Chattisgarh High Court
Mohammad Altaf Memon vs Phanindra Bharat on 26 July, 2022
Author: Rajani Dubey
Bench: Rajani Dubey
1
AFR
HIGH COURT OF CHHATTISGARH, BILASPUR
FA No. 287 of 2015
Judgment reserved on : 27.06.2022
Judgment delivered on : 26.07.2022
Mohammad Alfaf Memon, S/o Abdul Kadar, aged about
24 years, R/o Singar Bhata, Kanker, Police Station & Post
Kanker, Civil and Revenue District Kanker (C.G.)
---- Appellant/Defendant No.1
Versus
1. Phanindra Bharat, S/o Late Vishal Lal Bharat, aged about
54 years, R/o Thakur Road, Jagdalpur, Police Station &
Post Jagdalpur, Civil and Revenue District Bastar
(C.G.)/Plaintif
2. State of Chhattisgarh, Through : Collector, Office of
Collectorate, Jagdalpur, District Bastar (C.G.)
(Respondent/defendant No.2)
---- Respondents
For Appellant : Mr. Manoj Paranjape, Advocate
For Respondent No.1 : Mr. Prafull N. Bharat, Sr. Advocate
with Mr. Harshal Chouhan,
Advocate.
For State : Mr. Sanjay Pathak, P.L.
D.B. : Hon'ble Shri Justice Goutam Bhaduri &
Hon'ble Smt Justice Rajani Dubey
C A V Judgment
Per Rajani Dubey, J
01. The defendant No.1/appellant herein has filed this appeal being aggrieved by judgment and decree dated 09.09.2015 passed by II Additional District Judge, Bastar at Jagdalpur, in 2 Civil Suit No.06A/2014, whereby the learned trial Court decreed the suit for declaration and injunction in favour of plaintiff/respondent No.1 herein.
02. Before the learned trial Court, this is an admitted fact that on 25.02.2012, an agreement for sale of suit property was executed between plaintiff/respondent No.1 and defendant No.1/appellant. On 25.02.2012, the plaintiff received Rs.4,89,000/- by cheque and Rs.11,000/- in cash as advance by defendant No.1/appellant.
03. Brief facts of the case are that plaintiff/respondent No.1 herein filed a suit for declaration and injunction in respect of property bearing Kh. No.33 & 62 total area 8.60 hectare situates at village Piplawand, District Bastar (C.G.). The declaration was sought to the effect that the sale deed dated 30.08.2012 be declared null and void and the injunction be issued defendant and he be restrained from creating third party interest and from dispossessing the plaintiff and the mutation of the defendant No.1/appellant be set aside. The claim in the suit was based inter-alia on the allegation that on 25.02.2015 plaintiff/respondent No.1 entered into an agreement with defendant No.1/appellant for sale of the property in question for consideration of Rs.19,72,000/-. It was alleged that the amount to the tune of Rs.5,00,000/- was paid as a part performance and the remaining amount was paid by the defendant No.1/appellant through cheque bearing 3 No.000006 dated 01.03.2013, but the said cheque could not be encashed due to stop payment and meanwhile the registered sale deed has been executed without full payment of the amount of the consideration. It was alleged that defendant No.1 by playing fraud got executed the sale deed in his favour. Despite of repeated reminders the balance amount has not been paid. Accordingly, the suit was filed for declaration and injunction.
04. In written statement, the defendant No.1/appellant herein denied all the allegations made in the plaint and stated that according to the agreement, the defendant No.1 was ready and willing to perform his part of contract and in-fact, he has paid the amount of part performance to the tune of Rs.5,00,000/-. It was specifically averred in the written statement that after execution of agreement, the defendant No.1 came to know that the land in question is not in possession of the plaintiff and same has been encroached by the villagers and the villagers not handing over the possession to the plaintiff. The defendant No.1 requested the plaintiff to return the amount of part performance and cancelled the agreement, but he plaintiff has assured that he will remove the encroachment and possession will be handed over to him. On 05.07.2012, the plaintiff has assured the defendant No.1 that after execution of the sale deed the possession will be handed over. The defendant No.1 has issued cheque for 4 remaining amount of sale consideration and there was sufficient fund in the account of the defendant No.1 and the cheque was issued with an understanding that it will be encashed after handing over the possession to the defendant No.1. The sale deed was executed on 30.08.2012 thereafter, the plaintiff without handing over the possession of the property tried to encash the cheque issued by the defendant No.1. When the appellant came to know he has instructed the bank for stop payment and on such instruction the cheque was bounced.
