JUDGMENT
K.C. Jagadeb Roy, J.
1. The plaintiff is the appellant before this Court. He filed Title Suit No. 55/7 of 1978/76 for a declaration that he has the right, title and interest in the suit house No. 94, in Ward No. 6 situated on Plot No. 700 of Khata No. 58 of Kantabanjhi Nazul and Defendants 2, 3 and, 4 are trespassers and are liable for eviction. In the alternative, the plaintiff prayed for a decree for refund of the consideration money with interest from defendant No. 1 that was paid by the plaintiff to deft. No. 1 towards the full value of the said property and for a further declaration that defendants Nos. 3 and 4 are liable to pay him the monthly rent at the rate of Rs. 60/- per month for the period of their occupation under the plaintiff with effect from 20-6-1967.
2. The case of the plaintiff is that defendant No. 1 wanted to sell the suit house which the plaintiff agreed to purchase and on 15-6-67 there was an agreement between the parties fixing the consideration at Rs. 10.000/-, on which date the plaintiff paid Rs. 1000/- to deft. No. 1 in part performance of the contract. On the date of the aforesaid agreement, the suit house was under occupation of monthly tenants, namely, deft. Nos, 3 and 4 who are related with each other as father and son. It was decided by the parties that the registration of the document would be made before the Sub-Registrar, Titilagarh on 20-6-67. On 19-6-67 deft. No. 1 made a formal delivery of possession and since defts. Nos. 3 and 4 were occupying most to the premises they agreed in presence of the partition that they would be treated as tenants under the plaintiff and pay him rent to which both the plaintiff and deft. No. 1 agreed. Only a servant room which was kept vacant was delivered to the plaintiff on 19-6-67. On 20-5-67 a deed of sale was executed between the deft. No. 1 and the plaintiff but it could not be registered as deft. No. 1 before registration, left the premises of the Sub-Registrar’s office on the pretext of taking tea and never returned. However, on 21-8-67 according to the plaintiff, deft No. 1 presented the sale deed after receiving the balance consideration of Rs. 9,000/- from the plaintiff and the sale deed was registered bearing Registration No. 2636 of 1967. It is the further allegation of the plaintiff that he got his name mutated in the municipal records and is paying the Municipal Tax thereafter. It is contended by the plaintiff, however, that on 22-6-67 deft No. 1 executed another sale deed in respect of the said property in favour of deft. No. 2 who is the brother’s wife of deft. No. 3, on the ill-advice of defts. Nos. 3 and 4. No consideration actually passed and no possession of the property was ever transferred to the said Deft. No. 2 and according to the plaintiff the sale deed dated 22-6-67 was a sham transaction and was not acted upon. However, Deft. No. 1 later on 14-8-67 by a deed No. 2067 has cancelled the sale deed dt.22-6-67 made in favour of Deft No. 2. In the suit, the plaintiff has made Defts. Nos. 2, 3 and 4 parties apart from Deft. No. 1.
3. Deft No. 1 did not file any written statement and died during pendency of the suit. His legal representatives Defts. Nos. l(a) to l(e) were substituted in his place. Deft. No. l(a), however, is the sole contesting defendant. He filed his written statement and examined himself as D.W. No. I. No other witnesses were examined on his behalf. Defts. Nos. 2, 3 and 4 filed their joint written statement but did not examine any witness on their behalf. The plaintiff examined five witnesses of whom P.W. 1 was the plaintiff himself, P.W, 2 was a witness to the agreement dated 15-6-1967 as well as to the execution of the sale deed dated 20-6-1967, P.W. 4 was the scribe, P.W. 3 was a clerk of the Registration office, Belangir who only produced the document to prove registration of the impugned sale deed and P.W. 5 was a clerk of the Notified Area Council who proved the mutation in favour of the plaintiff in respect of the suit house and the payment of tax by the plaintiff for the said house. Deft. No. l(a) in his written statement alleged that the suit plot was the ancestral joint family property in the hands of defendant No. 1 and the sale by Deft. No. 1 of the suit house did not bind him. He denied any agreement to have entered into between Deft. No. 1 and plaintiff and according to him, no consideration passed from the plaintiff to the Deft. No. I for the suit house. According to him, the sale was otherwise void as it was hit by Section 23 of the Orissa Land Reforms Act, prior permission for sale having not been obtained from the Revenue Officer. This defendant also denied the sale of the house by Deft. No. 1 in favour of Deft. No. 2.
