List has been revised. Nobody has turned up even after the third call of the case nor there is any request for the respondent for pass over.
Substitution application for substituting the heirs of Mewa Ram, plaintiff/appellant is allowed.
The delay is condoned and the abatement, if any, is set aside. This second appeal has been filed challenging the judgement and decree passed by the learned Civil Judge, Etawah, dismissing the Civil Appeal No. 394 of 1976 and affirming the judgement and decree passed by the learned Additional Munsif-II, Etawah by which the suit of the plaintiff- appellant for declaration of the right, title and interest over the land in question and also for dispossession of the defendant respondent from the disputed land and seeking possession thereof by the plaintiff has been dismissed.
The suit was filed for the aforesaid reliefs against the defendant respondent's father (since deceased) by the plaintiff/appellant, inter alia, pleading that he was the owner in possession of the land in question. The facts of the case have been well incorporated in the two judgments passed by the two courts below, therefore, they need not be repeated in full for considering the case of the appellant.
Suffice is to mention that the plaintiff claimed that he was the owner of the land in question by virtue of the patta granted by the Gram Samaj on 25th March, 1966. The land was adjacent to the ancestral land of the plaintiff and the plaintiff/appellant was using the same by tethering cattle and other domestic purposes. It was because of the threat extended by one Sita Ram and his men to take possession of the land in question, the plaintiff executed a sale deed in favour of defendant respondent no.1, so that he could be saved from the threats extended by Sita Ram and his associates though, in fact, the said sale deed was a sham transaction so to say Benaami entered in between the plaintiff and defendant no.1 only to save his property from the clutches of Sita Ram and his men, while, in fact, the possession was actually never 2 delivered to respondent no.1 and the money was never paid to the plaintiff.
The defendant/respondents had disputed the aforesaid claim by filing the written statements, wherein it was clearly stated that the defendant no.1, namely, Munshi Lal had purchased the disputed land by virtue of the sale deed executed by the plaintiff with respect to Plot No. 7, Arazi 87 for the given area on 1st November, 1966 alongwith the trees standing thereon. The possession was also delivered to Munshi Lal by the plaintiff and the plaintiff ceased to have any interest on Plot No.7 after the execution of the sale deed. After the purchase of the land, the defendant no.1 surrounded the land with pucca walls. He used to tether his cattle on the disputed land. He had a fodder cutting machine and other articles of domestic use on the said land. He also constructed the house on the disputed land by investing Rs. 4000/-. It was also specifically pleaded that the plaintiff had filed the suit concealing the sale deed due to his ill motive, therefore, the defendant is entitled to special costs.
The learned trial court dismissed the aforesaid suit after recording findings that the appellant was not the owner of the disputed house and that the suit was barred by the principle of estoppel and plaintiff was also not entitled to get the possession.
Aggrieved by the judgment and decree passed by the learned trial court, first appeal was filed by the plaintiff, which has been dismissed by the appellate court on 15th April, 1978.
The appellate court has also affirmed the findings recorded by the learned trial court with respect to the right, title and interest and possession of the defendant over the property in question and has thus, refused to grant any relief to the plaintiff.
I have gone through the orders passed by the courts below. The learned appellate court has rightly observed that the theory set up by the plaintiff/appellant that in order to save his land from the alleged forcible possession to be taken by Sita Ram and his associates, he executed the sham sale deed in favour of defendant no.1, is a story which is improbable and difficult to believe.
Human conduct of a person of ordinary prudence defies the theory, as for saving the property from the hands of a powerful and mighty person, he would not execute a registered sale deed in favour of another person (defendant no.1), which will mean handing over the property to another 3 person and thus, leaving the property. The plaintiff very well knew that after the execution of the registered sale deed and delivering actual possession to the vendee, the said right, title and interest of the vendee (the plaintiff) would cease.
It is not only a concocted story but hard to believe that the plaintiff would have entered into such a transaction risking his own title and possession by execution of such sale deed, just to save his property by subsequently taking a plea that it was a sham or Benaami transaction.
A person who had executed the registered sale deed, knowing fully well about the consequences thereof, in favour of a person, with whom he is not in any relationship, the question of such a transaction being Benaami would not arise and the sale deed so executed would thus be final and binding, which will determine the rights of defendant.
There is one more circumstance which defeats the theory viz. the sale deed was executed on 1st November, 1966 and the suit was filed after several years in the year 1972.
During all this period, as per the case of the defendant, he was using the said land and had also constructed his house but at no point of time, the plaintiff raised any grievance nor agitated the matter. Had it been a sham transaction, the plaintiff would not have sat quiet for such a long time.
Both the courts below have come to the conclusion that the defendant no.1 was actually in possession and that he was enjoying the property right from the date of the execution of the sale deed. These findings have been recorded after appreciating evidence both, documentary as well as oral, therefore, it being findings of fact, are not liable to be interfered in second appeal.
Lastly, the appellate court has also observed that oral evidence which tends to contradict the written document, namely, the registered sale deed and the terms thereof, would neither be admissible nor reliable.
I do not find any illegality or infirmity in the aforementioned two orders of the courts below, much less no substantial question of law arises, for being decided in second appeal.
The appeal being devoid of merit, is liable to be dismissed. The appeal is accordingly dismissed. No order as to costs.
Order Date :- 8.1.2010 shailesh