Babuli @ Jhadeswar Jena vs Upendra Nath Beshra
2023 Latest Caselaw 13484 Ori

             IN THE HIGH COURT OF ORISSA AT CUTTACK

                            R.S.A. No.349 of 2016

         In the matter of an Appeal under Section 100 of the Code of
   Civil Procedure assailing the judgment and decree dated 01.03.2016 &
   11.03.2016 respectively passed by the learned District Judge,
   Mayurbhanj, Baripada in R.F.A. No.1 of 2014 confirming the
   judgment and decree dated 30.11.2013 & 06.12.2013 respectively
   passed by the learned Civil Judge, Senior Division, Baripada in Civil
   Suit No.573 of 2006.
                                   ----

        Babuli @ Jhadeswar Jena              ....         Appellant

                                  -versus-

        Upendra Nath Beshra                  ....        Respondent

Appeared in this case by Hybrid Arrangement (Virtual/Physical Mode):

For Appellant - M/s. Pravash Ch. Jena, S.J. Das, A. Das, B.S. Mishra, A. Singh (Advocates)

For Respondents -

CORAM:

MR. JUSTICE D.DASH

Date of Hearing: 16.10.2023 :: Date of Judgment: 01.11.2023 D.Dash,J. The Appellant, by filing this Appeal, under Section 100 of

Code of Civil Procedure, 1908 (for short, 'the Code'), has assailed the

judgment and decree dated 01.03.2016 & 11.03.2016 respectively

R.S.A. No.349 of 2016 {{ 2 }}

passed by the learned District Judge, Mayurbhanj, Baripada in R.F.A.

No.1 of 2014.

The Appellant, as the Plaintiff, had filed Civil Suit No.573 of

2006 in the Court of learned Civil Judge, Senior Division, Baripada for

declaration of his title over the suit land and its recovery of

possession from the Respondent (Defendant). The suit having been

dismissed, this Appellant as the unsuccessful Plaintiff had carried the

Appeal under section 96 of the Code which has also been dismissed.

2. 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.

3. Plaintiff's case is that he was the recorded tenant of the suit

land measuring Ac 0.05 decimal better described in Schedule 'A' of

the Plaint. He with his mother Laxmi were possessing the said land.

After the death of Laxmi when the Plaintiff was possessing as its

exclusive title holder, on the request of the Defendant, the Plaintiff

executed a registered sale deed on 05.09.1984 (Ext.C) in favour of

Defendant for a consideration of Rs.5000/-. It is stated that out of total

consideration, the Plaintiff received Rs.800/- from the Defendant and

the rest had not been paid. It was agreed that the rest consideration

amount would be paid on the next date. It is further stated that in the

sale deed, which was registered, there has been manipulation in

R.S.A. No. 349 of 2016 {{ 3 }}

getting it written that the entire consideration amount had been paid

which was not at all the fact. When the Plaintiff did not get the entire

consideration for the said transaction, he did not deliver the

possession of the suit land in favour of the Defendant and as such

continued to possess the suit land as before. The Plaintiff thereafter

having several times requested the Defendant to pay the balance

consideration, he remained silent. It is stated that the sale deed

standing executed by the Plaintiff in favour of the Defendant is just

on pen and paper without any legal force and effect. In view of all

these, the Plaintiff came to file the suit.

4. The Defendant, in his written statement, while traversing the

plaint averments has asserted to have purchased the suit land from

the plaintiff on payment of full consideration which was agreed at

Rs.5000/-. It was stated that after the Plaintiff sold the suit land to

Defendant, he made an application for mutation of the suit land in his

favour and the Plaintiff then had never objected to the same. It is

stated that the Plaintiff has no further right, title and interest over the

suit property after he has sold the same and the suit is not

entertainable.

5. The Trial Court, on the rival pleadings, having framed five

issues, has answered the crucial issue upon detail discussion of

evidence and their evaluation in holding that the sale deed dated

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05.09.1984 is valid and binding upon the parties. The Plaintiff had

sold the property in suit to the Defendant and thereby the title over

the same has passed an the hands of the Defendant.

