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2014 DIGILAW 398 (ORI)

Niranjan Sahoo v. Sarat Sahoo

2014-07-08

RAGHUBIR DASH

body2014
JUDGMENT R. DASH, J. : Being aggrieved by the judgment and decree dated 17.11.2008 and 2.12.2008, respectively, passed by the learned Additional District Judge, Jagatsinghpur in R.F.A. No.28 of 2007 confirming the judgment and decree dated 25.8.2007 and 7.9.2007, respectively, passed by the learned Civil Judge (Junior Division), Jagatsinghpur in Civil Suit No.76 of 2003, the unsuccessful plaintiffs have preferred this Second Appeal. 2.The Respondents herein are the defendants. The plaintiffs filed the suit for permanent injunction to restrain the defendants from coming upon the suit land or disturbing plaintiffs’ possession and changing the nature and character of the suit land till conclusion of the consolidation operation in the locality. The suit land appertains to Hal Plot No.1547/3647 measuring Ac.0.03 decimals under Hal Khata No.295 of Mouza Jagannathpur, in the district of Jagatsinghpur. According to the plaint averments, Sabik Plot No.1394 measuring an area Ac.0.44 along with other plots in Sabik Khata No.594 of Mouza Jagannathpur was recorded in the name of Bhajani Sahoo. In an amicable partition amongst the co-sharers, Daitary Sahoo, grandson of said Bhajani Sahoo, was allotted land from different plots including Ac.0.03 decimals 6 kadis of land from Sabik Plot No.1394. This portion of Sabik PlotNo.1394 corresponds to the suit plot (Hal Plot No.1547/3647). The defendants’ father Jairam who is also a successor of said Bhajani Sahoo, wanted to exchange his land for the three decimals 6 kadis of land allotted to Bhanjani from Sabik Plot NO.1394. They agreed to effect the exchange by each executing a separate sale deed in favour of the other. Accordingly, plaintiff’s father executed a sale deed on 8.7.1972 but the defendants’ father gave assurance that he would execute his sale deed later on. However, the proposed exchange could not materialize as the defendant’s father did never execute any sale dee das agreed to. Thus, plaintiffs’ father continued to remain in possession of the suit land. The sale deed being without consideration and not acted upon confers no right, title and interest on the alienee. That apart, the suit land being a part of ancestral property,Daitary had no absolute right to alienate it. That apart, the sale transaction being not for legal necessity the plaintiffs are not bound by it. The sale deed being without consideration and not acted upon confers no right, title and interest on the alienee. That apart, the suit land being a part of ancestral property,Daitary had no absolute right to alienate it. That apart, the sale transaction being not for legal necessity the plaintiffs are not bound by it. In the alternative, assuming but not admitting that the sale transaction is valid but the possession is with them, the plaintiffs can be said to have perfected their title by adverse possession. It is further contended that in the Hal settlement the land shown to have been alienated under the sale deed 8.7.1972 has been wrongly carved out as Hal Plot No.1547/3647 but as there is no registered deed of partition the same is recorded jointly in the names of all the co-sharers. 3.The defence taken in the W.S. is the plaintiff’s father had sold the suit land to defendants’ father vide Registered Sale Deed No.4650 dated 8.7.1972. The plea that there was an agreement for exchange of land is false and imaginary. The sale transaction was for consideration, followed by delivery of possession. The defendants, after the death of their father, have been in peaceful possession of the suit land as owners thereof. The plaintiffs have no right, title, interest and possession over the suit land. 4.On the pleadings of the parties trial Court framed the following issues : (i)Whether the suit is maintainable ? (ii)Whether the plaintiffs have got cause of action to file the suit ? (iii)Whether there was an agreement between the father of the plaintiffs and the father of the defendants for sale of any land by the later to the former in return for the sale of the suit land by the former to the latter ? (iv)Whether the RSD No.4650 dt. 8.7.72 is lawful and title of the suit land has been validly transferred by the father of the plaintiffs to the father of the defendants through it ? (v)Whether the plaintiffs are in exclusive possession of the suit land ? (vi)Whether the defendants are in exclusive possession of the suit land ? (vii)To what relief the plaintiffs are entitled ? 