Ramesh Patra vs Sukadev Patra
2024 Latest Caselaw 348 Ori

Orissa High Court

Ramesh Patra vs Sukadev Patra on 8 January, 2024

Author: D.Dash

Bench: D.Dash

           IN THE HIGH COURT OF ORISSA AT CUTTACK

                          R.S.A. NO.472 OF 2017
    In the matter of an Appeal under Section 100 of the Code of Civil
    Procedure, 1908 assailing the judgment and decree dated 07.11.2017
    and 16.11.2017 respectively passed by the learned Additional District
    & Sessions Judge, Anandapur in R.F.A. No.02/34 of 2017-16
    confirming the judgment and decree dated 29.09.2016 and 20.10.2016
    respectively passed by the learned Civil Judge, (Senior Division),
    Anandapur in Civil Suit No.08 of 2009.
                                  ----

Ramesh Patra .... Appellant

-versus-

         Sukadev Patra                          ....         Respondent
            Appeared in this case by Hybrid Arrangement
                     (Virtual/Physical Mode):

================================================ For Appellant - Mr. P. Panda, (Advocate).

                For Respondent                  -      ----------------
    CORAM:
    MR. JUSTICE D.DASH

Date of Hearing : 02.11.2023 :: Date of Judgment: 08.01.2024

D.Dash,J. The Appellant, by filing this Appeal under Section-100 of the

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

judgment and decree dated 07.11.2017 and 16.11.2017 respectively

passed by the learned Additional District & Sessions Judge, Anandapur

in R.F.A. No.02/34 of 2017-16.

The Appellant as the Plaintiff had filed the suit in the Court of

learned Civil Judge (Senior Division), Anandapur for declaring the

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agreement executed between him of the Respondent (Defendant) to be

valid and with further prayer to direct the Respondent (Defendant) to

sale the suit land in favour of the Plaintiff followed by an order of

permanent injunction.

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 Trial Court.

3. The Plaintiff's case is that the Defendant, who is an agnatic

relationship with the Plaintiff, was the owner of the suit land. The

Plaintiff has his own land located adjoining the suit land on its north.

The Plaintiff had purchased the northern land measuring Ac.0.20

decimals along with an undisputed area of Ac.0.05 decimals of

pertaining to a separate plot from the Defendant by registered sale-

deed dated 23.09.2003. The Defendant being in urgent need of money,

approached the Defendant for sale of rest Ac.0.68 decimals out of the

said plot. An agreement having been arrived at, the Defendant agreed

to purchase the same for consideration of Rs.74,800/- to be paid by the

Plaintiff. Since the Plaintiff was having no further funds to meet the

registration expenses, he wanted some time, to which the Plaintiff

acceded. In view of the above understanding, on 27.09.2003, an

agreement for sale of the suit land measuring Ac.0.68 decimals

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belonging to the Defendant was entered into between the Plaintiff and

the Defendant. The agreement did not stipulate any time for execution

of the sale-deed. However, in the month of December 2006, the

Plaintiff being able to arrange required money, asked the Defendant to

execute and register the same. The Defendant then however, deferred

on some pretext or other. The Plaintiff believed on his word and waited

for the Defendant to suo moto come forward. When the matter stood

thus, on 20.09.2003, the Plaintiff was astonished to be asked by the

Defendant to give up possession of the suit land in further expressing

that he would pay the received consideration later. The Defendant so

demanded the possession by saying that he was getting better offer for

sale of the suit land. The Plaintiff, therefore, filed the suit for Specific

Performance of Contract with other prayers.

4. The Defendant contested the suit by filing written statement.

Attacking the genuineness of the agreement for sale (Ext.1), it is stated

that the Plaintiff had obtained such agreement by using his signature

which he had lent at the time of execution of the sale-deed of other

land of Ac.0.20 decimals on 23.09.2003 in favour of the Plaintiff. It is

further stated that the Plaintiff was never delivered with the possession

of the said land nor had paid any sum towards the consideration of the

suit land to the Defendant.

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5. The Trial Court with the above rival pleadings framed as many

as six (6) issues. The crucial issue as to the genuineness of the

agreement being taken up for discussion, upon examination of

evidence in the backdrop of the rival pleadings, it has been held that

said agreement is not a valid one.

The Trial Court also disbelieved the factum of payment of

consideration for the proposed sale of the suit land to the Defendant by

the Plaintiff. With all these above findings, the suit stood dismissed.

6. The Plaintiff thus being non-suited by the Trial Court carried the

First Appeal which has also been dismissed. Hence, this Second

Appeal is at the instance of the unsuccessful Plaintiff before the Court

below.

7. Learned Counsel for the Appellant (Plaintiff) submitted that the

Courts below are not justified to hold that the agreement for sale

(Ext.1) is not valid one. He submitted that when the agreement

contains the signature of the parties as also the witnesses and it is on a

stamp paper purchased by the vendor (Defendant) under his instruction

being scribed and followed by an affidavit acknowledging the receipt

of full agreed consideration for the sale of the suit land by the

Defendant; the Courts below ought not to have ignored all these facts

established through evidence in arriving at a conclusion to the

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contrary. He further submitted that in the absence of any time being

stipulated for execution of the sale-deed in the agreement under Ext.1,

the Courts below ought not to have held that the suit filed on

04.02.2009 for specific performance of agreement dated 27.09.2003 as

not maintainable. He, therefore, urged for admission of this Appeal to

answer the above as the substantial questions of law.

