Tripura High Court
Smt. Rakhi Debbarma vs Smt. Sanghamitra Roy on 26 April, 2018
Equivalent citations: AIRONLINE 2018 TRI 260
Author: Ajay Rastogi
Bench: Ajay Rastogi
Page 1 of 23
HIGH COURT OF TRIPURA
AGARTALA
RFA. No. 22 of 2016
Smt. Rakhi Debbarma,
Wife of Sri Deipak Karmakar,
Resident of Jogendranagar, Vidyasagar Road, Agartala,
P.S. East Agartala, P.O. Jogendra Nagar, District: Tripura
West
.....Plaintiff-appellant(s)
Versus
1. Smt. Sanghamitra Roy,
W/o Sri Pradip Roy, resident of Santipara, P.O. Agartala,
P.S. East Agartala, District: Tripura West
2. Sri Pradip Roy,
S/o late Amarchand Roy, resident of Santipara, P.O.
Agartala, P.S. East Agartala, District: Tripura West
.....Defendant-respondents
3. Smt. Bandana Roy, W/o Sri Dilip Kumar Roy, resident of Palace Compound, North Gate, P.S. East Agartala, District: Tripura West ....Pro-forma defendant-Respondent(s) For Appellant(s) : Mr. D. R. Choudhury, Adv Mr. D. Deb, Adv Mr. D. Debnath, Adv For Respondent(s) : Mr. A. K. Bhowmik, Sr. Adv Mr. P. Saha, Adv Mr. I. Banik, Adv HON'BLE THE CHIEF JUSTICE MR. AJAY RASTOGI Reserved on 12.04.2018.
Pronounced on 26.04.2018.
JUDGMENT AND ORDER The instant appeal has been filed at the instance of the appellant-plaintiff assailing the judgment and decree dt. 30th July, 2016 passed by the Civil Judge, Sr. Division, West Tripura, Agartala, dismissing the suit filed at her instance for Page 2 of 23 declaration and cancellation of the registered sale deed dt. 11th June, 2009 executed by the plaintiff Smti. Rakhi Debbarma in favour of the first respondent/defendant No. 1 Smti. Sanghamitra Roy and for perpetual injunction in respect of the suit land.
[2] The in-disputed facts emerging from the records of the case are as under:
The original owner of the suit land was Shri Jagat Marak who died on 16th June, 1980 leaving behind his two daughters and one son who became the absolute owner having the right title and possession of the suit land. The legal heirs of the original owner Shri Jagat Marak jointly sold the subject land along with other land by two separate registered sale deeds vide No. 1-6973 dt. 16th June, 2006 and 1-477 dt. 31st July, 2006 to the appellant-plaintiff Smti. Rakhi Debbarma and handed over possession of the suit land along with other land and record of rights has been created in favour of the appellant-plaintiff after opening of mutation in her name vide Khatian No. 2859, C.S. Dag No. 6591 & 6592 as described in Schedule-A of the land. The total land purchased by the appellant-plaintiff was measuring 8 kanis 10 gandas in two separate registered sale deeds. It may be noted that the suit land is the part of the said land purchased vide registered sale deed dt. 16.06.2006, Exbt.A-1.
