Phaijan Bibi And Others vs Lal Khan And Others
2021 Latest Caselaw 12391 Ori

                   IN THE HIGH COURT OF ORISSA AT CUTTACK

                                      AHO No.35 of 1991

              Phaijan Bibi and Others                 ......             Appellants
                                             Mr. Soumya Dev Ray, Advocate

                                           -versus-
              Lal Khan and Others                     ......            Respondents

None

CORAM:

                          THE CHIEF JUSTICE
                          JUSTICE A. K. MOHAPATRA

Order No.                                ORDER
                                        03.12.2021

35. 1. This appeal by the Defendants in T.S. No.368 of 1979 is directed against the judgment dated 19th March, 1991 passed by the learned Single Judge of this Court dismissing their appeal, i.e. F.A. No.462 of 462 of 1981.

2. As noted hereinbefore, the Appellants herein are the successors-in-

interest of the original Defendant in the above suit which was filed by the Plaintiff i.e. predecessor-in-interest of the present Respondents praying for declaration of title and the consequential relief of possession in respect of the property measuring Ac.0.328 decimals in Jobra, P.S. Mangalabag, Cuttack (hereafter 'the property in question').

3. By the judgment dated 31st August, 1981, the said suit was decreed in favour of the Plaintiff. The said judgment and decree was upheld by the learned Single Judge in the impugned judgment.

4. By the order dated 27th June, 1991, while admitting this appeal, it was directed by this Court that there shall be interim stay of further proceedings in Execution Case No.205 of 1981 pending in the Court of the Sub-Judge, 1st Court, Cuttack.

5. This Court has heard the submissions of Mr. Soumya Dev Ray, learned counsel for the Appellants. None is present for the Respondents.

6. The original Plaintiff and the original Defendant are the first and second wife respectively of late Nimaji Khan who is stated to have purchased Ac.0.164 decs. of land situated in the Northern side of Plot No.334 belonging to one Karim Khan and Fakir Khan, in the name of the Defendant on 13th May, 1947 under a Registered Sale Deed dated 13th May, 1947. On 17th May, 1965 the Defendant sold the said property to the Plaintiff for a consideration of Rs.200/- by executing a Registered Sale Deed. The Plaintiff claimed to be in continuous possession of the property in question as the owner since then.

7. The case of the Plaintiff is that, she gave the sale deed to her husband for getting her name mutated. However, the Defendant took away the sale deed and thereafter executed a deed of cancellation of the sale deed on 4th March, 1968. The further case of the Plaintiff is that, the

Defendant having received the consideration money and having executed a registered sale deed in favour of the Plaintiff, had no right to cancel the said sale deed.

8. The stand of the Defendant in the written statement was of denial of due execution of the sale deed. She claimed that she could not understand the contents of the sale deed at the time it was executed, as it had never been read over and explained to her. She claimed that her husband ill-treated her and forced her to execute the sale deed, threatening to sever all ties with her and her children if she did not accede to do so. According to the Defendant, in order to maintain her relationship with her husband, she executed the nominal sale deed on 17th May, 1965 in good faith. She claimed to have subsequently executed a deed of cancellation on 4th March, 1968 to the full knowledge of the Plaintiff as well as her husband.

9. The Defendant also claimed that she had constructed a new house on the property in question; got her name mutated in the Municipal records; paid taxes in her name and was staying there continuously for more than 12 years. She further claimed that she had purchased the property from Karim Khan and Fakir Khan out of her own funds and the funds provided by her brothers and sisters.

10. In all 11 issues were framed by the trial Court for consideration. Of these, issue No.6 was whether the sale deed dated 17th May, 1968 was a nominal one; issue No.8 was whether the Plaintiff has got

right, title and interest and possession over the suit land; and issue No.9 was whether the Plaintiff is entitled to any relief.

11. The finding of the Trial Court was that the Defendant had executed the aforementioned sale deed voluntarily. Even in the deed of cancellation she did not aver that she did not know about the contents of the sale deed. The trial Court held that the sale deed was not vitiated by any misrepresentation or coercion by the husband of the Defendant as alleged by her. It was for due consideration and not a nominal one. Therefore, the title had validly passed on to the Plaintiff by virtue of the subsequent sale deed. On issue No.8, the learned Trial Court came to a conclusion that the Defendant was merely a Benamidar and it was the husband of Nimaji Khan who was the real purchaser of the property in question, from Karim Khan and Fakir Khan.

12. The plea of the Defendant of having perfected title by adverse possession was rejected by the Trial Court on the ground that she had failed to establish that plea. Further the registered sale deed was found to have detailed particulars of the land with its boundaries, plot number, khata number, area, etc.; there was no misdescription or vagueness with regard to the identity of the land. Therefore, the suit was held to be maintainable.

13. The learned Single Judge has, while concurring with the findings of the Trial Court, specifically dealt with the submission regarding applicability of the Benami Transactions (Prohibition) Act, 1988. It

was held that under Section 3 (2) of the said Act there was no prohibition to the property being purchased in the name of the ostensible owner's wife and unmarried daughter.

14. On the question whether the sale deed could be said to be vitiated since it had not been read over and explained to the Defendant, the learned Single Judge discussed the decision in Mst. Kharbuja Kuer v. Jangbahadur Rai AIR 1963 SC 1203 and of this Court in Narayan Mishra v. Champa Dibya (dead) and after her Bhabani Dei 1985 (2) O.L.R. 417. While the Defendant was declared to be illiterate but not a Pardanashin lady, her plea of being coerced by her husband into agreeing to execute the sale deed was disbelieved by the trial Court as it was not bases on any evidence.

15. The learned Single Judge discussed the evidence led and disbelieved the case of the Defendant that the registered sale deed was vitiated by fraud and coercion.

16. Having heard the submissions of Mr. Soumya Dev Ray, learned counsel for the Appellants, this Court is unable to come a conclusion different from that reached by the trial Court as well as the First Appellate Court on any of the above issues, in which concurrent findings have been rendered against the Appellants, both by the Trial court as well as the learned Single Judge.

17. Indeed, the concept of unilateral cancellation of a sale deed, which has been duly registered, is unheard of. Even otherwise, it lacks legal

sanctity. The only way to prove that a sale deed was not duly executed would be by leading evidence in the civil court.

18. Despite being provided with sufficient opportunity, the Appellants- Defendants have been unable to establish their case that the registered sale deed in question had been executed through undue influence or coercion.

19. The Court is unable to find any error committed by the learned Single Judge and therefore declines to interfere with the judgment and decree of the Trial Court.

20. The Appeal is dismissed accordingly.

21. The interim order of stay passed earlier stands vacated.

22. An urgent certified copy of this order be granted as per rules.

(Dr. S. Muralidhar) Chief Justice

(A. K. Mohapatra) Judge

S.K.Parida