Civil Suit No. 237 of 2004 · The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK R.S.A. No.207 of 2014 In the matter of appeal under Section 100 of the Code of Civil Procedure assailing the judgment and decree dated 27.12.2013 and 07.01.2014 respectively passed by the learned 1st Additional District Judge, Berhmapur, Ganjam in R.F.A. No.09 of 2013 (R.F.A. No.47 of 2011 GDC) confirming the judgment and decree dated 30.04.2011 and 13.05.2011 respectively passed by the learned Civil Judge, Junior Division, Berhampur in Civil Suit No.237 of 2004. ---- Sri Giridhari Pradhan & Others …. Appellants -versus- Kaibalya Pradhan (Since Dead) by his LR and Others …. Respondents Appeared in this case by Hybrid Arrangement (Virtual/Physical Mode): For Appellants - Mr.R.K. Mohanty (Senior Advocate) For Respondents - Mr.Smt. Baijayanti Mohanty (Advocate for R.1(a) & R.2(b)) Mr.L.Samantaray (Advocate for R.3 to 5) CORAM: MR. JUSTICE D.DASH Date of Hearing : 20.09.2022 : Date of Judgment:27.01.2023 D.Dash,J. The Appellants, by filing this Appeal under Section 100 of the Code of Civil Procedure, 1908 (for short, ‘the Code’), have assailed the judgment and decree dated 27.12.2013 and 07.01.2014 respectively passed by the learned 1st Addition District Judge, Berhmapur, Ganjam in R.F.A. No. 09 of 2013 (R.F.A. No.47 of 2011 GDC). Page 1 of 12 RSA No.207 of 2014 {{ 2 }} By the same, the Appeal filed by the present Appellants under section 96 of the Code, has been dismissed and thereby the judgment and decree dated 30.04.2011 and 13.05.2011 respectively passed by the learned Civil Judge, Junior Division, Berhampur in Civil Suit No.237 of
Legal Reasoning
2004, have been confirmed. The suit filed by these Appellants, as the Plaintiffs arraigning the Respondents as the Defendants has thus been dismissed and accordingly, they have been non-suited. It may be stated here that the legal representatives of Respondent Nos.1 and 2, having died during pendency of this Appeal, their legal representatives being substituted are now on record. 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 Plaintiff’s case is that one Chanchana Pradhan of Village- Tarinipentha was the owner of the suit lands and as such was in possession of the same. It is said that the suit land had been settled in his favour by an order passed by the Competent Authority in OLR Case No.17 of 1978. Said Chanchana had sold away the suit land to Lingaraj Pradhan, who is the predecessor-in-interest of the Plaintiffs. The sale was by execution of a registered sale deed dated 25.01.1994. The Tahasildar, Berhampur then accordingly mutated the suit land in terms of the order passed in Mutation Case No.6893 of 1995. The Defendant No.1, however, filed an appeal, i.e., M.A. No.22 of 1998. In that appeal, he claimed to be in possession of the suit property. The appeal then stood disposed of with a direction for reopening of the mutation case for its hearing afresh and disposal in RSA No.207 of 2014 Page 2 of 12 {{ 3 }} accordance with law. The Mutation Officer, upon rehearing, recalled the earlier order of mutation of the suit land in favour of Lingaraj and it was thereunder allowed in favour of Defendant No.1. The Plaintiffs being aggrieved by the said order, filed Mutation Appeal No.4 of 2008. However, finding that the title over the suit land is in dispute and consequently, the right to possess the present suit land, the suit has came to be filed. 4. The Defendants 1 to 3 have filed the written statement. It may be stated here that the Defendants 2 is the wife of Defendant No.1 and Defendant No.3 is the son of Defendant No.1. They state that Chanchana was never in possession of the suit land. It is stated that the order of settlement of the suit land in favour of Chanchana passed in OLR case No.17 of 78 has not created any right, title, interest over the suit land in favour of Chanchana. The said order is said to be merely on pen and paper without being actually translated into action and carried out in the field. The Defendant No.1 claims to be in exclusive possession of the suit land all along. It is said that the Mutation Officer, at the end, has allowed the mutation of the suit land in favour of Defendant No.1 and Patta has been rightly issued to him. They further state that Chanchana had no occasion to sale the suit land and had never executed the sale deed in respect of the suit land in favour of Lingaraj. Defendant No.4 is the wife of Chanchana and Defendant No.5 is the son of said Chanchana. 5. The Defendant Nos.4 and 5, in their written statement, have stated that Chanchana had never executed the sale deed bearing no.180/94 in favour of Lingaraj. It is further stated that Defendant No.1 has been in long standing possession of the suit land and it was never in possession RSA No.207 of 2014 Page 3 of 12 {{ 4 }} of Chanchana. It is also stated that the suit land was never demarcated in OLR Case No.17 of 1978 and the possession had never been delivered to Chanchana, the husband of Defendant No.4. 