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Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK R.S.A. No.431 of 2003 (In the matter of an appeal under Section 100 of the Code of Civil Procedure, 1908) Md. Nayeem @ Md. Nayeen Ansari …. Appellant -versus- Chaitan Charan Pradhan and others …. Respondents Appeared in this case:- For Appellant For Respondents : : Mr. D. P. Mohanty, Advocate Mr. S.K. Nayak-2, Advodate Appeared in this case:- CORAM: JUSTICE A.C. BEHERA JUDGMENT Date of hearing : 17.11.2025 / date of judgment : 23.12.2025 A.C. Behera, J. This 2nd appeal has been preferred against the confirming judgment. 2. The appellant in this 2nd appeal was the plaintiff before the trial court in the suit vide T.S. No.19 of 1991-I and appellant before the 1st appellate court in the 1st appeal vide T.A. No.40 of 2000. // 2 // 3.
Legal Reasoning
The respondents in this 2nd appeal were the defendants before the trial court in the suit vide T.S. No.19 of 1991-I and respondents before the 1st appellate court in the 1st appeal vide T.A. No.40 of 2000. 4. The suit of the plaintiff(appellant) vide T.S. No.19 of 1991-I against the defendants(respondents) before the trial court was a suit for declaration of title over the Schedule-A suit properties as well as for a declaration that, the cancellation Deed No.821 dated 22.07.1989 as null and void and for confirmation his possession over the Schedule-A suit properties. 5. As per the case of the plaintiff, the defendant no.1 being in need of money for his legal necessities, he offered for selling the suit properties, i.e., Ac.0.34 decimals of Plot No.12 under Khata No.130 in Village- Bhaluka under Champua Police Station in the district of Keonjhar in month of May, 1989 to the plaintiff, to which, the plaintiff agreed to purchase. Then, after taking consideration amount thereof, i.e., Rs.5,000/-(rupees five thousand) from the plaintiff, the defendant no.1 delivered possession of the suit properties to the plaintiff in the said month of May, 1989 with an oral promise that, he(defendant no.1) shall execute the sale deed in respect of the same on its next month. Then, on dated 17.06.1989, the defendant no.1 executed the sale deed in respect of the suit properties in favour of the plaintiff and handed over the Page 2 of 15 // 3 // registration ticket to the plaintiff. Then, the plaintiff obtained the registered sale deed from the office of the Sub-registrar. Subsequently, in the month of July, 1989, the defendant no.1 executed and registered a deed of cancellation on dated 22.07.1989 cancelling the sale deed dated 17.06.1989 executed in favour of the plaintiff in respect of the suit properties on the ground of non-payment of consideration of amount and created disturbances in the possession of the plaintiff in the suit properties. For which, a proceeding under Section 145 of the Cr.P.C. was initiated between them. Therefore, without getting any way, the plaintiff filed the suit vide T.S. No.19 of 1991-I against the defendant no.1 arraying some others as defendants praying for declaration of his title over the suit properties as well as for a declaration that, the deed of cancellation dated 22.07.1989 executed by the defendant no.1 cancelling the sale deed dated 17.06.1989 as null and void. 6. Having been noticed from the learned trial court in the suit vide T.S. No.19 of 1991-I filed by the plaintiff, the defendant no.1 contested the same filing his written statement taking his stands that, the suit of the plaintiff is not maintainable for non-joinder of necessary parties. The plaintiff has no cause of action for filing the suit. The suit of the plaintiff is barred by law of limitation. The suit properties are not under the Page 3 of 15 // 4 // possession of the plaintiff, but, the same is under his joint possession along with his co-sharers. He(defendant no.1) had never offered to sale the suit properties to anybody including the plaintiff. He has also not received any consideration amount from the plaintiff for selling the suit properties. He has not delivered the possession of the suit properties to the plaintiff. The suit land was/is not under the possession of the plaintiff at any point of time. As, the plaintiff has some properties adjacent to the suit properties, for which, he had persuaded him(defendant no.1) for selling the suit properties, but, he(defendant no.1) did not agree for the same. Since he(defendant no.1) was in need of money, he had decided to sale the suit properties and asked for the consideration amount from the plaintiff, but, the plaintiff avoided to pay the same and lastly, he(plaintiff) refused to pay the same. For which, he(defendant no.1) had executed the deed of cancellation on dated 22.07.1989 on the ground of non-payment of consideration amount. The so-called sale deed dated 17.06.1989 said to have been relied upon by the plaintiff was not acted upon at any point of time. Therefore, the plaintiff has no right, title and interest in the suit properties. For which, the suit of the plaintiff is liable to be dismissed. 