Satish Kumar Mittal, J.
1. This Regular Second Appeal has been filed by the defendants against the judgment and decree dated 29.4.1982 passed by Additional District Judge, Kurukshetra, vide which the appeal filed by the plaintiff Nishi Kumar (respondent No. 1 herein) was accepted and his suit for possession of the land in dispute, which was dismissed by the learned trial court, was decreed.
2. The plaintiff instituted the present suit for possession against the defendants on 18.5.1978. His case was that he was owner of the land in dispute measuring 16 Kanals, which was sold to the defendants vide registered sale deed dated 23.5.1974 for a consideration of Rs. 15,000/-. At the time of execution of the said sale deed, the defendants paid only Rs. 9,000/- and it was agreed that the remaining amount of Rs. 6,000/- would be paid by the defendants by 22.5.1975. In the event of non-payment of the aforesaid amount by the defendants, it was agreed that the sale made by the said document in favour of the defendants would be deemed to be cancelled. It was also agreed that the defendants would not be entitled to get mutation of the land in question sanctioned in their favour without payment of the aforesaid amount of Rs. 6,000/-; and if any such mutation was sanctioned, the same would be illegal and would not confer any right of ownership on the defendants. However, possession of the land in question was handed over to the defendants after the execution of the sale deed. It was pleaded that the defendants did not make payment of the aforesaid amount of Rs. 6,000/- as agreed by them in the sale deed, in spite of asking for the same by the plaintiff. Hence, the instant suit for possession of the land in question was filed.
3. In the written statement filed by the defendants, it as admitted that they purchased the land in question for a consideration of Rs. 15,000/- vide registered sale deed dated 23.5.1974. It was also admitted that only an amount of Rs. 9,000/- was paid by them at the time of registration of the sale deed and the remaining amount of Rs. 6,000/- was agreed to be paid by 22.5.1975. It was, however, alleged that the defendants paid the aforesaid amount of Rs. 6,000/- to the plaintiff on 21.11.1974 against a receipt. It was further alleged that they were absolute owners of the land in question and the plaintiff was having no right or title in the same and the suit filed by him was sought to be dismissed.
4. From the pleadings of the parties, the learned trial court framed the following issues:
1. Whether the defendants have paid Rs. 6,000/- i.e.the remaining sale consideration, to the plaintiff on 21.11.74? If so, to what effect? OPD
2. Whether the plaintiff is estopped by his act and conduct from filing this suit? OPD
3. Whether the suit is bad for misjoinder of the parties? OPD
4. Whether the suit is not properly valued for the purposes of court fee and jurisdiction? OPD
5. Relief.
5. On issue No. 1, the learned trial court held that the defendants paid the remaining amount of Rs. 6,000/- to the plaintiff vide receipt (Ex.D1) on 22.11.1974. It was held that execution of the aforesaid receipt and payment of the remaining amount of Rs. 6,000/- by the defendants to the plaintiff was duly proved. After recording the aforesaid finding on issue No. 1, the suit of the plaintiff was dismissed by the learned trial court.
6. Feeling aggrieved against the aforesaid judgment and decree, the plaintiff filed appeal before the Additional District Judge. The learned first appellate court reversed the aforesaid finding recorded by the learned trial court on issue No. 1 and held that the defendants have failed to prove execution of the receipt (Ex.D1) by the plaintiff as well as the payment of remaining amount of Rs. 6,000/- to him. The learned first appellate court has also rejected the alternative contention of the defendants to the effect that suit for possession filed by the plaintiff was not maintainable as in the instant case, title of the property in dispute was transferred to the defendants with the execution of the registered sale deed and merely because a part of the sale consideration was not paid, it was not a ground to set aside the sale deed and in such situation, the plaintiff would not be entitled to seek possession of the land sold but the only remedy available to him was to file a suit for recovery of the balance amount. After recording the aforesaid finding, the learned Additional District Judge decreed the suit filed by the plaintiff for possession of the land in question. Hence, the defendants have filed this Regular Second Appeal against the aforesaid judgment and decree.
