SATYANAND MOHAN RAJU(Legal Heir) vs SHIVJEE SHARMA
- Court
- Jharkhand High Court
- Case type
- FIRST APPEAL
- Decided on
- 16-03-2026
2026: JHHC: 7078
IN THE HIGH COURT OF JHARKHAND AT RANCHI
F.A. No. 124 of 2023
1. Satyanand Mohan Raju, aged about 81 years, (died and substituted
v.o.d. 17.11.2025)
1(a) Kamala Raju, aged about 77 years, w/o Late Satyanand Mohan
rd
Raju, resident of 2D, 3 Floor, GNS Tower, Near Brijdham Ramdad
Bhatta, VTC, Sakchi, P.O. and P.S. Bistupur, Town Jamshedpur,
District East Singhbhum
2. Shiva Ram Mohan Raju, aged about 74 years, Son of Late D.
Satyanarayan Mohan Raju, resident of Sundernagar Mill area by the
side of perfect electricals, P.O. and P.S. Sundernagar, Town,
Jamshedpur, District East Singhbhum
… … Plaintiffs/Appellants
-Versus-
Shivjee Sharma, son of Late Jagannath Sharma, resident of Muiguttu,
Masjid Road, Kitadih, P.O. Tatanagar, P.S. Parsudih, Town
Jamshedpur, District East Singhbhum
… … Defendant/Respondent
---
CORAM :HON'BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY
---
For the Appellants : Mr. Rahul Kr. Gupta, Advocate
: Mr. Vipul Poddar, Advocate
M/s Sugandha Jaiswal Poddar, Advocate
For the Respondent : Mr. Pandey Neeraj Rai, Advocate
Mr. Rohit Ranjan Sinha, Advocate
Mr. Navneet Sahay, Advocate
Mr. Rishav Raj, Advocate
---
Reserved on 15.12.2025 Pronounced On 16.03.2026
This first appeal has been filed against the judgment dated
31.05.2023 (decree signed on 09.06.2023) passed by the learned Civil
Judge (Sr. Division) III, Jamshedpur in Original Suit No. 212 of 2016,
whereby the learned court has dismissed the suit filed by the plaintiffs.
2. The suit was filed for the following reliefs: -
(a) For passing appropriate order directing the defendant to
return original copy of registered Sale deeds as mentioned
above to the Plaintiff as because the aforementioned two sale
deeds no. 705/508 dated 07.02.2014 and no. 2736/2125 dated
17.05.2014 are itself null and void.
(b) For cost.
(c) Your any other relief or reliefs to which the plaintiffs are
found entitled thereto according to law and equity.
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3. The details of the properties have been mentioned in four
schedules and the disputed property is relatable to Schedule-II and III of
the plaint and both are admittedly part of Schedule-I property. Schedule
II relates to sale deed no. 705/508 dated 07.02.2014 and Schedule III
relates to sale deed no. 2736/2125 dated 17.05.2014. Schedule IV is part
of schedule II and III.
4. It is not in dispute that the plaintiffs were the owner of Schedule I
property and it is also not in dispute that aforesaid sale deeds dated
07.02.2014 and 17.05.2014 were executed by the plaintiffs in favour of
the sole defendant.
5. The case of the plaintiffs was that no consideration had passed
pursuant to the two sale deeds as the cheques mentioned therein were
returned to the defendant at the insistence of the defendant and hence the
sale deeds were null and void and the plaintiffs were entitled to return of
the registered sale deeds, which were collected by the defendant from the
registry office on the basis of registration slips, which were handed over
by the plaintiffs to the defendant in good faith upon registration of the
sale deeds but the cheques were returned by the plaintiffs to the
defendant at the insistence of the defendant subsequent to the registration
of the sale deeds. On the other hand, the case of the defendant is that it
was agreed that the plaintiffs would encash the cheques mentioned in the
sale deeds only after the property is mutated in the name of the defendant
but mutation was refused by the concerned authority on the ground that
the property belongs to the State of Jharkhand and hence the cheques
were returned by the plaintiffs, but the entire consideration amount was
paid by the defendant to the plaintiffs or their relatives upon instructions
of the plaintiffs, partly through cash and partly through bank
transactions.
6. The following issues were framed by the learned Trial Court: -
i. Whether the suit is maintainable in its present form?
ii. Whether the plaintiff has any valid cause of action for the
suit?
iii. Whether suit is barred by principle of waiver, estoppel an
acquiescence?
iv. Whether suit is barred under the provisions of T.P. Act
and Specific Relief Act?
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v. Whether the suit is undervalued or properly valued?
vi. Whether the present suit is bad in law owing to
withdrawal of Title Suit No. 74 of 2015 allegedly filed earlier
by the plaintiff?
vii. Whether plaintiffs were entitled to sell the property in
question?
viii. Whether two sale deeds bearing no. 705/508 dt.7.2.2014
and 2736 /2125 dt. 17.5.2014 executed by the plaintiff were
with proper consideration payment resulting into transfer of
valid title in favour of defendant?
ix. Whether plaintiffs are entitled for decree of declaration
prayed without claiming possession or who is in actual
physical possession?
x. Whether the plaintiff is entitled to any other relief or
reliefs?
The suit was ultimately dismissed.
Findings of the learned court
7. Issue No. I, Whether the suit is maintainable in its present form,
was decided against the plaintiffs by citing the following reasons: -
a) By referring to the judgment of the Hon’ble Supreme Court in the
case of Janak Dulari Devi versus Kapildeo Rai, the learned trial
court observed that the Supreme Court specifically referred to the
prevalent practise in Bihar known as "ta khubzul badlain" , the
practise of the title passing only when there is exchange of
equivalents and observed that it was held that this practice
specifically proved that a duly executed sale deed will not operate
as transfer in preasanti but postpones actual transfer of title from
the time of execution and registration of deed, to the time of
exchange of equivalents, that is registration receipt and the sale
consideration.
The trial court observed that the practice is prevalent only in Bihar
that until and unless the duly executed and registered sale deed
comes to the possession of the purchaser, or until the right to
receive the original sale deed is secured by the purchaser by
obtaining the registration receipt, the deed of sale merely remains
an agreement to be performed and will not be a completed sale
and the same practice was recognised by the Hon'ble High Court
of Patna.
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The learned trial court further observed that the facts of the
present case are different. The learned court observed that in the
present case, it is admitted that the defendant has the possession of
the sale deeds as well as the registration slips and further it is not
the case of the plaintiffs that the practice of ‘ta khubzul badlain’
was recognised in Jharkhand.
Moreover, the learned trial court recorded that to prove that the
registration of sale deeds (Exhibit 1 and 1/1) had not passed the
title even though the recitals in the sale deeds mentioned the
transfer of possession and payment of consideration amount, the
practice of "ta khubzul badlain" required retention of at least the
registration slips (chirkut) and sale deeds with the seller. The
learned trial court recorded that in the present case, admittedly
both the sale deeds and their registration slips were with the
defendant and held that hence the aforesaid case laws do not help
the case of the plaintiffs. The court held that the facts of the
present case clearly provide the possession of the sale deeds and
the registration slips with the defendant.
b) Further, it is a settled principle of law that courts are generally
restricted to interpreting the contract within the four corners of the
written document and referred to section 92 of the Evidence Act
and observed that both sale deeds, Exhibit 1 and 1/1, provide that
the possession of the lands described in the Schedule of the sale
deeds [Schedule II and III of the plaint] had been transferred to the
defendant.
The learned trial court then referred to Section 55(3) of the
Transfer to Property which provides that where the whole of the
purchase-money has been paid to the seller, he is also bound to
deliver to the buyer all documents of title relating to the property
which are in the seller's possession or power. The court held that
the sale deeds were given to the buyer only on payment of full
consideration amount.
The court further observed that even though the mode of payment
of the sale consideration has been admitted to have been by way
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of payment to the creditors of the plaintiffs and their relatives by
the defendant, the fact remains that any oral evidence contrary to
the sale deeds (Exhibit 1 and 1/1) documenting the payment of
sale consideration is excluded by the documentary evidence.
c) Further the plaintiffs have brought on record Exhibit 3 and 4 to
show that the possession of the lands in the Schedule of the plaint
had been transferred in favour of one Arun Kumar Thakur by way
of Agreement for Sale dated 12.08.2016 and the registered general
power of attorney dated 05.04.2017.
The plaintiffs cited judgement reported in 2018 (3) CCC 272 (SC)
wherein the Hon’ble Supreme Court held that an unregistered
agreement for sale can be admitted as evidence of contract in a
suit for specific performance as well as on the decision of the
Supreme Court in its decision reported in 2004(4) JLJR (SC) 215 .
The learned trial court held that in the present case, as was evident
from the date of the agreement for sale itself that the sale
agreement was entered into after the sale deeds and by referring to
Section 48 of the Transfer of Property Act, held that any right of
subsequent transferee shall be subject to the right of earlier
transferees.
The court also observed by referring to the agreement of sale that
it showed that sale deed was to be registered within one month but
no registered deed pursuant to the agreement of sale with third
party was brought on record and rejected the contention of the
plaintiffs that possession of the suit land had been transferred into
the possession of Arun Kumar Thakur, the second party of
agreement for sale marked as Exhibit 3 and that in pursuance of
the agreement of sale he was carrying on construction.
d) The court also observed that no instrument of cancellation of sale
deeds (exhibit- 1 and 1/ 1) has been brought on record by the
plaintiffs.
The Exhibit D and E show that a title suit for cancelation of the
two sale deeds (Exhibit 1 and 1/1) was filed but the same was
withdrawn with permission to file a fresh suit. However, no decree
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or cancellation deeds cancelling the two sale deeds has been
brought on record.
e) It is a settled proposition of law that a transfer of immovable
property of a value of Rs.100 or upwards is to be made by way of
a registered instrument and such sale is a transfer of ownership in
exchange for a price paid or promised or part-paid and part-
promised. In the present case the Exhibit 1 and 1/1 itself provide
that payment of consideration was made and same was
acknowledged and the plaintiffs’ right, title, interest vested with
the defendant on the date of the execution of the sale deed.
f) A reference was made to section 8 of the Specific Relief Act and
the learned trial court was of the view that it cannot be held that
the plaintiffs were entitled to the lawful possession of the sale
deeds since the plaintiffs have not been able to establish the same
had been wrongfully transferred from them to the defendant and
hence no relief of return of sale deeds can be granted to the
plaintiffs.
8. ISSUE NO. II Whether the plaintiff has any valid cause of action
for the present suit?
It has been pleaded that the cause of action of the present suit
arose when the defendant denied to return the sale deeds marked
as Exhibits 1 and 1/1 through their reply dated 09.09.2016. The
purported reply marked as X/1 for identification has not been
proved by the plaintiffs by way of primary evidence. Moreover, in
light of the fact that the suit itself for the relief claimed is not
maintainable and the cause of action remaining unproved, it
cannot be held that the plaintiffs had any cause of action for the
present suit, since there is nothing on record to show that the sale
deeds sought to be recovered from the defendant had been
cancelled or had been wrongfully taken from the possession of the
plaintiffs and that they were entitled to it. Since the suit was held
to be not maintainable, the issue no. (ii) was also decided
accordingly.
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9. ISSUE NO. III: Whether the suit is barred by principle of waiver,
estoppel and acquiescence?
ISSUE NO. IV : Whether the suit is barred under the provisions of
Transfer of Property Act and Specific Relief Act?
ISSUE NO. IX : Whether plaintiffs are entitled for decree of declaration
prayed without claiming or who is in actual physical possession?
The suit was held to be barred by principle of waiver, estoppel and
acquiescence by holding that it was not open to the plaintiffs to
deny the recitals of the sale deeds which were executed by them.
The plea that the suit was barred by Section 34 of the Specific
Relief Act was declined since in the present case the plaintiffs have
not sought a declaration but has only sought a relief of return of the
two sale deeds. In absence of the declaration to the effect that the
sale deeds were invalid being sought, the prayer that the sale deeds
ought to be returned to the plaintiffs was not maintainable. An
unregistered agreement to sale (exhibit-3) can only be given as
evidence to enforce specific performance of a contract whereas a
general power of attorney (exhibit-4) in favour of any person only
creates a right of agency and does not create any right and interest
over the immovable properties.
10. Issue nos. III, IV and IX were taken together by the learned
trial court and were decided the same in the following manner: -
A. In the present case, the plaintiffs have submitted that since the sale
deeds Exhibit 1 and 1/1 are void documents, the same should be
returned to the plaintiffs. It is pertinent to mention that the plaintiffs
have not sought the declaration that the sale deeds were void and
not binding on them or have claimed the relief for their
cancellation.
The plaintiffs have submitted that in light of the fact that no
consideration was paid, the entire sale deed was a sham transaction.
Hence the plaintiffs being the executant of the sale deeds was
denying the fact of it being so executed as was recited in the sale
deeds which provided that the sale consideration had been paid and
possession had been delivered to the defendant consequent thereto.
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Hence, the fact that the sale deeds existing in favour of the
defendant showed that the right, title and interest in property had
been transferred in favour of the defendant, the plaintiffs being
executants of the same cannot deny the recital of the same since the
principle of estoppel is based on the principle of equity i.e. when
one person has included the other person by his act, omission or
declaration to believe something and the other person had taken
some steps on believing that statement, it would be unjust and
inequitable to allow the former to deny from his former statement.
Therefore, where two parties enter into an agreement by way of a
deed as to certain facts, this implies that neither he nor his
representatives or any person claiming under him can deny the facts
mentioned and agreed in the deed. Hence, the plaintiffs as
executants of the sale deeds cannot claim the same to be null and
void.
B. Further the defendant has submitted that in absence of prayer for
recovery of possession, no suit for return of the sale deeds will be
maintainable since it is barred under Section 34 of the Specific
Relief Act. In the present suit, the plaintiffs being the executants of
the sale deeds have prayed that the same be returned since they are
null and void. However, they have submitted that the possession of
the lands described in the sale deeds was with them and they had
transferred the possession of those lands for development in favour
of one Arun Kumar Thakur from 12.08.2016. However, the present
pleading is in contradiction to that as is recited in the sale deeds
marked as Exhibit 1 and 1/1. Further the defendant submitted that
he was in possession of the lands described in the Schedule of the
sale deeds. It was submitted on behalf of the defendant that without
seeking the relief for recovery of possession, relief for declaration
would not be maintainable. The case laws cited by the defendant
were held not helpful to the defendant since in the present case the
plaintiffs have not sought a declaration but has only sought a relief
of return of the two sale deeds.
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C. Further the fact that any transfer of immovable property can only be
made by way of registered deed as well as the fact that the
stipulation of a registered deed of sale being executed by the
plaintiffs had been made within one month of the execution of the
agreement of sale dated 12.08.2016 and the fact of the plaintiffs not
bringing on record the same i.e. the registered sale deed in favour of
Arun Kumar Thakur shows that the agreement for sale had not been
complied with by the plaintiffs themselves. The plaintiffs claimed
that the possession is with Arun Kumar Thakur who has been put in
possession of the schedule lands in pursuance of the agreement to
sale dated 12.8.2016. However, the defendant has averred in his
written statement that the possession of the land described in
schedule II and III are in possession of the defendant.
Both plaintiffs and defendant by way of oral evidence have
submitted that they are in possession of the lands described in the
schedule of the plaint. Hence, documentary evidence adduced on
behalf of both sides have to be looked into since it is a settled
proposition of law that documentary, evidence excludes oral
evidence.
The two sale deeds marked as Ext. 1 and 1/1 which are registered
show that the possession of schedule II and III lands were with the
defendant whereas the agreement to sale marked as exhibit 3 which
have not been registered shows delivery of the property to Arun
Kumar Thakur who was adduced as P.W. 2 in pursuance of which a
general power of attorney dt. 5.4.2017 marked as Ext. 4. Further
Section 54 of Transfer of Property Act which defines sale provides
that an immovable property of the Value of Rs. 100/- and upwards
can only be transferred by way of a registered /instrument of sale.
An unregistered agreement to sale can only be given as evidence to
enforce specific performance of a contract whereas a general power
of attorney in favour of any person only creates a right of agency
and does not create any right and interest over the immovable
properties.
