Subash Chandra Samantaray (Dead) vs Kanchanabala Das (Dead) Through
2023 Latest Caselaw 12154 Ori

        IN THE HIGH COURT OF ORISSA AT CUTTACK

                    R.S.A No. 304 of 2010

  Subash Chandra Samantaray (Dead) ....            Appellants
  through his LRs & Another
                                Mr. D. P. Mohanty, Advocate


                             -Versus-

  Kanchanabala Das (Dead) through     ....          Respondents

her LRs & Others Mr. G. Mukherjee, Senior Advocate for respondent No.1(a) Ms. Samapika Mishra, Advocate for respondent Nos.1(b),(c)&(d)

And

R.S.A No. 357 of 2010

Snehalata Tripathy .... Appellant Mrs. Sumitra Mohanty, Advocate

-Versus-

Kanchanabala Das (Dead) through .... Respondents her LRs & Others Mr. D. P. Mohanty, Advocate for respondent Nos.5 & 6

CORAM:

JUSTICE R.K. PATTANAIK

DATE OF JUDGMENT:09.10.2023

1. The appellants have preferred the instant appeals under Section 100 of the Code of Civil Procedure, 1908 assailing the impugned judgment and decree promulgated in RFA No. 31 of 2003; RFA No. 70 of 2003; and RFA No. 95 of 2004 by the learned Adhoc Additional District Jude, FTC No. IV, Cuttack, whereby, the decision in T.S. No. 72 of 1997 (I) of the learned Civil Judge (Senior Division), 2nd Court, Cuttack for having decreed the suit

was confirmed on the grounds inter alia that the same is untenable in law and on account of rejection of defence plea of fraud on registration with respect to the sale deed dated 12th June, 1991. As to the appeal in R.S.A No. 357 of 2010, it is at the instance of a non-party to the suit in T.S. No.72 of 1997 on similar grounds questioning the correctness and judicial propriety of the impugned findings of learned courts below.

2. In fact, deceased respondent No.1 instituted the suit seeking reliefs, such as, right, title and interest over half of the suit land to be declared in her favour and also to set aside the sale deed i.e. RSD No.4258 dated 6th September, 1991 executed by defendant Nos. 2 and 3 (deceased respondent Nos.3 and 4) and also to declare agreement dated 19th October, 1993 between defendant Nos. 1 (deceased respondent No.3) and defendant No.4 to be not binding to her and also the agreement dated 3rd November, 1993 to be void and furthermore, restraining defendant No.1 to sale or enter into any such agreement for sale in respect of the same with injunction against defendant Nos. 4, 5 and 6 from entering upon it or raise any construction thereon and to demolish any such structure or construction already put up, in the meanwhile. The suit was contested by defendant Nos. 1 to 5. Considering the pleadings of the parties, the learned Trial Court framed as many as 16 issues and answered them all and finally, concluded that there is no fraud on registration which is claimed by the appellants with a finding that defendant Nos. 2 & 3 could not have transacted once again on 6th September, 1991 in view of the deed dated 12th June, 1991 and consequently, confirmed the right, title and interest in favour of respondent No.1 with respect to 50% share leaving the remainder of defendant No.1, as both of them had purchased schedule property vide RSD No.2504 from defendant Nos. 2 and 3. In other words, the sale deed

dated 6th September, 1991 executed by defendant Nos. 2 and 3 in favour of defendant No.1 alone was declared invalid. Furthermore, the learned Trial Court directed defendant Nos. 2 and 3 to identify the land situate within the limits of jurisdiction at Cuttack to ensure delivery of the same to deceased respondent No.1 and defendant No.1, namely, deceased respondent No.2 succeeded by respondent Nos.2(a) to 2(h). Being aggrieved of, defendant Nos. 4 and 5, defendant No.1 and the appellant in RSA No. 357 of 2010 filed the appeals in RFA No. 31 of 2003; RFA No. 70 of 2003; and RFA No. 95 of 2004 respectively. The learned Lower Appellate Court considered the evidence on record with reference to the pleadings of the parties and ultimately, concurred the view of the learned Trial Court and similarly rejected the plea of fraud on registration thereby dismissing the appeals by a common judgment. So to say, the transaction in favour of defendant No.1 exclusively dated 6th September, 1991 was declared null and void.

