Reserved on 31.08.2021 Delivered on 21.09.2021
Case :- SECOND APPEAL No. - 297 of 2021
Appellant :- Devi Deen
Respondent :- Smt. Kamla
Counsel for Appellant :- Dheeraj Kumar Dwivedi Counsel for Respondent :- Shailendra Singh,Ram Kishore Pandey,Shailendra Singh
Hon'ble Siddharth,J.
1. Heard Sri Dheeraj Kumar Dwivedi, learned counsel for the appellant and Sri Ram Kishore Pandey, learned counsel appearing on behalf of respondent and perused the records of the courts below.
2. The second appeal has been preferred by the plaintiff- appellant against judgment and decree dated 31.01.2021 and 08.02.21 respectively passed by Additional District & Sessions Judge / Fast Track Court, (14th Finance Commission), Kanpur Dehat in Civil Appeal No.84 of 2017 (Smt. Kamla Vs. Devi Deen) whereby judgment and decree dated 04.04.2016 and 28.04.2016 passed by Civil Judge, Junior Division, Ghatampur, Kanpur Dehat in Original Suit No.205 of 2008 have been set aside.
3. The plaintiff case is that the property in dispute is ancestral and his name is duly recorded in Khatauni 1399 to 1404 fasli of Khata No.40. Because of publication of notification under Section 6 of U.P. Consolidation of Holdings Act no further Khatauni has been issued. The plaintiff is an old, infirm, illiterate and blind person and his son is also handicapped. The plaintiff needed loan for agriculture and therefore, he consulted husband of defendant namely, Ramsanehi, who advised him to obtain loan from the bank on the basis of Khatuni. The defendant, Smt. Kamla and her husband took him to Tehsil, Ghatampur on 16.06.1994 for the purpose of providing him loan from the bank and got his signature on some papers by fraud. He never signed the papers on the impression that it is a sale deed nor he went for execution of any sale deed. He signed the papers on the assurance that for the purpose of sanction of loan they are required. No money was paid to him towards sale consideration. When after many days he did not received any loan he contacted the husband of defendant who informed him that after lots of effort loan could not be sanctioned and the plaintiff believed him. He later came to know that on 16.06.1994 the husband of defendant got sale deed executed from the plaintiff without payment of any consideration by way of fraud which was registered on 23.06.1994. The aforesaid sale deed is void and deserves to be cancelled. He came to know of the execution of sale deed when the defendant filed the case of mutation on her name before the Tehsildar Ghatampur on 01.07.2007 and he received the copy of notice. He filed his objections in the mutation case and thereafter instituted the suit praying for cancellation of sale deed dated 16.06.1994.
4. The defendant filed her written statement stating that the plaintiff executed the sale deed of his plot nos.120, 131 and 119 in her favour on 16.06.1994 after receiving the entire sale consideration before sub-registrar, Ghatampur. The plaintiff has given possession of the aforesaid land also to the defendants. After execution of sale deed she is recorded in possession over the same. Her name on the sale deed has been mutated in the revenue records. The plaintiff has become dishonest and only to harass her instituted the present suit on the basis of false averments, it deserves to be dismissed.
5. On the basis of pleadings to the parties the trail court framed the six issues as follows :-
(1) Whether as per plaint averment disputed sale deed is liable to be cancelled ?
(2) Whether suit is properly is under valued ?
(3) Whether the court fees paid is sufficient ?
(4) Whether the suit is barred by time ?
(5) Whether the suit is barred by the provisions of Section 331 of U.P. Z. A & L. R. Act ?.
(6) To what relief is the plaintiff entitled to ?