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D. It is the case of the plaintiffs that since the deeds were without
consideration the same ought to be returned to them as it was
submitted that the defendant was in wrongful possession of the sale
deeds. Hence in absence of the declaration to the effect that the
same were invalid being sought, the prayer that they ought to be
returned is not maintainable in light of the reasons as already
discussed under ISSUE NO. I.
11. ISSUE NO. VI: Whether the present suit is bad in law owing
to withdrawal of Title Suit No. 74 of 2015 allegedly filed earlier by
the plaintiff was decided in favour of the plaintiffs.
ISSUE NO. VII: Whether plaintiffs were entitled to sell the property
in question was decided by observing that even the defendant has not
denied the capacity of the plaintiffs to make a valid transfer of the lands
described in Schedules of the plaint.
12. ISSUE No. VIII: Whether two sale deeds bearing no. 705/508
dt.7.2.2014 and 2736 /2125 dt. 17.5.2014 executed by the plaintiffs
were with proper consideration payment resulting into transfer of
valid title in favour of defendant? was decided by observing that the
defendant have pleaded that the plaintiffs, to save themselves from
paying income tax, had instead of being paid by cheque, preferred to take
payment by way of payment to their creditors, their relatives and security
personnel as sale consideration. It has been held that even though the
defendant has admitted that the payment of consideration was made by
way of other modes than specified in the sale deed marked as Ext. 1 and
1/1 in light of the discussion as made under issue no. I, the sale deeds
could not be held to be void on the ground that no sale consideration had
passed to the plaintiffs. The trial court observed that it is a settled
principle of law that a registered instrument of transfer providing for sale
of immovable property shall be held to be a valid transfer on sale and
consideration amount may be part paid or completely paid or even may
be promised to pay and accordingly, the issue was decided against the
plaintiffs.
13. ISSUE NO. V: Whether the suit is undervalued or properly
valued? was decided by observing that in the present suit, the plaintiffs
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had valued the suit to be Rs. 36 Lakh. Further the sale deed marked as
Ext. 1 and 1/1 were executed for a total consideration amount of Rs.
1,02,30,000/- as is provided in the sale deeds. Hence the suit does not
appear to have been undervalued. The trial court observed that since only
return of aforesaid sale deeds was sought and no recovery of possession
was sought, a total of only Rs. 250/- as court fees has been paid. The
learned trial court also observed that the defendant has brought no
evidence on record to show that the suit as valued was undervalued but
have submitted that since the plaintiff was an executant of the sale deeds
ad-volrem Court fees should have been paid. The court further observed
that the suit has been held to be not maintainable in light of decision on
ISSUE No. I and decided issue no. V accordingly.
14. ISSUE No. X: Whether the plaintiff is entitled to any other
relief or reliefs? was decided by observing that the suit has been held to
be not maintainable and the plaintiffs are not entitled to any other relief.
15. Arguments of the appellants.
I. It has been argued by the learned counsel for the appellants that
the learned Trial Court has travelled beyond the pleadings while
deciding the suit which is not permissible under law.
II. He submits that the learned Trial Court has failed to consider that
when sale consideration amount has not passed, then there is no
requirement of seeking cancellation of the sale deed as such sale
deed is already null and void. This aspect has been dealt by the
Hon’ble Supreme Court in the case of Kewal Krishan v Rajesh
Kumar & Ors. reported in 2021 SCC Online SC 1097 . The
learned trial court has also failed to consider that the sale
consideration through cheques mentioned in the sale deeds were
not encashed and were returned to the defendant.
III. The learned Trial Court has wrongly construed the fact that as one
of the firms, namely, Shree Balajee Heritage, in which the son of
the defendant is the Director, has transferred certain amount to the
plaintiffs and his family members could be said to be a part of the
sale consideration.
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IV. The learned trial court has also failed to consider that title does not
pass on mere registration of the sale deed, rather the title passes
only after exchange of registration receipt and the sale
consideration and has referred to the judgment passed by the
Hon'ble Supreme Court in the case of Janak Dulari Devi & Anr.
v. Kapildeo Rai & Anr. reported in (2011) 6 SCC 555 .
V. The learned counsel has also submitted that the learned Trial
Court has failed to consider that in Jharkhand the practice of
registration receipt is prevalent and the laws of Bihar have been
adopted in terms with the Bihar Reorganization Act, 2000 and
therefore, the practice in Bihar known as “ta khubzul badlain” , is
also prevalent in the State of Jharkhand.
VI. The learned counsel has also submitted that the learned trial court
has failed to consider that an unregistered agreement for sale can
be admitted as evidence of contract in a suit for specific
performance as per the provision of Section 49 of the Registration
Act and has referred to the judgement passed by the Hon’ble
Supreme court in the case of R. Hemalatha v. Kashthuri reported
in 2023 SCC Online SC 381 and submits that the learned Trial
Court has failed to consider the unregistered agreement for sale
dated 12.08.2016 (Exhibit-3) from where it is evident that the land
in question is in possession of one Arun Kumar Thakur. The
learned counsel submits that a valid transfer of title is complete
only when entire sale consideration is paid and if sale
consideration is not paid, then even if in the recital of the sale deed
it is mentioned about possession, the possession will be deemed to
be in favour of the plaintiffs.
VII. The learned Trial Court has failed to properly appreciate Section
54 of the Transfer of Property Act and that it is settled principle of
law that if sale deed is executed without consideration, then such
sale is not at all valid in the eyes of law and the same is null and
void. The learned Trial Court has failed to appreciate that
documents marked as Exhibit-A and B were not brought on record
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by the defendant by way of pleadings and could not be relied
upon.
16. The learned counsel for the appellants has also relied upon the
following judgments: -
(i) 1951 SCC 1189 (Kedar Lal Seal & Anr. Vs. Har Lal Seal)
para 39 and 40
(ii) (2022) 18 SCC 489 (Kewal Krishan vs. Rajesh Kumar and
Others) para 18-21;
(iii) 2025 SCC Online SC 1961 para 29,34,35,36,37,38 [Shanti
Devi (since deceased) through Lrs. Goran versus Jagan
Devi and Others]
17. Arguments of the respondent.
a) Without admitting that the consideration with respect to the two-
sale deeds (exhibit-1 and 1/1) were not paid, the sale deeds
showed passing of possession to the defendant, therefore the suit
was barred by Section 34 of the Specific Relief Act.
b) Learned counsel for the respondent has submitted that his
arguments would be touching upon the factual aspects and also
legal aspect with respect to Section 54 of the Transfer of Property
Act read with Sections 6, 30, 31 and 64 of the Negotiable
Instruments Act and Section 34 of the Specific Relief Act.
c) With respects to the facts, the learned counsel for the respondent
has submitted that as per the case of the plaintiffs, first sale deed
was executed on 07.02.2014 and the second one was executed on
17.05.2014, if the turn of events as narrated in the plaint and the
natural course of conduct are taken is taken into consideration,
then there was no occasion to execute the second sale deed dated
17.05.2014.
d) He submits that on 07.02.2014, the sale deed was executed upon
issuance of four cheques which was followed by three letters
dated 22.02.2014, 28.03.2014 and 08.04.2014 in connection with
first sale deed. The learned counsel submits that in the letter dated
22.02.2014, a letter was said to be served upon the plaintiffs that
when the defendant went for mutation, he came to know that the
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property cannot be mutated as the property is a government land
and the defendant requested the plaintiffs to return the cheque and
initiate the process of cancellation. The letter dated 28.03.2014 is
a reminder to that effect and the letter dated 08.04.2014 is the
letter said to have been issued by the plaintiffs by which the
plaintiffs claimed that all the cheques were returned. The sale deed
dated 07.02.2014 was marked exhibit-1 and letters dated
22.02.2014, 28.03.2014 and 08.04.2014 were marked Exhibit-2,
2/1 and 2/2 respectively.
e) The learned counsel submits that since the defendant was
conscious of the fact that the sale deed was to be cancelled and the
cheques were to be returned with respect to the first sale deed,
there was no occasion for the defendant to enter into second sale
deed on 17.05.2014. The learned counsel submits that the
description of the property in schedule-II and Schedule-III is
identical except with respect to the area. He submits that the
property in Schedule-II and Schedule-III appears to be adjoining
to each other. The learned counsel then submits that this itself
indicate that exhibit-2, 2/1 and 2/2 were forged and fabricated
documents.
f) The learned counsel then referred to the second sale deed dated
17.05.2014 and submits that identical letters with respect to
second sale deed have also been said to have been issued i.e. dated
01.06.2014, 15.06.2014 and 01.07.2014 which have been marked
exhibit-2/3, 2/4 and 2/5 respectively. Both the set of letters with
st nd
respect to the 1 sale deed and the 2 sale deed have the same
tenure and it appears that they all have been prepared at one point
of time.
g) The learned counsel has submitted that the aforesaid conduct is
absolutely unnatural and therefore this aspect of the matter is to be
kept in mind while considering the genuineness of Exhibit-2 to
2/5. He submits that the factual case which has been set up by the
plaintiffs does not appear to be genuine and probable.
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h) The learned counsel then referred to the plaint filed in the previous
suit which was marked exhibit-E and has highlighted the
difference between paragraph 9 and 10 of the present plaint and
corresponding paragraph 9 and 10 of the previous plaint and has
submitted that in the present suit, much improvement has been
made and there is a difference in the case of the plaintiffs.
i) The learned counsel has then referred to Exhibit-3 which is said to
rd
be an agreement of sale to 3 party which is dated 12.08.2016 and
has submitted that this has to be seen with reference to paragraph
18, 19 and 22 of the plaint. He submits that the legal notice was
issued by the plaintiffs on 23.08.2016 which was subsequent to
exhibit-3 and its reply was given on 09.09.2016, but in paragraph
22 the term ‘ thereafter’ has been mentioned.
j) The learned counsel has submitted that the plaintiffs has made out
rd
a case that the agreement of sale with 3 party was made after the
issuance of legal notice. He submits that the plaint reveals that
rd
after the notices the property was delivered to 3 party right on
rd
the date of execution of agreement with 3 party.
k) The learned counsel then referred to Order VIII Rule 5 of CPC
and has submitted that merely because the six letters in exhibit-2
series have not been specifically denied in the written statement,
but still the court considering the aforesaid circumstances would
certainly see as to whether the plaintiffs have duly proved the
aforesaid exhibits in the light of the flow of events and the
circumstances and as to whether the plaintiffs have been able to
prove the facts as narrated in the plaint.
l) The learned counsel then referred to Section 54 of the Transfer of
Property Act and has submitted that it is to be seen as to whether
passing of money was intended to be a condition precedent in the
present case. He submits that for that purpose, the recital of the
sale deed is relevant and the fact that the cheques were issued
itself reveals that the money would come to the seller only upon
presentation of cheque and apparently the execution of registered
sale deed coupled with payment through cheque would fall under
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promise to pay at a future date and cannot be termed as payment
on the date of execution of the sale deed. The learned counsel
submits that under such circumstances if the payment is not made
by encashment of cheque for any reason whatsoever the seller has
a remedy to sue for the consideration amount but the fact that the
sale deed was registered and the title had passed on the date of
registration cannot be disputed. The learned counsel has also
submitted that the registered deed itself uses the word that the title
and possession passed on the date of registration and therefore
non-encashment of cheques at a later point of time will not make
the sale deed null and void for want of consideration on the date of
registration of the sale deed. The learned counsel has in particular
referred to paragraph 3 of the sale deed. He submits that the
execution and registration was intended to be on the same day and
the title passed on the same day, the payments stood deferred as
the cheques were to be encashed. The learned counsel then
referred to Sections 6, 30, 31 and 64 of the Negotiable Instruments
Act and has submitted that the recovery through cheque is either
through presentation and in case the cheque is bounced through
the legal process of proceeding under Section 138 of the
Negotiable Instruments Act and in case the cheque is not
presented or not honoured for any reason and recourse of Section
138 is not taken, then the party has a legal remedy of filing a suit
for recovery of money. The learned counsel submits that therefore
an objection has been taken in the written statement that instead of
filing of money suit the plaintiff has chosen to file a suit for
declaration of the sale deed null and void.
m) The learned counsel has referred to the judgment passed by the
Hon’ble Supreme Court reported in (2009) 4 SCC 193
(Kaliaperumal vs. Rajagopal & Anr.) and has placed the entire
facts of the said case and has submitted that in the said case, the
party intended to pass the entire consideration amount on the date
of registration, but only part payment was made and therefore the
Hon’ble Supreme Court was of the view that the registration of the
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sale deed did not pass the title of the property. The learned counsel
has submitted that the principle of law involved in connection
with passing of title of the property has to be based on the facts
and circumstances of each case and the intention of the party on
the date of registration as to whether the parties intended to
transfer the property only after receipt of the entire consideration
by the vendor as a condition precedent is required to be examined.
He has referred to paragraph 15 to 21 and also paragraph 22 of the
aforesaid judgment.
n) The learned counsel submits that the judgment which has been
relied upon by the appellants reported in (2022) 18 SCC 489
(Kewal Krishan vs. Rajesh Kumar & Others) does not help the
appellants in any manner, inasmuch as, in the present case, it is
not a case that the sale deed was without payment of price or it did
not provide for payment of price at a future date rather the sale
deed was coupled with issuance of cheques which were to be
encashed at later point of time.
o) The learned counsel has submitted that the intention of the party
would also reflect from the recital of the sale deeds and if the
recitals are not clear then the conduct of the parties is required to
be seen.
p) The learned counsel also submits that the payment of
consideration has been made through alternative mode to the
plaintiffs or his nominees which is much more than the amount
involved in the cheques involved in this case.
q) The learned counsel has referred to Section 34 of the Specific
Relief Act and has submitted that the suit was barred by the said
Section. He submits that the corresponding section under the
Specific Relief Act, 1877 was Section 42. He has referred to the
judgement passed by Hon’ble Supreme Court reported in (1973) 2
SCC 60 (Ram Saran and Another Vs. Smt. Ganga Devi) and has
referred to the facts of the said case, wherein the plaintiffs had
brought a suit with respect to property which was partly in
possession of the plaintiffs and partly in possession of the
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defendants, but did not seek any claim for recovery of possession,
and consequently, the Hon’ble Supreme Court held that the suit
was barred by Section 42 of the Specific Relief Act of 1877.
r) The learned counsel submits that in the present case, the learned
trial court has recorded a finding that the defendant was in
possession of the property. He submits that the plaintiffs have not
sought any relief for recovery of possession, and therefore, suit
was barred under Section 34 of the Specific Relief Act.
s) The learned counsel has then referred to the judgement passed by
Hon’ble Supreme Court reported in (2014) 14 SCC 502
(Venkataraja and Ors. Vs. Vidyane Doureradjaperumal) and
referred to paragraphs 23 and 24 and submitted that once the
written statement was filed stating that the defendant was in
possession of the suit property, the plaintiffs ought to have
amended the plaint seeking recovery of possession, but no such
steps were taken by the plaintiffs and ultimately, the possession
having been found in favour of the defendant, the suit was hit by
Section 34 of the Specific Relief Act.
t) The learned counsel for the respondent has referred to the point of
possession. He submits that both the parties have led oral evidence
on the point of possession, which are contrary to each other and in
the pleadings also, they have claimed possession. He has
submitted that the sale deed itself reveals that the possession of the
suit property was given on the date of execution of the sale deed,
and therefore, in the matter of conflicting oral evidence, the
document which is a registered sale deed is required to be seen
and the learned counsel then refers to Sections 91 and 92 of the
Indian Evidence Act.
u) The learned counsel submits that the oral evidence is excluded on
the face of the documentary evidence i.e. registered sale deed
which itself reveals that the possession was given on the date of
registration. He has then submitted that the plaintiffs claimed to be
in possession of the property and in order to come out of the rigors
of Section 34 of Specific Relief Act, it was for the plaintiffs to
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prove that the plaintiffs were in possession of the property. He
submits that the burden of proof was on the plaintiffs to prove that
they were in possession of the property, which the plaintiffs
miserably failed to prove.
v) The learned counsel has referred to Sections 101 to 104 of
Evidence Act and submits that the plaintiffs having failed to
discharge their burden with regards to claim of possession and on
the basis of the registered sale deed the defendant has successfully
demonstrated that the possession was delivered to the defendant
on the date of registration, therefore, the suit was rightly held to be
barred by Section 34 of the Specific Relief Act.
w) The learned counsel for the respondent has also submitted that the
applicability of Section 54 of the Transfer of Property Act is to be
seen from another angle. He submits that in the judgements which
has been referred to by him, it reveals that the factum of giving
possession by itself is an important aspect to determine as to what
the parties intended at the time of registration of the sale deed.
x) The learned counsel submits that the fact that the possession was
handed over to the defendant at the time of execution of the sale
deeds itself speaks volumes that the parties intended that the
property should pass on to the defendant on the date of execution
of the sale deeds and the payment of consideration was at a future
date upon collection of the amount covered by the cheques which
were the mode of payment of consideration and therefore, the
burden of proof was upon the plaintiffs by virtue of Section 103 of
the Indian Evidence Act to prove that the possession was with the
plaintiffs and not with the defendant.
y) The learned counsel has also submitted that the plaintiffs has
alleged that the defendant has acted in a clandestine and fraud
manner, but there are no particulars of such clandestine manner in
the plaint. For this, he has referred to the judgement passed by the
Hon’ble Supreme Court reported in (2010) 5 SCC 104 (Shanti
Budhiya Vesta Patel and Ors. Vs. Nirmala Jayprakash Tiwari
and Ors.) paragraphs 22, 32, 33.
