Jagi Majhi (since dead) through L. Rs. v. Srimat Hansda
2017-11-25
A.K.RATH
body2017
DigiLaw.ai
JUDGMENT : A.K. Rath, J. Plaintiff is the appellant against an affirming judgment. The suit was for declaration of title and delivery of possession. 2. Case of the plaintiff was that he was owner in possession of the suit schedule land. Defendant managed to obtain a registered sale deed from him. The sale deed was registered on 17.10.1974 in Basta Sub-Registrar Office. He had not gone to Sub-Registrar Office, nor executed the sale deed. The suit schedule property is situated under the jurisdiction of Rasgovindapur Sub-Registrar Office in the district of Mayurbhanj. In order to bring it within the jurisdiction of Basta Sub-Registrar Office, an area of Ac.0.05/29 dec. of land in Mouza-Kusadiha had been included in the sale deed though the same was not in existence. 3. Defendant entered contest and filed a written statement stating, inter alia, that he has purchased the suit land by means of a registered sale deed on 17.10.1974 for a valid consideration. The plaintiff has delivered possession to him. He is in possession of the suit land since 1974. The plaintiff had gone to Basta and executed the sale deed. In a proceeding under Sec. 145 Cr.P.C. his possession was confirmed. 4. On the inter se pleadings of the parties, the learned trial court struck seven issues. Parties led evidence. Learned trial court came to hold that the plaintiff had been to Basta and executed the sale deed. He received the consideration amount. After sale possession was duly delivered to the defendant. It further held that the defendant has acquired title by way of adverse possession. Held so, it dismissed the suit. Unsuccessfully plaintiff challenged the judgment and decree in Title Appeal No. 7/3 of 1998, which was eventually dismissed. 5. The second appeal was admitted on the following substantial question of law enumerated in ground no.2 of the appeal memo. “Whether in view of the bar contained in Section 28 of the Indian Registration Act, the sale deed is valid ?” 6. Heard Mr. J.R. Dash, learned counsel for the appellants and Mr. Buddhiram Das, learned counsel for the respondent. 7. Mr. J.R Dash, learned counsel for the appellants argued with vehemence that the plaintiff is an illiterate person. The suit schedule property is situated within the Rasgovindapur Sub-Registrar Office in the district of Mayurbhanj. The plaintiff had not gone to Basta Sub-Registrar Office. He had not executed the sale deed.
Buddhiram Das, learned counsel for the respondent. 7. Mr. J.R Dash, learned counsel for the appellants argued with vehemence that the plaintiff is an illiterate person. The suit schedule property is situated within the Rasgovindapur Sub-Registrar Office in the district of Mayurbhanj. The plaintiff had not gone to Basta Sub-Registrar Office. He had not executed the sale deed. To attract the jurisdiction of Basta Sub-Registrar Office, a small portion of land was included in the sale deed, which was not really in existence. Burden of proof lies on the defendants to prove that the plaintiff had executed the sale deed on 17.10.1974 after understanding the contents of the same. Though defendant nos.3 and 4, attesting witness and scribe of the deed, supported the execution of the deed, but there is no material to show that the contents of the sale deed was read over and explained to the vendor and after understanding its contents he put his LTI. Merely because a document had been marked as exhibit, an objection as to its admissibility is not excluded and is available to be raised at a later stage even in appeal. In the lower appellate court the plaintiff had prayed to examine the admitted LTI of the plaintiff by an expert. Learned court below committed a manifest illegality in not sending the disputed LTI of the plaintiff appearing in the sale deed which is the admitted LTI of the plaintiff. He placed reliance on the decisions in the case of Inuganti Venkatarama v. Sobhanadri Appa Rao Bahadur Garu and others, AIR 1936 PC 91 , Sait Tarajee Khimchand and others v. Yelamarti Satyam and others, AIR 1971 SC 1865 , Ramakrushna Mohapatra and others v. Gangadhar Mohapatra and others, AIR 1958 Orissa 26, Krushna Patra and another v. Kami Bewa and another, 1988 (II) OLR 582, Parbati Bewa and after her Ananda Sha v. Baidehi Dei and another, 1988 (I) OLR 270, Officiating Common Manager, Bhingarpur Debottar Estate and another v. Brahman Nijon, Uttar Bada and Dakshinabada represented by its President and others, 1989 (II) OLR 350 and Prasanna Kumar Giri & others v. Radhashyam Paul & others 70 (199) CLT 720. 8. Per contra Mr. B. Das, learned counsel for the respondents submitted that the plaintiff was the owner of the suit property. To press his legal necessity he had executed the sale deed and received consideration.
8. Per contra Mr. B. Das, learned counsel for the respondents submitted that the plaintiff was the owner of the suit property. To press his legal necessity he had executed the sale deed and received consideration. Thereafter he delivered possession to the defendants. Both the courts below concurrently held that the plaintiff had executed the sale deed. 9. In Inuganti Venkatarama Rao (supra), it was held that where the property sought to be transferred by a deed is situated in one district, but a small strip of land situated in another district is included in the deed, without any intention on the part of the parties that it should pass under the deed but solely with a view to obtain registration in the latter district, it amounts to fraud on the law of registration, being a device to evade the Registration Act, and the registration obtained in such a way is not valid. The same view was taken in Officiating Common Manager, Bhingarpur Debottar Estate (supra). 10. In Sait Tarajee Khimchand (supra), it was held that mere marking of a document as an exhibit does not dispense with its proof. In Ramakrushna Mohapatra (supra), this Court held that objection to the admissibility of a document should be taken at the earliest stage though doubtless the absence of any such objection does not preclude a party from challenging its genuineness at a later stage. But once at the time of marking a document as an exhibit no objection is taken it necessarily follows that formal proof of the document is dispensed with and it will not be open to the party to later on say that the document should be formally proved in accordance with law. 11. The plaintiff executed the registered sale deed in favour of the defendant on 17.10.1974. Both the vendor and vendee are Scheduled Tribes. Recitals of the sale deed reveal that the contents of the sale deed was read over and explained to the vendor by the deed writer in presence of the witnesses. After understanding the contents thereof he executed the deed. Both the properties are situated in two different districts under two different Sub-Registrar Offices. There is no evidence on record that the transferor had no title over the property situated under Basta Sub-Registrar Office or he never intended to transfer the strip of land.
After understanding the contents thereof he executed the deed. Both the properties are situated in two different districts under two different Sub-Registrar Offices. There is no evidence on record that the transferor had no title over the property situated under Basta Sub-Registrar Office or he never intended to transfer the strip of land. Both the courts concurrently held that the plaintiff had been to Basta to execute the sale deed. He received the consideration amount. After sale, possession was duly delivered to the vendee. There is no perversity or illegality in the findings of the courts below. Further the plaintiff had filed an application in the court below to send the document to a handwriting expert. The court allowed the application, but then the plaintiff did not take any steps. Thus no fault can be found with the court. The substantial question of law is answered accordingly. 12. In Parbati Bewa (supra), this Court held that if a document is executed by an illiterate and/or purdanashin woman, onus is heavy on the person getting advantage under the document to establish that the contents of the document were read over and explained to her, she understood them and had independent advice at the relevant time and that the execution of the document was not only a physical act, but also a mental act. The same view was taken in Krushna Patra and Prasanna Kumar Giri (supra). The decisions in the case of Inuganti Venkatarama, Krushna Patra (supra) and Prasanna Kumar Giri are distinguishable on facts. 13. In the wake of the aforesaid, the appeal, sans merit, deserves dismissal. Accordingly, the same is dismissed. There shall be no order as to costs.