RESERVED
Court No. - 1
Case :- SECOND APPEAL No. - 150 of 2017 Appellant :- Pooran Lal Respondent :- Shree Bhagwan Agarwal Counsel for Appellant :- , ,Mohammad Hisham Qadeer Counsel for Respondent :- Ramendra Asthana,Kshitij Shailendra,Prashant Kumar Tripathi
Hon'ble J.J. Munir,J.
This is a plaintiff's second appeal, arising from a suit for cancellation of sale deed. Original Suit No. 485 of 2004 was instituted by Pooran Lal against Shri Bhagwan Agarwal, seeking cancellation of the registered sale deed dated 29.05.2004 and a registered deed of rectification of the last mentioned instrument.
2. The case set up in the plaint, giving rise to the suit on the file of the Civil Judge (Senior Division), Bareilly is that the plaintiff is the owner in possession of a house, along with land situate at Udaipur Khas, Tappa Maroof, Premnagar, Pargana Tehsil and District Bareilly and bounded as detailed at the foot of the plaint. The said property shall hereinafter be referred to as “the suit property”. It was asserted that the plaintiff's father, Ganga Ram, during his lifetime, executed a will in his favour dated 16.09.1988, devising the suit property to him, and at the same time, bequeathing his house situate at Mohalla Bajariya, Bareilly in favour of the plaintiff's brother, Moolchand. The plaintiff's father, Ganga Ram, passed away on 05.11.1988, and succession opened out in terms of the will last mentioned. The plaintiff became the absolute owner in possession of the suit property. It was also pleaded that the plaintiff had to institute a suit, seeking a declaration of his rights and permanent injunction with regard to the suit property against his brother, Moolchand and his brother's daughter, Smt. Kamlesh Srivastava. The said suit was numbered as Original Suit No. 602 of 2000 on the file of the Civil Judge (Senior Division), Bareilly. The suit, going by the time when the plaint here was drawn, was pending before the Additional Civil Judge (Senior Division) IV, Bareilly. It is also stated that the plaintiff is employed with the Irrigation Department at Izzatnangar, Bareilly and a simpleton. One of the plaintiff's sons, Rajesh Kumar, had lived with his brother, Moolchand and it was Moolchand who had brought him up. Rajesh Kumar was employed with the Life Insurance Corporation of India and posted at Rampur Garden, Bareilly, where he worked for a considerable period of time. The defendant, Shree Bhagwan Agarwal, was also employed with the Life Insurance Corporation of India and worked at the Rampur Garden, Bareilly Office of the Corporation. The workplace association between Rajesh Kumar and Shree Bhagwan Agarwal, the defendant led to fosterage of a personal friendship between the two. They would visit each other's homes. The family members of the two, in course of time, grew to share a family-like relationship. The plaintiff would treat the defendant like his son and would speak to him like one. The plaintiff reposed confidence in the defendant. The plaintiff says that the defendant wielded a lot of influence over the former, and that the plaintiff never doubted the defendant.
3. The plaintiff asserts that the defendant advised him that he should sue his brother, Moolchand, and took him to a lawyer. The plaintiff was introduced by the defendant to Mr. Kishori Raman Saxena, Advocate who was engaged by the plaintiff at the defendant's suggestion. The learned Counsel last mentioned drew up pleadings etc. to institute a suit against the plaintiff's brother. During course of time, the defendant's influence over the plaintiff grew. It is asserted that the defendant told the plaintiff that the latter should do as the defendant bade him. This was said on a representation that the plaintiff would win the litigation with his brother and the plaintiff believed the defendant. It is also pleaded that the defendant assured the plaintiff that the latter need not bother about the litigation, as he would pursue the same. But, for the purpose, the plaintiff should execute a sale deed of the suit property subject matter of Original Suit No. 602 of 2000 in favour of the defendant. The plaintiff was assured that once the defendant won the case, the latter would re- convey the suit property to the former. It was represented to the plaintiff by the defendant that transfer of suit property to the defendant would enable him to prosecute the suit. The plaintiff believed the defendant for every word of his and signed papers, as desired by the defendant. The defendant got some blank papers signed by the plaintiff and some relating to O.S. No. 602 of 2000. It is pleaded that the plaintiff was under profound influence of the defendant, so much so, that the plaintiff would do as the defendant told him.
