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2015 DIGILAW 446 (ORI)

Narayan Nanda v. Khetramohan Patra

2015-07-31

D.DASH

body2015
JUDGMENT The appellant in this appeal has challenged the judgment and decree passed by the learned Additional District Judge, Balasore in M.A. No.34 of 1947 of 1983-82. By the said judgment and decree the learned Additional District Judge has set aside the judgment and decree passed by the learned Munsif, Nilgiri in O.S. No.46 of 1979 in dismissing the suit filed by the respondent no.1 as the plaintiff. The appellant was the defendant no.1 in the trial Court. 2.For the sake of convenience, in order to bring in clarity and avoid confusion, the parties hereinafter have been referred to as they have been arrayed in the Court below. 3. It is the case of the plaintiff that defendant no. 1 and his brother late Bhagaban were the owners in possession of the suit land. They had sold the same to the plaintiff by a registered sale deed dated 29.07.1968 (Ext. 1) for a consideration of Rs.l,000/-. It is stated that in the settlement operation the plaintiff had taken the step at the initial stage to get the land recorded in his name. However, as ill luck would have it, he could not pursue the matter because of the sudden demise of his son at his youth and thus the suit land continued to remain in the name of his vendors, i.e., the defendant no.1-Narayan and his brother-Bhagaban. The prayer for mutation though made was rejected and the appeal did not yield any fruitful result. It is asserted that the plaintiff remained in possession of the suit land since the date of his purchase by paying rent regularly. When the defendants being emboldened by such recording of the suit land attempted to dispossess the plaintiff, the suit has come to be filed. 4. The defendant no. 1 contested the suit. While traversing the plaint averment, it has been inter alia pleaded that the suit land is their ancestral property and he and his brother each had 8 annas of interest over the same. The defendant no. 1 has purchased the half share of his brother by registered sale deed dated 17.04.1951 and thus became the absolute owner. Being in need of money, the defendant no.1 had approached the plaintiff for advancing of loan of Rs.100/- and for that had executed a sale deed of the suit land for Rs.1,000/- so far as the suit land is concerned. Being in need of money, the defendant no.1 had approached the plaintiff for advancing of loan of Rs.100/- and for that had executed a sale deed of the suit land for Rs.1,000/- so far as the suit land is concerned. It is stated that it was not actually a sale deed intending to clothe the plaintiff with title in respect of the suit land and possession was never delivered on the basis of the same. The plaintiff when agreed only to advance the loan on the condition of execution of such a sale deed by the plaintiff and his brother, on 24.05.1957, they had executed the sale deed on receipt of the loan of Rs.400/-. It is stated that the loan amount has been repaid. It is further stated that the value of the suit land at that time was Rs.2500/-. The defendant no. 1 claims to be all along in possession of the suit land as its owner. 5. The trial Court on such rival pleading framing necessary issues answered the vital issue as regards the transaction whether to be a sale or in furtherance of a loan transaction in favour of the defendant no. 1 and against the plaintiff. Accordingly, the suit was dismissed. The unsuccessful plaintiff then carried an. appeal challenging the said finding and the ultimate dismissal of the suit. The lower appellate Court has rendered the finding on that score in favour of the plaintiff holding the deed (Ext. 1 ) to be a sale deed and to have clothed title in respect of the suit land upon the plaintiff. 6. The following substantial questions of law are required to be answered in this appeal : (1) “Whether the lower appellate Court in the present case is right in holding the registered deed dated 29.07.1968 (Ext. 1) to be a sale deed discarding the claim of the defendant no. 1 that it was ‘Biswasi Kabala’ executed for ensuring smooth repayment of the loan of Rs.100/-? (2) Whether the lower appellate Court has committed an error of law by rendering the finding that the passing of title under Ext. I, in respect of the land indicated therein is independent of passing of consideration and whether it ought to have held the sale deed (Ext. (2) Whether the lower appellate Court has committed an error of law by rendering the finding that the passing of title under Ext. I, in respect of the land indicated therein is independent of passing of consideration and whether it ought to have held the sale deed (Ext. I) to have not clothed the plaintiff with any title in respect of the said property when evidence is there that no consideration has been paid and also to the effect that there was the intention between the parties that the passing of title would be dependent on passing of consideration?” 7. Learned counsel for the appellant submits that the evidence on record is overwhelming with regard to the intention of the parties when looked along with the surrounding circumstances to hold that Ext. I is not a deed of sale and it was not so intended. According to him, the lower appellate Court erred in law by holding it to be a sale deed. It is his next contention that there is no evidence as regards the payment of consideration and the surrounding circumstances go to show that passing of title was dependent on passing of consideration. So the lower appellate Court ought to have held the sale deed to be of no value in the eye of law. In this connection he has referred to the evidence on record. 8. Learned counsel for the respondents submits all in favour of the finding rendered by the lower appellate Court. According to him, Ext. I is a registered deed dated 29.07.1968 and that is for the first time has been called in question in a suit after a decade that too when the suit has been filed by the vendee. He further submits that the evidence has let in by the defendant with regard to the nature of the document are in conflict with the pleading and, therefore, according to him, the lower appellate Court having rightly taken all those aspects into consideration has finally set aside the finding of the trial Court and decreed the suit. Further, relying on the decision of this Court in case of Michhu Kuanr and others vrs. Further, relying on the decision of this Court in case of Michhu Kuanr and others vrs. Raghu Jena and others : AIR 1961 Orissa 19, he has contended that in this case when the execution of the deed is admitted and it is said to be without consideration, the defendant has failed to discharge the burden of proof of the factum of non-involvement of consideration under Ext.1 by leading clear, cogent and acceptable evidence of those who have the knowledge of the transaction. According to him, the finding of the lower appellate Court that Ext.1 is a sale deed is unassailable. 