Sobha Devi Vs Smt Anandi Devi And Ors.

--For the Appellant : Mr. Shashank Shekhar, Advocate For Contesting Respondents : Mr. Rahul Kumar Gupta, Advocate Mr. Ashutosh Prasad Joshi, Advocate Mr. Rakesh Kumar Singh, Advocate Ms. Swati Singh, Advocate Mr. Surya Prakash, Advocate

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Lastly heard on 05.02.2025 Pronounced on 02.04.2025

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1. This Appeal has been filed against the Judgment dated 29.11.2016 (Decree signed on 13.12.2016) passed by learned Principal District Judge, Jamtara in Title Appeal No. 20 of 2015 whereby the learned Court has confirmed the Judgment dated 26.03.2015 (Decree dated 13.04.2015) passed by learned Civil Judge (Senior Division)-III, Jamtara in Title Suit No. 71 of 2002 and dismissed the appeal preferred by the appellant-principal

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defendant. The defendant no. 1, who has lost in both the courts is the appellant before this Court.

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2. The original plaintiff (Anandi Devi) and the defendant no.1 (Shobha Devi), both claimed title over the suit property by virtue of registered sale deeds said to have been executed by the original defendant no.2 (Rajamoni Mondal). There is no dispute that the suit property belonged to the original defendant no.2. The suit was filed seeking, inter alia, a declaration that Sale Deed No. 1137 of 2001 is void and also for declaration that Sale Deed No. 388 of 2001 is lawful.

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3. This Second Appeal was Admitted for hearing on 04.12.2018, on the following substantial questions of law:

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(i) Whether the learned trial court as well as learned lower Appellate Court had committed gross error while deciding the main issue “whether the sale deed no. 388 of 2001 executed by defendant no. 2, the vendor Rajamani Mandal in favour of plaintiff is lawful and valid” whereas the vendor Rajamani Mandal denied the execution of Sale Deed No. 388 of 2001 in favour of plaintiff Anandi Devi nor the vendor Rajamani Mandal have examined to prove the said sale deed?

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(ii) Whether the learned trial court as well as learned lower Appellate court had committed gross error while deciding another issue “whether the Sale Deed No. 1137 of 2001 executed by the defendant no. 2, the vendor Rajamani Mandal in favour of defendant no. 1 is void, illegal and inoperative in law” whereas the vendor Rajamani Mandal himself admitted the execution of Sale Deed No. 1137 of 2001 in favour of defendant No. 1 Shova Devi in his written statement?

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(iii) Whether the learned trial court as well as learned lower Appellate Court had committed gross error and not considered the agreement executed by the vendor Rajamani Mandal in favour of defendant No. 1 Shova Devi on 30.10.2000 with regard to the sale of the land in question?

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(iv) Whether the learned trial court as well as learned lower Appellate Court had committed gross error and not verified the signature of the vendor

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Rajamani Mandal by a handwriting expert or by an F.S.L. laboratory?

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4. Title Suit No.71 of 2002 was filed seeking a declaration that the sale deed bearing no.1137 of 2001 executed by the original defendant no.2 in favour of the defendant no.1 is void, illegal, inoperative in law and not binding on the plaintiff and for a further declaration that registered sale deed no.388 of 2001 executed by original defendant no.2 in favour of the original plaintiff is valid and lawful. A prayer was also made seeking cancellation of the aforesaid sale deed no.1137 of 2001 and a relief was prayed seeking injunction restraining the defendants from disturbing the possession of the plaintiff.

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5. After giving the details regarding the title with respect to the suit property, it was the case of the plaintiff that the owner of the property, namely, Hara Gopal Nandi Choudhary sold 4 decimals of land of plot no.3233 to Mohanlal Burman by a registered sale deed and the said suit plot was marked as 3233/A/15; Mohanlal Burman sold the said portion of land to the original defendant no.2 Rajamoni Mondal by a registered deed of sale no.1358 of 1984; the original defendant no.2 Rajamoni Mondal sold the said property in favour of Smt. Anandi Devi, the original plaintiff vide registered sale deed no.388 of 2001 upon payment of consideration . The vended property was mutated in her name vide order dated 29.06.2002 in mutation case no.51 of 2001-02 and the original plaintiff claimed that she has been paying rent.

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6. The case of the original plaintiff was that the original defendant no.2 Rajamoni Mondal resold the said property to Smt. Shobha Devi, the principal defendant by executing another sale deed which was numbered as 1137 dated 11.10.2001 and this was done by practicing fraud and misrepresentation. Further case of the plaintiff was that the original defendant no.2 Rajamoni Mondal did not know Hindi and someone by practicing fraud and misrepresentation had actually executed the second deed bearing no.1137 of 2001 in favour of the principal defendant with respect of the property which was already purchased by the plaintiff.

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7. In the month of October 2001, the husband of the principal defendant tried to occupy the land by force for which the son of the plaintiff resisted

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and informed the police and consequently the proceedings were initiated and during inquiry, the police found that the second deed dated 11.10.2001 as executed by Rajamoni Mondal in favour of the principal defendant Shobha Devi was spurious document. The proceeding under Section 144 Cr.P.C was registered as Criminal Miscellaneous Case No.674 of 2001 which was ultimately converted into a proceeding under Section 145 Cr.P.C in which the husband of the principal defendant had taken a stand that the original defendant no.2 Rajamoni Mondal, prior to execution of the sale deed in favour of Shobha Devi – the defendant no.1 had entered into an agreement for sale of the land with the principal defendant Shobha Devi and had put her in possession during the agreement of sale. However, it was asserted that such averment was not made by the original defendant no.2 Rajamoni Mondal in the sale deed no.1137 of 2001 executed in favour of Shobha Devi. It was alleged that the agreement of sale was an afterthought and prepared to overcome the gross illegality of the second sale deed but the agreement was not whispered either by the seller or the purchaser at the time of execution of sale deed no.1137 of 2001 executed in favour of Shobha Devi. The cause of action arose on and from 08.10.2001 when Rajamoni Mondal executed the sale deed no.1137 of 2001 in favour of Shobha Devi for the same land for which the sale deed was already executed in favour of the plaintiff vide sale deed no. 388 of 2001 by the same vendor i.e., the original defendant no.2 Rajamoni Mondal.

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8. The principal defendant Shobha Devi appeared and contested the suit by filing a written statement and asserted that the suit was barred by limitation and was fit to be dismissed on this ground alone; there was no valid cause of action; the learned court had no territorial or pecuniary jurisdiction to proceed with the suit. It was also asserted that the suit was hit by the principles of estoppel and acquiescence. The principal defendant Shobha Devi admitted that the suit property belonged to the original defendant no.2 Rajamoni Mondal vide registered sale deed bearing no.1358 of the year 1984 and he came in possession. It was asserted that the original defendant no.2 Rajamoni Mondal by virtue of sale deed no.1137 dated 11.10.2001 on receipt of the consideration amount incorporated in the sale deed, sold the land to the defendant no.1 Shobha Devi.

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9. It was their further case that prior to execution of the sale deed no.1137 of 2001 executed in favour the defendant no.1, an agreement of sale dated 30.10.2000 was entered into with respect to the suit property and the principal defendant Shobha Devi came in possession. The specific case of the principal defendant was that the agreement prior to registration of the sale deed in favour of the defendant no.1 could not be mentioned in the sale deed due to bonafide mistake of the scribe which could not be detected at the time of registration of sale deed in favour of defendant no.1 and nonmentioning about the existence of agreement deed was not material for the suit.

