Patna High Court
Jaideo Yadav & Ors vs Raghunath Yadav & Anr on 20 March, 2009
Equivalent citations: AIR 2009 (NOC) 1926 (PAT)
APPEAL FROM APPELLATE DECREE NO.181 OF 1994
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Against the judgment and decree dated 21.02.1994 passed by Additional District
Judge, I, Purnea in Title Appeal No. 44 of 1989 (51/91) reversing the judgment and
decree dated 23.05.1989 passed by Additional Munsif, I, Purnea in Title Suit
No.118 of 1986 (277/1988).
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1. Jaideo Yadav, son of Ajodhi Yadav,
2. Giridhar Yadav, son of Ajodhi Yadav,
3. Harilal Yadav son of Ajodhi Yadav,
All residents of Dumgara, P.S. & P.O. Dhamdaha, District Purnea.
--Plaintiffs-Respondents Ist Set-Appellants
Versus
1. Raghunath Yadav, son of Mehi Yadav,
resident of Dumgara, Police Station- Dhamdaha, District Purnea.
-- Defendant 2nd Party-Appellant-Respondent Ist Set.
2. Siyalal Yadav, son of Late Ganga Yadav, resident of Damgara, Police Station-
Dhamdaha, District- Purnea.
-- Defendant Ist party- Respondent 2nd Set-Respondent 2nd Set.
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For the appellants : M/s Abbas Haider, Md.Kamil Akhtar & Syed Hussain
Majeed, Advocates
For the respondents : M/s Ram Naresh Sharma & Chandreshwari Rai,
Advocates.
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PRESENT
HON'BLE MR. JUSTICE S.N. HUSSAIN
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S.N.Hussain,J. This second appeal has been filed by plaintiffs-respondents Ist Set-
appellants challenging the judgment and decree of the learned court of appeal
below.
2. The matter arises out of Title Suit No.118 of 1986 (277/1988) which
was filed by the plaintiffs for the following reliefs:-
(a) Declaration that the plaintiffs had good title to the suit land by way
of sale deed executed by defendant Ist party in favour of the
plaintiffs and that the deed of cancellation of the aforesaid sale
deed executed by defendant Ist Party was void.
(b) Declaration that the deed of gift executed by defendant Ist Party in
favour of defendant 2nd Party on 15.05.1986 was fraudulent, sham
and inoperative and did not confer any title or possession upon
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defendant 2nd party with respect to the suit land as the plaintiffs are
in possession of the same.
(c) The deed of gift be cancelled and defendants 2 nd party be injuncted
from coming upon the suit land.
(d) Cost of the suit be awarded to the plaintiffs.
(e) Any other relief or reliefs to which the plaintiffs are entitled.
3. The claim of the plaintiffs was that after receipt of the full consideration
amount, defendant no.1 executed sale deed dated 09.02.1978 (Ext.-1) in favour of
the plaintiffs with regard to suit premises and got it registered and although
possession was given to the plaintiffs on the date of sale, but the chirkut of the sale
deed was not given to the plaintiffs by defendant no.1 as he wanted to remove the
trees standing on the said land. From the said consideration amount, defendant
no.1 purchased another land by registered deed dated 09.02.1978 (Ext.-1/B) in the
name of his son Kapildeo Yadav. It was also claimed by the plaintiffs that they had
no knowledge that defendant no.1 had executed a deed dated 16.11.1978 (Ext.A)
cancelling the plaintiffs sale deed dated 09.02.1978 (Ext.-1) and hence when
certified copy of the deed of cancellation (Ext.1/C) was handed over by the
defendants to the plaintiffs, the plaintiffs being illiterate person could not read it
and relying upon the words of defendant no.1 thought that it was Ext.-1. Hence, it
is averred that the said deed of cancellation (Ext.-A) was without any notice or
information to the plaintiff and it was never given effect to as the possession of the
plaintiffs over the suit premises continued. The plaintiffs also claimed that they
came to know the said fact only after defendant no.1 executed a deed of gift dated
15.05.1986 (Ext.-B) in favour of defendant no.2 with respect to the suit land and
hence the plaintiffs immediately filed the aforesaid title suit on 24.06.1986.
