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Smt. Uma Devi and ors. Vs. Narayan Nayak and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtOrissa High Court
Decided On
Case NumberFirst Appeal No. 172 of 1973
Judge
Reported inAIR1985Ori96; 1985(I)OLR228
ActsRegistration Act, 1908 - Sections 14, 75 and 77; Code of Civil Procedure (CPC) , 1908 - Sections 11; Specific Relief Act, 1963 - Sections 31
AppellantSmt. Uma Devi and ors.
RespondentNarayan Nayak and ors.
Appellant AdvocateR.K. Mohapatra and ;P.V. Ramdas, Advs.
Respondent AdvocateJ. Patnaik, Adv.
DispositionAppeal allowed
Cases ReferredMohima Chunder Dhur v. Jugal Kishore Bhuttacharji
Excerpt:
.....delay for the purpose of deposit under first proviso to sub-section (1) of section 173 is necessary. [new india assurance co. ltd. v md. makubur rahman, 1993 (2) glr 430 and new india assurance co. ltd. v smt rita devi, 1997(2) glt 406, approved. new india assurance co. ltd. v birendra mohan de, 1995 (2) gau lt 218 (db) and union of india v smt gita banik, 1996 (2) glt 246, are not good law]. - (iii) the plaintiffs have failed to prove that harihar had taken rs. (v) the defendants having established that the transaction was unconscionable, the onus shifts on the plaintiffs to prove that the transaction was made in good faith and the plaintiffs have failed to discharge that onus. 1 stated in his evidence that he executed the agreement in favour of the plaintiffs on the advice of..........was made in the additional written statement. the defendants do not dispute the fact that harihar executed the agreement. d. w. 1 stated in his evidence that he executed the agreement in favour of the plaintiffs on the advice of nityananda panigrahi as nityananda told him that the execution of such an agreement would facilitate in getting delivery of possession of the lands in question and out of good faith he executed the agreement (ext. 19). from ext. 32, the deposition of harihar in m. j. c. no. 166 of 1963, it appears that harihar never had stated as is now being stated in court. he had only stated then that he did not know the contents of the agreement though he had put his signature. he further had stated that he had himself presented the agreement for registration. ext......
Judgment:

G.B. Patnaik, J.

1. Plaintiffs appeal against the judgment and decree of the Subordinate Judge, Aska, in a suit for declaration of the right of occupancy over the suit land measuring 35.10 acres and for permanent injunction against the defendants restraining them from entering upon or otherwise interfering with the suit lands or in the alternative for recovery of possession of the suit lands.

2. Plaintiffs case, in short, in that one Harihar Misra purchased one-fourth interest in the property belonging to Nayak family of village Tilasingi for a consideration of Rs. 1,500/- in the year 1949. The said Harihar again purchased half share of the self-same joint property in the year 1955 through registered sale deeds (Exts. 2, 3, 4 and 5) from co-sharers for a consideration of Rs. 32,000/-. It is alleged in the plaint that the consideration for the above transactions had been paid from time to time in between 1984 and 1955. The said Harihar instituted Title Suit No. 144 of 1957 in the Court of the Munsif, Aska, for partition and separate possession of his three-fourth share. During the pendency of the said suit, he executed a registered agreement (Ext. 19) dt. 26-10-1959 in favour of the plaintiffs in respect of the suit land on receipt of Rs. 10,000/-. The partition suit was compromised on 9-5-1960. The agreement (Ext. 19) was treated as a conveyance and the registering authority realised the stamp duty from the plaintiff and, therefore, title with respect to the suit property passed to the plaintiffs under Ext. 19. But the plaintiffs by way of abundant caution got another sale deed (Ext. 17) on 20-5-1965. Ever since the date of execution of Ext. 19, the plaintiffs are in possession of the suit land paying rentals therefor and in the settlement operation, plaintiffs' names have been recorded in the revenue papers. A portion of the suit land, however, was wrongly recorded in the names of defendants 4 to 14 and being emboldened by the said erroneous entry, the defendants threatened to dispossess the plaintiffs and also dug a drain through the suit land and, therefore, the present suit for the reliefs as aforesaid has been filed by the plaintiffs.

