(From The Judgment Dated ... vs Janmajaya Panigrahi
2023 Latest Caselaw 8895 Ori

      IN THE HIGH COURT OF ORISSA AT CUTTACK


                     RSA NO.359 OF 2013

(From the judgment dated 18.5.2013 and decree dated
26.6.2013 passed by learned District Judge, Sambalpur in
R.F.A. No.45/2012 dismissed the appeal and confirmed the
judgment and decreed dtd.5.11.2012 and 20.11.2012
respectively passed in C.S. No.14/05 passed by learned Civil
Judge (S.D.), Sambalpur.


     Subasini Meher

                                      ...     Appellant

                           -versus-

     Janmajaya Panigrahi
     and others
                                      ...     Respondents



  Advocates appeared in the case through hybrid mode:

  For Appellant               :       Mr. Ramakanta Mohanty,
                                          Sr. Advocate,

                                      Mrs. Sumitra Mohanty,
                                           Advocate


                                      -versus-


  For Respondent No.1:            Mr. K.A.Guru,
                                      Advocate

RSA No.359 of 2013                               Page 1 of 13
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                       CORAM:

                                      JUSTICE SASHIKANTA MISHRA

                                                    JUDGMENT

09.8.2023.

Sashikanta Mishra,J. This appeal is against the confirming judgment

passed by learned District Judge, Sambalpur on 18 th

May, 2013 followed by decree in

R.F.A. No.45/2012. The Appellant is the Defendant in

the original suit i.e. Civil Suit No.14/2005 of the court

of learned Civil Judge (Sr. Division), Sambalpur. The

suit was filed by the Plaintiff for a decree of specific

performance of contract against the Defendant

directing her to execute a fresh sale deed in his favour

in respect of the suit schedule land, alternatively, for

recovery of the consideration money paid by him with

pendent lite and future interest. The said suit was

decreed vide judgment dated 5th January, 2012

followed by decree on 20th November, 2012. The decree

was confirmed in the First Appeal.

2. For convenience, the parties are referred to as

per their respective status in the Court below.

3. The Second Appeal has been admitted on the

following substantial question of law;

"Whether the so called Agreement to sell dated 19.4.2003 with P.W.3 in which the plaintiff claims to have been substituted, could have been specifically enforced in this suit when that transaction came to an end for non-registration on a reason not attributable to the defendant-appellant and the plaintiff's own case is that he wanted the Defendant to execute a fresh Sale deed which is not backed by any agreement to sell"

. 4. The Plaintiff's case is that the suit schedule land

belongs to the Defendant, she having purchased the

same from the previous owner vide RSD No.1734 dated

9th July, 1990. She executed an Agreement on 19th

April, 2003 with one Rajaram Panda to sell Ac.0.05

dec. (Schedule 'A') for Rs.50,000/- to meet the

expenses of her daughter's marriage. She received

Rs.40,000/- in cash from said Rajaram Panda towards

advance. Being in need of further money she

approached Rajaram Panda but he refused to pay.

Under such circumstances, the defendant offered to

sell the property to the original plaintiff Sachidananda

Panigrahi (who having expired during pendency of the

suit since has been substituted by his L.Rs) for a

consideration amount of Rs.60,000/-. On 25th

January, 2003 a sale deed was scribed according to

the defendant's instruction and the original plaintiff

paid Rs.60,000/- to her in presence of witnesses,

whereupon she executed the sale deed. Out of the said

amount she repaid Rs.40,000/- to Rajaram Panda.

The sale deed however, could not be registered for

various reasons and on being approached, the

defendant remained unresponsive despite service of

registered notice on her. Hence, the suit.

5. The defendant took the plea that she wanted to

sell the land to the plaintiff and as per their

understanding the entire consideration amount was to

be paid at the time of registration, but the sale deed

was scribed when the plaintiff paid the amount

towards stamp to the Stamp Vendor. Thus, the

defendant denied the assertion that the plaintiff had

paid the consideration amount for which she did not

agree for registration of the sale deed. It is her further

stand that she being a woman was requested by the

plaintiff to put her signature on the sale deed for

completion of the procedural formalities, which she did

on good faith. Non-registration of the sale deed was not

due to her fault and she had no further agreement,

either oral or otherwise to execute another sale deed.

6. Basing on the rival pleadings, the trial Court

framed seven issues for determination including the

pivotal Issue No.2, which reads as follows;

"2.Whether the defendant entered into an agreement with the plaintiff on 25.4.2003 to sale Schedule A land and the sale deed was scribed in the same day after receipt of Rs.60,000/ towards the consideration amount?"

7. The trial Court scanned the oral and

documentary evidence in detail and found evidence to

show that the defendant had received the

consideration money of Rs.60,000/- and had executed

the sale deed in favour of the plaintiff fully knowing the

contents of the documents, but subsequently, the sale

deed could not be registered. Thus, holding that the

consideration amount was paid, the suit was decreed

by directing the defendant to register the sale deed in

favour of the plaintiff in respect of Schedule 'A' land

within two months.

8. The plaintiff carried the matter in appeal. The

First Appellate Court also looked at the oral and

documentary evidence on record and held that the

finding of the Court below regarding receipt of the

consideration amount of Rs.60,000/- by the defendant

and execution of the sale deed does not warrant any

interference more so, as the receipt of registered

notices issued by the plaintiff to the defendant had not

been disputed. On such findings, the First Appellate

Court dismissed the appeal.

9. Heard Mr. Ramakanta Mohanty, learned Senior

counsel for the Appellant-Defendant being assisted by

Mrs. Sumitra Mohanty and Mr.K.A.Guru, learned

Counsel appearing for the contesting Respondent-

Plaintiff.