4. The defendants appeared in the suit and filed their written statement
admitting execution of sale deed dated 09.02.1978 (Ext.-1) in favour of the
plaintiffs, but claiming that full amount was not paid and balance was to be paid
later, but when the same was not paid the said sale deed was cancelled by the deed
of cancellation dated 16.11.1978 (Ext.A). It was also claimed that the plaintiffs had
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full knowledge of Ext.-A, but did not take any step for several years. It was also
averred that in the year 1986, defendant no.1 and defendant no.2 intended to
exchange their lands and hence defendant no.1 executed a deed of gift (Ext.-B) of
the suit land in favour of defendant no.2, whereas defendant no.2 executed a deed
of sale of his land in favour of defendant no.1, both dated 15.5.1986 (Ext.-B and
1/B). Hence, it was stated that the plaintiffs had no cause of action for the suit as
the deed of cancellation was legal, valid and proper and was legally given effect to.
5. After considering the respective claims of the parties, the learned trial court
framed the following issues for deciding the title suit:-
(i) Is the suit framed and filed maintainable?
(ii) Have the plaintiffs any cause of action?
(iii) Is the suit barred by law of limitation?
(iv) Have the plaintiffs got any right, title on the basis of sale deed
dated 3.2.1978?
(v) To what relief or reliefs plaintiffs are entitled for ?
6. On the basis of the aforesaid issues evidence were led and
arguments were made on behalf of both the parties, after considering which the
learned Additional Munsif-I, Purnea decreed the suit on contest by his judgment
and decree dated 23.05.1989 after arriving at the following findings:-
(a) Considering the relevant portions of the sale deed, the recitals do
not indicate the intention of the parties that the title would pass on
mere registration of the document or the title would pass on
payment of consideration money and hence the intention of the
parties and the surrounding circumstances has to be considered.
(b) From the recital of the sale deed (Ext.-1), it is quite apparent that
defendant no.1 wanted to sell the suit land to the plaintiffs for
purchasing another land from the consideration money.
(c) The defendants had not denied that on the same day, defendant
no.1 had purchased some land by Ext.-1/B.
(d) Passing of consideration money was essence of contract and sale.
(e) Portion of the disputed sale deed itself shows that the consideration
money was never paid to defendant no.1.
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(f) I also do not find that any condition was imposed on the plaintiff at
the time of execution of the impugned sale deed.
(g) Defendant no.1 has not examined any witness except himself in
support of his case, whereas defendant no.2 has examined only one
witness except himself who is his cousin.
(h) The witnesses adduced on behalf of the plaintiff is more reliable
than the witnesses of the defendants.
(i) The defendants did not choose to adduce any evidence to prove the
alleged absence of consideration for the sale deed, although in fact
they challenged in their written statement that no consideration for
sale was paid.
(j) Defendant no.1 has paid the consideration money to his vendor out
of the consideration money received by the plaintiffs.
(k) Defendant no.1 has failed to prove that the plaintiff has not paid
the consideration amount.
(l) The plaintiff has been able to prove that he had paid consideration
money at the time of execution of the sale deed and the title had
passed to the plaintiff on the execution and registration of the
document.
(m) Once the title passes to the vendee by registered sale deed, the
subsequent deed of cancellation by the vendor does not nullify the
effect of already completed sale deed.
(n) Defendant no.1 had no right to execute deed of gift in favour of
defendant no.2 and the right to sue accrued to the plaintiff on the
date of the execution of the deed of gift by defendant no.1 and
hence the suit is not barred by law of limitation.
7. Against the aforesaid judgment and decree of the learned trial court,
defendant no.2 filed Title Appeal No.44 of 1989 (51/1991), but the learned court of
appeal below did not frame any points for deciding various issues involved in the
suit and decided the title appeal on the issues framed in the suit.