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10. It was further case of the principal defendant Shobha Devi that she was in possession of the suit land from the date of execution of the agreement which was confirmed by executing a sale deed in her favour. It was their further case that the plaintiff played a fraud by getting the property by execution of sale deed in spite of the fact that the defendant no.1 was in possession of the property by virtue of the agreement of sale dated 30.10.2000. The plaintiff succeeded in practicing fraud in the matter of execution of the sale deed but was not allowed to take possession of the suit property by the original defendant no.2 Rajamoni Mondal. It was their specific case that the sale deed standing in favour of the plaintiff remained inoperative. With respect to the proceeding under Section 144 Cr.P.C., it was stated by the principal defendant that it was the plaintiff who was disturbing the possession of the principal defendant which led to the proceeding under Section 144 Cr.P.C and then under Section 145 Cr.P.C. The learned District and Sessions Judge, Jamtara ultimately decided the criminal revision in favour of the defendant no.1 rejecting the plea of the plaintiff or her husband which therefore had settled the issue in respect of the suit property. It was asserted that so far as mutation case no.51 of 2001-2002 is concerned, it was never initiated in respect of the suit property nor any order was passed in favour of the plaintiff and that the sale deed standing in favour of the plaintiff is a result of fraud by the plaintiff. It was the case of the defendant that they acquired the property by way of legal document and were in possession of the property.

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11. The principal defendant had also filed an additional written statement on 09.02.2005 and stated that the allegation of plaintiff in paragraph 2 was that the defendant no.2 Rajamoni Mondal had supported the case of the defendant no.1 Shobha Devi but such statement was false and denied and that there was no collusion between the defendant nos.1 and 2. It was asserted that the real fact was that after execution of agreement for sale between the defendant no.1 and defendant no.2 dated 30.10.2000, the principal defendant was put in possession of the suit land and she continued to be in possession. The sale deed no.388 of 2001 was not a lawful document. The original defendant no.2 Rajamoni Mondal also filed a written statement and filed his additional written statement and denied the allegation and asserted that the plaintiff never entered into possession over the suit land with vested right therein and the fact was that after the execution of agreement of sale with principal defendant Shobha Devi dated 30.10.2000, she was put in possession of the property by raising boundary wall. It was asserted that the sale deed no. 388 of 2001 of the plaintiff was a fake document and not valid. The principal defendant expired and consequently the newly added defendants had also filed their written statement.

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12. The learned trial Court framed the following issues for consideration:

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“(i) Is there any cause of action for the suit?

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(ii) Is the suit barred by limitation?

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(iii) Has the Defendant No. 2 executed Sale deed No. 388/2001 in favour of the plaintiff and is the said Deed Lawful and valid?

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(iv) Is the Sale Deed No. 1137/2001 executed by Defendant No. 2 in favour of Defendant No. 1 is void, illegal and inoperative in law?

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(v) Is the said Sale Deed No. 1137/2001 liable to be canceled?

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(vi) Is the plaintiff entitled to the relieves claimed?”

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13. In support of their claim, the plaintiff examined altogether 10 witnesses. P.W.1: Ram Kali Banerjee, P.W.2: Manik Chandra Sarkhel, P.W.3: Chhotilal Mondal, P.W.4: Satinath Mondal, P.W.5: Arun Kumar Lachhiramka, P.W.6: Fani Bhushan Mishra, P.W.7: Shankar Lal Parshuramka, P.W.8: Paresh Bouri, P.W.9: Munna Kumar Poddar and P.W.10: Sadanand Mahato. The plaintiff also exhibited some documents which were marked exhibits as under:

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Ext.1: Signature of Typist on Sale Deed No. 388 of 2001 Ext. 2: The Whole Sale Deed No. 388 of 2001. Ext. 2/A: Map prepared by Chhotilal Mandal part of Sale Deed No. 388 of 2001. Ext. 3: W.S. of R.E. Case No. 26/88-89. Ext.4: Vakalatnama of R.E. Case No. 26/88-89. Ext. 4/a: Vakalatnama of R.M.A. Case No. 86/01-02. Ext.5: Hazira in R.M.A. 86/01-02 dated 02.04.2004. Ext. 6: Bail Bond of G.R. Case No. 178 of 92/ T.R. 213 of 1998/ T.R. 16/2003 dated 09.03.1998. Ext.7: Letter No. 254 dated 02.04.2002 of D.C., Jamtara. Ext.8 and 8/1: Rent Receipts 1776336 and 3286061. Ext. 9 to 9/K: Signature of Rajamuni Mandal on Sale deed dated 20.03.2001. Ext. 10 to 10/a: Signature of witness Vishnu Pd. Mandal on Sale Deed 20.03.2001. Ext. 11: Signature of witness Munna Kumar Poddar on Sale Deed No. 388 of 2001 dated 20.03.2001. Ext. 12: Signature of witness Mahesh Mandal on Sale Deed No. 388 of 2001 dated 20.03.2001.

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Ext. 13: Report of Rajendra Singh, A.S.I. U/s 144 Cr.P.C.”

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14. The defendants examined altogether 14 witnesses. D.W.1: Byomkesh Paraya, D.W.2: Janardan Sah, D.W.3: Jharo Pddar, D.W.4: Md. Yunus, D.W.5: Gopal Rana, D.W.6: Shankar Singh, D.W.7: Mohan Lal Burman, D.W.8: Sanjay Kumar Mahata, D.W.9: Shrawan Kumar Gupta, D.W.10: Surji Devi, D.W.11: Kisan Mandal, D.W.12: Kisan Mandal, D.W.13: Mahesh @ Maheshwar Mandal and D.W.14: Nunumani Pandey.

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15. The defendants also exhibited some documents which were marked exhibits as under:

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“Ext. A to A/6: Signatures of Rajamoni Mandal on written statements. Ext. B: Agreement for sale dated 30.10.2000.

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Ext. B/1 to B/7: Signatures of (1) Jharo Poddar, (2) Shobha Devi, (3) Rajamoni Mandal, (4) Mahesh Mandal, (5) Sanjib Kr. Mahata, (6) Kishan Mandal and (7) Bhola Rana on the deed of Agreement for Sale dated 30.10.2000.

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Ext. C: Deed of Agreement for Sale dated 20.12.2000.

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Ext. C/1: Signature of Janardan Sah on the Deed of Agreement for sale dated 20.12.2000.

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Ext. C/2 to C/4: Signatures of Rajamoni Mandal, Mahesh Mandal and Sanjib Kr. Mahata on the Deed of Agreement for Sale dated 20.12.2000.

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Ext. D: Deed of Sale No. 1358 dated 19.12.1984.

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Ext. D/1: Map annexed with Deed of Sale No. 1358 dated 19.12.1984.

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Ext. E : Deed of Sale No. 1137 dated 08.10.2001. Ext. F: Deposition of Rajamoni Mandal in T.S. No. 22/1991.”

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16. The learned trial court first decided the issue nos. (iii), (iv) and (v) and held that it was clear that the plaintiff had brought the suit on the basis of sale deed no.388 of 2001 and that the principal defendant had tried to disturb her peaceful possession on the basis of another legal sale deed. The defendants asserted that the vendor Rajamoni Mondal had not executed the sale deed in favour of the plaintiff and their case was that Rajamoni Mondal had taken advance of Rs.15,000/- and executed an agreement of sale and handed over the possession to the defendants as part performance of the contract of sale under Section 53A of the Transfer of Property Act and therefore the possession was required to be protected.

