Jharkhand High Court
Ramesh Prasad And Ors. vs Kasi Sao @ Kasi Prasad And Anr. on 30 July, 2002
Equivalent citations: 2003(51)BLJR549, 2003 AIR - JHAR. H. C. R. 53, 2003 A I H C 378, (2002) 3 JCR 333 (JHA), 2003 BLJR 1 549
Author: Lakshman Uraon
Bench: S.J. Mukhopadhaya, Lakshman Uraon
JUDGMENT Lakshman Uraon, J.
1. This Letters Patent Appeal is directed against the judgment dated 19th December, 1997, passed by the learned single Judge in First Appeal No. 129 of 1996, (R)/Appeal From Original Decree No. 129 of 1996 (r), allowing the said appeal and setting aside the judgment and decree dated 14th June, 1986, passed by the learned Sub-ordinate Judge, Palamau at Daltonganj, in Title Suit No. 57 of 1984, decreeing the plaintiffs/respondents/appellants suit, which was for declaration of right, title and interest, on the basis of registered sale deed dated 18th May, 1984, executed by defendants/appellants/respondents, and also for putting them in possession of the suit lands, covered by the sale deed.
The plaintiffs/respondents/appellants filed the said Title Suit No. 57 of 1984, seeking a decree that the sale deed, executed by defendant/appellant/respondent No. 1 on 18th May, 1984, is valid and conveyed right, title and interest to them. Hence, their right, title and interest be declared and they should be put in possession of the suit land by directing the defendant/appellant/respondent No. 1 to receive the balance amount of consideration.
The plaintiffs had pleaded that defendant No. 1/appellant/respondent was in need of money and he offered to sell 3 decimals of land, out of Plot No. 613, Khata No. 49 of Village - Lesliganj. The plaintiffs/ respondents/appellants agreed to purchase the same for a consideration of Rs. 13,000/-. It was agreed that out of the total consideration money, a sum of Rs. 3,000/-shall be paid by the plaintiffs to defendant No. 1 and the balance amount of Rs. 10,000/- shall be paid to him (defendant No. 1), when he will hand over the Chirkut, issued by the office of the Registrar, after taking back the original sale deed, to the plaintiffs. In terms of the agreement, the sale deed was executed and it was registered on 18th May, 1984. The plaintiffs after registration of the sale deed, tendered the balance amount to defendant/respondent/appellant No. 1, who did not take the money and instead, he replied that he would take the same at home. Again on 19th may, 1984 plaintiff No. 1 went to the residence of defendant No. 1 with the balance amount of Rs. 10,000/- but he was informed that defendant No. 1 had gone somewhere else out of his home, and he is expected to come back after a week. The plaintiff again approached defendant No. 1 and requested him to receive the balance consideration amount but defendant No. 1 took the plea that Chirkut (original) had been misplaced somewhere and hence he was not in a position to accept the balance amount. Defendant No. 1 further assured the plaintiff that as soon as the registration receipt would be made available, the plaintiff would be informed and he {defendant No. 1) would accept the payment. The plaintiffs have pleaded that they were always ready and willing to tender the money to defendant No. 1 but he refused to accept the same. On the other hand, the plaintiffs received a notice dated 11th June, 1984 from defendant No. 1 alleging therein, that as they have defaulted in making full payment of the consideration amount, hence defendant No. 1 had already executed the sale deed in favour of defendant No. 2 and the sale deed dated 18th May, 1984, executed in favour the plaintiffs, has stood cancelled. The plaintiffs learnt that on 11th May, 1984, defendant No. 1 had executed a sale deed in favour of defendant No. 2 in respect of the suit land for a consideration amount of Rs. 14,500/-.
2. The plaintiffs have alleged that they have acquired valid right, title and interest by virtue of the sale deed dated 18th May, 1984, executed by defendant No. 1, in their favour. Hence they are entitled to get delivery of possession of the suit land from defendant No. 1. They also took plea that the registered sale deed, executed by defendant No. 1 in favour of defendant No. 2 did not confer upon him any right, title and interest, regarding the suit land.
3. The defendants in their written statements took the plea, inter alia, that although he (defendant No. ) executed the sale deed in favour of the plaintiffs, but the consideration amount having not been paid to him, no title passed on them and as such possession was not delivered to them. After waiting for a long period, defendant No. 1 for Takazulbadlain and on failure of the plaintiffs to pay the consideration amount, sold the suit land to defendant No. 2 and put him in possession. Further defendant No. 1 cancelled the sale deed by executing a deed of cancellation dated 7th October, 1984, earlier executed in favour of the plaintiffs.
4. Learned Subordinate Judge framed altogether seven issues for just decision of the suit. After hearing both the parties and considering the documents available, he decided all the issues in favour of the plaintiffs/respondents, finding that the sale deed dated 18th May, 1984 conveyed valid right, title and interest in favour of the plaintiffs and the execution of the second sale deed by defendant No. 1 in favour of defendant No. 2 was only for the purposes of getting more money. The trial Court further held that defendant No. 2 purchased the said land with full knowledge of the first sale deed, executed by defendant. No. 1 in favour of the plaintiffs. The trial Court, accordingly, decreed the suit of the plaintiffs and directed the plaintiffs to pay the balance amount of Rs. 10,000/- to defendant No. 1, who, in his turn, would hand over possession of the suit land to the plaintiffs within the stipulated time.