7. Shri D.S. Brar, learned counsel for the appellants, has formulated the following two substantial questions of law, which are arising in this appeal, and has addressed arguments on these questions:-
i) Whether the finding of reversal recorded by the learned first appellate court, on issue No. 1 to the effect that execution of the receipt (Ex. D1) by the plaintiff has not been proved, is totally based on surmises, conjectures and misreading of oral as well as documentary and vital evidence available on the record; and whether the same is liable to be interfered even in the Regular Second Appeal?
ii) Whether in the facts and circumstances of the present case, the sale transaction pertaining to the land in question was deemed to be complete and title of the land in question was deemed to be transferred with the execution of the registered sale deed and consequent thereupon with the delivery of possession, even if part of the sale consideration was agreed to be paid later on but could not be paid; and whether in such a situation, plaintiff was entitled to maintain suit for possession or his remedy lies only to recover the balance amount by filing a suit for recovery?
8. On issue No. 1, learned counsel for the appellants-defendants submitted that to prove the payment of Rs. 6,000/- by the defendants to the plaintiff vide receipt (Ex.D1) dated 21.11.1974, defendants examined Ranjit Singh (DW.2), Sawan Singh (DW.3) and Bhola Ram (DW.4), scribe and attesting witnesses of the said document. All these witnesses have categorically stated that an amount of Rs. 6,000/- was paid by the defendants to the plaintiff in their presence and a receipt (Ex. D1) to that effect was prepared and was duly signed by the plaintiff. All these witnesses were cross-examined at great length but their testimony could not be impeached in any manner. It was further submitted that all these witnesses were independent and there was nothing brought on record by the plaintiff to show that they deposed in favour of the defendants due to some extraneous reasons. Learned counsel for the appellants-defendants further submitted that in the replication, the plaintiff simply denied the execution of receipt of Rs. 6,000/- and his signatures on the receipt (Ex.D1). To prove that the receipt (Ex.D1) did not bear his signatures, the plaintiff examined N.K. Jain (PW.4), the Hand Writing expert. Learned trial court, while recording valid reasoning, rejected the report as well as testimony of this expert witnesses and held that no reliance can be placed on his statement. Further, in evidence the plaintiff took the stand that on 12.8.1977 the defendants came to him with a writing on the stamp paper in the shape of agreement, on which they wanted extension of time for payment of the balance amount of Rs. 6,000/-. This document was alleged to have been proved by the plaintiff as Ex.P.1. The purpose of producing this document was to show that when the defendants made request on 12.8.1977, then there was no occasion for them to pay the amount of Rs 6,000/- on 21.11.1974 vide receipt Ex.D1. To falsify the stand taken by the defendants, the plaintiff has produced this document. Learned trial court rejected this document being not proved and the learned first appellate court did not take into consideration at all this aspect of the reasoning given by the learned trial court, while reversing the finding on issue No. 1. Learned counsel for the appellants-defendants, while referring to the judgment of the learned trial court as well as to the statements of witnesses has submitted that the finding recorded by the learned first appellate court, while reversing the finding of the learned trial court on issue No. l, is totally contrary to the evidence available on the record, and the documentary evidence available on the record were not considered while recording the said finding. Therefore, the said finding is liable to be reversed.
9. On the other hand, learned counsel for respondent No. 1-plaintiff submitted that the finding recorded by the learned first appellate court on issue No. 1 is a pure-finding of fact and the same cannot be interfered by this Court in the Regular Second Appeal. In support of his contention, he has relied upon a decision of the Hon'ble Apex Court in Kulwant Kaur v. Gurdial Singh Mann, (2001-2)128 P.L.R. 492 (S.C.).