6. On the above rival pleadings, the Trial Court, in total, has framed ten issues. Rightly at the first, the Trial Court has gone to find out the answer to issue nos.3 and 4 as those are pivotal. Upon examination of the evidence and their evaluation, the Trial Court’s answer is that the Plaintiff has no right, title and interest over the suit land and that the suit land is in possession of Defendant No.1. Having said above, answering the other issues, the suit has been dismissed. The unsuccessful Plaintiffs having moved the First Appellate Court, have not been able to taste the success and that move has also failed. So this second Appeal has come to be filed. 7. The present Appeal has been admitted to answer the following substantial questions of law:- “i).Whether the registered sale deed Ext.1 is inadmissible in evidence merely on the ground that a proceeding under section-47-A of the Indian Stamp Act has been indicated on the reference made by the Registering Authority that the market value of the property which is the subject matter of the instrument has not been truly set-forth in the instrument?; and ii) Whether the final orders passed in Mutation Appeal Nos.22 of 1998 and 4 of 2004 have got overriding effect over the order of settlement of the suit land in favour of Chanchana Pradhan passed in OLR Lease Case No.17 of 1978 in view of the bar under section 67 of the OLR Act?” 8. Learned Senior Counsel for the Appellants submitted that even accepting the fact that the Plaintiffs had not truthfully disclosed before the Court with regard to the custody/placement of the original sale deed RSA No.207 of 2014 Page 4 of 12 {{ 5 }} dated 25.01.1994 standing in favour of their predecessor-in-interest while placing the certified copy of the sale deed under Ext.1 and it is also taken that there was a proceeding under section 47-A of the Indian Stamp Act (hereinafter, called as ‘the Act) in relation to the said sale transaction on the allegation of evasion of stamp duty by undervaluing the land involved in the transaction i.e. the suit land and for realization of the proper duty payable, when the registration of the sale deed stands proved, the flow of title thereunder cannot for that reason be said to have been arrested. He further submitted that upon execution of the sale deed by Chanchana in favour of Lingaraj and its registration, which has been proved through Ext.1, the certified copy which is a public document, the title with respect to the suit land has passed to the hands of that Lingaraj, which has come to be succeeded by the Plaintiffs. He thus submitted that the view taken by the Courts below that for that reason as the sale deed was not properly stamped because of the suppression of the valuation of the land involved under the transaction and thereby, the evasion of proper stamp duty, the deed is inadmissible in evidence and, therefore, the title has not passed to the hands of Lingaraj and then to the Plaintiffs is legally untenable. 9. Learned counsel for the Respondents submitted all in favour of the findings returned by the Courts below. According to him, the Courts below are right in holding that the certified copy of the sale deed proved and marked Ext.1 is inadmissible in evidence and when except that document, no other document is available on record to show that Chanchana transferred his right, title and interest in respect of the suit land to the predecessor-in-interest of the Plaintiffs, the suit has been rightly dismissed. RSA No.207 of 2014 Page 5 of 12 {{ 6 }} 10. Keeping in view the submissions made, I have carefully read the judgments passed by the Courts below. I have also gone through the plaint and written statement. The evidence both oral and documentary have been perused. 11. In the given case, the registered sale deed dated 25.01.1994 has been projected by the Plaintiffs as the document of title and it is said that by execution of the same by the erstwhile owner and its registration, Lingaraj had been clothed with the title which has flown down to them. Admittedly, this document in question is the subject matter of a proceeding initiated under section 47-A of the Indian Stamp Act as clearly reflected in the certified copy of the sale deed marked Ext.1 from the side of the Plaintiffs.. The original deed thus having not been in the custody of the Plaintiffs, they have proved the certified copy, which has been marked Ext.1 despite the objection because the same is the true copy of the entries of the volume maintained in the Office of the Registering Authority as required under the statutory provision and as such the public document. 