Plaintiff sued for specific performance of an agreement to sell land. Both trial and first appellate courts held the agreement not genuine, citing suspect witnesses and stamp paper irregularities. The High Court found no substantial question of law and dismissed the second appeal without costs.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF ORISSA AT CUTTACK
R.S.A. NO.472 OF 2017
In the matter of an Appeal under Section 100 of the Code of Civil Procedure, 1908 assailing the judgment and decree dated 07.11.2017 and 16.11.2017 respectively passed by the learned Additional District & Sessions Judge, Anandapur in R.F.A. No.02/34 of 2017-16 confirming the judgment and decree dated 29.09.2016 and 20.10.2016 respectively passed by the learned Civil Judge, (Senior Division), Anandapur in Civil Suit No.08 of 2009.
Ramesh Patra
…. Appellant
-versus-
Sukadev Patra …. Respondent
Appeared in this case by Hybrid Arrangement
(Virtual/Physical Mode):
================================================
For Appellant - Mr. P. Panda,
(Advocate).
- ----------------
For Respondent
CORAM:
MR. JUSTICE D.DASH
Date of Hearing : 02.11.2023 :: Date of Judgment: 08.01.2024
D.Dash,J. The Appellant, by filing this Appeal under Section-100 of the
Code of Civil Procedure, 1908 (for short, ‘the Code’), has assailed the judgment and decree dated 07.11.2017 and 16.11.2017 respectively passed by the learned Additional District & Sessions Judge, Anandapur in R.F.A. No.02/34 of 2017-16.
The Appellant as the Plaintiff had filed the suit in the Court of learned Civil Judge (Senior Division), Anandapur for declaring the
Page 1 of 9
RSA No.472 of 2017
{{ 2 }}
agreement executed between him of the Respondent (Defendant) to be valid and with further prayer to direct the Respondent (Defendant) to sale the suit land in favour of the Plaintiff followed by an order of permanent injunction.
2 . For the sake of convenience, in order to avoid confusion and bring in clarity, the parties hereinafter have been referred to, as they have been arraigned in the Trial Court.
3. The Plaintiff’s case is that the Defendant, who is an agnatic relationship with the Plaintiff, was the owner of the suit land. The Plaintiff has his own land located adjoining the suit land on its north. The Plaintiff had purchased the northern land measuring Ac.0.20 decimals along with an undisputed area of Ac.0.05 decimals of pertaining to a separate plot from the Defendant by registered saledeed dated 23.09.2003. The Defendant being in urgent need of money, approached the Defendant for sale of rest Ac.0.68 decimals out of the said plot. An agreement having been arrived at, the Defendant agreed to purchase the same for consideration of Rs.74,800/- to be paid by the Plaintiff. Since the Plaintiff was having no further funds to meet the registration expenses, he wanted some time, to which the Plaintiff acceded. In view of the above understanding, on 27.09.2003, an agreement for sale of the suit land measuring Ac.0.68 decimals
Page 2 of 9
RSA No.472 of 2017
{{ 3 }}
belonging to the Defendant was entered into between the Plaintiff and the Defendant. The agreement did not stipulate any time for execution of the sale-deed. However, in the month of December 2006, the Plaintiff being able to arrange required money, asked the Defendant to execute and register the same. The Defendant then however, deferred on some pretext or other. The Plaintiff believed on his word and waited for the Defendant to suo moto come forward. When the matter stood thus, on 20.09.2003, the Plaintiff was astonished to be asked by the Defendant to give up possession of the suit land in further expressing that he would pay the received consideration later. The Defendant so demanded the possession by saying that he was getting better offer for sale of the suit land. The Plaintiff, therefore, filed the suit for Specific Performance of Contract with other prayers.
4 . The Defendant contested the suit by filing written statement. Attacking the genuineness of the agreement for sale (Ext.1), it is stated that the Plaintiff had obtained such agreement by using his signature which he had lent at the time of execution of the sale-deed of other land of Ac.0.20 decimals on 23.09.2003 in favour of the Plaintiff. It is further stated that the Plaintiff was never delivered with the possession of the said land nor had paid any sum towards the consideration of the suit land to the Defendant.
Page 3 of 9
RSA No.472 of 2017
{{ 4 }}
5 . The Trial Court with the above rival pleadings framed as many as six (6) issues. The crucial issue as to the genuineness of the agreement being taken up for discussion, upon examination of evidence in the backdrop of the rival pleadings, it has been held that said agreement is not a valid one.
The Trial Court also disbelieved the factum of payment of consideration for the proposed sale of the suit land to the Defendant by
the Plaintiff. With all these above findings, the suit stood dismissed.
6 . The Plaintiff thus being non-suited by the Trial Court carried the First Appeal which has also been dismissed. Hence, this Second Appeal is at the instance of the unsuccessful Plaintiff before the Court below.
7 . Learned Counsel for the Appellant (Plaintiff) submitted that the
Courts below are not justified to hold that the agreement for sale (Ext.1) is not valid one. He submitted that when the agreement contains the signature of the parties as also the witnesses and it is on a stamp paper purchased by the vendor (Defendant) under his instruction being scribed and followed by an affidavit acknowledging the receipt of full agreed consideration for the sale of the suit land by the Defendant; the Courts below ought not to have ignored all these facts established through evidence in arriving at a conclusion to the
Page 4 of 9
RSA No.472 of 2017
{{ 5 }}
contrary. He further submitted that in the absence of any time being stipulated for execution of the sale-deed in the agreement under Ext.1, the Courts below ought not to have held that the suit filed on 04.02.2009 for specific performance of agreement dated 27.09.2003 as not maintainable. He, therefore, urged for admission of this Appeal to answer the above as the substantial questions of law.
