JUDGMENT Mukteshwar Prasad, J.
1. This first appeal under Section 54 of the Land Acquisition Act, 1894 (hereinafter referred to as the 'Act') by Smt. Sureshwati (claimant) is directed against the judgment and decree dated 24.1.2001 passed by District Judge, Gautam Budh Nagar whereby he found that neither the claimant nor M/s NSR Farms Pvt. Ltd. is entitled to receive compensation in respect of Khasra No. 554/3 area 5-0-0 Bighas situate in village Geja Tilaptabad, Pargana and Tehsil Dadri, District Gautam Budh Nagar and the land in question would be deemed to have been resumed by the State.
2. In brief, the facts of the case giving rise to this appeal are as under:-
It appears that the land recorded as Khasra No. 554/3 area 5-0-0 Bighas situate in village Geja Tilaptabad, Pargana and Tehsil Dadri, District Gautam Budh Nagar was acquired for the planned development of New Okhla Industrial Development Authority. In the Revenue records, the name of Smt. Sureshwati, widow of Shri Ram, was recorded as Bhumidhar with non- transferable rights. Therefore, the compensation under Section 11 of the Act was prepared in her name. However, M/s NSR Farms Pvt. Ltd. 11, Sadhna Enclave, New Delhi preferred a claim for payment of compensation of the land in question on the ground of being a transferee of Smt. Sureshwati. An objection was filed. Since M/s NSR Farms Pvt. Ltd. and Smt. Sureshwati were claiming their rights for payment of compensation in respect of the aforesaid Khasara No.554/3, area 5-0-0 Bighas, the Additional District Magistrate (Land Acquisition Officer) NOIDA, Gautam Budh Nagar made a reference to the District Judge under Section 30 of the Act for determining the person/persons to whom the compensation or any part thereof is payable.
3. Notices were issued to the claimants, who appeared in the court below and filed their written statement/objections.
4. It was alleged by M/s NSR Farms Pvt. Ltd. that Smt. Sureshwati was Bhumidhar with transferable rights of Khasara No. 554/3, area 5-0-0 Bigha and she accepted Rs. 1,80,000/- as sale consideration and executed a registered sale deed in favour of M/s NSR Farms Pvt. Ltd. on 2.12.88. The registration took place at the office of Sub-registrar, Dadri. Smt. Nirmala Sethi had given all papers to one Suresh Chandra Sharma, a deed writer, for mutation. He, however, did not apply for mutation in the court of Tehsildar Dadri. Smt. Nirmala Sethi and her husband went abroad and stayed there. When Smt. Sethi inquired on 28.9.99 about mutation, she came to know that the land in question had been acquired for planned development of NOIDA and possession had also been delivered. Smt. Sethi claimed herself to be an absolute owner and in possession. The sale deed in question had not been cancelled by any competent court.
5. Smt. Sureshwati filed written statement/objection claiming herself to be Bhumidhar of the plot with non-transferable rights and the land was acquired from her possession. She asserted that the land in question was neither sold to M/s NSR Farms Pvt. Ltd. nor Smt. Nirmala Sethi nor any sale consideration was paid to her. The lady claimed that the disputed land was allotted to her as non-transferable Bhumidhar vide resolution- dated 11.2.1981 passed by the Land Management Committee. Moreover, on 2.12.88 she had no right to execute sale deed in favour of Smt. Nirmala Sethi and as such, the sale deed in question is a void document. According to her, she needed money and contacted Sri Suresh Chandra Sharma, a deed writer at Dadri in this regard. Sri Sharma pleaded his inability in advancing any loan. He, however, assured that he would arrange a loan of Rs. 15,000/- on the condition that some papers would have to be prepared. She is a rustic villager and is an illiterate lady. She therefore affixed her thumb impression on some papers through which loan was advanced to her. Smt. Nirmala Sethi had advanced a loan of Rs. 15,000/-. She never executed any sale deed voluntarily nor affixed her thumb impressions knowing that she was transferring her land. Moreover, the alleged sale deed was never read over and explained to her. She was not paid Rs.90,000/- before the Sub-registrar. The alleged sale deed was obtained by her by practicing fraud and misrepresentation.
