JUDGMENT :

Manindra Mohan Shrivastava, J.

Heard.

1. Shri Varunendra Mishra, learned counsel for respondent No. 1 moved an application for withdrawal of power. He submits that he has no instructions.

2. Accordingly, the application is allowed and Shri Varunendra Mishra, learned counsel for respondent No. 1 is permitted to withdraw his power on behalf of respondent No. 1.

3. This second appeal is directed against the impugned judgment and decree dated 11-08-2006 passed by the Third Additional District Judge, FTC, Raigarh in Civil Appeal No. 39-A/2002, affirming the judgment and decree dated 29-11-2001 passed by the Third Civil Judge Class-II, Raigarh in Civil Suit No. 10-A/2001. Appellant-plaintiff filed a suit seeking decree of declaration and permanent injunction on the pleadings inter alia that the disputed land admeasuring 0.073 Hectare of Khasra No. 139/2 and 1.084 Hectare situated in Khasra No. 141 in Village Amlipali, was purchased by Jagdamba Prasad in the name of his minor son-Satyaprakash, the plaintiff, vide registered sale deed dated 31-03-1995 from defendants No. 1 to 6. Entire sale consideration was paid and possession of land was also delivered.

4. In this manner, right, title and interest including possession of the disputed land was delivered in favour of the plaintiff-Satyaprakash. Further case of the plaintiff was that the defendants started disputing plaintiff's possession over the land by stating that the sale deed was to take effect only upon payment of full consideration and as that was not done, no title passed, hence, on that basis, mutation of name of the plaintiff in the revenue records was opposed. Finally, the plaintiff filed a suit seeking declaration of title and permanent injunction.

5. The defendants, though, did not dispute execution of sale deed, but disputing plaintiff's possession, stated that it was agreed between the parties that the plaintiff has to pay sale consideration of Rs. 30,000/-, but only Rs. 4,000/- was paid and balance amount of consideration was not paid, in respect of which agreement dated 31-03-1995 was executed by Jagdamba, father of the plaintiff in favour of Shatrughan, the defendant, that only upon payment of full amount of consideration, the plaintiff would get title and interest over the property. As balance amount of consideration was not paid, title did not pass in favour of the plaintiff. Receipts of payment advanced by the plaintiff before the Court, are forged and fabricated.

6. On the basis of the pleadings of the parties, learned appellate Court framed issues. Learned trial Court recorded a finding that the plaintiff's case that he had paid entire sale consideration and obtained receipt of balance amount of consideration of Rs. 26,000/- could not be proved. The plaintiff failed to prove regarding payment of balance amount of sale consideration of Rs. 26,000/-, therefore, title did not pass in favour of the plaintiff and the suit was dismissed.

7. The learned lower appellate Court also recorded a finding on the same lines concurring with the finding of the learned trial Court that in absence of proof of payment of balance amount of sale consideration of Rs. 26,000/-, no valid title could pass in favour of the plaintiff under registered sale deed dated 31-03-1995.

8. This appeal was admitted for hearing on the following substantial question of law:-

"(A) Whether in view of the defendants admission regarding execution of sale-deed while denying receiving the full consideration, the learned Courts below have committed an error of law in non-suiting the plaintiff?

(B) Whether in the facts and circumstances of the case, the title of the suit land has passed on to the plaintiff and the defendants are only entitled to the balance amount of consideration as they have been divested of the title?"

9. Learned counsel for the appellant contended that once the Court below recorded a finding that the sale deed was executed and registered on 31-03-1995, merely because the balance amount of