05. The learned trial Court, after appreciating the oral and documentary evidence, decreed the suit in favour of the plaintiff and it was held by the learned trial Court that the defendant No.1/appellant herein by playing fraud and without paying full amount of consideration got executed the sale deed. It was also held by the learned trial Court that the plaintiff is in possession of the land in question and injunction has been granted in favour of the plaintiff and against the defendant No.1. Hence, this appeal filed by the defendant No.1/appellant herein.
06. Learned counsel for the appellant submits that the learned trial Court while passing the impugned judgment and decree has failed to appreciate the oral and documentary evidence on record in its correct perspective. He further submits that the plaintiff/respondent No.1 by playing fraud 5 sold the property in question to the appellant. The suit property was encroached by the villagers and the plaintiff, after execution of sale deed, had to hand over the possession of the same by removing the encroachment made by the villagers which he has failed to do this. That apart, the plaintiff did not co-operate with the appellant in mutation proceeding. He further submits that the learned trial Court did not touched upon the averments made in the plaint and the evidence adduced by the plaintiff in support of his claim. He also submits that the learned trial Court has not appreciated the provision of Section 49 of the Transfer of Property Act while decreeing the suit. It is also submitted that after execution of sale deed, there would be legal presumption that full amount of consideration has been received by the seller and it would amount to conclude the contract but the learned trial Court has not considered this aspect. Learned counsel also submits that it is apparent on the face of the sale deed that the entire amount of consideration has been received in cash. The learned trial Court has failed to appreciate this fact that the plaintiff himself has admitted before the Registrar that he has received the entire amount of consideration in cash and therefore, it cannot be said that the defendant has played any fraud with the plaintiff. In-fact, the plaintiff has played fraud with the defendant and despite payment of full amount of consideration, the possession has not been handed over and, on the contrary, the agreement dated 29.08.2012 executed 6 and in pursuance of the said agreement, the cheque of Rs.14,02,000/- was paid and according the said agreement the plaintiff was bound to hand over the possession within six months and, therefore, the cheque was presented for encashment on 01.03.2013 i.e. after five months and the plaintiff was intended to withdraw the amount without giving possession of the land and therefore, the instruction for stop payment was issued. It is next submitted that the defendant filed copy of agreement dated 29.08.2012 (Ex.D/2) but the learned trial Court accepted the oral evidence of the plaintiff, which cannot be accepted contrary to the documentary evidence according to the Section 92 of the Evidence Act. The learned trial Court also did not appreciate this fact that the plaintiff has filed an application before the Registrar that he has received the entire amount of consideration in cash and has withdrawn the objection, which was raised by him on 29.08.2012. It is also submitted by learned counsel that the findings recorded by the learned trial Court are based on conjectures and surmises and contrary to the documentary evidence, thus, the impugned judgment and decree is liable to be set-aside. In support of his submission, learned counsel placed reliance on the decision of Supreme Court in the matter of Kaliaperumal v. Rajagopal and Another1, Prakashchand & Ors. v. M/s Velmurugan Constructions by its Partners & Ors.2 Bishundeo Narain Rai (dead( by 1 (2009) 4 SCC 193 2 2014 SCC OnLine Mad 11585 7 Lrs. & Ors. v. Anmol Devi & Ors.3.
07. Learned senior counsel for respondent No.1, referring the decision of Hon'ble Supreme Court in the matter of Kewal Krishan v. Rajesh Kumar and Ors.4 submits that without payment of price mentioned in sale deed, the sale deed is void being executed without consideration.
08. Learned State counsel supported the impugned judgment and decree passed by the learned Court below.
09. We have heard learned counsel for both the parties and perused the material available on record.
10. Before the learned trial Court, execution of agreement and registration of sale deed is an admitted fact. Receipt of advance money of Rs.5,00,000/- also admitted by the plaintiff. Rest are disputed facts between the parties.