3. Defendants 4 to 14 have remained ex parte.

4. Defendants 1 to 3 contested the suit denying the allegations made in the plaint and denied plaintiffs' title and possession. According to them, the so-called agreement (Ext. 19) had been obtained by one Nityananda Panigrahi, an Advocate, in the names of the plaintiffs, who are his wife and sons, without any consideration and without reading over the document to Harihar. It was further averred in the written statement that Ext. 17 had in fact not been executed by Harihar and the same had been manufactured on blank cartridge paper containing the signature of Harihar who had left those papers with his lawyer Mr. Panigrahi. Harihar was in possession of the suit land as owner till 1970 when he sold a portion of the suit land under Exts. B and E dt. 6-10-1970 and mortgaged another portion under Ext. Fdt. 17-10-1970 in favour of defendants 1 to 3 and since then defendants 1 to 3 are in possession of the suit land and, therefore, the suit was liable to be dismissed.

4A. On these pleadings, the trial Court framed as many as five issues and has recorded the following findings : --

(i) The impugned sale deed (Ext. 17) is not genuine but a manufactured document and such not binding on the defendants who are successors-interest of Harihar Misra.

(ii) The impugned sale deed has been duly stamped.

(iii) The plaintiffs have failed to prove that Harihar had taken Rs. 4,700/- from them for purchasing the suit land.

(iv) So far as Ext. 19 is concerned, Mr. Panigrahi is in the eye of a party to the agreement although the plaintiffs are actually vendees to it; that Mr. Panigrahi being a lawyer of Harihar Misra from 1952 to at least 1962 stands in a fiduciary relationship with Harihar Misra capable of dominating him; and that the transaction appears to be unconscionable.

(v) The defendants having established that the transaction was unconscionable, the onus shifts on the plaintiffs to prove that the transaction was made in good faith and the plaintiffs have failed to discharge that onus. Thus the impugned document is vitiated by undue influence.

(vi) The defendants are in possession of the suit land and not the plaintiffs. The plaintiffs were never delivered possession by Harihar Misra.

On these findings, the learned Subordinate Judge dismissed the suit on contest against defendants 1 to 3 and ex parte against rest of the defendants.

5. Mr. R. K. Mohapatra, the learned counsel for the appellants, submits that the District Registrar's finding while disposing of the application under Section 73 of the Indian Registration Act with regard to the validity of Ext. 19 must operate as res judicata and the said order not having been challenged under Section 77 of the Registration Act must be treated to be final and conclusive. He further submits that in view of the evidence on record, the conclusion is irresistible that Ext. 19 was executed duly and without any undue influence. Lastly, he submits that the defence theory of Ext. 17 being executed on a blank paper must be rejected and the plaintiffs title must be held to have been proved in view of Exts. 19 and 17.

Mr. Patnaik, the learned counsel for the respondents, however, submits that no finality can be attached to the order of the District Registrar under Ext. 10 in view of Section 31 of the Specific Relief Act and the finding of the said Registrar cannot operate as res judicata, particularly when the Registrar was not competent to decide due execution of document. He also submits that undoubtedly, Sri. Nityanada Panigrahi was the lawyer for Harihar and, therefore, in view of Section 111 of the Evidence Act burden lay heavily on Nityanada to prove that no undue influence has been exerted by him in the matter of execution of Ext. 19. Further, possession of defendants since 1959 fits in with the defence theory of blank paper execution of Ext. 17 and, therefore, the defendants have title to the land by virtue of Exts. B, E and F.

6. There is no dispute that both Exts. 19 and 17 are earlier in point of time than Exts. B, E and F and, therefore, if Exts. 17 and 19 are found to be valid, then defendants will not acquire any title under Exts. B, E and F. The moot question, therefore, remains to be considered is whether Exts. 17 and 19 are valid or not.