8.7.72 is lawful and title of the suit land has been validly transferred by the father of the plaintiffs to the father of the defendants through it ? (v)Whether the plaintiffs are in exclusive possession of the suit land ? (vi)Whether the defendants are in exclusive possession of the suit land ? (vii)To what relief the plaintiffs are entitled ? 5.Having considered the evidence adduced by the parties, learned trial Court recorded its findings to the effect that the plea of an agreement for exchange of land by executing independent sale deed is unbelievable, that the registered sale deed dated 8.7.1987 executed by plaintiff’s father was for consideration and under the sale deed title in respect of the suit land passed on to the alienee, that the sale transaction being followed by delivery of possession, defendants are in possession over the suit land and that there was legal necessity for the sale of the suit land. Learned lower appellate Court also disbelieved the oral evidence on the government between plaintiffs father and defendants’ father for exchange of land between them. Observing that there is valid execution of the sale deed and that the defendants are in possession of the suit land, learned lower appellate Court dismissed the appeal. 6.While admitting the Second Appeal the following substantial questions of law have been framed :- (I)Whether the learned lower appellate Court has committed an error of law in holding that the appellants have failed to establish that the registered sale deed dated 08.07.1972 was a nominal one ? (II)Whether the learned lower appellate Court has committed an error of law in holding that the decisions reported in Vol.71 (1991) CLT 149 regarding coparcenary property and Vol.86 (1986) CLT 35 regarding legal necessity are not applicable to the facts of the present case ? (It is submitted at the Bar that the correct citations of the aforestated reported decisions are Vol.71 (1991) CLT 148 and Vol.86 (1998) CLT 35). (It is submitted at the Bar that the correct citations of the aforestated reported decisions are Vol.71 (1991) CLT 148 and Vol.86 (1998) CLT 35). 7.Learned counsel for the appellants argues that when the recital in the impugned sale deed (Ext.A) is to the effect that passing of consideration would take place at the time of endorsement of the registration ticket it is evident that consideration was not paid at the time of registration of the sale deed and the plaintiffs having denied passing of consideration and the defendants having failed to prove as to when the money was paid, and further more the defendants having failed to adduce any evidence as to delivery of possession, learned Courts below have committed an error of law in holding that the sale transaction was for consideration and the deed was not a nominal one. Learned counsel for the respondents on the other hand argues that when the sale deed reflects unequivocal intention of making instant conveyance of title despite of the fact that consideration was to be received later on, i.e., at the time of endorsement of registration ticket, title passed on upon registration of the sale deed even though consideration did not pass. To support this contention he has cited a decision in Nrusighanath Dev and others v. Banamali Panda and others, reported in AIR 1970 Orissa 218. 8.The plea that the impugned sale deed is a nominal one is mainly based on the story of a mutual agreement between the transferer and transferee that they would exchange their respective land by way of each exeucting a sale deed in favour of the other. But the plea of such agreement has been disbelieved by both the Courts below. Therefore, going by the clear and unambiguous recitals made in the sale deed, learned Courts below have held that title would pass to the transferee on the registration of the sale deed even though consideration is not paid. Therefore, the observation made in Nrusinghanath Dev’s case that in such circumstances title passes without being dependent upon the passing of consideration is squarely applicable to the present case. Therefore, the observation made in Nrusinghanath Dev’s case that in such circumstances title passes without being dependent upon the passing of consideration is squarely applicable to the present case. 9.As regards delivery of possession learned Courts below have concurrently held that possession of the land alienated under the impugned sale deed has been delivered to the alienee and the defendants being the successor-in-interest of the alienee, are found to be continuing in possession of the suit land. Therefore, the learned Courts below have rightly held that the appellants failed to prove the impugned sale deed to be a nominal one. 10.Now I would advert to the second question which is on the applicability of two decisions