Dismissed

Shri Ram Ashre v. Nirmala Devi

Allahabad HC14 Jan 2020SAPL/803/2019

Case brief

AI extract

What is this about?

In this second appeal against a decree dismissing a suit to cancel a sale deed, the Single Judge declined to interfere with concurrent findings of lower courts. Rejecting allegations of intoxication and fraud due to evidence deficiencies, the court held the appellant failed to discharge his burden of proof regarding the consideration money and validity of execution.

What did the court decide?

Appeal dismissed; decree of the lower courts affirmed.

Shri Ram Ashre Vs Nirmala Devi — Property and Title | Allahabad HC (2020)

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Court No. - 53

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Case :- SECOND APPEAL No. - 803 of 2019 Appellant :- Shri Ram Ashre Respondent :- Nirmala Devi

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Counsel for Appellant :- Ramesh Chandra Singh,Narayan Dutt Shukla Counsel for Respondent :- Dharmendra Pratap Singh Chauhan,Shesh Kumar Srivastava

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Hon'ble Vivek Agarwal,J.

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Heard Sri R.C. Singh, Senior Advocate assisted by Sri A.K. Yadav, learned counsel for the appellant and Sri Shesh Kumar Srivastava, learned counsel for the respondents.

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This second appeal has been filed by the plaintiff being aggrieved by the judgment and decree dated 13.2.2019 passed by 7^th Additional District & Sessions Judge, Kanpur Dehat in Civil Appeal No. 47 of 2017 arising out of the judgment and decree dated 9.2.2017 passed by the Civil Judge (Junior Division), Kanpur Dehat whereby the plaintiff’s suit for cancellation of sale deed has been dismissed. The appeal filed against such original judgment and decree too has been dismissed.

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Counsel for the appellant submits that brief facts of the case are that plaintiff Ram Ashre has 8 daughters. His all the daughters are married. He had no need of money. His total holding of agricultural land was to the tune of 2.5 acres. There was no reason for him to sell his complete holding as he has a wife to lookafter and his age at the relevant pointed time was only 65 years and therefore long life ahead of him to take care, and, in fact, sale deed was obtained under fraud and coercion so also under misrepresentation in asmuch as the defendant Nirmala Devi is mother-in-law of two of his daughters namely Usha and Pushpa, who are married to sons of Nirmala Devi.

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Counsel for the appellant submits that he will be concentrating on two arguments namely there was no arrangement for sale consideration with the defendants and defendants have failed to prove as to from where they had arranged such a huge sale consideration to the tune of Rs. 15

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lakhs. The ancillary issue to this is that admittedly only a sum of Rs. 3 lakhs was paid in front of the concerned Sub Registrar on the date of execution of the sale deed. There is no evidence led by the defendants to show as to where and how a sum of Rs. 12 lakhs, which was part of the sale consideration was paid to the plaintiff. It is also submitted that onus was on the defendant to have proved as to from where said huge amount was arranged and paid to the plaintiff.

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Another issue is that, in fact, plaintiff was taken to the office of the Sub Registrar in the name of signing some documents as witness, on way to which he was intoxicated and thereafter his signatures were fraudulently obtained on the sale deed though he had no notice of executing any sale-deed in favour of the defendant.

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It is pointed out that plaintiff has examined himself and one of his daughters namely Urmila Devi. Reading evidence of the plaintiff and Urmila Devi, it is submitted that plaintiff had not taken concurrence of his wife and daughters before executing such sale deed and secondly Urmila Devi has clearly deposed that there was no reason for the plaintiff to have alienated all of his agricultural holding in favour of the defendant and such sale deed was obtained using fraud and coercion. Counsel for the appellant has also read evidence of DW-2 Ganga Ram, witness of defendant, and also a witness to the sale deed, to submit, that Ganga Ram has admitted that he is relative of defendant Nirmala Devi and he had taken the plaintiff to the office of Sub-Registrar and, therefore, in the light of such admitted facts he being an interested witness, his evidence which is against the plaintiff should not be relied on and cannot be relied on.

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Sri Srivastava, counsel for the defendant-respondent, on the other hand, submits that plaintiff has failed to prove his case. He has lost in both the courts below. It is further submitted that plaintiff had though taken a plea that he is illiterate but in his cross examination he has admitted

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that he has passed 4^th Class. He has admitted that the signatures which were made on the sale deed are his own. Reading from the cross examination of the plaintiff, it is submitted that if plaintiff would have been in intoxicated state then he would not have deposed in his cross examination that he had put his signatures on 25-30 stamp papers. It further submitted that plaintiff has also admitted presence of two witnesses namely Manik Chand and Ganga Ram at the time of execution of sale deed so also Nirmala Devi. He has also admitted that his counsel was present but could not give his name at the time of cross-examination. Further reading such cross-examination, it is submitted that plaintiff has himself admitted in his cross examination that Ram Sanehi had dropped him outside his village where his daughter is residing. He further admitted that he had not informed his daughter as to from where he is coming. He he admitted that his thumb was soaked with the ink and for 15 days he had not informed his daughter that he had executed a sale deed. He, however, admitted that he had not informed his daughter about such transaction because he wanted to keep such thing under cover as long as possible. It is also pointed out that plaintiff has admitted in cross-examination that he has filed his case at the instance of his daughter. He has also admitted that because of old age, he is getting his land tilled on ‘Ardh Batayee’(Share Cropping).