6. The State of U.P. also filed an objection alleging therein that Khasara No.554/3, area 5-0-0 Bighas was given to Smt. Sureshwati on lease by Land Management Committee vide resolution dated 11.2.1981 and she became Bhumidhar with non-transferable rights. She, however, executed a registered sale deed on 2.12.88 in favour of M/S NSR Farms Pvt. Ltd in contravention of the provisions contained in Section 166 of UP. Z.A & L.R Act and all such transfers are void and all rights and interest of the lady extinguished in the land as provided in Section 190 (1) (cc) w.e.f. 2.12.88 and the land vested in the State Government free from all encumbrances. M/S NSR Farms Pvt. Ltd. did not apply for mutation deliberately and both are in collusion with each other in order to get compensation. Since the transfer had taken place prior to publication of the notification under Section 4(1) of the Act, both parties are not entitled to recover any compensation.
7. The court below framed the following issues:-
1. Whether M/s N.S.R. Farms, Pvt. Ltd. is entitled to receive compensation of Khasra No. 554/3, area 5-0-0 Bigha village Gejha Tilaptabad pargana and Tehsil Dadri Distt. Gautam Budh Nagar, being the owner of said khasra No. through sale deed 2.12.88 allegedly executed by Smt. Suresh Wati in favour of M/S NSR Farms Pvt. Ltd., or Smt. Suresh Wati is the 'Bhumidhar' of the said plot and entitled to receive compensation?
2. Relief?
3. Whether the sale deed dated 2-12-88 allegedly executed by Smt. Sureshwawti in favour of M/S NSR Farms Pvt. Ltd. is void as alleged in para 3 of the objections of State paper No. 27-C? If so, its effect?.
8. Issues No. 1 and 3 were disposed of together and the learned District Judge came to the conclusion that sale deed dated 2.12.88 in question was executed by Smt. Sureshwati in favour of M/s NSR Farms Pvt. Ltd. after receiving Rs. 1,80,000/- as consideration and the theory of obtaining loan from Smt. Nirmala Sethi was false. He further held that transfer of land being in contravention of the provisions of Section 166 of U.P. Z.A. & L.R Act is void and the land in dispute vested in the State Government free from all encumbrances and the State is entitled to recover the compensation (only market value). Hence this appeal.
9. A cross objection under Order 41 Rules 22 and 33 C.P.C. was also filed on behalf of M/s NSR Farms Pvt. Ltd. mainly on the ground that the court below committed manifest error of law in holding that the State is entitled to get compensation and the State was not necessary party to the reference made in the court below under Section 30 of the Act and State has no right to file objection. The controversy was as to who is entitled to receive compensation, Smt. Sureshwati or the cross objector (M/s NSR Farms Pvt. Ltd.). The sale deed in question was not a void document as held by the learned District Judge.
10. I have heard Sri B. Dayal, learned counsel for the appellant and Sri Amit Krishna, learned counsel for the respondent at length and learned Standing Counsel also. I have gone through the record carefully.
11. The following points, in my opinion, arise for determination in the appeal/cross objection: -
(1) Whether Smt. Sureshwati who was a Bhumidhar with non-transferable rights had executed a registered sale deed on 2.12.88 in favour of M/s NSR Farms Pvt. Ltd. after receiving a consideration of Rs. 1,80,000/- in respect of Khasara No.554/3, area 5-0-0 Bighas situate in village Geja Tilaptabad, Pargana and Tehsil Dadri, District Gautam Budh Nagar ?
(2) Whether Smt. Sureshwati is entitled to recover the amount of compensation under the award prepared under Section 11 of the Act or M/S NSR Farms Pvt. Ltd. is entitled to get compensation?
Point No. 1.
