Sunday, 21 August 2016

Whether seller can execute second sale deed after cancellation of first sale deed?

 In the case in hand, as has been concurrently held by both the Courts, the Defendant Nos. 6 and 7 executed and registered the sale deed in favour of the Plaintiff on 30.9.1974 and handed over possession. Subsequently on 5.10.1974, they have cancelled the sale deed by execution of another deed and alienated the property once again to Defendant No. 1 and father of Defendant Nos. 2 to 5. In view of the earlier registered sale deed executed in favour of the Plaintiff on 30.9.1974, Defendant Nos. 6 and 7 lost their title. Thus, by virtue of 2nd sale deed dated 10.10.1974, Defendant No. 1 and father of Defendant Nos. 2 to 5 derived no title.
IN THE HIGH COURT OF ORISSA
Decided On: 19.01.2009
Appellants: Laxmidhar Naik and Ors.
Vs.
Respondent: Sridhar Naik and Ors.
Hon'ble Judges/Coram:
A.S. Naidu, J.

Citation;2009(2) Civil LJ 643

1. The Judgment and decree dated 25.2.1987 passed by the Learned Subordinate Judge, Karanjia in Title Appeal No. 4 of 1986 confirming the Judgment and decree dated 23.12.1985 passed by the Learned Munsif Karanjia in Title Suit No. 13 of 1983 are assailed in the Second Appeal filed by the Defendants of the said suit.
2. Bereft of unnecessary details, the short facts which are necessary for effectual adjudication of the suit are as follows:
The Respondents as Plaintiffs, filed Title Suit No. 13 of 1983 for declaration of title, recovery of possession and permanent injunction with other consequential reliefs. The disputed lands appertaining to Khata No. 4 of Khadipal mouza in the district of Mayurbhanj. Defendant Nos. 6 and 7 inherited the said property from their mother Krushna Dehury. On 30.9.1974 Defendants 6 and 7 sold the suit lands by a registered sale deed to the Plaintiff for a consideration of Rs. 500/- and delivered possession thereof. In the year 1975 the Plaintiff raised paddy on the land. But then, Defendant No. 1 and father of Defendant Nos. 2 to 5 forcibly removed the paddy, consequently a proceeding was initiated under Section 379, IPC in the Court of Learned SDJM, Karanjia. During pendency of the said case, the Plaintiff came to know that Defendant Nos. 6 and 7 subsequently cancelled the sale deed by executing a deed of cancellation on 9.10.1974. Thereafter the said Defendants had executed a sale deed in favour of Defendant Nos. 1 and 2. On the strength of the said sale deed, Defendant Nos. 1 and 2 created disturbances and cut and removed the paddy. On coming to know about the said fact, Plaintiff filed the suit.
After receiving notice, written statement was filed by Defendant Nos. 6 and 7 taking the stand that no right, title and interest passed to the Plaintiff by virtue of the registered sale deed dated 30.9.1974 as the Plaintiff failed to pay the consideration amount. Defendant Nos. 6 and 7 thereafter cancelled the sale deed by executing a deed of cancellation and sold the land to the Defendant No. 1 and mother of Defendant Nos. 2 and 5.
3. On the basis of the pleadings, six issues were framed by the Trial Court. To substantiate the case, Plaintiff got examined four witnesses and exhibited three documents. Defendants got examined six witnesses and exhibited three documents.
4. After discussing the evidence in extensor, Trial Court came to the conclusion that by virtue of the registered sale deed on 30.9.1974, Ext.3, the Plaintiff had acquired valid right, title and interest and that the recitals made in Ext.3 itself disclose that the consideration amount was paid to the vendors, Defendant Nos. 6 and 7 at their house before registration. The Trial Court decreed the suit and declared right, title and interest of the Plaintiff .
