Jairam Gupta Vs Gulapi and Ors.

This is the Second Appeal filed by the appellant/defendant under Section 100 of the CPC against the judgment and decree dated 29.10.2010 passed by the Third Additional District Judge (FTC), Raigarh, afÏrming the judgment and decree dated 30.3.2009 passed by the Civil Judge Class-II, Raigarh in Civil Suit No.75-A/2008, whereby, the suit preferred by the plaintiffs was allowed and the decree was granted in their favour to the effect that the Sale-deed-Ex.-P/2 executed by late Ram Prasad, husband of respondent No.1 and father of respondents 2 & 3 ( all three plaintiffs), dated 31.12.2001 is null and void and not binding on the plaintiffs and they are also entitled to recover the possession from the appellant.

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Breifly stated facts of the case are that respondents 1 to 3/plaintiffs are widow and sons of deceased – Ram Prasad. It has been averred by the palintiffs that the questioned Sale-deed – Ex.P/2 was executed by late Ram Prasad without any consideration as he was in the habit of consuming liquor, due to which, he always remained in a drunken condition. Taking advantage of such habit of the deceased, the

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appellant/defendant No.1, in a fraudulent manner, got executed the impugned sale-deed in his favour in respect of Khasra No. 270/1, admeasuring 0.393 hectare. It has been further averred that the subject land is the ancestral land of the father of the deceased - late Ram Prasad and the plaintiffs are having a legal right on such ancestral property, therefore, the sale-deed is not binding on the plaintiffs. When the appellant/defendant tried to get his name mutated in pursuance of the Sale-deed and filed a mutation application before the Panchayat in this regard in the month of February 2006, for the first time, the said fact came into the knowledge of the plaintiffs and they raised an objection by filing a written complaint on 7.2.2006. Thereafter, the present suit has been filed.

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In the written statement, the appellant/defendant denied the averments of the plaintiffs and stated that on the date of execution of the questioned sale-deed i.e. 31.12.2001, the deceased had obtained the whole consideration amount of Rs.62,100/- and got the subject document registered in the Registration OfÏce, Raigarh. It has been further averred by the appellant that he has not cheated the deceased in any manner and also not created any pressure on him. The suit is time barred and the mutation has already been effected vide Mutation No.16 dated 5.1.2002. Further, since the consideration amount mentioned in the Sale-deed is to the tune of Rs.62,100/- , the Civil Judge Class-II was not having the jurisdiction to hear the

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matter.

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Based upon the pleadings of the parties, the trial Court framed as many as six issues. Plaintiff-respondent No.1 (widow) examined herself as PW-1, Raghumani as PW-2 and Ugrasen Kolta (PW-3) and exhibited two documents (i) – Kistbandhi Khatauni (Ex.P/1) relating to the year 1997-98, in which, the land has been recorded in the name of deceased- Ram Prasad along with others namely Santosh, Nakul, Gangaram and (ii) the questioned sale-deed (Ex-P/2). The appellant/defendant examined himself as DW-1 and attesting witness of the questioned sale-deed - Dukhiram Yadav as DW-2.

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This appeal was admitted for hearing on 1.3.2021 on the following substantial questions of law :

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Whether both the Courts below are justified in holding that the sale deed dated 31.12.2001 executed by the deceased Ramprasad Gupta, husband of plaintiff No.1 and father of plaintiff Nos.2 & 3, in favour of the defendant Jairam Gupta is not binding upon the plaintiffs by recording a finding perverse to the record?

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Whether both the Courts below are justified in holding that the suit is within limitation by recording a finding perverse to the record?”

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Learned counsel for the appellant would submit that he has filed an application (IA No.2/2021) by proposing to frame an additional substantial question of law :

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“Whether the learned Courts below erred in not holding the suit beyond jurisdiction of Civil Judge Class-II, Raigarh ?”

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Learned counsel for the appellant would further submit that Section 6 of the CG Civil Courts Act, 1958, defines “original jurisdiction of Civil Courts”, which prescribes that the Court of the Civil Judge Class-II shall have jurisdiction to hear and determine any suit or original proceeding of a value not exceeding Rs.25,000/-. He would further submit that admittedly, in the present suit, in respect of the impugned sale-deed, consideration amount to the tune of Rs.62,100/- has been paid, therefore, the concerned trial Court was not competent to hear the matter. The defendant has raised such objection in the written statement and in this regard, issue No.5 has been framed by the trial Court. He would submit that it is the settled law that the parties are governed by their pleadings and burden lies on the person who pleads to prove and further, the plaintiffs have to succeed basing strength of his case and cannot depend upon weakness of defendant’s case. For the said proposition, learned counsel placed reliance on the matter of State of Madhya Pradesh Vs. Usha Devi, reported in (2015) 8 SCC 672, in which, the following observation has been made in para 33:

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Once we have given our finding on the maintainability of the suit, we need not go into the other issues. But in view of the alternative argument advanced by the counsel, we are of the view that we should throw some

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light on those issues. It is the finding of the trial court that the lands were retransferred to Holkar State in the year 1951, and retransferring is without any authority and it is bad. The trial court held that though it is the specific case of the plaintiff that they are paying tauzi, there is no evidence to show that they have paid tauzi prior to 1951 and the correspondence of the plaintiff and her father shows that the suit scheduled properties were not included in Item 14 of the list of properties and further held that the suit scheduled properties were allotted to the Forest Department. First coming to the issue of transfer of land to the Forest Department, it is settled law that parties are governed by their pleadings and the burden lies on the person who pleads to prove and further the plaintiff has to succeed basing on the strengths of his case and cannot depend upon the weakness of the defendant's case. The State having alleged several things, has failed to mark any document to show that the properties were transferred to the Forest Department and the retransfer in the year 1951 was without any authority of law. Though the State has filed certain documents before us, but as they are not part of the evidence, we are not inclined to look at those documents.

