Reserved on 09.05.2018 Delivered on 31.05.2018
Case :- SECOND APPEAL No. - 322 of 1991 Appellant :- Yogendra Pd.
Respondent :- Ganga Pd.
Counsel for Appellant :- H.S.N.Tripathi,C.B. Dhar Dubey,Paras Nath Yadav,Rajesh Yadav Counsel for Respondent :- Pradeep Chandra,Azad Rai,Manoj Srivastava,P.K. Srivastava,Pankaj Tripathi,Satyendra Kumar Singh,Suresh Chandra Verma
Hon'ble Siddharth,J.
Heard Sri H.S.N. Tripathi and Sri P.S. Tripathi, learned Counsels for the appellant and Sri Suresh Chandra Verma and Sri Azad Rai, learned Counsel for the respondents.
This is plaintiffs’ Second Appeal directed against the Judgment and Decree dated 15.09.1990, passed by Sri Liyakat Ali, Additional Civil Judge, Gorakhpur in Civil Appeal No.16/1989, allowing Appeal of defendant and setting aside Judgment and decree dated 23.12.1988, passed by Sri Kailashendra Prasad, Munsif Bansgaon, Gorakhpur, whereby Original Suit No.86 of 1983 of plaintiff was decreed.
The plaintiff instituted an Original Suit No.86 of 1983, praying for decree of cancellation of sale deed dated 19.03.1983 and for possession over disputed house.
The brief facts of the plaint were that plaintiff is resident of Village Semari, tappa Chandpar, pargana Dhuriapar, Tehsil Bansgaon, District Gorakhpur and is residing at Kasba Madariya, Gola Bazar, Tappa Barhaz, Pargana Dhuriapar, Tehsil Bansgaon, District Gorakhpur for purpose of his profession; that suit property belonged to Sri Chhedi Ram Jaiswal, son of Dukhi Ram Jaiswal, who sold the same to the plaintiff vide registered sale deed dated 17.12.1973 for an amount of Rs.40,000/- on 17.12.1973 and delivered him actual physical possession; that disputed house was in absolutely dilapidated condition, therefore, plaintiff applied for sanction of map for new construction of house before Chairman Town Area on 27.01.1976, which was allowed and he constructed a new house and started residing therein; that plaintiff and defendant no.1 are sons of same father and defendant no.1 is the only clever and learned person, who resides at Singapore for the purpose of his job; that 2 sons of defendant no.1, Subhash Chand and Ram Sanehi, defendant nos. 5 and 6, were unemployed and defendant no.1 requested the plaintiff to permit them to reside in 2 outer rooms of the house for 2 years till defendant no.1 purchases or constructs a shop for them and it was agreed that after 2 years they will vacate the rooms; that they resided in the outer room as licencee and in October, 1982, they requested the plaintiff that in case he permits, they would like to call their families to live with them; that plaintiff stated that he will make constructions over the roof and then they can call their families, but defendant no.5, Subhash called his family without his consent; that plaintiff started construction on the first floor in December, 1982 and defendant no.1, father of defendant nos. 5 and 6 came from Singapore and stated that you are not the owner of the house and you can not construct the same after selling it; that plaintiff got surprised to hear that he has sold the property and after enquiry he found that defendant No.1 has got a sale deed of the house executed in their favour in collusion with defendant Nos. 2 to 4, by setting up some persons in the place of plaintiff on 09.04.1975; that there was no loan upon him nor he had talked about the loan with any one; that he purchased the property for Rs.14,000/- and there was no justification for selling the same for Rs.4,000/- after 2 years; that the disputed sale deed neither bears his thumb impression nor his signature and is absolutely forged and fabricated document is deserves to be cancelled form court and hence the suit.
Defendant nos.5 and 6 filed their written statement stating that plaintiff never purchased house, but it was defendant no.1, who provided money for purchase of the same; that since defendant no.1 was not residing in the country, therefore, house was purchased in name of plaintiff; that on the same day plaintiff executed an agreement to sell in favour of defendant nos.5 and 6; that when defendant no.1 came to Gola in 1975, he asked the plaintiff to execute sale deed of house in his favour and on 09.04.1975, plaintiff executed the same; that since the house was dilapidated, defendant no.1 applied before the Town Area, Gola Bazar for sanction of permission to reconstruct but plaintiff got his name mutated over the same; that house was demolished thereafter and defendant nos. 5 and 6 reconstructed the same from their own money; that the first storey of house has been constructed wherein defendant nos. 5 and 6 are residing with their families and are having shop in the ground floor therein; that they are not licensees of plaintiff; that sale deed dated 09.04.1975 is absolutely legal; that sale deed in their favour should have been in the nature of declaration of title, but it was executed for a sum of Rs.4,000/- by the plaintiff, that plaintiff has no right to dispossess them from the house; that the suit is under valued and court fees paid is in sufficient; that suit is barred by time and Civil Court has no jurisdiction to decide the same and hence it may be dismissed.
