IN THE HIGH COURT OF JUDICATURE AT PATNA SA No.129 of 2005 SMT.KISHORI OJHAIN, W/O KRISHNA CHANDRA OJHA, RESIDENT OF VILLAGE – TAROUNI, P.S. BAHERA, DISTRICT – DARBHANGA ……. PLAINTIFF-APPELLANT. Versus SMT.TRIVENI CHOUDHARAIN, W/O SRI PRATAP NARAIN CHOUDHARY, RESIDENT OF VILLAGE – DASAUT, P.S. BAHERA, DISTRICT – DARBHANGA …….. DEFENDANT-RESPONDENT. For the Appellant : - Sri Anil Kumar Jha, Advocate. ----------- 07/ 20.3.2009 Heard learned counsel for the appellant. 2. This second appeal has been filed by the sole plaintiff- appellant against the judgments and decree of both the learned courts below. 3. The matter arises out of Title Suit No. 31 of 1994, which was filed by the plaintiff-appellant for declaration that the sale deed dated 20.1.1990 executed by the plaintiff in favour of the defendant with respect to the suit premises for a consideration of Rs.21,000/- was inoperative without conferring any title on the defendant due to non-payment of the full consideration amount. 4. The aforesaid title suit was dismissed on contest with cost by the learned Munsif, Benipur vide his judgment and decree dated 31.1.1997. Against the aforesaid judgment and decree of the trial court the plaintiff filed Title Appeal No. 10 of 1997, which was also dismissed by the learned Additional District Judge cum F.T.C. II, Darbhanga vide his judgment and decree dated 24.1.2005. Both the aforesaid judgments and decree of the learned courts below are under challenge in the instant second appeal. 5. It is not in dispute that the plaintiff was the owner of the - 2 - suit premises and he executed a sale deed with respect to the suit land in favour of the defendant on 20.1.1990 and got it registered. It is averred by the plaintiff that entire consideration amount was not paid by the plaintiff and hence the chirkut was kept with the plaintiff to be handed over to the defendant after payment of the full consideration amount. On the said ground, the plaintiff claimed that since the full consideration amount had not been paid no title passed to the defendant and hence the impugned sale deed was inoperative and did not confer any title on the defendant. 6. Both the learned courts below after considering the pleadings and evidence of the parties came to the specific finding that in the sale deed there was no such recital that the title would pass only after the full consideration amount was paid. In view of the settled principle of law it was also held by both the learned courts below that a sale deed, even if only part consideration amount is paid, is a completed contract, unless the intention of the parties is otherwise. But the said intention has to be gathered from the recitals of the sale deed. But the instant sale deed being absolutely silent in that regard, the learned courts blow were fully justified in holding that the title passed to the defendant immediately after execution of the sale deed and part payment of the consideration amount by the defendant to the plaintiff and hence the plaintiff was not justified in filing the suit for the reliefs claimed therein. 7. Further more, the law is well settled that the transferor is entitled to recovery of the balance consideration amount and hence the - 3 - learned courts blow gave liberty to the plaintiff to pursue other legal remedies for the said purpose. 8. In the aforesaid facts, this Court does not find any illegality in the impugned judgments and decree of the learned courts below nor does it find any substantial question of law involved in the instant second appeal, which is accordingly, dismissed at this stage of hearing under Order XLI Rule 11 of the Code of Civil Procedure. DKS/ (S.N. Hussain, J.)