High Court
Case Details
RSA 25/2002 BEFORE THE HON’BLE MR. JUSTICE B.P. KATAKEY This appeal by the defendants in Title Suit No. 168/1981 is directed against the judgment and decree dated 10.8.2001 passed by the learned Civil Judge, (Sr. Div ision), Barpeta in Title Appeal No. 9/1997 dismissing the appeal by affirming th e judgment and decree dated 6.3.1997 passed by the learned Civil Judge, 2 (Jr. D ivision), Barpeta in the said suit, whereby and whereunder the suit of the plain tiffs has been decreed by dismissing the counter claim filed by the defendants.
Legal Reasoning
2. The respondent No. 1 herein instituted the aforesaid suit prayin g for a decree declaring the right, title and interest and for recovery of khas possession of the land measuring 2 bighas, more fully described in Scheduled 2 t o the plaint, contending inter alia that he has acquired the right, title and in terest over the suit land by virtue of purchase by registered deed of sale deed dated 21.11.1978 (Ext. 1) executed by the defendant No. 1 and whereupon though h e was put into possession, he was, however, subsequently dispossessed in the yea r 1981 by the defendant No. 1 taking advantage of the mutation of his name in th e revenue records subsequently. 3. The defendants contested the suit by filing joint written statem ents contending inter alia that the suit is bad for misjoinder and non joinder o f necessary parties, that there is not cause of action and that the defendant No . 1 never executed the sale deed but executed a mortgage deed by taking loan of Rs. 800/- from the plaintiff on the condition that whenever amount of Rs. 800/- is returned the plaintiff would reconvey the property in favour of the defendant No. 1. The defendants subsequently by way of amendment of the pleadings in the written statement have also filed a counter claim praying for declaration of the ir right, title and interest in respect of the land measuring 2 bighas and for c ancellation of the sale deed being Ext. 1. 4. The trial court on the basis of the pleadings of the parties has framed as many as 16 issues, which are as follows:- (cid:28)1. Whether there is any cause of action for the suit? 2. Whether the suit is maintainable in the present form? 3. Whether the suit is bad for nonjoinder and misjoinder of parties? 4. Whether the registered sale deed No. 9027/78 was conditional sale deed for mo rtgage in respect of the suit land? 5. Whether the plaintiffs have right, title and interest over the suit land? 6. Whether the plaintiffs are entitled to get khas possession over the suit land ? 7. Whether the plaintiffs are entitled to get mutation over the suit land as pra yed for? 8. Whether the plaintiffs are entitled to get a decree of the suit? 9. To what relief or reliefs, the parties are entitled? 10. whether the main defendants have right title and interest and possession over the ’B’ schedule land of the counter claim suit? 11. Whether the registered sale deed being No. 9027/78 is illegal, void, collusi ve and inoperative in the eye of law? 12. Whether the defendants are entitled to get the decree in the counter claim? 13. Whether there is any cause of action for the counter claim suit? 14. Whether the counter claim is maintainable u/o 8 rule 6 and u/o 8 rule 6(c) o f the CPC? 15. Whether the counter claim is learned under limitation? 16. Whether the contesting defendants returned the considering value of Rs. 800/ - in respect of the suit land to the plaintiff and got the delivery of possessio n? (cid:29) 5. The trial court on the basis of the evidence adduced by the part ies decreed the suit of the plaintiffs by dismissing the counter claim filed by the defendants by holding that Ext. 1 dated 21.11.1978 is the sale deed transfer ring the right, title and interest in respect of 2 bighas of land by the defenda nt No. 1 in favour of the plaintiffs and not a mortgage deed. The trial court co nsequently dismissed the counter claim filed by the defendants by holding that t he defendants could not prove that the said deed dated 21.11.1978 is not a sale deed but a mortgage deed. 6. Being aggrieved, the defendants preferred Title Appeal No. 9/199 7 which has also been dismissed vide judgment and order dated 6.3.1997. Hence th e present appeal. 7. n the following substantial questions of law: - The appeal was admitted for hearing vide order dated 21.1.2002 o (cid:28)i) whether the findings of the court below is based on no evidence or a re perverted appreciation on misreading of evidence leading to miscarriage of ju stice. (cid:29)
Legal Reasoning