12. The relevant provision of the Indian Stamp (Orissa Amendment) Act, 1986 reads as under:- “47-A.Insruments under–valued how to be dealt with:- (1) where the registering officer under the Registration Act, 16 of 1908, while registering any instrument of conveyance, exchange, gift, partition or settlement has reason to believe that the market value of the property, which is the subject matter of such instrument has not been truly set forth in the instrument, he may, after registering such instrument, referred the matter to the Collector for determination of the market value of such property and the proper duty payable thereon. RSA No.207 of 2014 Page 6 of 12 {{ 7 }} (2) On receipt of a reference under sub-Section (1), the Collector shall, after giving the parties an opportunity of making their representations and after holding an enquiry in such manner as may be prescribed by Rules made under this Act, determine the market value of the property which is the subject matter of such instrument, and the duty as aforesaid and the deficient amount, if any, shall be payable by the person liable to pay the duty. instrument examine (2-A) The Collector, may suo motu within two years from the date of registration of such the instrument, not already referred to him under sub-section (1), call for and examine the instrument for the purpose of satisfying himself as to the correctness of the market value of the property which is the subject matter of such instrument and the duty payable thereon and if, after such examination, he has reason to believe that the market value of such property has not been truly set forth in the instrument, he may determine the market value of such property and the duty as aforesaid in accordance with the procedure provided for in sub-section (2), and the deficient amount of duty, if any, shall be payable by the person liable to pay the duty.; (3) Any person, aggrieved by an order of the Collector under sub-section (2) or sub-section (2-A), may, within thirty days from the date of the order, prefer an appeal before the District Judge and all such appeals shall be heard and disposed of in such manner as may be prescribed by rules made under this Act”. 13. The other Section-48A which is relevant for our purpose lays down the following:- “48-A. Notwithstanding anything contained in this Act, no certificate or endorsement under this Act in respect of any instrument chargeable in the State of Orissa with a higher rate of duty under this act, for the time being in force as amended from time to time by the Orissa Acts shall be received in evidence or be in any way valid in respect of the payment of duty on such instrument or in respect of the chargeability of such instrument with duty unless the duty chargeable under the Orissa Act, has been paid on such instrument.” RSA No.207 of 2014 Page 7 of 12 {{ 8 }} It is stated here that the above provisions are contained in Chapter-IV of the Indian Stamp Act which carries the heading ‘Instruments Not Duly Stamped’. 14. On a combined reading of the above provision of law, the legislative intent behind the same is clear that the whole objective is to chase the person, who has defrauded the State Exchequer in that way and that is the reason the document has been statutorily made inadmissible till the wrong is rectified and the legislature for that has also provided the wrong doer with the scope for composition of the wrong and in that event said document would not fall foul of the provision of section 48-A of the Act. That becomes further clear when we see that for such violation of specific penal provisions have been laid down in Chapter-VII of the Act. 15. For our purpose, we may refer to section-64 of the said Act which says as under;- “64.Penalty for omission to comply with provisions of Section 27:- Any person who, with intent to defraud the Government:- (a) Executes any instrument in which all the facts and circumstances required by section 27 to be set forth in such instrument are not fully and truly set forth; being employed or concerned (b) the preparation of any instrument, neglects or omits fully and truly to set forth therein all such facts and circumstances; and in or about (c) does any other act calculated Government of any duty or penalty under this Act; to deprive the shall be punishable with fine which may extend to five thousand rupees”. RSA No.207 of 2014 Page 8 of 12 {{ 9 }} Section 27 of the said Act describes the facts affecting duty to be set forth in the instrument. It reads as under:- “The consideration (if any) and all other facts and circumstances affecting the chargeability of any instrument with duty, or the amount of the duty with which it is chargeable shall be fully and truly set forth there.” The above penal provision for the violation in not setting forth the correct valuation, which has the connection with the chargeability of the duty thereof, has been provided. The person, who is a party to such a document, when a proceeding under section 47-A of the Act is pending if is still allowed to assert and get a declaration of his title over the subject matter of the said document in a proceeding initiated by him for protect the State Exchequer any wrong been done to him and that document, is accepted taken into consideration, in serving all his purpose; that in my considered view, would very much offend the legislative intent behind all the provisions made to protect the State