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

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

plaint and written statement filed by the parties as well as the evidence,

both oral and documentary, let in by them.

9. Admittedly, the Defendant was the owner in possession of the

total land measuring Ac.0.88 decimals. It is also not in dispute that by

registered sale-deed dated 23.09.2003, he has sold away Ac.0.020

decimals out of said land to the Plaintiff for valuable consideration.

The settlement ROR, Ext.A published in the year, 1975 as well as the

registered sale-deed dated 23.09.2003, Ext.B establish that position,

which has not faced any challenge.

The question stands as to the validity of the agreement for sale,

which is the base document for the suit filed by the Plaintiff. The so

called agreement for sale is Ext.1. The Advocate who has scribed the

agreement has come to depose as P.W.2. This document, Ext.1 is

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attacked by the Defendant to have been created by the Plaintiff taking

advantage of the custody of the some signed papers which he had taken

from the Defendant; when the Defendant had executed and registered

the sale deed in his favour on 23.09.2003.

In view of such attack to Ext.1, the Court below appears to have

rightly undertaken the exercise of in-depth scrutiny of evidence on

record. When the scribe, P.W.2 has stated that said agreement had been

written under the instruction of the Defendant in presence of the

witnesses, the Courts below have not accepted the same as said

agreement, Ext.1 does not contain any such endorsement and so also

the signature of the scribe, P.W. 2 stands wanting.

The evidence of witness, P.W.3, who is a witness to the so

called agreement, has been examined as P.W.3; whereas another

witness to the said Ext.1 has been examined as D.W.2. When D.W.2

has disowned his presence at the time of preparation of Ext.1, it is his

evidence that on the request of the Plaintiff that he had lent his

signature on a blank stamp paper. P.W.3 has however stated to have

been cited as witness under the instruction of the scribe, P.W.2. He is

unable to say as to if that document is even a registering one or not. As

per his evidence, Ext.1 was prepared in the chamber of P.W.2; whereas

the Plaintiff himself examined as P.W.1 states that the agreement,

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Ext.1 had been prepared near Tahasil Office. When P.W.3 has not been

able to show that who else were present when the contents of the Ext.1

were read over and explained by P.W.2 to the Defendant and the

evidence of P.Ws.2 and 3 remained in variance with regard to the

creation of Ext.1 and more importantly, when one of the witness to the

agreement, Ext.1 i.e. D.W.2 is not supporting the execution of Ext.1

and another witness namely, Narottam has been withheld from witness

box from being examined without any explanation, the Courts below in

my considered view are wholly right in holding the agreement for sale

to have not been proved to be a valid and genuine one as to have been

duly executed by the Defendant knowing its nature, contents and

imports.

10. The Defendant's case is that the Plaintiff had utilized some of

his signed stamp papers taken from him on the date of execution of the

sale-deed on 23.03.2009 is established through the evidence that the

stamp papers used in Ext.1 has been purchased on 23.09.2003, which

is the date of execution of the sale-deed, Ext.B.

The First Appellate Court appears to have found out another

highly suspicious feature surrounding that Ext.1 that it had been

purchased at the same time, when the stamp papers used for Ext.B had

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been purchased as the serial number put by the vendor of the stamp

paper used for Ext.1 as 1219 is the number assigned to Ext.B.

In view of all these above and further taking into account

another suspicious feature as to the capacity of the Plaintiff to pay the

agreed consideration of Rs.74,800/- to the Defendant on the date of

execution of the sale-deed and then being not able to go for the

registration of the sale-deed for shortage of money to be spent for

preparation of the sale-deed and its registration; the First Appellate

Court has found to be right in accepting the Defendant's case that the

agreement is not valid and genuine one to have been so executed by

the Defendant knowing its nature and being aware of its contents. With

all these above, when the First Appellate Court has further found the

oral evidence with regard to the possession of the suit land by the

Plaintiff to be shaky and is not supported by any document, no fault is

seen with that the finding that Ext.1 is not acceptable in the eye of law.

11. Having said all these above, this Court when finds no reason or

justification to differ with the conclusion arrived at by the Courts

below on the above scores; which is sufficient to confirm the

judgments and decrees passed by the Courts below; the other limbs of

the submission of the learned Counsel for the Appellant do no more

stand for being addressed.

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Moreover, a careful reading being given to the judgments

passed by the Courts below covering the discussion of evidence in

detail, this Court finds that in ultimately arriving at the finding, no

such material evidence available on record have been overlooked or

side lined. It also does not appear that the Courts below have read

something extraneous to the evidence as standing to the aid of said

finding in basing upon it. In that view of the matter, the concurrent

findings on fact returned on detail discussions of evidence and their

examination from of all angles as have been rendered by the Courts

below are not found to be suffering from the vice of perversity.

For all the aforesaid, the submission of the learned Counsel for

the Appellant (Plaintiff) cannot be countenanced to say that there

arises any substantial question of law for being answered, meriting

admission of this Appeal.

12. In the result, the Appeal stands dismissed. However, there shall

be no order as to cost.

(D. Dash), Judge.

Narayan