(From The Judgment Dated ... vs Golakha Behari Sahu
2023 Latest Caselaw 10046 Ori

      IN THE HIGH COURT OF ORISSA AT CUTTACK

                      RSA NO.264 OF 2014

(From the judgment dated 01.3.2014 and decree dated
14.3.2014 passed by learned Addl. District Judge, Athagarh
in R.F.A. No.99/2002.

     Mukunda Prasad Behera
     and others
                                                ...        Appellants

                                  -versus-

      Golakha Behari Sahu
      and another                                ...        Respondents



  Advocates appeared in the case through hybrid mode:

       For Appellants :                     Mr. Satyabadi Mantry,
                                            Advocate

                                              -versus-

       For RespondentNo.1: Mr.Bhubananda Lenka,
                           Advocate

        For Respondent No.2: Mr.Anoop Mishra,
                                             Advocate
  ---------------------------------------------------------------------------
         CORAM:

                        JUSTICE SASHIKANTA MISHRA

                                     JUDGMENT

25.8.2023.

Sashikanta Mishra,J. This is an appeal against a partly confirming

judgment passed by the learned Addl. District Judge,

Athagarh in R.F.A. No.99/2002 on 1st March, 2014

followed by decree. The Defendants in T.S. No.1/1996

of the Court of Civil Judge (Sr.Division), Athagarh are

the appellants while the Plaintiff is the Respondent

No.1 and Defendant No.2 is the proforma respondent

No.2. The suit being filed by the Plaintiff for declaration

of his right, title and interest over 6 kadis of land

belonging to Defendant No.1 (suit land), was decreed

vide judgment passed on 8th October, 2002 followed by

decree. In First Appeal the decree was modified by

declaring the title of the Plaintiff over 4 kadis of land

only.

2. The Second Appeal has been admitted on the

following substantial question of law;

(i) Whether the order of the learned appellate Court is perverse being against the evidence already available on record?

3. For convenience, the parties are referred to as per

their respective status in the trial Court.

4. The Plaintiff's case, briefly stated, is that the suit

land corresponds to the western side of Khata No.220,

Plot No.32 measuring an area of Ac.0.01 decs. which

correspondents to Sabik Plot No.499 of Sabik Khata

No.29 of Village Matiapada. The said land belongs to

the Defendant No.1 which he acquired by way of gift

from his father vide Registered Deed No.1823 of 1986.

He sold 4 kadis from the above Khata to the Plaintiff

for consideration of Rs.15,000/- vide R.S.D. dated 30th

August, 1986 with consent to receive the consideration

money at the time of endorsement of the registration

ticket. Possession of the land was delivered and

subsequently the consideration money was paid by the

plaintiff to the Defendant No.1 at the time of

endorsement of the registration ticket. Subsequently, it

came to light that despite being a member of the

Scheduled Caste, the Defendant No.1 had sold the

land without obtaining permission as required under

Section 22 of the O.L.R. Act, as result of which the sale

was void. On being approached by the Plaintiff, the

Defendant No.1 agreed to regularize the sale, but

demanded additional amount of Rs.12,000/- from him.

The Plaintiff agreed and Defendant No.1 obtained

necessary permission from the competent authority to

sell the land. He then executed a sale deed on 12th

June, 1995 in favour of the Plaintiff for Ac.0.01 decs

(6 kadis) from western side on the condition that the

consideration money will be paid to him at the time of

endorsement of the registration ticket. As such,

possession of the land was delivered, but Defendant

No.1 did not endorse the registration ticket and

avoided on some plea or the other. Plaintiff then came

to know that the Defendant No.1 had sold 6 kadis of

land from the western side, which includes 2 kadis of

the land sold to him to Defendant No.2 without

payment of consideration after cancelling the sale deed

executed by him in favour of the Plaintiff. Defendant

No.1 also sold the balance 4 kadis of land in favour of

Defendant Nos.3 and 4. Hence, the suit was filed

claiming right, title and interest over the suit land by

virtue of the sale deed dated12th June, 1995 and

declaration that the Defendant Nos.2, 3 and 4 have

acquired no right, title and interest over the suit land,

confirmation of possession and for enforcement of the

contract to register the sale deed etc.