[3] It may be relevant to note that the appellant- plaintiff purchased the suit land vide registered sale deed dt. 16th June, 2006 (Exbt.1) @ of Rs. 40,000/- per kani. That part Page 3 of 23 of the other land (3 kanis) was sold by the appellant-plaintiff in the year 2007 vide registered sale deed dt. 28th January, 2007 (Exbt.b) for Rs. 1,95,000/- @ of Rs. 65,000/- per kani. [4] It has stated by the appellant/plaintiff, that she was in the urgent need of money and being a member of the Schedule Tribe, there was a restriction on the rights to transfer to protect the interest of a member of Schedule Tribe under Chapter-IXA of the Tripura Land Revenue and Land Reforms Act, 1960 (here in after referred to Act, 1960) and any transfer of land to a person not belonging to Schedule Tribes, without prior permission of the competent authority shall be void. [5] The appellant applied for permission in terms of Chapter- IXA of Act, 1960 to the DM & Collector, West Tripura dt. 19th July, 2007 for the sale of 2.10 acres of land (5.25 kanis) and after the permission was granted to her for transfer of the suit land vide order dt. 2nd March, 2009 by the competent authority in furtherance thereof, the suit land (2.10 acres i.e. 5.25 kanis) was sold to the present No. 1 respondent/defendant @ Rs. 1,20,000/- per kani vide registered sale deed dt. 11th June, 2009 (Exbt-2) which has been alleged by the appellant/plaintiff was obtained by fraud under threat & undue pressure as the market value of the subject land as alleged was approximately Rs. 1(one) crore and sold to the No. 1 respondent/defendant on a throwaway cost of Rs. 6,60,000/- measuring 2.10 acres (5.25 kanis). Page 4 of 23
[6] It may be relevant to note that the suit land (5.25 kanis) was sold by the appellant-plaintiff to the respondent/defendant No. 1 @ of Rs. 1,20,000/- per kani and that was purchased by the appellant/plaintiff @ of Rs. 40,000/- per kani by the registered sale deed dt. 16th June, 2006 (Exbt-
1) and (3 kanis) other than the suit land the appellant/plaintiff sold in January 2007 vide registered sale deed dt.28.01.2007 (Exbt.B) for a sum of Rs. 1,95,000/- @ of 65,000/- per kani and in June 2009 the suit land 2.10 acres to the respondent/defendant No. 1 for a sum of Rs. 6,60,000/-@ of Rs. 1,20,000/- per kani by registered sale deed dt. 11th June, 2009. The escalation of the cost price was almost three times within three years of the suit land sold to the respondent/defendant No. 1 in the month of June, 2009 by the registered sale deed.
[7] The appellant/plaintiff filed a suit for declaration and cancellation of the registered sale deed dt. 11th June, 2009 and for perpetual injunction after more than two years on 14th July, 2011 hitherto at the stage when the respondent/defendant applied for opening of mutation in her name. Earlier the appellant filed objection to the SDM, Bishalgarh, the purported prayer of respondent/defendant Smti. Sanghamitra Roy, wife of Pradip Roy for mutation of the subject land measuring 2.10 acres on the strength of a purported deed of sale bearing No. 1-1073 dt. 11th June, 2009 to the SDM, Bishalgarh, Dukli Revenue Circle, West Tripura and also made a criminal complaint to the Officer In-charge East Agartala P.S. Agartala Page 5 of 23 and because of the pendency of the civil & criminal proceedings, the Sub-Divisional Magistrate, Bishalgarh, West Tripura informed to await for final disposal of the litigation stayed the mutation proceedings till the disposal of civil and criminal proceedings vide order dt. 23rd June, 2011 (Exbt-6). [8] The first and second respondent/defendant jointly filed written statement and apart from their preliminary objection regarding maintainability of the suit, it is further stated that they got possession with absolute right & title of the subject land on transfer of sale consideration to the plaintiff by registered sale deed dt. 11th June, 2009, but did not get mutation because of the objection raised by the appellant/plaintiff in the Revenue Forum.