4. The Defendants Nos. 2,3 and 4 in their written statement denied the agreement between Defendant No. 1 and the plainttff and the execution of sale deed made by Defendant No. I in favour of the plaintiff and averred that Deft No. I on receipt of the full consideration amount, executed the sale deed in favour of Deft. No. 2. Deft. No. 2 being a bona fide purchaser for value without notice of any earlier agreement and Defts. Nos. 3 and 4 were paying the house rent to Deft No. 2.
Defendants Nos. l(b), l(f), l(d)and l(e),2, 3 and 4 have been set ex parte.
5. The trial Court framed as many as seven issues on the pleadings of the parties. The trial Court held that there was no agreement between the plaintiff and the deceased Deft. (Deft No. 1) on 15-6-67 and Deft. No. 1 had not received any advance of Rs. 1000/-from P.W. 1 and that the deceased defendant No. 1 had not delivered possession of the suit house on 19-6-67 to P.W. 1. That the suit house was joint property of Ugresen and Bansidhar. Since there was no passing of consideration of money under Ext. 2 and Ugresen had not transferred his interest in the same house in favour of P.W. 1, the sale deed dated 21-8-67 executed by deceased Deft. No. 1 in favour of the plaintiff was invalid in law besides the said sale deed was tainted with coercion.
6. The trial Court did not give any definite finding regarding the sale deed dt. 22-6-67 executed by defendant No. 1 in favour of defendant No. 2 as the defendants Nos. 2 to 4 were set ex parte and no evidence was adduced on their behalf in the case. The trial Court held, however, that the sale in respect of the suit house is not hit under Section 23 of the S.L.R. Act, but he found that the alternative relief claimed by the plaintiff was barred by limitation. Ultimately the trial Court held that the plaintiff had no cause of action to bring the suit and refused the reliefs claimed by him and) dismissed the suit.
7. In this appeal, the appellant has urged the following points:
(1)A registered document shall operate from the time of execution and not from the date of registration.
(2) For deciding when the title passed, the terms document only to be looked into and no extraneous evidence is admissible unless there is ambiguity in the terms of the document and when the recital of the document is unambiguous, the oral evidence cannot be looked into for the purpose.
(3) Since there was no stipulation in the contract that the ownership in the property would not pass until the consideration has been actually paid, non-payment of the consideration, if at all proved, will not affect the ownership of the plaintiff-appellant. Once a sale deed is complete, it cannot be recinded for failure of consideration.
8. The lower Court had given a finding as already stated, that the consideration did not pass from the plaintiff to the Deft. No. 1 which finding has been strongly challenged before this Court by the learned counsel appearing for the appellant. His assertion is that when the executant had mentioned in the deed of sale (Ext.-2) that he had received the full consideration and no written statement was filed by Deft. No. 1 denying the receipt of the said consideration, oral evidence is not permitted to be led in support of the fact that the consideration did not pass.
9. The case of the plaintiff in his evidence is that, in part performance of the agreement, plaintiff paid a sum of Rs. 1,000/- to Deft. No. 1 on the said date of agreement namely 15-6-67. However, on 21-8^67, Defendant No. I presented the deed of sale before the Sub-Registrar, Titilagarh after receiving the full consideration and the deed was duly registered. Therefore, the recital that the full amount of consideration was paid before execution of the sale deed i.e. on 20-6-67 cannot be said to be conclusive of the said fact. Under the circumstances, therefore, oral evidence becomes permissible to be adduced to prove non-payment of the same. The (plaintiff as P.W. 1 had stated before the Court that the balance consideration money of Rs. 9,000/- was paid by him to Deft. No. 1 in presence of the Sub-Registrar, Titilagarh. P.W. 2 also had stated in his evidence that P.W. 1 had paid the balance of Rs. 9,000/- at the time of registration of the document as already stated, i.e. on 21-8-67 though it was (executed on 20-6-67. It, therefore, cannot be believed that the consideration was paid before or at the time of execution of the document. P.W. 4, the scribe has said that the amount was paid by P.W. 1 to Deft. No. 1 on the date of execution in his sharista. This is quite contrary to the evidence of P.Ws. 1 and 2. The Sub-Registrar does not make any endorsement on the deed of sale (Ext-2) stating that the consideration money was paid in his presence.