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17. The learned trial court observed that the witnesses examined from the side of the plaintiff clearly told that Rajamoni Mondal had executed the sale deed before the Registrar, and at the time of registration, the document was identified by his own son Vishnu Prasad Mandal. The learned trial court held that oral evidence brought in support of the Sale Deed No. 388 of 2001 (Exhibit 2) filed by the plaintiff to claim title appeared to be reliable. The claim of the defendants that Rajamoni Mondal had not executed the sale deed in favour of the plaintiff and that the sale deed was executed by some fake person was held to be not supported by any reliable evidence.

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18. The learned trial court recorded a finding that in the present case Rajamoni Mondal by executing Sale Deed No. 388 of 2001 (Exhibit 2) on 28.02.2001 had transferred his right, title and interest in the suit property to the plaintiff Anandi Devi after receiving consideration amount of Rs.61,000/- and the sale was completed on that day and that the sale deed was registered on 20.03.2001. The learned trial court further considered that there was no documentary or oral evidence to believe that principal defendant was in possession of the property by virtue of agreement dated 30.10.2000 and also observed that to take the benefit of Section 53-A of Transfer of Property Act, it is essential that the transferee must be in part performance of the contract, must have taken possession of the property and must have done some act in furtherance of the contract. The learned court

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recorded that the principal defendant was not seeking any protection against her transferor. The learned court also considered the plea of Rajamoni Mondal that he was not in the habit of making signature in Bengali language and that he used to make his signature in Hindi. In support of the contention, the plaintiff had produced evidence - oral and documentary, wherein certain certified copies of the part of the court records were produced to show that Rajamoni Mondal used to mark his signature in Bengali language. Certain documents were also placed on record from the side of the defendants wherein signature of Rajmoni Mondal was shown in Hindi.

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19. The detailed discussion with regard to the documentary evidences produced by both the parties in connection with the signature of Rajamoni Mondal, whether in Hindi or in English, have been made in paragraph 34 of the trial court’s judgment. The learned court recorded that the documents were not sufficient to convince that Rajamoni Mondal was in the habit of making signature in Hindi language and the evidences of the plaintiff on the point was strong as a number of documents were filed to show that Rajamoni Mondal was in the habit of marking his signature in Bangla language.

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20. There is further finding of fact recorded by considering the materials on record in paragraph 35 wherein the defendant no.1 argued that the plaintiff was required to take opinion of handwriting expert as to whether Rajamoni Mondal had executed the Sale Deed No. 388 of 2001 (Exhibit 2) or not. The said plea was rejected by learned trial court by observing that if the defendants had taken plea that Sale Deed No. 388 of 2001 (Exhibit 2) was not executed by Rajamoni Mondal and Rajamoni Mondal had also filed written statement that he had not executed the sale deed in favour of plaintiff -Anandi Devi, then it was for the defendants to take opinion of handwriting expert on this point and the burden of proof on this point was with the defendants and the plea was rejected.

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21. Another plea was taken by the defendants that Rajamoni Mondal had not handed over his original sale deed, which stood in his name, to the plaintiff. Rather it was handed over to the contesting defendant. The original sale deed executed by Mohan Lal Burman in favour of Rajamoni Mondal in the year 1984-85 was proved as Exhibit – D in the case. The learned trial court recorded that for a valid sale, handing over of earlier sale deed, is not

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a precondition, and no one can acquire a valid right, title and interest on the basis of possession of prior transaction document and the plea was rejected. 22. The learned trial court further considered the agreement of sale deed dated 30.10.2000 (Exhibit B) with another agreement of sale (Exhibit C) which was executed by Rajamoni Mondal after taking advance of Rs.15,000/- on 20.12.2000 which was followed by the final execution of the sale deed on 08.10.2001 by Rajamoni Mondal vide registered sale deed no.1137 of 2001 (Exhibit E) whereby the property was sold to the principal defendant Shobha Devi. The learned court observed that no reason has been given as to why second deed of agreement for sale was executed on 20.12.2000. It was also observed that the alleged fact of execution of deed of agreement for sale dated 30.10.2000 (exhibit B) was not mentioned in the second deed of agreement for sale dated 20.12.2000. Further in the final sale deed no.1137 dated 08.10.2001 (Exhibit E) which was in favour of defendant no.1, nothing was mentioned in connection with taking advance on 30.10.2000 and on 20.12.2000 and execution of two deeds of agreement for sale was not mentioned in the sale deed. The learned court observed that there was no visible link between the agreement for sale and final sale and disbelieved the case of the defendants that the sale deed no.1137 dated 08.10.2001 (Exhibit E) was preceded by the agreement of sale dated 30.10.2000 (Exhibit B) and agreement of sale dated 20.12.2000 (Exhibit C). The plea of part performance and the defence raised pursuant thereto was not accepted by the learned trial court. The learned trial court ultimately recorded a finding after detailed discussion that the Sale Deed No. 388 of 2001 (Exhibit 2), executed in favour of the plaintiff, was a lawful and valid document and sale deed no.1137 of 2001 executed in favour of defendant no.1 was void, illegal and inoperative in law and consequently, the issue nos. (iii), (iv) and (v) were decided in favour of the plaintiff and against the defendants.

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23. With respect to issue no.(ii), it was observed that the defendants had taken a plea that the suit was barred by limitation but no specific ground was found to presume that the suit was barred by law of limitation. As per the plaint, the cause of action for the suit arose on execution of the 2^nd sale deed in October 2001, and the suit was filed on 17.12.2002, within three years of

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the period of limitation. The court also observed that there was no plea and no evidence in support of this ground and the suit was held to be not barred by limitation. This was held in paragraph 38 of the trial court's judgment.

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24. With respect to issue no.(i) -the cause of action, the learned court observed that as per the plaintiff the cause of action arose on 08.10.2001 when Rajamoni Mondal had executed the second sale deed no.1137 of 2001 and that the principal defendant was adamant to occupy the land by force. The issue regarding cause of action was also decided in favour of the plaintiff.

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25. While deciding issue no. (vi), the learned trial Court declared that Registered Sale Deed No. 388 of 2001 in favour of the plaintiff Anandi Devi was lawful and valid and would subsist. The learned trial Court further declared that the sale deed no. 1137 of 2001 of Sub-Registration Office, Jamtara was void, illegal and inoperative in law and not binding upon the plaintiff. Sale Deed No. 1137 of 2001 was cancelled by the learned trial Court by declaring the same illegal, void and inoperative in law. The learned Court restrained the defendants from disturbing peaceful possession of the plaintiff over the suit property. The learned trial court after recording the findings ultimately decreed the suit.

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26. After scrutinizing the various materials on record, the learned first appellate court recorded concurrent findings in paragraph 16 to 20 of its judgment, which is as under:

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“16. Hon'ble Supreme Court in the case of Nanje Gauda and another Vs. Gangama and others, reported in 2011,vol. 13 S.C.C page 232 has held that “Non satisfaction of even one condition would deny production of section 53A of Transfer of Property Act.”

