JUDGMENT
Syed Md. Mahfooz Alam, J.
Page 0077
1. This second appeal has been preferred by the plaintiff-appellant against the judgment and decree dated 20th June, 1990 passed by Sri Bhola Nath Prasad, Sub-Judge III, Aurangabad in Title Appeal No. 16 of 1981 / 41 of 1983 reversing the judgment and decree dated 20th February, 1981 passed by Sri Basudeo Sharan, Additional Munsif I, Aurangabad in Title Suit No. 69 of 1974 / 32 of 1978 whereby the learned Additional Munsif has decreed the suit of the plaintiff-appellant.
2. The case of the plaintiff-appellant, in brief, is that Raghunandan Koeri was the recorded tenant of the suit land. After his death, his widow Mostt. Sugiya Devi inherited the suit property. Mostt. Sugiya Devi sold the suit land to the plaintiff Page 0078 through a registered sale deed dated 25.9.1958 for valuable consideration of Rs. 1000/-. After execution of the sale deed, the plaintiff was put in possession of the suit property. After sometime, the defendants in collusion with some villagers started making false claim over the suit land on the basis of some fraudulent sale deeds alleged to have been executed by Sugiya Devi in their favour. It is alleged that on the basis of those sale deeds, the defendants started interfering with the possession of the plaintiff and they were trying to dispossess the plaintiff from the suit land and hence, the plaintiff-appellant filed the suit for declaration that she was an occupancy raiyat in respect of the suit land and that the defendants be restrained from interfering with the possession of the plaintiff.
3. The defendants-respondents appeared in the suit and contested the claim of the plaintiff by filing written statement. The case of the defendants-respondents, in short, is that by virtue of the sale deed dated 25.9.1958, Mostt. Sugiya Devi never sold the suit property to the plaintiff rather the said sale deed was brought in existence by playing fraud upon Sugiya Devi by the plaintiff and without payment of consideration money and as such, the plaintiff did not acquire title to the suit land and the plaintiff never came in possession of the suit land. Further case is that when the fraudulent act of the plaintiff came to the knowledge of Sugiya Devi she gave Advocate’s notice to the plaintiff-appellant and thereafter she cancelled the sale deed through a registered deed of cancellation dated 5.12.1958 and after cancellation of the sale deed she sold the suit land to different persons through several registered sale deeds for valuable consideration. The defendants are bonafide purchasers of the suit property and they have been coming in possession of the suit property and also paying the rent to the State of Bihar. They are also paying canal rent for the use and occupation of the suit land for the purpose of cultivation and thus, the defendants have got title and possession over the suit land. On the basis of the above pleadings, the defendants have prayed to dismiss the suit.
4. From perusal of the judgment of the trial court it appears that before the trial court as many as five issues were framed for determination which are as follows:
1. Is the suit as framed maintainable?
2. Has the plaintiff got cause of action for the suit?
3. Has the plaintiff got right, title and possession over the suit lands?
4. Is the plaintiff entitled to the decree as prayed for?
5. To what relief or reliefs, if any, is the plaintiff entitled to?
5. It appears that the learned trial court considered issue No. 3 as the main issue in the case and after discussion of the oral and documentary evidence of the parties, the learned trial court held that the plaintiff has succeeded in proving her right, title and possession over the suit land and accordingly, he decreed the suit of the plaintiff. Against the said finding, the defendants preferred title appeal which was allowed by the first appellate court and accordingly, the appellate court dismissed the suit of the plaintiff by holding that the sale deed of the plaintiff is without consideration and the plaintiff did not pay the consideration amount to Mostt. Sugia Devi. The first appellate court also held that Sugiya Devi had not executed the deed in question voluntarily and knowingly in favour of the plaintiff. The first appellate court further held that on the strength of the sale deed (Ext. A/6), the plaintiff never came in Page 0079 possession of the suit land rather the defendants have been coming in possession of the suit land. Against the said finding of the first appellate court, this second appeal has been preferred.