4. It is then asserted in Paragraph No. 16 of the plaint that on 16.05.2004, the defendant asked the plaintiff, the plaintiff's son and his wife that the sale deed had already been executed in his favour and now, the plaintiff may as well deliver up possession of the suit property to him. The defendant said that now he would live there and that he had got an application made in Original Suit No. 602 of 2000 for the purpose of being impleaded as plaintiff in the said suit. It was on the said revelation that the plaintiff realised about the fraud committed by the defendant. He secured a certified copy of the sale deed executed in favour of the defendant for the purpose of instituting the present suit. It is asserted that the plaintiff realised that the defendant had harboured ill intentions all along and by practice of fraud and deceit, got a sale deed of the suit property executed in his name during the pendency of O.S. No. 602 of 2000. It has particularly been pleaded that after the execution of registered sale deed dated 29.05.2001, the defendant had asked the plaintiff to execute a deed of rectification to the original instrument, which the plaintiff did on 31.05.2001. The sale deed dated 29.05.2001 was assailed as fraudulent and a sham. It was asserted that the plaintiff never intended to convey the suit property to the defendant, and that the defendant had secured the sale deed by deceitful means. The suit property was never sold to the defendant, nor the plaintiff ever received any sale consideration from the defendant.
5. The defendant appeared in the suit and put in his written statement. He wholesomely denied the plaint allegations and came up with his defence by way of additional pleas. It was the defendant's case that the plaintiff represented to him that he was the absolute owner of the suit property that he had inherited under his father's will. He wanted to sell the suit property and negotiated its terms. The plaintiff executed the requisite sale deed on 29.05.2001, which was registered in the Office of the Sub-Registrar, Bareilly. The impugned sale deed was executed by the plaintiff of his freewill, after receiving the agreed sale consideration. It is said that it is true that the plaintiff was serving in the Irrigation Department and that he is an educated, intelligent and cunning person. It was not disputed for a fact that the plaintiff was employed in the Life Insurance Corporation of India, but it was denied that he knew the plaintiff's son, Rajesh Kumar. It was also asserted that the Life Insurance Corporation of India had various offices in Rampur Garden, Bareilly and Rajesh Kumar and the defendant were never posted together in the same office. It was also refuted that the defendant and Rajesh Kumar were friends or that they would visit each other. The assertion that the plaintiff treated the defendant as a member of his family was denied. The proximity alleged by the plaintiff was refuted.
6. The plaintiff's case that it was the defendant who advised the former to sue his brother, Moolchand was denied. It was also denied that the defendant ever introduced the plaintiff to Mr. Kishori Raman Saxena, Advocate. It was also denied for a fact that the plaintiff was under any kind of influence of the defendant or the defendant had assured the plaintiff of success in litigation against his brother. The defendant has asserted that he does not know anything about the law or business in Court. The circumstances in which the sale deed was executed, as asserted by the plaintiff, were dispelled as also the fact that the plaintiff was tricked into signing blank papers by the defendant. It was also denied for a fact that the plaintiff was under any kind of influence of the defendant, or the latter was in a position to dominate the former or guide his actions.
7. It was denied that the plaintiff is in possession of the suit as its owner. His position is that of a tenant under a qabuliat executed by the plaintiff in favour of the defendant. The allegation about the defendant meeting the plaintiff or his family members on 24.05.2004, the date when facts constituting the cause of action have been alleged, were also denied. It was asserted that execution and registration of the impugned sale deed, was a voluntary act of the plaintiff's. He sold his property for a valuable sale consideration. The plaintiff admitted execution of the sale deed and the receipt of consideration before the Sub-Registrar. It is asserted that he executed and presented the sale deed for registration, with full knowledge of the contents thereof. The Sub-Registrar read over and explained to him the contents of the sale deed and ascertained from the plaintiff receipt of consideration before securing his signatures and thumb impressions for the purpose of registration of the document.