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Now applying the principle laid down by the Hon'ble Supreme Court to the facts of this case, I find agreement for sale dated 30.10.2000 was exhibited by the Defendant as Ext-B. In this case, an agreement for sale dated 20.12.2000 was proved as Ext- C. The original sale deed executed by Mohanlal Burman in favour of Rajamoni Mondal bearing Deed No. 1358 dated 19.12.1985 as Ext-D. The Defendant/Appellant tried to prove her claim of part performance through two agreements for sale (Ext-B and C) but surprisingly there is no whisper about existence of any agreement for sale dated 20.12.2001 in the written statement. Thus, evidence

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of agreement for sale i.e Ext-C cannot be looked into as the same is beyond pleadings.

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17. I find that, perhaps, the Defendant was aware of her weak points and therefore she fabricated two agreement papers dated 30.10.2000 and 20.12.2000 to show that prior to purchase land by the plaintiff on 20.03.2001 she acquire some sort of right over the land through such Agreement. It may be mentioned here that Defendant Sobha Devi is only a name lender and all fabrications and fraud in this matter were perpetrated by her husband Srawan Kr. Gupta D.W.9 which will be apparent from the deposition of D.W.9. The main Defendant Sobha Devi did not examine herself as witness and D.W.9 did everything allegedly on her behalf. The fictitious nature of two Agreement and the sale Deed Ext-A-1 to A-2/1 and B has been exposed from the evidence of D.W.1, D.W.9 of the Defendant 1st party and D.W.10,D.W.11 and D.W.13.

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18. D.W.1 Bomkesh Poddar was brought to prove the second Sale Deed which was marked as Ext-B-1 with objection. He however did not prove the Execution of the Deed but simply said in para 5 of his affidavit that he typed the Deed in which Rajamoni Mondal signed and Sri Sanjeev Kr. Mahata, Advocate also signed since Sanjeev Kumar Mahato has prepared the same. The fact is however that the Deed was never drafted/prepared by Sanjeev Kumar Mahata vide the signature of the Advocate in Ext-B-1 itself and evidence of D.W.No.8 Sanjeev Kumar Mahata in para 6 of his Affidavit shows that Ext-B was prepared by him. This D.W.8 has further admitted in para 16 of his deposition that Sobha Devi and Rajamoni Mondal both are his clients thus proving collusion between them be the false nature of the document Ext- B hence proved.

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19. In so far as the two Agreements A-1 to A-2/1 and Ext-B/1 are concerned Ext-A/1 shows that the stamp of Agreement paper was purchased on 30.10.2000 at Deoghar and it was shown as signed at Jamtara by the Executant on the same day i.e 30.10.2000. However the Defendant's husband D.W.9, the alleged Power of Attorney holder has said in his Affidavit in para-5 that the Agreement was executed on 31.10.2000. In cross- examination also in para-27 and 28 he has admitted that Agreement was executed on 31.10.2000 and payment was made of Rs. 15,000/- on the same day but contents of Ext-A/1 to A-2/1 makes out a different story. Sobha Devi's L.T.I is not attested by any lawyer in the said Agreement. Mahesh Mondal son of Rajamoni Mandal, the co-executant of the said Agreement ( D.W.13) has admitted in para-10 of his deposition that he was not a party to the Agreement and in para 13 he has further admitted that this Agreement was

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never executed at Jamtara. The above contradictory evidence of D.W.1,9 and 13 and the contents of the Agreement dated 30.10.2000 clearly proves the antedated and false nature of the exhibits.

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20. So far as second Agreement (Ext-C) dated 20.12.2000 is concerned, the same is not admissible as beyond pleading. Thus, it is clear that the defendant has created these agreement for sale, in order to base her case of part performance of contract u/s 56A of T P Act and as such she is not entitled for any relief under T P Act.

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On the other hand, the Plaintiff/Respondent have duly proved sale deed bearing No. 388/2001 dated 20.03.2001 in accordance with law. Learned lower court has elaborately discussed the evidence oral as well as documentary and has rightly decided in favour of the plaintiff/Respondent. It requires no interference.”

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27. Arguments on behalf of the appellant- principal defendant Shobha Devi

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A. Learned counsel for the appellant has submitted that though the background in connection with the suit property has been narrated in the pleadings, but it is not in dispute that the property stood in the name of Rajamoni Mondal by virtue of registered sale-deed dated 19.12.1984 (Exhibit-D). Rajamoni Mondal was defendant no. 2 in the suit. He submitted that as per the case of the plaintiff, defendant no. 2 executed a sale-deed dated 28.03.2001 (Exhibit-2) and it was their claim that they came in possession of the property and mutation was also undertaken but no document of mutation has been produced by the plaintiff.

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B. The learned counsel further submitted that the same vendor i.e. Rajamoni Mondal (original defendant no. 2) was said to have executed another sale-deed dated 11.10.2001 in favour of the defendant no. 1 and it was the case of the defendant no. 1 that there was an agreement of sale dated 30.10.2000 (Exhibit-B) with original defendant no. 2 and an amount of Rs.15,000/- was also paid to original defendant no. 2 by way of earnest money AND it was coupled with delivery of possession. He submitted that it was the case of the defendant no. 1 as well as defendant no. 2 that no sale-deed was executed in favour of the plaintiff being Exhibit- 2 and the sale-

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deed was executed through impersonation. He submitted that the learned trial Court referred to the sale-deed in favour of the defendant no. 1 which was marked as Exhibit- E and observed that the exhibitE did not refer to any agreement of sale much less agreement of sale dated 30.10.2000 (Exhibit-B) and also held that the sale-deed of the plaintiff was prior in point of time and accordingly, the learned trial Court decreed the suit.

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C. The learned counsel for the appellant has also submitted that the original sale deed which was executed in favour of Rajamoni Mondal was also exhibited by defendant No. 1 as Exhibit D. This itself is sufficient to show that defendant No. 2 had executed the sale deed in favour of defendant No. 1. For this he has relied upon the judgment passed by the Hon’ble Delhi High Court reported in (2012) 188 DLT 525 (Shri O.P. Aggarwal and Another Vs. Shri Akshay Lal and others) . He has further submitted that the document of title as claimed by the plaintiff was a void document and void ab initio document need not be challenged. He has relied upon the judgment passed by the Hon’ble Supreme Court reported in AIR 2006 SC 3608 (Prem Singh and others Vs. Birbal and others) and also judgment passed by Hon’ble Orissa High Court reported in AIR 2006 Orissa 31 [Kiran Mohanty and others Vs. M/s. Woodburn Developers and Builders (P) Ltd. and others] . He has further submitted that the 1^st Appellate Court was required to address all the issues and the 1^st Appellate Court is final Court of facts and law. For this he has relied upon the judgment passed by the Hon’ble Supreme Court reported in (2022) 7 SCC 678 [Ramnath Exports (P) Ltd. vs. Vinita Mehta] . Learned counsel has submitted that the Exhibit F has not been properly considered. He has also submitted that DW-11 was the witness to the sale deed said to have been executed in favour of the plaintiff and he has deposed before the Court and has denied the execution of the sale deed by his father. Learned counsel submits that the defendant No. 2 died during pendency of the suit and ultimately, his son and wife deposed. The wife deposed as DW-10 and has clearly stated that the original defendant No. 2 never used to sign in

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Bangla but he used to sign in Hindi. Learned counsel has submitted that the fraud vitiates every solemn act and the deed in favour of the plaintiff was a deed obtained by fraud and therefore, the same was not required to be specifically challenged by the defendants. The learned Courts have not considered the fact that the plaintiff failed to prove her case .

¶119

D. Learned counsel has also submitted that the plaintiff was not examined in the case and therefore, adverse inference has to be drawn and the learned Courts have failed to consider this aspect of the matter.

