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2016 DIGILAW 509 (ORI)

Sudarsan Pradhan v. Harekrushna Nayak

2016-07-12

D.DASH

body2016
JUDGMENT : This appeal has been directed against the judgment and decree passed by the learned Addl. District Judge, Jajpur in R.F.A. No. 64 of 2011 confirming the judgment and decree passed by the learned Civil Judge (Sr. Division), Jajpur in C.S. No. 440 of 2006. The respondent no. 1 as the plaintiff had filed the suit against the predecessor in interest of respondent no. 2 to 7 (defendant no.1 (a) to 1(f)) and the present appellants (defendant no.2 and 3). The suit for declaration of his right, title and interest over the suit land having been decreed and the counter claim filed by the appellants and the predecessor-in-interest of the defendant no. 1 (a) to 1(f) having been dismissed, the aggrieved defendant nos. 2 and 3 (appellants here in this appeal) had filed the appeal which has also been dismissed. 2. For the sake of convenience, in order to avoid confusion and bring in clarity, the parties hereinafter have been referred to as they have been arraigned in the trial court. 3. The plaintiff’s case is that the suit land belonged to defendant no. 1 and 2 and it stood recorded in their name in the consolidation record of right. Those defendant no. 1 and 2 for their legal necessity approached the plaintiff for purchasing the suit land for consideration of Rs.20,000/-. Accordingly, they received a sum of Rs.5,000/- prior to the execution of the sale deed and it was agreed that the balance amount of Rs.15,000/- would be paid after receiving the original sale deed when there would be endorsement of the registration receipt. On 16.02.2005, the defendants finally executed the sale deed getting it scribed through a scribe of their own choice. It is stated that Sudarsan Pradhan is also known as Sukadev Pradhan and he is one and the same person, who is none other than the defendant no.2. On 26.04.2005 plaintiff asserted to have paid a sum of Rs.90,000/- i.e. Rs.15,000/- towards the balance consideration and Rs.5,000/- towards of cost of laterite stone lying over the suit land as also a sum of Rs.70,000/- towards filling the land and making the boundary. The money is said to have been paid at Cuttack when defendant no.2 executed the receipt in token of acknowledgment of the same. It is stated that the vendors having received the original sale deed had handed over the same to the plaintiff. The money is said to have been paid at Cuttack when defendant no.2 executed the receipt in token of acknowledgment of the same. It is stated that the vendors having received the original sale deed had handed over the same to the plaintiff. But it was given to them for the purpose of doing the needful in the matter of mutation of the land on behalf of the plaintiff. Further case of the plaintiff is that when some time after, he had been to the place to inspect the work done, he found defendant no.2 to have simply dumped few trips of sand. The plaintiff then requested the defendant no.2 for fastering the progress of the work when it was told that as some dispute had cropped up with one Suryamani, the presence of the plaintiff would be necessary at the time of construction of the boundary wall at the southern side. The plaintiff asked the defendant no.2 to go ahead with the work as he was having the sale deed with him and then he was also requested to collect the rent receipt. He also handed over the application for the purpose of mutation of the suit land to be done before the Tahasildar Darpan. The defendant no.2 accordingly promised to do all those works for the plaintiff. It is also the case of the plaintiff that since the defendant no.2 did not do the construction work as desired by spending required money given to him, on 03.11.2006 the plaintiff had to go to the office of the Revenue Inspector to collect the rent receipt in respect of the suit land for the year 2006-07 and there on enquiry, he came to know that the defendant no.2 had betrayed the faith and confidence reposed on him by misappropriating the amount of Rs.70,000/- given for the purpose of work. So, he asked the defendant no.2 to return the original sale deed. Then he replied that it being somewhere misplaced would be returned later. Although several times the plaintiff approached the defendant no.2 to give him the sale deed; yet it was not complied with. On 01.11.2006 when plaintiff had again gone there, he could know from the nearby tenants about the mischievous activity of defendant nos. Then he replied that it being somewhere misplaced would be returned later. Although several times the plaintiff approached the defendant no.2 to give him the sale deed; yet it was not complied with. On 01.11.2006 when plaintiff had again gone there, he could know from the nearby tenants about the mischievous activity of defendant nos. 1 and 2 in cancelling the registered sale deed that was executed in favour of the plaintiff by executing another deed of cancellation and then on further enquiry he found out the truth that on 03.11.2006, the defendant nos. 1 and 2 have done so by abusing the faith and confidence that the plaintiff had reposed on them. So, the suit has to be filed. 