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18. Rejoinder arguments of the appellants (plaintiffs)
(i) The learned counsel for the plaintiffs, in rejoinder, has submitted
that the suit property being a vacant land, the point of
possession/dispossession has to be seen from a different angle. He
has submitted that he shall cite a judgement to demonstrate that
when the suit property is a vacant land what has to be seen is who
has the right to possess the same. The learned counsel thereafter
submits that the question of title being passed on the date of
registration of the sale deed, does not arise in view of the specific
stand taken by the defendant in paragraph 10 of the written
statement that the cheque was to be encashed only after mutation.
He submits that this itself reveals that the intention of the party
was that the title would pass after mutation, and consequently,
after payment of consideration and it is an admitted fact on record
in paragraph 23 of cross-examination of D.W. 1 that the mutation
has not been done in favour of the defendant.
(ii) The learned counsel for the appellants has referred to Section 34
of the Specific Relief Act and has submitted that admittedly no
prayer for recovery of possession has been made in the plaint as
the plaintiffs remained in possession of the property. Since, the
plaintiffs were in possession, the proviso to Section 34 is not
attracted and therefore, the suit was not hit by Section 34 of the
Specific Relief Act. He also submits that the fact that the plaintiffs
were in possession was not in dispute as the plaintiffs were the
owner of the suit property which was vacant land. Further, it was
for the defendant to plead and prove the exact date of possession
which is totally absent in this case and they are trying to coverup
by referring to the sale deeds which is also not in accordance with
law.
(iii) The learned counsel for the appellants has further submitted that
the only material evidence, which has been brought on record with
regard to possession of the defendant, are the sale deeds
themselves. He has submitted that admittedly the consideration
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amount as mentioned in the sale deeds was not paid and therefore,
the defendant is not permitted to rely on the sale deeds itself to
claim that he was in possession of the property as the sale deeds
are void. He has referred to paragraph 1 of the sale deed to submit
that the entire consideration amount was stated to have been paid
and the seller was said to have delivered possession of the suit
property and since the consideration itself was not paid, the
defendant cannot claim possession. The learned counsel has
referred to Exhibit-2, 2/1 and 2/2 and submitted that even as per
these exhibits the defendant has indicated that the property was
not capable of being mutated in his name as the property was
declared to be a government land and the vacant land was of no
use of the defendant. In such circumstances, the defendant cannot
claim possession.
(iv) Learned counsel submits that the payment for consideration was
the most important part of the transaction and only upon payment
the right would accrue under the deeds. Since, there was no
payment, therefore, the sale deeds were void ab-initio .
(v) He has reiterated the judgment which is cited by him reported in
(2025) SCC OnLine SC 1961 [ Shanti Devi (Since Deceased)
through Lrs. Goran vs. Jagan Devi and Others ] and has
submitted that the earlier judgment passed in the case of Kewal
Krishnan v. Rajesh Kumar reported in (2022) 18 SCC 489 was
duly considered in paragraph 34 of the judgment and has
submitted that it has been held that if a sale deed in respect of
immovable property is executed without payment of price, it is not
a sale at all in the eyes of law, specifically under Section 54 of the
Transfer of Property Act, 1882 and such a sale without
consideration would be void and would not affect the transfer of
the immovable property. He submits that as per sale deed, the
price was to be paid through cheques and in fact the consideration
amount was not paid in the manner stated in the sale deeds
themselves.
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(vi) The learned counsel for the appellants has also relied upon the
judgment passed by the Hon’ble Supreme Court reported in
(2003) 12 SCC 219 (Ashan Devi & Anr. vs. Phulwasi Devi &
Others) . He has referred to paragraph 23 and 24 of the aforesaid
judgment to submit that the possession in connection with the
vacant land is to be seen in the light of the said judgement when
admittedly, the present property is vacant land.
(vii) The learned counsel has then tried to distinguished the judgment
relied upon by the learned counsel for the respondent which is
reported in (2009) 4 SCC 193 (Kaliaperumal vs. Rajagopal &
Anr.) and has in particular referred to paragraph 18 onwards to
submit that in a case where the sale deed itself reveals that the
consideration amount is paid and if it is found that the
consideration amount was not paid, then the sale is void. He has
submitted that the intention of the parties is required to be
gathered from the facts and circumstances and particular the
recital of the sale deed itself. In the present case, the parties
intended to transfer the property upon payment of consideration
amount through cheques and merely because it was mentioned in
the sale deeds that the possession was being delivered, the same is
not conclusive. The possession was to be delivered coupled with
payment of the consideration amount which was never paid and
consequently the sale deeds were required to be declared void-ab-
initio .
(viii) The learned counsel has then referred to Section 54 of the Transfer
of Property Act and has submitted that since the sale deed itself
revealed that the consideration was paid and it was nobody’s case
that the consideration will be paid in future or it was partly paid or
partly to be paid in future, therefore, none of the three categories
regarding payment of consideration under Section 54 of the
Transfer of Property Act is satisfied in the present case and the
consideration having not been paid in terms of the sale deeds
itself, the sale deeds were void.
19. Further arguments of the respondent.
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a) The learned counsel for the respondent in furtherance to and in
response to the submissions made in rejoinder by the learned
counsel for the plaintiffs (appellants) has referred to the
evidence of the sole defendant and has submitted that in
paragraph 6, he has made a statement that he was in possession
of the property, but during cross-examination, numerous
suggestions have been given, but there is no such suggestion on
the point of possession. However, this Court finds that even in
his evidence-in-chief, there is no mention that he was given
possession on the date of execution of the sale deed, though in
paragraph 6 he has made a reference that he was in possession of
the property.
b) On the date with respect to the date of possession, the learned
counsel for the respondent has only relied upon the registered
sale deeds which itself reveal that on the date of registration the
possession was handed over to the defendant.
c) The learned counsel has further submitted that the plaintiffs
never asked for any local inspection of the property rather none
of the parties asked for local inspection to find out the actual
possession, but it was for the plaintiffs to take steps for local
inspection, but no steps having been taken as the burden of proof
was upon the plaintiffs that they were in possession of the
property and therefore the plaintiffs have failed to establish their
case.
d) The learned counsel has also submitted that as per the sale deeds,
two aspects are very clear; one is passing of cheques and the
other is passing of possession. He submits that these two aspects
were enough to hold that the sale deeds were duly executed upon
payment of consideration and the possession also passed
simultaneously.
e) The learned counsel has then referred to Section 114 of the
Indian Evidence Act to submit that the very fact that the
defendant applied for mutation itself reveals that he after having
taken possession went to the authority for mutation and then
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came to know that the property cannot be mutated in his name as
the property was a government land and this aspect is apparent
from the letters exhibited by the plaintiffs themselves to
demonstrate that the defendant had gone to the Circle Office for
the purposes of mutation. The learned counsel has also submitted
that the fact that the registration slips were given to the defendant
also reveals that the possession also must have been given to the
defendant.
f) So far as the judgment passed in the case of Shanti Devi (Supra)
is concerned, the learned counsel for the respondent submits that
in the said case, there was also a prayer for recovery of
possession.
g) With respect to the judgment passed in the case of Ashan Devi
(Supra), the learned counsel submits that the present case also
relates to the question as to who was in possession of the
property and in the said judgment, the Hon’ble Supreme Court
has observed that in case of property being vacant, the possession
has to be seen from a different angle, but once the parties are in
dispute on the point of possession, the evidence has to be seen as
to who was in possession of the property. The sale deeds
themselves were enough evidence that the possession was
handed over to the defendant on the date of execution of the sale
deeds. He submits that it was not even the case of the plaintiffs
that the possession is to be derived on the basis of title and
nobody was in actual physical possession of the property.
h) The learned counsel has also relied upon the judgment passed by
the Hon’ble Supreme Court reported in (2011) 6 SCC 508
(Noida Entrepreneurs Association vs. Noida & Others) and has
referred to paragraph 25 to submit that although there was no
plea seeking declaration of title, but still the proviso to Section
34 will come into play as once the sale deeds are declared void,
the title would naturally go back to the plaintiffs. He submits that
the plea of declaration of the sale deeds are void amounts to
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2026: JHHC: 7078
seeking a declaration of title and therefore proviso to Section 34
is very much attracted in the present case.
20. The case of the plaintiffs in short is as under: -
a. It was the case of the plaintiffs that schedule-I property was
recorded in last survey settlement in record of rights in the name
of State of Bihar and was shown in possession of the State.
Consequently, a Title Suit No.-18/2003 of 1973 was filed by the
father of the plaintiffs against the State of Bihar, which was
decreed in their favour in the year 1976 and the property was also
mutated in their name. The plaintiffs executed two registered sale
deeds vide Registered Sale Deeds dated 07.02.2014 and
17.05.2014 which is the subject matter of dispute in the present
case as contained in Schedule II and III of the plaint which are
part of Schedule I property.
b. The specific case of the plaintiffs is that at the time of execution of
registered Sale Deed dated 07.02.2014 , total consideration
amount of Rs 62,70,000/- was paid through four cheques all dated
07.02.2014 which were in the custody of the plaintiffs.
c. It was their further case that on 22.02.2014, defendant gave a
letter to the plaintiffs stating that the property registered in favor
of defendant for total consideration amount as mentioned above
shall be paid to plaintiffs by defendant only after mutation is done
in his favour. The defendant also mentioned that he was informed
that the mutation of the land cannot be done as the land is
recorded in the name of State of Jharkhand although the lands
were subject matter of decree in Title Suit filed by the plaintiffs
against the State of Bihar/Jharkhand.
d. Thereafter, the defendant directed the plaintiffs to return all the
cheques mentioned in the sale deed dated 07.02.2014 and also
asked the plaintiffs to take step for the cancelation of Sale deed. It
was also stated that mutation was not the pre-condition for
execution of registration and payment of sale consideration by the
defendant. However, the defendant again issued a letter dated
28.03.2014 by referring to his earlier letter dated 22.02.2014
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asking the plaintiffs to arrange return of all the cheques issued in
favor of the plaintiffs immediately, otherwise the defendant shall
take necessary legal action against the plaintiffs. Consequently,
the plaintiffs returned all the cheques to the defendant vide letter
dated 08.04.2014 on which the defendant had put his signature in
token of proof of the receipt of all the four cheques.
e. It is further case of the plaintiffs that similarly, so far as other
registered sale deed dated 17.05.2014 is concerned, total
consideration amount of Rs. 39,60,000/- was also paid through
four cheques all dated 17.05.2014 as mentioned in the sale deed
itself. As happened with respect to the aforesaid sale deed dated
07.02.2014, the plaintiffs, at the insistence of the defendant,
returned all the four cheques on 01.07.2014, which the defendant
had given to plaintiffs on the day of executing the sale deed dated
17.05.2014. The defendant had put his signature in token of proof
of the receipt of four numbers of cheques, mentioned above.
f. Further case of the plaintiffs was that the defendant after receipt of
his cheques from plaintiffs, which were not encashed, managed to
obtain the sale deeds from the office of the Registrar at
Jamshedpur in clandestine manner without giving information to
the plaintiffs on the basis of registration slips, which were handed
over to the defendant in good faith by the plaintiffs.
g. It was also stated that the possession of the property in schedule II
& III was not delivered to the defendant by the plaintiffs, although
the registration slips were handed over on the basis of the earlier
cheques received by the plaintiffs.
h. The plaintiffs thereafter issued a legal notice dated 23.08.2016
asking the defendant to return both the registered sale deeds. The
defendants responded the legal notice vide reply dated-
09.09.2016, whereby the defendant claimed to be the owner of
two registered sale deeds. It was the case of the plaintiffs that the
defendant had intentionally and deliberately cheated the plaintiffs
by taking back all his eight cheques and after getting the Sale
Deed registered in his favor.
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2026: JHHC: 7078
i. The case of the plaintiffs was that the two registered sale deeds
did not convey any title to the defendant and it was repudiated by
the plaintiffs vide notice dated 23.08.2016 and therefore the
defendant was not entitled to claim any right, title or interest or
possession with respect to schedule II & III land.
j. It was further case of the plaintiffs that they have entered into an
agreement in favor of another person for transfer of lands
mentioned in Schedule IV, the possession of the same was also
delivered to said person for construction of building.
k. The case of the plaintiffs was that the two registered sale deeds
dated 07.02.2014 and dated 17.05.2014, executed in favor of
defendant, has no legal value in the eyes of law, because sale
consideration was not paid to the plaintiffs and delivery of
possession were also not given to defendant even after registration
and execution of registered sale deeds. Consequently, the case of
the plaintiffs was that the two registered sale deeds have no value
in the eyes of the Law, being without consideration and both the
sale deeds were required to be declared null and void on this
count.
l. It was asserted that only fixed court fee of Rs. 250/- was payable
as the suit was of declaratory nature.
21. The case of the defendant in short is as under: -
i. It was asserted that the suit was not maintainable in the present
form; there was no valid cause of action; it was barred under the
provisions of Transfer of Property Act; suit was barred by the
principles of estoppels, waiver and acquiescence; the suit was bad
for mis-joinder and non-joinder of necessary parties and causes of
action for the suit and the suit was barred under the provisions of
Specific Relief Act and the suit was grossly under-valued.
ii. It was asserted that the plaintiffs have prayed for return of two
sale deeds whose value was Rs. 62.70 lacs and 39.60 lacs
respectively total being Rs. 1,02,30,000/- but the suit was valued
for Rs. 36 lakhs only. It was also asserted that the plaintiffs
assume that the Sale deeds were null and void and avoided to
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2026: JHHC: 7078
make a prayer of cancellation of Sale deeds and this was done
evidently to evade payment of full ad-valorem Court fee.
iii. Another objection was taken by stating that the plaintiffs had filed
one Title Suit No. 74/2015 against the defendant seeking
cancellation for aforesaid two Sale deeds by paying ad-valorem
court fee of Rs.50,000/-. Later on, the plaintiffs withdrew the said
Title suit unconditionally but this vital fact was suppressed by the
plaintiffs before the court. It was asserted that the plaintiffs are
estopped from assuming and alleging that the said two sale deeds
were null and void and the same were not acted upon.
iv. It was agreed between the parties that the cheques issued by the
defendant and mentioned in sale deeds dated 07.02.14 and
17.05.14 will be encashed by the plaintiffs only after mutation in
respect of the lands mentioned in the said two deeds and in
pursuance of the same, the plaintiffs retained those cheques with
them; still the defendant paid the entire consideration money of
Rs. 1,02,30,000/- to the plaintiffs and/or their relatives as per their
requirement and direction, partly by cash and partly by bank
transaction, on receipt of the aforesaid cheques mentioned in the
two sale deeds. Therefore, the entire consideration money was
paid. This is why the plaintiff neither filed Money Suit claiming
the consideration money mentioned in the said Sale deeds nor
proceeded with earlier Title Suit No. 74/2015 as mentioned above
for cancellation of those deeds.
v. It was further case of the defendant that the plaintiffs voluntarily
gave the registration slips in respect of the two sale deeds and also
delivered physical possession of the lands mentioned in the
schedules (Schedule-II and III).
vi. The defendant admitted to have collected original sale deeds from
the registration office on completion of registration of the same
and they even applied for mutation of the land.
vii. It was asserted that having received the full consideration amount
with respect to the two sale deeds, the plaintiffs were estopped
from challenging the validity of the same.
