but does not give any right to the lessee to claim possession or to claim any other rights on the basis of an unregistered lease and it is only available as a defence to a lessee and not as conferring a right on the basis of which the lessee can claim rights against the lessor. In the case of B. Sitaram Rao and others, (supra) it has been observed that it is well settled that doctrine of part performance is available to a defendant to protect his possession and does not create a title of the defendant and this doctrine could not have been availed of for establishing title to the property and this doctrine cannot be pressed into service by the plaintiff for obtaining a decree for declaration of his title and relief of injunction. In the case of Garaj Narain Singh, (supra) the Patna High Court has observed that the right conferred by Section 53A is a right available only to the defendant to protect his possession and the provision under Section 53A is so framed as to impose a statutory bar on the transferor but it confers no active title on the transferee. In the case of Garaj Narain Singh, (supra) the Patna High Court has observed that the right conferred by Section 53A is a right available only to the defendant to protect his possession and the provision under Section 53A is so framed as to impose a statutory bar on the transferor but it confers no active title on the transferee. Section 53A of the Transfer of Property Act runs thus :-- "53-A Part Performance.--Were any person contracts to transfer for consideration any immovable property by writing signed by him or on his behalf from which the 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 possession, continue 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, therefore, appears that Section 53A does not give the transferee any right of which he can bring a suit as plaintiff appellant but only a right which is available to him as defence in order to protect his possession. It does not confer any right on the transferee who takes possession in pursuance of a written agreement and he, therefore, cannot maintain a suit for declaration of his title or that the transferor or other person has no title to the property. In view of the settled proposition of law the suit for declaration of title filed by the plaintiff appellant on the basis of the agreement (Ext. In view of the settled proposition of law the suit for declaration of title filed by the plaintiff appellant on the basis of the agreement (Ext. 2) has no leg to stand and it cannot be said to be maintainable and the plaintiff appellant cannot be said to have any basis to sue in this case for the decree as claimed. It is equally pertinent to mention here that the plaintiff appellant has not filed the suit for the specific performance of contract as per Ext. 2 and in this view of the matter the declaration as prayed by the plaintiff appellant cannot be acceded to him in the facts and circumstances of this case. The learned appellate Court below on the basis of re-appreciation and re- appraisal of the evidence on the record has come to the finding that the plaintiff appellant was never in possession over the suit land and defendant respondent No. 1 Mahesh Sao has acquired a valid right title and interest in the suit land by virtue of the sale deed dated 8.3.1984 executed by defendant respondent No. 2 in his favour and defendant respondent No. 1 is a bona fide purchaser for vale having no knowledge about the alleged agreement between the. plain tiff appellant and defendant respondent No. 2. The finding aforesaid of the appellate Court below is based on proper appreciation of the evidence on the record and it cannot be said that the said finding is erroneous being contrary to the mandatory provision of law applicable in the facts of this case or based upon inadmissible evidence or misreading of the evidence on the record and, therefore, it is not within the domain of this Court exercising its jurisdiction in second appeal to investigate the grounds on which the findings were arrived at by the last Court of fact being the first appellate Court and this Court cannot substitute its opinion for the opinion of the first appellate Court. I am fortified in my view in respect thereof as per the ratio of the case of Kondiba Dagadu Kadam v. Savitribari Sopan Gujar and Ors., 1999 (3) SCC 722 . Viewed thus there is no error in the impugned judgment whereby the judgment and decree passed by the trial Court was reversed. I am fortified in my view in respect thereof as per the ratio of the case of Kondiba Dagadu Kadam v. Savitribari Sopan Gujar and Ors., 1999 (3) SCC 722 . Viewed thus there is no error in the impugned judgment whereby the judgment and decree passed by the trial Court was reversed. It is also pertinent to mention here that there is in fact no substantial question of law at all involved in this case. I, therefore, see substance in the contention of the learned counsel for the defendant respondent No. 1. The appellate Court below while reversing the finding of the trial Court has properly weighed the evidence on the record and has also assigned satisfactory reasons for doing so and there is no illegality in the finding of fact arrived at by the appellate Court below. 14. Viewed thus there is no merit in this appeal and it fails. The impugned judgment of the learned appellate Court below is hereby affirmed. The appeal is hereby dismissed. However, there shall be no order as to costs.