[9] It was further stated that the plaintiff has no right to sue against the respondent/defendant as they never tried to dispossess the appellant/plaintiff from the suit land by force as after sale of the land the peaceful possession of the subject land was handed over to the respondent/defendant without any obstruction and to show their bona fides on transfer of fair price of the sale consideration of the suit land and further stated that the respondent/defendant purchased the suit land in the year 2009 for a price of Rs. 6,60,000/- for land measuring 2.10 acres (5.25 kanis) @ Rs. 1,20,000/- per kani where the same quality and of equal proportion of other land was sold by the appellant/plaintiff in the year 2007 by registered sale deed dt. 29th January, 2007 for a consideration Page 6 of 23 price of Rs. 1,95,000/- @ of Rs. 65,000/- per kani and they are completely unaware of the alleged agreement to sale ever entered/executed of the suit land in between the appellant/plaintiff and Smti. Bandana Roy and no such agreement if in existence was exhibited and the proforma respondent Smti Bandana Roy failed to appear as a witness & it is a false and imaginary story of the appellant and there was no threat by the second respondent/defendant No. 2 to the plaintiff for selling of the subject land in question. [10] It has been further stated that the criminal case was instituted by the witness to the sale deed, brother-in-law Biplob Karmakar, PW2 of the appellant/plaintiff for the business transaction implicating the second respondent/defendant No. 2 which was a motivated case instituted against the respondent No. 2 in the East Agartala police station and this was an indirect method adopted for putting pressure upon by the respondents for acceptance of the cancellation of the registered sale deed prayed by them. On the basis of the pleadings on record, the learned trial judge framed the following issues:
"i. Is the suit maintainable in law?
ii. Is the registered sale deed No. 1-1073, dated 11.06.2009 executed by the plaintiff Smt Rakhi Debbarma in favour of the defendant No. 1 Smt. Snanghamitra Roy invalid and liable to be cancelled?
iii. Did the plaintiff deliver possession of the suit land to the defendant No. 1 after executing the aforesaid sale deed dated 11.06.2009?
iv. Is the plaintiff entitled to get a decree as prayed for?Page 7 of 23
v. To what relief/reliefs the parties to the suit are entitled to get?"
[11] In order to prove the claim of the appellant/plaintiff, examined Smt. Rakhi Debbarma (plaintiff) as PW-1, Sri Biplob Karmakar as PW-2 witness to the sale deed and Sri Samiran Debnath as PW-3. At the same time the respondent/defendant examined three witnesses, namely, Smt. Snaghamitra Roy (Defendant No. 1) as DW-1, Sri Ratan Kumar Roy as DW-2 and Sri Paresh Chandra Ghosh as DW-3 and exhibited the original copy of the money receipts (19 sheets) issued by Paresh Chandra Ghosh, DW-3 (Exbt.A) and also the certified copy of registered sale deed No. 1-371 dt. 28th January, 2007 (Exbt.B) executed by Smt. Rakhi Debbarma (appellant/plaintiff) in favour of Dhruba Kishore Debbarma for 3 kanis of land for total sum of Rs. 1,95,000/- @ of Rs. 65,000/- per kani.
[12] On the pleadings of the parties, the learned trial judge decided the issue No. 1 in favour of the
appellant/plaintiff holding that the suit was maintainable. While deciding the issue Nos. 2 and 3 which were conjointly decided and observed that the registered sale deed dt. 11th June, 2009 was executed by the appellant/plaintiff in favour of the defendant/respondent No. 1, Smt. Sanghamitra Roy was valid and could not be cancelled and possession of the suit land was also delivered to the first respondent/defendant No. 1 on execution of the sale deed which can be reflected from the recital of the deed itself and also corroborated by the oral evidence of the defendants and accordingly dismissed the suit Page 8 of 23 vide the judgment & decree dt. 30th July, 2016. The said judgment and decree is under challenge in this appeal under Section-96 of the CPC.
[13] The main contention of counsel for the appellant Mr. D. R. Choudhury, is that the appellant was in urgent need of money and decided to sell the suit land described in Schedule- A and earlier Smti. Bandana Roy, the proforma-defendant, wife of Dilip Dumar Roy approached the plaintiff to purchase the land and the agreement for sale was executed between Bandana Roy (proforma-respondent) and the plaintiff on 27th July, 2007 to be sold @ of Rs. 8,00,000/- per kani but that was to be executed after getting permission from the competent authority under the Act, 1960 and the total sale consideration price as agreed by Smt. Bandana Roy, of the suit land was Rs. 42,00,000/- and she paid Rs. 5,00,000/- by demand draft in advance but the permission was not granted within the reasonable time, but after the grant of permission dt. 2nd March, 2009 Smti. Bandan Roy came on the back foot and informed the appellant/plaintiff that it was not possible for her to purchase the suit land and wanted to get back the money advanced to the appellant/plaintiff and the reason disclosed was that Smti. Bandana Roy was threatened by the respondent/defendant No. 2 i.e. the husband of the respondent No. 1 not to purchase the land and on being afraid of the same, she decided not to purchase the suit land and requested the appellant/plaintiff to refund the money and accordingly, the said money was refunded.