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2026: JHHC: 7078
viii. The defendant having paid the full consideration money as per
direction of the plaintiffs and also taken physical possession of the
suit (purchased) lands, there is no question of cheating in any way.
As a matter of fact, after taking possession of the lands purchased
by him through two sale deeds, the defendant commenced
construction of several residential premises thereon after levelling
the same by expending huge amount money. Out of greed to grab
those premises or alternatively to extort money illegally, the
present suit has been filed by the plaintiffs at the instigation of
some mischief mongers.
ix. With respect to the transaction with another person, it was asserted
that upon careful perusal of Schedule I and IV of the plaint, it
would be evident that land mentioned in schedule IV was never in
possession of the plaintiffs. The major part of Schedule IV is in
possession of the defendant since the date of execution and
registration of the two sale deeds in question and that the
defendant was raising construction of the buildings in Schedule II
& III lands which he had purchased by the two sale deeds. It was
also asserted that admittedly Schedule IV includes major Schedule
II & III purchased by the defendant and asserted that except the
defendant, no other person is making any construction on any part
of Schedule I land.
x. It was asserted that the plaintiffs had no cause of action and was
not entitled to any relief. However, along with the written
statement, no document as such was annexed.
22. Points for determination
i. Whether the suit is maintainable in its present form?
ii. Whether the plaintiffs have any valid cause of action for
the suit?
iii. Whether suit is barred under the provisions of section 34
of the Specific Relief Act?
iv. Whether the suit is undervalued or properly valued?
v. Whether the present suit is bad in law owing to
withdrawal of the Title Suit No. 74 of 2015 filed earlier
by the plaintiffs?
vi. Whether two sale deeds bearing no. 705/508 dt.7.2.2014
and 2736 /2125 dt. 17.5.2014 executed by the plaintiffs
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were with payment of consideration resulting into
transfer of valid title and possession in favour of
defendant?
Findings of this Court.
23. On behalf of the plaintiffs, altogether three witnesses were
examined including the plaintiff no.1. Plaintiff no. 1 was examined as
P.W. 1; son of plaintiff no. 2 was examined as P.W. 3 and claims to be
aware of all the transactions. P.W. 2. is Arun Kumar Thakur who is said
to be the general power of attorney holder with whom the plaintiffs have
entered into an agreement of sale dated 12.08.2016 with respect to
Schedule-IV property. Plaintiffs exhibited the following documents: -
X Photo copy of notice dt. 23.8.2016 marked for identification
X/1 Photo copy reply to notice dated 9.9.2016 marked for
identification
Ext. 1 Certified copy of sale deed no. 705/508 dated 7.2.2014
Ext.1/1 Certified copy of sale deed no. 2736/2125 dated 17.5.2014
Ext.2 Letter dt. 22.2.2014
Ext.2/1 Letter dt. 28.3.2014
Ext.2/2 Letter dt. 8.4.2014
Ext.2/3 Letter dt. 1.6.2014
Ext.2/4 Letter dated 15.06.2014
Ext.2/5 Letter dated 01.07.2014
Ext. 3 Agreement for sale dated 12.08.2016
Ext.4 General power of attorney dated 05.04.2017
Ext.5 Notice under Section 142(1) of Income Tax Act, 1961
Ext.6 Certified copy of order passed in ABA No. 103 of 2019
24. On behalf of the defendant, altogether two witnesses were
examined. The sole defendant was examined as D.W. 1 and D.W. 2 is
the son of the sole defendant. Following documents were exhibited on
behalf of the defendant: -
Ext. A Letter dated 16.02.2015
Ext. B Letter dated 30.08.2018
Ext. C Bank statement from 23.01.2014 to 23.01.2015
Ext. D Certified copy of order passed by Civil Judge, Senior
Division I dated 20.08.2016 in T.S. No. 74 of 2018
Ext. E Certified copy of Plaint of T.S. No. 74 of 2016
Ext. F Certified copy of order passed by the Hon’ble High Court in
A.B.P. No. 4166 of 2016
Ext. G Receipt of Kalyani Dey issued on behalf of Shree Balaji
30
2026: JHHC: 7078
Heritage
25. PW-1 (Satyanand Mohan Raju), the plaintiff no.1, filed his
examination-in-chief on affidavit and supported his case with respect to
right, title, interest and possession with him and his brothers in
connection with Schedule I property stating that his father purchased the
Schedule I property. He also stated that in last survey settlement, the
lands were recorded in the name of State of Bihar, now Jharkhand,
showing his father in possession in the records of right. Accordingly, his
father filed Title Suit No.18/2003 of 1973 against State of Bihar, which
was decreed by the court of learned Additional Sub-judge at Jamshedpur
in the year 1976, in favour of his father and the decree was confirmed in
appeal by the High Court and his father was declared as the owner of the
property and thereafter, rent was fixed by the competent authority.
He stated that the plaintiffs transferred the Schedule- II & III Lands in
favour of the defendant vide registered Sale Deed dated 07.02.2014 for
the sale of 206 decimals of land and registered Sale Deed dated
17.05.2014 for the sale of 132 decimals of land.
The registered Sale Deed dated 07.02.2014 was in favour of the
defendant for a total consideration amount of Rs. 62,70,000/- vide four
cheques totaling to Rs.62,70,000/- issued to the plaintiffs which were
mentioned in Sale Deed dated 07.02.2014. However, the plaintiffs did
not present and did not encash the cheques in the bank, as the defendant
had told them that the defendant would intimate when fund will be
available in his account and the cheques remained in the custody of the
plaintiffs. On 22.02.2014, the defendant gave a letter to him informing
that he will pay the total consideration amount only after mutation of the
land is done in his favour as the defendant was informed that the land
cannot be mutated since the land is recorded in the name of State of
Jharkhand and the defendant directed the plaintiffs to return all the
cheques and asked the plaintiffs to take step for cancelation of Sale Deed
as per law. On 28.03.2014, the defendant again gave a letter to him for
returning all the cheques and accordingly, the plaintiffs returned all the
cheques to the defendant and got a receipt dated 08.04.2014 from the
defendant. Similarly, on 01.07.2014, the plaintiffs also returned four
31
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Cheques to the defendant amounting to Rs.9,90,000/- each to the
defendant, which the defendant had given to the plaintiffs on the day of
executing the other sale deed dated 17.05.2014 and got a receipt dated
01.07.2014 from the defendant.
After receipt of the unencashed cheques, the defendant managed to
obtain the original Sale Deed dated 07.02.2014 and original Sale Deed
dated 17.05.2014 from the office of the Registrar at Jamshedpur in
clandestine manner without giving information to the plaintiffs on the
basis of registration slips, which were handed over to the defendant in
good faith by the plaintiffs. He further stated that the plaintiffs had not
delivered the possession of the lands mentioned in Schedule-II & III to
the defendant, although he had handed over the registration slips to the
defendant earlier on the basis of the cheques received by the plaintiffs.
P.W-1 claimed that Sale Deed dated 07.02.2014 and Sale Deed dated
17.05.2014 have no legal value in the eyes of law, as the consideration
was not paid to the plaintiffs and the delivery of possession was not
given to the defendant and therefore, both sale deeds are null & void.
P.W-1 further stated that he sent a legal notice 23.08.2016 to the
defendant asking him to return both original sale seeds and the defendant
replied vide reply dated 09.09.2016 claiming himself to be the owner of
the lands and refusing to return the original sale deeds. P.W-1 further
claimed that the defendant is not entitled to any right, title or interest or
possession of Schedule- II & III lands.
P.W-1 further stated that they have executed another agreement in
favour of another person for transfer of the lands mentioned in Schedule-
IV and they have delivered possession of Schedule-IV lands to him, who
is raising construction of building.
P.W-1 stated that the cause of action for the suit arose on and from
09.09.2016 within the jurisdiction of the learned trial court, when the
defendant refused to return the original sale deeds to them vide his reply
dated 09.09.2016 and claimed himself to be the owner of the Schedule-
II & III lands by virtue of null & void registered sale deeds.
On fresh oath, P.W-1 identified xerox copy of legal notice dated
23.08.2016 as Mark-X and xerox copy of reply dated 09.09.2016 as
32
2026: JHHC: 7078
Mark-X/1 and he exhibited C.C. of Sale Deed No.705/508 dated
07.02.2014 as Exhibit-1, C.C. of Sale Deed No.2736/2125 dated
17.05.2014 as Exhibit-1/1 and letters dated 22.02.2014, 28.03.2014,
08.04.2014, 01.06.2014, 15.06.2014 and 01.07.2014 as Exhibits-2, 2/1,
2/2, 2/3, 2/4, 2/5 (with objection) respectively.
During cross-examination, P.W-1 admitted that both the original sales
deeds are in the possession of the defendant and the plaintiffs have not
filed any suit for cancellation of the sale deeds. He admitted at Para-33
that the disputed land and other lands which were decreed in favour of
his father were examined at the time of assessment of rent. He admitted
at Para-34 that after death of his father, their names were entered into
Register-II in the Circle Office, but he cannot say as to whether he has
filed the mutation documents in court or not. He further admitted at
Para-35 that the land-in-question was currently registered in the Khata of
the Government and therefore, his father had filed a title suit claiming
that the land belonged to him and had obtained a decree and thereafter,
the Government had preferred appeal before the Hon’ble High Court.
The appeal has been dismissed confirming the decree granted to his
father.
He also admitted at Para-36 that he has entered into agreements and sale
deeds with four different persons for developing the land and the
developer is developing the land. At Para-37, he denied the suggestion
that the defendant is carrying out the development. At Para-41, he denied
the suggestion that the cheques mentioned in both sale deeds were
returned because the amount of the cheques were paid to him and the
family members of his brothers. At Para-42, he denied the suggestion
that letter and receipt given by the defendant, which are Exhibits- 2/3 to
2/5, are fake and the same have been made by him. He admitted at Para-
43 & 44 that the defendant had asked them to cancel the sale deeds, but
they have not gone to the registration office for cancellation of the sale
deeds. He further admitted at Para-47 & 48 that a Title Suit No.74/2016
was filed before the learned Civil Judge (Senior Division)-I against the
defendant for cancellation of the two sale deeds, but he has withdrawn
the suit vide order dated 20.08.2016. He also admitted at Para-49 that he
33
2026: JHHC: 7078
does not know as to whether he had taken any permission before
withdrawal of the suit for filing another suit. At Para-50, he denied the
suggestion that the possession has been given to the defendant and the
plaintiffs have got the money. At Para-55, he denied the suggestion that
the sale deeds executed in favour of the defendant is valid.
26. PW-2 (Arun Kumar Thakur) filed his examination-in-chief on
affidavit stating that the plaintiffs have executed (a) Sale Agreement
dated 12.08.2016 in which plaintiffs are the first party and M/s. Tridev
Corporation represented by its partners are second party and the
possession 10 bighas (3 Acres 34 Decimals) of land was delivered to
M/s. Tridev Corporation for raising superstructure and multistoried
building and (b) A General Power of Attorney dated 05.04.2017 was
executed by the plaintiffs in favour of Mr. Arun Kumar Thakur. He
further stated that Sale Agreement dated 12.08.2016 was executed
between the plaintiffs and Tridev Corporation for raising superstructure
of multistoried building, after the defendant had taken back his all eight
cheques given to plaintiffs towards sale consideration and had suggested
the plaintiffs to get the sale deeds cancelled. He further stated that prior
to execution of Sale Agreement and General Power of Attorney, the
plaintiffs and their co-sharers were in possession with their full right,
title and interest without any interference from any corner and from the
date of Sale Agreement dated 12.08.2016, he is in possession with full
right, title and interest without any interference from any corner. He
stated that the claim of plaintiffs is genuine and bonafide.
During cross-examination , he exhibited Sale Agreement dated
12.08.2016 as Exhibit-3 (with objection that witness is only competent to
testify with respect to his signature appearing on the document). He
exhibited the General Power of Attorney dated 05.04.2017 as Exhibit-4
(with objection that witness is only competent to testify with respect to
his signature appearing on the document). He admitted at Para-12 that
both the documents have not been registered.
During cross-examination on behalf of the defendant, he denied the
suggestion at Para-13 that at the time of execution of the agreement
between the plaintiffs and him, Title Suit No.74/2016 was pending in the
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2026: JHHC: 7078
court. He also admitted at Para-17 & 19 that he has filed criminal case
against two Raju brothers, Shivjee Sharma and S. Karthikeya who is son
of Shivjee Sharma and the case is presently pending. He further admitted
at Para-20 that he does not have any report from any government office
regarding his possession over the land for which the Agreement of Sale
was made between him and the plaintiffs. He further admitted at Para-21
that a major portion of the land mentioned in the Agreement of Sale
executed by him matches with the lands mentioned in Sale Deed dated
07.02.2014 and Sale Deed dated 17.05.2014. He further admitted at
Para-24 that the plaintiffs and the defendants have not obtained any
cancellation deed from the Registrar office. At Para-27, he denied the
suggestion that Shivjee Sharma has paid the agreed sale consideration of
the lands mentioned in the sale deeds to the plaintiffs and their relatives
and further replied that not a single rupee has been paid.
27. PW-3 (Dandupole Tarkesh Raju) filed his examination-in-chief
on affidavit stating that he is the son of Plaintiff No.2 . He deposed on
the same lines as P.W-1 and also referred to the documents already
exhibited by the P.W-1. P.W-3 further stated that the plaintiffs executed
Sale Agreement in favour of M/s. Tridev Corporation for transfer of 3.33
acres of lands mentioned in Schedule-II and delivered possession of the
Schedule-II lands to him and the plaintiffs received Rs.40,00,000/-
towards part of the sale consideration of the Schedule-II land. A General
Power of Attorney was also given to Mr. Arun Kuar Thakur, a Managing
Partner of M/s. Tridev INC for the Schedule-II land, who is in
possession of the total land and is raising construction of the building
therein.
During cross-examination, he admitted that Shivram Mohan Raju has
brought up him and he is not his own father, but considers him as his
father. He admitted that his name is not mentioned in Sale Deeds dated
07.02.2014 and 17.05.2014, but he has seen the sale deeds and admitted
that his sign is also not present in the Development agreement and the
Power of Attorney.
35
2026: JHHC: 7078
28. The Defendants examined 02 witnesses, namely, Shivjee
Sharma (DW-1) and son of the defendant, S. Kartikeya (DW-2), in
support of their case.
29. DW-1 (Shivjee Sharma) is the sole defendant and he filed his
examination-in-chief on affidavit. He stated that he has purchased land
measuring total area of 3.38 Acres from the plaintiffs by two registered
sale deeds dated 07.02.2014 and 17.05.2014 area 2.06 Acres for
Rs.62,70,000/- and area 1.32 acres for Rs.39,60,000/- respectively, total
being Rs.1,02,30,000/-. He further stated that the details of the cheques
issued by him to the plaintiffs towards price of the land have been
mentioned in the sale deeds, but the plaintiffs, in order to save
themselves from income tax and also to clear their dues payable to their
creditors, got payments made by him or his son namely, S. Kartikeya to
the plaintiffs and their relatives and creditors. Apart from this, to save
their lives from creditors and their musclemen, the plaintiffs took
security service and asked the defendant to pay security expenses also.
He stated that as per the instructions from plaintiffs, he and his son have
paid about Rs.1,47,62,700/- on following heads in lieu of cheques
mentioned in the two sale deeds and therefore, the plaintiffs returned all
those cheques to him.
(a) Paid to plaintiffs and their family members
Rs.3,20,000/-
plus T.D.S.
