Patna High Court - Orders
Smt. Janki Choudharanin vs Umesh Pd. Singh & Ors. on 2 September, 2013
Author: Jyoti Saran
Bench: Jyoti Saran
IN THE HIGH COURT OF JUDICATURE AT PATNA
Second Appeal No.199 of 2010
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Smt. Janki Choudharain, wife of Rajendra Prasad Choudhary, resident of
Village-Khas Tablaka, Tola Narban, Police Station- Bibhutipur, District-
Samastipur.
.... Plaintiff .... Appellant/s
Versus
1. Umesh Prasad Singh, son of Surya Narain Singh, resident of Village-
Mauza Khas Tablaka, Tola- Kamrain, P.S.- Bihutipur, District-
Samastipur.
2. Smt. Binda Israin, wife of Tulsi Isser, resident of Village- Mauza Khas
Tablka, Tola- Narhan, P.S.- Bibhutipur, District- Samastipur.
3. Shiv Shankar Singh, son of Surya Narain Singh, resident of Village-
Mauza Khas Tabhka, Tola- Kamrain, P.S.- Bibhutipur, District-
Samastipur.
....Defendants .... Respondent/s
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Appearance :
For the Appellant/s : Mr. Pramod Singh
For the Respondent/s : Mr.
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CORAM: HONOURABLE MR. JUSTICE JYOTI SARAN
ORAL ORDER
10 02-09-2013Heard Mr. Pramod Singh, learned counsel appearing on behalf of the appellant.
This appeal is directed against the judgment and decree dated 6.2.2010/20.2.2010 passed by the learned Additional District Judge, Fast Track Court-III, Samastipur in Title Appeal No.25 of 1995, whereby the learned appellate court below while dismissing the appeal has affirmed the judgment and decree dated 31.8.1995/19.9.1995 passed by the learned Sub-Judge, Rosera, district Samastipur in Title Suit No.37 of 1989/143 of 1993, whereby the suit was dismissed.
For the sake of convenience I shall be referring to the status of the parties as stood before the trial court. Patna High Court SA No.199 of 2010 (10) dt.02-09-2013 2
The suit in question was filed by the plaintiff who is the appellant before this Court. It is the case of the plaintiff that she had entered into a contract with defendant nos.1 to 3 for sale/purchase of land bearing Khata No.908, Khesra No.5910, 5917, and 5888 having an area of 1 bigha, 15 kathas and 2 dhurs situated in Mauza Khas Tabhaka, Tola-Narban, district- Samastipur. Two sale-deeds were executed by the defendant no.1 in favour of the plaintiff on 15.12.1988. In terms of the covenants present in the sale-deeds, the consideration amount was to be paid to the vendor-defendant no.1 at the time of exchange of registration receipts. It is the case of the plaintiff that a sum of Rs.10,000/- was paid by the plaintiff to the defendant no.1 on 19.12.1988 in presence of Bhag Narayan Isser, Lagan Isser and Mahendra Choudhary with an assurance of payment of the balance amount subsequently. It is the further case of the plaintiff that a legal notice dated 13.1.1989, i.e. within one month of the execution of the sale-deeds was received by the plaintiff on 1.2.1989 requiring her to make payment of the balance consideration amount within one week, failing which the deeds were to be cancelled. It is the case of the plaintiff that even when the validity period under the legal notice was subsisting the vendor-defendant no.1 vide a deed of cancellation dated 25.1.1989 cancelled the sale-deeds dated Patna High Court SA No.199 of 2010 (10) dt.02-09-2013 3 15.12.1988 and within 10 days thereafter the defendant nos.1 and 3 executed two sale-deeds in favour of defendant no.2. The plaintiff being aggrieved by the acts of the defendant nos.1 and 3 instituted the suit in question giving rise to Title Suit No.37 of 1989/143 of 1993, inter alia, for declaration of her title and confirmation of possession over the suit property and in the alternative for recovery of possession thereof in the light of the sale-deeds dated 15.12.1988. The plaintiff also sought a direction requiring the defendant no.1 to hand over the registration receipt after receiving the balance consideration amount of Rs.16,000/- or Rs.26,000/- as found due by the Court and in the alternative a declaration was sought requiring the defendants to execute and register another sale-deed in favour of the plaintiff after permission from the consolidation authorities as required under section 5 of the Bihar Consolidation of Holdings and Prevention of Fragmentation Act, 1956 (hereinafter referred to as „the Act‟). The plaintiff also sought relief for declaring the sale-deed dated 4.2.1989 executed by defendant nos.1 and 3 in favour of defendant no.2 as well as the cancellation deed dated 25.1.1989 executed by the defendant no.1 in respect of the sale-deeds dated 15.12.1988 to be rendered illegal and invalid documents and thus fit to be cancelled.
