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2001 DIGILAW 382 (HP)

REWAT RAM SHARMA v. MUNSHI RAM

2001-12-13

R.L.KHURANA

body2001
JUDGMENT R.L. Khurana, J. :- This second appeal at the instance of the defendant has been directed against the judgment and decree, dated 23.5.1994 of the learned District Judge, Nahan, reversing the judgment and decree dated 30.5.1992 of the learned Sub Judge 1st class, Nahan. 2. The respondent-plaintiff filed a suit for declaration to the effect that the gift deed dated 5.8.1987 in respect of 4 biswas of land comprising of Khasra No.839/4/1/3 of Mauza Dhar Taran, Tehsil Renuka, district sirmaur (hereinafter referred to as the property in dspute) purported to have been executed by him in favour of the defendant was null and void and not binding on his rights since the same was as a result of fraud, mis-representation and undue-influence. As a consequential relief the plaintiff had prayed for restraining the defendant from interfering in his possession over the property in dispute. In the alternative, a decree for possession of the property in dispute was prayed for. 3. It was averred that the plaintiff is living in village Dhar Taran for the last about 20 years and working as a carpenter. He purchased the property in dispute with a view to construct a house therein for his own residence. He constructed a kitchen and a cattle shed therein. He also obtained a water connection. He had also constructed a platform in the property, in dispute for carrying on his work as a carpenter. The defendant, who is serving in the Medical Department, became friendly with the plaintiff. They started visiting each other. The plaintiff off and on used to borrow money from the defendant to meet the requirements of his own medical treatment. As a result of such borrowings, a sum of Rs. 3500A became due from him to the defendant. In July 1987, the defendant started asking for the repayment of such amount. The plaintiff had no money with him. He, therefore, on the suggestion of the defendant, agreed to mortgage the property in dispute in favour of the defendant. The plaintiff was taken to Sangrah by the defendant for the purpose of execution of the mortgage deed. His signatures were obtained by the defendant on a deed by making him to believe that the same was a mortgage deed. After the execution of such document, the defendant remained silent till April 1988. The plaintiff was taken to Sangrah by the defendant for the purpose of execution of the mortgage deed. His signatures were obtained by the defendant on a deed by making him to believe that the same was a mortgage deed. After the execution of such document, the defendant remained silent till April 1988. The defendant thereafter started asking the plaintiff and his wife to deliver the possession of the property in dispute to him, by proclaiming that the same stood gifted to him. The plaintiff then came to know that instead of mortgage deed, a gift deed was got executed from him fraudulently. It was further pleaded that though the plaintiff and his wife objected to the attestation of mutation on the basis of gift deed in favour of the defendant, the Assistant collector 2nd Grade by ignoring the objections had sanctioned the mutation in favour of the defendant. Further case of the plaintiff was that the scribe and the marginal witnesses of the gift deed were not know to him. They were closely associated with the defendant and had helped him in getting the gift deed executed fraudulently. That on 13.6.1988, the defendant had thrown out his belongings from the kitchen and had locked the same. Though a report was made by him to the police, no action was taken. Lastly, it was pleaded that the defendant was a non-agriculturalist and as such no gift could have bee made and registered in his favour in view of the provisions contained in Section 118, H.P. Tenancy and Land Reforms Act, 1972. 4. The defendant while resisting the suit claimed himself to be the "Purohit" of the plaintiff. It was pleaded that the plaintiff out of his own free will and consent had voluntarily executed a gift deed qua the property in dspute in his favour. The allegations of fraud, mis- representation and undue influence put forth by the plaintiff were denied. He averred that at no time the plaintiff had over borrowed money from him. The plaintiff on the very day of the purchase of property in dspute had executed a power of attorney in favour of Dharam Singh authorising him to execute a gift deed in favour of the defendant, which is indicative of the fact that the plaintiff had purchased the property in dispute with the intention of donating the same to the defendant. The defendant also claimed that he was placed in possession of the property in dispute on the date of the gift. 5. On the pleadings of the parties, following issues were framed by the learned trial Court:- 1. Whether the gift deed dated 5.8.1987 was duly executed by the plaintiff in favour of the defendant? OPD 2. Whether the plaintiff is owner in possession of the suit land as alleged? OPP 3. Whether the gift deed was registered according to law? OPD. 4. Whether the Sub Registrar has violated the provisions of Sec. 118 of H.P. Tenancy and Land Reforms Act, in sanctioning a mutation to an non - agriculturalist? OPP. 5. Whether the possession of the suit land has been delivered to the defendant by the plaintiff before the execution of gift deed? OPD 6. Whether the plaintiff had executed a power of attorney dated 2.4.87 in favour of Sh. Dharam Singh s/o Sh. Devi Ram for purpose of executing the gift deed in favour of the defendant? OPD. 7. Relief. 6. The learned trial Court found issues No. 1,3,5 and 6 in favour of the defendant and issues No.2 and 4 against the plaintiff. Consequent upon such findings, the suit of the plaintiff was dismissed vide judgment and decree dated 30.5.1992. 7. In appeal by the plaintiff, being civil Appeal No.27-N/13 of 1992, the learned District Judge, set aside the judgment and decree dated 30.5.1992 of the learned trial Court and decreed the suit of the plaintiff declaring the gift deed Ex.D2 as void. A decree for possession of the property in dispute was also granted in favour of the plaintiff. 