10. After considering the aforesaid respective arguments raised by learned counsel for both the parties and after perusing the records of the case, I am of the opinion that the finding recorded by the learned first appellate court on issue No. 1 is liable to be set aside. Generally, the findings of fact recorded by the Court below are not to be interfered in the Regular Second Appeal. But in certain circumstances and situations, such interference is permissible. The Hon'ble Apex Court in Ishwar Dass Jain v. Sohan Lal, 2000(1) Supreme Court Cases 434, held that in two situations the interference with the finding of fact in the Regular Second Appeal is permissible. The fist one is when material or relevant evidence have not been considered which, if considered, would have led to an opposite conclusion. The second situation in which the interference with the findings of fact is permissible, is where a finding has been arrived at by the appellate court by placing reliance on inadmissible evidence which if was omitted, an opposite conclusion was possible. In either of the above situations a substantial question of law arises. Similarly, in Smt. Sawarni v. Smt. Inder Kaur, 1997(1) R.C.R. (Civil) 41, the Hon'ble Supreme Court has held that finding of fact recorded by the first appellate court while reversing the judgment of the trial court without focussing his attention on the reasoning advanced by the trial court and without examining the materials on record can be interfered in the Regular Second Appeal.
11. After going through the judgment of the Courts below and the relevant evidence available on the record, I am of the opinion that the learned first appellate has reversed the finding of the learned trial court on issue No. I without properly considering the evidence available on the record. The defendants have proved the payment of Rs. 6,000/- to the plaintiff on 21.11.1974 against a receipt (Ex.D1). In this regard, they have examined Ranjit Singh (DW.2), Sawan Ram (DW.3) and Bhoia Ram (DW.4) in addition to the statement of one of the defendants, namely Ajmer Singh (DW.1). All these witnesses have categorically stated that Rs. 6,000/- were paid by the defendants to the plaintiff in their presence. To prove the receipt (Ex.D1), its scribe as well as two attesting witnesses were produced at the trial. All these witnesses were cross-examined at length but their testimony could not be impeached in any manner. The learned trial court has specifically observed that the attesting witnesses were independent witnesses. They were having nothing to do with the defendants and noting was brought on record by the plaintiff to show that they had deposed in favour of the defendants due to some extraneous reasons. In rebuttal, the plaintiff has examined N.K. Jain (PW.4) the Hand Writing expert. The learned trial court, after a detailed discussion, has discarded the report and the statement of the Hand Writing expert, while observing as under:-
'I have gone through the report of this witness and feel that it does not inspire confidence firstly, because on the one hand he stated that the signatures of plaintiff Nishi Kumar on Ex.D-1 do not tally with his standard signatures and at the same time he said that it is a free hand forgery. Both these opinions of this witness are contradictory to each other. If the witness describes the signatures of Nishi Kumar on the receipt as forgery then he has impliedly given the opinion that they tally with the standard signatures of Nishi Kumar. In the place if as a lay man we peruse the signatures of Nishi Kumar on the receipt Ex.D1 and his signatures on the plaint, power of attorney and various other applications lying on the file then it would be seen that all these documents including receipt have been signed by one and the same person. Further on, it is now a well settled principle of law that science of hand writing comparison is not a perfect science. Secondly, it is also generally seen that expert witness always supports the case of the party who has engaged him by paying him fees. Then it has also been authoritatively laid down that it there is a direct evidence available in the case that the executant in fact signed the document then no reliance on the statement of hand writing expert can be placed.'
12. The learned first appellate court has not relied upon the statements of the aforesaid DWs merely on the basis that there were some minor contradictions in their statements. In this regard, the learned first appellate court observed as under:-
'A perusal of the statements made by the above mentioned four DW's would make it clear that none of the four witnesses is consistent with regard to the manner in which the said receipt was scribed, executed and witnessed by various persons. Similarly, their statements are not consistent with regard to the manner as to how the witnesses were called or were present and which witness was present prior to the arrival of other witness i.e. which witness came first and which came later. A perusal of the receipt Ex.D.1 would show that the same has been scribed in Urdu by pen and signatures of Ranjit Singh in Urdu appear underneath as the scribe of the said document. Similarly, on the said receipt underneath, the name of Sawan Singh of village Sonti is written in Urdu as a witness and the thumb impression with a pad appear just above the said writing. The said document also bears the signatures of Bhola Ram in Hindi as a witness. However, the name, the parentage or the address of said Bhola Ram has not been written by the scribe, except the word witness, in Urdu. The signatures of Bhola Ram appear to be with a different pen and ink. The said receipt also purports to bear the signatures of Nishi Kumar on the two revenue stamps affixed towards the end of the said document.