Page 9 of 23[14] Taking strength of the fact alleged, counsel for the appellant submits that the respondent has committed fraud and under undue influence and threat the sale deed was executed on a meager sum of Rs. 6,60,000/- of the suit land as described in Schedule-A and to support his submission counsel further urged that a criminal case was instituted at the instance of the appellant/plaintiff implicating the respondent No. 2 and the charge sheet has been filed, copy was enclosed as Exbt-8 dt. 15th April, 2011.
[15] Counsel for the appellant further submits that the sale deed was executed under undue influence and fraud exercised by the respondent/defendant No. 2 upon the plaintiff to execute the sale deed, was a sham transaction and the pleadings on record has not been properly appreciated by the learned trial judge and the findings returned by the learned trial judge are wholly perverse and needs to be interfered by this Court.
[16] Counsel further submits that the recital of the registered sale deed is imaginary and fabricated because the consideration price was inadequate and not the prevailing market value of the suit land at the relevant time was highly escalated because the land was abutting to the National Highway No.44 and the sale consideration being inadequate but because of threat and undue influence, the respondent No. 2 got the sale deed executed.
Page 10 of 23[17] It has been further urged that there was a fraud exercised upon the vendor as defined u/Sec.17 of the Indian Contract Act and has further compounded to the provisions of Sec.54 of the Transfer of Property Act read with Sec.92 of the Evidence Act have not been properly appreciated as the sale deed being void, needs to be quashed and set aside. [18] Per contra counsel for the respondents on the other hand submits that the basic requirement under the law of pleadings under Order-VI Rule-4 in particular, it is one of the condition precedent that in cases where the parties plead fraud, breach of trust, willful default or undue influence, it is incumbent upon the party who alleged to plead and disclose the material particulars and has to state in the pleadings. But in the instant case, the plaintiff has made a bald statement of fact in para 8 & 9 of the plaint asserting fraud or undue influence being imposed upon the appellant, but even the minimal material particulars is missing in the plaint regarding the fraud or undue influence being used by the respondent/defendant at any stage of execution of the sale deed dt. 11th June, 2009 and in absence of basic material particulars the very foundation of filing of a suit for declaration and cancellation of the registered sale deed needs outright rejection.
[19] Counsel for the respondents further submits that apart from other considerations the chronological facts which has came on record if taken note of it clearly depicts that what Page 11 of 23 being pleaded by the appellant is not acceptable even to a man of ordinary prudence for a simple reason that the present appellant/plaintiff purchased the subject land on 16th June, 2006 (Exbt.1) @ Rs. 40,000/- per kani and part of the other land (3 kanis) was sold by the appellant/plaintiff @ Rs. 65,000/- per kani by the registered sale deed dt. 28th January, 2007 (Exbt.B) and the appellant/plaintiff sold 2.10 acres (5.25 kanis) @ Rs. 1,20,000/- per kani to the respondent/defendant @ of total consideration of Rs. 6,60,000/- (Exbt.2) which is almost three times within three years of the suit land vested to the appellant/plaintiff.
[20] Counsel for the respondent submits that the objection was raised for the first time by the appellant/plaintiff and a criminal case was instituted at the stage when the respondent applied for opening mutation in her name on the strength of the registered sale deed in April/June 2011 after almost two years & with no explanation why action was not taken by the appellant/plaintiff if at all there was an iota of reason to put fraud or undue influence over the appellant for execution of the sale deed on the alleged consideration of sale price for transfer of possession in favour of the respondent/defendant.