11. On the basis of the facts and pleading of parties, the learned trial Court framed as many as 07 issues, out of which three significant issues i.e. Issue Nos. 1, 2 and 3, are as follows :-
"01- D;k izfroknh dz- 1 us oknh dks okn Hkwfe ds fodz; ewY; dh 'ks"k izfrQy jkf'k 14]02]000@& #i;s Ny&diV iwoZd vnk ugha fd;k gS \ 02- D;k oknh dk okn Hkwfe ij dCtk gS \ 03- D;k oknh }kjk okn Hkwfe dk dCtk izfroknh dz- 1 us 'ks"k fodz; ewY; dks oknh dks vnk ugha fd;k gS \"
12. Submission of learned counsel for the appellant that 3 (1998) 7 SCC 498 4 AIR 2022 SC 564 8 according to the sale deed dated 30.08.2012 (Ex.P/1), the plaintiff/respondent No.1 admitted that he has received full amount of sale consideration. The plaintiff filed copy of cheque (Ex.P/2) dated 01.03.2013 amounting to Rs.14,02,000/-, Memo of Bank of India (Ex.P/3), copy of registered intimation letter (Ex.P/4) and copy of reply of defendant (Ex.P/6). Perusal of aforesaid documents clearly goes to show and do not dispute that at the time of registration, defendant gave cheque (Ex.P/2) of Rs.14,02,000/- to the plaintiff, which was dishonoured by the concerned bank.
13. Defendant Mohammad Altaf (DW/1) admitted this fact in para 36 that he gave a cheque of Rs.14,02,000/- to the plaintiff but he stated different version in para 37 of is evidence, which reads thus :-
"37- ;g dguk lgh gS fd mDr psd eSaus fnukad 01-03-2013 dk fn;k FkkA"
This witness, further in para 51 admitted that the cheque of Rs.14,02,000/- which was given by him to the plaintiff, was dishonoured. Further, in para 52 and 53, this witness has admitted that on 19.03.2012, he received a notice of dishonour of cheque from the plaintiff's advocate and on 26.03.2013, he replied the same through his advocate.
14. Defendant No.1/appellant filed copy of agreement dated 29.08.2012 which is marked as Ex.D/2. For facility of reference, the contents of agreement are reproduced herein below :
9
"1. That, the land bearing Kh. No. 62, 33, Rakba 8.248 hectare situated at village Piplawand P.H.N. 27, R.I.B. Tahsil Bastar, District Bastar is recorded in the revenue record in the name of First Party.
2. That, vide agreement of sale dated 06.06.2020 of the above mentioned land, an advance amount of Rs.6,50,000/- (Rs. Six Lakh Only) has been paid to the First party by Second Party.
3. That, the balance amount of Rs.14,02,000/- (Rs. Fourteen Lakh and Two Thousand only), whose cheque number is 000006. The First party will hand over the possession of the said land to the Second party by erecting the pole after preparing all the required documents and mutation & the above amount of cheque will be handed over within six months from today after handing over the possession.
4. That, the First party has filed an application for stay of registration before the District Registration Office, Jagdalpur, which shall be deemed as cancelled and this has been agreed by the First party.
5. That, if the possession is not handed over within six months, the cheque will be cancelled by the Second party, which has been agreed by the First party and again a meeting will be conducted among themselves. Thereafter, both the parties will decide it which is agreed by both the parties.
6. Thus, executed this agreement by their 10 signature in presence of two witnesses with sound mind and without any fear or pressure. It should be kept as proof so that it can be useful in future as and when required."
15. A bare perusal of agreement (Ex.D/2) goes to show that on 06.06.2012, an advance amount of Rs.6,50,000/- had been given to the plaintiff & balance amount of Rs.14,02,000/- through cheque No.000006 was to be paid, but the defendant/appellant did not confront this document to plaintiff Phanindra Bharat (PW/1) and plaintiff has not admitted his signature on Ex.D/2.
16. Defendant No.1/appellant Mohammad Altaf Memon (DW/1) himself has stated in para 3 of his evidence that he signed 'A to A' part in Ex.D/2, whereas plaintiff has signed 'B to B' part in Ex.D/2. Sayeed Aziz Rizavi (DW/2) has also admitted the version of Mohammad Altaf Memon (DW/1) that the plaintiff has signed 'B to B' part in Ex.D/2.
