Ramesh Chand Vs Sant Ram and Another

Judgment Reserved on 9.12.2019 Delivered on _22.1.2020

Court No. - 53

Case :- SECOND APPEAL No. - 1251 of 1999 Appellant :- Ramesh Chand Respondent :- Sant Ram And Another Counsel for Appellant :- Kr.R..C.Singh,S.S. Senger,Vindo Kumar Kushwaha Counsel for Respondent :- Yanoj Mishra,G.L. Tripathi,Pramod Srivastava,Shesh Kumar Srivastava,Shyam Singh Sengar

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Hon'ble Vivek Agarwal,J.

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Heard Sri S.S. Senger, learned counsel for the appellant and Sri S.K. Srivastava, learned counsel for the respondents.

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This second appeal has been filed by the plaintiff-appellants being aggrieved by judgment and decree dated 31.7.1999 passed by the II Additional District Judge, Kanpur Dehat in Civil Appeal No. 69 of 1995 (Sant Ram VS. Pooran and others) setting aside the judgment and order dated 7.2.1995 passed by the court of learned II Additional Civil Judge, Kanpur Dehat in Original Suit No. 256 of 1999 (Durga Vs. Sant Ram) vide judgment and order dated 7.2.1995.

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Brief facts leading to the present second appeal are that Durga from whom plaintiff-appellants are claiming their rights was owner of 4 bigha 18 biswa 17 biswansee of land contained in Survey No. 1243 at village Pem, Pargana Bilhaur, district Kanpur Dehat. This was the only piece of land available with the deceased Durga and he was an old, sick and illiterate person. Step brother of plaintiff Durga namely Pooran Lal is maternal uncle of defendant – Sant Ram and the allegation is that Sant Ram in the name of getting a loan sanctioned for the purpose of Govt.

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engine had taken to plaintiff Durga to Bilhaur on 11.10.1989 where his photographs were clicked and in the name of completing proceedings for obtaining loan, the said forged sale deed was executed, in collusion of Pooran Lal.

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It is case of the plaintiff that when he had received information in the village that Sant Ram is trying to get mutation of said land in his name then plaintiff Durga asked Pooran Lal to help and with his help prepared a letter of objection alongwith affidavit and had filed such letter before the competent authority thereafter had met the Registrar, Billhaur, Kanpur Dehat, where on inspection it was discovered that Sant Ram and Pooran Lal had collided and in collusion alongwith witnesses had obtained a deed of sale in two parts, namely, one in favour of Sant Ram dated 11.10.1989 and another in favour Pooran Lal dated 28.10.1989, It is alleged that northern portion of the property was registered in the name of Sant Ram whereas southern portion of the property was registered in the name of Pooran Lal. After discovering the facts that both the sale deeds were illegal, forged, fabricated and were obtained through misrepresentation, plaintiff Durga had filed two cases, one case was filed to get the sale deed 28.10.1989 cancelled as was allegedly executed in favour of Pooran Lal and another case was filed for getting the sale deed dated 11.10.1989 recorded in the name of Sant Ram to be null and void. It is contended that neither any sale consideration was received by the plaintiff Durga nor any deed was executed.

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The defendant Sant Ram had disputed the plaint averment and had submitted that there was no question of fraud or misrepresentation as out

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of sale consideration of Rs. 25,000/- only Rs. 5000/- was paid in advance and Rs. 20,000/- was paid in front of the Registrar. It is submitted that such suit was filed on the basis of his being persuaded by certain persons belonging to a particular vested interest group and such is not maintainable.

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It has come on record that plaintiff Durga had entered into a compromise with his step brother Pooran Lal in relation to the sale deed executed on 28.10.1989, and this compromise had taken place in Suit No. 258 of 1990 dated 20.4.1992. However, learned first appellate court recorded a finding that compromise entered into between Durga and Pooran Lal will not have any impact on the transaction between Durga and Sant Ram because Pooran Lal is admittedly a younger step brother of the plaintiff and, therefore, has opportunity to receive the plot by way of inheritance.

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On the basis of the rival pleas and arguments, my predecessor, in the High Court, admitted present second appeal, on the following three substantial questions of law:-

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(i) Whether the lower appellate court has erred in holding that the burden to prove fraud lay upon the plaintiff Durga though, admittedly, Durga was an illiterate person?

