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2018 DIGILAW 40 (ORI)

Padlam Bodanaik v. Ghasi Kirsani

2018-01-08

A.K.RATH

body2018
JUDGMENT : Dr. A.K. RATH, J. Plaintiff no.1 is the appellant against a reversing judgment in a suit for recovery of possession. 2. The case of the plaintiffs was that the suit schedule land originally belonged to Aita Badonaik. Aita Badonaik died leaving behind him three sons, namely, Birsa, Sonia and Budha. Sonia died leaving behind him only son, plaintiff no.1. Budha died leaving behind him only son, plaintiff no.2. After death of Aita Badonaik, Budha evinced an intention to separate from the family. He was given some landed property 30 years back. Budha left the village and his whereabouts is not known. It was further pleaded that Birsa mortgaged the suit land with the defendants orally for Rs.500/-. The plaintiffs approached the defendants to deliver the suit land in the year 1977, but the defendants demanded a sum of Rs.2,500/-from them. On 9.11.1977, they sent a notice to the defendants to deliver possession of the suit land. On enquiry, the plaintiffs ascertained that the suit land was mutated in favour of the defendants in Mutation Case No.625 of 1977. Mutation was made on the false pretext that the suit land was purchased by the defendants. The defendants have no semblance of right, title and interest over the suit land. 3. The defendants filed written statement denying the assertions made in the plaint. The case of the defendants was that the suit land originally belonged to Buda Kirsani, paternal uncle of the defendants. Buda sold the said land to Birsa. Birsa and his brothers were in separate mess. They were in possession of their respective shares. The suit land fell to the share of Birsa. Birsa sold the suit land to the defendants on 19.3.1971 for a consideration of Rs.500/-by means of an unregistered deed. Thereafter the defendants were in possession of the suit land. The suit land was sold in their favour. They have right, title and interest over the suit land. 4. On the inter se pleadings of the parties, the learned trial court framed nine issues. The parties led evidence oral and documentary to substantiate their cases. The learned trial court came to hold that the suit property is the joint family property of the plaintiffs. The unregistered deed, vide Ext.A, does not contain the khata number and plot number. Exhibit-A is not a sale deed. The mutation R.O.R. neither creates nor extinguishes title. The parties led evidence oral and documentary to substantiate their cases. The learned trial court came to hold that the suit property is the joint family property of the plaintiffs. The unregistered deed, vide Ext.A, does not contain the khata number and plot number. Exhibit-A is not a sale deed. The mutation R.O.R. neither creates nor extinguishes title. Defendant no.1 is a trespasser. Held so, it decreed the suit. Aggrieved by the judgment and decree of the learned trial court, defendant no.1 filed Title Appeal No.2 of 1984 before the learned District Judge, Koraput, which was subsequently transferred to the court of the learned Additional District Judge, Koraput at Jeypore and renumbered as Title Appeal No.5/85 (2/84 of D.J). The learned appellate court held that the suit property is the separate property of Birsa. Plaintiff no.1 has no interest over it. At the instance of plaintiff no.1, the defendants cannot be evicted. The genuineness of Ext. A cannot be questioned. Exhibit-A can be used for collateral purpose. There is no bar in treating Ext. A as an agreement between Birsa and the defendants. Pursuant to Ext. A, the suit property was transferred to the defendants. The defendant no.1 can protect his possession on the strength of Ext. A though he may be a person having no title to the same. 5. The appeal was admitted on the following substantial question of law: “In the facts and circumstances of this case Ext.A (the unregistered sale deed dt.19.3.71) cannot be construed as contract to transfer for consideration, and thus provisions of Section 53-A of Transfer of property Act has no application.” 6. Heard Mr. P.V. Balkrishna, learned Advocate for the appellant. None appeared for the respondents. 7. Mr. Balkrishna, learned Advocate for the appellant submitted that in the unregistered deed, vide Ext. A, there is no mention of khata number and plot number. The same is not a sale deed. The finding of the learned appellate court is perverse. 8. The unregistered deed, vide Ext. A, has been styled as sale deed. The consideration amount was fixed at Rs.500/-. On a bare perusal of Ext. A, it is evident that there is no description of the property. There is no mention of khata number, plot number and area. By no stretch of imagination, the same can be construed as sale deed. Further the valuation of the property is more than Rs.100/-. The consideration amount was fixed at Rs.500/-. On a bare perusal of Ext. A, it is evident that there is no description of the property. There is no mention of khata number, plot number and area. By no stretch of imagination, the same can be construed as sale deed. Further the valuation of the property is more than Rs.100/-. The same is required compulsory registerable under Section 17 of the Registration Act. The learned trial court has rightly held that Ext. A is not a sale deed. The learned appellate court committed a manifest illegality in holding that there is no bar in treating Ext. A as an agreement to sale. The defendant no.1 can protect his possession on the strength of Ext. A, though he may have title over the suit property. It is nobody’s case that Ext. A is an agreement to sale. The judgment of the learned appellate court suffers from internal inconsistencies. The substantial question of law is answered accordingly. 9. A priori, the judgment of the learned appellate court is set aside and that of the learned trial court is confirmed. The appeal is allowed. Consequently, the suit is decreed. There shall be no order as to costs.