Rs.62,700/-
(b) Creditors of plaintiffs Rs.44,00,000/-
(c) Security charges Rs.74,80,000/-
(d) Plaintiff's court expenses in the case lodged
Rs.5,00,000/-
by A.K. Thakur
(e) Payment to A.K. Thakur as per order of
Rs.20,00,000/-
Hon'ble High court
Total Rs.1,47,62,700/-
He further stated that the plaintiffs have filed the suit for return of the
original sale deeds alleging that price of the land was not paid by him
and hence, the sale deeds are null and void and they are entitled to get
back the original sale deeds from him. He claimed that the case of the
plaintiffs is totally false. He further stated that no court has declared the
sale deeds as void and in fact, he has paid an excess amount of about
36
2026: JHHC: 7078
Rs.45,32,700/ to the plaintiffs. He claimed that both the sale deeds are
legal, valid and acted upon and he is in possession of the purchased
lands.
During cross-examination , he admitted at Para-9, 10 & 11 that after
getting the cheques return from the plaintiffs, the entire records of
making payments of money including bank statements and documents
are available with his son and he does not remember the dates. He
further admitted at Para-13 that A.K. Thakur had lodged a case under
Section 420 against him and his son and also against Satyanand Mohan
Raju and Shivram Mohan Raju. He further admitted at Para-16 that
Satyanand Mohan Raju has also filed a criminal case under Sections 420
and 406 against them, which is pending and he is on bail. He further
admitted at Para-18 that after the sale deeds, he had given cheques to
plaintiff no.1. He states at Para-22 & 23 that he is claiming his
ownership and title over the schedule property on the basis of Sale Deed
dated 07.02.2014 and Sale Deed dated 17.05.2014, but the mutation
could not be done in his name and he has not served any notice to the
plaintiffs in this regard. He claimed at Para-24 that all the letters have
been prepared by plaintiff no.1 but he admitted at Para-25 that he has not
filed any case in this regard.
30. DW-2 (S. Kartikeya) is the son of the defendant who filed his
examination-in-chief on affidavit. His father purchased land measuring
3.38 Acres from the plaintiffs by two registered sale deeds in the year
2014 for a total price of Rs.1,02,30,000/- and his father tendered the sale
price of said land by cheques mentioned in the Sale Deeds, but the
sellers/plaintiffs preferred to receive the amount not by realization of
cheques through bank, but by direct cash payment to their creditors and
security reasons; and by part payment to them, their relatives etc. through
cheque and cash. He stated that as against total price of Rs.1,02,3000/-
for 3.38 Acre of land purchased by his father from plaintiffs, a total sum
of Rs.1,47,62,700/- has been paid to the plaintiffs and/or their nominated
person from time to time as instructed and requested by the plaintiffs. He
also stated that by letter dated 16.02.2015, the plaintiffs requested his
father and him to pay upto Rs.19,25,000/- to their eleven creditors named
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2026: JHHC: 7078
in that letter. By another letter dated 30.08.2018, the plaintiffs
acknowledged receipt of Rs.44,00,000/- for their creditors,
Rs.74,80,000/- for their security personnel and Rs.5,00,000/- for court
expenses for him and his father against the price of the land sold by his
father. He stated that the bank statement of himself and his father filed in
this case are public documents and the Bank statement of his father
shows payments of Rs.3,20,000/- to the plaintiffs and their relatives
namely, Satyanand Mohan Raju, Kamala Raju and D.T. Raju during
January, 2014 and February, 2014. He also stated that certified copy of
order dated 20.08.2016 passed by Civil Judge (Sr. Div.)-I, Jamshedpur in
Title Suit No.74/2016 and certified copy of plaint of the same suit are
public documents. He also stated that the certified copy of the common
order dated 28.08.2017 passed by the Hon'ble High Court of Jharkhand,
Ranchi in A.B.A. No.4166/2016 is a public document and in compliance
of said order of the Hon'ble High Court, they (he and his father)
deposited Rs.20,00,000/- (Twenty Lakhs Only) in Court. He exhibited
letter dated 16.02.2015 bearing signature of plaintiff as Exhibit-A (with
objection that the signature is forged and not original). He exhibited
letter dated 30.08.2018 bearing signature of the plaintiff as Exhibit-B
(with objection that the signature is forged and not original). He further
exhibited the computer-generated bank statements from 23.01.2014 to
23.01.2015 of Shree Balajee Heritage, which is his Proprietorship Firm,
as Exhibit-C (with objection that the money has been credited for
different reasons). He exhibited the certified copy of order dated
20.08.2016 passed by Civil Judge (Sr. Div.)-I, Jamshedpur in Title Suit
No.74/2016 as Exhibit-D. He exhibited the certified copy of plaint of
Title Suit No.74/2016 as Exhibit-E. He exhibited the certified copy of the
order dated 28.08.2017 passed by the Hon'ble High Court of Jharkhand,
Ranchi in A.B.A. No.4166/2016 as Exhibit-F.
During cross-examination on behalf of the plaintiffs, he admitted that he
and his father were present at the time of registration of the sale deeds
and his father had given 08 cheques totaling Rs.1,00,30,000/- to the
plaintiffs and the sale deeds were executed between his father and the
plaintiffs. He had prepared Development Agreement with Anand Home
38
2026: JHHC: 7078
Makers whose partners were Arun Kumar Thakur (P.W-2) and U.P.
Baranwal. At Para-21, he said that he does not remember as to when the
Development Agreement was prepared, whether it was prepared earlier
or after both the sale deeds. He admitted at para-23 that Arun Kumar
Thakur had filed the criminal case under Section 420 of IPC against the
plaintiffs and himself and his father. He stated at Para-24 that he
considers the amount of Rs.20,00,000/- given to Arun Kumar Thakur as
per the order of the Hon’ble High Court as part of the consideration
amount against the sale deeds. He further admitted at Para-26 & 27 that
he had executed agreement in favour of other for the plots mentioned in
the sale deeds and he had taken money against sale of the lands and had
handed over the money to the plaintiffs. On showing the receipt of
Balajee Heritage issued from his office, DW-2 exhibited the receipt as
Exhibit-G, but he said that he had returned the said amount. He further
admitted at Para-32 that the plaintiffs are the debtors of the persons to
whom they had told to sell the plots through agreement. He also admitted
at Para-33 that the agreement of selling the plots was between the
plaintiffs and him and the agreement was executed at the instance of
Satyanand Mohan Raju. He further admitted at Para-34 that he has not
filed the document of written permission of Satyanand Mohan Raju for
selling the plots. He stated at Para-36 & 37 that he had given the amount
of Rs.74,80,000/- of Satyanand Mohan Raju as security and he has the
receipt issued by the security persons, but he does not know as to
whether he has filed the receipt or not. He further said at Para-38 that he
had borne the expenses of Rs.5,00,000/- of the case lodged by Arun
Kumar Thakur and he considers the said expenses as part of the
consideration amount. He further admitted at Para-42 that he is working
on the post of Superintendent in Railway and he cannot do any business
during the period of his service.
31. Admittedly, the suit was filed seeking a direction upon the
defendant to return the original copy of the registered sale-deeds dated
07.02.2014 and 17.05.2014 alleging that the deeds are itself null and void
on account of non-payment of consideration amount.
39
2026: JHHC: 7078
32. So far as the consideration amount with regard to sale deed dated
07.02.2014 is concerned, it was relating to the vacant land in schedule II
of the plaint and altogether four cheques all dated 07.02.2014 drawn on
SBI, Jugsalai totalling Rs. 62,70,000/- were mentioned in the deed itself
and it was also mentioned therein that the consideration amount was paid
through the aforesaid cheques and the plaintiffs delivered the title and
possession to the defendant from the date of the execution of the deed
upon receipt of the consideration amount. It is not in dispute that the
cheques were handed over to the plaintiffs in the date of execution of the
sale deed.
33. So far as other sale deed dated 17.05.2014 is concerned, the same
was also in relation to the vacant land in Schedule-III of the plaint. In the
sale deed dated 17.05.2014, similar averments were made as that of sale
deed dated 07.02.2014 and the consideration amount as stated to have
been paid was mentioned in the sale deed and it was through four
cheques all dated 17.05.2014 totalling Rs. 39,60,000/- and the plaintiffs
delivered the title and possession to the defendant from the date of the
execution of the deed upon receipt of the consideration amount. It is not
in dispute that the cheques were handed over to the plaintiffs in the date
of execution of the sale deed.
34. It is the case of the plaintiffs that the cheques in relation to both
the sale deed dated 07.02.2014 and 17.05.2014 remained in their custody
and the defendant issued letter dated 22.02.2014 with respect to the sale
deed dated 07.02.2014 stating that the consideration amount would be
paid to the plaintiffs only after mutation is done and the defendant was
informed by the authorities that the mutation of the land cannot be done
as the land is recorded in the name of State of Jharkhand. It is further
case of the plaintiffs that the defendant on 28.03.2014 asked the plaintiffs
to return the cheques immediately otherwise legal action will be taken
and consequently the plaintiffs returned all the cheques to the defendant
vide letter dated 08.04.2014 and the defendant had put his signature in
the letter dated 08.04.2014 as a token of receipt of the cheques.
35. The specific case of the plaintiffs is that the mutation was never a
pre-condition for execution and registration and payment of sale
40
2026: JHHC: 7078
consideration in connection with the sale deed dated 07.02.2014 and the
plaintiffs did not receive the consideration with respect to the sale deed
dated 07.02.2014.
36. Similar was the situation in connection with other sale deed dated
17.05.2014 and similar letters were exchanged in connection with the
sale deed dated 17.05.2014 and the plaintiffs had returned all the cheques
mentioned in sale deed dated 17.05.2014 vide letter dated 01.07.2014
and the defendant had put his signature as a token of proof of receipt of
cheques in connection with sale deed 17.05.2014.
37. It was also the case of the plaintiffs that the defendant managed to
obtain the original sale deeds from the Registrar at Jamshedpur in a
clandestine manner on the basis of registration slips which were handed
over to the defendant in good faith by the plaintiffs. It was further
grievance of the plaintiffs that the possession of the scheduled land in
Schedule-II and Schedule-III was not delivered to the defendant although
the plaintiffs had handed over the registration slips to the defendant on
the basis of receipt of the cheques by the plaintiffs as mentioned in the
sale deeds. It was asserted that the aforesaid two sale deeds were null and
void for want of consideration and the possession was also not delivered
to the defendant.
38. The cause of action arose when the defendant refused to return the
original sale deeds to the plaintiffs and claimed to be the owner of the
property. The plaintiffs demanded the sale deeds vide legal notice dated
23.08.2016 and the defendant refused to return the sale deeds vide letter
dated 09.09.2016.
39. On the other hand, the specific case of the defendant was that the
suit is barred under the provision of Specific Relief Act and the suit was
under-valued at Rs. 36,00,000/- although the total amount of money
involved in the two sale deeds was Rs. 1,02,30,000/- (Rs. 62,70,000/- +
Rs. 39,60,000/-) and it was asserted that the plaintiffs assumed that the
sale deeds are null and void primarily to evade payment of full ad-
valorem court fees.
40. It was also asserted that the plaintiffs had filed a Title Suit No.
74/2015 seeking cancellation of the two sale deeds and paid ad-valorem
41
2026: JHHC: 7078
court fees, but withdrew the Title Suit unconditionally and this fact was
suppressed by the plaintiffs.
41. It was the case of the defendant that it was agreed between the
parties that the cheques issued by the defendant mentioned in the sale
deeds dated 07.02.2014 and 17.05.2014 will be encashed by the plaintiffs
only after mutation in respect of the lands mentioned in the two sale
deeds is done and in pursuance of the same, the plaintiffs retained the
cheques with them. However, the defendant contended that the entire
consideration amount of Rs. 1,02,30,000/- has been paid to the plaintiffs
and/or their relatives as per their requirements and directions partly by
cash and partly by bank transactions on receipt of the aforesaid cheques
mentioned in the two sale deeds and that is why the plaintiffs had neither
filed any money suit claiming the consideration mentioned in the sale
deeds nor proceeded with Title Suit No. 74/2015.
42. It has been further asserted that the plaintiffs had voluntarily given
the registration slip with respect to the two sale deeds and also delivered
the physical possession of the land so the defendant collected the original
sale deeds from the registration office on completion of registration and
further applied for mutation of the land and the plaintiffs having
receiving the entire consideration amount, though not through the
cheques mentioned in the sale deed, but in the manner indicated above,
they are estopped from challenging the validity of the sale deeds. It was
asserted that the defendant had commenced construction of several
residential premises over the property.
43. It has also been asserted that the title to the land pass with the
execution and registration of the sale deeds and the vendor cannot retain
any right over the land which is already transferred by registered sale
deeds. It has also been asserted that the sale of immovable property is
complete even on promise to pay price of the land and that the defendant
had already paid the full sale price of the land. It has also been asserted
that the plaintiffs out of their own wish did not produce the cheques
mentioned in the two sale deeds to the bank for realization of payment of
the amount mentioned therein. However, the defendant being a bonafide
purchaser paid the entire value of the land as per the request and
42
2026: JHHC: 7078
requirement of the plaintiffs in cash and bank transaction on receiving
back the cheques in question.
44. It has also been asserted that the land in Schedule-IV was never in
possession of the plaintiffs and its major portion is in possession of the
defendant since the date of execution and registration of the two sale
deeds and the defendant is raising construction of building in Schedule-II
and Schedule-III land and admittedly Schedule-IV includes major
portion of Schedule-II and Schedule-III land. It has also been asserted
that except the defendant, no other person is making any construction on
any part of Schedule-I land.
45. With respect to the cause of action, the defendant stated in para 13
that the title to the land passes with the execution and registration of the
sale deeds. Thereafter, the transferor cannot retain any right over the land
already transferred by registered sale deeds. The sale of immovable
property is complete even on promise to pay the price of the land. The
defendant has already paid the full sale price of the lands purchased by
him. So, the notice dated 23.08.2016 from or on behalf of the plaintiffs is
totally absurd and illegal. However, the defendant did not deny the
receipt of notice from the plaintiffs dated 23.08.2016.
46. From perusal of the plaint and written statement and also the
aforesaid two sale deeds dated 07.02.2014 (Exhibit-1) and 17.05.2014
(Exhibit-1/1), it is not in dispute that the sale consideration was
specifically mentioned in the sale deeds which were through number of
cheques all containing the dates on which the sale deeds were executed.
Admittedly, nothing has been mentioned in the sale deeds that the
cheques would be enchased only after mutation is done with respect to
the vended properties. However, it is the case of the plaintiffs that when
mutation could not be done, the defendants asked for return of the
cheques which were duly returned to the defendant and it is the case of
the defendant that it was agreed between the parties that the cheques
would be encashed only after mutation is done.
47. It was the case of the defendant that the cheques would be
encashed by the plaintiffs only after mutation is done and pursuant
thereto, the plaintiffs retained the cheques and in spite of that, the
43
2026: JHHC: 7078
defendant paid the entire consideration money of Rs. 1,02,30,000/- to the
plaintiffs and/or their relatives as per the requirement and direction of the
plaintiffs partly by cash and partly by bank transactions on receipt of the
aforesaid cheques mentioned in the two sale deeds. This specific
statement has been made in paragraph 10 of the written statement, which
is quoted as under: -
“ 10. That with regard to the statements made in para .: 8 to
13 of the plaint it is submitted that although it was agreed
between the parties that the cheques issued by defendant
and mentioned in sale deeds dated 07.02.14 and 17.05.14
will be en-cashed by the plaintiff only after mutation in
respect of the lands mentioned in the said two deeds and in
pursuance of the same the plaintiffs retained the those
cheques with them; still the defendant paid the entire
consideration money of Rs. 1,02,30,000/- to the plaintiffs
and/or their relatives as per their requirement and
direction partly by cash and partly by bank transaction on
receipt of the aforesaid cheques mentioned in the two sale
deeds. Therefore, none of the sale deeds is hollow but
entire consideration money for those two deeds was paid in
toto.
This is why the plaintiff neither filed Money Suit claiming
the consideration money mentioned in the said Sale deeds
nor proceeded with earlier Title suit no.: 74/2015 as
mentioned above for cancellation of those deeds.”
