Allowed

Chameli Bai v. Goverdhan Th.Lr'S and Ors.

Chhattisgarh HC22 Jun 2021SA/176/2007

Case brief

AI extract

What is this about?

In a second appeal against a decree for cancellation of a sale deed based on alleged fraud and illiteracy, the High Court restored the trial court's judgment dismissing the suit. The Court held there was overwhelming evidence that the sale was executed openly without fraud, invalidating the lower appellate court's interference.

What did the court decide?

Second appeal allowed; first appellate judgment and decree set aside; trial Court judgment restored; suit dismissed.

Chameli Bai Vs Goverdhan Th.Lr'S and Ors. — Property and Title | Chhattisgarh HC (2021)

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NAFR

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HIGH COURT OF CHHATTISGARH, BILASPUR

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Second Appeal No.176 of 2007

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Chemeli Bai, aged 38 years, wife of Ayodhya Prasad
Soni, caste Soni, resident of village Lamna, P.S.
Gaurela, tehsil Pendraroad, district Bilaspur (CG)

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---- Appellant/Defendant

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Versus

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1. Goverdhan, aged 65 years, son of Shri Roopnath, Caste Kumhar, resident of village Lamna, P.S. Gaurela, tehsil Pendraroad, district Bilaspur (CG) (dead) ---- Respondent/Plaintiff

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Through the legal representatives:-

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(1-A) Sita Bai (died and deleted)

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(1-B) Santoshi Bai, aged 18 years, Caste Kumhar,
Resident of village Lamna, P.S. Guarela, tehsil
Pendraroad, district Bilaspur (CG)

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2. Ayodhya Prasad, aged 45 years, caste Soni, son of Shri Dayaram, resident of village Lamna, P.S. Gaurela, tehsil Pendraroad, district Bilaspur (CG)

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3. Mohammad Fakhuruddin (deleted)

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---- Respondents

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For Appellant/Defendant No.1: Mr.Somnath Verma, Advocate
For Respondent No.1-B/LR's of the Plaintiff:

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 Mr.Rakesh Pandey, Advocate

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Hon'ble Shri Justice Sanjay K. Agrawal

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Judgment On Board

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22/06/2021

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1. This second appeal preferred by defendant No.1 was admitted for hearing on 6.2.2020 by formulating the following substantial question of law for determination:-

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“Whether the learned Lower Appellate Court
was justified in reversing judgment and

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decree of the trial Court, admitting
evidence against the contents of the sale
deed dated 15.03.1999 (Ex.D/1), in the
absence of any proper pleading of fraud and
evidence in that regard?”

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[For the sake of convenience, the parties
would be referred hereinafter as per their
status shown and nomenclature in the suit
before the trial Court].

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2. The plaintiff (who died during the pendency of this

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second appeal) filed a suit for cancellation of sale
deed dated 15.03.1999 (Ex.P-1/Ex.D-1) by which the
suit land bearing Khasra No.335/1 area 1 acre
situated at village Lamna, District-Pendra Gaurela
Marwahi alleging that though he has sold the land
bearing Khasra No.376/1 area 0.60 acre (60 decimal),

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but fraudulently and by playing fraud, defendants
No.1 and 2 have got the suit land bearing Khasra
No.335/1 area 1 acre recorded in sale deed, as such,

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the said land was never alienated and in fact, the
land bearing Khasra No.376/1 area 60 decimal has
been alienated, which has been done taking advantage
of his illiteracy and even he is not able to sign in
the papers, as such, sale of the suit land bearing
Khasra No.335/1 area 1 acre is totally fraudulent
act on the part of defendants No.1 & 2 and no title
has been passed in favour of defendant No.1.
Therefore, sale deed dated 15.03.1999 (Ex.P-1/Ex.D-

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1) be declared void and decree for permanent
injunction be passed in favour of the plaintiff.

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3. Resisting the suit, defendants No.1 and 2 filed their joint written statement and denied the averments made in the plaint stating inter-alia that the plaintiff in open eyes sold the suit land bearing Khasra No.335/1 area 1 acre on 15.3.1999, which has duly been recorded in favour of defendant No.1 and she is in possession of the suit land and as such, the suit deserves to be dismissed.

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4. The trial Court upon appreciation of oral and documentary evidence available on record, by its judgment and decree dated 2.8.2001, dismissed the suit holding that the plaintiff has sold the suit land bearing Khasra No.335/1 area 1 acre and it has not been obtained by playing fraud. On appeal being preferred by the plaintiff, the first appellate Court reversed the judgment and decree of the trial Court and granted decree in favour of the plaintiff holding him to be title-holder of the suit land, against which, defendant No.1 preferred this second appeal under Section 100 of the CPC, in which one substantial question of law has been formulated by this Court, which has been set-out in opening paragraph of this judgment for sake of completeness.

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5. Mr.Somnath Verma, learned counsel for the appellant/ defendant No.1, would submit that there is overwhelming evidence available on record to hold that the suit land bearing Khasra No.335/1 area 1 acre was alienated in favour of defendant No.1 and the plaintiff has failed to prove any fraud on the part of defendant No.1 and sale deed (Ex.P-1/Ex.D-1) has duly been proved in accordance with law, as such, finding recorded by the first appellate Court is absolutely perverse and contrary to record.

