The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK R.S.A. No.355 of 2008 In the matter of an Appeal under Section 100 of the Code of Civil Procedure assailing the judgment and decree dated 24.11.2008 passed by the learned Additional District Judge, Bhadrak, in R.F.A. No.30 of 2006 setting aside the judgment & decree dated 18.03.2006 and 31.03.2006 respectively passed by the learned Civil Judge, Senior Division, Bhadrak in T.S. No.131 of 1994-I. ---- Sri Braja Kishore Das …. Appellant -versus- Sri Sibram Dhal & Others …. Respondents Appeared in this case by Hybrid Arrangement (Virtual/Physical Mode): For Appellant - Mr.P.K.Ghose & S.K. Nayak Advocate For Respondents - Mr.S.K.Swain, Advocate for R.1 Mr.S.K.Ray Advocate for R.2 to 4 CORAM: MR. JUSTICE D.DASH Date of Hearing : 10.02.2023 : Date of Judgment:28.02.2023 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 passed by the learned Additional District Judge, Bhadrak, in R.F.A. No.30 of 2006. By the same, the Appeal filed by the present Respondents 1 to 4,
Legal Reasoning
being the unsuccessful Plaintiffs in T.S. No.131 of 1994-I of the Court RSA No.355 of 2008 Page 1 of 12 {{ 2 }} of the learned Civil Judge, Senior Division, Bhadrak under section 96 of the Code, has been allowed in part. The present Respondents 1 to 4, as the Plaintiffs, had filed the suit arraigning the present Appellant as the Defendant No.2 and his mother as Defendant No.1. The mother of Appellant (Defendant No.1), having died during pendency of this Appeal, in presence of the Appellant (Defendant No.2), her name as the Respondent No.5 has been expunged as dead. 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 case of the Plaintiffs is that the Defendant No.1 (mother of Defendant No.2) was the original owner of the land in Schedule-A. She, being in need of money for construction of a pucca building, in order to defray the expenses for the purpose and also for the need of her family including repayment of loan, approached the Plaintiffs with the Defendant No.2 and one Jagabandhu Kabi as the mediator and proposed to sell the Schedule-A land to them. The Plaintiffs agreed that they would purchase the land in Schedule-A for a consideration of Rs.22,500/- (Rupees Twenty-Two Thousand Five Hundred). Accordingly, three separate sale deeds were executed and registered by Defendant No.1. It was the stipulation in the sale deeds that the consideration amount shall be paid after registration and upon delivery of the registration receipt to the Plaintiffs. It is stated that the Plaintiffs belonged to different families and they have got separate possession of land from one plot with mutual RSA No.355 of 2008 Page 2 of 12 {{ 3 }} understanding after jointly pruchasing1. It is thus said that it was one transaction. The Plaintiffs 1 and 2 claim to have purchased Ac.0.04 decimals of land for a consideration of Rs.10,000/- (Rupees Ten Thousand); Plaintiff No.3 claims to have purchased Ac.0.03 decimals of land for a consideration of Rs.7,500/- (Rupees Seven Thousand Five Hundred); and Plaintiff No.4 claims to have purchased Ac.0.02 decimals of land for a consideration of Rs.5,000/- (Rupees Five Thousand). The sale deeds were scribed and executed on 20.07.1992. It is further stated that on the day following the registration, the Defendants again approached the Plaintiffs to sell further extent of land of Ac.0.14 decimals. The Plaintiff No.4, being in search of cultivable land, had agreed to purchase the same for a consideration of Rs.17,500/- (Rupees Seventeen Thousand Five Hundred). The Defendants, having requested Plaintiff No.4 to pay a sum of Rs.40,000/- (Rupees Forty Thousand), which was very much necessary for the completion of the pucca building under construction, the Plaintiff, on 20.02.1993 pad the total amount of Rs.40,000/- towards the unpaid consideration in those three sale deeds as well as the consideration for the proposed sale of the land under the agreement. The defendants agreed to execute and register the sale deeds in respect of the land in Schedule-B later as that sale deed was also to be registered. The Defendants then told the Plaintiffs that they would hand