(emphasis supplied)
48. In view of the aforesaid specific stand raised by the defendant in
the written statement, it is clear that though the consideration amount as
mentioned in the sale deeds referred to different cheques and all cheques
were of the date of the execution of the sale deeds, but the plaintiffs had
returned all the cheques to the defendant as it allegedly agreed by the
plaintiffs that the cheques would be encashed only after mutation.
49. It is further case of the defendant that the plaintiffs voluntarily
gave the registration slips with respect to the two sale deeds and also
physical possession of the land at the time of execution of the sale deeds
and admittedly the defendant, as per the written statement, collected the
original sale deeds from the registry office. The defendant claimed that
they applied for mutation which was refused by the concerned authority
by stating that the land belongs to the state of Jharkhand.
Point of determination nos. (i) and (ii)
i. Whether the suit is maintainable in its present form?
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ii. Whether the plaintiffs have any valid cause of action for the
suit?
50. This Court finds that the specific case of the plaintiffs was that no
consideration had passed pursuant to the two sale deeds as the cheques
mentioned therein were returned to the defendant at the insistence of the
defendant and hence the sale deeds were null and void and the plaintiffs
were entitled to return of the registered sale deeds which were collected
by the defendant from the registry office on the basis of registration slips
which were handed over by the plaintiffs to the defendant in good faith
upon registration of the sale deeds but the cheques were returned by the
plaintiffs to the defendant at the insistence of the defendant subsequent to
the registration of the sale deed. On the other hand, the case of the
defendant was that it was agreed that the plaintiffs would encash the
cheques only after the property is mutated in the name of the defendant
but mutation was refused by the concerned authority on the ground that
the property belongs to the State of Jharkhand and hence the cheques
were returned by the plaintiffs but the entire consideration amount was
subsequently paid by the defendant to the plaintiffs or their creditors or
relatives upon instructions of the plaintiffs, partly through cash and
partly through bank transactions.
51. The learned trial court while deciding issue no. (i) held that the
suit was not maintainable by observing that the practice of “Ta Khubzul
Badlain” (the title passes only when there is exchange of equivalents) is
applicable in the State of Bihar and has refused to apply the same to the
State of Jharkhand. The learned trial court while making such
observation has failed to consider that such practice being recognized by
different judicial pronouncements in the undivided State of Bihar and
cannot cease to exist when it comes to the State of Jharkhand which has
been created from the then State of Bihar in the year 2000. Such finding
and observation of the learned trial court cannot be sustained in the eyes
of law.
52. However, the learned trial court also observed that the practice of
“Ta Khubzul Badlain” is not applicable in the present case as the
defendant was admittedly in possession of the sale deeds which he
received upon presentation of the registration slips in the registry office
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and the aforesaid practice of “Ta Khubzul Badlain” required retention of
at least registration slips / sale deeds with the seller. The learned court
held that the aforesaid judgment does not help the plaintiffs.
53. This Court is of the considered view that merely because the
registration slips were with the defendant and the defendant had procured
the original sale deeds from the Registry Office, the same does not
satisfy the requirement of “Ta Khubzul Badlain” as the said principle
primarily means that the title passes only when there is ‘exchange of
equivalents’. The learned trial court has failed to consider that as per the
admitted case of the parties, the consideration as mentioned in the sale
deeds, which were said to have been paid through cheques, were never
paid through the cheques mentioned in the sale deeds. Rather, the
cheques were returned to the defendant at their insistence and the
registration slips were said to have been handed over to the defendant
earlier immediately upon registration and receipt of the cheques
mentioned in the sale deeds. It is not the case of the defendant that the
registration slips were retained by the plaintiffs and upon payment of
equivalent through other mode the registration slips were handed over to
the defendant and then the defendant obtained the original deeds from
the registry office.
54. Exhibit-1 and 1/1 are the registered sale deeds, wherein the details
of consideration amount has been mentioned to have been paid by
cheques. The plaintiffs had returned 8 cheques mentioned in Exhibit-1
and 1/1 in the light of the letters dated 22.02.2014 (Exhibit-2),
28.03.2014 (Exhibit-2/1), 01.06.2014 (Exhibit-2/3) and 15.06.2014
(Exhibit-2/4). Further, the return was also acknowledged by the
defendant which is also evident from the acknowledgement in the letter
dated 08.04.2014 (Exhibit-2/2) and 01.07.2014 (Exhibit-2/5). It is
apparent from the written statement in paragraph 10 that the cheques
were admittedly returned to the defendant and it was the specific case of
the defendant that in spite of return of cheques to the defendant, the
entire consideration amount was subsequently paid by the defendant to
the plaintiffs/their relatives or creditor in cash/bank transactions. It
stands admitted by the defendant in the written statement that the
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consideration amount, which is said to have been paid and mentioned in
the registered sale deed through cheques, was never paid to the plaintiffs
through those cheques as mentioned in the sale deeds and the same were
never encashed by the plaintiffs and were returned to the defendant.
55. It is important to note that the learned trial court also observed
that though the mode of payment of sale consideration was admitted to
have been paid by way of payment to the creditors and their relatives by
the defendant, but this plea of the defendant was rejected on the ground
that any oral evidence contrary to the sale deeds (Exhibit-1 and 1/1)
documenting the payment of sale consideration is excluded by the
documentary evidence. Thus, the learned trial court has considered the
sale deeds as sacrosanct by referring to Section 92 of the Evidence Act
and observed that both title and possession was transferred to the
defendant and has thereby failed to consider that even as per the admitted
case of the defendant, the sale consideration through cheques as
mentioned in the sale deeds, being the mode and manner of payment of
consideration, was not paid by the defendant and the defendant claimed
that they had paid the consideration amount subsequently to the creditors
of the plaintiffs and their relatives through cash/bank transactions. The
learned trial court failed to consider that admittedly the sale
consideration through cheques as mentioned in the sale deeds did not
pass to the plaintiffs. The learned trial court also observed that no
instrument of cancellation of the sale deeds was brought on record by the
plaintiffs and has thereby failed to consider that the sale deeds were void
for want of consideration and in view of the judgment passed by the
Hon’ble Supreme court in the case of Prem Singh versus Birbal
reported in (2006) 5 SCC 353 , if a sale deed is void, no relief to set it
aside is required. The judgment passed in the case of Prem Singh
(supra) has also been referred to in the recent judgment of Hon’ble
Supreme Court reported in 2025 SCC OnLine SC 1961 (supra).
56. The learned trial court has wrongly held that there was nothing to
show that the deeds were wrongfully taken by the defendant.
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57. In the aforesaid circumstances, this Court is of the considered
view that the suit as framed seeking return of the original sale deeds was
maintainable.
58. Further, the plaintiffs had issued legal notice prior to filing of the
suit demanding the return of the registered sale deeds and the receipt of
the registered notice seeking return of the deeds is not in dispute in the
written statement. It was for the defendant to prove that the consideration
was paid in connection with the sale deeds as it was admitted case of the
parties that the consideration was not paid through the cheques
mentioned in the sale deeds although in the sale deeds it was mentioned
that the consideration amount was paid through the cheques mentioned
therein. It is important to note that the consideration was neither said to
have been partly paid nor the payment was deferred and there was no
stipulation in the deeds that the cheques would be encashed only after
mutation is done.
59. This court is of the considered view that the learned trial court
erred in holding that the suit was not maintainable and there was no
cause of action and failed to consider that it was admitted case of the
defendant that the consideration was not paid through cheques as
mentioned in the sale deeds and the cheques were returned to the
defendant. It was for the defendant to prove that how and when the
consideration was paid and whether the registration slips were handed
over to the defendant in exchange of the equivalent. This aspect of the
matter has been further discussed in details while deciding the point of
determination no. (vi) regarding the sale deeds involved in this case. It is
also important to note that the title of the plaintiffs and execution of
registered deeds in favour of the defendant is not in dispute. The
plaintiffs claimed that the deeds were void for want of consideration.
60. In view of the aforesaid facts, this Court is of the considered view
that the suit was maintainable in the present form and the plaintiffs had a
valid cause of action.
61. Accordingly, the point for determination nos. (i) and (ii) is
decided in favour of the appellants-plaintiffs and against the
respondent-defendant .
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Point of determination no. iv-
Whether the suit was undervalued or properly valued and whether
the required court fees was paid?
62. This court finds that the suit was valued at 32 Lakh but court fees
of Rs.250/- was paid by the plaintiffs. Upon perusal of the relief prayed
for, the plaintiffs had only prayed for the return of the two original sale
deeds involved in the present case. The learned trail court held that the
suit was valued at Rs. 36 Lakh and that the two sale deeds marked as
Ext. 1 and 1/1 were executed for a total consideration amount of Rs.
1,02,30,000/- as mentioned in the sale deeds and hence the suit was not
undervalued.
63. So far as payment of court fees is concerned, the learned trial
court held that since only return of aforesaid sale deeds were sought and
no recovery of possession was sought, a total of only Rs. 250/- as court
fees has been paid. However, the learned trial court held that since the
suit was not maintainable the issue was decided accordingly.
This Court has held while deciding point of determination no. (i) and (ii)
that the suit was maintainable and the plaintiffs had a valid cause of
action. This Court is of the considered view that the learned trial court
has rightly held that the suit was not under-valued and since only return
of aforesaid sale deeds were sought and no recovery of possession was
sought, a total of only Rs. 250/- as court fees has been paid. This Court
is of the considered view that since only return of aforesaid sale deeds
was prayed in the plaint and neither recovery of possession nor a
declaration that the sale deeds were void was sought, the ad-valorem
court fees was not payable and a total of only Rs. 250/- paid as court fees
was sufficient. The case of the plaintiffs was that since the consideration
was not paid in terms of the sale deeds, the sale deeds were void but no
declaration was sought to declare the sale deeds as void and primarily the
prayer was to return the sale deeds by submitting that the sale deeds were
void. This Court is of the considered view that the suit was properly
valued and the court fees was also properly paid as neither a relief was
prayed seeking a declaration that the sale deeds were void nor any relief
seeking recovery of possession was prayed for in the plaint and the
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prayer was to return the original sale deeds. The point of determination
no. (iv) is accordingly decided in favour of the plaintiffs- appellants
and against the defendant-respondent.
Point of determination no. (iii)
Whether the suit is barred under section 34 of the Specific relief Act,
1963?
The learned trial court has held that the suit was not barred under Section
34 of the Specific relief Act since in the present case the plaintiffs has
not sought a declaration but has only sought a relief of return of the two
sale deeds since it was not open to the plaintiffs to deny the recitals of
the sale deeds which mentioned that title and possession passed to the
defendant upon execution of sale deed and upon payment of
consideration through cheques.
In the judgement reported in (1973) 2 SCC 60 (supra) relied upon by the
defendant, the plaintiffs sought a declaration that they are the sole
owners of the suit property but did not claim recovery of possession, the
suit was held to be barred under section 42 of the Specific Relief Act,
1877 (corresponding to section 34 of the Specific Relief Act, 1963). In
view of the relief prayed for in this case seeking return of the two
original sale deeds by asserting that the deeds were void, the said
judgement does not apply. If the deeds are void, the recitals of the deeds
are of no consequence.
In the judgement passed by the Hon’ble Supreme Court reported in
(2014) 14 SCC 502 (supra), it has been held that a mere declaratory
relief without consequential relief was barred under section 34 of the
Specific Relief Act, 1963 and in the said case admittedly the defendant
was in possession of the suit premises. In the present case, the plaintiff is
not seeking any declaratory relief but is only seeking return of the
original sale deeds, hence, the suit was not barred under section 34 of the
Specific Relief Act, 1963.
64. By referring to the judgement passed by the Hon’ble Supreme
Court reported in (2011) 6 SCC 508 (Noida Entrepreneurs Association
vs. Noida & Others) paragraph 25, it has been submitted by the learned
counsel of the defendant that it has been held by the Hon’ble Supreme
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Court that whenever a thing is prohibited, it is prohibited, whether done
directly or indirectly and it has been submitted by the learned counsel for
the respondent that although there was no plea seeking declaration of
title, still the proviso to Section 34 will come into play as once the sale
deeds are declared void, the title would naturally go back to the plaintiffs
and that the plea of declaration of the sale deeds are void amounts to
seeking a declaration of title and therefore proviso to Section 34 is very
much attracted in the present case. This court is of the view that the
aforesaid argument is misplaced. It has been held in the judgement
passed in the case of Prem Singh versus Birbal reported in (2006) 5
SCC 353 and followed in Shanti Devi versus Jagan Devi , reported in
2025 SCC Online SC 1961 that when the document in question is void
ab initio/or void, a decree for setting aside the same would not be
necessary since such a transaction would be non-est in the eyes of law,
owing to it being a nullity.
65. In the present case, a prayer was made seeking return of the sale
deeds and a plea was raised that the sale deeds were void-ab-initio for
want of consideration as the cheques mentioned in the sale deed were
returned to the defendant at the instance of the defendant and the
defendant in the written statement, paragraph 10, admitted the fact of
return of cheques and raised a plea that the consideration was
subsequently paid to the plaintiffs/their relatives through cash/banking
transaction and thus admitted that the consideration as per the sale deeds
through cheques, mentioned in the sale deeds, were not paid. In such
circumstances, there was no need for the plaintiffs to seek a declaration
that the sale deeds were void as apparently, they were nullity in the eyes
of law as consideration did not pass as per the terms of the sale deeds
having recitals that the consideration was paid through the cheques. The
aforesaid aspect of the matter has not been properly considered by the
learned trial court. This Court is of the considered view that the relief
prayed in the present suit did not amount to seeking declaration of title
by the plaintiffs as the plaintiffs simply prayed for return of the void sale
deeds and accordingly the suit was not barred by Section 34 of the
Specific Relief Act, 1963 on account of the fact that the plaintiffs did not
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seek recovery of possession. The point of determination no. (iii) is
accordingly decided in favour of the plaintiffs (appellants) and against
the defendant (respondent).
Point of determination no. v.
Whether the present title suit is bad owing to withdrawal of the title
suit no. 74 of 2015 filed earlier by the plaintiffs?
66. This Court finds that the earlier suit was filed seeking cancellation
of the sale deeds and the plaint has been marked as exhibit-E and in the
said title suit also the plaintiffs had taken a specific plea in paragraph 13
that the plaintiffs did not receive the consideration money by cheques as
mentioned in the sale deeds and the sale deeds were null and void and
also asserted in paragraph 14 that the plaintiffs were in possession of the
property and the sale deeds were not acted upon. The said suit was
withdrawn vide order dated 20.08.2016 (exhibit- D) at the very initial
stage with a liberty to file a fresh one in respect to the same cause of
action and consequently, the present suit was filed. However, in this suit
no relief was prayed to declare the sale deeds null and void and it was
pleaded that the sale deeds were without consideration and hence they
were null and void. This Court finds that the present suit was not bad
owing to withdrawal of the Title Suit No. 74 of 2015 filed earlier by the
plaintiffs once the liberty was given to the plaintiffs to file a fresh suit
arising from the same cause of action. The law is well settled that if the
deed is void-ab-initio or is void, the same need not be set-aside as it
would be a nullity in the eyes of law [reference Prem Singh versus
Birbal reported in (2006) 5 SCC 353] . The learned trial court held that
the earlier plaint, Exhibit E showed that the same was filed for
cancellation of the very sale deeds that was sought to be returned by way
of the present suit and held that since the present suit has been held to be
not maintainable while deciding issue no.(i) hence this issue was decided
accordingly. This court has already held as above while considering
point of determination no. (i) and (ii) that the present suit is maintainable
and there was a valid cause of action to file the present suit. In view of
the order seeking withdrawal of the earlier suit giving liberty to the
plaintiffs to file a fresh suit on the very same cause of action, this Court
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holds that the present suit is not bad owing to withdrawal of the title suit
no. 74 of 2015 filed earlier by the plaintiffs. The point of determination
no. (v) is accordingly decided in favour of the appellants (plaintiffs)
and against the respondent (defendant).