3. As against the impugned decision of the learned Lower Appellate Court, the appellants have knocked the doors of this Court contending that respondent No.1 relinquished her share and is also a witness to the sale deed dated 6th September, 1991, on execution of which, deceased respondent No.1 acquired exclusive interest and title over the suit land, the fact which was not duly appreciated by the learned courts below. Furthermore, the impugned judgment and decree in appeals stands questioned on the ground that the land in village-Baghua measuring Ac.0.01 decimal shown to be sold by defendant Nos. 2 and 3 to be non- existent and in the circumstances and for the reason stated, by playing fraud, the jurisdiction of the Registering Authority at Cuttack was invoked and the first deed was executed, which is, hence, invalid but the said aspect was not properly looked into

followed by an unusual direction to defendant Nos. 2 and 3 to identify the alleged plot. So, according to the appellants, the findings of the learned courts below are grossly erroneous and thus, not sustainable in law.

4. Heard Mr. Mohanty, learned counsel for the appellants (RSA No. 304 of 2010); Mr. Mukherjee, learned Senior Advocate for respondent No.1(a) and Ms. Mishra, learned counsel for respondent Nos. 1(b), (c) & (d) in (RSA No. 304 of 2010) besides Mrs. Mohanty, learned counsel for the appellant (RSA No.357 of 2010).

5. This Court by order dated 7th January, 2011 formulated the substantial questions of law principally to determine whether the sale deed dated 12.06.1991 i.e. Ext.1 is hit by fraud on registration and matter related to jurisdiction to entertain the suit at Cuttack.

6. Mr. Mohanty, learned counsel for the appellants in RSA No. 304 of 2010 would submit that undisputedly an area of Ac.0.01 decimal of land in respect plot under Khata No.328 of Mouza- Baghua in the district of Cuttack was included in the sale deed under Ext.1 dated 12th June, 1991 along with the property situate at Laxmisagar, Bhubaneswar and in so far as defendant No.2, one of the original owners of the same examined as D.W. 4 is concerned, he categorically admitted that the primary aim was for alienation of the property at Bhubaneswar and to avoid registration at Bhubaneswar, a small piece of land of the alleged Mouza was included so as to approach the Registering Authority at Cuttack. It is further submitted that the said inclusion of an imaginary property not properly described in the sale deed and despite being non-existent, without considering the plea of fraud on registration, the learned courts below could not have set aside the deed dated 6th September, 1991 declaring it to be invalid

upholding the other deed dated 12th June, 1991 executed in favour of the plaintiff and defendant No.1. Mr. Mohanty submits that the plaintiff being a signatory to the sale deed dated 6th September, 1991 did not have locus standi to challenge it and in absence of any such fraud established, the learned courts below committed gross error in rejecting the transaction in question. According to Mr. Mohanty, on a close scrutiny, the finding on the said plea of the plaintiff about fraud and impersonation cannot be believed and sustained in law, moreover, when the sale deed dated 12th June, 1991 is ex facie found to be illegal as it was a product of fraud on registration.

7. On similar grounds, Mrs. Mohanty, learned counsel for the appellant in RSA No. 357 of 2010 challenged the findings of the learned courts below by contending that there is no such land at village-Baghua, which is a non-existent plot, whereas, the entire property intended to be sold remains at Laxmisagar, Bhubaneswar, inasmuch as, the suit before the civil court at Cuttack was not maintainable as it did not have the jurisdiction at all to adjudicate the lis due to want of cause of action. It is submitted by Mrs. Mohanty that as the sale deed under Ext.1 being an outcome of fraud on registration, the same is void, illegal and inoperative in the eye of law, whereas, the deed dated 6th September, 1991 is valid and the appellant is thus having the right, title and interest over the suit property through her vendor, namely, defendant No.5.