[21] To further substantiate, the counsel submits that instituting a criminal case and filing of charge sheet has no co- relation and a criminal case was instituted by the brother in law of the appellant/plaintiff, Biplob Karmakar, who was one of the Page 12 of 23 witnesses to the sale deed and has appeared in the witness as PW-2 implicating Pradip Kumar Roy, the respondent No. 2 and husband of the respondent No. 1. Just to create pressure, the present suit was filed by the appellant/plaintiff at the instance of Biplob Karmakar just to settle the their business transactions.
[22] Counsel further submits that the learned trial judge has appreciated the documentary evidence and the statement of the witness in totality and found no reason to grant relief to the appellant/plaintiff as prayed for and there is no perversity in the finding recorded and the judgment decreed by the trial judge needs no interference.
[23] I have heard the counsel appearing for the parties and with their assistance examined the material available on records.
[24] At the outset, it may be noticed that the sale deed dt. 11th June, 2009 (Exbt.2) is the registered sale deed duly executed by the appellant-plaintiff in favour of the first respondent/defendant No. 1 and in support thereof, one court witness CW-1, Smti. Nipa Rani Deb(Datta), who was an employee of Bishalgarh Sub-Registry Office, in her deposition identified Exbt.2 and Exbt.4, which are compared with the volume Book in connection with two numbers of sale deeds vide No. 1-1073 dt. 11th June, 2009 and 1-477 dt. 31st July, 2006.
Page 13 of 23[25] It is the settled principles of law that the ownership & title in a property pass on to the transferee under the terms and conditions of the deed of conveyance refers to Sec.8 of the Transfer of Property Act declares that on a transfer of property all the interests which the transferor has or is having at that time, capable of passing in the property and in the legal incidence thereof, pass on such a transfer unless a different intention is expressed or necessarily implied. A combined reading of Sec.8 and Sec.54 of the Transfer of Property Act suggests that though execution and registration of a sale deed, the ownership and all interest in property pass to the transferee, at that would be on terms and conditions embodied in the deed indicating the intention of the parties. It follows that the execution and registration of sale deed, the ownership title and all interests in the property pass on to the purchaser unless a different intention is either expressed or necessarily implied which obviously to prove by the party asserting that title has not passed on registration of the sale deed. But that intention can be gathered by intrinsic evidence from the averments in the sale deed itself or by other attending circumstances subject, of course, to the provisions of Sec.92 of the Evidence Act, 1872.
[26] The recital of Exbt.2, the registered sale deed dt. 21st June 2009 clearly indicates that after seeking permission from the competent authority by the appellant/plaintiff being a member of the Schedule Tribes dt. 2nd March, 2009 for sale of the land measuring 2.10 acres (two acres ten decimals) (5.25 Page 14 of 23 kanis) being badly in need of cash the appellant/plaintiff proposed to sell out the land measuring 2.10 acres (two acres ten decimals) (5.25 kanis) and the No. 1 respondent/defendant also agreed to purchase the same from the appellant/plaintiff- vendor for a consideration of Rs. 6,60,000/- and after having received the sale consideration, handed over the possession of the suit land and thereby have divested all sorts of rights and title of the subject land in favour of the respondent/defendant after acceptance of the sale consideration, declared No. 1 respondent as the owner in possession with all the rights and title as enjoyed by the appellant/vendor would remain in absolute peaceful possession in favour of the respondent/defendant No. 1.
[27] The recital of the sale deed Exbt.-2 is expressly clear leaves no manner of doubt that the ownership and all interest in the property passed on to the transferee along with the possession of the suit land on the date of registration of the sale deed & passing of the sale consideration and it was never the case of the appellant/plaintiff that the sale consideration was not pass on at the time when the sale deed was registered dt. 11th June, 2009 (Exbt.2) and only on transfer of the sale consideration the ownership and all interests of the property along with possession free from all encumbrances was handed over to the No. 1 respondent/defendant.