6. From perusal of the record of this second appeal, it appears that at the time of its admission, the following substantial questions of law were formulated for consideration in the appeal. The substantial questions of law as formulated are as follows:
(I) Whether in view of the recital in the sale deed Ext.A/6 relating to payment of the entire consideration money, any endorsement of payment of consideration by the Registrar was necessary?
(II) Whether, only on cancelling the sale deed Ext.A/6 by Sugia Devi, she was entitled to execute another sale deed with respect to the suit property in favour of defendants?
Substantial Question of Law No. I
7. It has been submitted by the learned Advocate of the plaintiff-appellant that the first appellate court at paragraphs 11 and 25 of its judgment has observed that on the basis of the evidence both – oral and documentary adduced on behalf of both the parties, the court has come to the conclusion that the plaintiff has not paid the consideration money amounting to Rs. 1000/- to Sugiya Devi and the sale deed (Ext. A/6) standing the name of the plaintiff Dhanbarti Koerin is without consideration. According to the submission of the learned Advocate of the plaintiff-appellant, the above finding of the first appellate court is erroneous in view of the fact that the recital of the sale deed (Ext. A/6) fully proves that the consideration amount was paid to Sugiya Devi by Dhanbarti Koerin (plaintiff). His submission is that since Ext. A/6 is a registered document, as such the genuineness of the deed cannot be questioned and since the recital of the deed regarding payment of consideration money was never disputed by the executant of the sale deed, namely, Sugiya Devi, as such, the defendants are not legally entitled to challenge that the recital of the sale deed (Ext. A/6) regarding payment of consideration money was wrong. His further submission is that the first appellate court disbelieved the payment of consideration money on the ground that the Registrar of the registry office had not made any endorsement regarding payment of consideration money but here the first appellate court has again committed an error of law as the law does not require that the payment of consideration money must be endorsed by the Registrar at the time of registration of the document. The submission of the learned Advocate of the appellant is that since the endorsement of payment of consideration money by the Registrar was not at all necessary and as the recital of the sale deed (Ext. A/6) fully establishes that Sugiya Devi had admitted the receipt of consideration amount, as such on that very basis the first appellate court should have held that the sale deed of the plaintiff (Ext. A/6) was for consideration and a genuine document and on that basis the plaintiff had acquired valid title to the suit land.
8. Against the argument of the appellant’s lawyer, the learned Advocate of the respondents argued that although the endorsement of payment of consideration money on the sale deed by the Registrar is not at all necessary under law but in order to prove that by virtue of the sale deed, the purchaser had acquired valid title, the proof of passing, of the consideration money is essential and the recital of the sale deed (Ext. A/6) with regard to payment of consideration money cannot be Page 0080 construed as sacrosanct. The learned Advocate of the respondents submitted that the learned first appellate court while coming to the conclusion that the plaintiff had not paid the consideration money to Sugiya Devi, has given cogent and satisfactory reason in support of his finding. According to the learned first appellate court, the following factors were found in coming to the conclusion that the plaintiff had not paid consideration money to Mostt. Sugiya Devi at the time of execution of the sale deed (Ext. A/6):
Firstly, although there is recital in the deed that the consideration amount had already been paid by the purchasers but the evidence of P.W.3 (plaintiff) and her father-in-law who has been examined as P.W.5, shows that the plaintiff had paid the entire consideration amount to Mostt. Sugiya Devi before the Registrar at the time of execution of the sale deed but there is no such endorsement of the Registrar on the sale deed (Ext.A/6) regarding payment of consideration money by the plaintiff.
Secondly, Mostt. Sugiya Devi herself cancelled the sale deed and executed a registered deed of cancellation (Ext.E) making statement that she had not received any consideration amount.
Thirdly, the registration receipt was not exchanged after execution of the sale deed and the original sale deed was produced from the side of the defendants establishing that as consideration amount was not paid as such the original sale deed was never passed to the plaintiff.
Fourthly, in the sale deed of the plaintiff (Ext.A/6), inadequate consideration amount was shown for sale of the land comprising an area of 7.59 acres whereas Exts.A/1 to A/5 of the defendants establish that the value of the suit land was much higher.