8. Feeling aggrieved by and being dissatisfied with the judgment and decree dated 23.5.1994, the defendant is before this court by way of the present second appeal, which was admitted for hearing on the following substantial questions of law: 1. Whether under Section 60 of the Registration Act, 1908, there is presumption of correctness to the endorsement/certificate issued by Sub Registrar at the time of registration of gift deed dated 5.8.1987 and whether that presumption has been rebutted by respondent? 2. Whether without seeking declaration of nullity of gift deed dated 5.8.87, the suit in the present form is maintainable? 3. 2. Whether without seeking declaration of nullity of gift deed dated 5.8.87, the suit in the present form is maintainable? 3. Whether learned District Judge has misconstrued, misinterpreted the pleadings and evidence on record and view taken by learned District Judge in accepting the appeal is not possible on the basis of material on record? 9. I have heard the learned counsel for the parties and have also gone through the record of the case. My findings on the above questions are as under:- Quest ion No. 2. 10. The learned counsel for the defendant at the very out set has conceded that the present question does not arise in the present case since the plaintiff has specifically claimed a declaration that the gift deed dated 5.8.1987 (Ex.D2) is null and void as the same was obtained by fraud, misrepresentation and undue influence and that the same is not binding on his rights. Questions No. I and 3 11. Both these questions are co-related and inter-connected. These are, therefore, being taken up together. 12. A Division Bench of this Court in Kanwarani Madna Vati & Anr. v. Raghunath Singh & Ors. AIR 1976 Himachal Pradesh 41, has held that under Section 60(2) of the Registration Act, 1908 the certificate given by the registering officer shall be admissible in evidence for the purpose of proving that the document has been duly registered in the manner provided by the Act and that the facts mentioned in the endorsements referred to in Section 59 have occurred as therein mentioned. Therefore, there is a presumption which attaches to the correctness of the endorsements made on the document by the registering officer. 13. In Sennimalai Goundan v. Sellappa Goundan AIR 1929 PC 81, it has been held that where a person admits execution before the Registrar after the document has been explained to him, it cannot subsequently be accepted that he was ignorant of the nature of transaction. 14. Similarly, in Dinesh Chandra Guha v. Satchindananda Mukherji AIR 1972 Orissa 235, it has been held that under Section 60(2), Registration Act, 1908 there is a presumption that the facts mentioned in the endorsement referred to in Section 59, have occurred as there mentioned. Further in Mst. 14. Similarly, in Dinesh Chandra Guha v. Satchindananda Mukherji AIR 1972 Orissa 235, it has been held that under Section 60(2), Registration Act, 1908 there is a presumption that the facts mentioned in the endorsement referred to in Section 59, have occurred as there mentioned. Further in Mst. Jhunkaribahu alias Katrawali v. Phoolchand alias Manichand Chhotelal Jai AIR 1958 MP 261 it has been held that an endorsement by the Sub Registrar on a registered Will that its execution was admitted by the executant being an act performed by him in official capacity, it should be presumed that he would not make such an endorsement unless the execution, was admitted before him. 15. The endorsements Ex.DW3/l to Ex.DW3/4 on the original gift deed Ex.D2 made by the Sub Registrar, show the presentation of the deed personally by the plaintiff for registration, his having been identified by DW7 Dharam Singh, Member Panchayat, the contents of the deed having been read-over and explained to him and that he admitted the contents of the deed. Such endorsements are also signed by the plaintiff. 16. DW3 Rameshwar Singh was the Sub Registrar at Sangrah at the relevant time and before whom the gift deed Ex.D2 was presented for registration. He has categorically deposed that the gift deed Ex.D2 was presented before him personally by the plaintiff, who was identified by DW7 Dharam Singh Member Panchayat. That the contents of the gift deed were read over and explained by him to the plaintiff, who had admitted the same to be correct and had signed the endorsement in his presence. 17. The plaintiff while appearing as PW1 has admitted his signatures Ex.D3 and D4 on the endorsements Ex.DW3/3 and Ex.DW3/4 on Ex.D2. It is not the case of the plaintiff that such signatures were obtained by either the scribe or the defendant on blank paper. Admission of signatures on the endorsements made by the Sub Registrar, in the absence of anything else to the contrary, would lead to the only inference that the plaintiff was present before the Sub Registrar at the time when Ex.D2 was presented for registration. The fact that the plaintiff did appear and was present before the Sub Registrar is also evident from the suggestion given by him to the defendant that his signatures were obtained without the Sub Registrar having read and explained the contents of Ex.D2 to him. 18. The fact that the plaintiff did appear and was present before the Sub Registrar is also evident from the suggestion given by him to the defendant that his signatures were obtained without the Sub Registrar having read and explained the contents of Ex.D2 to him. 18. Save and except the sole statement of the plaintiff himself as PW1, no other evidence has come on the record to rebut the presumption attached to the endorsements made by the Sub Registrar on Ex.D2 under Section 60(2), Registration Act, 1908. The onus to rebut the presumption was heavily on the plaintiff, which onus he has miserably failed to discharge. The scribe and the marginal witnesses of the gift deed has been able to prove the due execution of the gift deed Ex.D-2 by the plaintiff and also the fact that he himself had presented the same to the Sub Registrar and had admitted the correctness thereof after it was read over and explained to him. 19. A contention was raised on behalf of the plaintiff that in the present second appeal this Court cannot re-appreciate the evidence and come to a different finding on a question of fact regarding execution of document, namely, gift deed Ex.D-2. 