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2017 DIGILAW 126 (ORI)

Kanduri Charan Muduli v. Banambar Bhoi

2017-01-30

A.K.RATH

body2017
JUDGMENT : Dr. A.K.Rath, J Plaintiff is the appellant against an affirming judgment in a suit for declaration that the sale deeds executed in favour of the defendant no.3 by the defendant nos.1 and 2 on 15.12.1993 vide Exts.A and B are void and inoperative, for a direction to the defendant nos.1, 2 and 3 to execute a registered sale deed in favour of the plaintiff on receipt of balance consideration of Rs.700/-from him within the stipulated period and for permanent injunction. 2. The case of the plaintiff is that the defendant nos.1 and 2 were the owners of the suit land. They entered into an agreement with him on 10.04.1989 to sell the suit land. They received a sum of Rs.2500/-from him towards advance consideration. Delivery of possession of the suit land was made by the defendants 1 and 2. He applied before the Sub-Collector, Bhubaneswar seeking permission to sell the suit land in his favour and accordingly permission was accorded by the competent authority. It is further stated that the defendant nos.1 and 2 received a further sum of Rs.300/-towards balance consideration from him on 25.12.1989. In spite of receipt of the consideration amount in part and delivery of possession in pursuance of the agreement, the defendants 1 and 2 avoided to execute the registered sale deed in his favour. Instead they executed fake sale deeds in favour of the defendant no.3 on 12.8.1993. It is further stated that soon after delivery of possession, he developed the nature of the suit land and only to harass the plaintiff, they have executed the sale deeds in favour of the defendant no. 3. 3. Pursuant to issuance of summons, defendants entered appearance and filed a written statement denying the assertions made in the plaint. It is stated that defendant no.1 was in need of money for the marriage of his daughter. To press the legal necessity, he sold the suit land to the defendant no. 3 by executing the sale deed. The defendant no.2 was also in need of money for construction of a new building and sold his land in favour of defendant no.3 by executing the sale deed. They both delivered possession of the suit land in favour of defendant no.3 who is in peaceful possession of the same. The plaintiff with a view to harass them has filed the suit. 4. They both delivered possession of the suit land in favour of defendant no.3 who is in peaceful possession of the same. The plaintiff with a view to harass them has filed the suit. 4. On the basis of the inter se pleadings, learned trial court framed three issues. The same are quoted below; “(1) Whether the defendant nos. 1 and 2 entered into a valid contract for sale of suit land in favour of the plaintiff? (2) Whether the sale deed executed by defendant nos. 1 and 2 in favour of defendant no.3 is invalid and inoperative in the eye of law? (3) To what relief, if any, the plaintiff is entitled? 5. To substantiate the case, the plaintiff had examined four witnesses and on his behalf thirteen documents had been exhibited. The defendants had examined five witnesses and on their behalf, three documents had been exhibited. Learned trial court came to hold that the plaintiff failed to prove that the agreement to sale vide Ext.1 is a valid document. He has paid a sum of Rs.2800/-to defendants 1 and 2. Accordingly, answered issue no.1. In issue no.2, learned trial court held that the registered sale deed nos.1741 dated 15.12.1993 and 1742 dated 15.12.1993 vide Exts.A and B respectively are valid documents and answered issue no.2 in favour of the defendants. With regard to issue no.3, learned trial court directed defendants 1 and 2 to refund an amount of Rs.2800/-to the plaintiff. Held so, learned trial court dismissed the suit and directed the defendants 1 and 2 to pay an amount of Rs.2800/-with pendente lite and future interest at the rate of 12% per annum from 10.4.1989 to the plaintiff. The plaintiff has unsuccessfully challenged the same before the learned District Judge, Khurda, Bhubaneswar in Title Appeal No.24/16 of 1997/1996, which was eventually dismissed. 6. The second appeal was admitted on 29.11.2002 on the following substantial questions of law; “1. Whether both the courts below were justified in ignoring Ext.1 on the ground that it has not been proved in accordance with law whereas the said document was marked exhibit without any objection ? 2. Whether the courts below committed an illegality in dismissing the suit at the same time directing refund of consideration money paid by the appellant which is alleged to be a part of consideration money ?” 7. Heard Mr. 2. Whether the courts below committed an illegality in dismissing the suit at the same time directing refund of consideration money paid by the appellant which is alleged to be a part of consideration money ?” 