Defendant no.1 filed his written statement adopting the averments of the defendant nos. 5 and 6 in suit.
Plaintiff filed his Replication stating that he has purchased the disputed house from his own earnings and he has even mortgaged title deed of the house for standing guarantor to the loan of a third party.
On the pleadings of the parties, the following issues were framed by the learned trial court,
(1). Whether the disputed sale deed is liable to be cancelled in view of the grounds mentioned in Clause-10 of the plaint?
(2). Whether plaintiff is entitled to get possession over the disputed house?
(3). Whether the suit is under valued and the court fees paid insufficient?
(4). To what relief is the plaintiff entitled ?
(5). Whether the suit of the plaintiff is barred by time?
The learned trial court decided issue nos. 3 and 5 regarding valuation and suit being barred by time in favour of the plaintiff. Issue nos. 1 and 2 were decided holding that the sale deed dated 09.04.1975 in favour of defendant no.1 was obtained by fraud by setting up an imposter. It does not bears the thumb impression of the plaintiff. Agreement to Sell was also not executed by the plaintiff nor any sale consideration was paid to him, therefore, the sale deed comes under the category of void document. Defendant nos. 5 and 6 are the licensees of the plaintiff and therefore plaintiff is entitled to get possession over the same. Issue no.4 was decided holding that plaintiff has proved his case and therefore entitled to reliefs claimed and suit was decreed by trial court by Judgment and Decree dated 23.12.1988.
Defendants nos. 1,5 and 6 preferred a Civil Appeal No.16 of 1989 before lower appellate court, which framed 2 points of determination,
(1). Whether the disputed sale deed dated 09.07.1975 deserves to be cancelled?
(2). Whether plaintiff is entitled to get possession over the disputed house?
Point no.1 was decided holding that plaintiff has failed to prove that disputed sale deed dated 09.04.1975 was executed fraudulently and therefore it is not required to be cancelled. Point no.2 was decided holding that it is not proved that defendant nos.
5 and 6 were licensees of plaintiff, therefore, plaintiff is not entitled to get possession of disputed house from them.
This Second Appeal has been preferred by plaintiff and it was admitted on 05.09.1991 on the following substantial questions of law,
(1). Whether the lower appellate court erred in law is not drawing advance inference under section 114 of the Indian Evidence Act against the defendants- respondents who withheld the material witnesses?
(2). Whether the defendants- respondents were licensees and tenant of the property in dispute and the alleged Iqrarnama (paper no.18-Ka) relied upon by them was admittedly unregistered document and the lower appellate court erred in law in relying upon the same for dismissing the suit of the plaintiff- appellant?
(3). Whether even if the case of the defendants- respondents is presumed for the sake of argument, although not conceded, that transaction in favour of the plaintiff was benami in its character and the defendants- respondents are estopped from claiming any right with regard to that property as held in A.I.R. 1989 SC page 1247 and the lower appellate court erred in law in not considering this aspect of the case ?
(4). Whether the lower appellate court acted arbitrarily and beyond jurisdiction in setting aside the Judgment and decree of the trial court without meeting the reasoning and without setting aside the findings categorically?
Regarding first substantial question of law, Counsel for the plaintiff- appellant has argued that burden of proving genuineness of sale deed dated 09.04.1975 was on the defendants, but they never proved the same as per the requirement of law. According to him the marginal witnesses of the aforesaid sale deed were Sadashiv and Kalika Singh but none of them turned up before the trial court to prove their signatures and that of the plaintiff on the sale deed. As per only proviso to Section -68 of the Evidence Act, where execution of registered document is specifically denied by the person by whom it purports to have been executed, at least one attesting witness is required to be produced for proving due execution of the document, not being a will. He has argued that plaintiff specifically denied execution of any sale deed in favour defendant nos.2 to 4 and therefore, at least one attesting witness of sale deed was required to have been produced in evidence for proving due execution of the sale deed. Another aspect of the case stressed upon by him in that a property purchased by registered sale deed on 17.12.1973 by paying a sale consideration of Rs.14000/- can not be sold after 2 years for Rs.4,000/- only. This was a relevant fact which pointed towards the document in dispute being forged and fabricated. The burden was on the defendants to explain, how the property was sold to them for Rs.4,000/- and how the consideration passed to the plaintiff. Their defence that some amount was to be shown, therefore, Rs.4,000/- was shown as sale consideration in the sale deed, conclusively points to the fact that document was result of fraud.
