Orissa High Court
Mithila Bhoi vs Sovagini Panigrahi on 11 March, 2025
Author: Sashikanta Mishra
Bench: Sashikanta Mishra
IN THE HIGH COURT OF ORISSA AT CUTTACK
RSA No. 79 of 2012
An appeal under Section 100 Code of Civil Procedure.
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Mithila Bhoi ...... Appellant
-Versus-
Sovagini Panigrahi ..... Respondent
Advocate(s) appeared in this case:-
_______________________________________________________
For Appellant : M/s. T.R. Meher, B.K. Baral
N. Behera,Advocates
For Respondent : M/s. A.S. Paul, D. Sahoo,
M.K. Dash & P. Nanda,
(For Intervenor)
M/s. D.P.Mohanty, R.K. Nayak
T.K. Mohanty, P.K. Swain,
M. Das, R. Mohanty & A. Mishra,
Advocates
_______________________________________________________
CORAM:
JUSTICE SASHIKANTA MISHRA
JUDGMENT
11.03.2025
SASHIKANTA MISHRA, J.
This is a defendant's appeal against a
confirming judgment. The judgment passed on
27.01.2012 followed by decree by the learned Additional
District Judge, Sonepur in RFA No. 4 of 2006 is impugned
whereby, the judgment passed on 19.11.2005 followed by
decree by learned Civil Judge (Senior Division), Sonepur
in Title Suit No. 61 of 2002 was confirmed.
2, For convenience, the parties are referred to as
per their respective status before the trial Court.
3. The plaintiff filed the suit for specific
performance of contract and in the alternative, for a
direction to the defendant to refund sum of Rs. 22,500/-
with interest.
4. The plaintiff's case, briefly stated, is that the
defendant is the recorded tenant of the suit land and is in
possession thereof. She wanted to sell the suit land in
favour of the plaintiff to meet her legal necessities.
Accordingly, she entered into an agreement with the
plaintiff to sell the suit land for consideration of
Rs.40,000/-, out of which, she received an advance of
Rs.10,000/-. The registered deed of agreement was
executed on 22.11.2000, which was said to have been
scribed as per instruction of the defendant. The plaintiff
subsequently paid different amounts on different dates, in
all amounting to Rs.12,500/-. Thus, the total part
payment accepted by the defendant was Rs.22,500/-. It is
the further case of the plaintiff that she was always ready
and willing to perform her part of the contract by paying
the balance consideration amount and also offered her
readiness but the defendant avoided to execute the sale
deed in respect of the land. The plaintiff served a legal
notice on 26.07.2002 but the same evoked no response.
Hence, the suit.
5. The defendant contested the suit by filing
written statement, inter alia, challenging its
maintainability. Additionally, it was stated that she had
not entered into any agreement for sale with the plaintiff
and also denied having received any amount towards part
consideration.
6. Basing on the rival pleadings, the trial court
framed the following issues for determination:-
"(1) Whether the suit is maintainable?
(2) Whether there is cause of action to bring the
suit?
(3) Whether the suit is barred by law of
limitation?
(4) Whether the defendant has entered into an
agreement with the plaintiff to sell away the
suit land for a consideration of Rs.40,000/-?
(5) Whether the defendant has received part
consideration of Rs.10,000/- on 22.11.2000
and Rs.12,500/- on 06.04.2001, 12.07.2001
and 09.10.2001 respectively from the
plaintiff?
(6) Whether the defendant is liable to execute a
registered sale deed in favour of the plaintiff
by receiving balance consideration amount of
Rs17,500/- from her?
(7) Whether the plaintiff is entitled to get refund
of Rs.22,500/- with interest thereof from the
defendant, in case the relief of specific
performance of contract is not granted?
(8) What other relief(s) the plaintiff is entitled to?"
7. Taking up issue Nos. 4, 5, 6 and 7 for
consideration at the outset, the trial court, after analyzing
the oral and documentary evidence on record found that
the registered agreement for sale had been executed by
the defendant after receipt of part consideration amount.
Moreover there is a presumption attached to the
document as per Section 16 of the Registration Act. The
defendant's plea that she had no capacity to enter into the
contract being an illiterate lady was not accepted. Thus,
basing on the oral and documentary evidence, the trial
court was inclined to hold that the defendant entered into
the agreement and executed the same and had also
received a sum of Rs.22,500/-. The trial Court then
considered whether the plaintiff was ready and willing to
perform her part of the contract and found from the
evidence that she was so ready and willing. The trial court
therefore did not find any reason to direct the defendant
to refund the consideration amount received by her. On
such findings the suit was decreed and the defendant was
directed to execute the registered sale deed in respect of
the suit land in favour of the plaintiff after receiving the
balance consideration amount within one month.
