P.K. Tripathy, J.
1. This appeal has come on the list as 'to be mentioned'. Heard further argument from both the parties and the judgment is as follows.
2. Sole plaintiff in Title Suit No. 14 of 1974 of the Court of Subordinate Judge, Rourkela filed this appeal. Defendant No. 2 in that suit claiming to be the purchaser of the suit land, has filed Cross Objection challenging to the finding recorded by Learned Subordinate Judge on issue No. 4. Both appeal and the cross objection are heard and disposed of by this common judgment.
3. Admittedly, late Kanaihalal Nau was the owner of the suit land measuring an area of one and half decimals. In fact, he was owner of three decimals of land of plot No. 266, i.e., the suit plot. Admittedly he alienated one and half decimals of land to the sole plaintiff Muralilal Agrawal. According to the case of the plaintiff, one thatched house was there on each of the said Ac. 0.01 and 1/2 decimals of land possessed by the plaintiff and his vender. Plaintiff and his vender simultaneously removed the said thatched houses and undertook construction of 'pucca' houses. When the construction had gone up to plinth level, Kanaihalal fell ill, incurred expenses for treatment and could not undertake further construction of the house. At that stage he sought for the financial and supervisory assistance of the plaintiff to complete the construction with the assurance to let out a portion out of that to the plaintiff on a concession rate of monthly rent. Accordingly, plaintiff undertook construction of both the houses and completed the same together with a temple of Lord Shiva, which is in his possession. He also possessed one room from the house of Kanaihalal on a monthly rent Rs. 60/- (rupees sixty). After death of Kanaihalal, his widow Bhukani Thakiurian succeeded to the property and sometimes after the death of her husband, she expressed her desire to alienate the property in favour of the plaintiff. On 4.4,1974 she executed Ext. 5, a plain paper agreement for sale contracting therein that the land and the house standing on the suit plot would be sold for Rs. 12.000/- (twelve thousand) and she received an advanced consideration of Rs. 2,000/-(two thousand) from the plaintiff. On 01.06.1974 late Bhukani executed and registered sale deed Ext. C/1 in favour of defendant No. 2 for a consideration of Rs. 6.000/- (six thousand) and thereunder transferred the suit land the house standing thereon. Plaintiff challenged that transaction, inter alia, on the ground that the owner of the property was bound by the agreement for sale- Ext. 5 and the sale transaction was a sham and nominal one and by virtue of that sale deed neither there was passing of consideration nor transfer of ownership. Plaintiff also stated that he was making payment of rent to late Bhukani till the date of agreement- Ext. 5 and thereafter he stopped making payment being the proposed owner in possession. Accordingly he filed the suit for specific performance of contract and inter alia claimed to declare the sale deed Ext. C/1 invalid and not binding on him. During pendency of the suit, Bhukani, who appearing as defendant No. 1 died and in her place one Gayaprasad has been substituted as the legal heir on the ground that he is the son's son of late Kanaihalal and late Bhukani. Defendant No. 2 filed a written, statement denying about the agreement for sale and alternatively about his ignorance of such transaction and asserting his right as bona fide purchaser for consideration. The substituted defendant No. 1 filed a written statement conceding to most of the claims of the plaintiff except the claim relating to relaxation in rent and justification for non-payment of rent after execution of Ext. 5. Because of the aforesaid conflicting pleas, learned Sub-ordinate Judge, Rourkela framed the following five issues :
Issues
1. Is the suit maintainable ?
2. Has the plaintiff any cause of action for the suit ?
3. Is the plaintiff entitled to a decree for specific performance of contract for sale ?
4. Is the sale deed executed by Bhukani in favour of the Defendant-2 invalid and without consideration ?
5. To what relief the plaintiff is entitled ?
4. In support of his claim, plaintiff examined three witnesses including himself as P.W. No. 1 and relied on the documents marked Exts. 1 to 9/a. Amongst them Ext. 5 is the agreement for sale dated 04.04.1974. Defendant No. 2 examined five witnesses including himself as D.W. No. 1 and relied on the documents marked Exts. A to C/1. Amongst them Ext. C/1 is the registered sale deed dated 01.06.1974. The substituted defendant No. 1 examined solitary witness from his side and did not rely on any documentary evidence.
