The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK RSA No. 383 of 2015 [In the matter of an appeal under Section 100 of the Code of Civil Procedure, 1908. --------------- AFR Snehalata Sahu ...… Appellant -Versus- Kokila Sahu & others ….. Respondents Advocate(s) appeared in this case :- _________________________________________________________ For Appellant & S.C. Samantaray, Advocates : M/s. U.N. Sahoo, U.K. Sahoo, U. Sahoo, For Respondents: M/s. Bibekananda Bhuyan, T. Sahoo, C. Nanda, S. Sahoo, S.S. Bhuyan & S.S. S.S. Mohapatra. __________________________________________________________ CORAM JUSTICE SASHIKANTA MISHRA JUDGMENT 19th July, 2024 SASHIKANTA MISHRA, J. The plaintiff is the appellant against a reversing judgment. The suit, C.S. No.5 of 2012 filed by the plaintiff was decreed by judgment dated 28.09.2013 followed by decree passed by the learned Addl. Civil Judge (Sr. Division), Dhenkanal. Said judgment and decree was reversed and set aside in appeal in RFA No.89 of 2013 vide Page 1 of 16 judgment dated 20.07.2015 followed by decree passed by learned Addl. District Judge, Dhenkanal, which is impugned herein. 2. For convenience, the parties are referred to as per their respective status in the Court below. 3.
Legal Reasoning
The plaintiff‟s case, briefly stated, is that she had purchased Ac.0.100 dec. of land appertaining to Sabik Khata No. 2593 and Sabik Plot No. 5645 corresponding to Hal Khata No. 2920 and Hal Plot No. 5645/9250 from one Sanatan Sahoo vide RSD No. 1059/84 and was in possession thereof. Her purchased land was in between the plot of the Mahadeb Sahoo on the south and Kokila Sahoo on the north. As there was no passage to approach her land, she purchased another patch of land measuring Ac.0.010 dec. vide RSD No.1060/84 from its owner Mahadeb Sahoo, which was used by her for such purpose since the date of purchase. After death of the plaintiff‟s husband and their vendor, Mahadeb Sahoo, the defendant No.1 encroached upon the passage by locking the entry gate of the plaintiff on the ground that the sale deed No. Page 2 of 16 1060/1984 in respect of the passage had been cancelled by a cancellation deed. As such, the plaintiff obtained certified copy of the deed of cancellation bearing No. 1202 of 1988 and came to know that same has been executed without any notice to her on the false ground of non-payment of consideration. On such facts, the plaintiff filed the suit for permanent injunction against respondents from interfering in her peaceful possession, declaration of the deed of cancellation as null and void and to declare her right, title and interest over the suit land on the basis of the RSD bearing No. 1060/84. 4. The defendants contested the suit by filing written statement, inter alia, stating that Mahadeb Sahoo had executed RSD No. 1060/84 without any legal necessity but the sale had not materialized for non-payment of consideration amount. For such reason, the original registered sale deed and the registration receipt was not handed over to the plaintiff which was subsequently cancelled vide deed No. 1202 dated 05.03.1988. As such, no title was passed in favour of the plaintiff. It was further Page 3 of 16 alleged that the suit land was not identifiable and that the so called passage claimed by the plaintiff is actually a part and parcel of the defendants‟ building area. The plaintiff was rather using the suit land for transporting her building materials for construction of her house on her plot with permission of the defendants and being instigated by local touts she had claimed title. Further, no ROR was issued in favour of the plaintiff and besides, the suit was also barred by limitation. 