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2016 DIGILAW 597 (ORI)

Kasturi Mohanta v. Ratnakar Mohanta

2016-08-05

D.DASH

body2016
JUDGMENT : This appeal has been directed against the judgment and decree passed by the learned District Judge, Keonjhar in R.F.A. No. 30 of 2004 setting aside the judgment and decree passed by the learned Civil Judge (Sr. Division), Anandapur in Title Suit No. 76 of 1999. The respondents as the plaintiffs had filed the suit for declaration of their right, title, interest and possession over the Ka Schedule property with further prayer to declare the cancellation of deeds executed by the plaintiff-respondent no. 1 in favour of defendant no.1-appellant as null and void and for permanent injunction. The suit having been dismissed, the respondent no. 2 being the unsuccessful plaintiff had carried the first appeal under section 96 of the Code of Civil Procedure. The first appeal having been allowed by decreeing the suit, now the respondent no. 1 who was the defendant no. 1 in the trial court being aggrieved by the same has filed the above noted second appeal under section 100 of the Code as the plaintiff. 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 defendant no. 1 and 3 are the daughters of one Budhu Mohanta who had two other brothers namely, Chaitan and Sanatan since dead. Plaintiff no. 1 is the son of Chaitan whereas plaintiff no. 2 is the son of Sanatan. It is stated that defendant no. 3 had filed a suit for partition of joint family properties numbered as Title Suit No. 37 of 1983. In the said suit, they were allotted as of their shares, the properties which are the subject matter of the present suit. Thereafter, they sold the suit land to the plaintiffs by two registered sale-deeds dated 13.05.1994. The defendant no. 1 then cancelled the sale-deeds so far as her half share is concerned by executing two deeds of cancellation. The plaintiff filed mutation proceedings and there the share of defendant no. 3 who is none other than the sister of defendant no. 1 has been mutated in their favour. It is further stated that on 15.09.1999, defendant no. 1 sold her share which she had earlier sold to plaintiffs to defendant no. 2 by executing registered sale-deed which cover the property described in Schedule-Kha. 3 who is none other than the sister of defendant no. 1 has been mutated in their favour. It is further stated that on 15.09.1999, defendant no. 1 sold her share which she had earlier sold to plaintiffs to defendant no. 2 by executing registered sale-deed which cover the property described in Schedule-Kha. It is stated that the defendant no. 1 and 3 transferred the suit properties to them and had received the agreed consideration They had given the delivery of possession of the property. So, the plaintiffs claim to have been in possession of the suit land since then as it’s owner having the right, title and interest over it. The subsequent cancellation deeds executed by defendant no. 1 as also the sale-deed executed by defendant no. 1 in favour of defendant no. 2 are said to be invalid. 4. The defendant no. 3 supported the case of the plaintiff. Rest of the defendants while contesting the claim of the plaintiffs allege that under those two sale-deeds which had been executed by defendant no. 1 and 3 in favour of the plaintiff, no consideration was paid as agreed upon and therefore by such sale-deeds, the plaintiffs have not been clothed with the right, title and interest in respect of said properties. So, they justify the deed of cancellation to be valid as also the subsequent sale made by defendant no. 1 so far as her share is concerned in favour of defendant no. 2. 5. With the above rival case, the trial court framed five issues and has rightly first gone to decide the issue no. 4 which concerns with the claim of the plaintiffs over the suit land as it is rightful owners on the basis of two sale-deeds Ext. 1 and 2 executed by defendant no. 1 and 3. On examination of evidence, the trial court came to conclude that there was no payment of consideration under those two sale-deeds and next going to find out as to whether notwithstanding such payment of consideration, the title over the suit land has passed in favour of plaintiff-vendees or not, viewing the recitals of the sale-deeds as well as other circumstances which emanate from evidence, the answer has been recorded against the plaintiffs. Practically, said finding has resulted the dismissal of the suit. Practically, said finding has resulted the dismissal of the suit. The first appellate court in view of the challenge to the above findings taking note of the admitted case of the parties and having taken up exercise of assessment