5. On appreciation of evidence on record, learned Sub-ordinate Judge found that because of contradictions in the depositions of the plaintiff and his witnesses about execution of Ext. 5 by Bhukani and non-examination of the Scribe of Ext. 5, the plea of execution of Ext. 5 by Bhukani is doubtful and therefore the agreement for sale is not a validly executed document for enforcement of specific performance of contract. He decided issue No. 3 accordingly. Thereafter learned Sub-ordinate Judge decided issue No. 4 and stated that in view of contradictions in the evidence of defendant No. 2 and his witnesses relating to the manner of payment of consideration, such a plea advanced by defendant No. 2 is not acceptable and in the absence of proof of passing of consideration, the sale deed cannot be said to be validly executed. Accordingly he declared the sale deed Ext. C/1 to be invalid,
6. Learned Counsel for the appellant, after placing the pleadings of the parties, the oral and documentary evidence on record and the findings recorded by learned Sub-ordinate Judge argues that the contradiction noted by learned Sub-ordinate Judge about passing of consideration and execution of agreement for sale is not on the basis of correct appreciation of evidence and non-examination of the Scriber of Ext. 5 is not sufficient to warrant a diverse inference against the case of the plaintiff on issue No. 3. In that context, respondent/ cross-objector supports the finding recorded by the Court below. After giving a due consideration to the aforesaid submission, this Court finds that though learned Sub-ordinate Judge assessed the evidence by taking overall circumstance emerging from combined reading of the oral and documentary evidence in relation to execution of Ext, 5. Such an approach cannot be regarded as unjust or illegal. Therefore, this Court does not feel it necessary to re- state the evidence to record same finding on issue No. 3 In other words, valid execution of the agreement for sale (Ext. 5) is not proved and therefore enforcement of that contract cannot be directed.
7. When plaintiff had instituted the suit for specific performance of contract, his prayer for setting aside the sale deed executed in favour of defendant No. 2 was required to be considered only when the trial court was to record a finding on any existing right of the plaintiff. As noted earlier, learned Sub-ordinate Judge recorded the finding that plaintiff failed to prove execution of the agreement for sale by late Bhukani. Once that is so, plaintiff does not have any subsisting right to challenge any transaction between defendant No. 2 and late Bhukani, and under such circumstance it was not necessary for the trial court to record a finding on the validity or otherwise of the said sale deed. That matter should have been left open to be duly considered if raised by a competent person having right over the property. It is appropriate that besides that nothing more should be said about that finding, because in the absence of any proper person challenging to that transaction it is improper to assess the evidence on record and to record a finding on the validity or invalidity of that sale deed. The matter could have been considered on the question of validity of the sale deed because of presence of the substituted defendant. But there being a dispute existing as to whether he is the heir and successor of the deceased defendant No. 1 and notwithstanding that no issue was framed, no evidence was adduced and no finding was recorded, therefore, it is not proper to take up the issue of validity of the sale deed without considering proof of the status of the said substituted defendant, Apart from that, while contesting the suit said substituted defendant of defendant No. 1 did not advance any counter claim. Therefore, while setting aside the finding on issue No. 4, it is held that in view of the finding in issue No. 3 there is no need to determine this issue at present.
8. For the reasons recorded above, the appeal does not bear any merit and accordingly the same is dismissed and the cross objection is allowed by only setting aside the finding on issue No. 4. To avoid future confusion, it is clarified that by setting aside the finding on issue No. 4. this Court has not determined the right, title, interest or possession of defendant No. 2 over the suit property. Parties are directed to bear their respective costs of litigation all throughout. Hearing fee is assessed at contested scale.