17. Learned counsel for the appellant has strongly relied upon the agreement dated 29.08.2012 (Ex.D/2) but in his written statement, he has not written a single word about this agreement or the transactions mentioned therein and in absence of any pleading thereof, this agreement (Ex.D/2) looses its significance. According to the plaint, the amount of sale consideration is Rs.19,02,000/-, out of which Rs.5,00,000/- has been received as advance and balance amount of Rs.14,02,000/- was to be paid at the time of 11 registration but defendant/appellant stated in his written statement and in evidence that total value of land was settled between the parties as Rs.14,72,000/- and after deduction of advance money of Rs.5,00,000/-, total balance amount comes to Rs.9,72,000/-, whereas as per agreement (Ex.D/2), advance money is mentioned as Rs.6,50,000/- and balance amount which was to be paid at the time of sale deed is Rs.14,02,000/- & the cheque (Ex.P/2) dated 01.03.2013 was also valued at Rs.14,02,000/-. The aforesaid submission, evidence and document in particular (Ex.D/2) of the defendant/appellant would clearly show that the defendant has not paid full amount of sale consideration to the plaintiff and has also not proved the pleading of his written statement by oral and documentary evidence. It is also clear from the evidence of both parties that possession of the suit property has been with the plaintiff. Defendant/appellant has pleaded that the land of plaintiff was encroached by some villagers, therefore, instruction of stop payment was given by him but most surprisingly the defendant neither filed any document to this effect nor examined any witness to substantiate his plea so as to draw any inference in this regard that the suit land was really encroached by the villagers.
18. The learned trial Court recorded its finding in para 37 of its judgment that the cheque was given by the defendant to the plaintiff only with the intention that he (plaintiff) should 12 remove the ban/restriction on the registration of the sale deed and get the title over the suit property and after receiving the notice of dishonour of cheque, the defendant did not pay the full amount of sale consideration to the plaintiff. Thus, from the overall analysis of the pleading and documentray evidence, it is established that the sale deed was executed by playing fraud by the defendant No.1.
19. Hon'ble Supreme Court in the matter of Kewal (supra) has held that the sale deed without consideration is void. Paragraph 15 is relevant and quoted herein below :-
"15. Section 54 of the Transfer of Property Act, 1982 (for short "the TP Act") reads thus:
"54. "Sale" defined - "Sale" is a transfer of ownership in exchange for a price paid or promised or part-paid and part-promised.
Sale how made. - Such transfer, in the case of tangible immoveable property of the value of one hundred rupees and upwards, or in the case of a reversion or other intangible thing, can be made only by a registered instrument.
In the case of tangible immoveable property of a value less than one hundred rupees, such transfer may be made eitehr bya registered instrument or by delivery of the property.
Delivery of tangible immoveable property takes place when the seller places the buyer, or such person as he directs, in possession of the property.
Contract for sale. - A contract for the sale of 13 immoveable property is a contract that a sale of such property shall take place on terms settled between the parties.
It does not, of itself, create any interest in or charge on such property."
Hence, a sale of an immovable property has to be for a price. The price may be payable in future. It may be partly paid and the remaining part can be made payable in future. The payment of price is an essential part of a sale covered by section 54 of the TP Act. If a sale deed in respect of an immovable property is executed without payment of price and if it does not provide for the payment of price at a future date, it is not a sale at all in the eyes of law. It is of no legal effect. Therefore, such a sale will be void. It will not effect the transfer of the immovable property."
20. In the instant case also, defendant No.1/appellant has not succeeded in proving the fact that he has paid full amount of sale consideration to the plaintiff/respondent No.1 herein. That apart, he has also not proved by adducing any cogent and credible evidence that the suit land was encroached by some villagers, for which he sought the reason of stopping balance payment of sale consideration. The learned trial Court has rightly recorded its finding that sale deed was executed playing fraud by the defendant/appellant herein and declared the sale deed null and void deciding the important issues in favour of the plaintiff. The finding so recorded by the learned trial Court is based on proper appreciation of oral and 14 documentary evidence on record, which do not call for any interference by this Court.
21. Accordingly, the appeal being devoid of merit is liable to be and is accordingly dismissed. No order as to costs.
22. Let decree be drawn accordingly.
Sd/- Sd/-
(Goutam Bhaduri) (Rajani Dubey)
Judge Judge
pkd