of evidence at its level being the final court of fact has not only gone to hold that there was payment of consideration and accordingly has held that by those two sale-deeds title over the property has passed in favour of the plaintiff. It has also been said that the under those two sale-deeds passing of title over the subject matter was not dependant on passing of consideration. Accordingly, the trial’s finding court having been set aside the suit has been decreed granting the reliefs to the plaintiffs as prayed for. 6. Learned counsel for the appellants submits that the lower appellate court is not correct in his finding that there has been payment of consideration under the sale-deeds vide Ext. 1 and 2 by the plaintiffs to the defendant no. 1 and 3. According to him, the recitals of those two sale-deeds are wholly ambiguous and not at all clear. Therefore, in view of the evidence establishing the surrounding circumstances in support of the intention of the parties as such that they had intended that the title of the property would pass only on payment of consideration and with a finding of non-payment of consideration based on just and proper appreciation of evidence, the trial courts view was in order which according to him has been set aside without any legal justification. It is also submitted that the lower appellate court has failed to take note of the fact that the vendors were illiterate pardanasin ladies and therefore having not gone for further examination as to whether the plaintiffs have discharged their burden proof of due execution of the sale-deeds, Ext. 1 and 2, the finding that the title over the suit land has passed to the hands of the plaintiffs is wholly unsustainable in law. It is also his submission that from the evidence when the irresistible conclusion springs up that, there has been no payment of consideration, the same had been rightly so held by the trial court. 1 and 2, the finding that the title over the suit land has passed to the hands of the plaintiffs is wholly unsustainable in law. It is also his submission that from the evidence when the irresistible conclusion springs up that, there has been no payment of consideration, the same had been rightly so held by the trial court. Next also looking at the recitals of the sale-deeds which are ambiguous and not clear on the score of passing consideration and passing of title over the land in question, the finding of the trial court on examination of evidence that parties had intended that the title would pass only on payment of consideration ought not to have been interfered by the lower appellate court. These according to him are the substantial questions of law standing to be formulated for the purpose of admission of this appeal. 7. Going to address the above submissions and side by side ascertain as to whether there arises any substantial question of law for answering in the case, this Court is called upon to examine the finding of the lower appellate court reversing the finding of the trial courts first on the score of payment of consideration in Ext. 1 and 2. It may be kept in mind that in this case out of the two vendors i.e., defendant no. 1 and 3, it is only defendant no. 1 who has come forward to challenge the sales when the other vendor who is none other than her sister i.e., defendant no. 3 does not support the assertion of defendant no. 1. So, the situation which is faced here is that out of the two vendees, when one admits to have received the consideration, the other one denies although each of them has equal interest over the subject matter of the two sale-deeds, Ext. 1 and 2 are not denied. The lower appellate court has discussed the evidence on this aspect of payment of consideration, at para – 8 of the judgment. More interestingly, this defendant no. 3 who is the sister of defendant no. 1 and co-executant of Ext. 1 and 2 are not denied. The lower appellate court has discussed the evidence on this aspect of payment of consideration, at para – 8 of the judgment. More interestingly, this defendant no. 3 who is the sister of defendant no. 1 and co-executant of Ext. 1 and 2 i.e., a co-vender has come to the witness box being examined as P.W. 4 from the side of the plaintiffs in deposing on oath about the payment of consideration and receipt of the same by her as well as her sister, the defendant no. 1. The lower appellate court has taken note of the contradiction in the evidence as pointed out by the trial court in disbelieving the evidence of P.W. 4. The view taken by the lower appellate court which is the final court of fact is that such contradiction ought not to have been given much of importance so as to entirely discard the evidence