over the registration receipts at a time after registration of the 4th sale deed. The Defendants further stated that those registration receipts were with the Moharir, who scribed the deeds. The Plaintiffs had nothing to disbelieve the Defendants more-so when the mediator undertook all the responsibility in the matter. It is stated that Defendant No.1 had previously transferred Ac.0.02 decimals of land to Plaintiff No.4 and RSA No.355 of 2008 Page 3 of 12 {{ 4 }} also Ac.0.04 decimals of land to one Ghanashyam, the brother of Plaintiff No.4 and, therefore, the Plaintiffs had all the reason to repose confidence and have full faith upon the Defendants. It is alleged that the Defendants, thereafter out of greed, having already received the total consideration amount for all the four sale deeds, demanded further sum of Rs.10,000/- (Rupees Ten Thousand) towards the 4th sale. The demand, being unreasonable, Plaintiff No.4 did not accede to the same, for which the dispute started. The Defendant No.1, being ill-advised, executed the cancellation deeds cancelling all those three registered sale deeds, which according to the Plaintiffs, are illegal. It is stated that once the sale deeds have been executed and registered, their legal effects cannot be taken away by mere execution and registration of deeds of cancellation. In view of the above, the suit was filed seeking the reliefs as under:- “i. To declare the right, title, interest and confirmation of possession of Plaintiffs 1 & 2 in respect of the property under Schedule-A(1); ii. To declare the right, title, interest and confirmation of possession of Plaintiff No.3 in respect of the property under Schedule-A(2); iii. To declare the right, title, interest and confirmation of possession of Plaintiff No.4 in respect of the property under Schedule-A(3); To declare that the Defendants contracted to Plaintiff to sell Schedule-B land for a consideration of iv. No.4 Rs.17,500/-; To direct the Defendant No.1 to execute and register v. the sale deed in respect of Schedule-B land in favour of the Plaintiffs; To deliver the possession of Schedule-B land to v. Plaintiff No.4; RSA No.355 of 2008 Page 4 of 12 {{ 5 }} vi. In the alternative, if the Court is not inclined to grant the decree of specific performance of decree for refund of consideration of Rs.17,500/- with interest be passed; and vii. The Plaintiffs be awarded with compensation of Rs.12,000/- for the mental agony and damage in view of the situation, which have arisen.” 4. The Defendant No.1, in her written statement, claiming the property to be her stitiban property and as such, recorded in her name, has stated to be in peaceful possession of the same as its owner. It is stated that Defendant No.1 was in need of money. The Plaintiffs approached the Defendant No.1 to transfer the suit land to them. The Defendant No.1 did not agree to transfer it when the Plaintiffs influenced her in many ways, finally the Defendant No.1 agreed to transfer Schedule-A land. It was decided that the Plaintiffs would pay the consideration money at the time of registration. The stamp papers for the sale deeds were purchased on 20.07.1992. The Plaintiffs, however, could not arrange the money. So, they requested the Defendant No.1 to grant them time to pay the consideration amount while endorsing the registration receipts for delivery of the original registered sale deeds to them and accordingly, to register the sale deeds. It was also agreed that after payment of full consideration, the registration receipts, being endorsed, would be given to the Plaintiffs and they would become the owner of the property covered under the sale deeds. It is stated that the sale deeds were executed on 20.07.1992 and registered on 14.09.1992. It is stated that by such execution of registration of the sale deeds, the title in respect of the property covered thereunder has not passed to the hands of the Plaintiffs as there was no payment of consideration and no delivery of possession of the suit land. It is stated that despite execution and registration of the sale deeds, the properties remained with the RSA No.355 of 2008 Page 5 of 12 {{ 6 }} Defendant