The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK RSA No.105 of 2005 (From the judgment and decree dated 31.1.2005 and 15.2.2005 passed by learned Ad hoc Addl. District and Sessions Judge (Fast Track Court), Baripada in T.A. No.27/15 of 2003-02) A.F.R. Bidyadhar Padhi (since dead) Represented through his L.Rs Basanta Manjari Mishra and others … Appellants -versus- Madhusudan Upadhaya (since dead) Represented through his L.Rs Pramodini Upadhaya and others … Respondents Advocates appeared in the case through hybrid mode: For Appellants : Mr.S.P.Mishra, Sr. Advocate -versus- For Respondents : Mr. S.Kar, Advocate. --------------------------------------------------------------------------- CORAM: JUSTICE SASHIKANTA MISHRA JUDGMENT 06.09.2024. R.S.A. No.105 of 2005 Page 1 of 16 Sashikanta Mishra,J. The original defendant No. 1 has filed this appeal against the confirming judgment passed by learned Ad hoc Addl. District and Sessions Judge, Fast Track Court, Baripada in T.A. No.27/15 of 2003-02 on 31.1.2005 followed by decree whereby the judgment passed on 21.2.2002 followed by decree in T.S. No.34/1993 by the learned Civil Judge (Sr. Divn.), Udala was confirmed. 2. For convenience, the parties are referred to as per their respective status in the trial Court. 3. The suit was filed by the original Plaintiffs (four in number) to declare the Sale Deed No.590 dated 16.2.1993 as invalid and not binding on them and that
Facts
Defendant Nos.1 to 4 derived no right, title and interest basing on said sale deed and to declare the right, title and interest of the Plaintiffs as well as Defendant No.5 over the suit land with recovery of possession. 4. The case of the Plaintiffs, briefly stated, is that they are the sons of Defendant No.5 and Defendant R.S.A. No. 105 of 2005 Page 2 of 16 No.6 is a cousin of Defendant No.5. The suit land measuring Ac.0.08 decs. is a homestead land and the ancestral property of Defendant No.5 as per Schedule- A of the plaint. The land was originally allotted to the father of Defendant No.5-Ananta Charan Upadhyaya as his share in partition among his brothers which was subsequently recorded in the name of Defendant No.5 as per Schedule-B. The Plaintiffs and Defendant No.5 were in possession over the suit land and Plaintiff No.2 constructed a katcha house thereon and was residing there. On 23.2.1993, Defendant Nos.1 to 4 forcibly entered into the suit house along with their henchmen and threatened the Plaintiffs to vacate the house and also to demolish the same after forcibly removing him. They claimed to have purchased the suit land. On enquiry, the Plaintiffs came to know about the existence of a sale deed purportedly executed by Defendant No.5 in favour of Defendant Nos.1 to 4 on 16.2.1993 for a consideration of Rs.24,000/-. According to the Plaintiffs, said deed was obtained R.S.A. No. 105 of 2005 Page 3 of 16 fraudulently and no consideration was ever paid to Defendant No.5. 5. The case of Defendant Nos.1 to 4 is that the suit is collusive in nature and that they had purchased Ac.0.010 decs. of land adjoining to the northern side of the suit land on 29.9.1990. When they wanted to construct a house over the said land, they found that there was no passage thereto other than the suit land. They came to know that Defendant No.6 had purchased the suit land in the year 1959 by oral sale from Defendant No.5. Thereafter they consulted with an Advocate and Defendant No.5 executed the registered sale deed dtd.16.2.1993 in their favour wherein Defendant No.6 was an attesting witness. The consideration was also paid to Defendant No.5 and Defendant No.6 delivered possession on the date of registration of the Sale Deed. 6. Basing on such rival pleadings, the trial Court framed the following issues for consideration; R.S.A. No. 105 of 2005 Page 4 of 16 (1) Is the suit maintainable in its present form? (2) Is the suit barred by the law of limitation, waiver, estoppel and acquiescence? (3) Is the suit land a part of the ancestral properties of the plaintiff and proforma defendants? (4) Are the plaintiffs are in possession of the suit land. (5) Was the alleged sale deed in favour of Defendants 1 to 4 valid and was it executed by P.D.No.5 for want of money to clear up loan and was it acted upon? (6) Is the alleged sale deed binding on Plaintiffs no. 1 to 4? (7) Has the proforma Defendant No.5 any authority to sell the suit land ? (8) Was there any sale to proforma Defendant No.6 by proforma R.S.A. No. 105 of 2005 Page 5 of 16 Defendant No.5 and was proforma Defendant No.6 ever in possession of the suit land ? (9) Is the mutation in favour of the Defendant Nos.1 to 5 legal and confer any title on the Defendant Nos. 1 to 4? (10) To what relief or reliefs the plaintiffs are entitled to? (11) Whether the sale deed of 16.2.1993 executed by Defendant No.5 under the fraud and without consideration and liable to be set aside ? 