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8. Finally, the learned Additional District Judge, Purnea after hearing
the parties allowed the appeal vide its judgment and decree dated 21.02.1994 after
arriving at the following findings:-
(a) The plaintiffs have produced several witnesses including himself,
the scribe and the attesting witness of sale deed (Ext.1) to show
that the plaintiffs paid consideration amount to the defendant no.1
with regard to the sale deed dated 09.02.1978 (Ext.1), whereas the
vendor himself deposed that no consideration money was paid
though no other witness was produced by defendant no.1.
(b) So far the question of possession is concerned, the plaintiffs
claimed their possession, whereas defendant no.2 claimed his
possession over the suit land.
(c) After examination of scribe and attester by the plaintiffs, it was not
expected from defendant no.1 to examine any witness except
himself on the point of payment of consideration money.
(d) Evidence was adduced with regard to facts contained in the
petition of amendment of the plaint without any objection from the
defendants.
(e) Since there was no such description in the said sale deed, it is
difficult to believe the story that chirkut was retained for cutting
the trees and due to this reason, evidence of plaintiffs' witnesses on
this point has to be rejected.
(f) It appears that defendant no.1 removed the trees when transferring
the land to defendant no.2 because trees are not mentioned in the
deed of gift Ext.-3.
(g) Oral evidence of the plaintiffs on the point of payment of
consideration is not reliable, whereas defendant no.1 has been able
to establish by his evidence and surrounding circumstances that
consideration money was not paid. In the circumstances of the
case, there cannot be any presumption about payment of
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consideration money of Ext.-1/A by defendant no.1 from the
consideration money received from the plaintiffs with respect to
the sale in question.
(h) Passing of title was dependent upon passing of consideration
money and hence when the consideration money was not paid by
the plaintiffs to defendant no.1, the title never passed to the
plaintiffs and they never came in possession of the suit land.
(i) It cannot be said that deed of cancellation has got no legal value as
it speaks of non payment of consideration money on repeated
demands.
(j) The certified copy of the deed of cancellation was issued on
19.12.1978and hence the suit is barred by Article 113 of the Limitation Act.
(k) The suit as framed is not maintainable and the plaintiffs had no cause of action and they are not entitled to the reliefs claimed in the suit.
9. Against the aforesaid judgment and decree of the learned court of appeal below, the plaintiffs filed the instant second appeal which was admitted on 18.10.1995 on the following substantial questions of law:-
(i) Whether after the execution of the registered sale deed dated 09.02.1978, has the vendor any right left to cancel the same by executing a deed of cancellation dated 21.11.1978?
(ii) Whether in the absence of recital in the sale deed that the vendor shall have any right to cancel the sale deed, can the registered sale deed be cancelled by the vendor?
(iii) Whether the lower appellate court has allowed the appeal without reversing the findings of the trial court?
(iv) Whether the material evidence has been ignored?
10. On the aforesaid substantial questions of law, learned counsel for the plaintiffs-appellants has submitted that plaintiffs examined several witnesses on the point of possession and several witnesses on the issue of payment of consideration, but defendant no.1 did not examine any witness on the aforesaid point except himself, whereas defendant no.2 examined his brother as D.W.2, apart from -7- himself, but there was absolute absence of any evidence on behalf of the defendants to prove non-payment of consideration money with respect to the sale deed dated 09.02.1978 (Ext.-1) as alleged by them. It is also claimed that defendant no.1 while deposing as D.W.1 admitted that no notice was ever sent to the plaintiffs with regard to payment of the remaining consideration amount or regarding his intention to cancel the aforesaid sale deed. It is also averred that the aforesaid sale deed (Ext.-1) did not contain any statement regarding any amount of consideration due, whereas Ext.-1/B, the sale deed by which defendant no.1 purchased some other land in the name of his son showed that consideration money of Ext.-1 was paid which is clear from the recital of Ext.-1 that defendant no.1 was selling his land to the plaintiffs for purchase of another land. Hence, defendants failed to discharge their onus to prove that consideration money was not paid by the plaintiffs to defendant no.1. He has relied upon a decision in case of Michhu Kuanr & others Vs Raghu Jena and others, reported in A.I.R. 1961 Orissa 19.