12. Learned counsel for the appellant has assailed the finding of the court below on issue no.1 mainly on the grounds that, as admitted by the State of U.P. also, vide resolution dated 11.2.81 of Land Management Committee the land in dispute was allotted to the appellant on lease as a war widow and she became Bhumidhar with non-transferable rights. This Patta in favour of the lady was cancelled on 12.2.88 by the Collector on the ground that the proper procedure was not followed. The lady filed a revision before Commissioner, Meerut Division which was also dismissed by the Additional Commissioner on 20.5.88. Aggrieved by this order, the appellant filed revision no.110 of 1987-88 in the Board of Revenue, U.P. at Allahabad which was allowed on 24.6.99 and the judgment dated 20.5.88 and 12.2.88 were set aside and the resolution dated 11.2.81 allotting land in favour of the lady was held to be according to law. It was, therefore, urged on behalf of the appellant that on 2.12.88 Patta made in favour of the lady had been cancelled by the Collector as well as Additional Commissioner and the allotment made in favour of the appellant was revived on 24.6.99 by the judgment rendered by the Board of Revenue. Therefore, there was no question of executing any sale deed in favour of M/s NSR Farms Pvt. Ltd. by the lady. Even if Patta was taken to be always valid, the lessee had non-transferable Bhumidhar rights and thus, no valid title could have been transferred through sale deed. Moreover, it does not inspire confidence that the Company did not pay the sale consideration through cheque or bank draft and paid in cash. The original sale deed was never produced in the court below by the transferee and no attesting witness was examined to prove the deed. Admittedly, no mutation had taken place in revenue records and the court below committed error in believing and relying certified copy of the sale deed contrary to the provisions of Evidence Act. Smt. Nirmala Sethi did not appear in the witness box to prove that a sum of Rs.1,80,000/- was paid to Smt. Sureshwati as consideration and sale deed was executed. According to appellant's learned counsel Smt. Sureshwati needed money and a sum of Rs. 15,000/- was given to her as loan by Smt. Nirmala Sethi at the instance of Sri Suresh Chandra Sharma. It was also urged that the appellant is an illiterate rustic lady of a village and she is entitled to all protections available to a Pardanashin woman.
13. Reliance was placed by the appellant's learned counsel on the following decisions. -
1. Dularey v. Dy. Director of Consolidation, Basti and Ors. 1997 R.D. 206.
2. Manjoor Ali and another v. Kishmat Ali and Ors., [2004 (96) RD 596].
3. Nar Singh v. Deputy Director of Consolidation, Basti and Ors., [2002 (93) R.D. 346].
14. Sri Amit Krishna, learned counsel for M/s NSR Farms Pvt. Ltd. has contended that in fact no sale deed was executed by Smt. Sureshwati. She was advanced a loan of Rs.15,000/- and with a view to ensure repayment of the loan, a sale deed was got executed. He frankly admitted that Smt. Sureshwati did not execute the sale deed knowingly.
15. I have considered the submissions made on behalf of the parties and have perused the entire record, including oral and documentary evidence led by the parties. In the instant appeal, the question is whether Smt. Sureshwati, a Bhumidhar, with a non-transferable right executed a registered sale deed on 2.12.1988 in favour of M/s NSR Farms Pvt. Ltd and received Rs. 1,80,000/- as consideration. The lady claimed that she being an illiterate rustic woman of a village was entitled to all protections available under the law to a Pardanashin woman and learned counsel in support of his contention placed reliance on a decision of this Court in Nar Singh v. Deputy Director of Consolidation, Basti and Ors., [2002 (93) R.D. 346]. Now it is well settled that the principles of Pardanashin lady have been extended to illiterate man and woman also in our country and the burden of proof of due execution of the sale deed by Smt. Sureshwati was upon the vendee. Before proceeding further, it may be mentioned here that learned counsel for M/s NSR Farms Pvt. Ltd. admitted in the course of argument that a sum of Rs. 15,000/- only was advanced as loan and she executed no sale deed:
16. After having considered the submissions of the appellant's learned counsel, I find force in his contention. First of all, there is reliable documentary evidence on record to the effect that the Patta made in favour of the lady was not inexistence and had been cancelled by the Collector of the district on 12.2.1988 and the learned Commissioner, Meerut dismissed the revision also on 20.5.1988. Therefore, there was no lease in favour of the lady on the alleged date of execution of the sale deed and she had no right to execute the sale deed.
17. The lady examined herself to prove that she received Rs.15,000/- only as loan from Smt. Nirmala Sethi and had affixed her thumb impression on several papers at the instance of Suresh Chandra Sharma. She stated categorically that she never executed any sale deed nor received Rs.1,80,000/- as consideration. Moreover, no document was read over and explained to her.