No.1 and she continued to be the owner in possession. The Plaintiffs did not pay the consideration money despite being approached several times by the Defendant No.1. The Plaintiffs thus after having granted some time, being thoroughly disgusted, executed the deed of cancellation. It is also stated that the Defendant No.1 has never entered into any agreement that Plaintiff No.4 for sale of Schedule-B land and had never received the consideration agreed upon with the unpaid consideration of those three prior sale deeds. The Defendants also pray that the sale deeds in favour of the Plaintiffs be cancelled and the right, title, interest and possession of the Plaintiffs over the suit land be declared. 5. The Trial Court, on the above rival pleadings, has framed six issues. Upon detail examination of the evidence and their evaluation, the Trial Court has answered all those against the Plaintiffs in ultimately holding that the Plaintiffs are not entitled to any of the reliefs as they claim; that they have no right, title and interest over the property in Schedule-A and the Plaintiff No.4 is not entitled to a decree for specific performance of contract in respect of the property in Schedule-B. 6. The suit thus being dismissed, the unsuccessful Plaintiffs had carried the First Appeal. The First Appellate Court has passed the following order:- “In the result, the appeal is allowed in part on contest against the respondents but in the circumstances without cost. The right, title, interest and possession of plaintiff no.1 Ashok Kumar Jena i.e. respondent no.3 and plaintiff no.2 Rabindra Jena i.e. respondent no.4 in respect of schedule ‘A-1’ and plaintiff no.3 i.e. respondent no.5 in respect of schedule ‘A-2’ and that of plaintiff no.4-appellant in respect of schedule ‘A- 3’ purchased property is hereby declared and their respective possession is confirmed and if found dispossessed they are RSA No.355 of 2008 Page 6 of 12 {{ 7 }} is directed entitle to take delivery of possession through court. So far ‘B’ schedule property is concerned defendant no.1-respondent no.1 is not entitled to sale to appellant-plaintiff no.4 for consideration of Rs.17,500/-. The plaintiff no.4-appellant is directed to pay the consideration amount of Rs.5000/- along with interest @ 6% P.A. In respect of the purchased property A-3 to defendant no.1-respondent, so far plaintiff no.3- respondent no.5 Nakul Ch.Jena to pay consideration amount of Rs.7,500/- to defendant no.1- respondent no.1 with interest @ 6% P.A. from the date of execution of sale deed till realisation in respect of schedule A-2 purchase property. So far appellant-plaintiff no.1 and 2 i.e. respondent nos.3 and 4 Ashok Jena and Rabindra Jena is concerned, they are directed to pay a sum of Rs.10,000/- along with interest @ 6% P.A. from the date of registration till realization in respect of schedule-A1 purchase property. On receipt of the consideration amount along with interest the respondent no.1-defendant no.1 will execute the necessary sale deeds in favour of appellant-plaintiff no.3 and respondent nos.3 to 5 within a period of one month failing which the appellant-plaintiff no.4 and respondent nos.3 to 5 is at liberty to take recourse of law.” 7. The Appeal has been admitted to answer the following substantial questions of law:- “(a) Whether the suit as laid and for the reliefs claimed is hit under Order-1 Rule-1 and Order-2 Rule-3 of the Code?” (b) Whether the First Appellate Court is right in recording the finding that the Appellant and her mother who was then living (Defendants), are not having the title over the properties involved under those deeds and the same had passed on to the Respondents (Plaintiffs) under those deeds notwithstanding the non-payment of full consideration as agreed and noted in the deeds? and (c) Whether the First Appellate Court having found that there was non-payment of consideration and for that has directed the Respondents to pay the same, without having not gone to decide whether the passing of title was dependant on passing of consideration or not could not have decreed the suit as has been done?” RSA No.355 of 2008 Page 7 of 12 {{ 8 }} 8.