[28] The suit for declaration and cancelation of the registered sale deed on 11th June, 2009 was instituted by the Page 15 of 23 appellant/plaintiff on 14th July, 2011 and no explanation was tendered by the appellant/plaintiff as to why for more than two years she remained completely silent. At the same time objection was raised by her at the stage when the matter came up for opening mutation at the instance of the No. 1 respondent/defendant and simultaneously a criminal complaint was filed by the witness to the sale deed that under serious threat & pressure sale deed has been executed & registered by fraud & is illegal to be set aside.
[29] The appellant purchased the suit land along with other land by two separate registered sale deeds dt. 16th June, 2006 (Exbt.1) measuring 3.25 acres (8 kanis 2 gandas 2 karas) for total consideration of Rs. 1,60,000/- @ 40,000/- per kani and the other land measuring 5.01 acres for a total sale consideration of Rs. 1,90,000/- dt. 31st July, 2006 (Exbt.4) which comes to 4 kanis 10 gandas @ Rs. 40,000/- per kani. [30] The appellant/plaintiff sold the other land (3 kanis) to one Shri Dhruba Kishor Debbarma @ Rs. 1,95,000/- by a registered sale deed dt. 28th January, 2007 (Exbt.b) @ Rs. 65,000/- per kani. The appellant/plaintiff sold 2.10 acres of land (5.25 kanis) to the No. 1 respondent/defendant for a total consideration of Rs. 6,60,000/- vide registered sale deed dt. 11th June, 2009 (Exbt.2) @ Rs. 1,20,000/- per kani. The escalation was three times within three years of the suit land purchased by the appellant.
Page 16 of 23[31] Chapter-II of Indian Contract Act, 1872, deals with contracts which are voidable contracts and void agreements and all such agreements and contracts that fulfill the requirement of Sec.10 and entered with free consent of the parties or competent to contract for a lawful consideration with lawful object under any law relating to the registration is required to be complied with and considered to be a legally executable contract under the Act.
[32] Free consent has been defined u/Sec.13 of the Act, provided is not caused by consideration which are defined u/Sec.14 of the Contract Act. The case of the plaintiff is that the sale deed has been registered dt.11th June, 2009 (Exbt.2) under serious threat and pressure by committing fraud by the first respondent/defendant and fraud has been defined u/Sec.17 of the Act and the burden was on the person who alleged of fraud being committed. In the instant case either of the conditions referred to u/Sec.17 of the Act are not being fulfilled by the appellant/plaintiff and there is no averment in the plaint except in paragraphs-8 & 9 and the conjoint reading of paragraphs-8 & 9 of the plaint substantiate that the respondent No. 1 put serious threat and pressure on the appellant/plaintiff and got the sale deed executed, which according to the appellant/plaintiff is a fraudulent act on the part of the first respondent/defendant and such execution of sale deed being illegal and executed under fraud. Page 17 of 23 [33] At the same time it has been further alleged that the market value of the subject land was approximately 1(one) crore and to support further it was averred in the plaint that earlier one Smt. Bandana Roy, proforma-respondent/proferma- defendant informed the plaintiff that she is willing to purchase the subject land measuring 2.10 acres for a total consideration of Rs.42,00,000/- that comes to Rs. 8,00,000/- per kani and an agreement was also executed on 22.3.2007 and under that agreement a sum of Rs. 5,00,000/- was paid in advance. But because of delay in getting permission from the D. M. West Tripura who was the competent authority under the Act, 1960 as the appellant/plaintiff belongs to a tribal community she could not transferred the subject land without prior permission. By the time permission was granted the proforma respondent No.3 has not shown her intention to purchase the subject land for the reason that the proforma-respondent/defendant was put under serious threat and pressure to withdraw her intention and no option was left with the appellant/defendant to sell the subject land to the No.1 respondent/defendant No. 1 on throughway price of Rs. 6.60,000/- measuring 2.10 acres of land @ of Rs.1,20,000/- per kani where the value of the land was approximately 1(one) crore and for the escalation of the price of the subject land the plea of the appellant/plaintiff was that the subject land was abutting the National Highway No. 44 was the cause of manifold escalation.