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(ii) Whether the lower appellate court is justified in holding that sale deed was validly executed despite recording finding that neither the consideration as alleged in the sale deed had passed on nor possession has been delivered to the purchaser?

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(iii) Whether the lower appellate court has committed gross error of law in setting aside the judgment of the trial court and particularly finding that from the evidence and the stand appearing in the case, it was apparent that fraud had been played upon Durga.

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In the aforesaid backdrop facts of the case and evidence which has come on record, aforesaid substantial questions of law are required to be examined.

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It is not in dispute that during the pendency of the suit Durga died. His legal heirs namely Rani Dev and on her death Pooran Lal S/o Dibiya and Ramesh Chandra, S/o Puran Lal were brought on record.

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It will be in the interest of justice to devote little time to trace out history of substitution in the array of plaintiff over a period of time. Admittedly, suit was filed on 26.4.1990 and was registered as Case No. 256 of 1990. Upon death of Durga, his wife Smt. Rani Devi was substituted as his legal heir. This fact is apparent from the note dated 18.5.1990 whrein learned trial court recorded a fact that plaintiff Durga died on 8.6.1990 and, therefore, one month’s time was granted to bring his legal heirs on record, vide order dated 11.7.1990 application of Smt. Rani Devi, wife of Late Durga was accepted and it was directed to substitute legal heirs of late Durga. Thereafter on 2.2.1995 order sheet records that information in regard to death of Rani Devi be kept in the order sheet and on 7.2.1995 judgment was delivered by the trial court. It will not be out of place to mention that first appeal before the court of learned Additional District Judge i.e. First Appeal No. 65 of 1995 was filed by Sant Ram against Pooran Lal, who is younger step brother of Durga. In

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asmuch as it is an admitted position that Durga and Rani Devi were not having any children of their own. There is an order annexed with order sheet dated 8.4.1996, which reveals that representative of Durga (deceased) on the basis of a Will deed filed an application for impleadment to which respondent objected impleadment ascertaining competency of Rani Devi to bequeath and validity of Will, which, learned court recorded will be considered on merit. Application No. 27/ A-1 was allowed and it was directed that let amendment be incorporated within 3 days and steps for service on respondent no. 2 be taken by that time.

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Actually this application under Order 1 Rule 10(2) CPC was filed to the effect that during her lifetime Smt. Rani Devi, W/o Durga executed a Will on 30.1.1995 and through that Will, she had bequeathed her property in favour of Ramesh Chandra, S/o Pooran Lal and therefore Ramesh Chandra filed an application seeking permission to be impleaded as party to the proceedings. Thus it is apparent that that after death of Rani Devi, Pooran Lal being step brother of Durga, and Durga died without having any children of his own, became party to the proceedings and thereafter Ramesh Chandra became party to the proceedings on the strength of a Will allegedly written by Rani Devi on 30.1.1995.

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Learned Trail Court decreed the suit of Durga (deceased) through Rani Devi on the ground that Durga was 60-65 years of age and Sant Ram admitted that Durga has no children of his own but only Rani Devi was available. It is admitted that Durga is maternal uncle of Sant Ram. In

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view of such facts, it has been held that onus to prove that the sale deed was not obtained by fraud and coercion was shifted on the defendant – Sant Ram. Fact has been recorded that DW-2 – Jamuna Prasad has admitted that when sale deed dated 11.10.1989 was prepared then Pooran Lal was present and on the basis of such evidence, learned trail court recorded finding that this proves that Pooran Lal and Sant Ram in collusion got the sale deed executed for ½ share of property of Durga in favour of Sant Ram and ½ share in favour of Pooran Lal. It has come on record that Pooran Lal on the basis of compromise, got the part of sale deed dated 28.1.1989 cancelled and a compromise decree was drawn, on the basis of such facts, trial court treated judgment and decree executed in favour of Sant Ram to be one obtained by collusion and misrepresentation and decreed the suit.

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First appellate court on appreciation of evidence recorded a finding that transaction with Pooran Lal and cancellation of the sale deed as was executed in favour of Pooran Lal on 28.10.1989 will have no impact on the subject matter of the present suit for two reasons. Firstly, Pooran Lal being step brother will have right of inheritance and secondly two sale deeds were executed on two different dates i.e. 11.10.1989 and 28.10.1989.