Counsel for the defendants- respondents has argued that the burden of proof of proving that disputed sale deed is a forged and fabricated document, was upon the plaintiff and defendant was not required to prove the genuineness of the document by producing witnesses.
The second argument of the Counsel for the appellant, based on the second substantial question of law is that the disputed agreement to sell was an unregistered document and lower appellate court has wrongly relied upon the same for dismissing suit of the plaintiff.
The learned Counsel for the defendants- respondents has argued that as per Section -54, U.P. Amendment to the Transfer of Property Act, a contract of sale of immoveable property can only be made by registered instrument w.e.f., 01.01.1977 and since the agreement to sell in dispute was executed on 17.12.1973, therefore, it was not required to be registered for being read in evidence.
Relying upon the 3rd substantial question of law, the counsel for the appellant has argued that the defendants alleged that the sale deed dated 17.12.1973 was benami in name of the plaintiff and therefore such a defence as per Section-4 (2) of Benami Transactions (Prohibition) Act, 1988 is not permitted.
Per contra Counsel for defendants-respondents has argued that the defendants have proved that plaintiff did not had necessary means to purchase house in dispute and it was defendant no.1, who provided him the necessary means for the purpose and therefore they have proved that transaction was benami in the name of plaintiff.
The fourth and final argument of Counsel for the plaintiff- appellant is that lower appellate court has illegally set aside the decree of trial court without considering the reasonings and setting aside the findings of the trial court which has rendered the lower appellate court’s judgment illegal. According to him, this Court in paragraph no.38 of the Judgment in the case of Mani Ram and others versus Viresh Kumar and others, 1985 Law Suit (All) 284 has held that, “38. The Additional Commissioner while deciding the first appeal has not appreciated the oral evidence about the validity or otherwise of the adoption correctly. The trial court has discussed in detail oral evidence from either side. The Additional Commissioner has just made a reference to the witnesses and thereafter has abruptly come to the conclusion. The trial court had the advantage of watching the demeanour of the witnesses and had recorded finding of fact about the validity of adoption after appreciation of the evidence particularly oral evidence in detail. The Additional Commissioner could not have set aside those findings based on appraisal of evidence in detail. The first appellate court lost sight of the fact that the trial court had the advantage of observing the manner in which the Plaintiff- witnesses and the Defendant-witnesses have given their testimonies. I am of the view that if there is conflict of oral evidence and the decision turns upon the credibility of the witnesses, the rule is to permit the findings of fact rendered by the trial court to prevail unless it clearly appears that some special features about the evidence of a particular witness has escaped the notice of the trial court or there is some other aspect of the matter which was not under the consideration of the trial court while considering the statements of the witnesses. Further testimony of some witness has also been rejected on the ground that he was relation or friend of the natural father of Viresh Kumar. But in a case where the adoption has to be proved the statement of only those witnesses can be admissible in view of Section 50 of the Indian Evidence Act who have got special means of knowledge about the fact they were deposing. Otherwise also it is well settled by now that the testimony of the witness cannot be rejected that he was a relation or a friend. It is a different aspect of the matter that a testimony of a friend or relation should be scrutinised with proper attention. The assessment of the evidence, therefore, made by the Additional Commissioner can also not be said to be satisfactory. See Madsudan Das v. Smt. Narayanl Bai.”
Counsel for the defendants-respondents has stated that this argument is not substantiated from the record and the Case Law cited does not applies to the facts of this case.
Heard Counsel for the parties.
The first argument regarding the first substantial question of law is regarding burden of proof of a sale deed which has been challenged on the ground that it is a forged and fabricated document got executed by setting up an imposter as vendor. The initial burden of proof was on the plaintiff and he has produced his witnesses and also the report of finger print expert testifying that the signatures on the sale deed are not his. The argument of the Counsel for the defendants- respondents that the burden of proof of proving his case was on the plaintiff and not on the defendant is not correct. In civil cases the burden of proof is fixed, but after initial discharge of burden of proof by the plaintiff, the onus shifts towards the defendant. The onus keeps on shifting between the parties as per the evidence lead. In the present case after the initial discharge of burden of proof by plaintiff, defendants was required to prove the disputed sale deed by producing at least one marginal witness as per only proviso to Section-68 of the Evidence Act. Defendants did not produced any of the 2 marginal witnesses, namely, Sadashiv and Kalika Singh, in the witness box. They did not even appeared before the trial court when they were arrayed as defendant nos.2 and 3 in suit and were sufficiently served. Therefore, in the absence of proof of the sale deed in dispute as genuine document executed by plaintiff in favour of defendant no.1, it can not be accepted to be a genuine document, proved according to law and lower appellate court has not considered this aspect of the case as per the law and has recorded incorrect findings which can not be sustained.
