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2001 DIGILAW 933 (PNJ)

Ram Singh v. Bant Dass alias Bant Singh

2001-08-28

R.L.ANAND

body2001
JUDGMENT R.L. Anand, J. - This is a defendants appeal and has been directed against the judgment and decree dated 20.11.1984 passed by the Court of learned District Judge, Ludhiana who dismissed the appeal of the defendant-appellant No. 1 Shri Ram Singh by affirming the judgment and decree dated 21.12.1981 passed by the Court of Sub Judge Ist Class, Ludhiana who decreed the suit of the plaintiff-respondent Bant Dass alias Bant Singh son of Nasib Dass alias Nasib Chand, for declaration as described in para No. 26 of the judgment of the trial Court which is reproduced as follows:- "In view of my findings on the above issues, the suit of the plaintiff must succeed. The plaintiffs suit for declaration that he is owner in possession of land measuring 66 kanals 4 marlas as mentioned in sub-head (c) of the head note of the plaint, that he is owner of land measuring 0K-10M and 35-02-2/3 M as fully detailed in sub-head (a) and (b) of the head note of the plaint for joint possession of land measuring 0K-10M and 35K-2-2/3 Marlas as fully detailed in sub-head (a) and (b) of the head note of the plaint, and that sale deeds dated 4.6.1975 registered on 29.7.1975 and 13.8.1975 are illegal. void, fictitious, without consideration and brought about by fraud and did not affect the right of the plaintiff and equitable mortgage created by defendant No.1 in favour of defendant No. 4 in respect of the suit land is not binding against the rights of the plaintiff is decreed with costs. The plaintiff is directed to pay court fee of Rs. 3134.60. Copy of decree sheet be sent to the Collector for recovery of the amount of Court fee. File be consigned. Decree- sheet be prepared." 2. The brief facts of the case are that Shri Bant Dass alias Bant Singh filed a suit in the form of pauperis seeking declaration that he is the owner to the extent of land measuring 0-10 Marlas; land measuring 35K-3-2/3 Marlas and owner is possession of the land measuring 66 Kanals 4 marlas fully detailed in the head note of the plaint situated in villages Thankarwal and Bahiromunarul. 3. 3. It was further prayed by the plaintiff that the sale of the suit land made vide alleged sale deeds on 4.6.1975 is illegal void, fictitious and has been the result of the fraud impersonation without consideration and thus, the said sale deeds do not bind or affect the rights of the plaintiff. Similarly, equitable mortgage created by Ram Singh defendant-appellant in favour of defendant No.4 State Bank of India does not affect the rights of the plaintiff as defendant No. 1 could not pass any title upon defendant No. 4. By way of consequential relief, the plaintiff prayed that a decree for joint possession be passed in his favour with respect to the land in question which was allegedly claimed by defendant No. 1. 4. The case set up by the plaintiff in the trial Court was that he was blind and the property in dispute was agricultural land measuring 0-10 Marlas, 35K-3-2/3 marlas and 66 kanals 4 Marlas of which the he is the owner. Out of this land the plaintiff is in possession of the land measuring 66 Kanals 4 marlas as mentioned in sub-head (c) of para No. 1 of the plaint whereas the possession of the land 0-10 Marlas and 35 Kanals 3-2/3 marlas has been taken forcibly by defendant No. 1 during the pendency of the suit. The land situated in village Thakarwal and described in sub-head (a) and (d) of the plaint was being cultivated by the plaintiff through his tenant Sukhdev Singh who is still is possession. The land was with cultivation with the said tenant on Chakota for a sum of Rs. 2600/- per year pertaining to the share of the plaintiff. Chakota up to Rabi 1977 was paid by Shri Sukhdev Singh to the plaintiff. The land in dispute in village Bhairomuna is under the cultivation with the plaintiff through his tenant. Bant Singh and Tehal Singh son of Sant Ram are also paying the Chakota to the plaintiff. 5. The plaintiff further alleges that Ram Singh defendant No. 1 is the son of Bhagat Ram, the real paternal uncle of the plaintiff. He took the advantage of the blindness of the plaintiff and fabricated two sale deeds by producing somebody else to impersonate the plaintiff. The plaintiff never entered into any agreement with defendant No. 1 for the sale of the land in dispute. He took the advantage of the blindness of the plaintiff and fabricated two sale deeds by producing somebody else to impersonate the plaintiff. The plaintiff never entered into any agreement with defendant No. 1 for the sale of the land in dispute. The plaintiff never executed any sale deed in favour of defendants No. 1 in respect of the suit land. He never appeared before the Sub Registrar to register the alleged sale deed. The plaintiff challenged this sale deeds being illegal, void as these were obtained by impersonation. The plaintiff came to know of the alleged sale deeds when he contacted the Revenue patwari who informed the plaintiff regarding those sale deeds. The plaintiff further alleged that the mutations effected in the revenue record on the basis of the sale deeds are also illegal, void and not binding upon him. As soon as the plaintiff came to know about the alleged sale deeds on 7.3.1978, he filed a complaint before the Senior Superintendent of Police, Ludhiana on the basis of which DD No. 14 and 15 were entered in the police-station on 9.3.1978. The alleged sale deeds have cast a cloud on the rights of the plaintiff. Hence he has filed a suit for declaration. In short, the case set up by the plaintiff is that the sale deeds in favour of defendant No. 1 are illegal, without consideration and are the result of fraud and impersonation and, therefore, these sale deeds do not confer any title in favour of defendants No. 1 and defendant No. 1 further could not create any equitable mortgage in favour of defendant No. 4 i.e. the State Bank of India. 