Ramji Jadav and Others vs Ramchandra Prasad and Others

Chaudhary Sia Saran Sinha, J.—The defendants are the appellants in this second appeal which is directed against a judgment of affirmance.

Two sale deeds marked Exts. 1 and 1(a) were executed by the plaintiff in favour of the defendants in respect of certain lands details whereof are not necessary to be mentioned. The consideration money in each of the two sale deeds was Rs. 2,000/-. Two money decrees hid been obtained against the plaintiff vendor. The two decrees were being executed in two execution cases, namely, Nos. 34 find 35, each of the year 1965. The decretal dues amounted to Rs. 1,581/ and Rs. 1,84/- in Execution Case Nos. 34 and 35 of 1965 respectively. Out of the consideration money of Rs. 2,00/- the major portion thereof, namely Rs. 1,581- and Rs. 1,584 were kept in deposit with the vendees for satisfaction of the two decretal dues. The sale-deeds mentioned that these two amounts shall be paid by the vendees and they shall keep with month proof of such payments. The remaining amount of the consideration money, namely, Rs. 476/- and Rs. 419/- were to be paid in cash to the vender.

The plaintiff alleged that the vendees did not pay either the amount which was to be paid in cash or the decretal dues. The result was that the registration receipts of the two documents were not made over by the plaintiff to the vendees. On the assurance of the vendees that the Consideration money would be paid, possession was delivered by the plaintiff to the defendants as the cultivating season had set in. The defendant, as alleged by the plaintiff, did not pay the consideration money nor they showed their inclination to pay the same or re-deliver possession of the property conveyed. This led the plaintiff to institute the instant suit for a declaration that on account of non-payment of the consideration money the defendants did not acquire any title to the lands conveyed and he was entitled to recovery of possession in the circumstances stated in the plaint. There was also an alternative prayer to the effect that in case the plaintiff be not found entitled to a decree for recovery of possession, a decree in respect of the entire amount of consideration with interest thereon be passed against the vendees.

The defendants contested the suit mainly alleging that the amount of Rs. 835/- was paid to the plaintiff at the time of execution of the kerala and the balance amount of Rs. 3,165/- which was to be paid towards the decretal dues of the two execution cases was paid by the vendees to one Ramlakhan Yadav for satisfaction of the decretal dues aforesaid. Ramlakhan Yadav demanded an extra amount of Rs. 26/- from the vendees which they refused to pay. This irritated Ramlakhan Yadav and he paid the amount of Rs. 3,165/- to the plaintiff out of which the plaintiff was paying the decrial dues in instalments.

The trial Court found, on a consideration of the evidence, that no consideration money, namely, neither the amount of Rs. 835/- or the amount of Rs. 3,165/-, was paid by the vendees. It also found that under the terms of the two sale deeds, which undisputedly are almost identical, title to the vended property was to pass only on payment of the consideration money and this not having been done, no title passed to the defendants vendees. The plaintiff''s suit was decreed and he was held entitled to recovery of possession of the property, the subject matter of the two sale deeds. In such a situation no occasion arose for the alternative prayer of the plaintiff being allowed.

The defendants carried the matter is appeal but were unsuccessful, the lower appellate Court having concurred to the findings recorded by the trial Court referred to above. The result was that the appeal was dismissed, leading the defendants to come to this Court in the instant second appeal.

The sole substantial question of law formulated by the learned single judge while admitting this second appeal was-

Whether in the facts and circumstances of the present case, specially when the defendants are, admittedly in possession of the lands transferred in their favour the Courts below should have decreed the alternative relief regarding payment of entire consideration money alongwith interest and costs, instead of passing a decree for recovery of possession of the lands in question.

On the request of Sri Deva Kant Chaudhary, learned Counsel for the appellants, and on hearing the learned Counsel for the respondents, another substantial question of law was allowed to be argued. As will appear from order No. 11 dated 24-1-1981, it is to the following effect:

Whether the terms of the sale deeds (Exts 1 and 1/a) together with conduct of the parties showed that title was to pass on the mere execution and registration of the deeds.

The two substantial questions of law being somewhat interlinked, they shall be dealt with together for convenience and brevity.