It is the case of the plaintiff that the defendant no.1 Patna High Court SA No.199 of 2010 (10) dt.02-09-2013 4 having executed two valid sale-deeds in favour of the plaintiff on 15.12.1988, the plaintiff in terms of the covenant made part payment on 19.12.1988 in presence of the witnesses and although the husband of the plaintiff tried to tender the balance amount to the defendant no.1 but he refused to accept the same and on the contrary served a legal notice on 1.2.1989 with a mala-fide motive. It is the case of the plaintiff that though the plaintiff was willing to perform her part of the obligation under the agreement, the avoidance was coming from the part of the vendor-defendant no.1 and who has not only malafidely not handed over the registration receipt after accepting the balance amount rather he has proceeded to cancel the sale-deeds itself without even waiting for the notice period and has executed the sale-deeds along with defendant no.3 in favour of defendant no.2. It is the case of the plaintiff that by virtue of the registered sale-deeds dated 15.12.1988 she had perfect title and possession over suit property and subsequent sale-deeds dated 4.2.1989 are illegal documents not conferring any title on to the purchaser.
The defendants contested the matter by filing written statement and have submitted that since the plaintiff failed to discharge the obligation under the sale-deeds hence the same were cancelled and fresh sale-deeds were executed in favour of the defendant no.2. An issue as regarding the validity of the sale- Patna High Court SA No.199 of 2010 (10) dt.02-09-2013 5 deeds cropped up in view of the consolidation proceeding going on in the village in question and on which aspect whereas it was the case of the plaintiff that she was informed by the defendant no.1 that the village stood confirmed and there was no necessity for taking sanction, but this position has been contested by the defendant no.1 who has submitted that despite the legal position having been informed the plaintiff agreed for the execution of the same.
The trial court on the basis of the rival pleadings framed 11 issues for consideration, of which issue nos.5 to 9 would be relevant for the purpose and which are as follows:
"(V) Whether the sale deeds dated 15.12.88 executed by the defendant no.1 in favour of plaintiff for the suit land are legal, valid and have conferred valid title and possession over the suit land to the plaintiff?
(VI) Whether the plaintiff has acquired valid right title and interest in the suit property on the basis of her sale deeds dated 15.12.1988 executed by the defendant no.1 in her favour?
(VII) Whether the story of part payment of the consideration money amounting Rs.10,000/- of her sale deeds dated 15.12.1988 as propounded Patna High Court SA No.199 of 2010 (10) dt.02-09-2013 6 by the plaintiff is correct?
(VIII) Whether the plaintiff is entitled to get registration receipt in her sale deeds in question from the defendant no.1 on payment of consideration money of her sale deeds whatever is found due with her or she is entitled to get another sale deed executed from the defendant no.1 for the suit land on payment of consideration money on the basis of her previous agreement?
(IX) Whether the sale deeds dated 4.2.89 executed by defendant nos.1 and 3 in favour of defendant no.2 and cancellation deeds dated 25.1.1989 executed by defendant no.1 in respect of the plaintiff‟s sale deed dated 15.12.1988 are illegal, invalid and inoperative?"
The trial court upon consideration of the evidence led by the contesting parties on the issue of validity of the sale- deeds dated 15.12.1988 has held the deeds to be void ab-initio in view of the provisions of section 5 of the Act as also taking into consideration the uncontroverted position that no notification under section 26A of the Act had been published with regard to the area in question. This legal position regarding non- Patna High Court SA No.199 of 2010 (10) dt.02-09-2013 7 publication of a notification under section 26-A of the Act is not contested. The trial court further taking into consideration the evidence on the issue of payment of consideration amount has held that except the oral evidence for and against led by the parties on this issue, there is no documentary evidence supporting payment of the consideration amount. Having held as such, the trial court has held that no valid title had passed on to the plaintiff under the sale-deeds dated 15.12.1988. In view of the findings recorded by the trial court in relation to issue nos.5 to 8, the issue no.9 regarding the validity of the sale-deeds executed in favour of the defendant no.2 was upheld. The suit was dismissed by a judgment and decree dated 31.8.1995/19.9.1995. Being aggrieved the plaintiff preferred Title Appeal No. 25 of 1995 which has also been dismissed by judgment and decree dated 6.2.2010/20.2.2010 and hence this appeal.
I have heard Mr. Singh, learned counsel appearing on behalf of the appellant and have perused the judgment and decree impugned. Mr. Singh has tried to question the concurrent findings of the courts below on the following issues, namely:
(i) In view of the provisions underlying sections 54 and 55 of the Transfer of property Act, 1982, the onus lay upon the vendor to make proper disclosure of Patna High Court SA No.199 of 2010 (10) dt.02-09-2013 8 the facts prevailing. It is submitted that the issue of ongoing consolidation proceedings ought to have been considered. It is submitted that the onus lay upon the vendor to obtain sanction from the consolidation authorities in terms of section 5 of the Act.
(ii) It is submitted that even if the sale-deeds dated 15.12.1988 are rendered void documents in context with the provisions of the Act, it would nevertheless be treated to be an agreement to sale with the intent of the vendor-defendant no.1 reflected from the covenants thereof and which intent stands fortified by the legal notice dated 13.1.1989 which was received by the plaintiff on 1.2.1989 giving her one week time to make payment of the consideration amount but the act of the defendant no.1 in proceeding to cancel the sale- deeds dated 15.12.1988 vide cancellation deed dated 25.1.1989, i.e. even prior to the expiry of the period given in the notice, the cancellation deed cannot be sustained.