5. On such pleadings, the trial Court framed the following issues for determination. Whether the suit is maintainable? i. ii. Whether there is cause of action for filing of the suit? iii. Whether the plaintiff has acquired right title and interest over the suit land by purchase vide registered sale deed bearing no. 1060 dt.21.02.84 /27.02.84? iv. Whether the plaintiff’s possession over the suit land can be confirmed? v. Whether the deed of cancellation bearing no. 1202/99 dt.31.05.88 can be declared as null and void? vi. Whether the defendants can be permanently restrained from entering over the property and the peaceful interfering possession of the plaintiff thereof? from into vii. What other relief the plaintiff is entitled to? 6. Taking up issue No.iii for consideration at the outset, the trial Court after examining the oral and Page 4 of 16 documentary evidence found that the recitals of the sale deed in question are clear and unambiguous which reveals that the consideration amount was received by the vendor. Therefore, it cannot be said that payment of consideration was a pre-requisite for passing of title. On issue Nos. iv and v, the trial Court held that the plaintiff was in possession of the suit land. On issue Nos.vi and vii, the trial Court held that the unilateral deed of cancellation had no legal sanctity being void ab initio. On issue Nos. i and ii, the trial Court found that when the sale deed as well as its cancellation was executed by the same person, i.e. Mahadeb Sahoo, it implies that he was well aware of the property he was dealing with and therefore, it cannot be said that the suit property was not capable of being identified. As regards the ground of limitation, the trial Court held that the deed of cancellation being void ab initio, cannot give rise to any cause of action for the suit to be filed within three years. On such findings the suit was decreed in full by declaring the right, title, interest of the plaintiff over the suit land and by confirming her Page 5 of 16 possession. Further, defendant No.3 was permanently restrained from interfering with her possession. 7. Being dissatisfied with the decree, the defendant Nos.1 & 2 carried the matter in appeal to the District Court, which was heard and disposed of by learned Additional District Judge. After considering the rival contentions, the first appellate Court took note of the fact that that the original sale deed, Ext.A was produced by defendant No.1, which suggests that the consideration amount was not paid. Since the defendant disputed the claim of payment of consideration, oral evidence being adduced in this regard was admissible and not in violation of Sections 91 and 92 of the Indian Evidence Act. The first appellate Court further found that there being no endorsement on the sale deed by the Sub-Registrar regarding receipt of consideration amount by the vendor before him as provided under Section 58 of the Indian Registration Act, the same also proves that title had not passed for non-payment of consideration. The first appellate Court further found discrepancy in the Page 6 of 16 description of the suit property on consideration of the schedule to the sale deed and the evidence of the plaintiff herself. As such, it was held that no executable decree can be passed because of improper identification of the suit land. On such finding, the appeal was allowed and the judgment and decree passed by the trial Court was set aside. 8. Being aggrieved by such reversal of the judgment and decree of the trial Court, the plaintiff has filed the second appeal which has been admitted on the following substantial questions of law. the ground "1. Whether the lower appellate court has erred in holding that the title in respect of the land covered under sale deed bearing no. 1060/84 has not passed from the hands of the vendor to the vendee is no proof of on consideration in the absence of any endorsement on the sale deed by the registering authority, although receipt of consideration and delivery of possession in the recital? the vendor admits there that the 2. Whether the lower appellate court has fallen in error by ignoring the fact that when the parties admit the existence of a road over the suit plot, there was no occasion to hold that the description of the suit land is vague and as unidentifiable?" Page 7 of 16 9.