7. So far as the first contention of the appellants is concerned, it depends upon a finding as to the true import of an order of the District Registrar under the provisions of the Registration Act. Section 73 of the Registration Act provides that when a Sub-Registrar refuses to register a document on the ground that the person by whom the same purports to have been executed denies its execution, then an application can be filed to the Registrar by the person in whose favour the document purports to have been executed to establish his right and to have the document registered. Under Sub-section (2) of Section 73, the application is required to be in writing and has to be verified in the manner required by law for verification of plaints. On such an application being filed, the procedure to deal with the said application has been 'enumerated in Section 74 of the Act. The Registrar after making necessary enquiry into the matter is required to pass an order for registering the document if he finds that the document has been executed as alleged in the application, as provided under Section 75 of the Act. If the Registrar, however, refuses to order the document to be registered then the aggrieved party has a remedy of filing a suit in civil court as provided under Section 77 of the Act. Mr. Mohapatra's contention that non-filing of a suit under Section 77 against the order under Ext. 10 binds the defendants, is devoid of force since in our opinion the order of the District Registrar under Ext. 10 could not have been challenged by way of a suit under Section 77 of the Indian Registration Act. Section 77 of the Act starts with 'where the Registrar refuses to order the document to be registered.....'. Where the Registrar directs registration of the document, obviously Section 77 has no application.

No doubt, the District Registrar before directing registration of the document makes an enquiry, but the Registrar has no power to enter into a roving enquiry into the probabilities and surrounding circumstances. The Registrar is merely to find out whether the documents now tendered actually is in the state in which it was executed by the parties to it. The nature of enquiry by the District Registrar under the provisions of the Registration Act cannot be said to be similar to that of a Court with regard to the genuineness of the document or with regard to the circumstances under which the said document is alleged to have been executed. That apart, the proceedings of the Registrar cannot be said to be one before a 'competent Court' so as the finding of the said Registrar could be said to be operative as res judicata. In the case of Mohima Chunder Dhur v. Jugal Kishore Bhuttacharji, (1881) ILR 7 Cal, 736, in a similar circumstance, their Lordships held : --

'.....It appears to us, that it is impossible to say that the proceedings of the Registrar, when he enquired whether the document had been executed, are in any sense proceedings of a 'competent Court'. They are the proceedings of an executive officer invested with quasi-judicial functions for the limited purposes of the Registration Act.....'

Besides, Section 31 of the Specific Relief Act provides for a suit to be filed for cancellation of any such document. In this view of the matter, we are of the opinion that the finding of the District Registrar under Ext. 10 does not operate as res judicata in the present suit and Mr. Mohapatra's contention on that score must be rejected as being devoid of force.

8. We would then examine the validity of Ext. 19. In para 4 of the written statement, it was alleged that Ext. 19 came into existence at the instance of Nityananda Panigrahi, who was the lawyer appearing for Harihar in Money Suit No. 185 of 1955 and Title Suit No. 144 of 1955 and no consideration was ever received by Harihar as per the recitals nor Harihar was allowed to have a say in the recitals made and this document was brought about by false inducement. The only evidence adduced by the defendants is that of D. W. 1. It may be noted that in the original written statement filed by the defendants, there was no allegation of undue influence, but the said allegation was made in the additional written statement. The defendants do not dispute the fact that Harihar executed the agreement. D. W. 1 stated in his evidence that he executed the agreement in favour of the plaintiffs on the advice of Nityananda Panigrahi as Nityananda told him that the execution of such an agreement would facilitate in getting delivery of possession of the lands in question and out of good faith he executed the agreement (Ext. 19). From Ext. 32, the deposition of Harihar in M. J. C. No. 166 of 1963, it appears that Harihar never had stated as is now being stated in Court. He had only stated then that he did not know the contents of the agreement though he had put his signature. He further had stated that he had himself presented the agreement for registration. Ext. 33 is a counter filed by Harihar to a petition filed by some third party under Order 21 Rule 16, Civil P.C, in Execution Proceeding No. 28 of 1966. In that counter no objection appears to have been taken that the agreement of 1959 is the outcome of undue influence exerted by Nityananda The learned Subordinate Judge appears to have been swayed away by the provisions of Section 111 of the Evidence Act There is no doubt that Nityananda was the lawyer for Harihar and, therefore, must be in a position of active confidence. But that ipso facto does not attract the provision of Section 111 of the Evidence Act. Harihar appears to be a man of prudence and it is not believable that he executed the agreement (Ext 19) on the belief that it would facilitate in getting delivery of possession of the lands in question. The evidence of D. W. 1 in this regard cannot be accepted. In this view of the matter, we hold disagreeing with the finding of the Subordinate Judge that Ext 19 is a valid document and is not vitiated by undue influence as alleged by the defendants.