7. The trial Court, after evaluating the oral and documentary evidence on record held under Issue No.3 that no sale was made by Defendant No.5 of the suit land in favour of Defendant No.6 and Defendant No.6 was not in possession. On Issue No.5, it was held that the sale deed was executed without payment of any consideration to Defendant No.5, who is the real owner of the suit land. It was also held that the sale deed R.S.A. No. 105 of 2005 Page 6 of 16 marked Ext.A was manufactured to give a colour of sale and obtained by fraud from Defendant No.5 with a promise to pay lump sum amount for his treatment though no consideration money was paid to him. It was also held that there was no legal necessity for the sale. Thus, the trial Court held that the sale deed vide Ext.A was never acted upon. On such findings the remaining issues were answered accordingly and the suit was decreed by granting all the reliefs claimed by the Plaintiffs. 8. The Defendant No.1 alone carried the matter in appeal. The 1st Appellate Court took note of the findings arrived at by the Trial Court and held at the outset that the finding that the suit land is the ancestral property of the Plaintiffs had gone unchallenged. As regards the execution of the sale deed by Defendant No.5, it was held that the suit land being ancestral property, the Plaintiffs have equal right over it along with Defendant No.5, who did not therefore have any absolute right to alienate it without R.S.A. No. 105 of 2005 Page 7 of 16 legal necessity. Moreover, in view of the evidence that the consideration money had been paid to Defendant No.6 the 1st Appellate Court found that there was no reason to do so as Defendant No.5 was the true owner. That apart, while Defendant No.6 being an attesting witness in the registered sale deed implicitly acknowledges the title of Defendant No.5 in the sale deed itself, he cannot claim further title basing on an affidavit sworn by him in 1988. The 1st Appellate Court therefore, held that the trial Court had rightly declared the sale deed invalid and that the Defendant Nos.1 to 4 had derived no title out of it. On such findings, the appeal was dismissed and the judgment of the trial Court was confirmed. 9. Being further aggrieved, the Defendant No.1 preferred this appeal, which has been admitted on the following substantial question of law; (A) When Defendant No.5 was the recorded owner of Schedule B land which has been purchased by Defendant Nos.1 to R.S.A. No. 105 of 2005 Page 8 of 16 4 vide RSD Dt.16.2.1993, whether plaintiffs the sons of Defendant No.5 during the life time of Defendant No.5 can challenge the sale deed Ext.’A’ ? (B) Where the recital of Ext.A coupled with the oral evidence satisfies the requirements of Section 91 of Evidence Act clearly establishes that the consideration under Ext.A as received by Defendant No.5, whether the learned courts below are justified to arrive at a conclusion to the contrary. 10. Be it noted that the original Defendant No.1 having expired has since been substituted by his L.Rs. Similarly, the Plaintiffs-Respondents and some of the other Defendants having died have been duly substituted by their respective L.Rs. during pendency of this appeal.
Legal Reasoning
would have no title to transfer. It is trite law that mere entry in the ROR neither creates nor extinguishes title. Only because there is a note of illegal possession by Defendant No.6 does not, ipso facto, confer title on him over the suit property. Moreover, both the Courts below have, on the basis of evidence on record held that Defendant No.6 was not in actual possession. After independently going through the evidence, this Court finds no reason to take a different view. 17. For the foregoing reasons therefore, this Court finds no justified reason to disturb the concurrent findings of fact arrived at by the Courts below. R.S.A. No. 105 of 2005 Page 15 of 16 Resultantly, the appeal fails and is therefore, dismissed but in the circumstances, without any cost. …………….……..………. Sashikanta Mishra, Judge Ashok Kumar Behera Signature Not Verified Digitally Signed Signed by: ASHOK KUMAR BEHERA Designation: A.D.R.-cum-Addl. Principal Secretary Reason: Authentication Location: High Court of Orissa, Cuttack Date: 09-Dec-2024 12:22:23 R.S.A. No. 105 of 2005 Page 16 of 16
Arguments
11. Heard Mr. S.P.Mishra, learned Senior Counsel with Mr. S. Mishra, learned counsel for the Defendants-Appellants and Mr. S. Kar, learned counsel appearing for the Plaintiffs-Respondents. R.S.A. No. 105 of 2005 Page 9 of 16 12. Assailing the impugned judgment, Mr. Mishra, learned Senior counsel would argue that both the courts below have considered the oral evidence adduced to explain the contents of the sale deed even though the recitals thereof are clear and unambiguous to the effect that consideration money was duly paid by the vendee to the vendor. Such evidence ought to have been excluded as per Sections 91 and 92 of the Evidence Act. Fact remains that the consideration amount was paid to Defendant No.6 who paid it to Defendant No.5, which the latter admitted. The Defendant No.5 being the father of Plaintiffs was in the position of the Karta of the family and as mentioned in the sale deed itself, the sale was for legal necessity which is permissible in the eye of law. According to Mr. Mishra therefore, both the courts below fell into error in holding that title had not passed to Defendant Nos.1 to 4. 