Exchequer. A person thus committing fraud on statutory provision in obtaining the document’s registration but facing a proceeding for the same, till he is held either as not guilty of suppression or gets his wrong compounded must be precluded from taking the legal benefit flowing from that document involved in the proceeding, as otherwise, two unscrupulous persons joining together even without truthfully setting forth the valuation and paying proper duty as chargeable under the statute in defrauding the State Exchequer thereby, would have a smooth sail. Therefore, in such an eventuality even if fact stands that the Registering Officer has registered the document; said registration in my humble view would not be taken to have the registration in the eye of law to confer title of the property in question upon the vendor/s that would, however, remain under suspension till the proceeding is finalized RSA No.207 of 2014 Page 9 of 12 {{ 10 }} and the original document comes to the hands of the person concerned. Therefore, document is involved in a proceeding under section 47-A of the Act is not receivable in evidence as such and even though its execution is not in dispute the passing of title being dependent upon the registration, in my view, when the registration is not said to be complete as it is being chased with a proceeding whose culmination would decide the proper stamp duty payable upon the same and that can give the final seal to the document, the title of the subject matter of the document cannot be said taken to have passed on to the vendee. So long as the proceeding under section 47-A of the Act is pending, prima facie the person facing the same stands in the footing of a wrong doer and only when he gets the clean cheat or closes the proceeding by paying the proper stamp duty etc as charged, the registration of the document would be said to be complete in all respect which would then take its legal effect flowing from that registration dating back from the very date of execution. 16. The Plaintiffs in the suit of the year 2004 filed after about a decade from the time when that sale deed came into being have not come forward even to state the fate of that proceeding as against their sale deed of the year 1994. They too do not also provide any explanation in either saying the noting on Ext.1 to be false or incorrect in laying down the foundation for adduction of the secondary evidence which is the certified copy of the sale deed (Ext.1) whose admission in evidence has been objected to by the adversary, right at the time of its tendering in evidence in marking the same during trial. The Plaintiffs nowhere had even stated that such a proceeding under section 47-A of the Act is pending and being so contested, the original registered sale deed is not in their hands. They too do not say that the proceeding being over in Page 10 of 12 RSA No.207 of 2014 {{ 11 }} their favour or that they having paid the proper stamp duty etc had taken the original document to their custody which has somewhere been misplaced or lost for which they are compelled to file the certified copy. They are thus silent as to the present custodian of the original document. In the instant case, it be also kept in mind that the legal heirs of the so- called vendor of the predecessor of the Plaintiffs are not admitting the said sale by Chanchana. 17. The Plaintiffs having filed the suit basing upon that registered sale deed dated 25.01.1994 as the document of title in respect of the suit land of which they claim to be the owners; for what have been discussed as above, the certified copy of that document marked Ext.1 with objection since is inadmissible in evidence; the Plaintiffs are found to have failed to prove in the present suit that they have the title over the suit property by virtue of the purchase under the registered sale deed dated 25.01.1994 said to have been executed by Chanchana in favour of their predecessor-in-interest, namely, Lingaraj. Therefore, the Courts below, in the suit filed by the Plaintiffs, having declined to grant the relief of declaration of title and injunction in their favour as against the Defendants, this Court for all the aforesaid is not in a position to answer the substantial question of law as at (i) in favour of the Plaintiffs. Having answered the first substantial question of law as at (i), the other substantial question of law is no more felt necessary to be answered since the answer given to the substantial question of law as at (i) decides the fate of this Appeal, which runs to confirm the judgments and decrees passed by the Courts below. It may however be clarified that the decision in the present lis would not preclude the Plaintiffs from initiating further proceeding in Page 11 of 12 RSA No.207 of 2014 {{ 12 }} respect of the subject matter of the suit in accordance with law as discussed. 18. Accordingly, the Appeal stands dismissed. There shall, however, be no order as to cost. (D. Dash), Judge. Basu RSA No.207 of 2014 Page 12 of 12