9. We next come to examine the sale deed (Ext. 17). P. W. 2 is the scribe and P. W, 1 is the attesting witness of the said document. Both of them prove the due execution of Ext 17. Ext. 18 is a letter from Harihar to Nityananda dt. 24-12-1962. The said letter exhibits implicit faith of Harihar on Kshetra (P.W.1) so much so that Kshetra was authorised to do so all that was necessary in the absence of Harihar. In view of such good relationship between P.W.1 and Harihar, the evidence of P.W, 1 in deciding the defence plea of Ext 17 being executed on blank paper plays an important role. P. W. 1 categorically states that he has seen the scribing of document (Ext. 17) by P. W. 2 under the instructions of Harihar whereafter Harihar signed the same and after the execution he signed as a witness. In cross-examination he states that he was the agent of Harihar from 1954 to 1965 and was managing all his affairs. In this view of the matter, his evidence completely belies the therory of Ext. 17 being executed on a blank paper as alleged by the defendants. From the cross-examination of D. W. 1 it has been elicited that he has engaged several lawyers in his life but has not given signed blank papers to any of them except Sri Panigrahi and each of those papers contained only one signature. But in his statement in M. J. C No. 166 of 1963 he has stated that he gave three blank papers with two signatures on each paper to be used in the execution case. This indicates that Harihar is not sure of his case and has stated as it suits him depending upon the circumstances when he is making the statement. In the premises as aforesaid, we must hold that the defence theory of Ext. 17 being executed on blank paper must be held to be an imaginary one and we further hold that Ext. 17 is a valid piece of document duly executed and confers valid title on the plaintiffs.

10. So far as the possession of the land is concerned, the plaintiffs aver in the plaint that Harihar gave possession of the land to the plaintiffs after receiving possession from the receiver and the plaintiffs are in possession after the compromise of the suit. Ext 19 itself discloses that the possession of the land was delivered to the plaintiffs. P. W. 7 states that Harihar inducted him as a tenant and he cultivated the lands under Harihar. P.Ws. 4 and 7 further prove that they have paid paddy to the plaintiffs. The evidence of Nityananda Panigrahi discloses that the plaintiffs paid four cart-loads of paddy to the receiver. Ext 16 is a registered sale deed executed by Harihar in favour of Nityananda with respect to some other lands other than the suit lands. That shows that so far as the suit lands are concerned, Harihar had already delivered possession of those lands in favour of Uma Devi (plaintiff). The said sale deed also describes Uma Devi as a boundary owner. The preliminary Record-of-Rights and cist receipts show plaintiffs to be in possession of the suit lands. In this view of the matter, we hold that the plaintiffs are in possession of the suit lands the same having been delivered to them by Harihar.

11. In the result, therefore, the plaintiffs' suit is decreed and the defendants are injuncted from interfering with plaintiffs' possession over the suit lands. The Judgment and Decree of the Subordinate Judge are set aside and this appeal is allowed, but without any order for costs.


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