4. Defendants’ case is that they being in urgent need of money to clear up their loan dues had approached the plaintiff for advancing the loan to the tune of Rs.20,000/-. Finally, the plaintiff agreed to pay the amount and accommodate them on the condition that he would advance the loan provided they would execute a loan bond. So as per the agreement they went to the office of the Sub Register at Barachana with the intention to execute a loan bond and there was never any decision for execution of a sale deed in favour of the plaintiff. The defendants being illiterate and rustic villagers had placed full reliance on the plaintiff. As it became late on their part in arriving at the office, plaintiff had by then organized everything for the documentation establishing contact with the scribe and the witnesses. It is alleged that he had chosen his own man and had bribed them for rendering necessary support in getting his mischievous plan as hatched duly executed and put into action. Thus, when the defendants arrived late, everything were ready and the plaintiff having expressed his anger asked them to sign immediately on the papers. The defendants abiding by it subscribed their hands to it. Accordingly, without the contents of the documents being read over and explained and without they being made to understand the nature of the deed in question, the same was made to be registered at a hot haste as the stage had already been set ready. The defendants abiding by it subscribed their hands to it. Accordingly, without the contents of the documents being read over and explained and without they being made to understand the nature of the deed in question, the same was made to be registered at a hot haste as the stage had already been set ready. It is also stated that even if any money receipt is there under the signature of the defendants; there was no need at all for execution of the same. It is reiterated that the sale deed has been snatched away from the defendant nos. 1 and 2 in the grab of a loan document. It is also the averments that the defendants although demanded money from the plaintiff, the same was not paid and thus rather, they claim that the plaintiff betrayed the defendants. So, they did not endorse the registration receipt in favour of the plaintiff and put it on hold. The matter is said to have been settled due to the intervention of the local gentle men that they would keep the sale deed in their custody till the payment of money without any endorsement on the registration receipt enabling the plaintiff to receive it. Thus the mischievous plan of the plaintiff for the time being failed. Thereafter, entertaining some suspicion when they went to the Sub Registrar’s Office on the very next day of the registration of the document, they were surprised to know that a sale deed had been taken from them. So, they asked the plaintiff about it who then readily agreed to co-operate. Ultimately, the defendants cancelled the registered sale deed by executing a deed of cancellation. It is next alleged that the said sale deed dated 16.02.2005 is void and has no legal force for nonpayment of the consideration. They state that even if the sale deed is accepted to be as such, it has clothed the plaintiff with no title in so far as the suit land is concerned. It is next reiterated that the sale deed is also void on account of misrepresentation as regards its nature. They however state that later being in need of money they executed another sale deed in respect of the suit land in favour of the defendant no.3 on receipt of the valuable consideration. It is next reiterated that the sale deed is also void on account of misrepresentation as regards its nature. They however state that later being in need of money they executed another sale deed in respect of the suit land in favour of the defendant no.3 on receipt of the valuable consideration. It is his case that the title over the suit land on the basis of the said sale deed in favour of the defendant no.3 has passed unto him who is now as such in possession and exercising all the right as its owner. 5. Faced with above rival pleadings, the trial court framed in total six issues. Going to answer issue no. 3 and 4 together, concerning the right, title and interest of the plaintiff over the suit land and also plaintiff’s entitlement to the reliefs as prayed for, upon examination of evidence in the backdrop of the pleadings, answer has been rendered that the defendant no. 1 and 2 have duly executed the sale-deed in favour of the plaintiff, and there was no fraud, misrepresentation or undue influence in the matter. Next it has been held that the plaintiff has not duly proved the payment of full consideration by leading satisfactory evidence. The last answer has been recorded that the passing of title so far as the suit by the land is concerned under the registered sale-deed dated 16.02.2005 standing in favour of the plaintiff was not dependent upon the factum of passing of consideration and therefore it has been held that the title in respect of the suit land has passed in favour of the plaintiff. With these finding, the suit having been decreed, the counter claim stood dismissed. 