ARUNA SURESH, J. S.A. NO.278 OF 1990 (Decided on 23.03.2011) SHIBA SANKAR NANDA ……. Appellant. .Vrs. PADMINI NAIK & ORS …….Respondents. (A) EVIDENCE ACT, 1872 (ACT NO.1 OF 1872) – S.90. (B) CIVIL PROCEDURE CODE, 1908 (ACT No.5 OF 1908) – S.100. (C) TRANSFER OF PROPERTY ACT, 1882 (ACT NO.4 OF 1882) – S.44. (D) PARTITION ACT, 1893 (ACT NO.4 OF 1893) – S.4. For Appellant - D.Patra For Respondent - H.S.Patra JUDGMENT ARUNA SURESH, J. (Oral) Impugned in this appeal is the judgment and decree dated 28.4.1990 and 7.5.1990 of the First Appellate Court dismissing T.A. No.1 of 87 and confirming the judgment and decree dated 24.11.1996 passed by the learned Subordinate Judge, Sambalpur in T.S. No.53 of 1981, dismissing the suit of the appellant. 2. In brief, case of the appellant is that in the year 1933, his father Madhusudan purchased the property measuring 0.075 acre of land with house constructed thereon appertaining to Major Settlement Plot No.830, area of 0.050 acre and 830/1358, area of 0.025 acre, in total 0.075 acre of Khata No.492 and 497 of Modipara of Sambalpur Town, Unit No.7, P.S. No.18, Tahasil No.226, Sambalpur District, Sambalpur from Samsundar Mishra and Gopinath Gadtia for a consideration of Rs.140/-(A Schedule). Madhusudan paid this money to his brother Raghunath Nanda (predecessor of respondent no.2, 2(a) to 2(d)) for getting the sale deed executed and registered. A house was constructed on the said land by Madhusudan under the supervision of Raghunath Nanda. Raghunath and his family was permitted by Madhusudan to live in a part of the house(“B schedule”) as he had no means to pay the rent for rented accommodation. After marriage of his daughter, Raghunath shifted to his daughter’s house and while living their, he expired. After Raghunath left the portion in his occupation, Madhusudan let out the same to one Dhananjaya Sahu on monthly rent of Rs.60/-. Subsequently, when a House Rent Control Case was filed by Madhusudan against the tenant, it transpired that Raghunath got registered the sale deed in the joint name of Madhusudan and his own name without contributing any money towards consideration amount. After vacation of the premise by the tenant, Madhusudan remained in khas possession of the said portion of the house along with other portion of the suit property. In the meantime major settlement operation commenced in the area wherein respondent no.2 claimed herself to be a married wife of Raghunath and raised her claim over half of the “A schedule” property. The settlement authority recorded the claim of Raghunath Nanda as well as Madhusudan Nanda while rejecting the claim of respondent no.2, thus, creating a title and right of Raghunath Nanda in the “A schedule” property. Madhusudan died on 26.11.1980 while in exclusive possession in his own right of the entire “A schedule” property. After the death of Madhusudan, appellant as well as his brother, respondent no.3 allegedly inherited the suit property. Respondent no.2 executed a registered sale deed dated 2nd July, 1981 in favour of respondent no.1 in respect of 1380.030 decimals, out of the impugned property, with a view to derive benefit of the property which she otherwise could not get. Challenging the said sale deed executed by respondent no.2 as fictitious, collusive, sham and nominal transaction without consideration, the suit was filed by the appellant. 3. The respondents contested the suit. 4. Vide detailed judgment dated 24th November, 1986, the Subordinate Judge, Sambalpur dismissed the suit. 5. Aggrieved by the said judgment and decree of Sambalpur Judge, appellant filed an appeal before the Additional District Judge, Sambalpur. The appellate court while upholding the judgment and decree of the Subordinate Judge dismissed the appeal vide judgment and decree dated 28.4.1990 and decree dated 7.5.1990. Hence, this second appeal. 6. Vide order dated 12.11.1990, this Court was pleased to admit the appeal treating ground A, F, J and K of the appeal as substantial questions of law. They are:- A. Whether in view of the settled position of law that the learned trial courts must discuss the evidence of each and every witnesses, each and every document and then come to their own conclusion, the present judgments are at all sustainable in law in absence of any discussion of the evidences of the witnesses and the documentary evidence. Except Ext.6, Ext.1 to 5 and 7 to 11 have not been touched. Similarly D.Ws and P.Ws. 1, 2 and 5 have not been touched. The evidence of P.Ws. 2 and 4 not discussed at all, though casually referred? F. Whether non-examination of scribe attesting witnesses to Ext.F is fatal to the case specially when the fake and fictitious nature of the transaction has been asserted and there has been contradiction in evidence of the vendor herself with regard to passing of consideration and non-delivery of possession. There is a sharp contradiction between the sale deed, Ext.F and the evidence in as much as, the Ext.F recital, the money was paid in presence of witnesses but the vendor says that the consideration was paid before Sub-Registrar. Non-payment of consideration renders the sale invalid (AIR 1982 SC 84)? 