From the above evidence, the only conclusion I draw is that the payment of Rs. 1000/-by the plaintiff to Deft. No. 1 as advance for part payment of the consideration is not denied by Deft. No, 1 and be accepted as having paid to Deft. No. 1.
Regarding the balance amount of Rs. 9,000/-, the plaintiff has failed to prove conclusively that he had paid the same amount either before or at the time of execution of the sale deed (Ext-2) or paid the same before the Sub-Registrar at the time of registration. Defendant No. 1, however, had presented that document Ext-2 for registration on 21-8-67, intending to transfer the title in favour of the plaintiff even though the entire consideration was not paid.
Accordingly even it is proved that a part of the consideration was still to be paid even after the registration, it will not affect the passing of title to the property in favour of the plaintiff and title passed on to the plaintiff on the registration of the document.
10. I have gone through the recitals is the sale deed (Ext-2). The recital of the said document translated into English is quoted below;
“I have sold the properties for a consideration of Rs. 10,000/- and have delivered possession of the premises to the purchaser. The price of the house sold with the appurtenances is valued at Rs. 10,000/-. To day T have received in cash the said amount from the purchaser in presence of witnesses, The purchaser from to-day shall continue to remain in possession of the said properties and shall mutate the property in his name on the basis of the sale deed and shall pay the revenue for the same and from to-day my rights and rights of my descendants cease in respect of the said property and revive in favour of the purchaser and his sons and grandsons.
The case of the Deft. No. l(a) was that since Defendant No. I did hot receive the full consideration from the plaintiff-purchaser, the property could not pass to him. In deciding the intention of the parties as to the time of passing of title, the document under which the properties were intended to be sold if unambiguous, remains the sole criterion. The factum of passing of consideration may be disputed and extraneous evidence may be admissible for determining that issue, but the terms of the contract as to the time of passing of title will be proved from the document alone if the terms are clear and unambiguous. If the terms are indecisive and ambiguous, then only the Courts will take into consideration other extraneous circumstances.
11. In the present case, there is no ambiguity in the terms of the contract of sale regarding the time of passing the consideration. In the sale deed the vendor expressed in clear terms that he sold the property under the sale deed to the purchaser and delivered the possession to him and from that date as all his interest on the property.
12. A Division Bench of this Court in case of (Hara Bewa v. Banchanidhi Barik) report ed in TLR (1957) Cuttack 360 : (AIR 1957 Orissa 243) was considering the question as to when the title exactly passed to transferee. In that case, relevant passage of the sale deed is as follows as translated :
“I today having duly sold to you (the vendees) A. 2-191/2 decimals of land, as scheduled below, at the present prevailing rate for the aforesaid consideration of Rs. 200/- and having received the entire consideration money in cash from you today, hereby stipulate as follows: (the underlining is made for emphasis).
That you the vendees with your lineal descendants will enjoy the properties under sale with all sorts of rights appertaining thereto till the sun and moon endure. You will get your name mutated in the Zamindari Sharista according to notice under Sections 31. You will alienate the property according to your necessity.”
The Court found in that particular case the recitals were not clearly decisive and the Court held thus:
“If really the recitals were to the effect that on receipt of the consideration money I sell the property to you and make you the full owner thereof, it would have been clear enough to show that the passing of title would depend upon the passing of consideration: On the contrary if there is a clear conveyance that the executant conveys title in favour of the vendee from the date of the execution of the document and the recital regarding consideration comes later independently of the clause regarding title, then only it is clear that title passes independent of the question of consideration.”