6. Notice of the suit was given to the defendants and they denied the allegations. The stand of defendant No. 1 was that the suit of the plaintiff was not maintainable in the present form as no relief regarding cancellation of the sale deeds has been sought. It has been further stated by defendant No. 1 that the suit for mere declaration is not maintainable; that the suit is not properly valued for the purposes of court-fee and jurisdiction: that the suit is not within limitation. Further it was admitted by defendant No. 1 that the plaintiff is a blind man and is owner of the land measuring 0-10 Marlas situated in village Thakarwal Tehsil and District Ludhiana. Further it was admitted by defendant No. 1 that the plaintiff is a blind man and is owner of the land measuring 0-10 Marlas situated in village Thakarwal Tehsil and District Ludhiana. According to the defendant No. 1, the land was sold by the plaintiff in his favour vide two registered sale deeds executed on 4.6.1975 but registered on 29.7.1975 and 13.8.1975 respectively. The whole consideration amounting to Rs. 84725/- has been received by the plaintiff before the execution of the sale deeds and at the time of the registration of the same. The sale deed are not fabricated. No fraud has been played upon the plaintiff nor the sale deeds are the results of impersonation. The sale deeds have been executed by the plaintiff in his favour of his own accord and for a valid consideration. 7. Defendants No. 2 and 3 also took the similar stand as that of defendant No. 1. 8. The plaintiff filed replication in the trial Court in which he reiterated his allegations made in the plaint by denying those of the written statement. It was averred by the plaintiff in the replication that Ram Singh defendant No. 1 has hatched a conspiracy to defraud him by taking the advantage of his blindness. He got prepared two sale deeds regarding the total sale of the land belonging to the plaintiff. It was further stated that when the plaintiff lodged the FIR he was under the impression that sale deeds have been fabricated by impersonation and that was stated by the plaintiff in the FIR. The plaintiff further submitted that he applied for the sanction of the electricity connection for his tubewell. A person who represented himself to be Rattan Singh, contacted the plaintiff and asked him to accompany him to the Electricity department as his thumb impression were to be taken on the application. Believing it to be correct, the plaintiff had gone with him and thumb-marked some documents. Later on, it transpired to the plaintiff that defendant No. 1 in collusion with the attesting witnesses had played a fraud upon him. He is a blind man. His thumb impressions have been illegally procured on the sale deeds. Even after the alleged sale deeds, the plaintiff had deposited security with the Punjab State Electricity Board on 2.11.1976 amounting to Rs. He is a blind man. His thumb impressions have been illegally procured on the sale deeds. Even after the alleged sale deeds, the plaintiff had deposited security with the Punjab State Electricity Board on 2.11.1976 amounting to Rs. 1000/- and had also purchased electric motor from Goodwill Machinery Corporation on 7.1.1977 which was to be installed by the plaintiff in the land in dispute. The plaintiff had also been making the payments of the electricity bills and the land revenue even after the date of the alleged sale deeds dated 4.6.1975. 9. On the above pleadings of the parties, the learned trial Court framed the following issues :- 1. Whether the sale deed dated 4.6.1975 and registered on 29.7.1975 and 13.8.1975 are void illegal without consideration and brought about by fraud and impersonation by defendant No. 1. OPP Onus objected to ? 2. Whether the plaintiff is owner and in possession of property mentioned in paras (b) and (c) of the head note of the plaint ? OPP 3. Whether the mutation of sale of suit land mentioned in paras (b) and (c) of Head Note of the plaint are illegal and not binding on the plaintiff ? OPP 4. Whether the mortgage effected by defendant No. 1 in favour of the defendant No. 4 is illegal and not binding on the plaintiff ? OPP 5. Whether the suit is the present form is not maintainable ? OPD 6. Whether the suit is not properly valued for the purpose of court fee and jurisdiction ? OPD 7. Relief. 10. The parties led voluminous evidence in support of their case and on the conclusion of the trial the learned trial Court vide judgment and decree dated 21.12.1981 decided issue No. 1 in favour of the plaintiff and against defendant No. 1. Issue No. 2 was also decided in favour of the plaintiff. Similarly, issue No. 3 was decided in favour of the plaintiff and against defendant No. 1. Issue No. 4 decided against the defendants. Issue Nos. 5 and 6 were decided in favour of the plaintiff and resultantly, the suit of the plaintiff was decreed by the trial Court. 11. The defendant Shri Ram Singh, filed the first appeal before the learned District Judge, Ludhiana who for the reasons given in the impugned judgment and decree dated 20.11.1984 dismissed the appeal. 