Point of determination no. (vi)
Whether the two sale deeds bearing no. 705/508 dated 07.02.2014 and
2736/2125 dated 17.05.2014 executed by the plaintiffs were with
payment of consideration resulting into transfer of valid title and
possession in favour of the defendant?
67. This Court finds that the P.W-1 has fully supported his case and
stood the test of cross examination. The execution of the two sale deeds
are not in dispute and it is also not in dispute that the sale deeds
mentioned the payment of consideration through 4 cheques each and
upon registration and receipt of the cheques, the registration slips were
handed over to the defendant, but the cheques were not presented for
encashment at the insistence of the defendant and the defendant asked
the plaintiffs to return the cheques on the ground that the mutation was
denied and the cheques were duly returned to the defendant. It has been
asserted that the original sale deeds were taken by the defendant on the
basis of registration slips without informing the plaintiffs. It is not in
dispute that the cheques mentioned in the sale deeds were returned and
the P.W-1 denied receipt of the consideration amount in connection with
the sale deeds and asserted that the sale deeds were null and void. He
admitted that Title Suit No.74/2016 was filed against the defendant for
cancellation of the two sale deeds, but the suit was withdrawn vide order
dated 20.08.2016 and he did not know as to whether he had taken any
permission before withdrawal of the suit for filing another suit. However,
the order of withdrawal of the previous suit and also the plaint of the
previous suit has been exhibited by the defendant. The P.W-2 has
supported the case of the plaintiffs and claimed that the plaintiffs have
executed (a) Sale Agreement dated 12.08.2016 with M/s. Tridev
Corporation represented by its partners and the possession of 10 bighas
(3 Acres 34 Decimals) of land was delivered to M/s. Tridev Corporation
for raising superstructure and multistoried building and (b) A General
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Power of Attorney dated 05.04.2017 was executed by the plaintiffs in
favour of Mr. Arun Kumar Thakur. He stated that Sale Agreement dated
12.08.2016 was executed after the defendant had taken back his all eight
cheques given to the plaintiffs towards sale consideration and had
suggested the plaintiffs to get the sale deeds cancelled. He exhibited the
sale agreement dated 12.08.2016 as exhibit-3 (with objection that witness
is only competent to testify with respect to his signature appearing on the
document) and also exhibited the General Power of Attorney dated
05.04.2017 as Exhibit-4 (with objection that witness is only competent to
testify with respect to his signature appearing on the document) and thus
both the documents contained the signature of this witness. He admitted
that a major portion of the land mentioned in the Agreement of Sale
executed by him matches with the lands mentioned in Sale Deed dated
07.02.2014 and denied the suggestion that the defendant has paid the
agreed sale consideration of the lands mentioned in the sale deeds to the
plaintiffs and their relatives and asserted that not a single rupee has been
paid by the defendant. P.W-3 has also fully supported the case of the
plaintiffs as that of P.W-1 and he is neither the signatory of the
agreement of sale with M/s. Tridev in which P.W-2 is the managing
partner and asserted that M/s. Tridev INC was in possession of Schedule-
II land.
68. On the other hand, this court finds that the D.W-1 and 2 have
admitted that the two sale deeds were executed for consideration amount
totaling Rs.1,00,30,000/- and the consideration consisted of total of 8
cheques but the cheques were returned and the consideration was not
paid through the cheques. They stated that as per the instructions from
plaintiffs, they have paid about Rs.1,47,62,700/- on different heads, that
is, paid to plaintiffs and their family members plus T.D.S, Creditors of
plaintiffs, Security charges, Plaintiff's court expenses in the case lodged
by A.K. Thakur and Payment to A.K. Thakur as per order of Hon'ble
High Court in lieu of cheques mentioned in the two sale deeds and
therefore, the plaintiffs returned all those cheques to D.W-1. The
defendant exhibited letter dated 16.02.2015 bearing signature of plaintiff
as Exhibit-A (with objection that the signature is forged and not original)
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and also letter dated 30.08.2018 bearing signature of the plaintiff as
Exhibit-B (with objection that the signature is forged and not original)
and these documents did not have any foundational pleadings in the
written statement and no steps were taken by the defendant to get the
signature of the plaintiff on exhibit A and B examined through an expert
and thus exhibit A and B were not proved. Moreover, the list of persons
mentioned in the letter dated 16.02.2015, total 11 in number, were not
produced as witnesses and no such details were averred in the written
statement also. There was no foundational pleading with respect to the
computer-generated bank statements from 23.01.2014 to 23.01.2015 of
Shree Balajee Heritage as Exhibit-C and the same was marked with
objection that the money has been credited for different reasons. The
certified copy of the order dated 28.08.2017 passed by the Hon'ble High
Court of Jharkhand, Ranchi in A.B.A. No.4166/2016 (filed by the
plaintiffs) and A.B.A. No. 3245 of 2016 (filed by the defendant and his
son) disposed of by common order by the High Court has been marked
as Exhibit-F by which an amount of Rs. 20,00,000/- was directed to be
paid to Arun Kumar Thakur (P.W-2), one of the partners of M/s Anand
Home Makers which was just a condition of grant of Anticipatory Bail.
D.W.-2, the son of the defendant has stated during his cross examination
that he had prepared Development Agreement with Anand Home Makers
whose partners were Arun Kumar Thakur (P.W-2) and U.P. Baranwal
and he did not remember as to when the Development Agreement was
prepared, whether it was prepared earlier or after both the sale deeds and
he also admitted that Arun Kumar Thakur had filed a criminal against the
plaintiffs and himself and his father and he considers the amount of
Rs.20,00,000/- given to Arun Kumar Thakur as per the order of the
Hon’ble High Court in the aforesaid A.B.As as part of the consideration
amount against the sale deeds although the development agreement as
claimed by the D.W-2 was entered between D.W-2 and Arun Kumar
Thakur (P.W-2) and U.P. Baranwal. The development agreement has not
been exhibited by the defendant even those persons who are said to have
received the payments have not deposed before the court and the same
has not been substantiated through cogent evidence by the defendant. In
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view of the aforesaid discussions, this Court is of the considered view
that the defendant has not proved that the consideration amount with
respect to the two sale deeds were subsequently paid to the plaintiffs
through different creditors and relatives.
69. This Court finds that as per the sale deeds, there was no condition
that the cheques would be encashed only after the mutation is done, but it
appears from the aforesaid materials that after execution of the sale deeds
and upon receipt of the cheques, the plaintiffs gave the registration slips
to the defendant who collected the original sale deeds from the
registration office and then applied for mutation. However, when the
authority refused mutation by alleging that the property stands in the
name of Government of Jharkhand, the plaintiffs returned all the cheques
to the defendant at the insistence of the defendant. It is not in dispute
from the side of the defendant that the cheques were duly returned by the
plaintiffs. The sale deeds neither refer to deferred payment of
consideration amount nor any such condition was put in the sale deeds
that the cheques will be encashed only after the mutation is done. The
sale deeds were clear that the consideration stood paid through the
cheques mentioned in the sale deeds and admittedly the cheques were
handed over to the plaintiffs on the date of execution of the sale deeds.
However, on account of the aforesaid reasons, the cheques were returned
to the defendant at the insistence of the defendant and therefore the
consideration which was mentioned in the sale deeds and the manner in
which the consideration was to be paid as mentioned in the sale deeds
never materialized. Consequently, the consideration said to have been
paid as mentioned in the sale deeds did not pass to the plaintiffs . In
absence of consideration having been passed in terms of the sale deeds,
the sale deeds itself are null and void. Since the sale deed did not refer to
any future payment of consideration, the case of the defendant that they
paid the entire consideration amount subsequently amounting to Rs.
1,02,30,000/- to the plaintiffs and/or their relatives as per their
requirement and direction partly by cash and partly by bank transactions
on receipt of the cheques mentioned in the two sale deeds is of no
consequence and this is over and above the fact that payment of
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consideration in the aforesaid manner was not proved by the defendant
and even the learned trial court did not rely upon the claim of the
defendant that the consideration was paid in the aforesaid manner. Rather
the learned trial court was of the view that the consideration was paid in
terms of the sale deed itself and the title and possession passed upon
execution of the sale deeds as mentioned in the sale deeds and the
defendant had also received the original sale deeds from the registration
office and held that the sale was complete upon registration of the sale
deeds. While holding as aforesaid, the learned trial court failed to take
into consideration that it stood admitted that the consideration was not
paid through the cheques mentioned in the registered sale deeds and thus
the consideration did not pass as contemplated in the sale deeds and it
was not the case of the defendant that upon payment of the consideration
later on the registration slips were handed over to him and then he took
the originals from the registration office.
70. On account of the admitted fact that the consideration in terms of
the sale deeds did not pass, there cannot be any doubt that the sale deeds
were null and void as the sale deeds stipulated that the consideration was
paid through the cheques mentioned therein and any other mode of
payment of consideration was not contemplated in the sale deeds nor the
payment of consideration was deferred in the sale deeds nor subsequent
payment of consideration as claimed by the defendant has been proved
by the defendant.
71. Heavy reliance has been placed by the learned counsel for the
defendant on the judgement passed in the case reported in (2011) 6 SCC
555 (supra) and it has been asserted that upon receipt of the registration
slips, the sale was complete and admittedly the defendant obtained the
original registered deeds from the registry office on the strength of the
registration slips. On the other hand, the plaintiffs have tried to interpret
the aforesaid judgment in their own favour and have submitted that
receipt of registration slips and obtaining the original sale deeds are not
conclusive and is of no consequence when the consideration did not pass
in terms of the sale deeds as mentioned to have been paid in the sale
deeds.
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72. In the judgment passed by the Hon’ble Supreme Court reported in
(2011) 6 SCC 555 (supra) , the case was arising out of a title suit decided
prior to creation of State of Jharkhand and was arising from the then
State of Bihar.
The Hon’ble Supreme Court referred to the earlier judgments reported in
(1998) 7 SCC 498 and (2009) 4 SCC 193 and held in paragraph 13 that
where the sale deed recites that on receipt of total consideration by the
vendor, the property was conveyed and possession was delivered, the
clear intention is that title would pass and possession would be delivered
only on payment of the entire sale consideration. It has also been held
that therefore, where the sale deed recited that on receipt of entire
consideration, the vendor was conveying the property, but the purchaser
admits that he has not paid the entire consideration (or if the vendor
proves that the entire sale consideration was not paid to him) title in the
property would not pass to the purchaser.
However, the Hon’ble Supreme Court considered the prevalent practice
in Bihar known as “Ta Khubzul Badlain” [that is, title to the property
passing to the purchaser only when there is “exchange of equivalents”].
The Hon’ble Supreme Court explained the practice by observing that as
per this practice, where a sale deed recites that entire sale consideration
has been paid and possession has been delivered, but the Registration
Receipt is retained by the vendor and possession of the property is also
retained by the vendor, as the agreed consideration (either full or a part)
is not received, irrespective of the recitals in the sale deed, the title would
not pass to the purchaser, till payment of the entire consideration to the
vendor and the Registration Receipt is obtained by the purchaser in
exchange. In such cases, the registration receipt is retained by the vendor
and is not given to the purchaser and the vendor may retain the
registration receipt till the payment of consideration is made and when
the purchaser pays the price (that is the whole price or part that is due) on
or before the agreed date, he receives in exchange, the registration
receipt from the vendor entitling him to receive the original registered
sale deed, as also the possession and if payment is not made as agreed,
the vendor could repudiate the sale and refuse to deliver the registration
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receipt/registered document, as the case may be, which is in his custody,
and proceed to deal with the property as he deems fit, by ignoring the
rescinded sale.
The Hon’ble Supreme Court held that the effect of such transactions
in Bihar is that even though the duly executed and registered sale
deed may recite that the sale consideration has been paid, title has
been transferred and possession has been delivered to the purchaser,
the actual transfer of title and delivery of possession is postponed
from the time of execution of the sale deed to the time of exchange of
the registration receipt for the consideration, that is “ ta khubzul
badlain”. Paragraph 20 of the report is quoted as under: -
“ 20. We have referred to several decisions of the Patna High
Court in detail to demonstrate the existence of the
established practice of exchanging equivalents (ta khubzul
badlain). The effect of such transactions in Bihar is that even
though the duly executed and registered sale deed may recite
that the sale consideration has been paid, title has been
transferred and possession has been delivered to the
purchaser, the actual transfer of title and delivery of
possession is postponed from the time of execution of the sale
deed to the time of exchange of the registration receipt for
the consideration, that is, ta khubzul badlain.”
The Hon’ble Supreme Court in the facts of the case held that the only
possible inference was that the intention of the parties was that title
would not pass till the consideration was not paid; and as the
consideration was not paid, the sale in favour of the appellants did not
come into effect and the title remained with the vendor and the sale deed
dated 22.2.1988 was a dead letter and consequently the subsequent sale
in favour of the concerned respondent was valid.
The Hon’ble Supreme Court has further has observed that the aforesaid
practice of “Ta Khubzul Badlain” (of title passing on exchange of
equivalent) is prevalent only in Bihar and has also observed that
normally the recitals in a sale deed about transfer of title, receipt of
consideration and delivery of possession will be evidence of such acts
and events and on the execution and registration of the sale deed, the sale
would be complete even if the sale price was not paid, and it will not be
possible to cancel the sale deed unilaterally and the exception to this rule
is stated in the judgment reported in (2009) 4 SCC 193 . The relevant
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paragraphs of the aforesaid judgment reported in (2009) 4 SCC 193 have
been quoted in the judgment itself in paragraph 12 of the report and the
relevant extract of the judgment is quoted in the aforesaid judgment in
paragraph 12 which is quoted as under: -
“12. In Kaliaperumal v. Rajagopal this Court again considered the
issue and held:
"17. It is now well settled that payment of entire price is not
a condition precedent for completion of the sale by passing
of title, as Section 54 of the Transfer of Property Act, 1882
('the Act', for short) defines 'sale' as 'a transfer of ownership
in exchange for a price paid or promised or part-paid and
part-promised'. If the intention of parties was that title
should pass on execution and registration, title would pass to
the purchaser even if the sale price or part thereof is not
paid. In the event of non-payment of price (or balance price
as the case may be) thereafter, the remedy of the vendor is
only to sue for the balance price. He cannot avoid the sale.
He is, however, entitled to a charge upon the property for the
unpaid part of the sale price where the ownership of the
property has passed to the buyer before payment of the entire
price, under Section 55(4)(b) of the Act.
18. Normally, ownership and title to the property will pass to
the purchaser on registration of the sale deed with effect
from the date of execution of the sale deed. But this is not an
invariable rule, as the true test of passing of property is the
intention of parties. Though registration is prima facie proof
of an intention to transfer the property, it is not proof of
operative transfer if payment of consideration (price) is a
condition precedent for passing of the property.
19. The answer to the question whether the parties intended
that transfer of the ownership should be merely by execution
and registration of the deed or whether they intended the
transfer of the property to take place, only after receipt of the
entire consideration, would depend on the intention of the
parties. Such intention is primarily to be gathered and-
determined from the recitals of the sale deed. When the
recitals are insufficient or ambiguous the surrounding
circumstances and conduct of parties can be looked into for
ascertaining the intention, subject to the limitations placed
by Section 92 of the Evidence Act.
22. There is yet another circumstance to show that title was
intended to pass only after payment of full price. Though the
sale deed recites that the purchaser is entitled to hold,
possess and enjoy the scheduled properties from the date of
sale, neither the possession of the properties nor the title
deeds were delivered to the purchaser either on the date of
sale or thereafter. It is admitted that possession of the suit
properties purported to have been sold under the sale deed
was never delivered to the appellant and continued to be with
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the respondents. In fact, the appellant, therefore, sought a
decree for possession of the suit properties from the
respondents with mesne profits. If really the intention of the
parties was that the title to the properties should pass to the
appellant on execution of the deed and its registration, the
possession of the suit properties would have been delivered
to the appellant."