8. It is particularly pleaded that the two witnesses of the sale deed are Smt. Rani, the plaintiff's wife and Vijay Kumar, the plaintiff's son. The fact that the sale deed was witnessed by the plaintiff's wife and son clearly establishes the bona fides of the transaction embodied in the sale deed and that it is the result of a free consent of the plaintiff's, well to the knowledge of his family. It is pleaded in Paragraph No. 37 of the written statement that there were some clerical errors in the description of boundaries detailed in the impugned sale deed dated 29.05.2001. Upon revelation of the said fact, the defendant asked the plaintiff to execute a deed of rectification, which the plaintiff executed on 31.05.2001. It was got registered also on 31.05.2001 before the Registration Authorities at Bareilly. Smt. Rani and Vijay Kumar, the plaintiff's wife and son, respectively, also witnessed the deed of rectification. It was the plaintiff who presented the deed of rectification to the Sub-Registrar for registration, accompanied by his wife and son, who also affixed their signatures and thumb impressions before the Sub- Registrar. It was also pleaded by the defendant that the scribe, who drafted the sale deed and the deed of rectification, was a man of the plaintiff's confidence and engaged by him for the purpose. Marriage of the plaintiff's daughter Bageswhari alias Seenu was solemnised in the month of November. It was to defray the expenditure of the said marriage that the plaintiff sold his suit property to the defendant. Formal pleas were also raised that the suit was under-valued and that it was barred by estoppel and acquiescence. There is also a plea that the suit is ill-framed and does not plead the particulars of misrepresentation, fraud or breach of trust or undue influence, with specific dates and necessary events. The plaint, it was urged, was therefore liable to be rejected under Order VII Rule 11 CPC.
9. On his pleading as a whole, the defendant asked the suit to be dismissed with costs.
10. On the pleadings of parties, the Trial Court proceeded to frame the following issues (translated from Hindi to English) :
(i) Whether the sale deed in question on the grounds pleaded is fraudulent and liable to be cancelled?
(ii) Whether the suit is barred by provision of Order VII Rule 11 CPC?
(iii) Relief to which the plaintiff is entitled.
(iv) Whether the suit is barred by time?
(v) Whether the plaintiff is in possession of the suit property as its owner or as a tenant, as the defendant asserts?
(vi) Whether the suit is barred by estoppel and acquiescence?
11. The suit went to trial before the Additional Judge, Small Causes Court/Additional Civil Judge (Senior Division), Bareilly where voluminous documentary as well as oral evidence was led. The Trial Judge, by her judgment and decree dated 03.09.2014, dismissed the suit with costs. The plaintiff appealed the decree to the learned District Judge, Bareilly, where the appeal was registered as Civil Appeal No. 105 of 2014. The appeal, upon assignment, came up before the Additional District Judge, Court No. 6, Bareilly on 18.10.2016, who heard and dismissed the same by a judgment and decree of the last mentioned date.
12. Dissatisfied, this appeal has been instituted by the plaintiff.
13. Heard Mr. P.K. Jain, learned Senior Advocate assisted by Mr. Himanshu Singh, learned Counsel for the plaintiff in support of motion under Order XLI Rule 11 CPC and Mr. Kshitij Shailendra, learned Counsel appearing on behalf of the defendant.
14. It has been urged by the learned Senior Advocate appearing for the plaintiff that the Lower Appellate Court has committed a gross error of law in not framing points of determination, as required under Order XLI Rule 31 CPC. He moots the said point as a substantial question of law on which this appeal ought to be admitted and heard. It has been asserted with reference to Ground II raised in the memorandum of appeal that the Lower Appellate Court has grossly erred in not deciding Issue Nos. 2, 4, 5 and 6, falling for this error by observing that no plea in challenge to findings on the said issues was raised, whereas specific arguments were addressed before the Lower Appellate Court, challenging the findings of the Trial Court on those issues.