From a perusal of the statements of the DWs and the receipt Ex.D1, it cannot be definitely stated that the receipt Ex.D1 was executed by Nishi Kumar in the presence of Bhola Ram and Sawan Singh, which receipt was scribed by Ranjit Singh. The scribe Ranjit Singh is of village Govindgarh and is relation of Ajmer Singh defendant. DW-4 Bhola Ram is again of a different village and the parentage and address of said Bhola Ram does not appear on the said receipt. The signatures of Bhola Ram are with a different ink and pen, whereas DW-1 Ajmer Singh, categorically, stated that Bhola Ram had signed with the same pen and ink with which the receipt was scribed.
DW-2 Ranjit Singh, however, stated that Bhola Ram signed with his own pen. DW-3, Sawan Singh could not state as to with which pen Bhola Ram had signed. DW-4 Bhola Ram stated that he had signed with his own pen. The thumb impression of Sawan Singh on the receipt Ex.D.1 is with a pad. However, DW-1 Ajmer Singh stated that there was no pad at the spot and that Sawan Singh had put his signatures with the ink of the pen. DW-2 Ranjit Singh stated that Sawan Singh had put his thumb impression with the same ink with which the receipt was scribed. However, after seeing the receipt he stated that he had forgotten, as long time had since passed and again stated that thumb impressions were put with a pad which was brought by Ajmer Singh.'
13. It is clear from the aforesaid findings recorded by the learned first appellate court that it has failed to take into consideration the statements of the material witnesses which duly proved the execution of receipt (Ex.D1) and payment of Rs. 6,000/- by the defendants to the plaintiff. Because of some minor contradictions in their statements, the learned first appellate court has completely ignored the fact that the receipt (Ex.D1) was executed in the year 1974 and the witnesses deposed in the Court after six years i.e. in the year 1980. After such a long time, minor contradictions about the actual happening of the things on a particular date are bound to occur. The learned first appellate court examined the statements of these witnesses as if they had appeared in a criminal case. In the civil matters, a party is not to discharge its onus of proof on a particular fact beyond all reasonable doubts. The civil matters are being decided on the preponderance of evidence. The learned first appellate court has put reliance upon the statement of Handwriting Expert Shri N.K. Jain (PW.4) and the report submitted by him, while reversing the finding of the learned trial court. In my opinion, the testimony of this witness, who is handwriting expert, cannot be given more weightage as in the instant case execution of receipt (Ex.D1) has been duly proved on record. The plaintiff is denying his signatures on the receipt (Ex.D1) and is saying that he did not receive the amount of Rs. 6,000/- from the defendants on 21.11.1974. This version of the plaintiff is belied by his own statement and the evidence led by him. He has tried to prove on record a document (Ex.P1) which is in the shape of an agreement, alleged to have been bearing the signatures of some of the defendants, to show that the defendants made a request to the plaintiff for extension of time for making payment of the remaining amount of Rs. 6,000/-. This document is alleged to have been written on 12.8.1977. The plaintiff has produced this document to prove that when the defendants were executing this document on 12.8.1977 and were seeking extension of time, then the question of their making the payment of Rs. 6,000/- on 21.11.1974 could not have arisen. The aforesaid plea taken by the plaintiff in his defence was not proved at all. Only scribe of this document (Ex.P1) was produced, who stated to he did not know Ajmer Singh defendant personally, who executed the said document, personally. It is pertinent to mention here that the plaintiff filed an application seeking permission to lead additional evidence before the trial court to prove the signatures of the defendants on this document by examining handwriting expert. The said application was allowed by the learned trial court on 5.8.1980, but the plaintiff neither examined any handwriting expert nor produced any report to prove that this document (Ex.P1) was signed by any of the defendants. This aspect of the matter has not been taken into consideration by the learned first appellate court.