5. Defendant No.1 contested the suit by admitting

that the first sale deed executed on 30th August, 1996

in respect of 4 kadis of land was not valid for non-

payment of the consideration money and non-delivery

of possession to the plaintiff. It is his further case that

the sale deed executed on 12th June, 1996 was

because of threat given by the Plaintiff to him and the

contents of the sale deed were not read over and

explained to him. He denied delivery of possession and

took the plea that the sale deed had been cancelled by

a deed dated 21st June, 1995. He further took the plea

that Defendant No.2 was in possession of 6 kadis of

land since 26th September, 1986, but as the deed was

void for want of permission of the Revenue authority,

he had executed a fresh sale deed in favour of

Defendant No.2 on 21st June, 1995. He also took the

plea that he had subsequently transferred the balance

land in favour of Defendant Nos.3 and 4.

6. Basing on the rival pleadings, 7 issues were

struck by the trial Court including Issue Nos.2,4,5 and

6, which are as follows;

"2.Has the plaintiff acquired right, title, interest and possession over the suit land ?

4.Is the cancellation deed bearing No.1089 at. 26.6.1995 at the office of the Registering office, Baramba valid and legal ?

5. Has the defendant No.1 title, interest and possession over the landed properties purchased vide sale deed No.2511 dt. 26.9.1986 and sale deed No.1080 dated 21.6.1995 of the Office of the Registering Office, Baramba ?

6. Is the sale deed bearing No.1791 dt.11.12.1995 of the Office of the Registering officer, Baramba executed by defendant No.1in favour of the defendants 3 and 4 valid and legal ?"

7. To prove its case, the plaintiff examined 8

witnesses including himself as P.W.8 and exhibited two

documents namely, the two sale deeds executed by the

Defendant No.1 in his favour on 30th April, 1988 and

12th June, 1995. The Defendants examined 10

witnesses of whom, D.W.10 is Defendant No.1. They

also proved the documents marked Exts.A to G. The

trial Court took up Issue Nos.2, 4 and 6 for

consideration together at the outset. After going the

oral and documentary evidence, the trial Court held

that the original deed executed by Defendant No.1 on

30th April, 1988 is void for want of permission of the

Revenue authority. The trial Court however, found that

the second deed executed on 12th June, 1995 was

valid. As such, it was held that the unilateral

cancellation of the sale deed by Defendant No.1 on 21 st

June, 1995 is invalid. After going through the recitals

of the sale deed and the oral evidence adduced by the

parties, the trial Court held that the claim of

Defendant No.1 that he had not received the

consideration money at the relevant time is not

acceptable as he had neither filed any money suit for

recovery of the same nor had issued any notice to the

Plaintiff for payment of the same. The trial Court

accepted the plea of the Plaintiff that possession of the

purchased land was delivered to him. Thus, it was held

that the Plaintiff had acquired his right, title, interest

and possession over 6 kadis of land purchased by him

vide sale deed dated 12th June, 1995. Since the sale

transaction effected by Defendant No.1 in favour of the

other Defendants was subsequent to the deed of

cancellation, which was invalid, no title could be said

to have been acquired by the said defendants over the

suit property. The suit was thus decreed by declaring

the right, title and interest of the Plaintiff over the suit

land as per sale deed dated 12th June, 1995,

confirmation of possession and by granting liberty to

Defendant No.1 to institute a money suit for realization

of the consideration amount and by permanently

restraining the Defendants from interfering with the

possession of the Plaintiff.

8. The Defendants carried the matter in appeal

mainly on the ground that the title had not passed in

favour of the Plaintiff on the basis of R.S.D. dated 12 th

June, 1995 as it was executed on the condition that

title would not pass unless consideration amount is

paid. The First Appellate Court rejected such plea by

taking recourse to the provision under Section 92 of

the Indian Evidence Act that the recitals of the sale

deed being clear, no oral evidence is admissible as

regards its contents. The First Appellate Court

disbelieved the plea of the Plaintiff that he had paid the

consideration money to the Defendant No.1. In holding

so, the deed of cancellation was taken note of. The

First Appellate Court then scanned the oral and

documentary evidence and held that the Plaintiff did

not derive any title over excess 2 kadis conveyed to him

vide Ext.2 save and except the 4 kadis conveyed to him

vide Ext.1 and that the sale deed in respect of 6 kadis

conveyed to Defendant No.2 by Defendant No.1 got

rectified after obtaining permission under O.L.R. Act is

valid and legal. Thus, the title of the Plaintiff over 4

kadis of land conveyed earlier was declared and the

sale deed in respect of excess 2 kadis was held to be

invalid. The sale deed executed in favour of Defendant

Nos.3 and 4 were held to be void for want of

permission under the OLR Act. The judgment and

decree passed by the Trial Court was thus modified.