2 J. Whether in view of Section-44 of T.P. Act, Section-4 of Partition Act, and in view of Section-22 of the Hindu Succession Act, alienation by a co-sharer with regard to undivided interest can be sustained without the knowledge and the consent of the other co-sharers, in such case no title can accrue on the basis of such a document in favour of vendee? K. Whether formal admission of a 30 years old document as exhibits automatically draw the genuineness and correctness of the recitals of the document of requires independent proof as to the payment of consideration, genuineness and delivery of possession of the property? 7. Only respondent no.1 has contested this appeal. 8. I have heard Mr. J. Patnaik, learned counsel for the appellant and Mr. H.S. Mishra, learned senior counsel for the respondent. My observations on the above questions of law are:- Substantial Question “A” & “K” 9. It is admitted case of the parties that sale deed (Ex.A) was executed in favour of Madhusudan and Raghunath in respect of the property as described in “A” schedule” of the plaint, in the year 1933. At the relevant time Madhusudan was employed as an Inspector. Not only that Madhusudan resided in the said property, his brother Raghunath was also in possession of a part of the house. As per the case of the appellant himself the house was constructed under the supervision of Raghunath. Be that as it may, sale deed (Ex.A) was never challenged by Madhusudan during his life time. He died on 26.11.1980, after about 47 years of execution of the sale deed. Genuineness of the sale deed is not in question. Since sale deed (Ex.A) being more than 30 years old and also an admitted document and the fact that the appellant also claimed his right in the impugned property through sale deed (Ex.A), the trial court rightly did not accept the claim of the appellant. It is settle principle of law that where documentary evidence is available no amount of oral evidence against the admitted document is admissible nor can be considered by the Court. It is only if the execution of the document and its genuineness is under challenge, the Court has to consider and analyse the oral evidence produced on record by the respective parties to reach to a proper conclusion, if the disputed document is genuine or is fake and sham. In the instant case, there was no occasion for the Subordinate Judge to consider oral evidence of the witnesses to adjudicate on the genuineness of the document (Ex.A) as its genuineness was not under challenge. Even if the Subordinate Judge had considered the oral evidence, it in no manner would have demolished the defence of respondent no.1 nor would have come to the rescue of the appellant. The trial court referred to Ex.K, a petition filed by late Madhusudan Nanda before the Executive Officer, Sambalpur Municipality seeking splitting of the holding and to get it mutated in the name of Madhusudan Nanda and Raghunath Nanda, and Ex.B and C, the orders in Mutation Case No.15/76 and Appeal No.71/77. The Court in fact had fairly considered various documents proved in evidence by the respective parties while rejecting the claim of the appellant. Appellant did not file any document nor produced any substantive evidence to demolish the claim of ownership of respondent no.2. 3 10. In para-11 of the judgment, the trial court while disbelieving the statement of D.W.2 being contrary in nature, did observe that his statement corroborated the documentary evidence adduced by respondent no.1 that property described in “B schedule” was mutated in the name of Raghunath Nanda and was in his exclusive possession and after his death it was possessed by Sukanti Nanda in hers own right, title and interest. 11. By virtue of Section-90 of the Indian Evidence Act, a presumption is raised that sale deed (Ex.A) being more than 30 years old is genuine, legal and valid document. It has been produced from proper custody. Its execution by the vendors and their signatures are an accepted fact. Prima facie it is free from any suspicion. Document being more than 30 years old, has proved itself. Of course, this presumption is rebuttable. However, as discussed above, appellant did not rebut the presumption. Rather execution of the sale deed in favour of Madhusudan and Raghunath is an admitted fact on the record. 12. Trial Court had amongst others framed following two issues. Issue No.2 Whether late Sukanti Nanda, respondent No.2 was the concubine of late Raghunath Nanda? Issue No.5 Whether the sale deed dated 2.7.1981 executed by Sukanti Nanda in favour of defendant No.1 is valid and defendant No.1 has acquired right, title and interest by virtue of the sale deed? While discussing the above said issues, the trial court observed that Sukanti Nanda was the wife of Raghunath Nanda and appellant had failed to prove that she was concubine of Raghunath and not his legally wedded wife. This finding of fact of the trial court has been upheld by the First Appellate Court. Since respondent no.2 acquired her right, title and interest in a part of the property after her husband’s death, she had right to sell her undivided share in the suit property in favour of respondent no.1. 