6. The defendants being aggrieved by the above judgment and decree having carried the appeal have failed since the lower appellate court has subscribed its hand to the final result in the suit standing decreed, granting the reliefs to the plaintiff as prayed for. At its level, viewing the rival pleadings and upon analysis of evidence, it has held that the plaintiff has proved the payment of full consideration to the defendant nos. 1 and 2 by tendering satisfactory evidence. The lower appellate court has thus disapproved the finding of the trial court on that score. At its level, viewing the rival pleadings and upon analysis of evidence, it has held that the plaintiff has proved the payment of full consideration to the defendant nos. 1 and 2 by tendering satisfactory evidence. The lower appellate court has thus disapproved the finding of the trial court on that score. In view of that, it has stayed there without going for examination of the sustainability of the finding of the trial court as to if the passing of title was dependant or independent of passing of consideration as there does not survive that as the necessity for being answered. Thus it confirmed the final result of the suit standing decreed granting the plaintiff those reliefs as ordered by the trial court. 7. The appeal has been admitted on the following substantial questions of law:- “1. Whether the lower appellate court’s finding contrary to the one of the trial court in holding that there has been payment of consideration under Ext.A is perverse and as such does not stand to reason? 2. Whether the trial court’s finding that the recitals of Ext.A being clear and unambiguous, title over the subject matter of the suit covered by said sale has passed to the plaintiff notwithstanding the payment of consideration is tenable in the eye of law or that it is the outcome of misconstruction of the recitals under Ext. A?” 8. Learned counsel for the appellants submits that in this case the lower appellate court has misdirected itself in coming to a conclusion that there has been payment of consideration for the sale transaction by the plaintiff to the defendant nos. 1 and 2 and that is not at all based on due appreciation of evidence. So in that way the finding of the trial court that there is no satisfactory evidence on the score of payment of consideration ought to have been affirmed. He next contends that the recitals in the sale-deed under consideration are not clear and un-ambiguous. So, these recitals on bare reading do not have the final say as to whether the passing of title over the subject matter under the transaction was dependent on passing of consideration or independent. Therefore, according to him, the other surrounding circumstances and attending factors as those emanate from the evidence are required to be taken into account in their proper prospective for reaching at a conclusion in that regard. Therefore, according to him, the other surrounding circumstances and attending factors as those emanate from the evidence are required to be taken into account in their proper prospective for reaching at a conclusion in that regard. Citing those circumstances, he contends that when an overall view is taken, the conclusion has to be that the trial court has erred in law by recording a finding that the title of the land covered under Ext. A has passed in favour of the plaintiff despite non-payment of the entire consideration. It is his contention that the trial court having not correctly appreciated the settled position of law in this regard having their play has thus not gone for examination of the evidence proper direction and in that light. Therefore, the ultimate finding recorded by it that the title over the suit land has passed in favour of the plaintiff by virtue of said sale deed is clearly unsustainable. 9. The respondent no.1 having appeared in person and by filing an affidavit, has submitted that the lower appellate court has rightly decreed the suit recording the finding of title in favour of the plaintiff holding that there had been payment of consideration and thus there would arise no further necessity to examine as to whether passing of title was dependant on passing of consideration or not. He urges for dismissal of the appeal. 10. At the beginning, it thus calls for examination as regards the sustainability of the finding of the lower appellate court with regard to payment of consideration under the sale transaction as evidenced by the registered sale deed Ext. A. As already stated the trial court has found on examination of the evidence that those are unsafe to be relied upon to record a positive finding on payment of consideration whereas the lower appellate court upon analysis of evidence at its level has held that the payment of consideration has been made. A. As already stated the trial court has found on examination of the evidence that those are unsafe to be relied upon to record a positive finding on payment of consideration whereas the lower appellate court upon analysis of evidence at its level has held that the payment of consideration has been made. It is the settled position of law that in a case where controversy remains on the score of passing of consideration in view of the dispute as to the payment of consideration under a sale transaction and one party leads evidence in its support whereas the other side tenders the evidence in the negative, the burden