Legal Reasoning
Heard Mr. S.C. Samantaray, learned counsel for the plaintiff-appellant and Mr. Bibekananda Bhuyan, learned counsel appearing for the defendant-respondents. 10. Mr. Samantaray would argue that the first appellate Court committed manifest error in holding that there was no proof of passing of consideration being swayed away by absence of endorsement made by the Sub- Registrar under Section 58 of the Registration Act. He would submit that when the vendor himself acknowledged receipt of consideration amount in the sale deed itself, no further evidence is either necessary or admissible. In any event, the vendor being no longer alive, his admission in the sale deed cannot be reversed by his successors, i.e. defendant Nos. 1 and 2. Even otherwise, execution of the sale deed and its registration are themselves proof of passing of title even if it be accepted that the consideration was not paid. The unilateral deed of cancellation by the vendor was rightly held to be ab inito void by the trial Court and therefore, the sale deed in question cannot be ignored. As regards identity of the suit land, Mr. Page 8 of 16 Samantaray would argue that the suit land has been clearly and specifically described with its boundaries in the sale deed. There is no scope for any confusion or ambiguity arising relating to its meaning. Under such circumstances, even if the plaintiff in her cross-examination stated something different, the same would never override the recital of the sale deed. 11. Mr. Bhuyan, on the other hand would argue that the suit land has to be properly identified as otherwise an effective decree cannot be passed. Referring to the plaint schedule, he submits that the description of the suit property is non-specific and differs from sale deed. He further argues that what the plaintiff essentially claims is title and not right of easement. Therefore, the property ought to have been specifically described. The plaintiff could also have adduced additional evidence by seeking permission of the Court under Order 41, Rule 27 of CPC by having the land identified through a Survey Knowing Commissioner, which she did not. On the question of title, Mr. Bhuyan, referring to Section 58 of the Registration Act Page 9 of 16 argues that in the absence of any such endorsement by the Sub-Registrar, it cannot be held that consideration had been paid by the vendee to the vendor. As such, no title had been passed. Mr. Bhuyan also argues that the suit is otherwise barred by limitation inasmuch as the plaintiff‟s prayer for mutation of the property was rejected in the year 2006. As such, she could have filed the suit within three years but she filed the same only in 2012. Moreover, the fact of cancellation of deed was within her knowledge at least at the time of the mutation case but she had not approached the Court within the prescribed period of three years. 12. After considering the facts of the case and the above mentioned arguments advanced by learned counsel for the parties carefully, this Court would first consider whether any title had passed from the vendor to the vendee by execution and registration of sale deed in question. Admittedly, the original sale deed was produced not by the plaintiff but by defendant No.1. It has been deposed by defendant No.1 as D.W.-1 that as the plaintiff had failed to Page 10 of 16 pay the consideration money, the vendor neither handed over the „Baradi‟ receipt nor the original sale deed to her. This Court however, is not persuaded to place much reliance on the above statement of defendant No.1 in view of the clear and categorical assertion by the vendor himself in the sale deed that he had received the consideration amount which was fixed at Rs.1500/-. The said recital of the sale deed and its English rendering read as follows: “********** ୍ᙅେତା୍ᘮୁ ଧା୍ି୍ୟ ମୂଲ୍ୟ୍ᙅେ ଫିେୟ କେି ୍ᙅଦଇ ସମ୍ᙜ ଜେସମନ ଫୁଝି ୍ᙅନଇ ଥିଫାେୁ ଉ୍ᘹ ଫୃ୍ᙈି୍ᙅେ ୍ᙅେତା୍ᘮୁ ଦାଖଲ୍ ମଡାଣ ୍ᙅଦଇ ୍᙭ତୟଫାନ କୋଇ ସ୍ᙅେତ କେୁ ଅଛୁ ୍ᙅ୍ି ୍ᙅେତା ତପସିଲ୍ ଫୃ୍ᙈିକୁ ଆଣା ନା୍ᙅମ ୍ᙅେକଡ୍ ଓ ଜମାଫ୍ᙏି କୋଇ ୍ᙅନଇ ********।“ *********** kretanku dharya mulyare bikraya kari dei samasta jarsaman bujhi nei thibaru ukta bruttire kretanku dakhal madana dei swatyaban karai saret karu achhu je kreta tafsil bruttiku apana name record o jamabandhi karai nei *********” This Court fails to understand as to what ambiguity is in the aforesaid statement so that other evidence is necessary to be looked into. It is needless to mention that when the recitals of the instrument are clear and unambiguous no oral evidence explaining the same may be admitted as provided under Sections 91 and 92 of the Indian Evidence Act. Therefore, regardless of the fact Page 11 of 16 that the original sale deed was somehow in the possession of the defendant No.1, such fact, ipso facto, cannot override the clear and unambiguous admission of the vendor itself in the sale deed of having received the entire consideration amount. It is highly significant to note that the vendor Mahadeb Sahoo was no longer alive during the suit. Under such circumstances, the statement made by him as reflected in the sale deed regarding receipt of the consideration amount cannot be questioned by his