of P.W. 4, when the evidence of P.W. 1 to 3 on the point remain consistent and acceptable. Moreover, in this case when payment of consideration as recited in the deeds is to both the executants, in the absence of pleading and proof of collusion between P.W.4 and the plaintiff and both to have thus duped the defendant no.1, in this suit such defence of non-payment of consideration falls flat land so also non-passing of title for the same being dependant on it. Even if it is assumed that the defendant no.1 has not received the consideration simpliciter the matter stands between defendant nos. 1 and 3. The lower appellate court as it appears having assigned very good reasons which are acceptable has done so. Furthermore, when one of the co-executants admits the receipt of consideration and does not dispute passing of title in the absence of a finding of collusion as above, the very pleas raised are untenable. For the purpose, it has also gone to examine the evidence of defendant no. 1 examined as D.W. 3. It has taken note of the facts as deposed to by her that she has failed to state as to when she demanded the payment of consideration and also her admission that no such correspondence either was made nor any panchayati had been convened. These conducts have been taken for being adversely viewing the case of the defendant no. 1. It has taken note of the facts as deposed to by her that she has failed to state as to when she demanded the payment of consideration and also her admission that no such correspondence either was made nor any panchayati had been convened. These conducts have been taken for being adversely viewing the case of the defendant no. 1. In such state of affairs in the evidence, the lower appellate court having held that there had been payment of consideration involved under Ext. 1 and 2 by the defendant no. 1 and 3, the same cannot be either said to be based on no evidence or to have been so found taking note of inadmissible evidence. In course of hearing no such material has been shown that if the same would have been taken into consideration in its proper prospective, the finding as recorded by the lower appellate court might have been otherwise. 8. Assuming for the sake of argument that there has been no payment of consideration, firstly let the relevant recitals of Ext. 1 and 2 be glanced at. The recitals on the score of payment of consideration as well as passing of title remain the same in both sale-deeds. The Oriya version is as under:- “EHIKI NIMNA TAFASIL BIKRETA BRUTI AMBHE BIKRETA MANANKA NIJA NAME PATTA DARAJA THAI TAFASIL BRUTIRE MALIKA DAKHALKAR O SATWABAN THAI KHAJANA ADAYA DEI PAUTI HASAL KARIACHHU. BARTAMAN AMBHARA ANYATRA JAMI KRAYA KARIBA SAKASE TANKARA SAHASA DARAKAR HEBARU AMBHE AJA DINA APANARA RAJIRE TAFASIL SIRSA LIKHITA AC. 80½ DEC. ASI PURNA EK BIHAKTA DUYEE DECIMAL JAMI KU Rs. 10,000/-(DASHA HAJARA TANKA) JARASAMANARE BIKRAYA KARI UKTA JARASAMANA TANKA REJESTRI TIKAT KARAJIBARA BUJHI NEBARA STHIRA KARI TAFASIL BRUTIRU NI-SATWABAN HELU O KRETANKA MALIKA DAKHALKARA KARAI DELU.” English translated version are as follows:- “That as the vendors need money to purchase land somewhere else, so they sold the land for Rs. 10,000/-and received the money at the time of endorsement of registration ticket and they relinquished their right and title in favour of the vendees and delivered possession of same to them” 9. The above recitals of course go to show that consideration was not paid at the time of execution of sale-deeds or before hand and despite the same, it is stated that the vendors have sold the property agreeing that they would receive the consideration later. The above recitals of course go to show that consideration was not paid at the time of execution of sale-deeds or before hand and despite the same, it is stated that the vendors have sold the property agreeing that they would receive the consideration later. From this, itself the intention of the parties gets easily culled out that such passing of title was not at all dependant on passing of consideration. The trial court had overlooked this important fact and even the lower appellate court while recording the findings to the contrary, has failed to take note of this important feature. Thus, this Court finds that the erroneous view taken by the trial court that such recitals are ambiguous and not clear has been rightly rectified although not for the reasons that the lower appellate court has assigned yet for the very simple reason as aforementioned. For the aforesaid the submission of the learned counsel for the appellants fails. The appeal does not merit admission. 10. Resultantly, the appeal stands dismissed. No order as to cost.