6. The trial court decided issue no.1 holding that the sale deed in dispute was the result of fraud and misrepresentation. The defendant has failed to prove whether proper sale consideration was paid to the plaintiff or not. The trial court considered the elements of fraud and also the requirement of law of proving the will by at least one witness of the deed since its due execution was under challenge. It considered the statement of DW-1, Smt. Kamla, wherein she stated that she does not remembers who first made signature on the deed and who made signature later. She also failed to state who signed on the sale deed as witnesses. She also failed to state the amount of stamp affixed on the sale deed. She stated that Kanauji Lal was witness of the sale deed. She could not state the number of plots purchased. The trial court found contradiction in her examination-in-chief and cross examination. It also found that in the copy of Khatauni brought on record name of Devidin is recorded as bhumidhar with transferable rights. The trial court found that the defendant has not been able to prove the payment of sale consideration. The trial court also found that sale deed was executed on 16.06.1994 but the name of defendant was not recorded in the revenue record for a long time. In the revenue receipt dated 12.02.2013 the name of plaintiff was found. The defendant stated that the sale consideration of the property was Rs.15,000/-. She stated in her cross examination that she paid aforesaid amount to the plaintiff before the registrar when in her examination-in-chief she stated that the money was paid in presence of son of Surendra Babu and marginal witness, Kanauji Lal before the registrar. The trial court also found that the defendant is not in possession over the suit property as claimed by her in her written statement since the plaintiff was paying revenue regarding the land in dispute and is in possession over the same.
7. Issue nos. 2,3 and 4 were decided in favour of the plaintiff.
8. Issue no.5 was also decided in his favour on the ground that suit is not barred by Section 331 of U.P.Z.A & L.R. Act since jurisdiction to cancel the sale deed is vested in Civil Court only by virtue of Section 31 of the Special Relief Act and not in the Revenue Court.
9. Issue no.6 was decided holding that the sale deed in dispute is the result of fraud and the sale deed dated 16.06.1994 was cancelled and the defendant was restrained from interfering him peaceful possession of the plaintiff.
10. The defendant preferred a Civil Appeal No. 84 of 2017 before the District Judge, wherein the Appellate Court framed the following points of determination as per Order 41, Rule 31 C.P.C as follows :-
(I) Whether the disputed sale deed dated 16.06.1994 was executed and registered by way of fraud without payment of sale consideration was a void document?
(2) Whether the plaintiff has any cause of action?
(3) Whether the suit of the plaintiff was barred by Section 331 of U.P.Z.A & L. R. Act ?
(4) Whether the suit of the plaintiff was barred by time ?
11. The point of determination no.1 was decided by the first appellate court holding that it is settled law that the plaint averments are required to be proved first by the plaintiff. He was required to prove whether he is blind. He has not produced any medical certificate in this regard. He has stated in his plaint that he is absolutely illiterate. When in his plaint and also in the statement recorded by the court, he has made is his signature. The signature have been made at the bottom of the page which shows that he is not blind. Plaintiff claimed that at the time of execution of sale deed his son was with him. He has not impleaded his son as party in the plaint nor led any such evidence to prove that along with him his son was also defrauded. In the sale deed his son, Surendra Babu, is one of witness. The court has found that neither plaintiff nor his son, Surendra Babu, ever made any complaint with the police nor filed any case before the court regarding fraud committed by defendant against them. The plaintiff has stated that he is quite old and physically emaciated and unable to see since 20-25 years. The sale deed was executed in 1994 when the examination-in-chief of the plaintiff was recorded before trial court dated 09.11.2010. He has not brought on record any medical certificate to prove that he is blind. The Court has found that at some place he was found to be having normal vision and at some places in his evidence he has denied his ability to see depending upon his interest. In the mutation case he never brought on record any expert evidence in this regard. In his cross examination the plaintiff has stated that he cannot say whether the document in dispute was scribed on the seat of Advocate or not when in the plaint he has admitted execution of document. In this cross examination he has stated that he does not know whether it was government office or bank where he was made to sign the papers. He further stated that he is not able to see for the last 16-17 years when in examination-in-chief he has stated that he is not able to see since last 20-25 years. He needed loan for purchasing goat and agricultural work, when in his plaint he has only stated that the loan was required for agricultural purpose.