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Reading such evidence, it is pointed out that plaintiff has deposed contrary to the case as has been mentioned in the plaint averments. He has mentioned in his cross-examination before executing the sale deed they had consumed liquor. However, he has admitted that he cannot give any reason as to why this fact was not mentioned in the plaint averments. He has also admitted that he had put his signatures on the sale deed and further submitted that he had not made any complaint against any officer of the Sub-Registrar office. He further admits that

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he has no enmity with the Sub-Registrar. This witness has also admitted that his vision and hearing power is moderately fine. He understands his well being and nobody can take him into confidence easily. In view of such evidence, it is submitted that once plaintiff himself has admitted that he had executed the sale deed then there was no reason to put a question mark on the validity of the transaction on frivolous ground which are nothing but after thought.

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After hearing counsel for the parties and going through the record following few facts are crystal clear.

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Plaintiff has not chosen to examine any of the witnesses who had travelled up to the office of Sub-Registrar alongwith him but he admittedly visited the office of the Sub-Registrar. It is contention of the plaintiff that he was taken from his house between 6 to 7 am by Ganga Ram. He has also admitted in his cross examination that he is knowing Ganga Ram as he is related to Nirmala Devi. He has also mentioned that Ganga Ram had taken him to the office of Sub-Registrar in the the name of execution of the sale deed in favour of Nirmala Devi, such best evidence as could have been brought on record that Ganga Gram had taken him to witness sale deed, between Ganga Ram and Nirmala Devi, has not been brought on record. In para-11 of his examination-in-chief affidavit, plaintiff admitted that he had gone to Akbarpur and there he had contacted one Raghuvendra Singh, Advocate, who examined the sale deed and applied for obtaining certified copy of the sale deed.

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In the plaint, it is mentioned that when Nirmala Devi had approached him in October, 2013 to take possession of his land then he came to know of such transaction. This is contrary to the evidence given by him and as admitted by him in his cross-examination inasmuch as he has categorically admitted that for 15 days after execution of sale deed, he had not share with his daughter about such transaction that means that after 15 days he had informed his daughter about such transaction and

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that means his daughters were having knowledge of the transaction of the sale after 15 days. Therefore, cause of action as has been mentioned in the plaint is also imaginary and not true and correct cause of action.

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The main plank of the argument that defendant had no money to pay towards sale consideration is concerned, evidence of DW-2 Ganga Ram has been read in detail. DW-2 has admittedly stated that Rs. 12 lakhs were paid at home and Rs. 3 lakhs in front of the Sub-Registrar. In the cross examination, no material evidence could be corroborated as has been argued by the learned senior counsel, before this Court to dispute the argument of Nirmala Devi that for such money she had sold her plot, some buffaloes and some pieces of her jewellery, besides she had some savings. She had also borrowed some money from her sons.

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The counsel for the appellant has vehemently argued that sons of defendant no. 1 are unemployed but there is no suggestion to this effect to defence witnesses. There is no cross examination to this effect that her sons are unemployed or she had not sold her plot, buffaloes and jewellery to arrange for the funds which forms part of sale consideration.

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In fact in cross examination of DW-1, in total contradiction to the case of the plaintiff that he was intoxicated with liquor, a new case has been set up that at the house of the defendant, Nirmala Devi, some intoxicant was served to the plaintiff in tea. This being contrary to the pleadings can not be accepted and is therefore rejected. Such contradictory stands, in fact causes dent to the credibility of the plaintiff PW-2 is not an eye-witness but a hearsay witness. Her interest in pursuing her father to file suit has been accepted by the plaintiff.

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In view of such facts which have come on record and evidence of DW2, the appellant cannot take advantage of his own lapse. He has failed to make out a case for admission. Therefore, the appeal fails as

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concurrent findings recorded by the courts below does not call for any interference. The appeal is accordingly dismissed.

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Order Date :- 14.1.2020 S.K.S.

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Shri Ram Ashre v. Nirmala Devi

Case brief

What is this about?

What did the court decide?

Shri Ram Ashre v. Nirmala Devi

Case brief

What is this about?

What did the court decide?

What the court decided

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