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IN THE HIGH COURT OF ORISSA
B.N. Dash, J.
DULANA DEI ALIAS DOLENA DEI - APPELLANT
Versus
BALARAM SAHU AND OTHERS - RESPONDENT
S.A. No. 99 of 1986
Decided On : 28-07-1992
SPECIFIC RELIEF ACT, 1963 - SECTION 34 - DECLARATORY SUIT - MAINTAINABILITY - FURTHER RELIEF - COURT'S DISCRETION - TRANSFER OF TITLE - CONSIDERATION - INTENTION OF PARTIES - SALE DEED - CONSTRUCTION.
Fact of the Case:
Plaintiff filed a suit for declaration of her right, title, and interest over the suit land. The defendants claimed that the sale deed executed in favor of the plaintiff's mother was canceled due to non-payment of consideration and that they had resold the land to the defendants 3 to 5. The trial court decreed the suit, but the appellate court reversed the decision and dismissed the suit, holding that the suit was barred by limitation and that the plaintiff was not entitled to a declaration without seeking consequential relief.
Finding of the Court:
The High Court held that the suit was not barred by limitation as it was filed within three years from the date of execution of the sale deed in favor of the defendants 3 to 5. However, the court upheld the appellate court's finding that there was no passing of consideration under the sale deed executed in favor of the plaintiff's mother and that, therefore, title to the suit land did not pass to her. The court also held that the suit was hit by Section 34 of the Specific Relief Act, 1963, as the plaintiff was able to seek further relief, such as confirmation of possession or permanent injunction, but failed to do so.
Issues: 1. Whether the suit was barred by limitation? 2. Whether there was passing of consideration under the sale deed executed in favor of the plaintiff's mother? 3. Whether the suit was hit by Section 34 of the Specific Relief Act, 1963?
Ratio Decidendi: 1. The court held that the suit was not barred by limitation as it was filed within three years from the date of execution of the sale deed in favor of the defendants 3 to 5. 2. The court upheld the appellate court's finding that there was no passing of consideration under the sale deed executed in favor of the plaintiff's mother and that, therefore, title to the suit land did not pass to her. The court relied on the principle that a sale of immovable property may be effected in exchange for the price paid or promised to be paid, but whether the vendor intended to transfer ownership by mere execution and registration or contracted to do so only after receipt of consideration as a condition precedent would depend on the terms of the contract between the parties. In this case, the court found that the sale deed clearly indicated that the defendants intended to transfer title to the vendee on the date of execution of the registered sale deed. 3. The court held that the suit was hit by Section 34 of the Specific Relief Act, 1963, as the plaintiff was able to seek further relief, such as confirmation of possession or permanent injunction, but failed to do so. The court explained that the object of the proviso to Section 34 is to avoid multiplicity of suits and to prevent a person from getting a mere declaration of his right in one suit and then resorting to another remedy which is already available to him.
Final Decision: The High Court allowed the appeal and remanded the matter to the trial court to afford the plaintiff an opportunity to make necessary amendments to the plaint to include a prayer for consequential relief and to pay ad valorem court fee thereon. The court directed that if the amendment is made and ad valorem court fee is paid, the trial court must decree the suit, but if the amendment is not made and ad valorem court fee is not paid, the suit must be dismissed.
JUDGMENT :
B.N. Dash, J. - This appeal by the plaintiff is against a reversing judgment.
2. Admittedly, Narayan Prasad Patnaik and Umasankar Patnaik (respondents 4 and 5 who were defendants 1 and 2 in the suit) were the owners of the suit land measuring 68 decimals in plot No. 1653 under Khata No. 101 of village Iswarpal, Samil Kadelipal and they executed a registered sale deed dated 6-5-1971 (Ext. 1) for a consideration of Rupees 3,000/- in favour of Bela Bewa, the mother of the plaintiff-appellant Dulan Dal. Thereafter, they cancelled the said sale deed on 30-4-1973 by Ext. 1 on the ground of nonpayment of consideration and re-sold the suit land in favour of respondents 1 to 3 (Defendants 3 to 5) by a registered sale deed dated 4-2-1977 (Ext. 8). There is also no controversy that Bela Bewa died in 1976.
3. The case of the appellant-plaintiff is that before execution of the registered sale deed in favour of her mother, there was a written contract for sale of the suit land on 12-3-1971 between the vendors and the vendee on payment of Rs. 1,700/- by the vendee to the vendors and after execution of such contract for sale the vendors delivered possession of the suit land to the vendee on 5-5-1971. It is her further case that her mother continued to remain in possession till her death whereafter she herself remained in possession and that since after execution of the registered sale deed Ext. B in their favour the respondents 1 to 3 (defendants 3 to 5) created disturbance in their possession, she brought the suit merely for declaration of her right, title and interest over the suit land.
4. All the defendants have filed a joint written statement denying the title and possession of the plaintiff and her mother over the suit land. They have denied about any contract for sale between the defendants 1 and 2 on the one hand and the mother of the plaintiff Bela Bewa on the other. According to them, defendants 1 and 2 executed the registered sale deed in favour of Bela Bewa on her promise to pay the consideration amount of Rs. 3,000/- within a short period but since no consideration was paid for about two years, they cancelled the said deed and resold the same in favour of the defendants 3 to 5 and delivered possession of the same to them. In pursuance of the registered sale deed the defendants 3 to 5 having acquired title, the plaintiff was liable to be non-suited. The plea of bar of suit under the Limitation Act was also taken.
5. On the pleadings of the parties, as many as seven issues were originally framed but before commencement of hearing of the suit, an additional issue was framed touching the maintainability of the suit. The trial Court decreed the suit with the following findings:--
(1) There was a contract for sale and in pursuance thereof possession had been delivered to the plaintiffs mother;
(ii) that title to the suit land passed to the mother of the plaintiff on execution and registration of the sale deed, Ext. 1; and
(iii) that since, the plaintiff was in possession of the suit land and prior to her, her mother was in possession, the suit was not hit by Section 34 of the Specific Relief Act, 1963 (for short, 'the Act').
6. The lower appellate Court reversed the decision of the trial Court and thereby dismissed the suit with the following findings:
(a) That there was no passing of consideration under Ext. 1 and as such, title to the suit land did not pass to the plaintiffs mother; (b) that possession of the plaintiff and her mother was doubtful;
(c) that as the plaintiff had not prayed for cancelling the sale deed in favour of defendants 3 to 5, the declaration sought for was futile and hence the suit was hit by Section 34 of the Act; and
(d) that defendants 1 and 3 having cancelled the sale deed (Ext. 1) on 30-4-1973 and the suit having been filed on 10-5-1979, the suit was barred by time under Article 58 of the Limitation Act.
Being aggrieved by the reversing judgment and decree of the appellate Court, the present appeal has been f
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