Lastly, the story propounded by the plaintiff that the original sale deed was stolen away was not found believable.
9. I have gone through the judgment of the trial court as well as the first appellate court and I find that the grounds on which the first appellate court has based its finding that the plaintiff has not paid the consideration money to Mostt. Sugiya Devi at the time of execution of the sale deed, are very much rational, and acceptable. The fact that the original sale-deed (Ext.A/6) was produced on behalf of contesting defendants establishes beyond doubt that consideration money was never paid to Mostt. Sugia so she did not deliver the original sale-deed to the plaintiff. It is usual practice that after execution and registration of the sale deed “Registration Receipt” is exchanged and the same is handed over to the purchaser with endorsement and signature or L.T.I. of seller which is considered to be the best proof of payment of consideration money. But the production of sale-deed (Ext.A/6) from the side of defendant establishes beyond doubt that the registration receipt was not exchanged between the seller and the purchaser thereby establishing this fact that the consideration money was not paid to Mostt. Sugia and the sale-deed dated 25.9.58 (Ext.A/6) was of without consideration. In this background merely on the basis of recitals in the sale-deed that the entire consideration amount had already been paid the same cannot be accepted to be true statement. This is also not acceptable because of the fact that P.W.4 Dhanbarti Devi and P.W.5 Gobind Mahton have categorically deposed that the consideration amount was paid to Mostt. Sugia before the Registrar but there is no such endorsement of Registrar on the Page 0081 sale-deed (Ext.A/6) regarding the payment of consideration money by the plaintiff to Mosstt. Sugia. I am of the view that in absence of any such endorsement by the Registrar on the sale-deed regarding the payment of consideration money it cannot be believed that the recital in the sale-deed (Ext.A/6) regarding the payment of consideration money is a true statement specially when P.W.3 as well as P.W.5 have deposed that the consideration money was paid before the Registrar. In such view of the matter, I hold that where there is categorical statement of the purchaser that the consideration amount was paid in presence of the Registrar the endorsement of such payment on the sale-deed by the Registrar is essential and the absence of such endorsement on the deed will be deemed that no consideration amount was passed to the seller in spite of the fact that there was recital in the sale-deed regarding the payment of consideration money. Accordingly, this substantial question of law is decided in favour of defendant-respondent.
Substantial Question of Law No. II
10. It has been submitted by the learned Advocate of the appellant that by virtue of the sale deed (Ext.A/6), Mostt. Sugiya Devi had transferred her right, title and interest in the suit property, as such she had no right to execute the deed of cancellation as well as another sale deed in favour of the defendants with respect to the same property. Admittedly, Mostt. Sugiya Devi had executed a sale deed Ext.A/6 in favour of the plaintiff-appellant but according to the finding of the first appellate court, the said sale deed was of without consideration.
11. According to Section 54 of the Transfer of Property Act, 1882, ‘sale’ has been defined in the following manner:
“Sale” is a transfer of ownership in exchange for a price paid or promised or part-paid and part-promised.
12. The very definition of the sale shows that the sale is a transfer of property for consideration and without consideration, the sale is invalid and no title can be transferred. Since the first appellate court has found that the sale deed of the plaintiff was without consideration and while discussing substantial question of law No. 1, I have also come to the conclusion that the sale-deed of the plaintiff was of without consideration and as such the same was not a valid and legal document and through the said sale-deed no valid title was passed to the plaintiff. I am further of the view that when the sale-deed (Ext.A/6) was itself not a valid and legal document, executant of the sale-deed namely, Mosstt. Sugia had full right to cancel the sale-deed and to execute another sale-deed / sale-deeds in respect of the same land. Accordingly, this substantial question of law is also decided in favour of defendant-respondent and against the plaintiff-appellant.
13. In the result, I find no merit in this second appeal and as such, the same is hereby dismissed but without cost. Accordingly, the judgment and decree of the first appellate court are hereby confirmed and the plaintiff’s suit is dismissed but without cost.