Dismissed

Suresh Prasad Singh v. Nathuni Ansari and Ors.

Patna HC22 Feb 2013SA/466/2010

Case brief

AI extract

What is this about?

In a second appeal, the Patna High Court dismissed the appellant's challenge to concurrent findings that a 1991 sale deed was void ab initio. The court upheld the lower courts' reliance on Section 90 of the Evidence Act regarding the genuineness of a registered 1986 sale deed and held that no substantial question of law arose to warrant second appeal intervention.

What did the court decide?

The second appeal was not admitted and was dismissed.

Suresh Prasad Singh Vs Nathuni Ansari and Ors. — Property and Title | Patna HC (2013)

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IN THE HIGH COURT OF JUDICATURE AT PATNA Second Appeal No.466 of 2010

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Suresh Prasad Singh son of Late Shadhu Singh, resident of village-Nawada, P.O.-Machargaon, P.S.-Harsidhi, District-East Champaran. Defendant.....Appellant .... Appellant Versus

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Nathuni Ansari son Makadum Ansari

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Amin Ansari son of Makadum Ansari Both residents of village-Misri Tola, P.O.-Mehata Tola, P.S.Harsidhi, District-East Champaran.

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Plainitffs....Respondents.... Respondent 1^st set. 3. Bibi Amna Khatoon, D/o Rudal Mian (dead) wife of Ali Mohammad Ansari, resident of village-Jaisinghpur (Baraha), P.O. Siswa Bazar, P.S. Turkailiya, District-East Champaran.

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Plaintiff…Respondnet-Respondent 2^nd set.

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====================================================== Appearance : For the Appellant/s : Mr. Amrit Abhijat Mr. Upendra Yadav

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For the Respondent/s :

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====================================================== CORAM: HONOURABLE MR. JUSTICE CHAKRADHARI SHARAN SINGH

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ORAL ORDER

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9 22-02-2013 Heard learned counsel for the appellants.

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The present appeal under Section 100 of the Code of

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Civil Procedure has been filed by the appellants who were defendants before the Trial Court and are dissatisfied with the judgment and decree dated 17.05.2010 and 28.05.2010 passed by learned Additional District Judge, F.T.C. IV^th , Motihari in T.A. No. 68/90 whereby he has affirmed the judgment and decree dated 19.06.1999 and 03.07.1999 respectively passed by learned Rajendra Prasad Mishra, Munsif Sadar, Motihari in Titile Suit No.

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208 of 1994.

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The suit was field for a declaration that the sale deed executed by defendant No. 2 in favour of defendant No. 1 dated 08.07.1991 was void ab initio.

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The case of the plaintiffs before the Trial Court was that the suit land as detailed in Schedule 1 of the plaint belonged to Rudal Mian which was allotted to him in a family partition with his brother Mukhdum Mian. The said land was purchased by plaintiff/respondent from Rudal Mian on payment of valuable consideration through a registered sale deed dated 07.02.1986 and the name was thereafter mutated in respect of the suit land. Dispute arose after death of Rudal Mian. His widow Mostt. Kittaban and his son Safi Ahmad executed a deed of gift in favour of defendant No. 2 in which most of the land of Schedule No.1 of the plaint was included and subsequently defendant No. 2 executed a registered sale deed on 08.07.1991 in favour of the defendant No. 1.

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The plaintiffs took the plea that the suit land which was purchased by him was wrongly and mischievously included in the schedule to the deed of gift and asserted on the strength of the registered sale deed dated 07.02.1986 that the son of Rudal Mian did not have any right, title or interest over the suit.

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The defendants contested the suit by filing written statement pleading that the sale deed of the plaintiff dated 07.02.1986 was a document without consideration and the same was not executed by Rudal Mian and was forged. It was pleaded that by impersonating Rudal Mian the said sale deed was brought into existence.

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On the basis of the rival pleadings, the Trial Court farmed

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8 issues including issue No. III and VI which reads as follows:-

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“III. Whether the plaintiff has got title over the suit land and

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VI. Whether the sale deed dated 08.07.1991 executed by defendant No. 2 in favour of the defendant No. 1 in

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respect of suit land is forged and void ab initio?

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Learned Trial Court on the basis of evidence and materials available on record came to the finding that the plaintiffs had right, title and interest over the suit land and that the sale deed dated 08.07.1991 was void ab initio.

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The defendants, aggrieved by the judgment and decree of Trial Court preferred appeal in the file of Additional District Judge, F.T.C. IV, Motihari vide T.S. 68 of 1990. On the basis of the rival pleadings of the parties and materials on record, learned First Appellate Court, in addition to the eight issues so framed by the learned Trial Court, framed two other issues. The issues No.

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(IX) and (X):-

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“(IX) Whether the sale deed of the plaintiff dated 07.12.1986 is executed by Rudal Mian and the same is a valid and genuine document?

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(X) Whether the suit land has got specific identity?”

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Learned First Appellate Court, on independent appreciation of evidence and material on record concurred that the findings of learned Trial Court to the effect that the sale deed dated 08.07.1991 was void ab initito.

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Learned First Appellate Court, dealing with the challenge made by the defendants to the sale deed dated 07.12.1986 held that the defendants/appellants failed to discharge their onus of proving that the said sale deed was forged, as plea of fraud was raised by them. Learned First Appellate Court proceeded on presumption of genuineness of registered sale deed and the reasoning that challenge to such registered document on the basis of fraud was required to be established by the defendants/appellants.

