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1994 DIGILAW 856 (MP)

Sewaram v. Madan Mohan

1994-11-26

T.S.DOABIA

body1994
JUDGMENT This is a time-barred appeal. The delay is of 154 days. An application u/s. 5 of the Limitation Act has been filed. Notice of the same was given. The explanation given for seeking condonation of the delay is that appellant No.2 was under treatment at Gwalior as he was suffering from some mental ailment. It is stated that it was in these circumstances, there was lack of communication between the appellant and their counsel who was conducting the case at Vidisha. The explanation given is reasonable. Therefore, the delay in filing the appeal is condoned. The appeal was heard on merits also. The facts in brief are as under:- The present appellant No.1 sold, I house located in village Lateri in the district of Vidisha vide' registered sale-deed dated 28th of April 1978. This is Ex.P/l. This sale-deed was challenged inter alia on the ground that it was not a voluntary act and was a result of fraud having been practised on the vendor. The trial Court as well as the first appellate Court negatived the pleas raised by the appellants. In the present appeal, it has been argued that the market value of the property was around Rs. 25, 000/- and it has been sold for a meagre amount of Rs. 2,500/-. This should be looked at with suspicion. It is accordingly suggested that the findings recorded by the Courts below should be reversed. It is also suggested that as only a sum of Rs. 1, 500/- was paid in the presence of the registration officer the transaction is to be looked at with suspicion. Another argument raised is that the burden of proof with regard to due execution of the sale-deed was wrongly placed on the appellant. I have gone through the file and the evidence which has been made available by the learned counsel appearing for both the parties. It has come on record that property similarly situated in the same locality was sold by the brother of the appellant to one Iqbal for a sum of Rs. 2,500/-. The same is the consideration in the present case. As a matter of fact, this factor was taken note by the Courts below to come to the conclusion that the sale was not below the market value. The fact that Rs. 1,500/- was paid before the Sub-Registrar was taken note or. 2,500/-. The same is the consideration in the present case. As a matter of fact, this factor was taken note by the Courts below to come to the conclusion that the sale was not below the market value. The fact that Rs. 1,500/- was paid before the Sub-Registrar was taken note or. One of the attesting witnesses Bhagwan singh has stated that the whole transaction took place in his presence and sale consideration was also paid on his presence. He has also stated that the requisite steps with a view to get the land registered were taken by the appellant on his free will No doubt, he states that the sale deed was not read over to the plaintiff but this cannot in any way lead to the conclusion that the sale was in any way fraudulent It may be seen that the plaintiffs categorically stated that the en tire transaction was voluntary and that the sale-deed was written by scribe at the instance of the appellant. This statement made by the vendee was' not subjected to any material cross-examination. The findings of fact have been recorded by the Courts below after proper appreciation of evidence. The scope of interference in section 100 of the Code of Civil Procedure is limited. There is no merit in this appeal. The same is dismissed without any order as to costs. The learned counsel for 'the appellants has, however, stated that the appellants are in-possession of the house and, therefore, sometime should be granted to them to vacate the house in question. A period of six months i.e., up to 31st May, 1995 is granted to the appellants to vacate the premises. This is subject to the condition that they would jointly furnish an undertaking within a period of one month from today to the effect that they would hand over the vacant possession of the premises to the landlord and would not part with the possession. In the event of failure to give an undertaking within the stipulated period, the defendant would be within his right to execute the decree in accordance with law.