¶120

28. Arguments on behalf of the contesting respondents -plaintiff

¶121

I. With respect to substantial question no. (i) , the learned counsel for the respondents has submitted that the original defendant no. 2 had denied execution of the sale-deed by which the property was transferred in favour of the plaintiff. The specific case was that the original defendant no.2 never signed in Bangla and he used to sign in Hindi. He submitted that for substantial question of law no. (i), two points are required to be considered: -

¶122

(a) Denial of Rajamoni Mondal with respect to execution of sale-deed no. 388 of 2001, and

¶123

(b) that he was not examined to prove the sale-deed.

¶124

II. The learned counsel has submitted that admittedly Rajamoni Mondal (original defendant no. 2) expired during the pendency of the case after filing the written statement and his wife and son were examined as witness, therefore, there was sufficient explanation for non-examination of Rajamoni Mondal. The learned counsel has also submitted that Rajamoni Mondal was impleaded as a defendant in the case and he denied the execution of the deed. Mere denial was not conclusive and the matter was to be determined as to whether he had executed the sale-deed or not.

¶125

III. Learned counsel for the respondents has further submitted that since the only defence was that original defendant no.2 never used to sign in Bangla, numerous documents were exhibited in

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the Court which were signed by the original defendant no. 2 in different court proceedings in which he had put his signature in Bangla.

¶129

IV. The learned counsel has also referred to Exhibit-F which was relied upon by the learned counsel for the appellant during the course of hearing and has submitted that the title suit is of the year 1991 and Exhibit-F is dated 28.04.2005. The learned counsel has further submitted that the son of the defendant no. 2 was a witness in the sale-deed executed in favour of the plaintiff, but during his examination as DW- 13 he has not denied his signature as a witness in the sale-deed. He also submits that DW13 in his own deposition has stated that he was known as Mahesh @ Maheshwar Mandal. The learned counsel also submits that DW 13 had not stated that his father had not signed the sale-deed, rather his specific case was that his father, original defendant no. 2, never used to sign in Bangla and his only defence was that his father did not know how to write in Bangla.

¶130

V. Learned counsel for the respondents has also submitted that P.W. 4, who is an advocate, has been examined in the case and he has been the advocate of original defendant no. 2 in various cases and he had exhibited numerous documents including exhibit-4, 4/A, 5 and 6 which were signed by the original defendant no. 2 in Bangla. The learned counsel has submitted that the very plea that the original defendant no.2 never used to sign in Bangla stood demolished on the basis of the documents which were exhibited on behalf of the plaintiff and those documents were marked without any objection.

¶131

VI. The learned counsel for the respondents has also submitted that there was no occasion for the plaintiff to send any document for verification of signature in view of the fact that the specific case of the defendants was that original defendant no. 2 never used to sign in Bangla and admitted signatures were placed on record which were duly signed by original defendant no. 2 and there

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were sufficient materials on record to show that original defendant no. 2 used to sign in Bangla also.

¶135

VII. The learned counsel for the respondents has further submitted that the execution of sale-deed by the original defendant no. 2 in favour of the plaintiff was duly proved on the basis of the materials on record which were witnessed by none other than his son i.e. D.W. 13 and in such circumstances, in view of section 48 of Transfer of Property Act any subsequent sale-deed executed by original defendant no. 2 cannot confer title on the defendant no.1.

¶136

VIII. With respect to substantial question no. (ii) , the learned counsel for the respondents has submitted that the sale-deed executed by original defendant no. 2 in favour of defendant no. 1 was subsequent in point of time and since the property was already transferred in favour of the plaintiff by a prior sale-deed, the subsequent sale-deed was certainly void, illegal and inoperative. The original defendant no. 2 could not have transferred any title of the property which he did not possess. Learned counsel for the respondents has again referred to section 48 of the Transfer of Property Act, 1882 to submit that if the same property is transferred by the same vendor to two different persons, the subsequent sale-deed has to give way to the prior sale-deed and therefore, the execution of subsequent sale-deed by original defendant no. 2 in favour of the defendant no. 1, is irrelevant.

¶137

IX. With respect to the substantial question No. (iii) , the learned counsel for the respondents has submitted that the question of law is with regard to non-consideration of the agreement of sale dated 30.10.2000. He has submitted that both the learned Courts have considered the agreement of sale dated 30.10.2000 and have rejected the case of the defendants. Learned counsel has also referred to the written statement filed by defendant Nos. 1 and 2 and has submitted that although in paragraphs 12 and 13, there is a reference of agreement of sale dated 30.10.2000 and that the original defendant No. 2 had put the defendant No. 1 in

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possession of the property, but there is no mention about any payment received in terms of the agreement of sale dated 30.10.2000, rather, the case of defendant no. 1 was that in the final sale deed there was a bonafide mistake and no reference was made to the agreement of sale dated 30.10.2000. Learned counsel has also submitted that original defendant no. 2 had also mentioned about the agreement of sale dated 30.10.2000 and had specifically mentioned in the written statement that he received an advance amount of Rs.15,000/- and he further stated that he received balance consideration amount and put the defendant No. 1 in possession of the property. Learned counsel has submitted that there is no reference of payment of Rs.15,000/- in the written statement filed by the defendant No. 1. Further, in the final sale deed also neither there is any reference of agreement of sale dated 30.10.2000 nor there is any reference to payment of Rs.15,000/rather, the final sale deed reveals that entire consideration amount was paid on the date of execution of the sale deed.

¶141

X. Learned counsel for the respondents has also submitted that there was another agreement of sale which was exhibited from the side of the defendants that was agreement dated 20.12.2000. The same was apparently entered into in view of the fact that the agreement of sale dated 30.10.2000 referred to payment of Rs.15,000/- already made and there was a stipulation that further Rs.15,000/- was to be paid on 20.12.2000. He submits that the agreement of sale dated 20.12.2000 mentions about total payment of Rs.15,000/- only out of the total consideration amount of Rs.60,000/- and the agreement of sale dated 20.12.2000 does not find mention in the written statements filed by defendant No. 1 or defendant No. 2 and only reference has been made to the agreement of sale dated 30.10.2000.

¶142

XI. With respect to substantial question No. (iv) , learned counsel for the respondents – plaintiff has also submitted that there is no compulsion on behalf of the Court or the either party to send the handwriting for examination by expert and it would depend upon

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the facts and circumstance of each case. In the instant case there was no such requirement. There was enough material on record to prove the case of the plaintiff. He has also submitted that signature in Bangla cannot be compared with signature in Hindi and therefore, no purpose would have been served had the signatures been sent for examination by the handwriting experts. XII. With respect to the arguments of the appellant on the point of non-examination of the original plaintiff, learned counsel for the respondents has submitted that even the defendant No. 1 was not examined. He has also submitted that there was explanation for not producing the plaintiff for examination by the Court. He has submitted that there is presumption with respect of execution of a registered sale deed and what was under dispute was as to whether the sale deed was executed by the original defendant No. 2. Learned counsel has submitted that the witnesses to the sale deed executed in favour of the plaintiff were duly examined before the learned Court and there were two witnesses; one was the son of original defendant No. 2 and other was son of the plaintiff. He has submitted that son of plaintiff was duly examined and supported the case of the plaintiff.