In the case referred to above, the recital was to the effect:
“….having received the entire consideration money from you in cash to-day, hereby stipulate as follows:
That you the vendee with your lineal descendants will enjoy the properties under sale with all sorts of rights appertaining thereto and will get your name mutated in Zamindari Sherista.”
In that case the Court held that the sentence is so involved and the terms regarding passing of title, passing of consideration and the vendees being owners in respect of properties sold are so intermingled that it is very difficult to make out from the recitals a definite position that in fact the title would pass independent of question of consideration. It was also not possible to take a contrary view on the plain reading of the document, and the Court felt necessary to take into consideration the extraneous circumstances of the custody of document and the conduct of parties etc. But when the vendor expressed that he sold the property to the purchaser and transferred all the rights in favour of the purchaser from the date of execution and recital regarding consideration comes later independently of the clause regarding title a title passes independent of the question of consideration. If any part of consideration was not paid, on execution or any time before or at the time of registration it would be open to the vendor to recover the same from the purchaser but this non-payment or deferred payment would not affect the passing of title in favour of the purchaser.
13. Together the intention of the parties the Court is bound to look to the terms of the contract and not to speculate as to the intention from evidence de hors the instrument. The only evidence that the Court will look into is that afforded by what the parties have said, and evidence aliunde is not admissible to prove their intention if the language employed is unambiguous.
14. The question when the property is to pass is a matter of contract. In that respect, it differs from the recital of fact, that is to say, the passing of the consideration which is not a matter of contract but a matter of fact. If the terms of the contract as to when the property is to pass are ambiguous, then recourse may be had to external evidence with a view to determining what the intention of the parties was; but if the intention of the parties has been stated in unabmbiguous terms, those terms must remain the sole criterion of the intention of the parties.
14A. Where a sale deed expressly states that from the date of its execution the vendee shall be entitled to all the rights in the property sold and that the entire consideration money also passed on that day, but this portion of the recital (regarding passing of consideration) in the deed is incorrect, from this circumstance alone, it cannot be inferred that the intention of the parties was that passing of the consideration was a condition precedent to the transfer of the title. In a case reported in AIR 1954 Orissa 23 (Balabhadra Misra v. Smt. Nirmala Sundari Devi), a Division Bench of this Court held thus:
“It expressly says that from the date of the execution of the document the vendee shall be entitled to all the rights in the suit property. Doubtless it was stated in the document that the entire consideration money also passed on that day. It is admitted by both parties that this portion of the recital in the document is incorrect. But from this circumstance alone, it cannot be inferred that the intention of the parties was that passing of the consideration was a cordition precedent to the transfer of the title. …..”
For what have been stated above, there is no doubt that the present sale deed in question was a completed document and that the property passed on the day of sale, independent of consideration because the recitals are clear that the title was not intended to be dependent on passing of consideration.
15. The present sale deed being compul-sorily registrable under Section 17 of the Indian Registration Act has been duly registered within the required time after the execution and the law is well settled that on registration the registered deed would operate from the time of the execution and not from the date of registration. The document as alleged is not a sham transaction as in the present case, the document was in possession of the plaintiff who got his name mutated in the Tahsil office and had been paying rent to the said authority. The plaintiff has led evidence that after conclusion of the agreement dated 15-6-67, a formal delivery of possession was also given by defendant No. 1 to the plaintiff on 19-6-67. The defendant No. 1(a) has nowhere stated that the entire house was in occupation of defendants Nos. 3 and 4 and as such it was not possible that the plaintiff could have taken delivery of possession of the vacant room as alleged by the plaintiff in his plaint. In paragraph-11 of the plaint, the plaintiff had specifically averred that on 20-6-67 the plaintiff and defendant No. I (vendor) and the witnesses meant for attesting the deed of sale came to Titilagarh and the deed was scribed under the instruction of defendant No. I who furnished all particulars of the suit house to the scribe. The deed was duly signed by defendant No. I in presence of the attesting witnesses. Defendant No. 1, however, under the instigation and advice of defendants Nos. 3 and 4 avoided the registration of the deed before the. Sub-Registrar and went away on a false plea of taking tea and never came to the premises of the Sub-Registrar’s office that day. On 21-8-67, however, defendant No. 1 presented the said deed of sale before the Sub-Registrar as deed No. 2636 of the year 1967 for registration after receiving the full consideration.