11. Learned counsel for the appellants has also averred that the learned court of appeal below has failed to see the surrounding circumstances which were clearly in favour of the plaintiffs and even in the worst case the sale is complete on execution of the deed and if any amount of consideration is due, the vendor may take legal recourse for recovery of that amount. In this connection, learned counsel for the appellant has relied upon Section 54 of the Transfer of Property Act as well as two decisions of Patna High Court in case of Ramdhari Rai Vs Gorkh Rai, reported in AIR 1931 Patna 236 and in case of Smt. Sudama Devi Vs. Bibi Shalma Khatoon, reported in 2007(1) PLJR 572.
12. Learned counsel for the appellants has also claimed that the learned court below has neither considered the evidence of the plaintiffs with regard to payment of consideration money by the plaintiffs to defendant no.1 and has also failed to give any finding with regard to possession of the suit land. It is further stated that the deed of cancellation (Ext.-A) is ab initio void as defendant no.1 had no right to cancel the sale deed and the plaintiffs were in continuous possession and -8- hence there is no occasion for counting limitation from the date of execution of deed of cancellation, rather limitation was to be counted from the date when the deed of gift (Ext.-B) was executed in favour of defendant no.2 and from that date, the suit filed by the plaintiff was well within the period of limitation. It is also stated that in these circumstances, the suit would be governed by Article 56 of the Limitation Act and not Article 113 thereof.
13. On the other hand, learned counsel for respondent no.1 has claimed that registered deed of sale of the suit land was executed by defendant no.1 in favour of the plaintiffs on 09.02.1978 (Ext.-1) which was cancelled by defendant no.1 vide deed of cancellation dated 16.11.1978 (Ext.-A) and much thereafter defendant no.1 executed a deed of gift in favour of defendant no.2 on 15.5.1986 (Ext.-B) with respect to the suit land and only thereafter Title Suit No.118 of 1986 was filed on 24.06.1986. It is also claimed that a copy of deed of cancellation dated 16.11.1978 (Ext.-A) was served upon the plaintiffs by defendant no.1 on 19.12.1978, but the plaintiffs filed the instant suit about eight years after the knowledge of the said deed of cancellation and hence the suit was barred by the law of limitation as the title of the plaintiffs was extinguished by Ext.-A and not by Ext.-B. He claimed that the learned court of appeal below rightly held that the suit was barred by the law of limitation.
14. Learned counsel for respondent no.1 has also averred that admittedly defendant no.1 was the rightful owner of the suit land and he had executed (Ext.-1) in favour of the plaintiffs in lieu of agreed consideration money, but passing of title was dependent upon passing of the consideration money and hence when the plaintiffs failed to pay any amount of consideration, the defendant no.1 was fully entitled to cancel the sale deed (Ext.-1) which he did by Ext.-A. Learned counsel for respondent no.1 also averred that there was only oral evidence on behalf of the plaintiffs and even those witnesses gave contradictory statements with respect to the place on which the consideration was paid which fully falsified the plaintiffs' claim and in addition to that the chirkut of Ext.-1 was admittedly never given to the plaintiffs. He further submitted that although the plaintiffs -9- claimed that the chirkut was not handed over to the plaintiffs even after receipt of consideration money by defendant no.1 as he intended to cut away trees standing on the land, but the said statement was clearly falsified by Ext.-1 itself which showed that the subject matter of sale was the suit land with all its attachment including trees. Learned counsel for respondent no.1 stated that in addition to that no document or chit of paper was produced on behalf of the plaintiffs with respect to their possession, nor it was sufficiently proved by any witness also.