8. Keeping in view the submissions made, I have carefully read the
judgments passed by the Courts below. I have also gone through the plaint and written statement filed by the parties as well as the evidence, both oral and documentary, let in by them.
9 . Admittedly, the Defendant was the owner in possession of the total land measuring Ac.0.88 decimals. It is also not in dispute that by registered sale-deed dated 23.09.2003, he has sold away Ac.0.020 decimals out of said land to the Plaintiff for valuable consideration. The settlement ROR, Ext.A published in the year, 1975 as well as the registered sale-deed dated 23.09.2003, Ext.B establish that position, which has not faced any challenge.
The question stands as to the validity of the agreement for sale, which is the base document for the suit filed by the Plaintiff. The so called agreement for sale is Ext.1. The Advocate who has scribed the agreement has come to depose as P.W.2. This document, Ext.1 is
Page 5 of 9
RSA No.472 of 2017
{{ 6 }}
attacked by the Defendant to have been created by the Plaintiff taking advantage of the custody of the some signed papers which he had taken from the Defendant; when the Defendant had executed and registered the sale deed in his favour on 23.09.2003.
In view of such attack to Ext.1, the Court below appears to have rightly undertaken the exercise of in-depth scrutiny of evidence on record. When the scribe, P.W.2 has stated that said agreement had been written under the instruction of the Defendant in presence of the witnesses, the Courts below have not accepted the same as said agreement, Ext.1 does not contain any such endorsement and so also the signature of the scribe, P.W. 2 stands wanting.
The evidence of witness, P.W.3, who is a witness to the so called agreement, has been examined as P.W.3; whereas another witness to the said Ext.1 has been examined as D.W.2. When D.W.2 has disowned his presence at the time of preparation of Ext.1, it is his evidence that on the request of the Plaintiff that he had lent his signature on a blank stamp paper. P.W.3 has however stated to have been cited as witness under the instruction of the scribe, P.W.2. He is unable to say as to if that document is even a registering one or not. As per his evidence, Ext.1 was prepared in the chamber of P.W.2; whereas
the Plaintiff himself examined as P.W.1 states that the agreement,
Page 6 of 9
RSA No.472 of 2017
{{ 7 }}
Ext.1 had been prepared near Tahasil Office. When P.W.3 has not been able to show that who else were present when the contents of the Ext.1 were read over and explained by P.W.2 to the Defendant and the evidence of P.Ws.2 and 3 remained in variance with regard to the creation of Ext.1 and more importantly, when one of the witness to the agreement, Ext.1 i.e. D.W.2 is not supporting the execution of Ext.1 and another witness namely, Narottam has been withheld from witness box from being examined without any explanation, the Courts below in my considered view are wholly right in holding the agreement for sale to have not been proved to be a valid and genuine one as to have been duly executed by the Defendant knowing its nature, contents and imports.
10 . The Defendant’s case is that the Plaintiff had utilized some of
his signed stamp papers taken from him on the date of execution of the sale-deed on 23.03.2009 is established through the evidence that the
stamp papers used in Ext.1 has been purchased on 23.09.2003, which is the date of execution of the sale-deed, Ext.B.
The First Appellate Court appears to have found out another highly suspicious feature surrounding that Ext.1 that it had been purchased at the same time, when the stamp papers used for Ext.B had
Page 7 of 9
RSA No.472 of 2017
{{ 8 }}
been purchased as the serial number put by the vendor of the stamp paper used for Ext.1 as 1219 is the number assigned to Ext.B.
In view of all these above and further taking into account another suspicious feature as to the capacity of the Plaintiff to pay the agreed consideration of Rs.74,800/- to the Defendant on the date of execution of the sale-deed and then being not able to go for the registration of the sale-deed for shortage of money to be spent for preparation of the sale-deed and its registration; the First Appellate Court has found to be right in accepting the Defendant’s case that the
agreement is not valid and genuine one to have been so executed by the Defendant knowing its nature and being aware of its contents. With all these above, when the First Appellate Court has further found the oral evidence with regard to the possession of the suit land by the Plaintiff to be shaky and is not supported by any document, no fault is seen with that the finding that Ext.1 is not acceptable in the eye of law.
11 . Having said all these above, this Court when finds no reason or justification to differ with the conclusion arrived at by the Courts below on the above scores; which is sufficient to confirm the judgments and decrees passed by the Courts below; the other limbs of the submission of the learned Counsel for the Appellant do no more stand for being addressed.
Page 8 of 9
RSA No.472 of 2017
{{ 9 }}
Moreover, a careful reading being given to the judgments
passed by the Courts below covering the discussion of evidence in detail, this Court finds that in ultimately arriving at the finding, no such material evidence available on record have been overlooked or side lined. It also does not appear that the Courts below have read something extraneous to the evidence as standing to the aid of said finding in basing upon it. In that view of the matter, the concurrent
findings on fact returned on detail discussions of evidence and their examination from of all angles as have been rendered by the Courts
below are not found to be suffering from the vice of perversity.
For all the aforesaid, the submission of the learned Counsel for the Appellant (Plaintiff) cannot be countenanced to say that there arises any substantial question of law for being answered, meriting admission of this Appeal.
12. In the result, the Appeal stands dismissed. However, there shall be no order as to cost.
(D. Dash), Judge.
Narayan Signature Not Verified
Digitally Signed Signed by: NARAYAN HO Reason: Authentication Location: OHC Date: 12-Jan-2024 15:25:57
Page 9 of 9
RSA No.472 of 2017
2 issues framed by the court
Whether the agreement for sale (Ext.1) dated 27.09.2003 was validly and genuinely executed by the Defendant.
Whether the concurrent findings of the courts below dismissing the suit for specific performance suffered from perversity warranting interference in a second appeal.
1 provisions across 1 enactments
Ramesh Patra
Sukadev Patra
D. Dash
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