Legal Reasoning
Learned counsel for the Appellant submitted that as per the case of the Plaintiffs, the Plaintiffs 1 to 3 each has purchased separate properties from Defendant No.1 and all those transactions of sale are the subject matter of adjudication in the present suit in view of the pleadings of the Defendant. The issue before the Courts below was whether the Plaintiffs 1 to 3 have been clothed with right, title and interest in respect of the respective purchased property by virtue of the respective sale deeds and the moot question is whether the passing of title in respect of the land covered under those sale deeds was dependant upon the passing of consideration or not and if so dependant, whether the consideration has been paid and the title has thereafter passed. He further submitted that in this said, projecting an agreement for sale to have been executed by Defendant no.1, Plaintiff No.4 has joined with Plaintiffs 1 to 3 in seeking a decree of specific performance of contract in respect of completely separate property described in Schedule-B and it is said that while paying the agreed consideration for the said land, which was agreed to be sold by the Defendant No.1 to the Plaintiff No.4, the unpaid consideration towards the three sale deeds were also paid. According to him, these Plaintiffs could not have been joined together to bring the suit seeking the above reliefs and such a course was not permissible in the eye of law for the Plaintiffs. He further submitted that the Plaintiffs, being in their individual capacity based on separate transactions, the present suit for the reliefs is not at all maintainable and is liable to be dismissed, which according to him, the Courts below lost sight off. He further submitted that the First Appellate Court, on the basis of the evidence on record, ought to have held that the title in respect of the land covered under those sale deeds have never passed to the Plaintiffs as there was no payment of consideration and delivery of possession RSA No.355 of 2008 Page 8 of 12 {{ 9 }} when the intention of the parties is very clear that passing of title would be wholly dependant on passing of consideration. He further submitted that the First Appellate Court, having found non-payment of consideration and for that, having directed the Plaintiffs to pay the same with interest but then having not gone to decide in clear terms as to whether passing of title in respect of the lands covered under those sale deeds was dependant on passing of consideration or not, could not have decreed the suit as has been done. 9. Learned counsel for the Respondents, while supporting the findings of the First Appellate Court, submitted that the Plaintiffs, having proved the execution and registration of the sale deeds and surrounding circumstances being established through evidence which reveal that the passing of title was independent of passing of consideration and that apart when the Plaintiffs have proved that they have proved the consideration to the Defendant No.1, the First Appellate Court is right in decreeing the suit in the matter, as has been ordered. The Plaintiffs, having clearly pleaded as to why they have joined together to file the suit and that being the factual position, the suit for the reliefs claimed is squarely maintainable. 10. Keeping in view the submissions made, I have carefully read the judgments passed by the Courts below. 11. The subject matter of the suit are four different portions of the land, which belonged to Defendant No.1. The Plaintiff No.1 claims to have purchased one part of the properties whereas the other two, i.e., Plaintiffs 2 and 3 claim to have purchased two other portions. The Plaintiff No.4 has joined with these Plaintiffs 1 and 3 and he seeks in the very suit a decree for specific performance of contract in so far as Page 9 of 12 RSA No.355 of 2008 {{ 10 }} Schedule-B property is concerned. The Plaintiffs have joined together in saying that all these are under one transaction when they also state that they belonged to different families. But since clearly they have purchased different extents of land from one plot under mutual understanding which the Plaintiffs contracted jointly with Defendant No.1 in presence of Defendant No.2 and it being thus one transaction, the suit has been filed. For appreciation, such averment is placed hereunder:- “i. That although the plaintiffs belong to different families but since they have purchased different extents of land from one plot under mutual understanding so the plaintiffs contracted jointly with the defendant no.1 in presence of defendant no.2 and it was in one transaction. ii. That out of the schedule lands plaintiffs No.1 & 2 have purchased Ac.0.04 decimals