10. Learned Senior counsel Mr. Mohanty submits

that once the agreement for sale with Rajaram Panda

fell through, there was no subsisting agreement for

sale between the plaintiff and the defendant so as to be

enforced in the Court of law. The sale deed though

executed was not registered and cannot be treated as a

contract capable of being enforced more so as it does

not contain any recital to suggest a prior agreement for

sale between the parties. According to Mr. Mohanty

therefore, both the Courts below have completely

misdirected themselves to treat the unregistered sale

deed as an agreement for sale for the plaintiff to

maintain a suit for its specific performance.

11. Mr. K.A.Guru, learned counsel for the

Respondent No.1, on the other hand, would argue that

admittedly the defendants offered to sell the land for

consideration of Rs.60,000/- to the original plaintiff

which was accepted. There was thus a valid contract of

sale between them. Further, as per the evidence on

record, the plaintiff had paid the total consideration

amount thereby performing his part of the contract.

The onus is therefore, on the defendant to perform her

part of the contract by registering the sale deed.

12. The basis facts are not disputed and hence, it is

not proposed to delve deep into the pleading of the

parties. It would suffice to note that as per the

defendant's own stand taken in her written statement,

she wanted to sell the suit land to the plaintiff. It is

borne out from the evidence on record that an amount

of Rs.60,000/- was paid by the plaintiff to the

defendants at the time of scribing of the deed. It is

also not disputed that the sale deed was executed

being signed by the defendant. The question that falls

for consideration on such facts is, whether the

unregistered sale deed can be treated as an agreement

for sale so as to be legally enforced. It goes without

saying that only a valid contract can be enforced

subject to the provisions of the Specific Relief Act. As

regards the effect of an unregistered sale deed, it would

be apposite to refer to Section 49 of the Registration

Act, 1908, which reads as follows;

"49. Effect of non-registration of documents required to be registered.-- No document required by section 17 1[or by any provision of the Transfer of Property Act, 1882 (4 of 1882)], to be registered shall--

(a) affect any immovable property comprised therein, or

(b) confer any power to adopt, or

(c) be received as evidence of any transaction affecting such property or conferring such power, unless it has been registered: 54 [Provided that an unregistered document affecting immovable property and required by this Act or the Transfer of Property Act, 1882 (4 of 1882), to be registered may be received as evidence of a contract in a suit for specific performance under Chapter II of the Specific Relief Act, 1877 (3 of 1877) 55, 56 [***] or as evidence of any collateral transaction not required to be effected by registered instrument.]

13. Thus while an unregistered sale deed may not be

capable of transferring title from vendor to vendee yet,

it can be used for collateral purposes as laid down in

the proviso quoted hereinabove. It is also well settled

that an unregistered sale deed tendered not as

evidence of complete sale but as proof of oral

agreement for sale can be received in evidence.

Reference may be had to the decision of the Apex Court

in the case of S.Kaladevi vs V.R.Somasundaram &

Ors; (2010) 5 SCC 401. In the said case the earlier

decision of the Apex Court in the case of K.V.Saha

and Sons (P) Ltd. vs. Development Consultant Ltd.;

(2008) 8 SCC 564 was referred to, wherein the

following principles were culled out;

"1. A document required to be registered, if unregistered is not admissible into evidence under Section 49 of the Registration Act.

2. Such unregistered document can however be used as an evidence of collateral purpose as provided in the proviso to Section 49 of the Registration Act.

3. A collateral transaction must be independent of, or divisible from, the transaction to effect which the law required registration.

4. A collateral transaction must be a transaction not itself required to be effected by a registered document, that is, a transaction creating, etc. any right, title or interest in immovable property of the

value of one hundred rupees and upwards.

5. If a document is inadmissible in evidence for want of registration, none of its terms can be admitted in evidence and that to use a document for the purpose of proving an important clause would not be using it as a collateral purpose."

It was further observed in para-15 as follows;

"15. This Court then held that the first appellate court rightly took the view that under Section 49 of the 1908 Act, an unregistered sale deed could be received in evidence to prove the agreement between the parties though it may not itself constitute a contract to transfer the property. It was held: (Kalavakurti Venkata case [(1999) 7 SCC 114] , SCC p. 119, para 11) "11. ... The document has not been presented by the respondent to the Sub-Registrar at all for registration although the sale deed is stated to have been executed by the appellant as he refuses to cooperate with him in that regard. Therefore, various stages contemplated under Section 77 of the Act have not arisen in the present case at all. We do not think, in such a case when the vendor declines to appear before the Sub-Registrar, the situation contemplated under Section 77 of the Act would arise. It is only on presentation of a document the other circumstances would arise. The first appellate court rightly took the view that under Section 49 of the Act the sale deed could be received in evidence to prove the agreement between the parties though it may not itself constitute a contract to transfer the property."

Same principle has been reiterated by the Apex

Court in a recent judgment rendered in the case of R.

Hemalatha Vs. Kasthuri; 2023 Live Law (SC) 304.

14. Coming to the facts of the present case, it is not

disputed that the unregistered sale deed was admitted

into evidence as Ext.2 obviously as evidence of an

agreement for sale and not of sale per se. The

defendant has admitted the execution of the deed. She

also admits to have not responded to the registered

notices issued by the plaintiff (Exts.4 and 5) to register

the sale deed. In such view of the matter, this Court is

of the considered view that both the Courts below have

rightly rejected the plea of the defendant and held that

the plaintiff is entitled to a decree for Specific

Performance of Contract by way of directing the

defendant to register the sale deed in favour of the

plaintiff in respect of the Schedule A land.

15. For the foregoing reasons therefore, the appeal is

found to be devoid of merit and is therefore, dismissed

but in the circumstances, without any cost.

.................................. (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: 09-Aug-2023 18:19:10