8. The defendant carried the matter in appeal to
the District Court. Though the learned Additional District
Judge did not specifically frame points for determination
as required under Order XLI Rule 31 of CPC yet, took
note of the rival contentions raised and the issues
involved. The 1st Appellate Court took note of the fact that
the defendant in her written statement had taken only the
ground that the agreement for sale had been created for
the purpose of this case but could not prove the same to
satisfaction by adducing rebuttal evidence. It was further
found that the evidence of the plaintiff was quite clear,
consistent, convincing, credible and above reproach. As
such, it was held that she was entitled to the decree for
specific performance. The appeal was thus, dismissed.
9. Being further aggrieved, the defendant has filed
this second appeal which has been admitted on the
following substantial question of law:
"Whether the courts below have rightly held
the respondent to have discharged the burden of
proof in duly proving the agreement for sale (Ext.1)
said to have been executed by the appellant being
alive to and in consonance with the settled law and
also whether the appreciation of evidence in that
regard is perverse being oblivious of the suspicious
surrounding features emanating from evidence and
admitted facts."
10. Heard Sri T.K. Meher, learned counsel for the
defendant-appellant and Sri D.P. Mohanty, learned
counsel appearing for the plaintiff-respondent.
11. Sri Meher would argue that both the courts
below have not taken note of the fact that the contract in
question is void for uncertainty. Secondly, the so called
execution of the contract was attended by several
suspicious circumstances.
12. Per contra, Sri Mohanty would submit that both
the courts below concurrently found that the contract in
question was duly executed by the defendant and also
registered in accordance with law. Secondly, the plea of
suspicious circumstances raised has been answered
adequately by the trial court and confirmed by the 1st
Appellate Court. There is nothing to show as to how such
finding is wrong.
13. Having perused the impugned judgments and
on careful consideration of the rival contentions putforth,
this Court finds that the plaintiff proved the agreement for
sale as Exhibit-1 executed between her and the defendant
for sale of the suit land. Further, the fact of receipt of
Rs.22,500/- was also proved. As regards the question of
readiness and willingness of the plaintiff, both the courts
below have concurrently found the plaintiff to be ready to
pay the balance consideration amount to the defendant.
This is essentially a finding of fact. It has not been
demonstrated as to how such finding is wrong being either
perverse, against the weight of evidence on record or such
that no prudent person would arrive at.
14. As regards the plea of suspicious circumstances
attending the execution of the contract, it has been urged
that the defendant being an illiterate lady having no
knowledge of law, the contract has to be viewed with
suspicion. While it is true that an instrument executed by
an illiterate lady can be viewed with suspicion under
certain circumstances, but the evidence adduced in the
present case, suggests otherwise. To amplify, the trial
court found from the evidence on record that the
defendant, despite claiming to be an illiterate lady, had
endorsed her signature on the contract. Further, from the
oral evidence adduced by the parties, it was also
established that the defendant was quite capable of
entering into contract. As already stated, this Court has
found nothing so as to be persuaded to disturb the
findings of fact of both courts below. This Court therefore,
answers the substantial question of law framed to the
effect that both the courts below must be held to have
rightly held the respondent (plaintiff) to have discharged
the burden of proof by proving the contract (Exhibit-1) in
accordance with law and there is nothing to suggest that
such finding is perverse. As already stated, this Court is
not impressed with the plea of suspicious circumstances
raised by the defendant.
15. It has also not been shown as to how the terms
of the contract are void for uncertainty. Apart from the
fact that such a plea was never raised before the Courts
below, it has not been shown as what ambiguity is present
in the recitals of the contract so as to label it as uncertain.
16. For the foregoing reasons therefore, this Court
finds no reason to interfere with the concurrent findings of
fact rendered by both the courts below. Resultantly, the
appeal is held to be devoid of merit and is therefore
dismissed. There shall be no order as to costs. All pending
Interlocutory Applications also stand disposed of.
...............................
Sashikanta Mishra,
Judge
B.C. Tudu, Sr. Steno
Signed by: BHIGAL CHANDRA TUDU
Reason: Authentication
Location: Orissa High Court, Cuttack
Date: 14-Mar-2025 12:44:36