13. Mr. S. Kar. On the hand, would argue that firstly, the finding of the Trial Court that the property R.S.A. No. 105 of 2005 Page 10 of 16 is ancestral in nature has gone unchallenged. Even otherwise, after partition also, the original character of the ancestral property does not get lost and therefore, the Plaintiffs have right to challenge the sale deed in question. Mr. Kar further submits that the Defendant Nos.1 to 4 and 6 had admitted in their written statement that consideration was paid to Defendant No.6 and not to the true owner namely, Defendant No.5. Mr. Kar also argues that the case of the Plaintiffs is covered under the proviso to Section 92 and therefore, oral evidence can be considered under such circumstances. 14. As has been narrated hereinbefore, the suit property is said to have fallen to the share of the father of Defendant No.5-Ananta Charan Upadhyaya in a family partition among his brothers, which came to be recorded subsequently in the name of Defendant No.5 as per Schedule-B of the plaint. According to Defendant Nos.1 to 4, Defendant No.6 purchased the suit land in the year 1959 from Defendant No.5 by oral R.S.A. No. 105 of 2005 Page 11 of 16 sale. He also swore an affidavit in the year 1988 (Ext.G). The contesting defendants further claimed that since the suit land continued to be recorded in the name of Defendant No.5 though possession was of Defendant No.6, they on legal advice got the sale deed executed on 16.2.1993 in their favour by Defendant No.5 on payment of consideration. Both the courts below have disbelieved this stand. This Court on an independent appreciation of the facts pleaded and evidence adduced also finds it difficult to believe the plea of oral sale in 1959 for the reason that firstly, if such a sale had taken place, why was the property not mutated in favour of Defendant No.6 till as late as 1989 when the settlement R.O.R. was published. No evidence has been adduced to explain the apparent omission of Defendant No.6 to get the property recorded in his name even though the oral sale being for a consideration of Rs.90/- would ordinarily be valid even in the absence of a registered document. The Hal R.O.R. marked Ext.1 mentions illegal possession of Defendant No.6. Again no steps appear to have been R.S.A. No. 105 of 2005 Page 12 of 16 taken by Defendant No.6 to either have the R.O.R. corrected or to establish his title by filing a civil suit. Reliance has been placed on an affidavit purportedly sworn by Defendant No.5 in 1988. It is obvious that as between the R.O.R. and the so-called affidavit the presumption of title would arise only in case of the former and not the latter. The plea that the suit property being recorded in the name of Defendant No.5 despite the oral sale in the year 1959, Defendant Nos.1 to 4 on legal advice got the RSD dated 16.2.1993 executed by Defendant No.5 is difficult to believe. This is for the reason that in the said deed Defendant No.6 is one of the attesting witnesses and thereby implicitly he acknowledges the title of the true owner i.e. Defendant No.5, as rightly held by the 1st Appellate Court. Much was pleaded and argued with regard to non-passing of consideration and legal necessity justifying the same. But then, when one considers the written statement of Defendant No.5 it is seen that he has taken a specific stand that he had never sold the suit land to Defendant Nos.1 to 4 on 16.2.1993 as he R.S.A. No. 105 of 2005 Page 13 of 16 had no reason to do so since it was his only homestead land. He however, admits that being asked by Defendant No.6 he had accompanied them to Baripada for treatment as he was ill and during such visit he was assured that he would be paid much higher amount than the actual consideration if he executed a document and surreptitiously obtained his signature. He has further categorically averred that he was not paid a single pie. It is true that Defendant No.5 never came forward to adduce evidence. 15. Be that as it may, it has been admitted by Defendant Nos.1 to 4 in their written statement that consideration was paid not to Defendant No.5, the true owner, but to Defendant No.6. It has been argued that Defendant No.6 in turn paid the amount to Defendant No.5. This is entirely unbelievable particularly, when contrasted with the specific stand taken by Defendant No.5 in his written statement referred to before. 16. From what has been narrated hereinbefore, it is no longer necessary to enter into the controversy as to R.S.A. No. 105 of 2005 Page 14 of 16 if the consideration amount had actually been paid or not or as to if there was any legally necessary for the same. This is being said for the reason that firstly, if Defendant No.6 had acquired the property by way of oral sale way back in the year 1959, there is no reason why Defendant Nos.1 to 4 would approach Defendant No.5 to execute the sale deed because, if the oral sale is valid as claimed by them, then he (Defendant No.5)