S. Acharya, J.
1. The plaintiff being unsuccessful in both the courts below has preferred this second appeal against the confirming decision of the Subordinate Judge, Aska dismissing the plaintiff's suit for recovery of possession after demolishing the structure standing on the suit land.
2. The undisputed facts are that the defendant No. 1, Nilakantha Tripathy (Respondent No. 1 herein) is the father of the defendants 2. 3. 4 (respondents Nos. 2. 3 and 4 herein). The defendant No. 5, Kantamma Patrani (Respondent No. 5 herein) purchased the suit property from Trilochan Tripathy (defendant No. 21 and Kailash Tripathy (defendant No. 3) by a registered sale deed, Ext. A dated 10-3-1960. The plaintiff purchased the same suit property under Ext. 1 dated 6-1-1964 from defendant No. 1.
The plaintiff, after the aforesaid purchase on 6-1-1964, filed this suit in April 1969 on the allegation that defendant No. 1 after the aforesaid sale under Ext. 1, delivered possession of the suit lands to the plaintiff; that the aforesaid sale (Ext. A) by defendant Nos. 2 and 3 in favour of defendant No. 5 was a fraudulent one and was not with the consent of defendant No. 1, who was the sole owner of the suit land, as the same was his self-acquired property. The defendant No. 5 constructed a structure on the suit land, during the absence of the plaintiff and thus created trouble on the plaintiff's peaceful possession of the suit land. Hence this suit for recovery of possession of the suit land after demolishing the structure constructed thereon by defendant No. 5.
3. The defendant No. 1 in his written statement, inter alia, alleged that the sale deed (Exhibit 1) in favour of the plaintiff was a fraudulent one and without consideration and the plaintiff not given delivery of possession of the suit land under Exhibit 1. It was further alleged that defendants 2 and 3 with the consent of defendant No. 1, sold, for consideration, the entire suit property with the house standing thereon and delivered possession of the same to defendant No. 5 in accordance with the said sale.
The defendant No. 5 in a separate written statement, inter alia stated that she purchased the entire suit property by a registered sale deed (Exhibit A) from defendants 2 and 3, and in accordance with the said sale she got possession of the said property, and the plaintiff had no manner of right, title and interest over the suit property.
On the above averments, they prayed for the dismissal of the suit with costs.
4. The trial court dismissed the plaintiff's suit mainly on the findings that the sale deed executed by defendants 2 and 3 in favour of defendant No. 5 (respondent No. 5 herein) is valid and binding on all concerned, and by that defendant No. 5 acquired right, title and interest over the suit property. It also found that by the sale deed ho consideration passed and no delivery of possession was effected in favour of the plaintiff and accordingly the plaintiff did not acquire any title to the suit lands. On the above findings, the plaintiff's suit was dismissed with costs.
5. The appellate court confirmed the aforesaid findings of the trial court. Both the courts have found that the suit property was the ancestral joint family property of defendants 1 to 4 and it was not the self-acquired property of the defendant No. 1. The appellate court in confirming the decision of the trial court took note and accepted, on independent consideration of the evidence on record, the trial court's findings to the effect that although the first defendant, the father of defendants 2 to 4, did not execute the aforesaid sale deed, Exhibit A in favour of defendant No. 5, he (defendant No. 1) had given his consent to the said sale, and so the sale was vajid and binding on the first defendant and his heirs, the defendants 2 to 4 and accordingly the first defendant had no further right left in him to transfer the suit land later to any other person; that after execution of the sale deed (Ext. A) in 1960 in favour of the defendant No. 5 possession of the suit land was duly delivered to him, and the said sale was for consideration; that there was no payment of the consideration money by the plaintiff for the alleged sale in his favour under Exhibit 1, and no delivery of possession was effected in his favour in accordance with that sale.
Arriving at the above findings the appellate Court held that by the above-mentioned sale under Exhibit A the fifth defendant acquired a valid title over the suit site and came to possess the same soon after the execution of the sale deed and at last it concluded.
'The plaintiff, in the circumstances, cannot be said to have acquired any title by virtue of the purchase apart from the question whether the fifth defendant had acquired any title or not'
Accordingly, the trial court's judgment and decree dismissing the plaintiff's suit were confirmed.