16. As already stated, Deft. No. 1 did not choose to file written statement and on his death though five of the legal representatives were substituted in his place only defendant No. l(a) chose to contest the suit and filed the written statement whereas the rest did not. In the said written statement filed by Deft. No. l(a), the above mentioned averment of the plaintiff in paragraph-11 has not been denied and remains unchallenged.
17. It has been in the evidence of Deft. No. l(a) that he was staying separately from his father for some time. There is in the evidence of P.W. 2 that Deft. No. l(e) had been living separately from his father Deft. No. 1 for the last 18 to 20 years. It is, therefore, not possible for him in ordinary course of events to know details of transaction and to speak for certain if at any time, Deft. No. 1 received consideration from the plaintiff. The other brothers of Deft. No. l(a) who were also substituted in place of Deft. No. 1 on death of Deft. No. I did not choose to contest with the plaintiff on this alleged sale. Deft. No. l(a) has stated in his evidence that even though he had municipal receipts showing payment of taxes, he failed to file those receipts in Court. He also stated that he could not say how many receipts he had with him. The evidence of Deft. No. l(a) examined as P.W. 1 does not inspire of any confidence and it is difficult to believe his story. His statement that he received rent from Defts. Nos. 3 and 4 does not receive any corrobora-tion from any other evidence on records. The evidence of Defts. Nos. 3 and 4 on the other hand shows that they were paying rent to Deft. No. 2 after the alleged registration in favour of Deft. No. 2. Deft. No. l(a) did not challenge the recording of the house in the name of plaintiff in the N.A.C. and had not raised any objection before the N.A.C, From this it is quite clear that Deft. No. l(a) was not in possession of the house nor he was actually managing the house at any time.
18. Another objection, however, has been raised by the Deft. No. l(a). According to him, since the property was a joint family property, Deft. No. 1 could not have sold away the entire house in favour of the plaintiff without any legal necessity.
19. P.W. 1 the plaintiff in his deposition has stated that Deft. No. 1 was the owner of the suit property and was separated from his sons by the time he purchased the suit property from Deft. No. 1 and the said property was situated in the N.A.C. Kantabanjhi area which consisted of homestead land with the building thereon. The plaintiff had further stated that the land belonged to Deft. No. 1 and was not recorded in the name of Deft. No. 1’s father and was not the ancestral property of Bansidhar the Deft. No. 1. No evidence has been led by Deft. No. l(a) or any other defendant that the property in question was recorded in the name of the father of Deft. No. 1 and it descended down to Deft. No. 1 by way of inheritance. There is no material available on record to suggest that the property was ancestral and, therefore, the sale of property by Deft. No. I in favour of the plaintiff cannot be said to be illegal on account of the fact that the consent of other copanceners was not taken and there was no legal necessity for the same. The document of sale which is exhibited as Ext-2 shows that the vendor had sold away the property in order to obtain funds to pay his loan and for improvement of his property.
20. The impugned sale was also challenged on the ground that it is hif by Section 23 of the Orissa Land Reforms Act. Admittedly the property in question is a homestead land with a house standing thereon and situated in Kantabanjhi town within the N.A.C. area. Section 22 (1) of the O.L.R. Act reads as follows:
“22(1) : Any transfer of a holding or part thereof by a raiyat, belonging to a Scheduled Tribes shall be void except where it is in favour of-
(a) a person belonging to a Scheduled Tribe; or
(b) a person not belonging to a Scheduled Tribe when such transfer is made with the previous permission in writing of the Revenue Officer:
Provided that in case of a transfer by sale the Revenue officer shall not grant such permission unless he is satisfied that a purchaser belonging to a Scheduled Tribe willing to pay the market price for the land is not available and in case of a gift unless he is satisfied about the bona fides thereof”.