5. Being aggrieved by the said Judgment, Defendant Nos. 6 and 7 filed Title Appeal No. 4 of 1986, which was heard by the Learned Subordinate Judge, Karanjia. The only contention raised before the Appellate Court was that the sale deed, Ext.3 executed in favour of the Plaintiff by Defendant Nos. 6 and 7 did not transfer any title as the consideration amount was not paid and that the said deed was cancelled by execution of a deed of cancellation followed by a subsequent sale deed in favour of Defendant Nos. 1 and father of Defendants 2 to 5. The Appellate Court relying upon the recitals made in the sale deed, Ext.3 executed by Defendant Nos. 6 and 7 in favour of the Plaintiff and other evidence, both oral and documentary came to the conclusion that only after receipt of the consideration amount, the sale deed was executed and by virtue of the sale deed, the Plaintiff had acquired valid right, title and interest. On the basis of such conclusion, the appeal was dismissed.
6. The Second Appeal has-been admitted on the following substantial question of law.
Whether on the basis of the sale deed dated 30,9.1974, Respondent No. 1 acquired title or on the basis of the sale deed dated 10.10.1974, the Appellants acquired title?
7. Heard Learned Counsel for both parties at length. Perused the evidence meticulously. The only ground on which the registered sale deed, Ext.3 executed by Defendant Nos. 6 and 7 in favour of the Plaintiff is sought to be set aside, is that no consideration had been paid. The recitals of Ext.3, however, clearly reveal that the consideration amount was paid before execution of the document. Both the Courts below after discussing the evidence in extenso have arrived at a concurrent finding of fact that the consideration amount was in fact paid. The jurisdiction of the High Court to interfere with the concurrent finding of facts was discussed by the Supreme Court in the case of Chandra Bhan v. Pamma Bai and Anr. MANU/SC/2489/2000 : (2002)9SCC565 . In the said case in view of the factual finding recorded by the lower Court and 1st Appellate Court, the Supreme Court held that interference with concurrent findings of fact are not justified and the jurisdiction under Section 100, C.P.C. should not have been exercised.
8. In the case of Neelakantan and Ors. v. Mallika Begum MANU/SC/0062/2002 : AIR2002SC827 , the Supreme Court held that the findings of fact recorded can be interfered only where the said findings are based on no materials or on any legal evidence on record or is based on misreading of evidence or suffers from any legal infirmity, which materially prejudice the case of one of the parties.
9. Section 54 of the Transfer of Property Act deals with sale of tangible immovable property. The said sale, if value of the property is more than Rs. 100/-, has to be effected by a registered Instrument. Where there is sale by registered instrument, there is a prima facie transfer of title to the vendee mere non-payment of the price does not prevent passing of the ownership of the purchased property from the vendor to the purchaser and vendor's only remedy is to sue for recovery of the unpaid consideration, if any. MANU/OR/0016/1993, Dulana Dei @ Dolena v. Balaram Sahu and two Ors. In other words, where the property is sold under registered deed, the purchaser acquires title even if consideration is not paid. For the unpaid consideration, the vendor can file a separate suit. That apart a right accrued by means of a registered document cannot be taken away by a deed of cancellation. (See 2001 (II) OLR 514.
10. In the case in hand, as has been concurrently held by both the Courts, the Defendant Nos. 6 and 7 executed and registered the sale deed in favour of the Plaintiff on 30.9.1974 and handed over possession. Subsequently on 5.10.1974, they have cancelled the sale deed by execution of another deed and alienated the property once again to Defendant No. 1 and father of Defendant Nos. 2 to 5. In view of the earlier registered sale deed executed in favour of the Plaintiff on 30.9.1974, Defendant Nos. 6 and 7 lost their title. Thus, by virtue of 2nd sale deed dated 10.10.1974, Defendant No. 1 and father of Defendant Nos. 2 to 5 derived no title.
11. Both the Courts have discussed the evidence in extenso and the conclusions arrived at do not call for any interference and this Court declines to interfere with the concurrent finding of fact and answers the substantial question of law as above. Each party to bear their own cost.
Print Page

No comments:

Post a Comment