¶146

XIII. With respect to the arguments of the appellant that the deed in favour of the plaintiff was itself void, the learned counsel for the respondents has referred to the judgment passed by the Hon’ble Supreme Court in case of “Prem Singh Vs. Birbal” reported in (2006) 5 SCC 353 , which has also been relied upon by the learned counsel for the appellant, to submit that it has been held that there is presumption that the registered document is validly executed. A registered document therefore prima facie would be valid in law. The onus of proof thus would be on a person who leads evidence to rebut the submission. Learned counsel submits that the deed of plaintiff being a registered document, onus was heavy on the defendants to prove that it was executed through fraud, etc. and for this the defendants ought to have challenged the sale deed of the plaintiff by filing a separate suit but no such

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step was taken and in a case where the fraud is alleged and fraud is required to be proved, the same has to be challenged and it cannot be said to be void ab initio unless the fraud is established in any court of law.

¶150

XIV. Learned counsel has also relied upon the judgment passed by the Hon’ble Supreme Court in the case of “Md. Noorul Hoda Vs. Bibi Raifunnisa and Others” reported in (1996) 7 SCC 767 to submit that it has been held in the said case that when the plaintiff seeks to establish his title which cannot be established without avoiding the decree or an instrument that stands as an insurmountable obstacle in his way which otherwise binds him, though not a party, the plaintiff necessarily has to seek a declaration and have that decree, instrument or contract cancelled or set aside or rescinded. Learned counsel submits that in the present case the defendants were alleging that the sale deed executed in favour of the plaintiff was obtained by fraud and the sale deed of the plaintiff was certainly standing in the way of the title of defendant No. 1 and therefore, it was obligatory on the part of the defendants to challenge the sale deed of the plaintiff by instituting an appropriate suit, which was never done by the defendants.

¶151

XV. The learned counsel for the respondents has further relied upon the judgment passed by the Hon’ble Supreme Court in the case of “Dhurandhar Prasad Singh Vs. Jai Prakash University” reported in (2001) 6 SCC 534 and has submitted that it has been held that in cases where the legal effect of the document cannot be taken away without setting aside the same, it cannot be treated to be void but would be obviously voidable. The learned counsel has submitted that in the present case, the property was transferred in favour of the plaintiff through a registered document which had a presumptive value.

¶152

XVI. With respect to the burden of proof, learned counsel for the respondents has referred to Section 101 of the Indian Evidence Act and has submitted that it was the defendants who were

¶153

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alleging fraud in connection with the execution of the first sale deed in favour of the plaintiff and therefore, the burden was on the defendants to prove the same.

¶156

29. Rejoinder arguments of the appellant

¶157

In response, the learned counsel for the appellant has submitted that Exhibit 12 was the signature of Mahesh @ Maheshwar Mandal (DW13) and his signature was marked with objection. He has also submitted that the signature of defendant No. 2 on the sale deed in favour of the plaintiff was marked with objection as Exhibit 9/A. The signature of Vishnu Prasad Mandal was marked Exhibit 10(a) and signature of Munna Kumar Poddar was marked Exhibit 11. The learned counsel for the appellant has referred to the judgment passed by the Hon’ble Supreme Court reported in AIR 2023 SC 379 (Smriti Debbarma through Lrs. Vs. Prabha Ranjan Debbarma and others) and has referred to paragraph 31 of the said judgment to submit that the burden of proof is on the plaintiff to establish their case and that the burden shifts in terms of Section 101 and 102 of the Indian Evidence Act. He has also submitted that the witness of defence cannot give justification to the decree of a suit. Learned counsel submits that the original plaintiff did not depose and therefore, the original plaintiff did not discharge the burden of proof.

¶158

Findings of this Court.

¶159

30. The registered sale deed no. 388 of 2001 (exhibit-2) was for consideration of Rs. 61,000/- which was prior in point of time as compared to registered sale-deed no. 1137 of 2001 executed in favour of the defendant no. 1. Both the sale deeds were executed by original defendant no. 2 with respect to the same property.

¶160

31. The specific case of the defendants was that the sale deed no. 388 of 2001 (exhibit-2) was never executed by the original defendant no.2. However, this sale deed was never challenged by the defendants by filing a suit or cross objection, although the point regarding validity of its execution and registration by the defendant no.2 was duly raised by the defendants in their written statement and evidences were led by both the parties. Their further case was, otherwise also, the sale-deed no.

¶161

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1137 of 2001 executed by the original defendant no.2 in their favour was preceded by two agreements of sale after payment of part consideration amount of Rs.15,000/- and the defendant no.1 was put in possession of the property as a part performance of contract and their possession was protected under section 53-A of the Transfer of Property Act, 1882 which was followed by sale-deed no. 1137 of 2001.

¶164

Substantial question of law no. (i) and (iv)

¶165

32. These two questions are co-related and are taken up together. The records of the case reveal that Rajmoni Mondal (original defendant no.2) denied execution of sale deed no.388 of 2001 dated 20.03.2001 in favour of the plaintiff Anandi Devi. After having gone through the written statements and additional written statements filed by Rajmoni Mondal and upon going through the impugned judgements, this Court finds that the specific case of Rajmoni Mondal was that he had never been to the Registration office for the purposes of execution of the sale deed no.388 of 2001 dated 20.03.2001 and he had sold the property to the defendant no.1 vide sale deed no.1137 of 2001 dated 08.10.2001. However, in his written statement, Rajmoni Mondal (original defendant no.2) had not taken the plea that he never used to sign in ‘Bangla’.

¶166

33. Upon perusal of sale deed no.388 of 2001 dated 20.03.2001 and the materials placed on record, it is not in dispute that Munna Kumar Poddar, son of the plaintiff was a witness of the sale deed and his signature was marked Exhibit 11 and he was examined as P.W. 9.

¶167

34. Another witness of sale deed no.388 of 2001 dated 20.03.2001 is Mahesh Mandal, son of Rajmoni Mondal, who was examined as D.W. 13 and his signature on the aforesaid sale deed has been exhibited as Exhibit 12 [with objection]. D.W. 13 has supported the execution of the sale deed no.1137 of 2001 dated 08.10.2001 by Rajmoni Mondal (defendant no.2) in favour of the defendant no.1 and has simply stated in Paragraph 7 of the evidence in chief that his father Rajmoni Mondal only knew Hindi and he did not know how to write Bangla. This witness has nowhere stated that he or his father did not go to the Registry office for the purposes of execution of sale deed no.388 of 2001 dated 20.03.2001 in favour of the plaintiff. In his cross-examination, he has

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stated that his father used to fight cases in Jamtara court and his Advocates were Sudhir Babu, Bilas Babu and Khotwan Babu.

¶171

35. P.W. 4 Satinath Mandal had clearly stated that Rajmoni Mondal was the client of his father Sudhir Kumar Mandal and this witness has exhibited various documents wherein Rajmoni Mondal (original defendant no.2) had signed in Bangla and this witness has been fully cross-examined. The various documents which were exhibited having Bangla signature of Rajmoni Mondal (original defendant no.2) and the evidence of P.W. 4 has been fully discussed in paragraph 20 of the trial court's judgment and has also been discussed and considered in the appellate court's judgment.

¶172

36. P.W.9- son of the plaintiff, is also a witness to the sale deed no.388 of 2001 dated 20.03.2001 and his signature on the sale deed has been exhibited as exhibit-11. He has deposed that the sale deed was prepared in his presence and two sons of Rajmoni Mondal namely Vishnu Prasad Mandal and Mahesh Mandal had put their signature in his presence and they were identified in the Registry office and the sale deed was for a consideration amount of Rs.61,000/-. P.W.9 exhibited the signature of Rajmoni Mondal and Vishnu Prasad Mandal which were marked as Exhibit 9 and 9/1 and 10 and 10/a , all with objection, and also stated that pursuant to the sale deed, they came in possession of the property.