[34] The defence of the appellant was fallacious and not acceptable for the reason that for the first time the Page 18 of 23 appellant/plaintiff raised objection to the purported prayer made by the respondent/defendant No.1 Smt. Sanghamitra Roy for opening mutation of the subject land on the strength of a purported deed of sale bearing No. 1-1073 dt. 11th June, 2009 addressed to the SDM, Bishalgarh on 22nd July, 2011 (Exbt.6) and simultaneously the criminal complaint was also lodged by Sri Biplob Karmakar (PW-2), brother in law & witness to the sale deed addressed to the Officer-in-Charge, East Agartala Police Station, Agartala, in reference to his business transaction and also alleged that the sale deed was executed under undue influence & fraud but the fact is, for two years neither the appellant/plaintiff nor the attesting witness to the sale deed & the brother in law of the appellant (PW-2) ever raised any objection.
[35] It is relevant to note that except the bald pleadings in the plaint and para-8 & 9 in particular neither Smt. Bandana Roy, the proforma-respondent/defendant appeared in the witness box nor the alleged agreement if any entered between the appellant/plaintiff and Smt. Bandana Roy as stated to be executed on 22nd July, 2007 was exhibited by the appellant/plaintiff and the defence of the appellant was that after a criminal complaint being instituted, the alleged agreement to sale dt. 22nd July, 2007 was seized in the criminal proceedings by the Investigating Officer but this fact appears to be factually incorrect for the reason that the copy of the charge sheet has been exhibited and placed on record (Exbt.14) No. 83 of 2012 dt. 31st May, 2012 and the list of Page 19 of 23 seized articles are indicated at page-308 of the paper book, there is no such mention of the alleged agreement to sale dt. 22nd July, 2007 being seized in the criminal proceedings instituted at the instance of the complainant (brother in law of the appellant/plaintiff) and witnessed to the registered sale deed dt. 11th June, 2009.
[36] The indisputed fact is that the alleged agreement to sale dt. 22nd July, 2007 has never seen the light of the day and a false concocted story was built up by the appellant/plaintiff of entering into an agreement with Smt. Bandana Roy who agreed to purchase the suit land on a consideration of Rs. 42,00000/- @ Rs. 8,00000/- per kani and handed over some money which was returned by the appellant because of the alleged threat from the respondent No. 2.
[37] The statement of fact made by the appellant further shattered in her cross examination (PW-1) being a witness to the sale deed if any could not be introduced by the plaintiff nor exhibited to show any kind of pressure by the defendant. On the contrary, she admitted that she did not furnish the details of particulars i.e. date, time and place of alleged threat, if any. At the same time, it was her own admission that the appellant/plaintiff along with her husband and elder brother in law, PW-2 who is witnessed to the sale deed went to the office of the Registrar for registering the sale deed dt. 11th June, 2009. It is not clear what was the element of fear, when she was asked for the voluntary sale in presence of the attesting Page 20 of 23 witnesses, even her photograph and RTI were taken for further accuracy.
[38] It was not disputed that the suit land was abutting the by-pass of National Highway No. 44 for which the rate of the land has possibly escalated, but it was nowhere pleaded by the appellant/plaintiff as to when the acquisition proceedings for constructing Highway No. 44 was initiated and whether the Highway No. 44 was constructed subsequent to the land purchased by the appellant/plaintiff in the year 2006 or the proceedings regarding its acquisition initiated only in the intervening period of 11th June, 2009 to justify the manifold escalation of the suit land. The justification tendered by the plaintiff has not been supported by any documentary evidence on record to show that the price of the sale consideration was either under valued or it was under threat.