8. On the other hand, Mr. Mukherjee, learned Senior Advocate appearing for respondent No.1(a) in RSA No. 304 of 2010 submitted that since the alleged sale deed dated 6th September, 1991 is registered at Cuttack, in view of Section 20 CPC, the civil court at Cuttack was possessed of jurisdiction to try the suit. In reply to the plea of fraud on registration with respect to the sale

deed dated 12th June, 1991, Mr. Mukherjee refers to a decision of this Court in Bhagabat Basudev & others Vrs. Api Bewa & others AIR 1974 Orissa 180. It is contended that considering the evidence of one of the vendors, namely, D.W.4, it is amply clear that after the sale deed executed on 12th June, 1991, there was delivery of possession to the vendees, namely, the plaintiff and defendant No.1 to the suit. Furthermore, Mr. Mukherjee, learned Senior Advocate refers to the evidence claiming that the father of the vendors had purchased the alleged plot through a sale deed of the year 1946 and therein the suit property bearing Plot No.2459 at village-Baghua stood described which was finally sold under the sale deed dated 12th June, 1991, so therefore, rightly, the learned courts below disbelieved its non-existence dismissing the plea of fraud on registration. Mr. Mukherjee would further submit that since the sale deed of 1946 revealed existence of property in village-Baghua, which is said to have been alienated under the sale deed dated 12th June, 1991, notwithstanding its non-existence even admitted, the plea of fraud cannot be sustained, since such selling was with a belief that the same existed in view of the sale deed executed in favour of the father of the vendors. Also referring to the evidence of D.W.4, Mr. Mukherjee, learned Senior Advocate submits that absence of consideration paid to defendant Nos. 2 and 3 by defendant No.1 at the time of execution of the sale deed dated 6th September, 1991 invalidates the entire transaction which is one of the essential conditions of sale as defined in Section 54 of Transfer of Property Act. The absence of any challenge to the sale deed dated 12th June, 1991 is yet another ground raised by Mr. Mukherjee referring to a decision of the Apex Court in the case of State of Kerala Vrs. M.K. Kunhikannan AIR 1996 SC 906. That apart, it is contended that the sale deed dated 12th June, 1991 is to prevail as it was executed earlier in point of time, so therefore, in view of the settled

position of law, the latter sale deed cannot be accepted. Lastly, citing a decision in Martin Cashin & others Vrs. Peter J. Cashin AIR 1938 PC 103, it is contended that defendant Nos. 2 and 3 were estopped from executing the deed dated 6th September, 1991 regarding the same property during the subsistence of the earlier one. Ms. Mishra, learned counsel for respondent Nos. 1(b),(c)&(d) supported the argument advanced by Mr. Mukherjee, learned Senior Advocate for respondent No.1 (a).

9. In so far as, the sale deed dated 6th September, 1991 is concerned, the plaintiff out rightly denied to be a party to the same as a witness to its execution. In fact, the defendants claimed that the plaintiff relinquished her interest. In response to the above, the plaintiff simply declined to have consented to the execution of the sale deed dated 6th September, 1991. The evidence on record has been elaborately discussed by the learned Trial Court. The plaintiff denied that she, as a token of her consent to relinquish 50% of share, signed in the documents, such as, deed of relinquishment and sale deed dated 6th September, 1991. The above deeds have been confronted to but the plaintiff stoutly denied and disputed her signatures appearing therein. In fact, impersonation is alleged by the plaintiff in the execution of the deed of relinquishment and sale deed dated 6th September, 1991. According to the learned Trial Court, defendant No.1 did not taking any step to prove the signatures on the alleged deeds, whether of the plaintiff or otherwise. The admitted signatures of the plaintiff on record, as it is made to understand, have been compared and the learned Trial Court finally concluded that the disputed ones do not appear to be of the plaintiffs'. Referring to Section 73 of the Evidence Act which enables a Court to compare disputed writings with admitted or proved one, learned Trial Court examined the signatures vis-à-vis the signatures appearing in