7. Basing upon the aforesaid pleadings and matters in controversies between the parties, altogether six numbers of issues were framed by the Page 4 of 15 // 5 // learned trial court in the suit vide T.S. No.19 of 1991-I and the said issues are:- I S S U E S 1. Whether the sale of the suit land by the defendant no.1 to the plaintiff is void for want of consideration? 2. Whether the plaintiff had paid Rs.5,000/- as consideration amount of the suit land to defendant no.1? 3. Whether the plaintiff has got any right and title over the suit land? 4. Whether the plaintiff is in possession over the suit land? 5. Whether the cancellation deed is in operative in law? 6. In case the deed of cancellation is found valid, if the plaintiff is to get back the consideration amount of Rs.5,000/-? 8. In order to substantiate the aforesaid reliefs sought for by the plaintiff in his plaint vide T.S. No.19 of 1991-I against the defendant no.1, he (plaintiff) examined three witnesses from his side including him as P.W.1 and relied upon the document vide Ext.1, i.e., registered sale deed No.718 dated 17.06.1989 executed by the defendant no.1 in respect of the suit properties in his favour. On the contrary, in order to defeat/nullify the suit of the plaintiff, the contesting defendant no.1 examined one witness from his side, i.e., to Page 5 of 15 // 6 // him as D.W.1 and relied upon the deed of cancellation vide Ext.A on his behalf. 9. After conclusion of hearing and on perusal of the materials, documents and evidence available in the record, the learned trial court answered issue nos.1, 2, 4 and 6 against the plaintiff, but, answered the issue no.5 against the defendant no.1. Basing upon the findings and observations made by the learned trial court in the issues, the learned trial court decreed the suit vide T.S. No.19 of 1991-I of the plaintiff in part on contest against the defendant nos.1 and 31 and ex parte against the rest other defendants entitling the plaintiff only to get back the consideration amount, i.e., Rs.5,000/-(rupees five thousand) from the defendant no.1with interest @ 15% per annum refusing the prayers of the plaintiff for declaration of title and confirmation of possession assigning the reasons that, “the sale deed executed by the defendant no.1 in respect of the suit properties vide RSD No.718 dated 17.06.1989 Ext.1 was not without consideration, because, the plaintiff had paid Rs.5,000/-(rupees five thousand) to the defendant no.1, but, the plaintiff is not in possession over the suit properties. The deed of cancellation vide Ext.A dated 22.07.1989 is considered as ineffective. The sale deed vide Ext.1 executed by the defendant no.1 in respect of the suit properties has not been acted upon. Page 6 of 15 // 7 // For which, the plaintiff is not entitled to get the declaration of his title and confirmation of his possession over the suit properties, but, he(plaintiff) is entitled to get back the consideration amount, i.e., Rs.5,000/- with 15% interest per annum thereon from the defendant no.1.” 10. On being dissatisfied with the aforesaid findings and observations made by the learned trial court in its judgment and decree refusing to declare the title of the plaintiff and to confirm his possession thereon, he (plaintiff) challenged the same preferring 1st appeal being the appellant vide T.A. No.40 of 2000 against the defendant no.1 and others arraying them (defendants) as respondents. After hearing from the learned counsels of both the sides, the learned 1st appellate court dismissed that 1st appeal vide T.A. No.40 of 2000 of the plaintiff as per its judgment and decree dated 11.05.2000 and 01.07.2000 respectively on contest concurring / confirming the findings and observations made by the learned trial court in its judgment and decree against the appellant/plaintiff. 11. On being aggrieved with the aforesaid judgment and decree of the dismissal of the 1st appeal of the plaintiff vide T.A. No.40 of 2000 passed by the learned 1st appellate court on dated 19.04.2003 and 30.06.2003 respectively, he (plaintiff) challenged the same preferring this 2nd appeal being the appellant against the defendant no.1 arraying the Page 7 of 15 // 8 // defendant no.1 as respondent no.1 and also arraying other defendants of the suit as other respondents. 12. This 2nd appeal was admitted on formulation of the following substantial question of law :- (i) Whether, the findings and observations made by the learned trial court in paragraph nos.10 and 10.1 of the judgment and decree in the suit vide T.S. No.19 of 1991-I and confirmation of the same by the learned 1st appellate court in T.A. No.40 of 2000, i.e., the sale deed vide RSD No.718 dated 17.06.1989 (Ext.1) executed by the defendant no.1 in favour of the plaintiff has not acted upon and the said deed has not conveyed any interest in favour of the plaintiff is sustainable under law? 13. I have already heard from the learned counsel for the appellant (plaintiff) and the learned counsel for the respondent no.1(defendant no.1) and others. 14. In order to assail the impugned judgments and decrees of the learned trial court and the leaned 1st appellate court, the learned counsel for the appellant(plaintiff) relied upon the following decisions:- (i) 1991(I) OLR-126 (ii) AIR 2004 Karnataka-450 Page 8 of 15 // 9 // 15. In support of the impugned judgments and decrees, the learned counsel for the respondent no.1(defendant no.1) relied upon the decision