14. There is another factor, available on the record, which has not been taken into consideration by the learned first appellate court. The plaintiff, in his statement as PW.3 has stated that on 21.11.1974, the defendants came to him with the aforesaid alleged agreement (Ex. P1) and they were asking for six months time to make payment of the balance sale consideration, to which he did not agree. This part of the statement clearly establish that the plaintiff was telling lie, because document Ex.P1 proved by the plaintiff himself is dated 12.8.1977. In his statement, he has categorically admitted that on 21.11.1974 the defendants came to him but they were seeking extension of time. This version of the plaintiff has been belied by his own statement. Therefore, this fact itself establish that on 21.11.1974 the defendants went to the plaintiff for payment of balance amount, which was accepted by him by executing the receipt (Ex.D1). The learned first appellate court has not considered this material evidence available on the record, while recording the findings on issue No. 1. In my opinion, the finding recorded by the learned first appellate court on issue No. 1 is not sustainable keeping in view the oral as well as documentary evidence available on the record. Therefore, I reverse the finding of the learned first appellate court on issue No. 1 and restore the finding of the learned trial court on this issue.
15. I have also heard the arguments of learned counsel for both the parties on the alternative contention raised by the learned counsel for the appellant from which the second substantial question of law arises. In the instant case, the execution of the sale deed dated 23.5.1974 by the plaintiff to favour of the defendants has not been disputed. It is also not disputed that by the aforesaid sale deed, the land to question was transferred to the defendants for a consideration of Rs. 15,000/- and only an amount of Rs. 9,000/- was paid before the Sub Registrar at the time of execution of the sale deed. It is also not disputed that the remaining amount of Rs. 6,000/- was to be paid by the defendants to the plaintiff by 22.5.1975. It is also undisputed that possession of the land in question was delivered to the defendants at the time of execution of the registered sale deed. It is further undisputed that in this sale deed, there was a stipulation that in case the defendants failed to pay the amount of Rs. 6,000/- within the aforesaid period, the sale contract would be deemed to have been cancelled. It was also agreed that the defendants will not get the mutation regarding the land in question sanctioned to their favour on the basis of the said sale deed without making the payment of balance sale consideration and even if any mutation was sanctioned without payment of the balance money, the same will not be binding on the plaintiff. Now, the question arises for determination is whether to these facts and circumstances, the plaintiff can maintain the suit for possession by saying that as per the aforesaid stipulation he was entitled to take back possession of the property sold on the ground that part of the sale consideration was not paid within the time stipulated to the sale deed. When a sale deed is executed and registered, there is a prima facie completion of transfer of the title to the vendee. Non-passing of the sale consideration under the document will not prevent passing of title. Learned counsel for the defendants placed reliance upon Section 54 of the Transfer of Property act, which reads as under:-
'54. 'Sale' is a transfer of ownership to exchange for a price paid or promised, part-paid and part-promised.
Such a transfer, in the case of tangible immovable property of the value of hundred rupees and upwards, or in the case of a reversion or other intangible thing can be made only by a registered document.
In the case of tangible immovable property, of a value less than one hundred rupees, such transfer may be made either by a registered instrument or by delivery of property.
Delivery of tangible immovable property takes place when the seller places the buyer, or such person as he directs, in possession of the property.
A contract for the sale of immovable property is a contract that a sale of such property shall take place on terms settled between the parties.
It does not, of itself, create are interest in or charge on such property.'
16. The definition of 'sale' indicates that in order to constitute a sale, there must be a transfer of ownership from one person to another. The transferor cannot retain any part of his interest or right in the property, otherwise it will not amount to sale. As per the aforesaid definition, it is further clear that the transfer of ownership should be in exchange for a 'price paid or promised or part-paid and part-promised'. Therefore, it is not necessary that at the time of execution of the sale deed, the entire price of the sale should have been paid. A document can be executed even if part of the sale consideration was promised to be paid in future. If from the recitals in the sale deed it appears that title would pass after payment of consideration, the inference would be that until consideration is paid, there is no transfer. On the other hand, if it appears that passing of title is not depending upon the passing of consideration and hat the vendor intend to pass title without receipt of consideration, the document must be held to be one conveying title. The real test is the intention of the parties. In order to constitute a sale, the parties must intend to transfer the ownership of the property and they must also intend that the price would be paid either in present or in future. The intention is to be gathered from the recital in the sale deed, conduct of the parties and the evidence on record.
