Appellate Division Cases
Satish Chandra Mondal……………………………………………Appellant
Ayjuddin Gazi being dead his heirs Amjad Gazi and others…..Respomdents
Syed J. R Mudassir Husain CJ
M. M. Ruhul Amin J
Amirul Kabir Chowdhury J
Date of Judgment
3rd May 2006
The Registration Act Section 60.
The Transfer of Property Act (IV of 1882), Section 54.
Section 54 of the Transfer of Property Act provides that sale would be complete even if the consideration money is not paid or is part paid or part promised. In the case of non-payment of full consideration money or part consideration, the vendor may sue the vendee for recovery of the consideration money (10)
Khanddcr Mahbubuddin Ahmed, Senior Advocate, instructed by S. R. Khoshnabish, Advocate-on record For theAppellant.Md. Nawab AH, Advocate-on-Record. For the Respondents.Not represented .Respondent No.s. 2-11
1.M.M. Ruhul Amin J :- This appeal by leave is directed against the judgment and order dated 01.04.1996 passed by a Single Bench of the High Court Division in Civil Revision No. 473 of 1981 discharging the Rule.
2. Short facts are taht the plaintiff filed Title Suit No. 8 of 1977 in the 3rd Court of Munsif (now Assistant Judge), Khulna for declaration of title stating, inter alia, that the suit land along with other lands originally belonged to Monindra Nath Mondal, the defendant No. 2 in raiyati right who sold the suit land to the plaintiff by registered kabala dated 23.04.1970 and since then the plaintiff has been in possession of the same. At the time of kabala Monindra Nath Mondal disclosed to the plaintiff that he (defendant No. 2) earlier on 19.09.1969 executed a sale deed in respect of the same land in favour of the defendant No. 1 but the kabala was not acted upon as the consideration money was not paid and this very fact was mentioned in the kabala dated 23.04.1970 in favour of the plaintiff and the original kabala dated 19.09.1969 in favour of the defendant No.l also remained with Monindra Nath Mondal and then with the plaintiff. Subsequently the defendant No. 1 threatened to dispossess the plaintiff. Hence is the suit.
3. The defendant No. 1 contested the suit by filing written statement denying the material allegations made in the plaint. His case is that he purchased the suit land by registered kabala dated 19.09.1969 and has been in possession of the suit land since then in his own right exclusively and adversely and got his name mutated in the records of the Revenue Department and has been paying rent regularly to the Government Acquired Estate and the original kabala was stolen from his house.
4. The trial court decreed the suit. On appeal being Title Appeal No. 142 of 1979 the court of appeal dismissed the appeal and thereby affirmed the judgment and decree passed by the trial court. Being aggrieved the defendant No. 1 move the High Court Division in revisional jurisdiction and the High Court Division discharged the Rule. Leave was granted on the following grounds: i. ‘”Because in view of the provisions of section 54 of the Transfer of Property Act and presumption availabe under section 60 of the Registration Act and the fact that vendor of the petitioner never challenged the validity of the kabala dated 19.09.1969 in favour of the petitioner, the High Court Division erred in affirming the decree of the courts below. ii. Because in view of the evidence as to possession deposed by D.Ws. 2-5 corroborating the evidence of D.W.I as to possession of the suit land by the defendant leave petitioner the High Court Division erred in affirming the finding of the Courts below erroneously on the basis that the same was concurrent finding on facts.” 5. We have heard Mr. Khandakar Mahbubuddin Ahmed, the learned Counsel for the appellant and Mr. Md. Nawab Ali, the learned Advocale-on-Record for the respondent Nos. 1 and perused the judgment of the High Court Division and other connected papers.
6. It is not disputed that the suit land belonged to defendant No.2. The case of the plaintiff is that the defendant No. 2. The case of the plaintiff is that the defendant No. 2 sold the suit land to him by registered kabala dated 23.04.1970 (Ext.l) and since then he has been possessing the same. The further case of the plaintiff is that at the time of his kabala the defendant No. 2 disclosed that he earlier executed a kabala for the suit land in favour of the defendant No. 1 on 19.09.1969 but since defendant No. 1 did not pay the consideration money for the kabala he did not deliver possession of the suit land and the original kabala in favour of defendant No. 1 also remained with defendant No.2.
7. The case of the contesting defendant, on the other hand, is that he purchased the suit land from the admitted owner defendant No. 2 by kabala dated 19.09.1969 and got delivery of possession and since then he has been possessing the same. The original kabala was lost from his custody.
8. Thus, we find that both the plaintiff and defendant No. 1 claim to have purchased the suit land from the admitted owner defendant No. 2. The kabala of the defendant No. 1 dated 19.09.1961 Ext. l(a) is earlier in point of time than the kabal dated 23.04.1970 Ext. 1 in favour of the plaintiff. Both the plaintiff and defendatn No. 1 claim to be in possession of the suit land since their purchase.
9. The admitted owner defendant No. 2 did not challenge the kabala Ext. l(a) in favour of defendant No. 1 before any forum since the execution and registration the kabala.
10. The learned Counsel for the appellant agucd that section 54 of the Transfer of Property Act provides that sale would be complete even if the consideration money is not paid or is part paid or part promised. He next submits that in the case of non-payment of full consideration money or part consideration, the vendor may sue the vendee for recovery of the consideration money.
11. Section 54 of the Transfer of Property Act (Act IV of 1882) defines sale as under:”Sale1 is a transfer of ownership in exchange for a price paid or promised or part paid and part-promised.”