18. On the other hand, Shiv Prasad Sethi, who happens to be son-in- law of Smt. Nirmala Sethi holding general power of attorney on behalf of Smt. Nirmala Sethi appeared in the witness box to prove the execution of the sale deed in question. He claimed to have been present in the office of Sub-registrar and claimed that when the deed writer presented the sale deed for registration, Smt. Sureshwati was also present there and Ishwar Tyagi and Hare Ram signed as a marginal witnesses. In cross- examination, the witness testified that he or his mother-in-law never inspected the documents of the land. He set up an altogether different story and claimed that an agreement to sell was also executed by Smt. Sureshwati and she accepted Rs.90,000/- as advance. It is noteworthy that neither agreement to sell nor the original sale deed was produced in the court below for the reasons best known to the witness and the respondent. The witness failed to identify Smt. Sureshwati in the court and pleaded his inability.
19. No marginal witness of the sale deed was examined to prove the execution of sale deed. Admittedly, no mutation was got done in revenue records. Besides, I find that non-production of the original sale deed in the instant case is fatal and the learned Judge committed error of law in placing reliance on the certified copy of the sale deed. In Uttar Pradesh Section 90 of the Evidence Act was amended and Section 90A was added. Sub-section (1) and Sub-section (2) of Section 90A run as under:-
"90-A. (1) Where any registered document or a duly certified copy thereof or any certified copy of any document which is part of the record of a Court of justice, is produced from any custody which the Court in the particular case considers proper, the Court may presume that the original was executed by the person by whom it purports to have been executed.
(2) This presumption shall not be made in respect of any document which is the basis of a suit or of a defence or is relied upon in the plaint or written statement.
The explanation to Sub-section (1) of Section 90 will also apply to the section."
20. Sub-section (1) provides in very clear words that the court may presume that the original was executed by the person by whom it purports to have been executed where any registered document or a duly certified copy thereof is produced from any custody which the court in the particular case considers proper.
21. Sub-section (2) further provides that this presumption shall not be made in respect of any document which is the basis of a suit or of a defence or is relied upon in the plaint or written statement. In the instant case, the claim of the respondent is based on the sale deed alleged to have been executed by Smt.Sureshwati in its favour. It means the sale deed in question is the basis of the defence and has also been relied upon in the objection.
22. However, the original sale deed which was best evidence was not produced in the court below for the reasons best known to the respondent. In this view of the matter, the court below committed manifest error of law in placing reliance on the certified copy of the sale deed. I further find and hold that the execution of the sale deed by Smt. Sureshwati was not proved and the sale deed in question is a void document. The lady was not paid any consideration and Patta in her favour had been cancelled. The onus to prove sale deed in question was not discharged by the respondent. I, therefore, hold that Smt. Sureshwati executed no-sale deed in favour of the respondent on 2.12.88 in respect of land in disputes.
Point No.2.
23. It has been held above that the lease in favour of the lady had been cancelled on 12.2.88 and no sale deed was executed by her as alleged by the respondent and the same is a void document. The lady received a loan from Smt. Nirmala Sethi and never executed a sale deed. Therefore, M/s NSR Farms Pvt. Ltd. is not at all entitled to recover any compensation in respect of the land. It is held that Smt. Sureshwati who won the case from the Board of Revenue and whose Patta was found to be valid vide judgment and order-dated 24.6.99 is entitled to recover the compensation fixed under Section 11 of the Act. In my opinion, the learned Judge again committed error of law in holding that the land in dispute vested in the State Government free from all encumbrances on 2.12.88.
24. In view of my above findings, the judgment and order-dated 24.1.2001 is not sustainable and is liable to be set aside. Consequently, it is held that this appeal has merit and it must succeed.
25. The appeal succeeds. The impugned judgment dated 24.1.2001 is hereby set aside. The appellant (Smt. Sureshwati) is entitled to recover compensation fixed under Section 11 of the Act in respect of the land in dispute. The reference made to the court under Section 30 of the Act stands answered accordingly. No order is made as to costs.