15. Learned counsel for respondent no.1 also averred that the ratio of the case decided by Orissa High Court in case of Michhu Kuanr (Supra) was completely different from the present case as in that case scribe, identifier etc., were not examined, whereas a bench of this court in case of Mossamat Tunni Kuer Vs Gauri Naun & ors, reported in 1956 BLJR 8, has held that it depends upon the intention of the parties and the court has to look into the attending and surrounding circumstances. He also claimed that payment of consideration is an important aspect and no strenuous material has to be looked into, whereas non-handing over of chirkut is an important consideration in such matter. On this point, he has relied upon a decision of this court in case of Ram Kesar Mahton and others Vs Gulzar Jadav & others, reported in 1956 BLJR 261. Hence, learned counsel for respondent no.1 has stated that the judgment and decree of the learned court of appeal below is legal and proper and it needs no interference.
16. So far substantial questions of law no.(i) and (ii) are concerned, they are inter related and as such are being taken up together. The sale deed dated 09.02.1978 (Ext.-1) executed by defendant no.1 in favour of the plaintiffs is clearly with respect to the suit land. From the recitals of the said sale deed, it transpires that although it contained no clear statement with regard to payment of consideration money, but there were sufficient indications in the sale deed which showed that the consideration money had been paid inasmuch as it is clearly recited in the sale deed that possession was given to the plaintiffs and if they are dispossessed from the land sold, they would recover the consideration amount with interest from defendant no.1 or his heirs. Furthermore, the scribe and identifier of
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the sale deed, Ext.-1, deposing as P.W.6 and P.W.7 along with P.W.1 and P.W.4 clearly proved the payment of entire consideration money by the plaintiffs to defendant no.1, whereas there is complete absence of any reliable or independent evidence on behalf of the defendants to disprove the said pleading of the plaintiffs.
17. Furthermore, the delivery of possession by defendant no.1 in favour of the plaintiffs is proved by the sale deed Ext.-1 itself which was also supported by other evidence of the plaintiffs including P.Ws.2, 3 and 5 who were all reliable witnesses, but were completely ignored by the learned court of appeal below. So far the question of non-handing over of the Chirkut of sale deed by defendant no.1 in favour of the plaintiffs is concerned, the plaintiffs had specifically got their plaint amended pleading that the chirkut was not handed over to the plaintiffs by defendant no.1 as defendant no.1 wanted to cut trees as possession had already been delivered to the plaintiffs, but the said pleading of the plaintiffs supported by the evidence on behalf of the plaintiffs was not denied by defendants as no additional written statement was filed as against the said amendment in plaint, nor there was any pleading contradicting the amended pleading of the plaintiffs. In the said circumstances, there was no occasion for the learned court of appeal below to rely upon the points raised by the defendants which were not even supported by their pleadings.
18. In the said circumstances, when the entire consideration amount was paid to defendant no.1 by the plaintiffs and possession was given by defendant no.1 to the plaintiffs, the sale, as per Ext.-1, was complete as a result of which the plaintiffs acquired full right, title and interest in the suit properties. Hence, this case is fully covered by the two decisions of this court in case of Ramdhari Rai and in case of Smt. Sudama Devi (Supra). In the aforesaid circumstances, the case laws relied upon by learned counsel for respondent no.1 in case of Mossamat Tuni Kuer and in case of Ram Kesar Mahto (Supra) are not at all relevant to the facts and circumstances of this case.
19. Thus the sale having been completed, consideration money having been paid and possession having been delivered full title over the suit property
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accrued to the plaintiffs and hence defendant no.1 had no occasion to cancel the sale deed for which there is no provision in law at all and even in case any amount of consideration remained due, the only option for defendant no.1 was to sue the plaintiffs for that money, but there is no pleading or material on behalf of the defendants to show that they had ever sued for that. Hence, the deed of cancellation (Ext.-A) is in complete violation of Section 54 of the Transfer of Property Act and defendant no.1 had no right at all to execute the said deed of cancellation which did not affect the right, title, interest and possession of the plaintiffs in any manner whatsoever even if a copy thereof was served upon the plaintiffs and hence the same is merely to be ignored and limitation cannot be legally counted from that date. Accordingly, it is held that the sale having been complete, the vendor had no right left to cancel the same by Ext.-A which is absolutely ab initio illegal liable to be ignored and the suit cannot be held to be time barred on account of said deed of cancellation.