13. In view of my observations as above, I find no reason to interfere in the findings of the trial court as regard to the genuineness of the sale deed (Ex.A) and ownership right of respondent no.2 in the suit property. Hence, these substantial questions of law are decided against the appellant. Substantial Question “F” 4 14. Once the execution of the impugned sale deed dated 2.7.1981 (Ex.F) was admitted by the appellant, there was no necessity to examine the scribe who had written the document. Genuineness of Ex.F has been challenged only on the ground that respondent no.2 had no right, title and interest in the suit property which she could transfer in favour of respondent no.1. It is not the case of the appellant that it is a false and fabricated document. 15. It is alleged that there is a material contradiction between the contents of sale deed (Ex.F) and the oral evidence as according to the contents of the sale deed, consideration amount was paid in the presence of the witnesses whereas vendor has deposed that the consideration money was paid before the Sub-Registrar and therefore for non-payment of consideration, the sale deed (Ex.F) is invalid. It is noted that this plea was never raised by the appellant either in the plaint or during trial of the case before the trial court or even before the First Appellate Court. It is possible that the consideration amount was paid by respondent no.1 in the presence of witnesses before the Sub-Registrar. Under no circumstance, it can be said that sale deed (Ex.F) was executed without any consideration and is therefore invalid. Appellant cannot be allowed to agitate this issue before this Court which was never raised during the trial of the case. Besides these submissions, which are beyond pleadings do not raise any substantial question of law and are based on finding of fact. Since the right of respondent no.2 to transfer the disputed property in favour of respondent no.1 is proved, I find no infirmity or illegality in the impugned judgment. Hence, this question stands decided accordingly. Substantial Question “J” 16. It is argued by the counsel for the appellant that in view of Section-44 of Transfer Property Act, Section-4 of the Partition Act and in view of Section-22 of the Hindu Succession Act, alienation by a co-sharer with regard to undivided property cannot be sustained without the knowledge and consent of the other co-sharers and therefore no title could be transferred by respondent no.2 on the basis of document Ex.F in favour of respondent no.1. Perusal of the record indicate that appellant never claimed any right by invoking Section-44 of Transfer Property Act, Section-4 of the Partition Act and Section-22 of the Hindu Succession Act. In fact, Section-44 of Transfer Property Act gives a right to the purchaser to claim his specific share in the property by way of partition after having purchased undivided share in the joint property. He also has the right to take physical possession of a portion of the property and enjoy fruits of the same. Under the circumstances, Section-44 of Transfer Property Act rather helps respondent no.1 to the disadvantage of the appellant. 17. Section-22 of The Hindu Succession Act permits a co- owner to exercise pre- empty rights, if the other co-owner intends to sell his share in the property to a third person. Appellant in this case never claimed any such right in the suit property. He has only claimed a decree of declaration for declaring sale deed (Ex.F) as null and void and also that executant of the sale deed had no right, title or interest in any part of the property. Till date appellant has not claimed any pre-empty rights under Section-22 of the Act in the suit property. 5 18. Section-4 of the Partition Act comes into operation when a suit for partition is filed by a purchaser against the other co-sharers. In that case, if the other co-sharers are ready and willing to purchase the share sold to the purchaser, the Court has to fix the price of the same and it is on payment of the said price that co-sharers are entitled to purchase that part of the property which was sold to the third party. Admittedly, respondent no.1 has not filed a suit for partition. Therefore, appellant who did not make any claim by invoking Section-4 of the Partition Act cannot be allowed to agitate this issue for the first time in second appeal. Hence, this substantial question of law is accordingly decided against the appellant. In view of observation as above, I find no merit in the appeal and the same is accordingly dismissed. There are no orders as to costs. LCR be returned back to the Court below along with an attested copy of the judgment. Appeal dismissed. 6