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It also held that onus to prove that Durga was subjected to fraud and coercion was firstly on Durga and thereafter on Rani Devi, who had succeeded Durga in the suit as her legal heir.

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Appreciating evidence of the rival parties learned first appellate court has recorded that Rani Devi in her statement has admitted that she was

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issueless. She has also admitted that Pooran Lal and Sant Ram were visiting Durga. She has further admitted that with a view to get a Govt. Engine, Sant Ram and Pooran Lal had taken Durga to the Tehsildar where they got executed sale deeds of the agricultural land of Durga. No consideration was paid for such sale deed. This witness has admitted in cross-examination that she has no relationship with Pooran Lal.

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First appellate court categorically noted that this kind of evidence demonstrate that Rani Devi is not having complete knowledge of the facts of the case in asmuch as Durga in his plaint has categorically admitted that Pooran Lal, S/o Dibiya is his younger step brother. Rani Devi also deposed that her husband did not receive consideration of Rs. 25,000/- from Sant Ram, who executed a sale deed nor he sold any land in favour of Pooran Lal. Therefore, it is mentioned by learned first appellate court that Rani Dei has no information about her relationship with Pooran Lal. PW-2 – Raja Ram deposed that on the suit land Rani Devi is having possession and further deposed that his fields are adjacent to field of Rani Devi. However, this witness did not say anything like Rani Devi as how Sant Ram committed fraud in getting sale deed executed in his favour.

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On the other hand, Sant Ram examined himself as DW-1 and admitted that he had paid Rs. 5,000/- prior to execution of sale deed and remaining Rs. 20,000/- at the time of registry. When money was paid at that time Jamuna Prasad, Ayodhya Prasad, Ram Nath Singh and document writer Arun Kumar Srivastava were present. He filed copy of the original sale deed alongwith document no. 2 and this sale deed was

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witnessed by Ayodhya Prasad and Jamuna Prasad and contains thumb impression of Durga as well.

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DW-2 - Jaumna Prasad has proved execution of sale deed dated 11.10.1989. He deposed that he had reached office of the Registrar at 10:30 am and at that time Sant Ram, his father Lal Ram and Lekhpal Ram Nath Singh were also present at Tehsil on Basta of Shiv Singh Bhadoria, Advocate and Arun Kumar Srivastava met where Durga had informed them about selling ½ portion of his share of land and thereafter document was prepared. DW-2 – Jamuna Prasad signed and then Durga had put his thumb impression on the document. Thereafter Arun Kumar Srivastava and all other persons had visited the Registrar where document was readover and Registrar had asked Durga as to whether he is selling his land of his own sweet will and whether he has received consideration then Durga admitted all these facts. In cross examination no contradiction has come on record in evidence of Jamuna Prasad.

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DW-3 – Arun Kumar Srivastava admitted that document no. 112 is written by him at the instance of the seller of the land, namely, Durga. At that time Jamuna Prasad , Ayodhya Prasad and Lala Rram had also come so also Lekhapl Ram Nath Singh. He deposed that he had identified thumb impression of Durga and Ayodhya Prasad and declined that thumb impression was obtained by fraud.

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DW-4 – Lekhapl Ram Nath Singh admitted that in 1989 he was Lekhpal of Tehsil Bilhaur. He knew Durga as he was resident of same ‘halka and Durga executed sale deed dated 11.10.1989 and he was present at the time of execution of said sale deed. The document was prepared at the

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seat of Shiv Singh Bhadoria, Advocate, and thereafter his Munshi had visited the office of Sub-Registrar alongwith them. He identified his signatures on rear part of the document and further deposed that before the Registrar he had identified the photographs of Durga and in the margin of the sale deed Ayodhya Prasad and Jamuna Prasad had put their signatures. Durga and Ayodhya Prasad put their thumb impression in front of the Registrar and he too had his signatures. In cross examination of DW-1 to DW-4; no where it is mentioned that either signatures of Durga were obtained through fraud or through misrepresentation. Learned first appellate court has admitted that it is true that Durga was aged, unwell and illiterate, but held that the burden was on the plaintiff to prove factum of fraud and decreed the suit.