20. In Kulwant Kaur & Ors. v. Gurdial Singh Mann (Dead) by LRs & Ors. 2001 (4) SCC 262 it has been held by the Honble Supreme Court with regard to the power of the High Court in Second appeal to disturb a finding of fact as under:- " In a second appeal a finding of fact, even if erroneous, will generally not be disturbed but where it is found that the findings stand vitiated on wrong test and on the basis of assumptions and conjectures and resultantly there is an element of perversity involved therein, the High Court in our view will be within its jurisdiction to deal with the issue. This is, however, only in the event such a fact is brought to light by the High Court explicity and the judgment should also be categorical as to the issue of perversity vis-a-vis the concept of justice. Needless to say however, that perversity itself is a substantial question worth adjudication - what is required is a categorical finding on the part of the High Court as to perversity. In this context reference be had to Section 103 of the Code which reads as below: 103. Needless to say however, that perversity itself is a substantial question worth adjudication - what is required is a categorical finding on the part of the High Court as to perversity. In this context reference be had to Section 103 of the Code which reads as below: 103. In any second appeal, the High Court may, if the evidence on the record is sufficient, determine any issue necessary for the disposal of the appeal, - (a) which has not been determined by the lower appellate court or by both the court of first instance and the lower appellate court, or (b) which has been wrongly determined by such court of court by reason of a decision on such question of law as is referred to in Section 100. The requirements stand specified in Section 103 and nothing short of it will bring it within the ambit of Section 100 since the issue of perversity will also come within the ambit of substantial question of law as noticed above. The legality of finding of fact cannot but be termed to be a question of law. We reiterate however, that there must be a definite finding to that effect in the judgment of the High Court so as to make it evident that Section 100 of the code stands complied with." 21. In State of Rajasthan v. Harphool Singh (dead) through his LRs 2000 (5) SCC 652, it has been held that lackadaisical findings based upon mere surmises and conjectures, if allowed to be mechanically approved by the first appellate court and the second appellate court also withdraw itself into recluse apparently taking umbrage under Section 100, Code of Civil Procedure, the inevitable casualty is justice and approval of such rank injustice would only result in gross miscarriage of justice. 22. It has also been held by this court in Ram Partap & Anr. v. Raj Kumari & Anr. 1999 (2) Shim. 22. It has also been held by this court in Ram Partap & Anr. v. Raj Kumari & Anr. 1999 (2) Shim. L.C. 345:- " This Court being a second appellate Court, it has to be seen primarily by this court as to whether the findings, though by way of reversal which have been recorded by the learned first appellate Judge can be said to be based on no evidence or that they can be treated as having been vitiated by perversity of approach or in the matter of proper appreciation of the materials, in the light of declaration of the law by there Lordships of the apex court that while exercising jurisdiction under Section 100, C.P.C. this court may not reverse the findings of the lower appellate court on facts merely on the ground that on the facts found by the lower appellate court, another view was possible." 23. In the present case, the learned first appellate Court has based its findings on mere surmises and conjectures. Such findings are vitiated by perversity of approach in the matter of proper appreciation of evidence coming on record. The learned first appellate court, in reversing the well reasoned findings of the learned trial Court, has went off the mark to pick unnecessary loopholes for discrediting the evidence produced by the defendant merely on surmises and conjectures. 24. The findings of the learned first appellate court that the sub Registrar (D W 3) had carried out the registration of the gift deed in a perfunctory manner and that he had made a false statement in the court are based on no evidence. Similarly, the findings that DW 3 wanted to unduly favour the defendant for reasons best known to him are not supported by any material coming on the record. It is not the case of the plaintiff himself that some other person in his place was produced before the Sub Registrar at the time of registration of the gift deed. 25. In coming to the conclusion that defendant is not the "Kul-Purohit" of the plaintiff, the learned first appellate court was influenced primarily by the fact that the parties belong to different districts. There is no requirement that a "Kul-Purohit" has to be from the same District. The learned first appellate court has drawn me inference which are not supportable by evidence coming on record. 26. There is no requirement that a "Kul-Purohit" has to be from the same District. The learned first appellate court has drawn me inference which are not supportable by evidence coming on record. 26. The evidence has been misconstrued in the present case. The findings of the learned first appellate court being based on surmises and conjectures and being perverse not based on legally acceptable evidence, cannot be sustained. Such findings which are patently contrary to, law cannot have any immunity in the hands of this Court. 27. Resultantly, the present appeal is allowed. The judgment and decree of the learned first appellate Court are set aside while that of the learned trial court are restored. Parties are left to bear their own costs.