I have heard Mr. Mahmmud, learned counsel for the appellants as 8. well as Mr. Basar, learned counsel appearing for the respondent. The names of ot her respondents have been struck off from the list of respondents on the prayer made by the appellants. 9. It is contended by Mr. Mahmmud, learned counsel for the appellan ts that as the defendants never intended to sell the plot of land measuring 2 bi ghas by executing any sale deed and the deed was required to be executed as mort gage deed on taking a loan of Rs. 800/- on condition that on repayment of the sa id amount the property would be handed over to the defendants, the learned court s below ought not to have decreed the suit of the plaintiffs and dismissed the c ounter claim of the defendants by holding that by Ext. 1 deed dated 21.11.1978 t he defendant No. 1 has transferred his right, title and interest in favour of th e plaintiffs. The learned counsel submits that the evidence adduced by the parti es amply proves that for taking a loan of Rs. 800/- by the defendant No. 1 from the plaintiff the mortgage deed was required to be executed which, however, the plaintiff has cunningly converted to a deed of sale and as such the courts below ought to have dismissed the suit of the plaintiff and decreed the counter claim of the defendants. 10. Per contra, Mr. Basar, learned counsel appearing for the respond ent supporting the finding recorded by the courts below has submitted that on a bare looking of Ext. 1 dated 21.11.1978 reveals that it is out and out a sale de ed executed by defendant No. 1 in favour of the plaintiffs transferring the righ t, title and interest in respect of 2 bighas of land and not a mortgage deed or the deed of conditional sale as contended by the defendants in the written state ment. The learned counsel further submits the defendants to substantiate the ple a that the defendant No. 1 though intended to execute a mortgage deed but the pl aintiff has cunningly executed a sale deed, no evidence has been led, on the oth er hand, the plaintiff could prove due execution of Ext. 1 sale deed dated 21.11 .1978 and also could prove that at the relevant point of time the sale of other land was also made at the rate of around Rs. 500/- per bigha. 11. I have considered the submissions advanced by the learned counse l for the parties and also perused the judgments and decrees passed by the court s below. 12. The issues which requires determination in the present appeal is whether Ext. 1 is a sale deed or a mortgage deed and whether the defendant in f act wanted to execute mortgage deed for taking loan of Rs. 800/- from the plaint iff who, however, cunningly has converted it to a sale deed dated 21.11.1978 (Ex t. 1) 13. Perusal of Ext. 1 dated 21.11.1978, which is a registered instru ment, reveals that the defendant No. 1 has sold the land measuring 2 bighas in f avour of the plaintiff at a consideration of Rs. 800. The said sale deed has bee n registered under the provision of the Registration Act, 1908. 14. Sub Section 2 of Section 60 of the aforesaid Act provides that t he certificate of registrations shall be signed sealed and dated by the Register ing officer and shall then be admissible for the purpose that the document has b een duly registered in manner provided by the Act, and that the facts mentioned in the endorsement referred to in section 59 have occurred as therein mentioned. 15. Section 59 requires that the Registering authority shall affix t he date and his signature to all endorsements made under sections 52 and 58, rel ating to the same document and made in his presence on the same day. 16. Sub Section 1(c) of Section 58 requires endorsement of payment o f money or delivery of goods made in the presence of the registering officer in reference to the execution of the document, and any admission of receipt of cons ideration, in whole or in part, made in his presence in reference to such execut ion. 17. In the instant case the certificate of registration has been iss ued by the Registering authority upon registration of the Ext. 1 dated 21.11.197 8, wherein the defendant No. 1 has admitted the execution and receipt of the con sideration. The defendant No. 1 never at any point of time complained before the Registering authority that he had not intended to sell the property in favour o f the plaintiff or the said deed has been written not as per his wishes. The pre sumption relating to due execution and compliance of the provisions and the endo rsement required to be made under Sub Section 2 of Section 60 of the Registratio n Act is, however, rebutable presumption and the person alleging that such presu mption should not be drawn has to lead cogent and reliable evidence to rebut the same. 18. The defendants though have claimed that they never intended to s ell the land measuring 2 bighas in favour of the plaintiff as the defendant No. 1 took a loan of Rs. 800/- and was intended to execute a mortgage deed, no cogen t evidence, however, could be led by the defendants to substantiate such plea. N o perversity in recording the finding that the defendants could not prove the sa me could also be brought to the notice of this Court. 19. appeal stands dismissed. The parties are directed to bear their own cost. I view of the above, I do not find any merit in the appeal. The 20. The Registry is directed to send down the records forthwith.