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In view of aforesaid discussions based on appreciation of evidence and on record, three substantial question of law can be answered in the following manner:-

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(i) As far as first substantial question of law is concerned as to whether the first appellate court was justified in holding that burden to prove fraud lay upon the plaintiff so far admittedly plaintiff was illiterate person is concerned, it is admitted fact as has been averred by the plaintiff Durga in his plaint submissions that he visited the office of SubRegistrar on 11.10.1989. It is also an admitted fact as averred by the plaintiff that he has very close relationship with Sant Ram and Pooran Lal and Pooran Lal is his younger step brother. It is a case of the plaintiff that when he heard that Sant Ram has filed some case for mutation of his land then he had contacted Pooran Lal and with the help

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of Pooran Lal, he got prepared an objection with affidavit to be filed before the Tehsildar and thereafter filed suit. There is allegation of misrepresentation of Pooran Lal as well. It is mentioned that ½ of the portion of his holding was obtained fraudulently by registration of sale deed dated 11.10.1989 in favour of Sant Ram and another ½ portion was taken by Pooran Lal, S/o Dibiya in his favour vide sale deed dated 28.10.1989. He discovered this fact on 5.4.1990 and had filed two cases, one against Sant Ram and another against Pooran Lal. He has admitted that in-laws of Pooran Lal are from the village of the plaintiff and belongs to the same community and in this relationship Sant Ram is (Nephew – Bhanja) of the plaintiff and Pooran Lal. The allegation is that on 11.10.1989 in the name of getting the loan sanctioned for engine, Durga was taken to the office of Registrar where said sale deeds were executed. He has not given name of any person with whom he had confided about transaction of obtaining the loan for Govt engine and has merely said that if he would have wanted to sale his land, he would have fetched good price for such land.

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In favour of their case plaintiff examined two witnesses, namely Smt. Rani Devi and Sri Raja Ram. Raja Ram is only a witness in regard to the possession of Rani Devi over the suit land and the evidence led by Rani Devi is shaky and is not on the aspect of fraud and misrepresentation etc In fact she is a hearsay witness. Admittedly, submissions of Rani Devi and Raja Raj were recorded on 26.8.1994 and by that time it is an admitted position that Durga had died. Pooran Lal, the other beneficiary against whom allegation was initially made for committing breach of

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trust, had already compromised his suit with Durga or legal heirs of Dugra and in view of compromise vide which he got sale deed for ½ portion allegedly executed in his favour on 28.10.1989 cancelled. He was the only close relative by virtue of step brother could have been examined by the plaintiff as witness to prove the aspect of fraud. Plaintiffs for the reasons best known to them did not examine Pooran Lal as witness though lateron Pooran Lal was impleaded as party and on the basis of Will allegedly executed by Rani Devi in favour of son of Pooran Lal, he was impleaded as a party. This discussion is relevant to establish that Rani Devi who was impleaded as plaintiff in place of Durga on his death was a relative of Pooran Lal. Since allegation in the plaint is that Pooran Lal too had taken advantage of relation of trust committed fraud in collusion with Sant Ram, being a partner and winner of the trust and illegal beneficiary of estate of Durga, after compromise in 1992 plaintiff, should have examined Pooran Lal to prove factum of fraud, as he was earlier a co-accused and afer compromise could have acted as an approves.

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In the opinion of this Court, burden to proof could not be shifted on the defendant Sant Ram merely on account of fact that Durga was illiterate. In fact, proceedings which were undertaken by Durga during his lifetime by filing of an objection before the Tehsildar to the mutation proceedings demonstrate that Durga might have been illiterate but he was not unaware of the worldly affairs so to bring on record best evidence to prove factum of fraud and especially when he had taken help of Pooran Lal in filing of application and affidavit before the Tehsildar

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prior to filing of the suit against Sant Ram. Thus the substantial question of law that as to whether onus should have been shifted on the defendant is answered against the appellant.