successors-in-interest, i.e. defendant Nos. 1 and 2, who are his grandsons. Law is well settled that the statement of dead person against his pecuniary interest is good evidence in support of passing of consideration as held by this Court in the case of Ushamani Dei and others vs. Gandharba Barik and others1. In the said case it was held as follows: “…………..Having held, as stated above, the lower appellate Court has come to the conclusion that there was no passing of consideration and, consequently, there was no delivery of possession. It is contended that under Section 32(3) of the Evidence Act, there should be a presumption of passing of consideration. Parikshit is admittedly dead. In the document Ext.3, he has stated that he has received the consideration. Reliance is placed on the case of Gulam Ali Saha v. Sultan Khan I.L.R. 1 44(1977)CLT 552 Page 12 of 16 1969 Cutt. 571. wherein it has been held that the recital of payment of, consideration which is a statement made by a deceased person is binding against the interests of his successors as the same is against the pecuniary and proprietary interest of the vendor under Section 32(3) of the Evidence Act. This principle has also been confirmed in Lakshmidhar Sahu v. Kanhel Sahu 1973 (2) C.W.R. 1759. On the principle enunciated in the aforesaid two decisions, the statement of a dead person against his pecuniary interest is a good evidence in support of passing of consideration. This should have been taken notice of while considering the question of passing of consideration.” This Court therefore, finds that the first appellate Court erred in holding that there was no evidence of passing of consideration. 13. It is the further case of the defendants that a deed of cancellation was executed by the vendor but it was unilateral and without any notice to the plaintiff. The trial Court rightly held the same to be ab inito void. Such finding has not been specifically disturbed by the first appellate Court. Therefore, the only admissible evidence regarding the sale transaction in question is the sale deed executed by Mahadeb Sahoo. 14. Coming to the point raised regarding absence of endorsement by the Sub-Registrar as provided under Section 58 of the Registration Act, this Court finds that Page 13 of 16 such endorsement is made when payment of consideration amount is paid and received by the parties in his presence. If the recitals of the sale deed are to be read carefully, the same would suggest that the statement of the vendor implies that he had already received the consideration amount. There is nothing in the deed to suggest that the same was paid at the time of registration in the presence of the Sub-Registrar. There is no law which mandates that consideration has to be paid by the vendee to the vendor only at the time of registration and before the Sub- Registrar. The first appellate Court has clearly fall into error in taking such a view, which can only be treated as contrary to law. 15. As regards identification of the property, reference to the sale deed, marked Ext.A and Ext.3 (certified copy) shows that the suit land has been described in the following manner. “North- Vendee South –Road East- Badrinath West- Vendor.” Page 14 of 16 Further, other relevant particulars of the property, such as khata number and plot number including the name of mouza have been specifically mentioned. This Court therefore, fails to comprehend as to how the property is not capable of being identified. True, the plaintiff in her evidence referred to some other boundary tenants but then the same would pale into insignificance when one considers the clarity with which the property has been described in the sale deed. Interestingly, the deed of cancellation (Ext.B), which has otherwise no legal sanctity, also mentions the very same particulars of the property as also the boundaries, i.e. north- vendee, south- road, east- Badrinath and west- vendor. So it is clear that the vendor was himself certain as to which property he was dealing with. It is therefore, not open to his successors to take a contrary plea after his death. This Court finds that the trial Court rightly held the suit property to be identifiable. 16. From the foregoing discussion on facts and law, this Court finds that the trial Court had very rightly Page 15 of 16 decreed the suit but the first appellate Court, on entirely erroneous premises, reversed the findings. 17. From what has been narrated hereinbefore, it is well evident that the findings of the first appellate Court cannot be sustained being erroneous. This Court is therefore, persuaded to interfere with the impugned judgment. 18. In the result, the appeal is allowed. The impugned judgment and decree passed by the first appellate Court is hereby set aside. The judgment and decree passed by the trial Court is hereby confirmed. There
Decision
shall be no order as to costs. Judge …………….……………. Sashikanta Mishra, Orissa High Court, Cuttack The 19th July, 2024/ A.K. Rana, P.A. Signature Not Verified Digitally Signed Signed by: AJAYA KUMAR RANA Designation: PERSONAL ASSISTANT Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 22-Jul-2024 12:29:53 Page 16 of 16