When terms of any contract, grant or other disposition of property are reduced to the form of a document, except in certain circumstances mentioned in Section 92 of the Indian Evidence Act, 1872, no evidence of any oral agreement or statement shall be admitted, as between the parties to any such instrument or their representatives in interest, for the purpose of contracting, varying, adding to, or substracting from its terms, proviso to Section 92 stales, inter alia, that any fact may be proved which would invalidate any document, or which would entitle any person to any decree or order relating thereto, such as want or failure of consideration etc, The plaintiff alleged that no consideration money was paid by the vendees. The defendants alleged otherwise, namely payment of Rs. 835/- in cash to the plaintiff at the time of execution of the sale deeds and the payment of Rs. 3165/- to one Ramlakhan Yadav. The two Courts below have concurrently found that the plaintiff''s story about nonpayment of the Consideration money is correct and they have disbelieved the defendants'' story of payment of the consideration money. This is a finding of fact and duly recorded, as it is on a proper consideration of the evidence adduced, it is binding on this Court,

Relying on a decision of this Court in Radhamohan Thakur and Others Vs. Bipin Behari Mitra and Another, the submission of Shri Deva Kant Chaudhary was that if the terms of the contract as to when the title to the property was 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 unambiguous terms those terms must remain the sole criterion of the intention of the parties. In Chunchun Jha v. Ebadat Ali and Anr. AIR 1954 S.C. 343 relied upon by the learned Counsel for the appellants, it was held that where a document has to be construed, the intention must be gathered in the first place from the document itself. If the words are express and clear, effect must be given to them and any extraneous inquiry into what was thought or intended, is ruled out. Their Lordships of the Supreme Court further observed that real question in such a case is not what the parties intended or meant, but what is the legal effect of the words which they used. If, however, there is ambiguity in the language employed, then it is permissible to look to the surrounding circumstances to determine what was intended. These are well settled principles of law and cannot be disputed.

Let us now examine the relevant terms of the two sale deeds. It may be useful to quote the relevant portion thereof which runs as follows:

...Mawazi qrazi khana No. 5 jisko aai tak apne kabz wo dakhal tehet wo tessaruf men apne rakhte chale aate hain usko sab Surat se, dar badal wo qeemat mobiig mundarje khana No. 4 badarj moqir alahe mundarje Khana No. 2 ke becha wo bai iakalami kiya wo minjumlp zar summon ke No. 1584 rupiya zimme kharidar mausuf ke is garz ke amanat chhora jo adaye dain muozikre sadar ka karke adayekari sabboot wo shahadat shamii wasiqa haza ke apne pass rakhe wo baqiya No. 415 rupiya naqd wasool bobak pakar munzikre sadar men apne dar laye ke shai mubayyia se dast bardar wo be sarokar ho kar kharidar Mausuf ko qabiz dakhii wo malik mustaqii gardana...

The necessity for execution of the sale deed, as stated therein, was predominantly the filing of the execution cases which, if allowed to proceed, were to lead to serious loss to the vendor. The terms "dar badal wo qeemat mobiig" and "wasool bebak pakar" are to be significantly noted. The term "dar badal" in common parlance means'' "in exchange" when two persons mutually transfer the ownership of one thing for the ownership of another, such a transaction is ordinarily called exchange. The terms "wo qeemat" and "dar badal therefore, signify that while the plaintiff parted with the property he got in lieu thereof the consideration money and vice versa. The terms" bebak pakar referred to above also specifically refer to the same intention. If one goes through the entire document as a whole with special reference to the terms referred to above, the irresistible conclusion, as concurrently found by the two courts below, would be that the legal effect of the words used therein was that title to the property conveyed was to pass only on payment of the consideration money and not otherwise.