20. So far substantial question of law no.(iii) is concerned, it is apparent from the judgments and decree of the learned courts below that the trial court had decreed the suit on the basis of certain findings with regard to issues involved in the suit, but from paragraphs 15, 16 and 17 of the judgment of the learned court of appeal below, it is quite apparent that the said findings of the trial court had not been reversed by the learned court of appeal below, rather on the basis of some findings of its own, the learned lower appellate court had allowed the title appeal without even appreciating the findings of the learned trial court on the concerned issues. The law is well settled in this regard that where the judgment of the lower appellate court is a judgment of reversal it is primary duty of the appellate court to consider the reasons given by the trial court and those reasons must also be reversed. Reference in this regard may be made to a decision of this court in case of Smt. Sona Devi Vs. Nagina Singh and others, reported in A.I.R 1997 Patna 67 (paragraph-21). This itself is a substantial question of law sufficient to set aside the decree of the learned court of appeal below. In this regard, reference may be made
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to a decision of the Hon'ble Apex Court in case of S.V.R.Mudaliar Vs. Mrs. Rajabu F.Buhari, reported in A.I.R. 1995 Supreme Court 1607.
21. So far substantial question of law no.(iv) is concerned, it is quite apparent from paragraphs 10, 11, 12, 13 and 14 of the judgment of the learned court of appeal below that material witnesses, P.Ws. 2, 3 and 5, who sufficiently and validly proved the continuous possession of the plaintiffs on the basis of sale deed, Ext.-1, were not at all considered by the learned court of appeal below which also did not give any finding with respect to possession although it was a very important aspect of the case. The law is well settled in this regard that sitting as a court of first appeal, it is the duty of the appellate court to don itself with all the issues and evidences led by the parties before recording its findings, as the first appeal or a title appeal is valuable right of the parties and unless restricted by law, the whole case therein is open for re-hearing, both on questions of facts and law. Furthermore, while reversing the finding of fact, the first appellate court must come into close quarters with the reasonings assigned by the trial court on the basis of pleadings and evidence of the parties and only thereafter it can discharge the duties expected of it. Reference in this regard may be made to two decisions of the Hon'ble Supreme Court in case of Santosh Hazari Vs. Purushotam Tiwari (Dead) by L.R.s, reported in J.T. 2001 (2) Supreme Court 407, as well as in case of Madhukar and others Vs. Sangram and Ors, reported in 2001 (3) P. L.J.R.192 (SC). Hence, in this regard also, the learned court of appeal below has completely ignored well considered findings and judgment of the learned trial court which was based on full consideration of the evidence and pleadings of the parties.
22. Thus, considering the entire facts and circumstances of the case as well as pleadings and evidence of the parties, the provisions of law and the case laws applicable thereto, this court finds that the judgment and decree of the trial court are based upon specific and correct findings after due consideration of the pleadings and evidence of the parties as well as the provisions of law applicable thereto, whereas the learned court of appeal below has not only ignored the pleadings and evidence of the parties, but had also ignored the specific reasonings
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and findings of the trial court on the relevant issues and had passed the impugned judgment and decree in complete violation of the specific provisions of law as well as case laws applicable to the instant case. Hence, this court is left with no option, but to allow this second appeal.
23. Accordingly, the impugned judgment and decree of the learned court of appeal below is hereby set aside, the judgment and decree of the trial court is hereby affirmed and the claims and suit of the plaintiffs are decreed. However, in the peculiar facts and circumstances of the case, there will be no order as to cost.
(S.N.Hussain,J.) Patna High Court.
Dated, the 20th March, 2009.
Sunil/ N.A.F.R