Section 23 of the said Act reads as follows:
“23. Effect of transfer in contravention of Section 22-(1) In the case of any transfer in contravention of the provisions of Sub-section (1) of Section 22 the Revenue Officer on his own information, or on the application of any person interested in the land may issue notice in the prescribed manner calling upon the transferor and transferee to show cause why the transfer should not be declared invalid.,
(2) After holding such inquiry as the Revenue Officer deems fit and after hearing the persons interested, he may declare such transfer to be invalid and impose on the transferee a penalty of an amount not exceeding two hundred rupees per acre of the land so transferred for each year on any part thereof during which the possession is continued in pursuance of the transfer which has been declared to be invalid and may also order such portion of the penalty as he deems fit, to be paid to the transferor or his heir.
(3) On a declaration being made under Subsection (2), the Revenue Officer suo motu or on the application of any person interested cause restoration of the property to the transferor or his heirs and for the purpose may take such steps as may be necessary for compliance with the said order or preventing any breach of peace :”
Provided that if the Revenue Officer is of the opinion that the restoration of the property is not reasonable practically, he shall record his reasons therefor and shall, subject to the control of the Government settle the said property with another member of a Scheduled Tribe or in the absence of any such memb’er, with any other person in accordance with the provisions contained in the Orissa Government Land Settlement Act, 1962.”
On a plain reading of Sections 22 and 23 of the O.L.R. Act, it is quite clear that even though Section 22 speaks of a transfer of a holding or a part of it by a raiyat belonging to Scheduled Tribe shall be void in the special circumstance, it has to be determined under Section 23 by a competent authority in an inquiry as contemplated under Section 23 of the Act. Therefore, even if there is any allegation made that there is any transfer of holding in contravention of Section 22 of the Act, the only authority that can decide about the legality of the transfer is the Revenue Officer under the O.L.R, Act and cannot be agitated in a civil Court as there is a bar of jurisdiction of civil Court under Section 67 of the O.L.R. Act to try and decide a suit or proceeding so far it relates to any matter which any officer or authority is empowered under the O.L.R, Act to decide. Therefore, it is not a matter which could have been gone into by the civil Court and if the defendant had any grievance in that regard he could have agitated that under the O.L.R. Act and cannot canvas for such a relief in the suit.
21. It was raised on behalf of the defendant that the document Ext-2 was obtained by connection which was negatived by the trial Court. Any body who alleging that the document was obtained by coercion is to prove that the document was obtained by coercion. There is no emergent evidence available on record to substantiate the contention of the defendant in favour of his allegation of coercion. I, therefore, reject this plea of the defendant No. l(a).
22. The other points those were raised before the trial Court namely the point of limitation and recovery of possession of the tenanted portion of the suit house from the Defts. Nos. 3 and 4, are not passed in this appeal. The limitation was, however, found in favour of the plaintiff by the trial Court. Regarding the recovery of possession of a portion of the purchased premises from the alleged defendants Nos. 3 and 4, the plaintiff had averred in his plaint that it was agreed between the vendor (Deft. No. 1) and purchaser-plaintiff and existing defendants 3 and 4 who are occupying a part of the premises as tenants under Deft. No. 1 on a monthly rent of Rs. 60/- that they (Defts. Nos. 3 and 4) would continue as tenant under plaintiff after the sale of the property in favour of plaintiff and pay the same rent to him (plaintiff), but the defendants Nos. 3 and 4 in their written statement have denied that they are tenants under the plaintiff and stated that they are tenants under defendant No. 2 and paying rent to Deft. No. 2 regularly. The matter regarding entitlement of taking delivery of possession of the premises is within the exclusive jurisdiction of the House Rent Controller and it was not for the civil Court to pass any order regarding such eviction of the defendants and recovery of possession of the premises to the landlord. Rightly, therefore, this point was not pressed by the appellant in this court.
23. In the result, the appeal is allowed, the judgment and decree of the trial court is set aside and the right, title and interest in the suit property is declared in favour of the appellant-plaintiff with costs against the defendant No. l(a).