¶173

37. This Court finds that Rajmoni Mondal had expired during the pendency of the case after filing the written statements, and his wife and son were examined as witness and accordingly, there was sufficient explanation for non-examination of Rajmoni Mondal. Other witness namely Vishnu Prasad Mandal, who was also a signatory as a witness in the sale deed and was son of Rajmoni Mondal, has not been examined before the court by the defendants.

¶174

38. The plea taken by the defendants during their evidence that Rajmoni Mondal (defendant no.2) did not know Bangla language and never used to sign in Bangla language was rejected by both the learned courts after scrutinizing the materials on record.

¶175

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39. So far as Exhibit-F which was relied upon by the learned counsel for the appellant during the course of hearing is concerned, the same is dated 28.04.2005 and the present title suit is of the year 2002, and this court finds that there is enough material on record to show that Rajmoni Mondal (defendant no.2) used to sign in Bangla language and had executed the sale deed no.388 of 2001 dated 20.03.2001 in favour of the original plaintiff for consideration.

¶178

40. Under the provisions of Registration Act, when a deed is registered in the registry office, there is a presumption of validity with regard to its execution and further the sale deed contained the signature of the persons who had executed the sale deed and not the signature of the person buying the property namely Anandi Devi therefore, nonexamination of the original plaintiff Anandi Devi and also Rajmoni Mondal who had expired during the pendency of the trial, is not fatal to the findings recorded by both the learned courts that the sale deed no.388 of 2001 executed by Rajmoni Mondal defendant no.2 in favour of the original plaintiff was a lawful and valid document. Further, the original plaintiff as well as the defendant no.1 were not examined before the court and the plaintiffs had given explanation for non-examination of the original plaintiff namely, Anandi Devi by stating that she was suffering from Filaria.

¶179

41. So far as substantial question of law no.(iv) with regard to not verifying the signature of vendor by handwriting expert or by FSL laboratory is concerned, this Court finds that it was the defendants who alleged that the original defendant no.2 had not put his signature on the sale deed said to have been registered and executed by original defendant no.2 in favour of the plaintiff. In view of Section 48 of the Indian Registration Act, there is a presumption in connection with the execution of the sale deed. The defendants made out a case that Rajamoni Mondal never used to sign in Bangla and the plaintiff had put in enough material on record to show that he had been putting his signature in Bangla in various documents which were filed before different court proceedings. Consequently, the very basis of the claim of the defendants that he never used to sign in Bangla stood demolished.

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42. This Court also finds that the learned courts have meticulously considered the materials placed on record and have given concurrent findings. The learned counsel for the appellant has not been able to point out any perversity in the matter of appreciation of evidence by both the learned courts to the aforesaid finding.

¶183

43. The plea of fraudulent execution of sale deed was raised by the defendants, and therefore, it was for the defendants to take appropriate steps to get the admitted signature of Rajmoni Mondal compared with that of the disputed signature. Moreover, the sale deed in favour of the plaintiff was a registered document, the presumption of its due execution was in favour of the plaintiff but the defendants failed to rebut this presumption. The plea that Rajmoni Mondal never used to sign in Bangla and did not know Bangla was rejected by both the courts by referring to the materials placed on record.

¶184

44. In view of the aforesaid facts and circumstances, this Court is of the view that the learned trial court as well as the learned first appellate court had not committed any error in law in not getting the signature of Rajmoni Mondal verified through a handwriting expert or by FSL laboratory.

¶185

45. In view of the aforesaid findings and discussions, the substantial questions of law no. (i) and (iv) are answered in favour of the contesting respondents (plaintiffs) and against the appellant. It is held that-

¶186

a. the learned trial court as well as learned 1^st Appellate Court have not committed any error while deciding the main issue “whether the sale deed no. 388 of 2001 executed by defendant no. 2, the vendor Rajamoni Mondal in favour of plaintiff is lawful and valid” in favour of the plaintiff in spite of the fact that the vendor Rajamoni Mondal denied the execution of Sale Deed No. 388 of 2001 in favour of plaintiff Anandi Devi.

¶187

b. The vendor Rajamoni Mondal could not be examined as he expired after filing of the written statement and additional written statement and therefore his non-examination is not

¶188

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fatal to the findings recorded by the courts based on the materials produced on record.

¶191

c. The learned trial court as well as learned 1^st Appellate Court have not committed any error in not getting the signature of the vendor Rajamoni Mondal verified by a handwriting expert or by an F.S.L. laboratory and such non-examination is not fatal to the findings recorded by both the courts.

¶192

Substantial question no. (ii) and (iii) 46. Before proceedings to decide these questions of law, it is important to point out that the learned courts have also considered the fact that the original sale deed which was in favour of Rajmoni Mondal was produced by the defendants and not by the plaintiff and learned courts were rightly of the view that merely because the original saledeed was produced by the defendants and not by the plaintiff, the same would not be fatal to the legality and validity of the sale deed executed by the original defendant no.2 in favour of the plaintiff.

¶193

47. So far as the judgment relied upon by the contesting respondents which has been passed by Hon’ble Delhi High Court in the case reported in 2012 188 DLT 795 (Shri O.P. Aggarwal and Another vs. Shri Akshay Lad and Other) is concerned, the same does not apply to the facts and circumstances of this case. The said judgment was passed in 1^st appellate jurisdiction and the suit was filed for possession and mesne profits. In the said case, the plaintiffs were having agreement of sale, registered power of attorney, registered Will etc. all dated 11.02.2002 and the defendants produced Jamabandi showing the name of the original owner, but the title deed of the original owner was produced and exhibited by the plaintiff. In such circumstances, the learned 1^st appellate court held that possession of the original sale deed with the appellants-plaintiffs was a very strong proof ownership and allowed the suit seeking possession. In the present case, both the parties are claiming title on the basis of registered sale deeds executed by the same vendor and the subsequent sale deed by original defendant no.2 in favour of defendant no.1 is under challenge. This Court finds that both the learned courts, after appreciating the materials on record, have

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rightly returned a finding that production of title deed of original defendant no.2 by defendant no.1 was of no consequence and also held that the registered deed in favour of plaintiff was duly proved and defendant no.1 failed to prove that they were in occupation of the property by virtue of part performance of agreement between defendant no.1 and defendant no.2. The sale deed by original defendant no.2 in favour of defendant no.1 was held to be void and illegal being in subsequent point of time.

¶197

48. This Court is of the considered view that the allegation of fraud in execution and registration of sale deed which is alleged to be executed by the true owner of the property is voidable and cannot be said to be void and fraud is required to be established by cogent evidence. Certainly, the sale deed executed by original defendant no.2 in favour of the plaintiff casts a cloud with respect to the title of the property pursuant to registered sale deed executed by defendant no.2 in favour of the defendant no.1 but the deed in favour of the plaintiff was never challenged by the defendants by filing any cross objection or cross suit. However, the learned courts have gone into the legality and validity of both the sale deeds and have rejected the plea of the defendants with regard to the execution of registered sale deed by the original defendant no.2 in favour of the plaintiff and by referring to Section 48 of the Transfer of Property Act, 1882, the learned Courts have held that the subsequent sale deed in favour of defendant no.1 was void and illegal as prayed for in the suit and accordingly, the suit was decreed.

