Most. Sheela Devi @ Bhagwati Devi & Ors v. Most. Sanjula Devi & Ors

Judgment

1. Heard the learned counsel, Mr. J.S. Arora, appearing on behalf of the appellant under Order 41 Rule 11 of the Code of Civil Procedure.

2. The defendants respondents appellants have filed this Second Appeal against the Judgment and Decree dated 19th January, 2011 passed by the learned Addl. District Judge, Fast Track Court No.1, Madhepura in title appeal No.19 of 2008 whereby the learned lower appellate Court allowed the appeal and reversed the Judgment of the trial Court dated 3.3.2008 passed by the learned Munsif, Madhepura in title suit No.116 of 2001.

3. The plaintiff respondent filed the aforesaid suit for

declaration of his title and confirmation of possession over the suit land and also for declaration that the sale deed dated 19.6.1985 is illegal, without consideration and null and void. During the pendency of the suit, amendment application was filed by the plaintiff and prayed for recovery of possession on the ground that 2 Patna High Court SA No.164 of 2011 (5) dt.21-08-2013 the defendants dispossessed him.

4. The plaintiff claimed the aforesaid relief alleging that the husband of the plaintiff No.1 negotiated to sell the suit land with the husband of the defendant No.1 for a consideration of Rs.10,000/-. It was agreed that after execution and registration of the sale deed, Mahakant Mishra will receive the consideration money from Shivnandan Yadav and thereafter, he will handover the Chirkut, i.e., registration receipt. Mahakant Mishra subsequently several times requested Shivnandan Yadav to pay the consideration money and sent notice to him but he did not pay a single farthing. Therefore, subsequently, Mahakant Mishra cancelled the sale deed on 19.5.1985. The chirkut was never handed over to the defendant and the original sale deed was withdrawn by Mahakant Mishra.

5. The defendant appellant filed contesting written statement alleging that the suit is not maintainable. The defendant’s ancestor Shivnandan Yadav had paid the entire consideration amount, i.e.,Rs.10,000/- to Mahakant Mishore in presence of the respectable persons after the contract and then only Mahakant Mishra executed and registered the sale deed. By taking Shiv Nandan Yadav in confidence Mahakant Mishra assured that he will hand over the Chirkut to him after signing over it. Shivnandan was rustic and illiterate person and relying on Mahakant Mishra agreed to receive the Chirkut subsequently. The scribe of the sale deed and Mahakant Mishra were relative. After receiving the Chirkut Shivnandan Yadav handed over the Chirkut to 3 Patna High Court SA No.164 of 2011 (5) dt.21-08-2013 the scribe to obtain the sale deed but instead of handing over, the sale deed to him, he gave it to the plaintiff’s ancestor. No money is due and after execution and registration of the deed, the title passed to the defendant and the defendants are in possession of the suit property. The story of dispossession during the pendency of the suit in the year 2004 is false.

6. The trial Court recorded the finding that the plaintiff failed to prove possession over the suit land and that entire consideration money was paid to the vendor before the execution and registration of the sale and the recital regarding the payment of consideration money after execution and registration of the sale deed is illegal and wrong. Accordingly, the plaintiff suit was dismissed by the trial Court. On appeal, the lower appellate Court recorded the finding that no consideration money was paid by the defendant to the plaintiff and that the defendant dispossessed the plaintiff during the pendency of the suit. Therefore, title did not pass to the defendant by the sale deed. Accordingly, the lower appellate Court reversed the Judgment and Decree of the trial Court.

7. The learned counsel, Mr. J.S. Arora, firstly submitted that while reversing the Judgment of the trial Court, the lower appellate Court has not met the reasonings of the trial Court. Secondly, that in the sale deed itself, it was recited that consideration amount was paid and possession was delivered and title passed to the defendant, therefore, the Judgment passed by the lower appellate Court contrary to the recital in the registered 4 Patna High Court SA No.164 of 2011 (5) dt.21-08-2013 sale deed is vitiated. In support of his contention, the learned counsel relied upon the decision of the Hon’ble Supreme Court A.I.R. 1998 SC 3006 Bishundeo Narain Rai (dead) by L.Rs. Vs. Anmol Devi and 2009 (3) P.L.J.R. 529. On the strength of these decisions, the learned counsel submitted that the sale deed could not have been unilaterally cancelled by the vendor. At best the vendor could have instituted the suit for recovery of the consideration amount. Because on the registration of the sale deed, title passed to the defendant in the year 1985 itself and the suit has been filed in the year 2001. The learned counsel further submitted that although there was no pleading regarding adverse possession because defendant was in possession of the property, the Court below could have considered the acquisition of title by adverse possession.

8. From perusal of the lower appellate Court Judgment, it appears that the lower appellate Court has considered the reasonings of the trial Court and not that without meeting the reasonings, the Judgment has been passed. Moreover after considering the evidences, the lower appellate Court has recorded the finding that consideration amount was never paid.

9. In the case of AIR 1999 SC 2216 Arumugham (dead) by L. Rs. Vs. Sundarambal, the Hon’ble Supreme Court considering the earlier decision in the case of V. Ramachandra Ayyar Vs. Ramalingam Chettiar A.I.R. 1963 SC 302 held that Second appellate Court cannot interfere with the Judgment of the first appellate Court on the ground that the first appellate Court 5 Patna High Court SA No.164 of 2011 (5) dt.21-08-2013 had not come to close grips with the reasons of the trial Court. It is open to the First Appellate Court to consider the evidence adduced by the parties and give its own reasons for accepting the evidence on one side or rejecting the evidence on other side. It is not permissible for the second appellate Court to interfere with such finding of the first appellate Court only on the ground that the reasons of the trial Court has not been met by the appellate Court.