15. No doubt, the Lower Appellate Court has remarked that no submission in criticism of the Trial Court's findings on Issue Nos. 2, 4, 5 and 6 have been made, but this Court must say that if those submissions were made, it it a case where the plaintiff ought to have filed a review before the Court that made these observations. It is impossible for this Court to go into the truth of the assertion that findings of the Trial Court on Issue Nos. 2, 4, 5 and 6 were criticised before the Lower Appellate Court, which has observed in error that these findings were not assailed. The Lower Appellate Court, after observing that no submissions were made in criticism of the findings recorded by the Trial Court on Issue Nos. 2, 4, 5 and 6, has made a short shrift of the matter, saying that the findings have been perused, which, going by the evidence on record, have been correctly recorded by the Trial Court.
16. This kind of a finding would generally not satisfy the duties of a Court of First Appeal, but the case here is different. Issue No. 2 is whether the suit is barred under Order VII Rule 11 CPC. This is a defendant's issue. If the findings of the Trial Court on Issue No. 2 have gone in the plaintiff's favour, though the words employed are slightly ambiguous, it would make little difference whether the Lower Appellate Court has reappraised it wholesomely or not. If the ambiguity in the words of the Trial Court while returning its findings on Issue No. 2 is to be read against the plaintiff, no different consequence would follow with the Lower Appellate Court not examining the issue. This is because of the fact that the Lower Appellate Court has considered under the point of determination framed by it the principal issue between the parties whether the sale deed impugned was the result of fraud and/or undue influence practiced by the defendant. Therefore, after the Lower Appellate Court found that there was no worth in the evidence led about the plaintiff's case raised in challenge to the impugned sale deed, the finding on the issue whether the plaint was liable to be rejected under Order VII Rule 11 CPC loses significance.
17. So far as Issue No. 4 is concerned, the issue is whether the suit is barred by limitation. The Trial Court has clearly held that the suit was instituted on the last day of limitation and was within time. The findings on Issue No. 4 by the Trial Court, being in the plaintiff's favour, its non- examination by the Lower Appellate Court is of no consequence.
18. Now, so far as Issue No. 5 is concerned, it is about the issue whether the plaintiff is in occupation of the suit property as its owner or a tenant. The said issue has been thoroughly examined by the Lower Appellate Court while returning its findings on the point of determination framed, where the plaintiff's case in challenge to the impugned sale deed has been considered and dealt with in every detail. The finding of the Lower Appellate Court is clear that the plaintiff is in occupation of the suit property under a qabuliat as a tenant, and not in his right as the owner. Therefore, by not framing a point of determination specifically corresponding to Issue No. 5, it is not that the case of parties has not been considered. Rather, it has been extensively reviewed by the Lower Appellate Court.
19. Now, so far as Issue No. 6 is concerned, that has been answered against the plaintiff by the Trial Court, holding that the suit is barred by estoppel and acquiescence. But the Lower Appellate Court, while writing the impugned judgment, has dealt with the parties' case that was principally in issue, that is to say, whether the impugned sale deed is vitiated by fraud and undue influence. Once that issue has been answered against the plaintiff on a full review of the evidence, it would make no significant difference whether the issue relating to the suit being barred by estoppel and acquiescence was redetermined, on a wholesome review of evidence by the Lower Appellate Court.
20. In this view of the matter, the aforesaid substantial question, based on compliance with the provisions of Order XLI Rule 31 CPC does not arise on the terms of the impugned judgment passed by the Lower Appellate Court.