9. Heard Mr. S. Mantry, learned counsel for the

Appellants-Defendants and Mr. B. Lenka, learned

counsel for Respondent No.1-Plaintiff and Mr. A.

Mishra, learned counsel for Respondent No.2-

Defendnat No.2.

10. Assailing the impugned judgment, Mr. Mantry,

learned counsel for the Appellants-Defendants, would

contend that once the sale deed executed by Defendant

No.1 in favour of Plaintiff was held to be void for want

of permission under the O.L.R. Act, it has no force of

law and therefore, the First Appellate Court committed

manifest error in declaring the title of the Plaintiff over

4 kadis of land conveyed by the said deed. It is further

argued that the condition for transfer of title for

payment of consideration money, was found to have

not been paid from the evidence on record. Therefore,

it was wrong on the part of both the Courts below to

declare the title of the Plaintiff over the suit land.

11. Per contra, Mr. B. Lenka, learned counsel

appearing for the Respondent No.1-Plaintiff has argued

that the trial Court has rightly held that the unilateral

cancellation of the sale by Defendant No.1 has no force

of law. Further, notwithstanding the recitals, which are

ambiguous, Section 47 of the Registration Act provides

that title passes from the time of execution of the sale

deed.

12. As it appears from the contentions raised by the

parties, several factual aspects have been raised,

which this Court may not go into at the stage of

Second Appeal. The only question that falls for

consideration by this Court is, whether the Plaintiff

had acquired title over the suit land. As discussed

earlier, two sale deeds are pressed into service on

behalf of the plaintiff namely, R.S.D. dated 30th

August, 1986 (Ext.1) and R.S.D. dated 12th June, 1995

(Ext.2). It is admitted that Ext.1 was in relation to 4

kadis of Plot No.32 under Khata No.220 to its western

side. It is also admitted by the parties that the said

sale deed was void for want of permission of the

Revenue authority under Section 22 of the O.L.R. Act.

Thus, no title can be said to have passed by virtue of

the sale deed marked Ext.1. Though permission was

obtained subsequently yet, such permission cannot

operate to validate the invalid sale deed (Ext.1).

Learned First Appellate Court appears to have fallen

into error in holding that subsequent grant of

permission validates the void document. This is

contrary to law as permission granted under Section

22 of the O.L.R. Act can only be prospective in nature.

13. Be that as it may, it is not disputed that

Defendant No.1 executed another sale deed (Ext.2) in

favour of the Plaintiff this time in relation to 6 kadis

including 4 kadis of land sought to be transferred

earlier vide Ext.1. So essentially, the case of the parties

revolves around the effect of Ext.2, which the parties

do not dispute. The trial Court accepted the plea that

6 kadis having been sold to the Plaintiff leaving 4

kadis, Defendant No.1 sold in favour of Defendant

No.2. The trial Court also held, and according to this

Court rightly so, that the deed of cancellation (Ext.G)

has no force of law and therefore, cannot invalidate or

nullify the sale deed executed in favour of the Plaintiff

vide Ext.2. This Court, after going through the oral and

documentary evidence on record, finds nothing wrong

in such finding.

14. Coming to the finding of the First Appellate

Court, it is observed that the recitals of the sale deed

vide Ext.2 were examined and the relevant portion

thereof was considered, which is extracted below;

"I today having duly sold to you of land as schedule below for a consideration of Rs.12.000/- having agreed to receive the consideration money at the time of endorsement on the registration ticket, am executing this deed to the effect that from today you, the vendee and your successor in- interest would enjoy the property as

owner in possession thereof and would get your name mutated in the revenue papers."

