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2016 DIGILAW 602 (ORI)

Nimai Charan Deep v. Droupadi Suna

2016-08-08

D.DASH

body2016
JUDGMENT : The respondent as the plaintiff had filed the Title Suit No. 71 of 2001 in the court of Civil Judge (Sr. Division), Bolangir with the prayer for a decree of realization of Rs.28,000/- (Rupees twenty eight thousand) from the appellant defendant along with interest @ of 12% per annum from the date of registration of the sale-deed (Ext. 5) i.e., 13.01.2000 till realization, further claiming compensation of Rs.48,000/- (Rupees forty eight thousand). It may be stated here that the original claim of Rs. 28,000/- , is said to be the agreed consideration for sale of the land which is the subject matter of the sale-deed, Ext. 5 remaining unpaid by the defendant-vendee to the plaintiff-vendor. The suit having been decreed in part for recovery of sum of Rs. 28,000/- from the defendant with interest @ of Rs. 6% per annum w.e.f. 13.01.2000 till realization; the defendant being aggrieved had carried an appeal under section 96 of the Code of Civil Procedure. That having been dismissed by confirming the judgment and decree passed by the trial court, the present second appeal has been field. 3. Plaintiffs case is that she being the owner of the land as described in the registered sale-deed dated 13.01.2000 (Ext. 5) had agreed to sale the same to the defendant for consideration of Rs.28,000/-, although in the deed, it was indicated to be Rs.25,000/- which is said to be for the purpose of avoiding stamp duty wholly at the instance of the defendant. Although the sale-deed was executed on 12.01.2000 and registered on 13.01.2000, yet the consideration as agreed for the purpose of said sale is said to have not been paid by the defendant-vendee to the plaintiff-vendor. Therefore, on 13.01.200, he had executed an agreement (Ext. 1) undertaking to pay a sum of Rs.28,000/- in installments. Since the defendant had failed to pay the said amount as agreed upon, the plaintiff states to have neither delivered the original sale-deed to him nor the possession of the suit land as covered under the said deed. So, the suit came to be filed seeking the reliefs as aforesaid. The defendant denied the factum of non-payment of consideration as alleged by the plaintiff saying it to be based on falsehood. According to him, the consideration amount was agreed at Rs.25,000/- and it had been so paid. The defendant also denied to have executed the agreement, Ext. So, the suit came to be filed seeking the reliefs as aforesaid. The defendant denied the factum of non-payment of consideration as alleged by the plaintiff saying it to be based on falsehood. According to him, the consideration amount was agreed at Rs.25,000/- and it had been so paid. The defendant also denied to have executed the agreement, Ext. 1 stating therein that the consideration amount of Rs.28,000/- would be paid in installments. It is asserted that the sale-deed was also handed over to the defendant and the plaintiff had also given delivery of possession of the land in question to the defendant. However, in view of some dispute amongst the co-shares of the plaintiff, being requested, the defendant had parted with the custody of the sale-deed in good faith for resolution of their family dispute which is said to have not been redelivered despite several demands and that is now taken advantage of citing as a circumstance in support of the claim of nonpayment of consideration. 4. The trial court on such rival pleadings framed six issues. Taking up the issue concerning the ownership of the plaintiff over the land in question and her possession, the same has been answered in her favour. The other two crucial issues with regard to payment of consideration as denied by the plaintiff and asserted in the affirmative by the defendant and that concerning the agreement to have its play, on analysis of evidence both oral and documentary, the final conclusion has been that there was no payment of consideration as agreed at Rs.28,000/- by the defendant to the plaintiff. This finding has led the trial court to decree the suit. The above findings recorded by the trial court having been challenged in the first appeal have received affirmation since the lower appellate court even undertaking the exercise of examination of sustainability of those findings upon independent analysis of evidence at its level and their assessment has failed to arrive at the conclusion, contrary to the one arrived at by the trial court. Therefore, now the present second appeal has been filed under section 100 of the Code at the instance of defendant who has been unsuccessful all through in the suit and first appeal before the courts below. 5. Therefore, now the present second appeal has been filed under section 100 of the Code at the instance of defendant who has been unsuccessful all through in the suit and first appeal before the courts below. 