21. Now, so far as principal issue about the impugned sale deed being vitiated by fraud and undue influence is concerned, the Lower Appellate Court has reviewed meticulously the case of parities and the evidence led to reach a conclusion that the impugned sale deed embodies a bona fide transaction that was done in the manner it is recorded in the instrument. The Courts below concurrently have found the case pleaded by the plaintiff to seek cancellation as one that is unbelievable. To the above end, documentary, oral and circumstantial evidence has been meticulously examined. The evidence, both oral and documentary, about various events, has been examined to conclude that there was indeed no personal acquaintance, let alone a family friendship between the plaintiff and the defendant. There has been a careful evaluation by the Lower Appellate Court of two documents – Paper 101Ga and 103Ga, where the defendant had stood guarantor – in one case for the plaintiff's son to avail a loan from the society and in another, as a surety in a criminal matter for the plaintiff's wife. These were cited as instances showing a family bonding by the plaintiff.
22. The Lower Appellate Court, on a careful sifting of evidence, found that there was a common friend by the name Shyam Mohan, who knew both Rajesh Kumar, the plaintiff's son on one hand and the defendant on the other. In the case of society loan, the defendant stood guarantor for the plaintiff's son at Shyam Mohan’s instance. The defendant stood as the second guarantor for the plaintiff's son. Likewise, in the criminal matter, Shyam Mohan stood as surety for the plaintiff's son and since another surety was required for the plaintiff's wife, on Shyam Mohan's request, the defendant had stood surety for the plaintiff's wife and son, particularly as the plaintiff's son was an employee of the Life Insurance Corporation of India, where the defendant worked.
23. The Lower Appellate Court has concluded that from this evidence, there was nothing to show that there was a personal or a family kind of bonding between the plaintiff and the defendant. The Lower Appellate Court has also remarked that Rajesh Kumar, the plaintiff's son, who is said to be a colleague-turned-friend to the defendant's son, would be the best witness about the case built on the edifice of this personal relationship. But Rajesh Kumar was never examined as a witness. An adverse inference due to non-examination of Rajesh Kumar has been drawn against the defendant, to which no exception can be taken. It has particularly been recorded, amongst other matters, by the Lower Appellate Court that the plaintiff was an employee of the Irrigation Department. It has been remarked that he is an educated and intelligent man, employed in Government Service. It is difficult to believe that on the mere bidding of the defendant, he would execute a sale deed of the suit property for the purpose of enabling the defendant to prosecute O.S. No. 602 of 2000 against the plaintiff's brother, without receiving any sale consideration.
24. It has been noticed by the Lower Appellate Court that much of the plaintiff's case is built on the role played by Mr. Kishori Ram Saxena, Advocate, whose name is said to have been suggested to the plaintiff by the defendant to pursue O.S. No. 602 of 2000 against the plaintiff's brother. In this connection, it has been remarked by the Lower Appellate Court that Mr. Saxena, though cited as a witness in the list of witnesses filed on behalf of the plaintiff, was never called and examined by the plaintiff in support of his case. Due to non-examination of Mr. Saxena also, an adverse inference has been drawn against the defendant. In the opinion of this Court, that too is ex-facie a plausible inference. The details of the date of marriage of the plaintiff's daughter and the transaction of sale have been compared in meticulous detail by the Lower Appellate Court to find that the date of the impugned sale deed and the time of the plaintiff's daughter's marriage coalesce. It appears from the evidence led on behalf of the plaintiff that he had attempted to place his elder daughter's marriage in time at variance with the transaction that the impugned sale deed embodies. But the Lower Appellate Court, on an analysis of the evidence, particularly about the age of the plaintiff's daughter's child, reflected in the school records, holds the marriage and the impugned sale deed to be contemporaneous. From these facts also, the transaction has been believed to be a bona fide case of sale that the plaintiff voluntarily entered into in order to defray the expenses of his daughter's marriage.
25. In view of the concurrent findings of fact which the two Courts below have recorded, this Court is of opinion that no substantial question of law arises in this appeal.
26. In the result, this appeal fails and is dismissed under Order XLI Rule 11 CPC.
Order Date :- October the 7th, 2021 I. Batabyal (J.J. Munir, J.) **********