the sale deed dated 6th September, 1991 and deed of relinquishment and reached at a conclusion that the signatures on both the documents are completely different than the admitted ones of the plaintiff, which was so clearly visible to the naked eye. An adverse inference in view of Section 114 of the Evidence Act was also drawn by the learned Trial Court as defendant No.1 did not enter into the witness box to lead evidence referring to a case law in Iswar Vrs. Harihar 1999 (II) OLR SC 42 and other authorities.

10. One of the vendors, namely, defendant No.2 was examined as D.W.4 and it is apposite to reproduce relevant extracts of the evidence adduced by him before the Trial Court. According to D.W.4, his father purchased the land situate at Baghua through a registered sale deed in 1946 from his cousin brother but the original sale deed was misplaced. It is further deposed by D.W.4 that the land at Baghua measuring Ac.0.01 decimal was sold by him on 12th June, 1991 to the plaintiff and defendant No.1 and referred to Ext. A/3. In so far as, the sale deed dated 12th June, 1991 is concerned, according to D.W.4, the same was scribed at the office of the Sub-Registrar, Cuttack and the consideration money was paid to him and defendant No.3 and the ticket was arranged in the name of defendant No.1 and after sale, execution and registration, possession of the property was delivered. The above evidence was elicited from D.W.4 during cross- examination and he further added that the consideration of Rs.90,000/-(rupees ninety thousand) was received at a time prior to registration. It was also admitted by D.W.4 that he and his brother had been to the spot to deliver possession of the sold property. In such view of the matter, with such evidence of D.W.4, there is no denial to the fact that after the transaction, the property alienated by him and defendant No.3 was handed over

to the vendees. Interestingly, D.W.4 further narrated during such cross-examination the circumstances leading to the execution of the subsequent sale deed dated 6th September, 1991, while being aware of the consequences with the admission that he did not deliver possession of the property to defendant No.1 for the reason stated. As to the first sale deed, it was duly executed, which is not in dispute. Excluding the land at Baghua, the second sale deed was executed by defendant Nos. 2 and 3. Hence, therefore, the question is, whether such execution of sale deed dated 6th September, 1991 is valid? Once a sale deed was executed on 12th June, 1991, where was the authority for defendant Nos. 2 and 3 to enter into another transaction on 6th September, 1991 exclusively with defendant No.1? In the considered view of the Court, rightly, the learned courts below held that defendant Nos. 2 and 3 could not have executed the second sale deed leaving the plaintiff, who denied any such relinquishment of her share, which was alleged to be actuated by fraud. As it is made to understand, a deed of relinquishment dated 15th October, 1991 was confronted to the plaintiff examined as P.W.2 so also the sale deed dated 6th September, 1991 but the signatures of her appearing therein were disputed and alleged to be forged ones. It was also made to reveal through P.W.2 that the deed of relinquishment did not bear the date and month though shown to have been executed in 1993. In other words, the plaintiff declined to be a consenting party to the relinquishment deed and also the sale deed dated 6th September, 1991 by alleging fraud being played upon her at the instance of defendant No.1. Furthermore, it is interesting to take judicial notice of the fact that the deed of relinquishment was purportedly executed in 1993 long after the second sale deed arrived. The said deed of relinquishment is also an unregistered one. In any case, the Court finds that there was no authority on the part of defendant Nos. 2 and 3 to execute the sale deed dated