12. He further submits that even for argument’s sake if it is conceded that the defendant No. 1 paid part of the consideration money or did not pay the entire consideration money even then his purchase is valid as the kabala was duly executed and registered and the vendor put him into possession. He next submits that his vendor, defendant NO.2 challenged his kabala before any forum and never alleged that consideration money was not paid. It is the plaintiff who alleged tht the defendant No. 1 did not pay consideration money but did not adduce any evidence in support his contention. He also submits that the plaintiff is not supposed to have any knowledge regarding the kabala-dated 19.09.1969 in favour of the defendant No.l by defendant No. 2 as the plaintiff’s alleged kabala is of the year 1970. He further submits it should also be remembered that the kabala in favour of defendant No. 1 is first in point of time than the kabala of the plaintiff. So whatsoever has been written in the kabala of the plaintiff in this regard is beyond the knowledge of the defendant No. 1. He also submits as soon as the kabala Ext. l(a) dated 19.09.1969 was executed and registered by defendant No. 2 in favour of defendant No. 1 and the defendant No. 1 was put into possession, the transaction is complete and the defendant No. 1 became absolute owner of the land and the defendant No. 2 had no saleable interest in the suit land. So, the court should not recognize the kabala Ext. 1 dated 23.04.1970 in favour of the plaintiff executed by the same vendor, defendant No.2 in respect of the same suit land.
13. In support of his contention the learned Counsel cited the case of Ramdhari Rai Vs. Gorakh Rai reported A.I.R. 1931 (Patna) 236 and submitted that title passes on the execution and registration of a sale deed, though the purchase money may remain wholly or partly unpaid except where there is an agreement that the sale should take effect only if the consideration is first paid but no such point either taken or proved in the case. He further submits that in the instant case also there is o special agreement that the sale in favour of the defendant No.l would take effect only if the consideration money is first paid. He further submits that the vendor of the defendant No. I never challenged the kabala nor alleged that he did not receive the consideration money. In the cited case it was further held tht after the completion of the sale by the registration of the instrument of transfer the purchaser can maintain a suit against the vendor for possession of the property sold notwithstanding non- payment of the purchase money.
14. Regarding possession of the plaintiff and the defendant in the suit land the learned Counsel has drawn out attention to the evidence of four P.Ws. examined by the defendant No.l. The plaintiff Ayjuddin Gazi as P.W.I in his evidence stated that he has been possessing the suit land through bargader Nurul Islam son of Ansar Gazi of Village-Beyar Jhapa but there is no borga kabuliyat and no receipt. P.W.2 in his evidence stated that defendant No. 1 possessed some land out of suit land. P.W . 3 also stated that defendant No. 1 used to possess some land out of suit jama by purchase from Devendra Nath but it is nobody’s case that defendant No. 1 purchased some land out of suit jama from Devendra Nath. P. W. 4 who is said to be borgader of the plaintiff in the suit land stated that the defendant No. 1 cultiated three bigha of land out of suit khatian which he obtained from one Devendra Nath. But we have already pointed out that it is nodoy’s case that defendant No. 1 purchased the suit land from devendra Nath. The defendants No. 1 Satish Chandra Mondal who deposed as D. W. 1 states that he was been possessing the suit land since his purchase. D. Ws. 2, 3. 4, & 5 in their evidence stated that defendant No. 1 has been in possession of the suit land since his purchase. D. W. 3, Upcndra Mondal and D. W. 5. Kalipada Dhubi in their evidence of course stated that plaintiff has land in the suit khatian and one Nurul Islam barga cultivates that land. D. W. 6 Bibekanda Banarjee, Mohorar of Sub- Registry Office,Paikgacha in his evidence stated that he produced volume book No. 20 pages 256258 bearing deed No. 1617/1976 and the
vendor of this kabala is Debendra Nath Mondal son oi’ late Gopal Chandra Mondal of Dokhin Karin Mukhi and purchaser of this kabala Amjad Ali Gazi son of Ayjuddin Gazi of Village- Paikgacha, total area of land is 1.16 acres, consideration money was TK. 4500/- it stated here that Ayjuddin Gazi is plaintiff of the suit. From this learned Counsel for the appellant submits that the plaintiff could not prove that he purchased the suit land from admitted owner defendant No. 2 Monidra rather D. W. 6, an employee of Sub-registry Office stated in his evidence that Amjad Ali Gazi son of Ayjuddin Gazi (plaintiff) purchased some land from one devendra Nath and not from the defendant No. 1 Monindra, the admitted owner.
15.Thus it appear that the possession of defendant No. 1 has been proved by the evidence
of defendant’s witnesses as well as the plaintiff’s witnesses but the High Court Division and the courts below misread the evidence and there was also non-consideration of the material evidence of possession of defendant No. 1 by the High court Division.
16. Mr. Ahmed further cited the case of Shahid Nasim and 2 other Vs. Sycda Imliaz khatoon reported in P. L. D. 1997 (lahore) 243 and submitted that non-payment of price of the sold land or its delivery was not necessarily since qua non for transfer of title from seller to purchaser. In that case it was further observed “It was so held as back as in 1866 in Umedewal Moti Ram Vs. Deva ILR (1866)2 Bombay 547″‘.
17. He further submits that in the instant case the appellate court adopted a totally wrong principle in the matter of affirming the judgment of the trial Court as there has been gross misreading and nonconsideration of the material evidence on record and the High Court Division also wrongly refused to interfere on the ground of concurrent findings by the appellate court and the trial Court but if the findings of the appellate court and trial court are based on gross misreading and non consideration of the material evidence on record
although the same is concurrent, the High court Division in the above facts and circumstances was well justified to interfere with the same in revisional jurisdiction.For the reasons and discussions above the appeal is allowed without any order as to costs.
Source : III ADC (2006), 370.