10. In the present case, during course of argument, it was submitted that the plaintiff himself admitted in evidence that his father accepted before the registry that he has accepted the consideration amount which was considered by the trial Court but it was not taken into account by the lower appellate Court. However, from perusal of the Judgment of the lower appellate Court, it appears that the lower appellate Court considered this reasonings of the trial Court and the evidences of the plaintiff also and thereafter he has categorically recorded the finding that no consideration amount has been paid.

11. The decision relied upon by the learned counsel for the appellant, i.e., A.I.R. 1998 SC 3006 Bisundeo Narayan Rai (Supra) is concerned, from perusal of the said decision, it appears that in that case consideration amount was admittedly paid by the purchaser. The amount retained to be paid was to be paid to the mortgagee. Moreover, after considering this decision recently, the Hon’ble Supreme Court in the case of Janak Dulari Devi Vs. Kapildeo Rai 2011 (6) SCC 555 held that “as per practice of ta thubzul badlain prevalent in Bihar (that is, title to the 6 Patna High Court SA No.164 of 2011 (5) dt.21-08-2013 property passing to the purchaser only when there is exchange of equivalents), where a sale deed recites that the entire sale consideration has been paid and possession has been delivered, but the registration receipt is retained by the vendor and possession of the property is also retained by the vendor, as the agreed consideration (either full or a part) is not received, irrespective of the recitals in the sale deed, the title would not pass to the purchaser, till payment of the entire consideration to the vendor and the registration receipt is obtained by the purchaser exchange In such case, on the sale deed being executed and registered, the registration receipt (which is issued by the Sub-Registrar) authorizing the holder thereof to receive the registered sale deed on completion of the registration formalities, is received and retained by the vendor and is not given to the purchaser. The vendor who holds the registration receipt will either receive the registered document and keep the original sale deed in his custody or may keep the registration receipt without exchanging it for the registered document from the Sub-Registrar, till payment of consideration is made. When the purchaser pays the price (that is, the whole price or part that is due) on or before the agreed date, he receives in exchange, the registration receipt from the vendor entitling him to receive the original registered sale deed, as also the possession. If the payment is not made as agreed, the vendor could repudiate the sale and refuse to deliver the registration 7 Patna High Court SA No.164 of 2011 (5) dt.21-08-2013 receipt/registered document, as the case may be, which is in his custody, and proceed to deal with the property as he deems fit, by ignoring the rescinded sale.”

12. Here, the lower appellate Court on the basis of evidence categorically recorded the finding that the defendant has dispossessed the plaintiff during the pendency of the suit. In my opinion, therefore, all the submissions made by the learned counsel for the appellant have already been decided / answered by Honble Supreme Court in the case of Janak Dulari Devi case (Supra) and, therefore, so far these questions are concerned, the same has already been answered, therefore, it is not substantial question of law involved in this Second Appeal. From perusal of the case of Janak Dulari Devi (Supra), it appears that in that case also there is recital that title passed to the purchase and possession was handed over the purchaser and consideration amount was also paid but registration receipt was not handed over and in that circumstances, Hon’ble Supreme Court held that it was the intention of the parties that the title will pass only after payment of consideration amount and if payment is not made as agreed, the vendor could repudiate the same and refuse to deliver the registration receipt and proceed to deal with the property as he deem fit by ignoring the rescinded sale.

13. Admittedly, in the present case the sale deed has been produced from the custody of the plaintiff, therefore, it is admitted fact that the registration receipt or the sale deed was not withdrawn by the defendant. 8 Patna High Court SA No.164 of 2011 (5) dt.21-08-2013

14. The learned counsel for the appellant submitted that the sale deed has been executed in the year 1985 and the suit has been filed in the year 2001, therefore, the suit itself is barred by law of limitation and the plaintiff cannot get any declaration with respect to the sale deed after expiry of 3 years as provided under 58/59 of the Limitation Act. So far this submission is concerned, it may be mentioned here that the plaintiff’s case is for declaration of title and confirmation of possession under Article 65 of the Limitation Act. The suit will be barred only if the defendant proves adverse possession. The lower appellate Court has found that consideration money was never paid by the defendant to the plaintiff, therefore, on the registration of the sale deed, the title did not pass. If title did not pass then the document, i.e., the sale deed which is not even in possession of the defendant is only a paper transaction and by that deed may it be a registered deed, no title will be created in favour of defendant as it is a void document. In my opinion, therefore, no limitation is applicable and if it is not set aside then also title will never be created. The plaintiff prayed for declaration of title and from the facts of the case as stated above, the title did not pass to the defendant rather it remained with the plaintiff.

15. So far adverse possession is concerned also, it appears that it is not involved in the present case because the finding of the lower appellate Court is that during the pendency of the suit, the defendant have dispossessed the plaintiff. The learned counsel submitted that the lower appellate Court has not properly 9 Patna High Court SA No.164 of 2011 (5) dt.21-08-2013 considered the evidence while recording the finding that plaintiff has been dispossessed during the pendency of the suit. So far this submission is concerned, the appreciation of evidence cannot be done in exercise of jurisdiction under Section 100 of the Code of Civil Procedure. In my opinion, therefore, the ground raised by the learned counsel for the appellant is not at all substantial question of law and accordingly, this Second Appeal is dismissed at the admission stage itself. (Mungeshwar Sahoo, J) Sanjeev/-