The Plaintiff thus being non-suited by the Trial Court when

carried the First Appeal, there also he has tasted the defeat.

6. Mr. P. C. Jena, learned counsel for the Appellant (Plaintiff)

submitted that the findings of the Courts below that the registered

sale deed dated 05.09.1984 is valid and binding upon the parties more

importantly, the Plaintiff is not the outcome of just proper

appreciation of evidence on record in the backdrop of the pleadings

keeping in view the settled position of law holding the field and that

suffers from the vice of perversity. He, therefore, urged for admission

of this Appeal to answer the above as the substantial questions of

law.

7. Keeping in view the submissions made, I have carefully read

the judgments passed by the Courts below. I have also gone through

the rival pleadings placed by the learned Counsel for the parties in

course of hearing.

8. Admitted factual settings stand that the Plaintiff by filing the

suit has prayed for declaration of his right, title, interest over the suit

property which stands covered under the registered sale deed dated

05.09.1984 executed by him in favour of the Defendant. The said

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registered sale deed dated 05.09.1984 was thus made the subject

matter of challenge in a suit instituted on 27.12.2006. The Plaintiff

claims that despite execution of such sale deed and its registration in

favour of the Defendant, he had not parted with the possession of the

same and it was because of non-payment of total consideration

amount. The Plaintiff admits to have received part consideration.

9. The settled position of law is that on execution and registration

of a sale deed, the title of the property involved in that transaction

gets transferred from the vendor to the vendee and it simply does not

remain arrested for non-payment of consideration either in whole or

in part. When a question arises, whether the title has passed to the

hands of the vendee despite non-payment of consideration, it is

required to be seen as to what the parties mainly the vendor had

intended while executing the sale; whether there was the intention

that the passing of title would be dependent upon passing of

consideration or it would be independent of passing of consideration.

In order to rule upon that the passing of title was dependent on

passing of consideration, first of all it has to be proved that agreed

consideration had not been paid and secondly all such surrounding

circumstances in support of intention that the vendor had intended

that the title would passed on receipt of consideration had to be

shown. The surrounding circumstances cannot always be

R.S.A. No. 349 of 2016 {{ 6 }}

exhaustively described but some such are the custody of the original

document, the possession of the immovable property and its

enjoyment, the dealing of the said property in the records maintained

by the authority, payment of land revenue etc.

In the present suit, there is absolutely no pleading in that light

that the passing of the title of the land covered under the registered

sale deed was dependent on passing of full consideration. The

original deed is not in custody of the Plaintiff and his explanation on

that score are not per se acceptable. Had it been the intention of the

parties that the original document ought not have been allowed to be

taken by the vendee knowing fully well that said document is a

document of title, which would be used in claiming the property by

the vendee and would be recognized by all the authorities as such.

The land in question has been mutated on the strength of said

purchase which had not been objected to. Moreover, the Plaintiff

having executed the sale deed on 05.09.1984 has came to file the suit

on 27.12.2006 advancing the prayer of declaration of right, title

interest and possession over the suit property in directly seeking a

declaration of the sale deed as void. Having gone through the

pleadings and the evidence as discussed by the Courts below, this

Court is unable to accept the submission of the learned counsel for

the Appellant that the Courts below having concurrently rendered

the finding that the Plaintiff has made out no case for being granted

R.S.A. No. 349 of 2016 {{ 7 }}

with the reliefs as prayed for are not right both on facts and law.

Therefore, this Court finds that there surfaces no substantial question

of law for being answered in this Appeal, meriting its admission.

10. In the result, the Appeal stands dismissed. There shall,

however, be no order as to cost.

(D. Dash), Judge.

Gitanjali

Signature Not Verified Digitally Signed Signed by: GITANJALI NAYAK Reason: Authentication Location: OHC Date: 02-Nov-2023 12:50:42

R.S.A. No. 349 of 2016