[39] The plaintiff, PW-1 also admitted in her cross- examination that she did not raise any objection at the time of registration of sale deed for which the right of objection stands waived as they had given consent at that time with sound mind. Even in the sale deed the brother in law of plaintiff Sri Biplob Karmakar, PW-2 was an attesting witness which has further supported the sale deed (Exbt.2).
[40] At the same time it was her own admission that a criminal case instituted by Biplob Karmakar (PW-2) against Pradip Roy was in reference to a shop and commercial transactions and extortion of money and an inference can be Page 21 of 23 drawn that the suit was filed by plaintiff possibly at the instance of complainant Biplob Karmakar (PW-2) who had filed the criminal complaint against the husband of the respondent/defendant in reference to some other business transactions and for the first time the appellant/plaintiff raised objection when the matter was taken up for opening of mutation proceeding seeking permission from the competent authority dt. 22nd June, 2011 (Exbt.7) and the mutation was held up and kept in abeyance because of pendency of the civil and criminal cases as it reflected from the order passed by the SDM, dt. 23rd Jnue, 2011 (Exbt.6).
[41] Indisputably the burden was on the appellant/plaintiff to plead the material particulars as
envisaged in Order-VI Rule,-4 of the CPC whether there was any fraud or undue influence with dates and time if necessary for the purpose but indisputably neither stated in the plaint nor in the statement recorded by PW-1 and a mere statement would not suffice to overcome cancellation of a registered document. At the same time the DW-1 has stated that after taking possession she cut down some uneven lands by utilizing dozer machine of Paresh Ghosh and after the land is leveled, the money receipts showing huge payment to the contractor for labour payment to prove the element of transfer of possession convincingly in favour of the respondent/defendant. At the same time PW-2, the brother in law of the appellant could not show how and when he was threatened by defendant Page 22 of 23 No. 2 for endorsing signature as a witness in the sale deed and his version is also not believable.
[42] But the Government witness CW-1 Smti. Nipa Rani Deb proved the disputed sale deed dt. 11th June, 2009 as genuine by comparing with the original volume book and so if believed the official record, I have no hesitation to say that the sale deed is genuine where the purchaser deposed before the court as DW-1, DW-2 has also stated that he along with Rakhi Debbarma, Snaghamitra Roy, Biplob Karmakar, Dipak Karmakar, Pradip Roy and Deed writer were there at the time of money transaction for which it cannot ascertain when the threat was there and by what method.
[43] Indisputably she filed the suit after long elapse of two years and this cannot be ruled out this theory propounded by the appellant/plaintiff appears to be an afterthought. Pendency of the criminal case has no dealing with the issue raised and decided in the present suit. On the basis of pleadings on records, this Court is of the view that the findings returned by the learned trial judge in reference to issue No. 2 and 3 are based on the cogent reason supported with the material on record.
[44] The submission of the counsel for the appellants that a fraud being committed in the absence of any primary pleadings on record is without substance and the judgments relied upon of the Apex Court in Janak Dulari Devi and Another v. Kapildeo Rai and Another, reported in AIR Page 23 of 23 2011 SC 2521 and Kaliaperumal v. Rajagopal and Another, reported in (2009) 4 SCC 193 are of no assistance for the reason that these are the cases where the question raised was that the sale consideration has not been transferred and the conditions of the agreement has not been carried out by the parties. It would depend upon the terms & conditions about incorporating the deal regarding the intention of the parties taking note of Sec.54 of the Transfer of Property Act. In the instant case on transfer of sale consideration, the title with interest and possession was transferred to the purchaser/vendee which clearly recited from the registered sale deed dt.11th June, 2009 (Exbt.2) and that is a reason for which the respondent no.1 proceeded to open mutation of the suit land in question.
[45] After hearing the parties, I find no perversity in the findings returned by the learned trial judge requires no interference in the instant appeal.
The appeal is without substance & accordingly dismissed.
CHIEF JUSTICE Certificate : All corrections made in the judgment/order have been incorporated in the judgment/order. A.Ghosh