6. It was contended by Mr. Bose, the learned counsel for the appellant, that the court below acted illegally in holding that no title passed to the plaintiff as payment of consideration money mentioned in Exhibit 1 could not be proved by the plaintiff. It was urged that prior or immediate payment of consideration not being the deciding factor for the validity of sale, title under Exhibit 1 passed to the plaintiff on its execution by defendant No. 1. the karta of the family.
Both the courts below concurrently found that there was no payment of consideration money for the alleged sale under Exhibit 1, and delivery of possession was not effected in favour of the plaintiff in accordance with the said sale. Therefore, the crucial question for decision is whether on the execution of Exhibit 1 title to the suit lands passed to the plaintiff, irrespective of the payment of the consideration money. To decide this question the intention with which the parties entered into the sale transactions has to be gathered. The above intention, as is well settled, has to be primarily gathered from the recitals in the sale deed and where the recitals are indecisive or ambiguous the surrounding circumstances and the conduct of the parties may legitimately be looked into. In the sale deed Exhibit 1 it is clearly and specifically stated that as money was required for the expenses of the family, the suit land was sold to the vendee for the just consideration of Rs. 200/-, received by the vendor 8 days prior to the execution of the sale deed Exhibit 1 in the presence of gentlemen and possession thereof was delivered to the vendee.
On the recitals in Exhibit 1 it cannot be said that it was intended between the parties that title would pass to the vendee on the execution of the sale deed irrespective of the payment of the consideration money mentioned in the deed. On the contrary the above recitals clearly indicate that prior receipt of the consideration money as specifically mentioned therein, actuated the vendor to execute the sale deed, Exhibit 1. It is also evident therefrom that if the vendor would not have received the consideration money in advance he would not have executed the deed. Therefore, the passing of title to the suit lands was dependent very much on the payment of the consideration money. That therefore being the intention of the parties to the said sale deed, and as both the courts below found that there was no payment of consideration for or delivery of possession under the alleged sale, it cannot at all be said that title to the suit lands passed to the vendee merely on the execution of the sale deed and without payment of the consideration money mentioned therein.
As the above intention of the parties is very clearly gathered from the aforesaid recitals in the deed the surrounding circumstances and the conduct of the parties need not further be looked into.
I therefore concur with the finding of both the courts below that the plaintiff did not acquire any title under Exhibit 1. The above contention of Mr. Bose therefore fails.
7. The telling circumstances, borne out on the unassailed concurrent findings of fact, are however to the effect that possession of the suit property was never delivered to the plaintiff and that defendant No. 5 was and has been in possession of the same ever since the sale in his favour in 1960. Both the parties belong to the same village, and in the ordinary course of affairs the plaintiff was expected to know that defendant No. 5 was actually in possession of the suit property at the time of the execution of Exhibit 1. None of the gentlemen, in whose presence the consideration money was allegedly paid to the vendor, as mentioned in Exhibit 1, has been examined in this case to support the plaintiff's case of payment of consideration. There is no evidence of legal necessity, which as mentioned in Exhibit 1, necessitated the alleged sale. All these factors instead of authenticating the sale transaction, rather militate against the genuineness of the same.
8. Mr. Bose also contended that the court below having found that the suit property was the ancestral joint family property of defendants Nos. 1 to 4, it committed illegality in holding that the sale of the entire suit property under Exhibit A by only two of the four coparceners, namely, defendants Nos. 2 and 3 in favour of defendant No. 5, conferred valid title on him.
In this connection it is to be noted that both the courts have found that the aforesaid sale in favour of defendant No. 5 was effected with the active consent of defendant No. 1 the karta of the family, and in accordance with the said sale possession of the property was delivered to defendant No. 5.
Mr. Patnaik, the learned counsel for the respondents, referring to Article 260 of Mulla's Hindu Law urged that according to the Mitakshara law as applicable to our State, a coparcener could alienate joint family property with the consent of other coparceners. In view of nay finding that the plaintiff has not acquired any title to the suit property, it is not necessary for me to deal with this question, as the plaintiff, in this suit for eviction, cannot succeed as he has neither proved his own title nor possession over the suit land. As he has failed to establish the same, he is not entitled to any relief in this suit irrespective of the question whether defendant No. 5 acquired good title to the suit lands or not.
9. Accordingly, there is no merit in this second appeal which is hereby dismissed with costs.