for a consideration of Rs.10,000/- and plaintiff no.3 has purchased Ac.0.03 decimals for a consideration of Rs.7500/-. The plaintiff no.4 Sri Sibaram Dhal has purchased Ac.0.02 decimals for a consideration of Rs.5000/- All the three sale deeds were scribed and executed on 20.7.92 and were registered on 14.9.92. The aforesaid properties have been described in schedule-A below; and iii. That the defendants on the day following the date of registration again approached this plaintiffs to sell another to Plot no.2245 vide Ac.0.140 decimals appertaining Schedule-B of the plaint. Since the plaintiff no.4 was in need of some cultivable land and the plaintiff no.4 agreed to purchased the same and an amount of Rs.17,500/- was settled to be the price of Ac.0.140 decimals of land and the defendant requested the plaintiff no.4 to pay Rs.40,000/- which was very much necessary for the completion of their pucca building under construction. The plaintiffs on 20.2.93, paid total amount of Rs.40,000/- both for the aforesaid three sale deeds for Ac.0.09 decimals and for Ac.0.14 decimals in respect of plot no.2245. The defendants also agreed to execute and to register a sale deed for Ac.0.140 decimals of land described in Schedule-B of plaint. Since one sale deed was yet to be RSA No.355 of 2008 Page 10 of 12 {{ 11 }} the defendants since registered the defendants told the plaintiffs to hand over all the registration receipt at a time immediately after registration of the forth sale deed. The defendants further informed that the registration tickets of earlier three sale deeds were with the Moharir who scribed the deeds. There was nothing to the aforesaid mediator disbelieve undertook all the responsibility of the sale deeds to be delivered to the plaintiffs. The defendant no.2 is the only son of defendant no.1 and both mother and son lived in common mess and residence. The defendant no.1 is an illiterate lady so the defendant no.2 was giving advice to his mother an acting as a representative of defendant no.1. The aforesaid money of Rs.40,000/- was received by defendant no.1 in presence of the parties and witness and defendant no.2 acted as a representative of defendant no.1” 12. On a bare reading of all these above averments, this Court is of the view that all these Plaintiffs could not have joined together to file the suit seeking the reliefs, as stated in the foregoing paragraphs. The suit is by several Plaintiffs; each claiming the title and possession on that basis of the purchases separately made in respect of separate parcels of land. Furthermore, one of the Plaintiffs, i.e., Plaintiff No.4 in this suit has sought for the relief of specific performance of contract. Each of the Plaintiff Nos.1 to 3 must establish in view of their case as to whether the passing of the title of the land under the respective sale was dependant on passing of consideration or independent. Moreover, the Plaintiff No.4 has to separately establish his claim for purchasing the land under the agreement for sale which did not happen for the inaction of the Defendant No.1. In this case, the joinder of all the Plaintiffs amounts to misjoinder. There is also misjoinder of causes of action. The challenge to all the sales and passing of title in respect of the land covered thereunder when stand as the cause of action for the suit to be filed by the Plaintiffs 1 to 3; the cause of action for the relief claimed by the Plaintiff No.4 is the inaction of the Defendant No.1 to execute the sale Page 11 of 12 RSA No.355 of 2008 {{ 12 }} deed as undertaken despite readiness and willingness of the Plaintiff No.4 all along. The suit is thus bad for multifariousness, misjoinder of Plaintiffs. The suit is also bad for mis-joinder of causes of action. 13. The substantial question of law as at (a) is thus answered against the maintainability of the suit, which in turn, leads to say that the judgment and decree passed by the First Appellate Court in granting all said reliefs to the Plaintiffs in the present suit in the form it has been laid and for the reliefs claimed cannot sustain. This being the answer to the substantial question of law at (a), it is found that the other substantial questions of law as at (b) and (c) are no more required to be answered as the answer to the first substantial question of law leads to the dismissal of the suit. 14.
Decision
In the result, the Appeal stands allowed. The judgment and decree passed by the learned Additional District Judge, Bhadrak, in R.F.A. No.30 of 2006 are hereby set aside and the order of dismissal passed by the Trial Court, although for completely different reasons, is restored. There shall, however, be no order as to cost. (D. Dash) Judge Basu RSA No.355 of 2008 Page 12 of 12