The court upheld the lower appellate court's finding that passing of title was not dependent on passing of consideration, based on the recitals in the sale-deeds.

JUDGMENT :

This appeal has been directed against the judgment and decree passed by the learned District Judge, Keonjhar in R.F.A. No. 30 of 2004 setting aside the judgment and decree passed by the learned Civil Judge (Sr. Division), Anandapur in Title Suit No. 76 of 1999.

The respondents as the plaintiffs had filed the suit for declaration of their right, title, interest and possession over the Ka Schedule property with further prayer to declare the cancellation of deeds executed by the plaintiff-respondent no. 1 in favour of defendant no.1-appellant as null and void and for permanent injunction. The suit having been dismissed, the respondent no. 2 being the unsuccessful plaintiff had carried the first appeal under section 96 of the Code of Civil Procedure. The first appeal having been allowed by decreeing the suit, now the respondent no. 1 who was the defendant no. 1 in the trial court being aggrieved by the same has filed the above noted second appeal under section 100 of the Code as the plaintiff.

2. For the sake of convenience, in order to avoid confusion and bring in clarity, the parties hereinafter have been referred to as they have been arraigned in the trial court.

3. The plaintiff’s case is that the defendant no. 1 and 3 are the daughters of one Budhu Mohanta who had two other brothers namely, Chaitan and Sanatan since dead. Plaintiff no. 1 is the son of Chaitan whereas plaintiff no. 2 is the son of Sanatan. It is stated that defendant no. 3 had filed a suit for partition of joint family properties numbered as Title Suit No. 37 of 1983. In the said suit, they were allotted as of their shares, the properties which are the subject matter of the present suit. Thereafter, they sold the suit land to the plaintiffs by two registered sale-deeds dated 13.05.1994. The defendant no. 1 then cancelled the sale-deeds so far as her half share is concerned by executing two deeds of cancellation. The plaintiff filed mutation proceedings and there the share of defendant no. 3 who is none other than the sister of defendant no. 1 has been mutated in their favour. It is further stated that on 15.09.1999, defendant no. 1 sold her share which she had earlier sold to plaintiffs to defendant no. 2 by executing registered sale-deed which cover the property described in Schedule-Kha. It is stated that the defendant no. 1 and 3 transferred the suit properties to them and had received the agreed consideration They had given the delivery of possession of the property. So, the plaintiffs claim to have been in possession of the suit land since then as it’s owner having the right, title and interest over it. The subsequent cancellation deeds executed by defendant no. 1 as also the sale-deed executed by defendant no. 1 in favour of defendant no. 2 are said to be invalid.

4. The defendant no. 3 supported the case of the plaintiff. Rest of the defendants while contesting the claim of the plaintiffs allege that under those two sale-deeds which had been executed by defendant no. 1 and 3 in favour of the plaintiff, no consideration was paid as agreed upon and therefore by such sale-deeds, the plaintiffs have not been clothed with the right, title and interest in respect of said properties. So, they justify the deed of cancellation to be valid as also the subsequent sale made by defendant no. 1 so far as her share is concerned in favour of defendant no. 2.

5. With the above rival case, the trial court framed five issues and has rightly first gone to decide the issue no. 4 which concerns with the claim of the plaintiffs over the suit land as it is rightful owners on the basis of two sale-deeds Ext. 1 and 2 executed by defendant no. 1 and 3. On examination of evidence, the trial court came to conclude that there was no payment of consideration under those two sale-deeds and next going to find out as to whether notwithstanding such payment of consideration, the title over the suit land has passed in favour of plaintiff-vendees or not, viewing the recitals of the sa