12. In his cross examination the plaintiff claimed that Devi Prasad and PW-II Askaran were with him but in place of Askaran, Ram Jivan has been examined as PW-IV. The plaintiff had 1/8 share in the plot nos.120, 131 and 119 and his total share was two bighas 10 biswa., regarding which the sale deed was executed. The first appellate court has recorded the finding that had the sale deed been executed by way of fraud, the entire land of the aforesaid plots have been sold. The sale consideration could have been mentioned as Rs.32,000/- as per Government rate, instead of Rs.15,000/- mentioned in the sale deed. The sale deed bears the thumb impression of plaintiff, Devidin, and thereafter thumb impression of Surendra Babu and scribe of the deed sale have been affixed.
12. The first appellate court has found that provisions of Sections 58,59 and 60 regarding procedure and payment of document for registration have been fully complied in the case of disputed sale deed. It has further been observed by the first appellate court that the document cannot be declared to be void only in absence of payment of sale consideration. The plaintiff has not claimed any amount from the defendant towards sale consideration. The plaintiff executed the sale deed when he needed money and thereafter he has become dishonest and instituted the suit. There is allegation in the plaint regarding commission of fraud by husband of defendant, Ramsanehi, but he has neither been impleaded as party nor plaintiff has been able to prove the allegation against him before the court. The first appellate court found that the sale deed was executed after acceptance of sale consideration in accordance with law and duly registered by sub-registrar and hence the point of determination no.1 has been decided.
13. Point of determination nos.2,3 and 4 have been decided together.
14. The first appellate court has found that cause of action for instituting the suit has been shown on 25.03.2008. There is no explanation regarding this date of cause of action. The facts regarding fraud committed by husband of the defendant have not been stated in the plaint. He has not even been impleaded as party in the suit. There is no recital in the plaint as to how the Civil Court has jurisdiction to decide the suit about the sale deed. The suit has been instituted for cancellation of sale deed treating it as void, when the plaintiff admits due execution and registration of the same. The first appellate court has found that the question of declaration of rights is also involved but the suit has not been filed before the revenue court. In the appeal additional evidence was filed by defendant bringing on record the CH Form-11 and CH Form-23(1), wherein the name of defendant has been recorded over the disputed plots. The CH Form-11 was published on 15.02.1999 wherein the name of defendant has been duly recorded in consolidation proceedings. Thereafter, the Consolidation proceedings have been cancelled under Section 6 of U.P. Consolidation of Holdings Act but in the aforesaid consolidation proceedings the plaintiff came to know about the sale deed. After the cancellation of consolidation proceedings the defendant approached the revenue record for mutation of her name. The copy of the disputed sale deed was issued by the office of registrar on 07.04.2008.
14. On 09.09.2010 the name of defendant was mutated by the order of Tehsildar. If the period of limitation is calculated from the date of objection CH Form 11, 15.2.1999 then as per Article 59 of the Limitation Act the three years period had clearly expired when the Original Suit was instituted in the year 2008 by the plaintiff. Regarding the permanent injunction in support of the claim of his possession over the land in dispute, the plaintiff has filed receipt of irrigation wherein his name has been mentioned but first appellate court has found that it has not been proved by any witness. In the aforesaid receipt only signature of issuing authority is there. No details of his post, name and stamp are there. The form whereon receipt have been issued was of the year 1975 and therefore, the Appellate court has disbelieved the same. The first appellate court has not found the possession of the plaintiff over the land in dispute. The first appellate court has found that in his cross examination the plaintiff admitted that the defendant has forcibly cultivated the land and harvested the crops four times. The first appellate court has recorded the finding that no complaint regarding forcible cultivation and harvesting was made before the police nor any compliant was filed before the criminal court. The Appellate Court has found that in absence of any cause of action regarding the disputed sale deed the plaintiff has no cause of action for instituting the suit before the civil court and it was barred by Section 331 of U.P. Z.A and L.R. Act and accordingly, decided the three points of determination. Judgement and decree passed by the trial court has been set aside by the first appellate court and the suit of the plaintiff was dismissed.