7. Heard Mr. Mr.G.C. Das, learned counsel for the appellant and Mr.D.P. Mohanty, learned counsel for the respondents. 8. Mr. Das, learned counsel for the appellant, argued with vehemence that the courts below are not justified in holding that the agreement to sale vide Ext.1 is not a valid document. The plaintiff has successfully established that the defendant nos.1 and 2 had entered into an agreement to sale on 10.4.1989 with the plaintiff to alienate the suit land and received a sum of Rs.2800/-towards a part consideration. Subsequently they have alienated the land in favour of defendant no.3 on 15.12.1993 by means of nominal sale deeds vide Exts.A and B. 9. Per contra, Mr. Mohanty, learned counsel for the respondents, submitted that defendants 1 and 2 were the owners of the suit land. To press their legal necessity, they alienated the suit land in favour of defendant no.3 by means of two registered sale deed on 15.12.1993, vide Exts.A and B for a valid consideration. Possession of the land was duly delivered to him. Both the courts below concurrently held that the alienation made by defendants 1 and 2 in favour of defendant no.3 is valid. The courts below categorically came to the conclusion that there is no agreement to sale between defendants 1 and 2 and the plaintiff. Both the courts below disbelieved the agreement to sale vide Ext.1. In view of the same, learned trial court has travelled beyond its jurisdiction in directing defendants 1 and 2 to refund a sum of Rs.2800/-to the plaintiff. 10. On an anatomy of the pleadings and evidence, both oral and documentary, both the courts below held that the plaintiff P.W.1 does not know who has scribed the agreement and as per whose instruction the same has been scribed. The contents of the agreement to sale were not read over and explained to the executants and the witnesses. P.W.2 could not say who scribed the agreement. He was not present when the document was prepared. The same was not read over to him nor he had gone through the contents of the same. P.W.3 was not a witness to the agreement for sale. P.W.2 could not say who scribed the agreement. He was not present when the document was prepared. The same was not read over to him nor he had gone through the contents of the same. P.W.3 was not a witness to the agreement for sale. P.W.4 also could not say the name of the scribe of the agreement. Defendant no.1 was examined as D.W.1. He deposed that he sold an area of Ac.0.04 dec. of land to defendant no.3 by means of registered sale deed for a valid consideration. He had categorically denied the suggestion to have entered into an agreement with the plaintiff for sale of the suit land. According to him, defendant no.3 is in possession of the suit land. Defendant no.2 was examined as D.W.2. He deposed that out Ac.0.07 decimal of land, Ac.0.04 decimals of land belongs to defendant no.1 and Ac.0.03 decimal of land belongs to him. He sold an area of Ac.0.03 decimal of land to the plaintiff by means of registered sale deed. Both the defendants have categorically denied to have made any agreement to sale of the suit land to the plaintiff. The plaintiff has claimed that Hata Bhoi was present at the time of execution of agreement to sale. But then he was examined as D.W.4. He categorically denied to be a witness to the agreement. Rather he deposed that defendant no.3 has purchased the suit land for a valid consideration. Defendant no.3, who was examined as defendant no.5, deposed that he has purchased the suit land by means of two registered sale deeds for a valid consideration. The courts below held that although the plaintiff has based his claim on the basis of the agreement for sale of the suit land to him by defendants 1 and 2, no such agreement was duly approved. None of the P.Ws knows about the scribe of the agreement and the evidence with regard to the payment of advance money also does not inspire any confidence when the agreement is not proved. Thus it cannot be said that any payment could be made by the plaintiff to the defendants 1 and 2 in pursuance of such agreement. Since there is no agreement to sale, the question of specific performance of contract or refund of any amount does not arise. Thus it cannot be said that any payment could be made by the plaintiff to the defendants 1 and 2 in pursuance of such agreement. Since there is no agreement to sale, the question of specific performance of contract or refund of any amount does not arise. Learned trial court travelled beyond its jurisdiction in directing defendants 1 and 2 to refund an amount of Rs.2800/-to the plaintiff while dismissing the suit. There is no perversity or illegality in the findings of the courts below. Accordingly the substantial questions of law enumerated in Ground Nos.1 and 2 are answered. 11. In the result, the appeal, sans merit, deserves dismissal. Accordingly, the same is dismissed. No costs.