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6. On the other hand, Mr.Rakesh Thakur, learned counsel for respondent No.1-B/legal representatives of the plaintiff, would support the impugned judgment and decree and submit that finding recorded by the first appellate Court is well reasoned and well merited which requires no interference that too in appeal under Section 100 of the CPC and as such, the judgment and decree of the first appellate Court deserved to be upheld.

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7. I have heard learned counsel for the parties and considered their rival submissions made hereinabove and also went through the records with utmost circumspection.

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8. Admittedly and undisputedly, sale deed (Ex.P-1/Ex.D-

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1) was executed by the plaintiff in favour of

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defendant No.1 on 15.03.1999, in which Khasra
No.335/1 area 1 acre is said to have been alienated
in favour of defendant No.1, but thereafter on
28.10.99 the plaintiff filed the suit that he has
not alienated the suit land bearing Khasra No.335/1
area 1 acre, but he has alienated the land bearing
Khasra No.376/1 area 60 decimal, which the trial
Court did not accept, but the first appellate Court
reversed that finding and decreed the suit of the
plaintiff.

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9. It is the stand of defendant No.1 that the plaintiff did not own the land bearing Khasra No.376/1 area 60 decimal. The plaintiff in para-20 of his crossexamination has clearly admitted that he only own the land bearing Khasra No.376/2 area 40 decimal and the land bearing Khasra No. 376/1 area 40 decimal is owned by his brother Ramdhan as on own admission of the plaintiff that on the date of transfer i.e. 15.3.1999 or on the date of suit i.e. on 28.10.99, the plaintiff was not owner of the land bearing Khasra No.376/1 area 60 decimal and as such, his foundation of the suit that he has sold the land bearing Khasra No.376/1 area 60 decimal has no basis or his case as projected is not true. Apart from that, the plaintiff has also admitted the execution

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of sale deed in the office of Registrar and also
admitted his sign in the sale deed.

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10. Now, the question is whether there is any fraud played in execution of sale deed dated 15.03.1999 (Ex.P-1/Ex.D-1), which was said to have been executed by the plaintiff in favour of defendant No.1 ?

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11. In order to prove the execution of sale deed by the plaintiff in favour of defendant No.1, defendant No.1 has examined as many as 5 witnesses, two are official witnesses. Prahlad Dwivedi (DW-1) is In-charge Sub-Registrar on the date of registration of sale deed. In para-2, he has clearly stated that

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on the date of sale, the contents of sale deed
(Ex.P-1) was explained to the seller and
consideration amount was also informed to him and it
has been admitted by seller and sale deed was
registered in favour of defendant No.1, though he
has been subjected to cross-examine, but nothing has
been extracted to disbelieve his statement in chief.
Similarly, Ayodhya Prasad (DW-2) has stated that the
suit land was also measured by Patwari and Patwari
has also issued the revenue documents showing the
title of the land, which was at that very time suit
land bearing Khasra No.335/1 in favour of the

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plaintiff. Similarly, Man Singh (PW-3) is also
villager. He has also stated about the measurement
and revenue documents having been given by patwari

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to the plaintiff. Fakhruddin (DW-4) is document
writer. He has clearly stated that at the
instructions of plaintiff-Goverdhan he has drafted
sale deed as per revenue documents (vikri chat) as
well as rin pustika, which the plaintiff has
accepted and thereafter sale deed was executed.
Luklata Prasad (PW-5) is patwari. He has clearly
stated about measurement of suit land, issuance of
revenue documents (vikri chat). He has also stated
that the plaintiff has also shown the land to be
sold in favour of defendant No.1. He has been
subjected to cross-examination, but nothing has been
brought against defendant No.1.

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12. Thus, a careful perusal of statements of the plaintiff and defendant's witnesses would show that the plaintiff was admittedly not owner of the land bearing Khasra No.376/1 area 60 decimal on the date of alienation of sale deed and he was owner and title-holder of the land bearing Khasra No.335/1 area 1 acre, of which he has obtained revenue documents from patwari Luklata Prasad (PW-5) before alienating the suit land and also got the land

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measured by defendant No.5 in presence of defendants
witnesses No.2 and 3 and thereafter presented the
document for registration in the office of Sub-
Registrar to which Prahlad Dwivedi (DW-1) has
explained the contents of sale to the plaintiff and
after having been accepted he proceeded to register

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sale deed in favour of defendant No.1, as such,
there is overwhelming evidence available on record
to hold that the plaintiff has openly and with all
alertness executed sale deed in favour of defendant
No.1 of suit land bearing Khasra No.335/1 area 1
acre, which he was owning at that time and valid
title has been transferred in favour of defendant
No.1, as such, the first appellate Court is
absolutely unjustified in holding that the plaintiff
has not transferred the suit land bearing Khasra
No.335/1 area 1 acre in favour of defendant No.1.

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13.On the basis of aforesaid discussion, I am
unable to sustain the judgment and decree of the
first appellate Court and accordingly, it is set-
aside and that of the trial Court is hereby restored
meaning thereby the suit filed by the plaintiff
would stand dismissed.

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14. The second appeal is allowed to the extent indicated hereinabove leaving the parties to bear

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their own cost(s).

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15. Appellate decree be drawn-up accordingly.

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Sd/-

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(Sanjay K.Agrawal)
 Judge

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B/-

Chameli Bai v. Goverdhan Th.Lr'S and Ors.

Case brief

What is this about?

What did the court decide?

Chameli Bai v. Goverdhan Th.Lr'S and Ors.

Case brief

What is this about?

What did the court decide?

What the court decided

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