of this Court to the facts of the case in hand. In Biranchi Narayan Badu v. Smt. Krushnapriya Debi and others; 71(1991) C.L.T. 149 as well as in Gopabandhu Das and others v. Maheswar Mundian and others; 86 (1998) C.L.T. 35, the principles of Hindu Law on the power of the manager of a joint Hindu family to alienate joint family property has been reiterated. It is sated that the manager of a joint Hindu family has power to alienate for value joint family property, so as to bind the interests of both adult and minor coparceners in the property, provided that the alienation is made for legal necessity or for the benefit of the estate. It is also stated therein that when an alienation is made by the Manager of a joint Hindu family, the alienee is bound to enquire into the necessity for the sale and the burden lies on the alienee to prove either that there was a legal necessity in fact, or that he made proper enquiry as to the existence of such necessity and he did all that reasonable to satisfy himself as to the existence of such necessity. In the reported case the existence of legal necessity being found not to have been established it was held that the father of the plaintiffs had no power to alienate the joint family coparcenary property while acting as the manager of the family and the sale deed must be held to be invalid and it did not confer any title on the alienee. In the case at hand, the plea of absence of legal necessity was introduced by way of an amendment of the plaint on 5.4.2004. In the case at hand, the plea of absence of legal necessity was introduced by way of an amendment of the plaint on 5.4.2004. The defendants filed additional written statement after the said amendment of the plaint admitting that Sabik Plot No.1394 is ancestral property but did not take any specific stand on the existence of legal necessity. The recital in the impugned sale deed does not make out that for any legal necessity the suit was alienated. It is simply stated that the transferer was going to sell the land as he was in urgent need of money. It appears, since there was no specific denial of the plea of legal necessity taken in the plaint, the learned trial Court did not frame any issue and no evidence was also adduced by the defendants to prove the existence of legal necessity or due enquiry to ascertain its existence. Admittedly, the suit land is a part of ancestral property of the parties and in a partition it was allotted to the share of the plaintiff’s father. It is also on record that the plaintiffs were minor when the sale transactions took place and the father was the karta or manager of the joint family. Under such circumstance, the unavoidable conclusion would be that plaintiff’s father had no power to alienate the joint family coparcenery property as the karta of the family. 11.A sale transaction challenged on the ground of want of legal necessity is voidable. But the plaintiffs have filed the suit for permanent injunction till consolidation operation is over without seeking the relief of setting aside the sale deed or a declaration of their title in the suit property. It is pleaded in the plaint that since consolidation operation is going on in the locality where the suit land situates, the plaintiffs filed the suit for permanent injunction as the defendants and their henchmen are trying to dispossess the plaintiffs from the suit land. It is well settled that consolidation authorities have no jurisdiction whereas the Civil Court has got jurisdiction if the transaction under challenge is voidable. Be that as it may, there is no evidence that consolidation operation was going on in the locality when the suit was filed. In the original plaint the impugned sale deed was challenged on the ground of non-payment of consideration; a ground which renders the deed void. Be that as it may, there is no evidence that consolidation operation was going on in the locality when the suit was filed. In the original plaint the impugned sale deed was challenged on the ground of non-payment of consideration; a ground which renders the deed void. Subsequently, the plea of absence of legal necessity was introduced by way of amendment of the plaint. Though, this ground renders the deed voidable the plaintiffs did not amend the prayer portion of the plaint to incorporate the prayer for declaration of their little and/or setting aside the sale deed. Learned Courts below have concurrently held that the defendants have been in possession of the suit land. Under such circumstances, the plaintiffs are legally not entitled to a decree for injunction. 12.As a result, the Second Appeal being without any merits is dismissed with costs. Appeal dismissed.