Learned counsel for the plaintiff also submitted that the judgment of the first appellate court is not in accordance with law. He has relied upon the judgment of this court in the case of Jai Singh Vs. Iind Addl. District Judge, Muzaffarnagar and others, 2001(92) R.D. 817, wherein this Court held that the suit for cancellation of sale deed by person either recorded in the revenue papers or not is maintainable before the civil court only. He has further relied upon the judgment in the case of Kishori Prasad Vs. IIIrd Addl. District Judge, Varanasi and others, 2003(94) RD36 and has submitted that to declare the sale deed of earlier vendee as void suit by subsequent vendee will lie before the revenue court. He has further relied upon the case of Anil Rishi Vs. Gurbaksh Singh, (2006) 5 SCC 558 which is regarding the shifting of onus of proof . The judgement in the Krishna Mohan Kul @ Nani Charan Kul and anothers Vs. Partima Maity and others, reported in 2003 Supp (3) SCR 496, is regarding the scope of Section 100 CPC and also the principle of fiduciary relation-ship between the parties. Further reliance has been place upon the judgment of Sri Siya Ram and others Vs. Smt. Lilawati, AIR 1990 All 75, regarding burden of proof on the plaintiff. This court in the case of Narian Prasad Vs. D.D.C reported in 1997 Law Suit(All) 862 held that the sale deed without consideration is void unless it is covered under the exception mentioned therein.
Regarding the judgments cited by the learned counsel for the appellant, it is notable that first appellate court has found that the suit of the plaintiff regarding the cancellation of sale deed was barred by time and the plaintiff could not prove the cause of action regarding the cancellation of the disputed sale deed from the plaint averments and therefore, the suit was dismissed being barred by Section 331 of U.P.Z.A and L.R. Act and also being barred by time. The judgment in the case of Jay Singh (supra) will be of no help to the plaintiff-appellant since in this case the dispute was regarding cancellation of voidable document concerning agricultural land. The suit was instituted within time. In the case of Kishori Prasad (supra) this court held that where declaration of right as bhumidhar is involved and declaration of sale deed of earlier vendee as void on suit by subsequent vendee is filed, it is to be entertained by revenue court only. This judgment is of no help to the plaintiff-appellant. In the case of Anil Rishi (supra), the Apex Court clearly held that initial burden of proof of his case is on the plaintiff unless the plaintiff proves the same, he cannot succeed. However, in case there is allegation of fiduciary relation of the defendant with the plaintiff and defendant is in dominating position, the burden of proving, fraud, undue influence of misrepresentation is upon the defendant. There is no fiduciary relationship between the plaintiff and the defendant and therefore, it is of no help to the plaintiff-appellant. The case of Krishna Mohan Kul (supra) is also regarding the scope of 100 CPC and the issue of fiduciary was also involved in this case. In this case the reversal of burden of proof in the case of old, illiterate and ailing person was considered but in the present case the plaintiff has failed to prove himself as his illiterate and blind person as clearly held by the first appellate court. The trial court has not gone into this aspect. In the judgment of Sri Shiva Ram (Supra) also the reversal of burden of proof has been considered. In the case of Narain Prasad (supra), this Court held that a sale deed without consideration is void unless it is in writing and registered or it promised to compensate for something done or promised.
The lower appellate court has found that consideration of Rs.15,000/- was paid to the plaintiff by the defendants and therefore, this judgement of no help to the plaintiff-appellant.
In view of the above consideration, no substantial question of law arises for consideration in this appeal. Hence the judgment and decree of first appellate court are confirmed.
This Second appeal is dismissed under Order 41, Rule 11 CPC.
Order Date :- 21.09.2021
SS