High Court
Case Details
RSA 166/2013 BEFORE THE HON’BLE MR. JUSTICE B.P. KATAKEY Heard Mr. S. Ali, learned counsel for the appellants/plaintiffs and Mr.
Legal Reasoning
S.P. Roy, the learned counsel appearing for the respondents/defendants. This appeal by the plaintiffs is directed against the judgment and decre e dated 04.02.2013 passed by the learned Civil Judge No.3, Kamrup at Guwahati, i n Title Appeal No.54/2012, dismissing the appeal preferred by the present appell ants by affirming the judgment and decree dated 15.03.2012 passed by the learned Munsiff No.3, Kamrup at Guwahati, in Title Suit No.436/2006, whereby and whereu nder the suit of the plaintiffs/appellants was dismissed. The appellants as plaintiffs instituted the aforesaid suit praying for a decree declaring that the registered sale deed No.3200/02 dated 09.05.2002 exec uted and registered by the defendant No.4, claiming to be the power of attorney holder of defendant Nos.1, 2 and 3, in favour of the defendant No.5 in respect o f the land in so far as it concerns the Schedule-B, as void, inoperative and not binding on the plaintiffs and also for directing the defendants to execute the sale deed in favour of the plaintiffs in respect of Schedule-B land on the terms and conditions that the plaintiffs are ready to pay the share of consideration shown in the said sale deed dated 09.05.2002 with 10% increase thereon, contendi ng inter alia that a verbal agreement was entered into between the plaintiffs an d the defendant Nos.1, 2 and 3, the land owners, for sale of the Schedule-B land in favour of the plaintiffs, pursuant to which an amount of Rs.30,000/- was pai d on 24.05.2001 by withdrawing the same from the bank, as a part payment of the entire consideration amount and thereafter though the plaintiffs arranged the ba lance amount, a sale deed was executed by the defendant No.4 claiming himself as the power of attorney holder of defendant Nos.1, 2 and 3, selling the entire pr operty described in Schedule-A (Schedule-B is half portion of Schedule-A), in fa vour of the defendant No.5. The plaintiffs’ case, therefore, is based on the cla im of an oral agreement between them and the defendant Nos.1, 2 and 3 for sale o f Schedule-B land. The claim of the plaintiffs has been resisted by the defendants by filin g joint written statement denying any oral agreement with the plaintiffs for sel l of the Schedule-B land and contending inter alia that the entire Schedule-A la nd was sold by the defendant Nos.1, 2 and 3 in favour of the defendant No.5, sal e deed for which was executed by the defendant No.4 being the power of attorney holder of defendant Nos.1, 2 and 3, by virtue of which the defendant No.5 has ac quired the right, title and interest in respect of the entire suit land describe d in Schedule-A to the plaint. Based on the pleadings of the parties, the Trial Court framed the follow ing issues for determination:- Whether the suit is barred by limitation? (i) (ii) Whether the plaintiff has paid a sum of Rs.30,000/- to the defendant No. 1 on 24.05.2001 as part consideration to process the land shown in schedule-B to the plaint? (iii) Whether the registered sale deed being No.3200/02 dated 09.05.2002 is to be declared as void, inoperative and not binding upon the plaintiff? (iv) (v) Whether the plaintiff is entitled to get the decree as prayed for? To what other relief/reliefs the parties are entitled? The Trial Court upon appreciation of the evidence on record, both oral a nd documentary, dismissed the suit of the plaintiffs, disbelieving the story put forward by them relating to the oral agreement between the parties, namely, the plaintiffs and the defendant Nos.1, 2 and 3 for transfer of the land. Being aggrieved, the plaintiffs preferred the aforesaid appeal before th e First Appellate Court, which has also been dismissed by affirming the judgment and decree passed by the Trial Court. Hence the present appeal.
Legal Reasoning
It has been contended by Mr. Ali, the learned counsel for the appellants that since a verbal agreement for sale was entered into between the plaintiffs and the defendant Nos.1, 2 and 3, pursuant to which part of the consideration am ount was paid to the said defendants by the plaintiffs and they were ready and w illing to perform their part of the contract, the Court below ought to have decr eed the suit of the plaintiffs declaring the sale deed dated 09.05.2002 (Ext.-I) , in so far as it relates to Schedule-B land is concerned, as void and inoperati ve and also directing the defendants to execute the sale deed in respect of Sche dule-B land in favour of the plaintiffs, pursuant to such oral contract. Referring to the provisions contained in Section 32A of the Registration Act, 1908, it has also been submitted that since the photograph of the person p resenting the sale deed for registration has not been affixed to the sale deed, such registration is void and hence no title can be passed on the defendant No.5 by virtue of such sale deed, value of the property being more than Rs.100/-. Mr. Roy, the learned counsel appearing for the respondents/defendants, o n the other hand, has submitted that the plea taken by the plaintiffs in the pla int relating to the oral contract has been disbelieved by both the Courts below and such fact being concluded by concurrent finding, the second appellate Court would not disturb such concurrent finding of fact, there being no perversity in recording such finding. The learned counsel further submits that the plaintiffs never set up the plea that the sale deed dated 09.05.2002 (Ext.-I) was not valid on the ground of non-affixation of the photograph as required under Section 32A of the Registration Act and the plea was only relating to the oral contract. Th e learned counsel referring to the provisions contained in Section 23A of the Re gistration Act further submits that the defect in the registration can be cured by re-registration. I have considered the submissions advanced by the learned counsel for th e parties. Both the Courts below have recorded the finding of fact relating to the oral contract by holding that the plaintiffs could not prove the oral contract b etween the plaintiffs and the defendant Nos.1, 2 and 3. Such concluded finding o f fact, in the absence of any perversity in recording such finding being demonst rated, cannot be disturbed in second appeal. Relating to the plea taken by the plaintiffs for the first time in the a ppeal that the registration of the sale deed is not valid, in view of violation of Section 32A of the Registration Act, also cannot be accepted, there being no plea taken in the plaint filed by the plaintiffs. That apart, the defect in the registration can also be cured under Section 23A of the Registration Act. The de fendant Nos.1, 2 and 3 in the written statement have not contended that the sale deed was not executed on their behalf by the defendant No.4 in favour of the de fendant No.5. That being the position, I do not find involvement of any substantial qu
Decision
estion of law in the present appeal and hence the appeal is dismissed. No cost.