Orissa High Court
Ananda Chandra Mohapatra vs Satia Bewa & Others on 18 November, 2021
IN THE HIGH COURT OF ORISSA AT CUTTACK
RSA No.200 of 2008
Ananda Chandra Mohapatra .... Appellant
Mr.A. K. Sahoo
-versus-
Satia Bewa & Others .... Respondents
CORAM:
MR. JUSTICE D.DASH
ORDER
18.11.2021
Order No.
04. 1. This matter is taken up through Hybrid Arrangement
(Virtual/Physical Mode).
2. The Appellants, by filing this Appeal under section 100 of
the Civil Procedure Code (for short, 'the Code'), have assailed the
judgment and decree dated 09.04.2008 and 23.04.2008 respectively
passed by the learned Additional District Judge, Nayagarh in Title
Appeal No.14 of 2000.
By the said judgment, while dismissing the First Appeal
filed by these Appellants under section 96 of the Code, the First
Appellate Court has confirmed the judgment and decree dated
19.09.2000 and 19.10.2000 respectively passed by the learned Civil
Judge, Senior Division, Nayagarh in T.S. No.23 of 1996.
3. At this stage, it may be mentioned that one Aintha Swain
had been arraigned as the Defendant No.1 in the suit and he having
died during the suit, his legal representatives have come on record
in his place, who are now the Respondents 1 to 6.
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4. For the sake of convenience, in order to avoid confusion
and bring in clarity, the parties hereinafter have been referred to,
as they have been arraigned in the Suit.
5. The Plaintiff's suit is for part performance of contract
seeking a direction to Aintha and the other Defendants to execute
the sale deed in respect of the suit land in his favour. The Plaintiff's
case is that the Defendant Nos.1 and 2 being the owners of the suit
land had sold the same to him under a mutual covenant (oral
contract) on 18.06.1991 having received the agreed consideration
of Rs.11,000/- and pursuant to the same, the delivery of possession
of the suit land was given to the Plaintiff. Accordingly, he
continued to be in possession of the same. As per the oral
understanding, the Defendants 1 and 2 were to fix the date for
registration of the sale deed. They, however, avoided. The Plaintiff
having chased them for long, ultimately failed. So, notice being
finally given, as it did not yield any result, the suit has been filed.
The Defendant No.1 having died during the suit, his legal
representatives filed the written statement. However, they opted to
remain absent thereafter. The suit was contested by the minor
Defendant through his guardian (ad litem) The plaint averments as
regards oral agreement etc stood denied.
6. The Trial Court faced with the rival pleadings framed six
issues out of which, important issues are issue nos.4 and 5, i.e, as to
whether the suit land as had been sold to the Plaintiff by Defendant
Nos.1 and 2; and whether the Plaintiff is in possession over the suit
land.
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Answering the above issues together, the Trial Court has
found that the suit of the Plaintiff for the reliefs claimed is liable to
be dismissed. The unsuccessful Plaintiff then having carried the
First Appeal, has also been unsuccessful.
7. Mr.A.K.Sahoo, learned counsel for the Appellants submits
that when the Plaintiff has proved that there was a oral agreement
between him and Defendants 1 and 2, who had received the
advance consideration and were to execute the sale deed in respect
of the suit land by fixing a date and when the possession of the suit
land has been found to be with the Plaintiff, the Courts below ought
not to have dismissed the suit in entirety. He submits that on the
face of the finding as to the possession of the Plaintiff in respect of
the suit land, the same ought to have been protected by issuing
permanent injunction against the Defendants. It is further submitted
that even though the Courts below have found that the oral
agreement is not specifically enforceable, the relief of refund of
consideration ought to have been granted. According to him, all
these are the substantial questions of law standing to be answered
in this Appeal
8. Keeping in view the above submissions, I have carefully
gone through the judgments passed by the Courts below.
9. The Trial Court, on analysis of evidence, has found in clear
terms that the payment of consideration of Rs.11000/- to the
Defendant Nos.1 and 2, as has been pleaded by the Plaintiff has not
been proved through clear, cogent and acceptable evidence. It has
also been found by the Trial Court that in the absence of any
contract to transfer the suit land for consideration by writing, the
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possession of the Plaintiff cannot be protected under section 53-A
of the Transfer of Property Act.
The First Appellate Court, on reappraisal of the evidence at
its level, has arrived at the same conclusions. Thus the factual
finding on the score that the Plaintiff has failed to prove by clear,
cogent and acceptable evidence that there has been payment of
consideration for the purpose of sale of the suit land by Defendants
1 and 2 to him has been concurrently returned by the Courts below.
This Court finds no such perversity in the matter of appreciation of
evidence by the Courts below in arriving at the above conclusion.
Therefore, the submission of the learned counsel for the Appellant
that the Courts below have erred in law by not passing a decree for
refund of consideration is does not hold water.
Coming to the aspect of protection of possession of the
Plaintiff, the facts as pleaded by the Plaintiff in the Plaint being
even taken as gospel truth for a moment when made to pass
through the provisions of law contained in Section 53-A of the
Transfer of Property Act it stands clear that the Plaintiff has no case
in seeking the relief as to protection of possession as against the
Defendants taking aid of said provision.
Thus finding no such substantial question of law to be
surfacing in the case for being answered in this Appeal, this Court
dismisses the Appeal. No order as to costs is however passed.
(D. Dash),
Judge.
Basu