73. The Hon’ble Supreme Court in the judgment reported in (2009) 4
SCC 193 (supra) has clearly held that normally, ownership and title to
the property will pass to the purchaser on registration of the sale deed
with effect from the date of execution of the sale deed. But this is not an
invariable rule, as the true test of passing of property is the intention of
parties. Though registration is prima facie proof of an intention to
transfer the property, it is not proof of operative transfer if payment of
consideration is a condition precedent for passing of the property. The
answer to the question whether the parties intended that transfer of the
ownership should be merely by execution and registration of the deed or
whether they intended the transfer of the property to take place, only
after receipt of the entire consideration, would depend on the intention of
the parties and such intention is primarily to be gathered and determined
from the recitals of the sale deed. When the recitals are insufficient or
ambiguous the surrounding circumstances and conduct of parties can be
looked into for ascertaining the intention, subject to the limitations
placed by Section 92 of Evidence Act .
74. In the present case, the consideration amount in both the sale
deeds as recited in the sale deeds was paid through the cheques all
containing the date on which the respective sale deed was executed and it
has been recorded in the sale deed that the consideration has been paid.
Meaning thereby, the parties intended that the sale would take its effect
upon receipt of consideration through cheques. Admittedly, the cheques
were returned to the defendant at the insistence of the defendant. There
was no stipulation in the sale deeds that the cheques would be encashed
for receipt of consideration only after mutation is done in favour of the
defendant. The defendant stated that the consideration was to be paid
upon mutation and admittedly mutation was never done in favour of the
defendant, still the defendant claimed that consideration was paid later to
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the plaintiffs/their creditors/family members which they have failed to
prove. Thus, no consideration passed to the defendant although it was
recorded in the sale deed that the consideration amount was paid through
cheques. In such circumstances, the title and possession did not pass and
recital of the sale deed, that the title passed and possession was
delivered, is of no consequences.
75. This Court is of the considered view that the sale deed recited that
the entire sale consideration has been paid and the possession has been
delivered, but no consideration was paid in terms of the sale deed itself.
Consequently, there can be no doubt that the parties intended that there
would be transfer of title and possession upon receipt of the sale
consideration which is said to have been paid in the registered sale deeds
through cheques. The sale deeds did not refer to any deferred
payment/part payment of the consideration amount and there was no
recital in the sale deed that the cheques would be encashed only when the
mutation is done. Rather, the sale deed revealed that the entire sale
consideration has been paid through the cheques but the cheques were
returned to the defendant and at the same time the defendant received the
original deeds from the registry office on the strength of the registration
receipts which were handed over to the defendant by the plaintiffs upon
registration of the sale deeds as the deed itself revealed that the
consideration amount was paid through the cheques. It is not the case of
the defendant that the consideration amount was paid through the
cheques nor it is the case of the defendant that the registration receipt
was received by the defendant from the plaintiffs after payment of
consideration through other mode of payment to the plaintiffs/their
relatives, partly through cash and partly through banking transactions.
The defendant has neither produced the original sale deeds as obtained
from the registry office nor had given the date on which the defendant
had received the original sale deeds from the registry office. Further, as
held above, the defendant has failed to prove that the consideration
amount was paid to the plaintiffs through other mode of payment to the
plaintiffs/their relatives, partly through cash and partly through banking
transactions as claimed by the defendant in the written statement.
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76. In view of the aforesaid facts and circumstances, this court is of
the considered view that the defendant failed to prove that the defendant
had obtained the registration slips from the plaintiffs upon payment of
consideration amount in the manner as claimed by the defendant in the
written statement to the plaintiffs/their relatives, partly through cash and
partly through banking transactions as admittedly the consideration as
contemplated in the sale deeds through the cheques did not pass to the
plaintiffs. Thus, the defendant has failed to prove that the registration
slips were handed over to the defendant upon exchange of equivalent and
the practice prevalent in the undivided State of Bihar (now Jharkhand in
this case) of “Ta Khubzul Badlain” ( of title passing on exchange of
equivalent) has been followed in this case.
77. This Court is of the considered view that merely because the
defendant was in possession of the registration slips, the same does not
raise a presumption that the registration slips were handed over to the
defendant on exchange of equivalent particularly when admittedly the
consideration did not pass through cheques as mentioned in the sale
deeds. It was for the defendant to prove that the consideration was paid
later on in terms as pleaded in the written statement and there can be no
doubt that the title and possession cannot be said to have been passed to
the defendant upon execution and registration of the sale deeds as
admittedly the consideration, though stated to have been paid through
cheques mentioned in the sale deeds, were never paid through the
cheques mentioned in the sale deeds.
78. Both the parties claimed to be in possession of the suit property
and the only material pointed out by the learned counsel for the
defendant with regards to the possession is the recital in the sale deeds
which stated that the title and possession is handed over to the defendant
from the date of execution of the sale deeds. The plaintiffs claimed that
the sale deeds being void as the consideration through cheques did not
pass to the plaintiffs, the recitals of the sale deeds are of no consequences
as the sale deeds are nullity in the eyes of law and it was an admitted fact
that the cheques were never encashed by the plaintiffs and were returned
to the defendant.
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79. This Court finds that except the recital in the sale deeds that the
possession was delivered to the defendant, there is no other evidence
from the side of the defendant that they were is possession of the suit
property and admittedly even the mutation was not done in their favour.
Admittedly, the land was vacant land as per the sale deeds. Since, the
recitals of the sale deed reveals that the title and possession passed to the
defendant as the consideration amount was said to have been paid vide
cheques all issued on the date of sale deeds and admittedly, the cheques
were returned to the defendant at the instance of the defendant and the
consideration did not pass in the manner stated in the sale deed through
cheques and even the payment of consideration later on could not be
proved by the defendant, in such circumstances, the sale deeds were void
and hence nullity in the eyes of law and the sale deeds were was a dead
letters and consequently it was open to the plaintiffs to deal with their
property with third party and the plaintiffs have entered into agreement
with third party. Since the agreement of sale does not pass any right and
title it is not required registration and the present case is not a case where
the plaintiffs are seeking protection under section 53 A of the Transfer of
Property Act.
The sale deeds were void on account of the admitted fact that the
80.
consideration did not pass to the plaintiffs through cheques mentioned in
the sale deeds and in terms of the sale deeds. It is important to note that
even as per the case of the defendant the cheques were returned and they
claimed that the consideration was subsequently paid to the
plaintiffs/their relatives as per the instructions of the plaintiffs, which the
defendant failed to prove.
81. The case can also be seen from the angle of the case of the
defendant as per the written statement. It was the specific case of the
defendant that it was the intention of both the parties that cheques issued
by the defendant as mentioned in both the sale deeds will only be
encashed by the plaintiffs after mutation of the land in question will be
done in the name of the defendant. But since the land in question was not
mutated in the name of the defendant by the concerned authority the
defendant demanded his cheques back from the plaintiffs which the
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plaintiffs did. It was stated by the defendant that they have paid the
consideration amount in full by way of cash and bank transactions.
This Court finds that the defendant has not been able to show any
document which can prove that the entire sale consideration amount was
paid to the plaintiffs. Ext. A & B as submitted by the defendant shows
that it is a letter dated 16.02.2015 and 30.08.2018 allegedly written by
plaintiffs to the defendant which defendant is showing that payment has
been made as per request by the plaintiffs. The plaintiffs denied his
signature on both these letters and the same remained unproved by the
defendant. Moreover, the persons and amounts as mentioned in these
letters are those persons who have entered into agreement with the
defendant before the sale of the present land in question and the
defendant has returned those persons the advance which defendant has
taken. The defendant has not produced any witness and documentary
evidence to that effect which can prove that on the request of plaintiffs
the amount was handed over to them.
D.W-1 in Para 4 has mentioned about the details of the payment
allegedly given to the plaintiff, but the defendant witness is unable to
prove the same by any oral or documentary evidence. From the same it is
evident that defendant has alleged that they have paid an amount of
Rs.1,47,62,700/- which includes payment to one Arun Kumar Thakur as
per order of Hon'ble High Court, payment of Rs.5,00,000/- for court
cases expenses by plaintiff, payment of Rs.74,80,000/- as security
charges, Rs.44,00,000/- to creditors of plaintiff. All these details of
payment are without any proof. In cross examination, D.W. 1 has stated
that his son has the details of the amount which was paid on account of
sale consideration and also accepts that mutation is not done in his name.
D.W-2 in his chief has stated that they have paid an amount of
Rs.1,47,62,700/- to the plaintiffs but the sale consideration amount was
only Rs.1,02,30,000/- and they have paid excess. He has given the modes
of payment but the same was neither supported by any documentary
proof nor by any oral evidence of those persons whom they are saying
payment has been transferred. In cross examination D.W. 2- has stated
about his proprietorship firm, namely, Shree Balaji Heritage and its Bank
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Statement which is marked as Ext. C & G. These document shows that
defendant's son has taken consideration amount from various persons for
allotment of land and afterwards he has returned those persons the
money back and at present without giving any oral or documentary proof
this defendant's son is stating that on account of sale consideration the
same was paid.
Hon'ble Supreme Court of India in the case of Shanti Devi (since
deceased) though Lrs. Goran v Jagan Devi & Ors. reported in 2025
SCC Online SC 1961 at para 34-38 relying on its earlier judgment of
Kewal Krishnan v Rajesh Kumar reported in (2022) 18 SCC 489 at
para 18-21 held that “a sale of an immovable property has to be for a
price. The price may be payable in future. It may be partly paid and the
remaining part can be made payable in future. The payment of price is an
essential part of a sale covered by section 54 of the TP Act. If a sale deed
in respect of an immovable property is executed without payment of
price and if it does not provide for the payment of price at a future date,
it is not a sale at all in the eyes of law. It is of no legal effect. Therefore,
such a sale will be void. It will not affect the transfer of the immovable
property”.
In the instant case, the defendant has not been able to prove the fact that
sale consideration amount was paid after they have received back the
cheques as mentioned in both the sale deed. Therefore, when no
consideration has been flown such sale will have no legal effect and the
same will be null and void. Moreover, the learned Court below has failed
to give any specific finding with regard to the fact that when defendant
has not been able to prove how the consideration amount was paid after
receiving all the cheques then whether such sale will be valid or not.
Further, it is also well-settled principle of law that title of property passes
to the purchaser only when there is exchange of equivalents. Irrespective
of the recitals as mentioned in the sale deed if entire consideration
amount has not been paid and registration receipts are not obtained in
exchange the title does not passes. This principle is know as 'ta khubzul
badlain' as recognized by the Hon'ble Supreme Court of India in the case
of Janak Dulari Devi v Kapildeo Rai reported in (2011) 6 SCC 555
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[refer para 11-20 & 24] wherein the Hon'ble Supreme Court held that
'Intention of the parties has to be seen from the facts'. In the present case
as per the defendant the intention of the parties was that cheques will be
presented only after mutation of the land in question therefore the
cheques were demanded back and plaintiffs handed over the cheques.
Therefore, no consideration was flown thus, when no consideration has
been flown such sale will have no legal effect and the same will be null
and void and dead letters. Thus, even if the case is seen in the light of
the written statement of the defendant, there can be no doubt that the
sale deeds are null and void and dead letters.
82. So far as the claim for possession is concerned, the only evidence,
which has been relied upon by the defendant to claim that they were put
in possession of the land covered by the two sale deeds, is that it has
been mentioned in the sale deeds itself that the possession of the property
was handed over.
83. This Court is of the considered view that once the sale deeds are
null and void, any recital in the sale deed relating to possession of vacant
land is of no consequence. This Court is of the considered view that
neither title nor possession passed upon execution and registration of the
sale deeds as claimed by the defendant as the consideration did not pass
in terms of the sale deeds and the defendant has also failed to prove that
the consideration was subsequently paid to the plaintiffs through their
creditors and relatives, partly through cash and partly through bank
transactions. The argument of the defendant that, the plaintiffs ought to
have filed money suit for recovery of the consideration amount, is devoid
of any merit as the sale deeds were void, nullity and dead letters and the
defendant has no right to retain the original sale deeds collected from the
registry office.
84. The learned trial court inspite of recording that the defendant has
admitted that the payment of consideration was made by way of other
modes than specified in the sale deeds marked as Ext. 1 and 1/1 and in
the light of the discussions made while deciding the point of
maintainability of the suit as issue no (i) where reliance has been placed
upon the fact that the defendant was handed over the registration slips in
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connection with the sale deeds held that the sale deeds cannot be held to
be void on the ground that no sale consideration had passed to the
plaintiffs. The court observed the settled principle of law that a registered
instrument of transfer providing for sale of immovable property shall be
held to be a valid transfer on sale and consideration amount may be part
paid or completely paid or may even may be promised to pay. However,
the learned court failed to consider that in the present case, the sale
consideration was said to have been paid through cheques at the time of
execution of the sale deeds which was admittedly returned to the
defendant and the defendant failed to prove that sale consideration was
subsequently paid and in exchange of equivalent the registration slips
were handed over to the plaintiffs and that the records reveal that the
registration slips were handed over at the time of registration of the
deeds in view of the fact that as per the deeds the consideration was paid
through cheques. The learned trial court has failed to properly apply the
principle of law as laid down by the Hon’ble Supreme Court in the case
reported in (2011) 6 SCC 555 (supra) applicable to the State of Bihar
(now Jharkhand) as fully discussed above.
85. The entire approach of the learned trial court in relying upon the
fact that the defendant had obtained the original sale deeds from the
registry office upon presentation of registration slips and holding that the
two sale deeds were valid, is erroneous in law. The learned trial court has
failed to consider that admittedly, the cheques mentioned in the sale
deeds were not encashed and were returned to the defendant at the
insistence of the defendant and there was no evidence to show that
registration slips were handed over to the defendant upon receipt of the
equivalent. In fact, the registration slips were handed over upon
registration of the sale deeds which mentioned that the consideration was
paid through cheques mentioned in the sale deeds and the defendant
neither paid the consideration through the cheques mentioned in the sale
deeds nor proved that the consideration amount was paid subsequently
through creditors and relatives of the plaintiffs as claimed in the written
statement. It is important to note that even the learned trial court has not
relied upon the story of subsequent payment of consideration as claimed
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by the defendant in the written statement. The learned trial court failed to
consider that merely because the registration slips were handed over to
the defendant, it cannot be presumed that the consideration amount was
paid, when admittedly the consideration was not paid in terms of the sale
deeds. It was never the case of the defendant that the registration slips
were handed over to the defendant after the consideration amount was
paid subsequently through creditors and relatives of the plaintiffs as
claimed in the written statement so as to say that the registration slips
were handed over upon exchange of the equivalent. The learned trial
court failed to consider that in the facts of the present case the handing
over of the registration slips were not upon payment of equivalent and
the parties had also intended the consideration to pass in terms of the sale
deeds through cheques mentioned therein which admittedly never passed
in terms of the sale deeds and the defendant further failed to prove that
the consideration passed later on as claimed in the written statement.
86. In view of the aforesaid findings, it is held that the two sale
deeds bearing no. 705/508 dated 07.02.2014 and 2736/2125 dated
17.05.2014 executed by the plaintiffs were without payment of
consideration and hence void, nullity and dead letters in the eyes of law
and consequently the sale deeds did not result into transfer of title
and/or possession in favour of the defendant though it was mentioned
in the recitals of the sale deeds that the title and the possession was
handed over to the defendant upon payment of consideration amount
through cheques .
87. In view of the aforesaid findings, this Court is of the considered
view that the learned trial court erred in holding that Exhibit-1 and 1/1
were valid and also holding that consideration amount mentioned in the
sale deeds had passed and has wrongly dismissed the suit.
88. As a cumulative effect of the aforesaid findings, the impugned
judgment and decree is set-aside and consequently, this appeal is hereby
allowed .
89. The sale deeds being void for want of consideration are nullity
and dead letters in the eyes of law and hence the plaintiffs are entitled to
get back the original sale deeds from the defendant.
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90. The defendant is directed to hand over the original sale deeds
bearing no. 705/508 dated 07.02.2014 and 2736/2125 dated 17.05.2014
executed by the plaintiffs within a period of three months from today,
failing which it will be open to the plaintiffs to get the same through the
process of court.
Office to prepare decree.
91.
92. Let a copy of this order be communicated to the court concerned
through ‘e-mail/FAX’.
(Anubha Rawat Choudhary, J.)
Dated: 16.03.2026
Uploaded on: 17.03.2026
Mukul/-
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