Legal Reasoning
between U.G. Srinivasa Rao vrs. Vinaykumar S. Rao and others : reported in AIR 2004 Karnataka-450 at Para No.17 and contended that, when, the plaintiff has been allowed for refunding back the consideration amount and the suit filed by him(plaintiff) has been decreed partly in favour of the plaintiff, then, he (plaintiff) cannot be treated as an aggrieved person for preferring this 2nd appeal. For which, this 2nd appeal filed by the plaintiff is not maintainable under law. 16. The plaintiff had sought for declaration of title and confirmation of possession over the suit properties on the basis of the sale deed No.718 dated 17.06.1989 vide Ext.1 executed by the defendant no.1 in favour of the plaintiff, but, the learned trial court refused to grant the reliefs, i.e., of declaration as well as confirmation of possession sought for by the plaintiff as per its findings made in paragraph no.10.1 of the judgment and decree assigning the reasons that, “the properties covered under suit Khata No.130 stands recorded jointly in the name of the defendant no.1 along with his other co-sharers. For which, the sale deed executed by the defendant no.1 alone in respect of the joint and undivided suit properties without the consent of his co- sharers does not convey any right, title and interest in respect of the suit Page 9 of 15 // 10 // properties in favour of the plaintiff. Therefore, he(plaintiff) is not entitled to get the decree for declaration of title as well as confirmation of possession over the suit properties, but, he(plaintiff) only entitled to get back the consideration amount, i.e., Rs.5,000/- indicated in the sale deed.” 17. Who will be a person aggrieved, for preferring an appeal has already been clarified by the Apex Court in the ratio of the following the decisions:- (i) In a case between Phoolchand vrs. Gopal Lal : reported in AIR 1967 S.C.-1470 and Jatan Kumar Golcha vrs. Golcha Properties Pvt. Ltd. : reported in (1970) 3 SCC-573 and in a case between Ganga Bai vrs. Vijay Kumar and others: reported in (1974) 2 SCC-393 that, unless a person is prejudicially or adversely affected by a decree, the said person cannot file an appeal challenging that decree. 18. Here, in this matter at hand, when the prayer of the plaintiff for declaration of title and confirmation of possession was refused by the learned trial court as well as by the learned 1st appellate court, then, in view of the propositions of law enunciated by the Apex Court in the ratio of the aforesaid decisions, it cannot be held that, the plaintiff(appellant) is not a person aggrieved and he cannot prefer an appeal challenging the impugned judgment and decree. For which, it is held that, the appellant(plaintiff) being a person aggrieved has right to file this 2nd appeal. Page 10 of 15 // 11 // So, the contention raised by the learned counsel for the defendant no.1 that, the appellant cannot be treated as a person aggrieved for preferring this 2nd appeal has become inacceptable under law. 19. So far as the findings and observations made by the learned trial court in Paragraph Nos.10 and 10.1 of its judgment and decree, i.e., sale deed vide RSD No.718 dated 17.06.1989(Ext.1) executed by the defendant no.1 in favour of the plaintiff in respect of the joint and undivided suit properties vide Khata No.130, Plot No.12 does not convey any right, title and interest in respect of the suit properties in favour of the plaintiff is concerned, Suit Khata No.130 stands recorded jointly in the name of the defendant no.1 along with his co-sharers. The sale deed vide Ext.1 in respect of the suit properties has been executed by the defendant no.1 only in favour of the plaintiff without the consent and signature of his co-sharers. Whether, the sale deed vide Ext.1 executed by the defendant no.1 in respect of his joint and undivided suit properties without the consent of his co-sharers shall be valid or invalid has been clarified in the ratio of the following decisions:- (i) In a case between Parmal Singh and others vrs. Ghanshyam and others : reported in AIR 2019 M.P. -131(D.B.) that, unless and Page 11 of 15 // 12 // until the properties are partitioned, co-sharer can only sell to the extent of his share, but, he cannot sale any specific portion of the land.(Para-13) In a case between Gajara Vishnu Gosavi vrs. Prakash (ii) Nanasaheb Kamble and others : reported in (2009) 10 SCC-654 that, an undivided share of a coparcener can be a subject matter of sale/transfer, but, the possession cannot be handed over to the vendee unless the property is partitioned by metes and bounds, either by decree of a court in partition suit, or by settlement among the co- sharers. In a case between Ramdas vrs. Sita Bai and others : reported (iii) in (2009) 7 SCC-444 that, an undivided share of a co-sharer may be the subject matter of sale, but, possession cannot be handed over to the vendee, unless the property is partitioned by metes and bounds amicably and through mutual settlement or by a decree of the Court. In a case between Gorakh Nath Dube vrs. Hari Narain (iv) Singh and others : reported in AIR 1973 S.C.