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As far as second substantial question of law is concerned, it is to the effect that as to whether the lower appellate court is justified in holding that the sale deed was not validly executed despite recording finding that the consideration as alleged in the sale deed had not passed on nor possession was delivered to the purchaser. In this regard, as per documentary evidence available in the form of the sale deed dated 11.10.1989 is available in the record as it was filed in original by the defendant Sant Ram and in the said sale deed there is a specific admission that seller had received total sale consideration of Rs 25,000/There is evidence of the defense witness that sale deed was readover by the Registrar to the plaintiff Durga and he had admitted receiving of complete sale consideration. This evidence of DW-2 – Jamuna Prasad is relevant to the point. Learned first appellate court has recorded finding that in para-2 of page-3 of his cross examination, DW-2 – Jamuna Prasad has admitted that money was paid at the house of Durga and therefore, it has held that witnesses of the defendant Sant Ram could not prove the factum of payment of Rs. 25,000/- to Durga. This court’s attention is drawn to the evidence of DW-2 – Jamuna Prasad. DW-2 – Jamuna Prasad has deposed that a sum of Rs. 20,000/- was paid on the basta of Shiv Singh Bhadoria, Advocate in front of all the witnesses. Registrar had asked Durga as to whether he is selling his land of his own sweet will and had he received consideration then Durga had answered

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in affirmative. Learned first appellate court has read the evidence out of context. In fact, DW-2- Jamuna Prasad has admitted that money was paid in two parts, firstly, Rs. 5,000/- and then Rs. 20,000/- at the time of execution of the sale deed. He has admitted that the amount of 1^st installment was paid at the house of Durga. There is no further cross examination to illustrate that complete sale consideration was paid at the house of Durga in asmuch as DW-3 has also admitted that Rs. 20,000/was paid to Durga in front of him. In the cross examination, DW-3 admitted that there were four bundles of notes of Rs. 50/- each totaling to Rs. 20,000/- Therefore, in the opinion of this Court, first appellate court has wrongly arrived at finding that sale consideration was not transmitted in favour of the plaintiff. In fact, once factum of sale deed being executed without there being any fraud as has been alleged by the plaintiff, is proved then it was open to the plaintiff to file a suit for recovery of sale consideration and on the basis of such finding that sale consideration was not given to the plaintiff being not only contrary to the document on record is also arbitrary and perverse, based on incorrect appreciation of evidence. This finding of the 1^st appellate court being contrary to documentary and oral evidence on record is set aside. Thus, it cannot be held that first appellate court was not justified in holding the sale deed to be validly executed as course of action in absence of payment of sale consideration could have been taken by the plaintiff. In fact, in case of Raj Nath Singh Vs. Paltu and others – 1908 ALTR 79; it is held that non-payment of sale consideration would not invalidate the sale deed. Same view has been taken by Allahabad High

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Court in case of Gayatri Prasad Vs. Board of Revenue and others as reported in 1973 ALJ 412 and in case of Vidyadhar Vs. Manik Rao and another as reported in AIR 1999 SC 1441 ; wherein it has been held by the Supreme Court in para-37 by holding that “real test is the intention of the parties. In order to constitute a ‘sale’, the parties must intend to transfer the ownership of the property and they must also intend that the price would be paid to either in present or in future. The intention is to be gathered from the recital of the sale deed, conduct of the parties and the evidence on record.

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Therefore, in the light of such judgments also the substantial questions of law needs to be answered in the following terms:-

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‘that the lower appellate court was justified in holding that sale deed was validly executed even after it recorded a finding that neither the consideration as alleged in the sale deed had passed on nor possession was handed over to the purchasers’.

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Third substantial question of law raised in the present case is as to whether the lower appellate court has committed a gross error of law in setting aside the judgment of the trial court and particularly finding that from the evidence and circumstances appearing in the case, it was apparent that fraud had been played upon Durga.

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This third substantial question of law needs no fresh appreciation of evidence in asmuch as plaintiff had failed to discharge their burden of proving allegation of fraud. They refrained from examining the best witnesses who were earlier alleged to be party of such fraud and acted in said collusion with Sant Ram and then turned in favour of the plaintiff

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and from the evidence led by the defendant which demonstrate that plaintiff failed to prove his case of fraud or collusion or misrepresentation and, therefore, it cannot be conveniently held that lower appellate court did commit any error in setting aside the judgment of the trial court so also finding of the trial court that fraud was played upon Durga. That finding being purely based on surmises and conjecture and not on any document and other evidence was admittedly liable to be set aside and has been rightly set aside by the first appellate court. Therefore, in terms of the answer to the substantial questions of law framed by my predecessor, this appeal fails and is dismissed.

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Parties to bear their own costs.

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Date:- 22.1.2020

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S.K.S.

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Ramesh Chand v. Sant Ram and Another

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Ramesh Chand v. Sant Ram and Another

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