Sankarsan Behera v. Commissioner, Consolidation, Odisha, Cuttack
2017-07-12
S.K.MISHRA
body2017
DigiLaw.ai
JUDGMENT : S.K.Mishra, J. In this writ petition, the petitioner assails the judgment dated 25.11.2002 passed by learned Commissioner, Consolidation, Cuttack, opposite party no.1, in Consolidation Revision Case No.1050/1998 whereby the revision application filed under Section 36 of the Orissa Consolidation of Holdings and Prevention of Fragmentation of Land Act, 1972 (hereinafter referred to as the “Act” for brevity) was dismissed. 2. The facts of the case are not in dispute. The L.R. Plot No.180 Ac.0.14 pertaining to L.R. Khata No.167 corresponding to M.S. Plot No.180 measuring Ac.0.14 of Khata No.118. It is not disputed that the property belongs to one Subhadra Dei, W/o. Narahari, Village – Deika. She was allotted with the said land in a family partition. She transferred the land to Surendranath Behera-opposite party no.4, who is opposite party no.1 in the court of the Commissioner, vide Registered Sale Deed No.2440 dated 5.5.1958 with a condition to pay the consideration money at the time of endorsement of ticket. But when opposite party no.4 was unable to pay the aforesaid consideration money to the vendor-Subhadra Dei, she cancelled the above sale deed vide Registered Cancellation Deed No.3143 dt.28.5.1958. After that Subhadra Dei again transferred the suit land to one Upendra Behera vide Registered Sale Deed No.3144 dated 28.5.1958 on payment of lawful consideration money. Then Upendra Behera sold the disputed land to the present petitioner and Rabindranath Behera-Proforma Opposite Party No.5 (who is opposite party no.2 in the Court of the Commissioner, vide Registered Sale Deed No.5977 dated 6.12.1963 and they claimed to be in peaceful possession of the land in question since the date of purchase. 3. Hence the petitioner and proforma opposite party no.5 filed Objection Case No.1086/1996 under Section 9(3) of the Act to record the land in question by virtue of the aforesaid Deed of Sale of the years 1963. Learned Consolidation Officer, Kujanga, opposite party no.3, having heard the objection disallowed the claim of the petitioner and proforma opposite party no.5 vide order dated 22.8.1997. Being aggrieved by the order of opposite party no.3, the present petitioner preferred an appeal before the Deputy Director, Consolidation, Range-II, Cuttack, opposite party no.2, and his appeal was registered as Appeal No.49/1997. Learned opposite party no.2 by virtue of a speaking order dismissed the appeal and upheld the order of opposite party no.3 vide order dated 20.1.1998. Thereafter the petitioner has filed a revision case being Con.
Learned opposite party no.2 by virtue of a speaking order dismissed the appeal and upheld the order of opposite party no.3 vide order dated 20.1.1998. Thereafter the petitioner has filed a revision case being Con. Revision Case No.1050/1998 before opposite party no.1, which was dismissed on 25.11.2002 upholding the concurrent findings of opposite party no.2 and opposite party no.3. 4. Learned counsel appearing for opposite party no.4 contended that the petitioner does not have any right, title and possession of the land in question as it was already transferred to him by Registered Sale Deed of the year 1958 and unless that Deed is cancelled by a mutual agreement between the vendor and the vendee or by competent court of law, the cancellation Deed and sub subsequent Sale Deed are invalid. Hence it is argued that the concurrent findings recorded by three forums are correct. 5. Having heard the parties, opposite party no.1 has come to the conclusion that admittedly the disputed property was sold by Subhadra Dei on 5.5.1958 by executing a Registered Sade Deed in favour of opposite party no.4 and he is in peaceful possession of the suit land. It is also not disputed that the vendee on allegation that opposite party no.4 failed to pay the consideration money of the sale, the Registered Sade Deed was cancelled by her without consent of opposite party no.4, i.e. the vendee by execution of a Sale Deed on 28.5.1958. Opposite party no.1 took resort to the definition of sale appearing in Section 54 of the Transfer of Property Act and came to the conclusion that once the registered document is executed for a consideration to be paid in future, the title passes. Such findings of opposite party no.1, which is in consonance with the findings of two subordinate courts, are challenged in this writ petition. 6. Learned counsel for the petitioner relying upon the reported judgment of Janak Dulari Devi and another V. Kapildeo Rai and another; (2011) 6 Supreme Court Cases 555 contends that when there is execution of sale deed without payment of the consideration money or the consideration money was to be paid in future and in future the vendee fails to pay the consideration money, then they have the right to cancel the sale deed executed in favour of the defaulted vendee. 7.