¶198

49. In the judgment passed in the case of “Prem Singh Vs. Birbal” reported in (2006) 5 SCC 353 , it has been inter alia held that Article 59 of the Limitation Act will be attracted when the plaintiff asserts fraud and where a document is prima facie valid. It has also been held that there is presumption that a registered document is validly executed and therefore a registered document would be prima facie valid in law and further the onus of proof would be on a person who leads evidence to rebut the presumption. In the present case, the sale deed in favour of the plaintiff being admittedly a registered document, there is presumption

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that it was validly executed and it was for the defendants to lead evidence and dislodge the presumption but the defendants could neither rebut the presumption nor they had challenged the sale deed of the plaintiff except by questioning its execution and validity through written statement and the plea raised has been fully considered and rejected by concurrent findings.

¶202

50. Now coming to the substantial questions of law no. (ii) and (iii) , this court finds that both the learned courts have recorded that the defendants had exhibited two agreements for sale between the defendant no.1 and original defendant no.2 in connection with the sale of the same property; first one is unregistered agreement dated 30.10.2000 which reveals that the agreement was for a consideration amount of Rs.60,000/- and a sum of Rs.15,000/- was already paid in advance and the registry was to be done within a year upon payment of the remaining consideration amount of Rs.45,000/-. The 2^nd one is also unregistered agreement of sale dated 20.12.2000 which again mentioned that the consideration amount of the sale is Rs.60,000/- and Rs.15,000/- was already paid and the registry was to be done within a period of one year upon payment of the remaining consideration amount.

¶203

51. However, the sale deed executed in favour of the defendant no.1 by Rajmoni Mondal (original defendant no.2) which was registered as sale deed no.1137 of 2001 was the sale deed subsequent in point of time when compared to the sale deed executed by original defendant no.2 in favour of the plaintiff which was numbered as sale deed no.388 of 2001. The sale deed no.1137 of 2001 was for a consideration amount of Rs.60,500/- which is accordingly not matching with the sale consideration figure mentioned in the two agreements of sale and further the sale deed no.1137 of 2001 neither refers to any of the earlier agreement of sale nor it refers deduction of any amount which was said to be paid at the time of agreement of sale and the entire consideration amount of Rs.60,500/- was shown to have been paid at the time of execution of the sale deed. Consequently, both the learned courts have discarded the story put forward by the defendants with regard to the two

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agreements of sale dated 30.10.2000 and 20.12.2000 after discussing the materials placed on record. No perversity in connection with the appreciation of evidence with respect to the aforesaid two agreement of sale has been pointed out by the learned counsel appearing on behalf of the appellant.

¶207

52. It is important to note that both the defendants in their written statement have only referred to the agreement of sale dated 30.10.2000 and have stated that upon receipt of Rs.15,000/-, the original defendant no.2 put the defendant no.1 in possession. There is no reference of the subsequent agreement to sale dated 20.12.2000 but the defendants produced both the agreements which were duly considered by the learned courts and the story with regard to the agreement of sale , part performance of agreement and arguments based on section 53-A of the Transfer of Property Act has been discarded after considering that in the sale deed no.1137 of 2001 in favour of defendant no.1, neither any reference was made to the agreement of sale nor any reference was made with regard to the advance payment of Rs.15,000/- nor any such amount was deducted. This Court also finds that the consideration amount mentioned in the agreement of sale is Rs.60,000/- and consideration amount mentioned in their sale deed is Rs.60,500/- and accordingly the consideration amount did not match.

¶208

53. Section 48 of the Transfer of Property Act, 1882 is quoted as under:

¶209

“48. Priority of rights created by transfer.—

¶210

Where a person purports to create by transfer at different times rights in or over the same immoveable property, and such rights cannot all exist or be exercised to their full extent together, each later created right shall, in the absence of a special contract or reservation binding the earlier transferees, be subject to the rights previously created.”

¶211

54. Section 48 of the Transfer of Property Act establishes the doctrine of priority and it provides that when multiple rights are created over the same immovable property at different point of time, the later created right to property is subordinate to the earlier one unless there is a special contract or reservation binding the earlier transferee. In the

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present case, there is no case of the defendants about existence of any special contract or reservation vis-à-vis the prior sale-deed of the plaintiff.

¶215

55. The defendants have claimed that the previous sale deed in favour of the plaintiff was never executed by Rajmoni Mondal (original defendant no.2) which plea has been rejected by the learned courts. Their further claim was, otherwise also, though sale deed no. 1137 of 2001 dated 08.10.2001 (Exhibit-E) was subsequent in time to sale-deed of the plaintiff, but was preceded by the agreements of sale dated 30.10.2000 (Exhibit-B) and dated 20.12.2000 (Exhibit-C) and they were entitled to protection under section 53A of the Transfer of Property Act, 1882. Both the learned courts have rejected the aforesaid plea by citing reasons as the sale deed no. 1137 of 2001 dated 08.10.2001 (Exhibit-E) has no link with the agreements of sale and such finding has been upheld by this Court as discussed above.

¶216

56. This court finds that the execution of sale deed no.1137 of 2001 by the original defendant no.2 in favour of the defendant no.1 was not in dispute but the same has been held to be void, illegal and inoperative in view of section 48 of the Transfer of Property Act as the same property was sold twice by the same vendor to two persons, the original plaintiff and also the defendant no.1 and the sale deed in favour of the plaintiff was prior in point of time. Merely because Rajmoni Mondal (original defendant no.2) stated that he had executed the sale deed no.1137 of 2001 is of no consequence when the learned courts after scrutiny of the materials on recorded held that the previous sale deed no. 388 of the year 2001 was also executed by Rajmoni Mondal (original defendant no.2).

¶217

57. As a cumulative effect of the aforesaid findings, the substantial question of law nos. (ii) and (iii) are also decided in favour of the contesting respondents (plaintiffs) and against the appellant. It is held that-

¶218

a. The learned trial court as well as learned 1^st Appellate court had committed no error while deciding the issue “whether the Sale Deed No. 1137 of 2001 executed by the defendant no. 2,

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the vendor Rajamoni Mondal in favour of defendant no. 1 is void, illegal and inoperative in law”. The finding has been rightly arrived in spite of the fact that the vendor Rajamoni Mondal himself admitted the execution of Sale Deed No. 1137 of 2001 in favour of defendant No. 1 Shobha Devi in his written statement.

¶222

b. The learned trial court as well as learned 1^st Appellate Court have committed no error and have fully considered the agreement executed by the vendor Rajamoni Mondal in favour of defendant No. 1 Shobha Devi on 30.10.2000 with regard to the sale of the land in question and have rejected the plea of part performance of agreement of sale as claimed by the defendants after appreciating all the materials placed on record. This Court also finds that the agreements of sale dated 30.10.2000 and 20.12.2000 as relied upon by the defendants have been duly considered by both the courts and the story with regard to the both the agreements have been discarded by wellreasoned judgments.

¶223

58. This Second Appeal is accordingly dismissed.

¶224

59. Pending interlocutory application, if any, is dismissed as not

¶225

pressed.

¶226

(Anubha Rawat Choudhary, J.)

¶227

Pankaj/Kunal/AFR

¶228

31

Sobha Devi v. Smt Anandi Devi And Ors.

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Sobha Devi v. Smt Anandi Devi And Ors.

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