-2451 that, an alienation made in excess of power to transfer would be, to the extent of excess of power, invalid. In a case between Binayak Padhi(dead) after him Basanti (v) Padhi vrs. Bipra Ch. Sahu and others : reported in 2007(2) CLR- 496 that, transfer by one co-owner without the consent of other co- owners cannot be invalid in toto, but, the same shall remain valid to the extent of the share of the donor. In a case between Sk. Golam Lalchand vrs. Nandu Lal (vi) Shaw alias Nandu Lal Keshri alias Nandu Lal Bayes and others : reported in (2024) SCC Online (Supreme Court)-2456 that, the owners right to transfer in un-partitioned joint properties is limited to his share and not beyond that. 20. Here, in this matter at hand, when the execution and registration of the sale deed vide Ext.1 by one of the co-sharers of the suit properties, i.e., the defendant no.1 in favour of the plaintiff vide Ext.1 is not under dispute and when, the sale deed has been executed by the defendant no.1 in respect of the joint and undivided suit properties in favour of the plaintiff without the consent of his co-owners(co-sharers), then at this juncture, in view of the principles of law enunciated in the ratio of the Page 12 of 15 // 13 // aforesaid decisions, the sale deed vide RSD No.718 dated 17.06.1989 vide (Ext.1) executed by the defendant no.1 in respect of the suit properties in favour of the plaintiff cannot be invalid in toto, but, the same shall be valid to the extent of the share of the defendant no.1 in the suit properties. 21. When, the suit properties has not been partitioned between all the co-owners of the suit properties including the defendant no.1, then at this juncture, in view of the clarifications made in the aforesaid judgments, unless and until, the suit properties are partitioned through metes and bounds partition, the plaintiff being purchaser of the same from one of the co-sharers, i.e., from the defendant no.1, he(plaintiff) is not entitled to get specific title and possession over any specific portion of the suit Plot No.12 as per law. 22. Therefore, by applying the principles of law enunciated in the ratio of the aforesaid decisions, it is held that, the findings and observations made by the learned trial court in the judgment and decree passed in the suit vide T.S. No.19 of 1991-I and the confirmation to the same by the learned 1st appellate court in the 1st appeal vide T.A. No.40 of 2000, i.e., sale deed vide RSD No.718 dated 17.06.1989 vide Ext.1 does not convey any right, title and interest in respect of the properties in favour of the plaintiff cannot be sustainable under law. Because, as per Page 13 of 15 // 14 // law, the sale of the suit properties made by the defendant no.1 to the plaintiff through the sale deed vide Ext.1 is valid to the extent of the share of the defendant no.1 in the suit properties, but, the said sale deed vide Ext.1 is not invalid in toto. 23. When, it is held that, the sale deed vide RSD No.718 dated 17.06.1989 vide Ext.1 is valid to the extent of the share of the vendor(defendant no.1) in the suit properties, but, the same is not invalid in toto, then at this juncture, the part decree passed by the learned trial court in favour of the plaintiff and the confirmation of the same by the learned 1st appellate court in the 1st appeal vide T.A. No.40 of 2000 only entitling the plaintiff to get back Rs.5,000/-(rupees five thousand) (consideration amount) with interest thereon from the defendant no.1 cannot be sustainable under law. 24. For which, this 2nd appeal preferred by the appellant(plaintiff) is to be allowed in part. 25. In result, this 2nd appeal filed by the appellant(plaintiff) is allowed in part. The impugned judgment and decree dated 11.05.2000 and 01.07.2000 respectively passed by the learned trial court in the suit vide Page 14 of 15 // 15 // T.S. No.19 of 1991-I and confirmation to the same by the learned 1st appellate court in the 1st appeal vide T.A. No.40 of 2000 are set aside. 26. The suit be and the same filed by the appellant(plaintiff) vide T.S. No.19 of 1991-I is decreed in part on contest against the defendant nos.1 and 31 and ex parte against rest other defendants. The prayer for declaration of exclusive title of the plaintiff over the suit properties and for confirmation of his possession thereon are refused, whereas, the sale deed vide RSD No.718 dated 17.06.1989(Ext.1) executed by the defendant no.1 in favour of the plaintiff in respect of the suit Plot No.12 is held as valid to the extent of the share of the defendant no.1 in the said suit Plot No.12 entitling the plaintiff to get possession from the suit Plot No.12 in respect of the share of his vendor, i.e., defendant no.1 through partition of the same as per law between all the co-owners thereof including plaintiff(Md. Nayeem@ Md. Nayeen Ansari). ( A.C. Behera ) Judge Orissa High Court, Cuttack The 23rd of December, 2025/ Jagabandhu, P.A. Signature Not Verified Digitally Signed Signed by: JAGABANDHU BEHERA Designation: Personal Assistant Reason: Authentication Location: OHC, CUTTACK Date: 27-Dec-2025 15:04:47 Page 15 of 15