6th September, 1991 without the cancellation of the deed dated 12th June, 1991. The evidence on record suggests that defendant No.2 had no occasion to have met the plaintiff when the sale deeds were executed as the deed dated 12th June, 1991 and its execution was accomplished in presence of her husband. At the time of second sale deed dated 6th September, 1991, D.W.4, therefore, had no opportunity to recognize or identify P.W.2, whose presence is claimed and denied by the latter alleging impersonation. The signatures on the deeds were disputed by P.W.2, veracity of which, could not be ascertained by a scientific examination of the same with the admitted or proved ones. Nevertheless, the learned Trial Court made an attempt to compare to form an opinion with the conclusion that the ones appearing in the deeds claimed to be of P.W.2 do not tally with the admitted signatures. The learned Trial Court did not commit any error while comparing the signatures in absence of examination of the disputed signatures by a Handwriting Expert in view of Section 73 of the Evidence Act. It is settled law that in absence of any expert opinion on disputed handwritings, a court shall have to examine and consider such a point keeping in mind the basic principles coupled with its own experience and knowledge as held and observed by the Apex Court in Muralilal Vrs. State of M.P. AIR 1960 SC 531 which has in fact been placed reliance on by the learned Trial Court, which verified and examined the signatures found in the second sale deed and deed of relinquishment with that of the admitted signatures borne out of record and on such comparison, distinct difference was noticed which was either letter-wise or alphabetically. When defendant No.1 relies on the second sale deed, it was incumbent upon him to prove and satisfy that in the immediate presence of P.W.2 and with her consent, it was executed, which as the Court finds, he utterly failed to do. On a conspectus of the evidence on record, it

has to be concluded that the learned courts below correctly arrived at a conclusion regarding the absence and consent of the plaintiff vis-à-vis the second sale deed and its execution on 6th September, 1991 and with such concurrent findings on facts, there remains nothing to interfere. If at all, any such development had taken place to the effect that the sale deed dated 12th September, 1991 suffered on account of an imaginary plot being included, either cancellation or correction of it could have been resorted to, which was, however, not the case, rather, defendant No.1 and the vendors entered into another transaction on 6th September, 1991, which was alleged to be without the knowledge of the plaintiff, whose consent to the same failed to be satisfactorily established.

11. The next consideration would be, whether, the learned courts below fell into error by not concluding that Ext.1, the sale deed dated 12th June, 1991 is hit by fraud on registration. Mr. Mohanty, learned counsel for the appellants in RSA No.304 of 2010 and Mrs. Mohanty, learned counsel for the appellant in RSA No. 357 of 2010 advanced an argument in unison that Ext.1 does not carry any legal value since it included a plot at Baghua which is not in existence and that led to the execution of the second sale deed on 6th September, 1991. While contending so, a decision of this Court in Sri Sri Brahmeswar Mahadev Bije and others Vrs. Baishnab Charan Biswal and another 2018(II) CLR 748 is cited. In response to the above, Mr. Mukherjee, learned Senior Advocate referring to the decision in Bhagabat Basudev (supra) would submit that intention to practice fraud must be apparent which is primarily to be considered, whether, there was a property that could be transferred or as to which a genuine belief existed to convey the same irrespective of the extent of property intended to be transferred and the fact that the property is of lesser extent or that

the primary intention was that registration should be at a particular place by itself and in themselves shall not constitute any act of fraud, which has been held so therein. In the instant case, neither the plaintiff nor defendant No.1 did ever allege fraud at any point of time after execution of sale deed dated 12th June, 1991. The learned Trial Court referring to the deed of 1946 held the property at Baghua to physically exist but without its proper description in the first sale deed. It has been concluded that a plot is in existence at Baghua which was intended to be sold including a property situate within the limits of Bhubaneswar and hence, for any such improper description, it could not have been alleged to be a fraud on registration. Absence of proper particulars or any such deficiency while describing the land at Baghua to make good the same, the parties could have gone for necessary correction in the sale deed. However, to allege that it was a fraud played on registration and that too, at the instance of defendant No.1 reinforced by defendant Nos. 2 and 3 is something which is beyond one's comprehension. As rightly pointed out by the learned Trial Court, the vendors cannot be allowed to blow hot and cold at the same time. If there was any error apparent on the face of the sale deed dated 12th June, 1991, it was required to be corrected or cancelled but at no stretch of imagination, it could have authorised defendant Nos.2 and 3 to execute the second sale deed bypassing the first one, when they did not have the title anymore over the same. As against the above, there has been evidence on record to suggest that the father of vendors had purchased the land at Baghua through a sale deed in 1946 which is with respect to Plot No. 2459 and hence, the learned courts below held that the property to be in existence which was later conveyed to the plaintiff and defendant No.1. Even assuming for the sake of argument that the property at Baghua has no physical existence but defendant Nos. 2 and 3 apparently under a genuine