It is thus submitted that the cancellation deeds are illegal and ought to have been held as such by the courts below Patna High Court SA No.199 of 2010 (10) dt.02-09-2013 9 and in which backdrop, the sale-deeds dated 15.12.1988 ought to be considered as an agreement to sale requiring the vendor- defendant no.1 to fulfill his part of the obligation since the plaintiff was all along ready to make payment of the consideration amount but was precluded from doing so by virtue of the cancellation deeds. He submits that as a consequence of the non-fulfillment of obligation by the defendant no.1 by execution of fresh deed in favour of the plaintiff, the subsequent deeds dated 4.2.1989 by itself would be rendered invalid. It is contended that since no time period was stipulated in the sale- deeds dated 15.12.1988 hence the prescribed period for fulfillment of the obligation by the plaintiff as regarding the payment of the consideration amount would be in terms of the period prescribed in the notice which was received on 1.2.1989. Mr. Singh in support of his submission has relied upon a judgment of the Supreme Court reported in AIR 1967 SC 868 (Gomathinayagam Pillai vs. Palaniswami Nadar). He thus submits that in view of the legal position emanating from the judgment of the Supreme Court the cancellation by the Vendor- defendant no.1 was per se illegal.
With reference to a judgment of the Supreme Court reported in AIR 2011 SC 2521: (2011) 6 SCC 555 (Janak Dulari Devi Vs. Kapildeo Rai) more particularly paragraph 15 Patna High Court SA No.199 of 2010 (10) dt.02-09-2013 10 thereof it was submitted that even if the contention of defendant no.1 that the consideration amount had not been paid is accepted on its face value though not admitted yet it would not result in nullifying the agreement entered into between the parties and the sale deed would yet have the trapping of an „agreement to sale‟.
Mr. Singh has also relied upon a Bench decision of this Court reported in 2009 (3) PLJR 529 (Jaideo Yadav vs. Raghunath Yadav) to submit that the proper course for the cancellation of the sale-deeds dated 15.12.1988 for the vendor- defendant no.1 was by way of institution of a suit and not by way of cancellation deed before the Registrar.
I have heard learned counsel for the parties and have perused the materials on record. In so far as the issue of validity of sale-deeds dated 15.12.1988 is concerned, there is a concurrent findings of facts by the courts below that the consolidation proceedings were going on within the area in question and the village in question was yet to be notified under section 26A of the Act and the sale deed was executed without obtaining permission from the consolidation authorities. Considering the undisputed factual position it is apparent that the transaction is void in view of provision of section 5 of the Act and no title has passed on to the plaintiff by virtue of the sale-deed. A Full Bench of this Court of which I was also a Patna High Court SA No.199 of 2010 (10) dt.02-09-2013 11 member, vide judgment reported in 2010 (2) PLJR 1066 (Panna Devi vs. The State of Bihar) while considering the provisions of section 5 of the Act has held that permission from the consolidation authorities where proceedings are going on, is mandatory and any transaction without obtaining such permission is a void transaction. In view of the Full Bench pronouncement of this Court, no infirmity can be found in the findings of the courts below regarding invalidity of the sale- deeds dated 15.12.1988.
In view of the legislative intendment underlying sections 5 and 32 of the Act it would not detain this Court to hold that the sale-deeds dated 15.12.1988 were void documents and not conferring any title on the plaintiff. This would bring this Court to the second issue raised by Mr. Singh for treating the sale-deeds dated 15.12.1988 as documents demonstrating the intendment to sale by defendant no.1 and thus formed an „agreement to sale‟. The contentions advanced by Mr. Singh on the strength of the judgment of the Supreme Court rendered in the case of Janak Dulari Devi (supra) would have helped him had the subsequent event, i.e. the execution of the subsequent sale-deed dated 4.2.1989 not taken place. Had the defendant nos.1 and 3 not executed the sale-deeds dated 4.2.1989 in favour of defendant no.2 perhaps this Court would have been drawn Patna High Court SA No.199 of 2010 (10) dt.02-09-2013 12 towards the submissions made by Mr. Singh relying upon the judgment of the Supreme Court but considering the said circumstance in the backdrop of the legal provisions underlying section 19(b) of the Specific Relief Act 1963, even if the sale- deeds dated 15.12.1988 are held to be the documents of „agreement to sale‟, yet the contract cannot be enforced in view of the subsequent sale-deeds and the protection under section 19(b) of the Specific Relief Act. It has not been the case of the plaintiff that the subsequent sale-deeds dated 4.2.1989 stands excluded from the provisions of section 19(b) of the Specific Relief Act.
Thus in view of the concurrent findings of facts by the courts below on the issue of invalidity of the sale-deeds dated 15.12.1988 as also on the issue of payment of the consideration amount and taking into consideration the statutory provisions of section 19(b) of the Specific Relief Act, I am not persuaded to interfere with the judgment and decree impugned and this appeal failing to raise any substantial question of law is dismissed accordingly.
(Jyoti Saran, J) SKPathak/-