17. On the basis of the aforesaid principle, if the contents of the sale deed dated 23.5.1974, conduct of the parties and the evidence available on the record is analysed, it would be clear that intention of the parties in the instant case was to transfer the land in question to the defendants. In the instant case, the registered sale deed was executed. Even possession of the land in question was also delivered. Further, part of the sale consideration was agreed to be paid by the defendants by 22.5.1975. In the sale deed it has been clearly mentioned that he has definitely transferred the land in question to the vendee by this sale deed. He has used the words 'Katai Tor Par Vikarie Kar Di Hai.' This averment in the sale deed expressly indicates that the vendor had transferred the land in question. But merely because there was a condition in the sale deed that if the remaining sale consideration was not paid by the aforesaid date, the sale will be deemed to be cancelled does not itself reflect the true intention of the parties that the plaintiff did not want to transfer the land in question to the defendants. If that would have been the intention, after the expiry of the said particular date i.e. 22.5.1975, the plaintiff would have immediately filed the instant suit or would have issued a notice to the defendants that since they have failed to pay part of the sale consideration, as agreed by them, therefore, the sale in question was liable to be cancelled. There is no evidence to this effect that the plaintiff did take any such step till the filing of the instant suit in the year 1978. Rather, in his statement as PW3, the plaintiff has stated that when the balance amount was not paid by the defendants within the stipulated time, he did not issue any notice to the defendants. This conduct of the plaintiff indicates that intention of the parties was only to transfer the land in question. Merely because part of the sale consideration, which was agreed to be paid in future, was not paid, it cannot be said that the title did not pass vide registered sale deed, particularly when possession was also handed over to the vendees at the time of execution of the registered sale deed. In such a situation, the only remedy available to the vendor was to sue for consideration. My this view is supported by Kutcherlakota Vijayalakshmi v. Radimeeti Rajaratnamba and Ors., A.I.R. 1991 Andhra Pradesh 50 and Lakshmi Narain Barnwal alias Lakshmi Narayan v. Jagdish Singh and Anr., A.I.R. 1991 Patna 99.
18. Learned counsel for respondent No. 1 cited some judgments i.e. Chandrasekher Praharaj and Ors. v. Pitambari Dibya, A.I.R. 1953 Orissa 315, Sukaloo and Anr. v. Punau, A.I.R. 1961 Madhya Pradesh 176 and G. Hampamma v. Kartigi Sajjivalada Kalingappa and Anr., A.I.R. 1990 Karnataka 128, in support of the proposition that if the payment of sale consideration is -condition precedent for passing title under the sale deed, then the vendor is entitled to take back possession of the land sold under the sale deed if the entire sale consideration was not paid. I have gone through these judgments. The facts of these case are different and are not applicable to the facts and circumstances of the present case. I have already concluded that the intention of the parties at the time of execution of the sale deed was to transfer the title of the property to the vendee irrespective of the fact that part of the sale consideration was to be paid by the vendee in future. Therefore, I am of the opinion that even if it was found that part of the sale consideration i.e. Rs. 6,000/- was not aid by the defendants as was agreed upon, even then the title of the land in question had passed on them with the execution of the registered sale deed and delivery of possession of the land in question, and the plaintiff, in such a situation, could not have maintained the suit for possession for taking back the land in question. The only remedy available to him was to file a suit for recovery of the part of the sale consideration, which was not paid by the defendants.
19. In view of the aforesaid discussion and findings, this appeal is allowed. The judgment and decree passed by the learned first appellate court is hereby set aside and suit of the plaintiff stands dismissed.
Nor order as to costs.