The second substantial question of law regarding objection to non registration of the agreement to sell in dispute, raised on behalf of the appellant, is not correct. Since as per argument of Counsel for the defendants- respondents, registration of such documents became compulsory in State of Uttar Pradesh w.e.f., 01.01.1977 only and since the deed was executed on 17.12.1973, its non-registration will not affect case of the defendants. The argument of the Counsel for defendants- respondents is in accordance with U.P. Amendment to Section -54 of the Transfer of Property Act and deserves to be accepted.
The third substantial question of law framed in this appeal is regarding alleged benami character of disputed sale deed alleged by the defendants. As per Section-4(2) of the Benami Transactions (Prohibition) Act, 1988, no defence based on any right in respect of any property held benami whether against the person in whose name property is held or against the other persons shall be allowed in any suit claim or action by or on behalf of a person claimed to be the real owner of the such property. With the coming into force of this Act , there is complete prohibition to the right to recover property held benami. It is true that at the time of institution of the suit in 1983, act aforesaid was not promulgated but it became effective from 5th Sept. 1988 and has been amended by Amending Act No.43 of 2016 on 10.08.2016 but Section-4 (2) has not been amended, when sub Section –(3) has been omitted. When civil appeal was decided by lower appellate court on 15.09.1990, the above Act was in force. Therefore, the lower appellate court ought to have taken note of this Act. In view of the provisions of the Benami Transactions (Prohibition) Act, 1988, argument of Counsel for the defendants- respondents, that defendants proved that money for purchase of property in dispute was provided by defendant no.1, is inconsequential.
The last substantial question of law in this appeal is regarding imposition of findings by appellate court without setting aside findings of the trial court. The argument of the Counsel for the plaintiff- appellant that lower appellate court has failed to set aside the findings of the trial court by assigning any reason and has imposed its finding requires to be considered. Counsel for the defendants- respondents has argued that lower appellate court has considered all the findings of trial court and after discussing them has recorded its own conclusions.
A perusal of the Judgment of the trial court show that it considered both the reports of handwriting experts produced by the parties and recorded clear finding of fact that both the experts have given reports in favour of their clients. Trial court recorded finding that he has examined the disputed signature of plaintiff on the plaint which does not tallies with his signature on disputed sale deed and has recorded finding that report of expert produced by plaintiff appears to be correct and reliable. Lower appellate court has considered the report of the experts and has recorded its finding that both the reports are contrary to each other, but both the experts have admitted that writing can be willfully disguised, which can make it different from the natural writing. Lower Appellate Corut has compared signature of plaintiff from paper no.18-Ka and arrived at contrary conclusion that signature of plaintiff is the same as in document no.18-Ka and in the disputed sale deed. The finding of the trial court that the signature of plaintiff on the plaint does not tallies with his signature on the disputed sale deed vis-a-vis his signature of the plaint has neither been discussed nor set aside by the lower appellate court. Similarly finding of trial court that D.W.4, Harihar, who was uncle (Mama) of plaintiff as well as defendant no.1 had denied before trial court that defendant no.1 never sent money for purchasing house in dispute in name of plaintiff, he denied the stand of D.W.10, Subhash, defendant no.5 and son of defendant no.1 that defendant no.1 had sent Rs.18000/- to him for getting sale deed executed in favour of plaintiff. Trial Court recorded finding that defendant no.4, Harihar has failed to prove above fact and therefore, it can not be accepted to be correct. Lower Appellate Court has not considered this finding of trial court and has stated that since P.W.4 admitted in his examination-in-chief that defendant no.1 sent money to him and he was not asked whether defendant no.1 used to send him from Singapore, therefore his statement proves that defendant no.1, who was earning at Singapore, send money for execution of sale deed. Lower Appellate Court has not considered the reasoning of the trial court that defendant no.4 was unable to testify receipt of Rs.18000/- from defendant no.1 and has admitted only receipt of Rs.7000/- from plaintiff for keeping it.
Therefore, substantial question of law nos. 1,3 and 4 are decided in favour of the plaintiff- appellant. Decree of the lower appellate court can not be sustained for the reasons stated above and is hereby set aside. Suit of the plaintiff is decreed.
Second Appeal is allowed with costs.
Order Date :- 31.05.2018 Ruchi Agrahari