7. Learned counsel appearing for opposite party no.4 relies upon the reported case of Sri Umakanta Jena and others V. Sri Raghunath Rout and others; 2010 (Supp.-II) OLR-1086 and contends that once a sale deed is executed and the same is registered, it cannot be cancelled by one of the party, only on the consent of the parties such a sale deed can be cancelled. He also relies upon paragraph-12 of the aforesaid judgment of this Court; wherein this Court has observed that the consolidation authorities are not empowered to decide whether a registered sale deed is in fact voidable document and, therefore, they do not have the requisite authority to declare a deed void. 8. Thus two important questions arose in this writ petition. They are:-(1) Whether from the intention of parties as borne out from the registered sale deed the title passes to the vender on mere execution of a registration of the deed; and (2) Whether the writ court should disturb the findings of fact and law which has been concurrently found to be correct and accepted by three courts subordinate to it by exercising writ jurisdiction under Article 226 of the Constitution of India. 9. Admittedly, in the case of Janak Dulari Devi and another V. Kapildeo Rai and another (supra), the Hon’ble Supreme Court has upheld cancellation of sale deed by the vendor alone without the consent of the vendee. It was a civil appeal against the judgment passed by the High Court of Patna in a Second Appeal. In that case a sale deed was executed by Janak Dulari Devi and it was recited in the sale deed that on payment o the price the document has been registered. The Hon’ble Supreme court at paragraph-19 of the judgment took into consideration the judgment of the High Court of Patna in the case of Baldeo Singh V. Dwarika Singh; AIR 1978 Pat. 97 at pp.99-100, i.e. paragraphs 6 and 8, and held that on the basis of the aforesaid decision it can be that it is almost settled that the question whether title passes on mere execution and registration of a deed or only on payment of consideration depends upon the intention of the parties, to be gathered from the deed.
97 at pp.99-100, i.e. paragraphs 6 and 8, and held that on the basis of the aforesaid decision it can be that it is almost settled that the question whether title passes on mere execution and registration of a deed or only on payment of consideration depends upon the intention of the parties, to be gathered from the deed. It has also been held that though the sale deed may recite that the consideration has been paid, but there is nothing to prevent the parties from adducing evidence to show that the recital is untrue and that, in fact, the consideration was not paid. The Hon’ble Supreme upheld the view that in such situation the leading of evidence to show that consideration money has not been paid, this will not be barred by Section 92 of the Evidence Act, 1872 and held that in that case the recital shows that passing of the title in contingent upon passing of consideration. The Hon’ble Supreme Court, therefore, upheld the judgment of the Patna High Court and came to the conclusion that the order passed by the Civil Court in upholding the execution of cancellation is not bad. 10. However, the facts of the present case are different. Before adverting to the facts of the case, this Court takes note of the definition of Sale appearing in Section 54 of the Transfer of Property Act, 1882 as a transfer of ownership in exchange for a price paid or promised or part-paid and part -promised. In other words, on execution of a registered deed of transfer having value of more Rs.100/-is complete if the sale price is paid or is promises to be paid in a future date or a part of the consideration money is paid and part is promised to be paid in future date. In this case, recitals, which were placed by the learned counsel for the petitioner before the Court, of the sale deed reveals that because of legal necessity she has executed the sale deed with a condition that on the date she will hand over the counter foil to opposite party no.4, opposite party no.4 will pay the consideration money. The recital further reveals that from the date of the execution of the sale deed, the vendor acquires title and possession (Dakhalkar Satuaban).
The recital further reveals that from the date of the execution of the sale deed, the vendor acquires title and possession (Dakhalkar Satuaban). Thus, this is a case of execution of a sale deed for a consideration that will be paid in a future date. So the opinion of this Court is that the right, title and possession over the land passed in favour of opposite party no.4 on the date of execution of sale deed with a promise that money will be paid in future. So the definition of sale as enshrined under Section 54 of the Transfer of Property Act, 1882 is satisfied. In this case, this Court seeks reliance upon the ratio decided by the Hon’ble Supreme Court in the case of VIDHYADHAR V. MANIKRAO AND ANOTHER; (1999) 3 SCC 573 , the Hon’ble Supreme Court has held that price paid or promised or part-paid and part-promised indicate that actual payment of the whole of the price at the time of execution of sale deed is not a sine qua non to the completion of the sale. Even if the whole of the price is not paid but the document is executed and thereafter registered, if the property is of the valued of more than Rs.100/-, the sale would be complete. Thus, this Court is of the opinion that legally the order passed by opposite party no.1 is correct and it requires no interference. 11. The second question is whether a concurrent findings of law and fact should be reconsidered in the writ petition. This Court relies upon the case of SURYA DEV RAI Vrs. RAM CHANDER RAI AND OTHERS; (2003) 6 Supreme Court Cases 675; wherein the Hon’ble Supreme Court has held that the writ of certiorari under Article 226 of the Constitution or the supervisory jurisdiction under Article 227 of the Constitution should not be exercised merely to correct the errors of fact or of law unless the error is manifest and apparent on the face of the record and a grave injustice or grave miscarriage of justice has occasioned thereby. The ratio decided by the Hon’ble Supreme Court in the case of SURYA DEV RAI Vrs.
