CHAKRADHAR JOSHI Vs. JANARDAN JOSHI

JUDGEMENT

(1.) THIS Second Appeal is directed against the judgment and decree dated 27.11.2000 and 16.12.2000 respectively passed by the learned Addl. District Judge, Balangir in Title Appeal No. 32/11 of 1993 -1997 arising out of Title Suit No. 84 of 1989.

(2.) THE substantial question of law formulated at the time of admission of the second appeal is as follows: Whether passing of title was depending on the passing of consideration or not which requires determination. However, at the time of hearing of this second appeal also it appears that another substantial question of law which is to be considered in this appeal i.e. whether non - consideration of material evidence on record vitiate the conclusion of the court below.

(3.) ON the aforesaid pleading the trial court has formulated as many as ten issues and recorded the following findings: - Ext.A is a deed executed on the condition that the plaintiff will maintain the parents. It is admitted by the plaintiff in his cross -examination that he has scribed the said document. Ext. A reveals that father has executed the sale deed in favour of the plaintiff and plaintiff kept the sale consideration to maintain him. The said averment makes it clear that the sale consideration has not passed to the father when he executed the sale deed Ext.3. It is not the case of the plaintiff that father after receiving the sale consideration gave the disputed land to him. Since passing of consideration is a condition precedent on the passing of the title, plaintiff will not get any title over the Schedule 'A' and 'C' land as no consideration was paid by him. The mother is the owner after death of father in respect of the land allotted to father. She has right to possess the suit land. Her entitlement cannot be extinguished by any overtact of the plaintiff. Ext.D is the sale deed executed by the defendant No.2 in favour of defendant No.1 and consideration money was paid to her in presence of Sub -Registrar. The sale deed executed in favour of defendant No.1 is a valid document and therefore the plaintiff has no title over the suit land. In the above finding, the trial court has dismissed the suit on contest against defendant No.1 and ex -parte against defendant No.2. The trial court also dismissed the counter claim filed by the defendant against plaintiff.