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Learned counsel appearing on behalf of the appellant has submitted that the present appeal involves following substantial questions of law:-

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“A) Whether the first Appellate Court committed error

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while presuming the genuineness of the sale deed though it was not 30 years old?

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B) In the absence of non-examination of the witnesses to the sale deed dated 07.02.1986 and the scribe of the said sale deed it could not be proved by the plaintiffs?

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C) Learned First Appellate Court wrongly shifted the onus of establishing fraud in bringing into existence the sale deed dated 07.02.1986, on the appellants though the plaintiffs / respondents failed to discharge their primary obligation of proving the sale deed by the executant, witness or scribe of such sale deed.

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On perusal of the judgments of the Courts below, I find that there is concurrent findings of facts by the Courts below to the effect that the sale deed dated 08.07.1991 has been held to be void ab initio in view of the earlier sale deed dated 7.12.1986 executed by Rudal Mian in favour of the plaintiffs. Learned counsel for the appellant has vehemently submitted that the Courts below wrongly presumed the sale deed dated 07.12.1986 to be genuine by wrongly applying to the provisions of Section 90 of the Evidence Act according to which, only such documents which were proved to be 30 years old could be presumed to be genuine. In such circumstances, he submits that this itself is a substantial question of law wrongly decided by the Courts below.

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He submits that there cannot be any presumption as regards genuineness of any registered document including the registered sale deed and such document has to be proved as per Section 67 of the Indian Evidence Act, 1872. Once a challenge to the genuineness was raised by the defendants, it was the duty of the plaintiffs to prove the signature of the executant as well as the contents of the sale deed.

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Mr. Counsel has submitted while dealing with the main submission made on behalf of the appellant that there is no presumption of genuineness of a registered document, reference may be made to a judgment of Supreme Court in case of Prem Singh and Ors. Vs. Birbal and Ors. 2006(5) SCC 353 laying down that there is a presumption that a registered document is validly executed and prima facie would be valid in law. Paragraph 27 of the said judgment is being quoted hereinbelow for quick reference:-

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“27. There is a presumption that a 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 presumption. In the instant case, Respondent 1 has not been able to rebut the said presumption.”

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Following the law laid down in the case of Prem Singh

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and Ors. Vs. Birbal and Ors. this Court in case of Sita Sharan

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Prasad Vs. Manorma Devi reported in 2012(2) PLJR 190 has held there is a presumption as regards legal validity of a registered sale deed. In such circumstances, I am of the opinion that the onus was heavy on the defendants/appellants who questioned the validity of the registered sale deed on the ground that it was forged and fabricated documents and it was brought into existence by playing fraud. This is to be noted, as would be evident from the judgment of learned First appellate Court, that the said registered document dated 07.2.1986 (Exhibit-1) was proved in Court by a formal witness P.W.-6 deposing that Exhibit No-1 was executed by Rudal Mian in his presence. This is not in dispute that one of the witnesses of Exhibit No. 1, namely, Kasim Mian was said to be dead as per the evidence adduced by P.W.s in course of trial. Evidence was also led to the effect that the Scribe (Katib) could not be examined as he had left scribework.

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From the judgment of learned First Appellate Court, it appears that the appellant/defendant did not get examined the signature and thumb impression appearing on Exhibit No. 1 said to be of Rudal Mian by any expert with any admitted signature and thumb impression of Rudal Mian. In my view learned First Appellate Court rightly held that in such circumstances onus of proving the allegation made by the defendant that the registered

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deed was brought into existence by playing fraud was on the defendants which they failed to discharge once the initial allegation of proving the said document by a formal witness was discharged by the plaintiff.

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Section 100 of the Code of Civil Procedure envisages that a Second Appeal would lie to the High Court from a decree passed in appeal by any court sub-ordinate to the High Court if the High Court is satisfied that the case involves a substantial question of law. In order to re-assert the mandatory requirement of involvement of substantial question of law for a second appeal to be maintained under Section 100 of the Code, Section 101 of the Code provides that no second appeal shall lie “except on the ground mentioned in Section 100 of the Code”. Such being the legislative mandate, the superior courts have on several occasions laid down law as to what would constitute and what would not, a “substantial question of law” within the meaning of Section 100 of the Code while scrutinizing scope of the Section. By now, it is settled position of law that the High Court cannot interfere with the concurrent finding of fact unless the same is found to be perverse being based on no evidence or contrary to material available on record or that on the evidence on record no reasonable person could have come to that conclusion. Reference

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may be made in this regard to the Supreme Court judgments in the cases of Vidyadhar Manik Rao, (1999) 3 SCC 573; Sugani (mst.) v. Rameshwar Das and another, (2006) 11 SCC 87; Gurudev Kaur v. Kaki, (2007) 1 SCC 546; Prakash Kumar v. State of Gujarat (2004) 5 SCC 140; Thingarajan and ors. V. Venugopalaswamy B. Koil and others (2004) 5 SCC 762 and Narayanan Rajendran and another v. Lakshmi Sarojini and others .

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There being concurrent finding of facts by the Courts below and as I am of the opinion that the appeal does not involve any substantial question of law as also in view of the fact that I do not find any perversity in the judgments of the Courts below, the present Second Appeal, does not merit admission and is accordingly dismissed.

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(Chakradhari Sharan Singh, J)

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Saif/-

Suresh Prasad Singh v. Nathuni Ansari and Ors.

Case brief

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Suresh Prasad Singh v. Nathuni Ansari and Ors.

Case brief

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