5. The learned single Judge after hearing the learned counsel for both the parties in First Appeal, opined that the judgment and decree, passed by the learned Subordinate Judge was bad in law and was liable to be set aside. Accordingly, the First appeal was allowed by the learned single Judge and the impugned judgment and decree, passed by the learned Sub-ordinate Judge, was set aside.
6. Learned counsel for the plain tiffs/respondents/appellants has submitted that the plaintiffs/respondents/appellants had always been willing and ready to offer the balance consideration amount of Rs. 10,000/- to the defendant/appellant/respondent No. 1, since the day of registration of the document itself.
But instead of receiving the money and handing over the Chirkut, defendant/appellant/respondent No. 1 took one plea or the other and later on the sold the land in question for a consideration of Rs. 14,500/-to defendant/proforma respondent/proforma respondent No. 2. The plaintiffs/respondents/appellants have approached on the next day of registration of the document i.e. on 19th May, 1984 but defendant/appellant/respondent No. 1 took the plea that the Chirkut was misplaced and assured to hand over it when it is available, after receiving the balance consideration amount. Learned counsel further submitted that even today the plaintiffs/respondents/appellants are willing and ready to pay the balance amount, as the balance amount of Rs. 10,000/- was promised to be paid, after registered, at the time of handing over the Chirkut,
7. Learned single Judge, in course of argument, has relied on the cases, reported in AIR 1950 Pat 288, Motilal Sahu v. Ugrah Narain Sahu, AIR 1978 Pat 97; Baldeo Singh and Ors. v. Dwarika Singh and Ors., 1985 (33) BLJR 785; Pabni Mahtani v. Haralal Mahto and Ors., 1955 BLJR 93; Ramjanam Pandey v. Shyam Be-hari Lal and Ors. and AIR 1952 Pat 263; Panchdeo Sahu v. Janki Mandar. The learned single Judge considered the relevant portion of the documents to ascertain the intention of the parties and has quoted the contents of the registered sale deed, as mentioned in paragraph No. 7 of the impugned judgment. The learned single Judge has opined that both in the earlier part and the later part of the document, the intention of the parties was to convey the right, title and interest in respect of the suit property only on payment of the balance consideration amount. As the balance consideration amount was not paid to the defendant/appellant/respondent No. 1, hence the right, title and interest had not been conveyed to the plaintiffs/respondents/appellants, as without payment of consideration amount and fulfilling the later part of the condition, no title would have passed upon the plaintiffs. The document clearly shows that on receipt of the balance consideration, the title and possession of the vendee shall be accepted. On payment of the balance consideration, the vendee would be entitled to right, title and interest over the suit property. The learned single Judge has relied the law, laid in Motilal Sahu v. Ugrah Narain Sahu, (supra) and held that in such a case, the inference would be that the intention of the parties was that title would not pass, if the money had not been paid and as money had not been paid, the title remained where it was. The other authorities, mentioned above, have also been discussed by the learned single Judge in detail.
8. The learned counsel for the defendants/appellants/respondents has submitted that after part payment of the consideration amount of Rs. 3,000/- only, the plaintiffs/respondents/appellants did not care to pay the balance consideration amount, although the registered sale deed was executed on 18th May, 1984. Prior to that date of registration, a sum of Rs. 3,000/- was paid to defendant/appellant/ respondent No. 1 Kashi Sao alia Kashi Prasad. Even on the day of registration, the balance consideration amount of Rs. 10,000/- was not paid by the plaintiffs. On the other hand, the plaintiffs/respondents/ appellants have taken plea that on the next day i.e. on 19th May, 1984 they had gone to the house of defendant/appellant/ respondent No. 1 to tender the balance amount, but he was not available at home. When he became available, he took plea that the Chirkut was missing. Since thereafter, he got the suit land sold by registered sale deed in favour of defendant No. 2 proforma defendant Ram Lagan Sao for a consideration of Rs. 14,500/- on a plea that the plaintiffs did not pay the balance amount and he was in need of money. Later on, he also cancelled the registered sale deed executed in favour of the plaintiffs, in absence of payment of balance consideration amount. Thus, it is clear that the balance consideration amount of Rs. 10,000/- was not tendered by the plaintiffs to defendant No. 1. As per the registered sale deed, the condition was that the right, title and interest would pass only on payment of balance consideration amount. The plaintiffs have taken a plea that they are still ready and willing to pay the balance consideration amount and they had also attempted to tender the balance amount since 19th May, 1984. To ascertain the fact as to whether the plaintiffs were ready and willing to tender the balance amount, Mundrika Ram (PW 3) has deposed that he along plaintiff No. 1 had gone to hand over the balance amount of Rs. 10,000/- but he has stated that the cash amount was in the hand of Vijay Shankar, who is not the plaintiff in the suit, as deposed by him in paragraph No. 3 page 4 of the deposition. PW 7 Ramesh Prasad (plaintiff No. 1 himself] has stated that he and his Bhabhi (plaintiff No. 2) paid Rs. 3,000/- to defendant No. 1 and the balance amount of Rs. 10,000/- was to be paid after registration of the sale deed. He has stated that he was ready and willing and is still ready and willing to pay the said amount. In paragraph No. 8, he has stated that he had not paid any amount in presence of the Registrate, at the time of registration. But later on, he had gone to pay the balance consideration amount of Rs. 10,000/- at the house of defendant No. 1. He has denied that Rs. 3,000/- which was paid earlier, was returned back to him for which he executed a receipt (Ext. A). PW 8 Vijay Shankar, who is the husband of plaintiff No. 2, has stated that he and his brother purchased the suit land for a consideration of Rs. 3,000/- and has further said that he is willing to pay the balance amount of Rs. 10,000/-, out of the total consideration amount of Rs. 13,000/-. He has not granted any receipt in token of receipt of Rs. 3,000/- from the defendant, which was advanced to him, prior to the date of registration. PW 9 (plaintiff No. 2) has stated that she and her dewar (plaintiff No. 1) purchased the suit land for a consideration of Rs. 13,000/- for which 3,000/- was paid to defendant No. 1. She has denied that she had received the said amount back.