5. Learned counsel for the appellant in course of admission hearing submits that the conclusion of the courts below that the defendant has not paid the consideration money is wholly erroneous on the face of the pleadings, the evidence on record including the recitals of the registered sale-deed, Ext. 5 which has been so stated in the memorandum of appeal as ground no. 2. 6. In order to address the above submission in ascertaining the existence of any substantial question of law in this case, I have carefully read the judgment of the courts below, particularly as regards the finding of issue no. 2 and 3 as also have gone through the rival pleadings as available in the lower court record which I had called for the purpose. 7. The factual controversy remains firstly with regard to quantum of consideration as agreed between the parties for the purpose of sale of land under Ext. 5 and secondly as regards its payment. It may be stated here that undeniably the sale-deed, Ext. 5 has been executed on 12.01.2000 and registered on 13.01.2000. The suit has been filed on 20.09.2001. All these aspects of the execution of sale-deed and its registration etc stand admitted. In such state of affairs certainly the burden of proof lies upon the plaintiff to establish her case as regards non-payment of consideration. When such are the factual controversies, the recitals of the sale-deed on those scores as per the settled law are not taken as the conclusive proof, although it may stand as a piece of corroborative evidence in either way and as the case may be. The evidence has been piloted by the plaintiff that since the defendant did not pay the consideration as agreed at Rs.28,000/- , the sale-deed though executed on 12.01.2000 was not registered on that very day. However, on the next day when defendant executed an agreement, Ext. 1 not only stating the agreed consideration correctly but also undertaking therein to pay the said amount in installments, the sale-deed, Ext. 1 was placed for registration. The plaintiff has also proved the agreement, Ext. 5 by leading acceptable evidence. However, on the next day when defendant executed an agreement, Ext. 1 not only stating the agreed consideration correctly but also undertaking therein to pay the said amount in installments, the sale-deed, Ext. 1 was placed for registration. The plaintiff has also proved the agreement, Ext. 5 by leading acceptable evidence. The Courts below have discussed all such evidence in great detail and have arrived at the finding of fact that the consideration agreed was Rs.28,000/- and that the same has not been paid. 8. So far as the challenge made by the defendant to Ext. 1, the courts below have also found out sufficient evidence on record to hold that it is none other than the defendant who had executed the same and as such he is bound by the recitals. The defendant has not been able to dispel such evidence let in by the plaintiff. In addition to the above, two other important circumstances also emerge in this case and those are the custody of the original sale-deed, Ext. 5 remaining with the plaintiff as also the evidence let in by the plaintiff as regards the non-delivery of possession of the land covered under Ext. 5 which has been established by oral evidence let in by the plaintiff. It is also seen that the defendant in the case has not taken any step in furtherance of Ext. 5 either by getting the land mutated or even by making an application in that regard. 9. In course of hearing, learned counsel for the appellant has not been able to place anything from record that that the courts below have elbowed any material evidence beyond the arena of consideration and those instead of being blown over if would have been taken into account in its proper prospective, the finding might have been otherwise. This Court also does not find that any in admissible evidence has been taken into consideration by the courts below even to derive support to the claim that the plaintiff was not paid with agreed consideration of Rs.28,000/- by the defendant. The said findings are therefore found to be well in order by just and proper appreciation of evidence. This Court also does not find that any in admissible evidence has been taken into consideration by the courts below even to derive support to the claim that the plaintiff was not paid with agreed consideration of Rs.28,000/- by the defendant. The said findings are therefore found to be well in order by just and proper appreciation of evidence. The amount having been withheld by the defendant, the order relating to the payment of interest @ of 6% per annum w.e.f. 13.01.2000 till realization cannot also be said to be a flawed one and rather has been reasonably so saddled. Thus, this Court is not in a position to accept the submission of the learned counsel for the appellant that there arises any substantial question of law for being certified for admission of this appeal. 10. Resultantly, the appeal stands dismissed and in the facts and circumstances without cost.