The ratio decided by the Hon’ble Supreme Court in the case of SURYA DEV RAI Vrs. RAM CHANDER RAI AND OTHERS (supra) is still valid even though on a separate question that a writ petition against the order passed by the learned Civil Judges in suits and appeals is maintainable has been overruled by the Larger Bench of the Hon’ble Supreme Court in the case of RADHEY SHYAM AND ANOTHER VRS. CHHABI NATH AND OTHERS; (2005) 5 Supreme Court Cases 423. 12. In the larger Bench decision of Radhey Shyam and another vs. Chhabi Nath and others (supra), the aspect of limited scope of jurisdiction of the High Court in exercise of certiorari jurisdiction and supervisory jurisdiction has not been discussed or overruled. In fact, the Hon’ble Supreme Court in the case of Radhy Shyam and another vs. Chhabi Nath and others (supra) has partly followed the ratio decided in Surya Dev Rai vs. Ram Chander Rai regarding the distinction between the exercise of power under Article 226 of the Constitution for the purpose of issuing writ of certiorari and supervisory jurisdiction under article 227 of the Constitution. 13. For the aforesaid reasons, this Court places reliance in the case of Surya Dev Rai vs. Ram Chander Rai (supra). After examining various judgments of Hon’ble Supreme Court, the Honble Supreme Court in the case of Surya Dev Rai vs. Ram Chander Rai (supra) held that writ of certiorari, under Article 226 of the Constitution, is issued for correcting gross errors of jurisdiction i.e. when a subordinate court is found to have acted (i) without jurisdiction -by assuming jurisdiction where there exists none, or (ii) in excess of its jurisdiction – by overstepping or crossing the limits of jurisdiction, or (iii) acting in flagrant disregard of law or the rules of procedure or acting in violation of principles of natural justice where there is no procedure specified, and thereby occasioning failure of justice. 14. The Hon’ble Supreme Court further held that Supervisory jurisdiction under Article 227 of the Constitution is exercised for keeping the subordinate courts within the bounds of their jurisdiction.
14. The Hon’ble Supreme Court further held that Supervisory jurisdiction under Article 227 of the Constitution is exercised for keeping the subordinate courts within the bounds of their jurisdiction. When a subordinate court has assumed a jurisdiction which it does not have or has failed to exercise a jurisdiction which it does have or the jurisdiction though available is being exercised by the court in a manner not permitted by law and failure of justice or grave injustice has occasioned thereby, the High Court may step in to exercise its supervisory jurisdiction. 15. The Hon’be Supreme Court further held that be it a writ of certiorari or the exercise of supervisory jurisdiction, none is available to correct mere errors of fact or of law unless the following requirements are satisfied: (i) the error is manifest and apparent on the face of the proceedings such as when it is based on clear ignorance or utter disregard of the provisions of law, and (ii) a grave injustice or gross failure of justice has occasioned thereby. 16. The Hon’ble Supreme Court defines a patent error is an error which is self-evidence i.e. which can be perceived or demonstrated without involving into any lengthy or complicated argument or a long-drawn process of reasoning. Where two inferences are reasonably possible and the subordinate court has chosen to take one view, the error cannot be called gross or patent. 17. The Hon’ble Supreme Court held that the power to issue a writ of certiorari and the supervisory jurisdiction are to be exercised sparingly and only in appropriate cases where the judicial conscience of the High Court dictates it to act lest a gross failure of justice or grave injustice should occasion. Care, caution and circumspection need to be exercised, when any of the above said two jurisdictions is sought to be invoked during the pendency of any suit or proceedings in a subordinate court. 18. Hence following the aforesaid ratio, this Court is not inclined to exercise the jurisdiction to issue writ of certiorari. Hence the writ petition is dismissed being devoid of any merit. No costs.