of proof loses its importance and the court is called upon to examine the evidence and properly appreciate same as let in by the parties to arrive at a conclusion on that fact if to have been established by preponderance of probability or not. In the instant case, the plaint averment is that consideration money was paid in part before sale deed and rest was to be paid later when the defendants would be endorsing the registration ticket. So, plaintiff either prior to the deed of sale or on the date of execution of the sale deed had not paid the entire consideration as agreed upon. It is said that on 26.04.2006, that rest consideration was paid with further sum of Rs. 5000/- towards cost of laterite stone and boundary wall that was propose to be so constructed. So on 26.04.2006, the entire amount was paid and money receipt was executed to that effect by Sudarsan @ Sukadev Pradhan, the defendant no.2. The vendees accordingly handed over the sale deed to the plaintiff which was again given to them for the purpose of getting the land mutated in favour of the plaintiff. The defendants deny the said receipt of consideration or any part thereof. The document on this score is Ext. 4 which is the receipt. It is dated 26.04.2006. The recipient is Sukadev Pradhan, the defendant no.2 and it is said by the plaintiff that, Sukadev and Sudarshan is one and the same person, none other than the defendant no. 2. Interestingly, Kartik Pradhan, the defendant no. The document on this score is Ext. 4 which is the receipt. It is dated 26.04.2006. The recipient is Sukadev Pradhan, the defendant no.2 and it is said by the plaintiff that, Sukadev and Sudarshan is one and the same person, none other than the defendant no. 2. Interestingly, Kartik Pradhan, the defendant no. 1 had purchased the stamp papers for the registered sale deed in favour of the plaintiff and the specific stand has also been taken that the sale deed had been taken by practicing fraud and misrepresentation. However, the defendant no. 2 has been examined as D.W. 1. He has admitted the fact and stated that Kartik, the defendant no.1 was looking after the execution of Ext. A. He has stated that consideration has been shown there as Rs. 20,000/-. In such state of affairs, there remains no explanation as to how Kartik, the defendant no.1 had purchased the stamp papers for the sale deed which calls for drawal of adverse inference against the case of the defendants. They having alleged the sale to be the outcome of fraud have failed to establish the same by tendering acceptable evidence. Be that as it may, the trial court as also the appellate court on appreciation of evidence has found the same to have been duly executed by the defendant no. 1 and 2. This defendant no. 2 has admitted in evidence that Sub-Registrar had asked him about it and had then received the answer in the affirmative. The plaintiff has explained in pleading and evidence that Sukadev is also the other name of defendant no. 2, Sudarsan. The signature to the naked eye does not give rise to slightest suspicion in mind. Moreover, when the case of the defendant nos. 1 and 2 is that they had gone to execute a loan bond, they however do not say as to how they executed even the document (let’s assume for the moment that said loan bond) without even receiving the loan amount. When they did not hand over the registration receipt whether they knew by then that they had executed the sale deed or loan bond is also surprisingly not stated and explained. The pleadings of these defendants in the written statement are not clear and specific. When they did not hand over the registration receipt whether they knew by then that they had executed the sale deed or loan bond is also surprisingly not stated and explained. The pleadings of these defendants in the written statement are not clear and specific. Their alternative case that even if it was a sale deed that they executed, there had been no passing of title over the subject matter on account of non-payment of consideration, rather leads to show that their approach to the matter is not with clean hands. Furthermore, they have failed to establish the fraud in the matter as alleged by them. In view of aforesaid, this Court finds that the evidence on the score taken as a whole is reasonably capable of supporting the finding of the lower appellate court on payment of consideration. Thus, no such justifiable reason is found to be appearing to say that the finding of the lower appellate court on the score of payment of consideration by the plaintiff to the defendant no. 1 and 2 suffers from the vice of perversity. Rather it is found that the lower appellate Court has thereby rightly gone to set at right the flawed finding of the trial court on that score. 11. In view of above, when this Court is in agreement with the finding of the lower appellate court that the plaintiff has paid the entire consideration under the said sale deed to the defendant no. 1 and 2 being based on proper appreciation of evidence on record and the conduct of the defendant no.1 and 2 as those placed in evidence, the second substantial question of law in the case as formulated does no more survive for being gone into and answered. 12. Resultantly, the appeal stands dismissed. No order as to cost.