9. The deed in question is dated 29.07.1968 and it has been pressed into service in the suit instituted in the year !979 filed by the vendee where only the defendant no.I is up in arms against that deed questioning its nature and value in the eye of law. The defendant no.1 till then has maintained sphinx like silence. The deed has been nomenclature as a sale deed. It is the specific case of the defendant no.1 that the deed was executed as desired by the plaintiff for furtherance of payment of loan as asked by the defendant no.1 So the execution of the deed in question is not denied. What denied is the payment of consideration as stated for this purpose of sale of the suit land and the passing of consideration. In evidence it is stated that the defendant no.1 had executed that ‘Biswasi Kabala’ which is not there in the pleading. At this stage it may be stated that under the circumstances, the burden heavily lies upon the defendant no.1 to prove that Ext.l was never executed the sale deed and that was also not the intention behind the transaction. This is lacking here in the case. The lower appellate Court has found the evidence of D.W.1 to have gone uncorroborated and has thus refrained from accepting it. This part of the evidence of defendant no.1 without further corroboration from any other source has been rightly refused to be acted upon and no fault is seen with it. It has also taken note of the fact that the defendant no. 1 has stated to have repaid the loan. This part of the evidence of defendant no.1 without further corroboration from any other source has been rightly refused to be acted upon and no fault is seen with it. It has also taken note of the fact that the defendant no. 1 has stated to have repaid the loan. But there remains no explanation as regards the non-return of the original document or non-demand of the same from the plaintiff or even not taking any legal step to get it so declared in that regard. Therefore, the burden of proof heavily lying upon the defendant no. 1 to prove that the deed in question was executed for facilitating the payment of loan has not been duly discharged and the lower appellate Court has rightly taken that into consideration along with the dealing with the property. 10.Next, comes the question as regards passing of title under the said deed. It is the settled position that mere non-payment of consideration does not arrest the passing of title under a deed of sale. Weather passing of title is dependent upon passing of consideration or it is independent of that is required to be ascertained from the facts and circumstances as those emanate from the evidence. The approach in getting the answer should start first from close and careful reading of the recitals and examination of the recitals of the sale deed in that direction. If the recitals of the sale deed are clear and unambiguous with regard to the passing of title and passing of consideration then straight away the answer has to be given that non-passing of consideration has nothing to do with the passing of title. Where the clauses are ambiguous and involved, no such answer can be directly found out. In that event, for the purpose, the surrounding circumstances as emerge out of the evidence in the backdrop of the pleadings are to be looked into in their proper perspective. In case of Balabhadra Mishra vrs. Where the clauses are ambiguous and involved, no such answer can be directly found out. In that event, for the purpose, the surrounding circumstances as emerge out of the evidence in the backdrop of the pleadings are to be looked into in their proper perspective. In case of Balabhadra Mishra vrs. Smt. Nirmala Suadani Devi, AIR 1954 Orissa 23 on the facts of that particular case it has been held that title passed independently of the passing of consideration; that where the recitals in the sale deeds were that the consideration passed on the date of the execution of the document and that the vendee shall be entitled to all the rights in the property from that day but it was admitted that the consideration was not paid, it was held that from the circumstance along that the recital in the document about passing of consideration is in correct, it cannot be inferred that the intention of the parties was that the passing of consideration was a condition precedent to the transfer of the title and that title passed to the vendee by virtue of the sale deed. The lower appellate Court has kept that legal position in mind and has gone for examination in that direction which had not been done by the trial Court keeping the position of law in mind. 11.It is at this stage, it is felt profitable to quote the relevant recitals in Ext. 1 which run as under:- “Ahi ki Bikrita Sampati Ambha Mana nka Name Daraja Achhi. Sampra ti Ambhamanakara Chasa Jami Abad O kutumba Manankara Bharana Poshana ebang mahajana dena parisodh nimitta tankara ati abasyaka hebaru anya kounasi upaya na pai arnbhamanankara nija dakhali taphasil bamita Mirigani mouza ra A 0.62.5 dec. jala jarni ebang tahinre thiba jabatiya satwa labhaa labha sahitaku Rs.1000/-, Eka hazara tanka jarasamanare bikraya kalun ‘O’ Dakhala Delun. Jarasamana Tanka Eti purbaru paina thibaru adya jarasamana babada samasta tanka apana mustarinka tharu bujhinelu. Registeri pare Tikatare Apanaku Barad Dei Tikat Jima Debu. Ehi jamire ambhe mane aji tarikha tharu niewataban hoi apanaku ambhamanaka sadrusa malika O khas dakhalkar karailu. 10. A bare reading of the aforesaid recital goes to show that the clause relating to the payment of consideration is separate and independent and there remains no ambiguity. The clauses relating to the sale and passing of consideration are not involved. Ehi jamire ambhe mane aji tarikha tharu niewataban hoi apanaku ambhamanaka sadrusa malika O khas dakhalkar karailu. 10. A bare reading of the aforesaid recital goes to show that the clause relating to the payment of consideration is separate and independent and there remains no ambiguity. The clauses relating to the sale and passing of consideration are not involved. From these recitals the intention is gatherable that passing of consideration was not the condition precedent to passing of title. Thus the findings of lower appellate Court on both Courts are found to be well in order and as such are hereby affirmed. 11.In view of the aforesaid discussion and reasons, the substantial questions of law as framed receive their answer accordingly against the defendant no.l. Thus there arises no scope for interference with the judgment and decree passed by the lower appellate Court which finds the seal of confirmation by this Court. 12. In the result, the appeal stands dismissed and in the peculiar facts and circumstances without cost. Appeal dismissed.