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Learned counsel for the appellant would further submit that the widow of the deceased (respondent No.1/plaintiff) categorically admitted in her deposition that she is not aware about payment of the consideration, therefore, the allegation against the appellant that he has executed the impugned sale-deed by fraud has not been proved. He would submit that the findings recorded by the Courts below are against the evidence available on record and also perverse. He also submits that as in the alleged registered sale-deed, consideration amount has been mentioned, therefore, a presumption has to be drawn that due

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consideration has been paid. Thus, learned counsel for the appellant prays to allow the appeal and set-aside the impugned judgment and decree.

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On the contrary, learned counsel for the plaintiffs would submit that the plaintiffs have made a specific pleading that the alleged sale-deed has been got executed without any sale consideration. It is well settled that when any sale has been made without any consideration, the same is treated as null and void. He would further submit that in para 3 of his deposition, it has been categorically admitted by the appellant that the suit land is joint property and seller Ram Prasad was not having any exclusive right to alienate the subject property. He would further submit that the fact that the subject property is ancestral has been established, therefore, the plaintiffs are also entitled to title on the said property. There is a serious contraction and omission in the evidence of the witnesses examined by the appellant about payment of consideration, therefore, both the Courts below have rightly recorded the finding that no consideration has duly been paid and the said finding is not perverse. He would submit that with regard to the objection raised relating to pecuniary jurisdiction, in view of Section 21 of the CPC, no failure of justice has been established by the appellant. The instant suit has been filed by the plaintiffs when, in the year 2006, it came into their knowledge that a fraudulent sale-deed has been executed and in respect of which, at that time, a

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mutation application was moved before the Village Panchayat by the defendant. He submits that the right to sue first accrued in the year 2006, therefore, the suit is within limitation. Lastly, learned counsel for the plaintiffs prays to dismiss the appeal.

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Heard learned counsel for the parties and also perused the record with utmost circumspection.

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Admittedly, in the plaint, it has been averred that when the defendant/appellant, on the basis of the questioned sale-deed - Ex.P/2, tried to get the subject property mutated in his name by moving an application before the Village Panchayat in the year 2006, the respondents/plaintiffs raised a written objection on 7.2.2006 and thus, right to sue first accrued with effect from this date as on the said date, the alleged sale-deed came into their notice. Therefore, according to Article 58 of the Schedule of the Limitation Act, the suit has been filed within limitation.

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So far as the objection raised with regard to the pecuniary jurisdiction is concerned, the law is well settled that it does not affect the result unless there is failure of justice. Sub-section 1 of Section 21 of the CPC provides that no objection as to the place of suing shall be allowed by any Appellate or Revisional court unless such objection was taken in the Court of first instance at the earliest possible opportunity and in all cases where issues are settled at or before such settlement, and unless there has been a consequent failure of justice. The above provision clearly lays down that such objection as to the place of

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suing shall be allowed by the appellate or revisional court subject to the following conditions :

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That such objection was taken in the court of first instance at the earliest possible opportunity;

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in all cases where issues are settled then at or before such settlement of issues;

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there has been a consequent failure of justice;

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In the matter of R.S.D.V. Finance Co. Pvt. Ltd. Vs. Shree Vallabh Glass Works Ltd, reported in (1993) 2 SCC 130 , it has been materially observed that even when the first two conditions are satisfied but the third condition of failure of justice is not fulfilled, such nature of objection is not acceptable.

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In such circumstances referred to above, this Court is of the view

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that even with regard to the objection of want of pecuniary jurisdiction, the appellant has failed to establish any failure of justice. The appellant/defendant categorically admitted that prior to purchase, he did not enquire or inspect about the land record and even he was not knowing about Rakba and Khasra Number of the purchased land. He also admitted that he has not obtained the consent of the plaintiffs at the time of the purchase. In para 3 of the his cross-examination, the appellant categorically admitted that the subject land is joint property recorded in joint names. The plaintiffs have filed Ex.-P/1- Kistbandi Khatauni , which clearly shows that the land is not recorded exclusively in the name of late Ram Prasad, but is also

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recorded in the names of his other brothers. The subject land is ancestral and the plaintiffs being the widow and sons respectively of late Ram Prasad are also entitled to the subject property and late Ram Prasad was not having any exclusive right to alienate the subject property.

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The appellant/defendant has stated that he has paid the sale consideration prior to the alleged execution of the sale-deed and categorically admitted that on the date of execution of the sale-deed, he did not pay any amount to the deceased. On the contrary, Dukhi Ram Yadav (DW-2), at para 2 of his evidence, stated that he has signed the subject sale-deed in the ofÏce of the Registrar and the full consideration amount was paid before him. In view of the above, the trial Court has rightly observed that there is a serious contradiction in the evidence with regard to amount of payment of the subject sale-deed. It is also established from the evidence available on record that the deceased was in the habit of consuming liquor every whole day and was always in a drunken condition.

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It has been alleged by the plaintiffs that without payment of any consideration, the alleged sale-deed has been executed and the appellant/defendant, who is one of the friend of deceased- Ram Prasad, took benefit of such habit of the deceased, and fraudulently got the sale-deed executed. The issue framed in this regard was answered in afÏrmative by the trial Court. In my view, the said finding has been recorded on due appreciation of

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evidence available on record, which is not perverse.

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In the considered opinion of this Court, the findings recorded by both the Courts below are based on proper appreciation of evidence available on record and there is no illegality or perversity in the same and they does not call for any interference.

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