(Emphasis added)

15. Thus, the intention of the parties was that

consideration money would be paid at the time of

endorsement on the registration ticket, but the title

would pass forthwith. The First Appellate Court held

that the consideration amount was not paid which

prompted Defendant No.1 to cancel the deed. Now,

regardless of the cancellation of the deed, which in any

case is invalid, can it be said that title had been passed

though the consideration amount had not been paid.

It is well settled that passing of consideration is not the

condition precedent for transfer of title and that if the

sale deed itself reflects the unequivocal intention of the

vendor of immediate conveyance of the title, the same

would suffice and title can be said to have passed.

Reference in this regard may be had to the judgment of

this Court in the case of Nrusinghanath Deb and

others vs. Banamali Panda and others; AIR 1970,

Orissa 218.

16. In the instant case, the recitals of Ext.2 clearly

reveal that the title and possession over the suit land

was passed to the Plaintiff on the date of sale itself.

The plea of the Defendants that title cannot be said to

have passed because of non-payment of the

consideration, cannot be accepted also because of the

specific recitals of the sale deed quoted hereinbefore.

The First Appellate Court appears to have been swayed

away by the so-called cancellation deed executed by

the Defendant No.1 as being proof of the fact that

consideration amount was not paid. It must be kept in

mind that the recitals of the deed (Ext.2) being clear

and unambiguous, no oral evidence is permissible to

be adduced to explain the intention of the parties.

Moreover, as per law the sale of the immovable

property entails transfer of ownership of the property

by payment of price or promise of payment of price.

Section-54 of the Transfer of Property Act defines

"Sale"as follows;

"54. "Sale" defined.- "Sale" is a transfer of ownership in exchange for a price

paid or promised or part-paid and part- promised.

Sale how made- Such transfer, in the case of tangible immovable property of the value of one hundred rupees and upwards, or in the case of a reversion or other intangible thing, can be made only by a registered instrument.

In the case of tangible immovable property of a value less than one hundred rupees, such transfer may be made either by a registered instrument or by delivery of the property.

Delivery of tangible immovable property takes place when the seller places the buyer, or such person as he directs, in possession of the property.

Contract for sale.-A contract for the sale of immovable property is a contract that a sale of such property shall take place on terms settled between the parties.

It does not, of itself, create any interest in or charge on such property."

17. Therefore, notwithstanding non-payment of

consideration, the parties having specifically agreed to

convey the title on the date of execution of the sale

deed itself, the subsequent plea of the vendor to the

contrary cannot be accepted. Having held so, it is

evident that the trial Court has rightly declared the

right, title and interest of the Plaintiff over 6 kadis of

land sold to him vide R.S.D. dated 12th June, 1995. As

a natural corollary, the Defendant Nos.2, 3 and 4

cannot be said to have acquired any title over the suit

land. Since the Defendant No.1 claims not to have

received the consideration amount of Rs.12,000/-, the

trial Court rightly granted him liberty to institute a suit

for realization of the said amount and also restrained

the Defendants from interfering with the Plaintiff's

possession. Such being the finding of this Court, the

reasoning adopted by the First Appellate Court in

holding that the Plaintiff derived title only over 2 kadis

vide Ext.2 is manifestly wrong. Strangely, the First

Appellate Court held the title of the Plaintiff to have

been conveyed over 4 kadis of land as per the earlier

sale deed vide Ext.1 despite holding that the said deed

was void for want of permission of the Revenue

authorities.

18. Thus, on a conspectus of the analysis of the oral

and documentary evidence on record coupled with the

settled position of law, this Court is of the considered

view that the judgment of the First Appellate Court in

modifying the decree passed by the trial Court cannot

be sustained.

19. In the result, the R.S.A. is disposed of by setting

aside the impugned judgment and decree passed by

the First Appellate Court and by confirming the

judgment and decree passed by the trial Court. Parties

to bear their own costs.

.................................. (Sashikanta Mishra) Judge Ashok Kumar Behera

Signature Not Verified Digitally Signed Signed by: ASHOK KUMAR BEHERA Designation: A.R.-CUM-SR.SECRETARY Reason: authentication Location: High Court of Orissa, Cuttack Date: 28-Aug-2023 10:59:21