9. The evidence of the plaintiffs is that they had gone to pay the balance consideration amount of Rs. 10,000/- but the money was not with them. It is further clear from the evidence that the amount was with Vijay Shankar Prasad. Plaintiff No. 1 Ramesh Prasad has deposed that he and plaintiff No. 2 Smt. Pramila devi purchased the land from defendant No. 1. Whereas vijay Shankar Prasad has deposed that he and Ramesh Prasad, his brother, have purchased the land. They had gone to tender the balance amount to defendant No. 1 at his home but the money was not either in the hands of Ramesh Prasad or plaintiff No. 2 Pramila Devi, rather has deposed that the amount was in possession of Vijay Shankar Prasad, who was willing and ready to pay the consideration amount of Rs. 10,000/-. The said Vijay Shankar Prasad is not the plaintiff/respondent/appellant in the present suits and appeal. Thus, it is clear that the plaintiffs/respondent/appellants No. 1 and 2 have never possessed Rs. 10,000/-, the balance consideration amount, while they had gone to the village home of defendant/appellant/respondent No. 1. Therefore, their willingness and readiness to pay the balance consideration amount is not believable, as the person Vijay Shankar Prasad, who is not a party to the suit and appeal, was also ready and willing to pay the balance consideration amount, as per the evidence recorded before the trial Court.
10. The plaintiffs in Title Suit No. 55 of 1984 have claimed for the following reliefs :
(a) For declaration that the sale deed executed by defendant No. 1 in favour of the plaintiffs on 18th May, 1984, which was registered in respect of the suit land, has conveyed right, title and interest in favour of the plaintiffs, as they have paid Rs. 3,000/- to defendant No. 1 and also tendered the balance amount of Rs. 10,000/- on subsequent dates.
(b) The plaintiffs, after declaring their right, title and interest, be put in possession of the suit land and
(c) Defendant No. 1 be directed to make over the Chirkut to the plaintiffs after necessary endorsement and receiving the balance consideration amount.
11. The relevant reliefs show that the plaintiffs have prayed only for declaration of their right, title and interest and for possession over the suit land and also for directing defendant No. 1 to receive the balance consideration amount of Rs. 10,000/- and to hand over the original Chirkut for collecting the original registered sale deed.
12. The suit is based on a registered sale deed, which was registered with the condition that the right, title and interest will pass upon the plaintiffs on payment of balance consideration amount of Rs. 10,000/-. As the said amount was never paid, hence no right, title and interest passed upon the plaintiffs, which can not be declared in their favour when the second part of the registered sale deed regarding payment of balance amount was not fulfilled within a stipulated period, as the time is the essence of the contract. When right, title and interest did not pass, then possession of the suit land cannot be delivered to the plaintiffs. As I have stated above, the plaintiffs had taken plea that they were ready and willing to pay and are still ready and willing to pay the balance consideration amount. I have already considered above that when they had gone to the village home of defendant No. 1, the money was not with them rather it was Vijay Shankar Prasad, who had possessed Rs. 10,000/- and was ready and willing to pay the balance consideration amount. When the balance consideration amount was not paid in time, then the defendant got the suit land sold in favour of defendant No. 2 for a valuable consideration of Rs. 14,500/- by a registered sale deed and handed over possession of the suit land to him.
13. In view of the above considered facts, I find that there is no infirmity in the impugned judgment dated 19th December, 1997, passed by the learned single Judge in Misc. Appeal No. 129 of 1986(R).
14. In the result, this LPA is dismissed and the order of the learned single Judge, passed in Misc. Appeal No. 129 of 1986(R) is, hereby, upheld. However, in the facts and circumstances of the case, there shall be no order as to costs.
S.J. Mukhopadhaya, J.
I agree,