Shri Deva Kant Choudhary relying on decision of this Court in Pirtam Singh and Others Vs. Jagannath Sarawgi and Others, submitted that m that case Some of the deed terms used in the deed were similar to those used in Exts. 1 and 1(a) and that their Lordships held that the intention was that the title should pass without payment of consideration on mere execution and registration of the deed. This case is distinguishable on facts. In that case there was a deed of agreement executed on the same day which showed that on that day the vendor received Rs. 216/- out of the consideration and made over the sale deed to the vendee and also under took not to sell the property to anybody else. The words dar badal qeemat" were also not there. In Radhamohan Thakur s case (supra), beyond, the usual recitals there was a further recital that the purchaser shall be entitled to institute suit against the tenants of share conveyed from whom arrears of rent may be due. No such recitals are to be found in Exts 1 and l(a). -

Learned Counsel for the respondent relied on two decisions of this Court one in Panchoo Sahu Vs. Janki Mandar and Others, and the other in Baldeo Singh and Others Vs. Dwarika Singh and Others, . In the former the sale deed in question recited as follows:

Having received payment of the whole and entire consideration money in cash from the aforesaid vendee, I put him (the vendee) in possession and occupation of the vended property". "On receipt of the fair consideration money T the executant sell the veded land.

It was held that these recitals clearly indicated that the title would pass and possession would be delivered on payment of the whole and entire money and that the bulk of consideration was paid was immaterial. Some of the terms of the Case in Baldeo Singh and Ors. (supra) were:

Wo kul zar summon kharidaran se naqd rupiya wasool paya madhe zar summon ke hamara kuch bhi baqi nah hai wo na raha wo kabza dakhal kharidaran ko aaj ke tarikh se de diya....

On these words, amongst others, their Lordships held that the intention was that title would pass to the vendee only after payment of the full consideration money.

14 The submission of Shri Dev Kant Choudhary was that the finding of the court below that possession of the property conveyed was with the vendees clearly indicated that the intention behind execution of the sale deeds was that title would pass on mere execution and registration. The circumstances in which possession was delivered to the vendees have been explained in the plaint inis apart, if the terms of a deed recites the intention of the parties m unambiguous terms as in the instant case consideration of the question of possession may be regarded as something extraneous and irrelevant. True, Section 92 of the Evidence Act speaks of "evidence of any oral agreement or statement" but if the terms of a deed are unambiguous, even circumstances flowing from evidence or the conduct of the parties may be ruled out of consideration.

On a plain and simple reading of the terms of two sale deeds referred to above, the possession of the defendants over the disputed land cannot detract from the clear intention of the parties as evidenced by the two deeds, namely, that the title was to pass on payment of the consideration money.

If, according to the recitals of the two deeds, the title was to pass on payment of consideration money, no consideration worth the name having been paid, the two courts below rightly found that no title passed to the defendants to the property in dispute question is whether in view of the alternative relief claimed by the plaintiff in the plaint the courts below were justified in awarding a decree for recovery of possession to the plaintiff. The plaintiff prayed at the first instance for a declaration that no payment of consideration having been made no title was conveyed to the defendants. After this declaration he sought for further declaration that he was entitled to recovery of possession. The plaint was filed on 16-9-68. The alternative relief was added at the fagend of the case, before the trial court on 13-3-1974. Order No. 70, dated 13-3-74 shows that the defendants objected to this prayer for amendment being allowed, but the objection was over-ruled by the court. While the defenants objected to this prayer of the plaintiff now they want to take advantage of this alternative prayer.

Shri Devi Kant Cboudhary did not contend that the matter would attract the theory of part performance, nor on the facts and in the circumstances any such contention could be put forward. If a party is entitled to certain relief in accordance with law, he cannot be deprived of such a relief merely on the ground that he puts forward an alternative relief. This is one aspect. The other aspect is that in such a situation one is apt to look to the other facts of the case. As found above the intention of the parties as manifested in the sale deeds, was that title to the vended property was not to pass on mere execution of the sale deeds. The plaintiff felt compellable to transfer the property on account of the two execution cases hanging on his head. The defendants did not pay the consideration money. They went further and put forward a contest by falsely alleging that the consideration money had been paid. Can in such a situation the defendants be allowed to resist the claim of the plaintiff for recovery of possession. The reply, in my opinion, would be in the negative. I do not, therefore, feel persuaded to accept the contention of Shri Deva Kant Cboudhary that the courts below were not justified in allowing a decree for recovery of possession to the plaintiff. Thus the contention raised by Shri Deva Kant Choudhary fails. There is no merit in this appeal which fails and is dismissed. The judgment and decree of the lower appellate court are hereby affirmed. On the facts and in the circumstances of the case, however, there shall be no order for costs of this second appeal. The parties shall bear their own costs of this second appeal.