belief entered into the transaction dated 12th June, 1991 in view of the sale deed of 1946. Under such impression, if the first sale deed has been executed, it cannot be alleged to be a product of fraud. In course of argument, it is contended that defendant No.1 and for that matter, defendant Nos. 2 and 3 cannot advance a plea of non est factum when the parties were aware of the consequences of the alleged transaction and for being well educated. The Apex Court in Bismillah Vrs. Janeshwar Prasad (1990) 1 SCC 207; Ningawwa Vrs. Byrappa Shiddappa Hireknrabar (1968) 2 SCR 797; and Saunders Vrs. Anglia Building Society (1970) 3 WLR 1078 discussed the principles of non est factum outlining the parameters and the tests and acknowledged that the same are to be clearly pleaded and established. In fact, such a plea is based on the premise and pleading that the document in question to be invalid because its executor or signatory was mistaken as to the character of the same at the time of execution, a defence which is normally available under the law of contract, which allows a party thereto to escape the effect of such document. Such a plea cannot be invoked in the instant case considering the conduct of the parties morefully when the parties to the sale deed dated 12th June, 1991 were aware of the facts leading to its execution. As to the decision in Sri Sri Brahmeswar Mahadev Bije (supra), the alienation was held to be in respect of a deity's interest and therein the sale deed was executed and registered at a different place including such other land situate within the jurisdiction of the concerned Sub-Registrar which could not be proved either to be owned by the vendors or the deity, hence, apparently, found it to be non-existent and under such circumstances, it was concluded that there has been a fraud played at the time of registration and therefore, the document stands vitiated, which is not the case at hand, especially, considering the fact that there has been a land at Baghua with improper description in the sale deed

dated 12th June, 1991 or assuming it not to physically exist, fraud cannot be alleged when such execution by defendant Nos. 2 and 3 was under an impression and genuine belief on account of the sale deed of 1946 executed in favour of their father. Thus, therefore, the decision (supra), which has been placed reliance on, to buttress the argument in favour of the appellants really renders no assistance to invalidate the transaction dated 12th June, 1991.

12. Since the second sale deed has come into being during the existence of the first one which was never challenged by defendant No.1, in view of the settled law, the one executed at earlier in point of time shall have to succeed, the execution of which has not been denied by the vendors, who rather admitted the same but advanced a plea and narrated the circumstances leading to the execution of the second sale deed, which cannot and by no means be countenanced for having no probative value due to lack of title. Hence, the validity of the sale deed dated 12th June, 1991 cannot be questioned and could not have been entertained by the learned courts below on any such grounds of defendant No.1 corroborated by defendant Nos. 2 and 3. In so far as the issue vis-à-vis the jurisdiction is concerned, the Court is not persuaded to take a different view than the one expressed by the learned courts below. Accordingly, the substantial questions formulated by the Court are hereby answered. Lastly, it is to clarify that the Court refrained itself from discussing other grounds in view of the argument being chiefly confined to the above.

13. Hence, it is ordered.

14. In the result, the appeals stand dismissed.

Signature Not Verified
Digitally Signed
Signed by: BALARAM BEHERA
Designation: Personal Assistant                                          (R.K. Pattanaik)
Reason: Authentication                                                       Judge
Location: HIGH COURT OF ORISSA, CUTTACK
Date: 12-Oct-2023 10:51:31
                              Balaram