12. Issue Nos. 5 and 6 were decided in favour of the plaintiff and resultantly, the suit of the plaintiff was decreed by the trial Court. 11. The defendant Shri Ram Singh, filed the first appeal before the learned District Judge, Ludhiana who for the reasons given in the impugned judgment and decree dated 20.11.1984 dismissed the appeal. 12. Aggrieved by the judgments and decrees of the Courts below, the present appeal has been filed by the defendant. 13. I have heard Shri D.S. Chahal, learned counsel for the appellant and Shri R.C. Setia, Sr. Advocate, on behalf of respondent No. 1 and with their assistance have gone through the record of this case. I have also gone through the brief written argument submitted on behalf of the appellant supported by some case law which I will discuss in the subsequent portion of this judgment. 14. The submission raised by the learned counsel for the appellant while assailing the judgment and decree of the trial Court was that the case set up by the plaintiff in the trial Court was that somebody else had impersonated on his behalf before the Sub Registrar and got the sale deed executed. This is not so. As is established from the record that the thumb-impressions of Shri Bant Ram respondent taken on the sale deeds tally with that of the specimen thumb-impressions and, therefore, the plaintiff cannot make out a new case. The counsel submitted that once it is established that the plaintiff had executed the sale deeds dated 4.6.1975, the onus lies upon him heavily to show that the sale deeds were without consideration or with the result of fraud. No particulars of fraud have been pleaded in the plaint and, therefore, the suit of the plaintiff ought to have been dismissed by the Courts below. 15. On the contrary, learned counsel appearing on behalf of the respondent submitted that the replication is a part of the pleadings. In the replication, the plaintiff has spelled out the particulars of the fraud. Defendant No. 1 Ram Singh has taken the advantage of the blindness of the plaintiff. He got two sale deeds fabricated on 4.6.1975 with the connivance of other attesting witnesses. In the replication, the plaintiff has spelled out the particulars of the fraud. Defendant No. 1 Ram Singh has taken the advantage of the blindness of the plaintiff. He got two sale deeds fabricated on 4.6.1975 with the connivance of other attesting witnesses. He gave the false representation to the plaintiff, who was a blind man since the time of his childhood, that he was to put his thumb impression on some papers in connection with the electricity connection and by taking the advantage of this situation, documents were procured. The plaintiff never appeared even before the Sub Registrar on 29.7.1975 and 13.8.1975. Since the defendant had already obtained the thumb impressions of the plaintiff even at the back of the sale deeds, he managed a false registration from the office of the Sub Registrar. The counsel for the respondent further submitted that had the plaintiff sold the land voluntarily on 4.6.1975, there was no occasion for him to deposit the security with the Punjab State Electricity Board on 2.11.1976 amounting to Rs. 1,000/- treating himself as owner of the property and also there was no necessity on the part of the plaintiff to purchase an electric motor from M/s Goodwill Machinery Corporation on 7.11.1977. In fact the plaintiff had been treating himself as owner of the property. The mutation does not confer any title in favour of the defendant. Similarly, defendant No. 1 could not pass a better title. No agreement of sale was ever executed by the plaintiff. Defendant No. 1 has not been able to show from where he arranged a sum of Rs. 84725/-. In fact defendant No. 1 who was a relation of the plaintiff took the advantage of the blindness of the plaintiff and managed sale deeds dated 4.6.1975. If the sale deed were executed on 4.6.1975, there was no occasion for defendant No. 1 to get these documents registered on 29.7.1975 and 13.8 : 1975. 16. I have considered the rival contentions of the parties and am of the opinion that this appeal must fail as I am satisfied that the sale deeds are the result of fraud; without consideration and these documents are void and illegal. The fraud can be proved by direct evidence as well as by circumstances. It is the admitted case of the parties that plaintiff is a blind man. The fraud can be proved by direct evidence as well as by circumstances. It is the admitted case of the parties that plaintiff is a blind man. The plaintiff Shri Bant Singh has clearly mentioned in his replication dated 10.9.1980 the manner under which the fraud has been committed upon him. He stated that one person of the name of Shri Rattan Singh at the instance of Shri Ram Singh defendant came to him. He told him that his thumb-impressions were to be obtained on an application for electric connection. He being a blind person put the thumb-impression on the document believing those documents as applications for the electricity connection. In fact those thumb-impressions were on the alleged sale deeds dated 4.6.1975. Mere placing of thumb impressions or signatures on a document does not prove the due execution of a document. In order to prove the due execution of a document there should be meeting of mind between the act and the intention of the mind. These two ingredients must go together. If signature of somebody has been obtained with intention to alienate the property it will not constitute due attestation or due execution of a document. It is a settled principle of law that replication is a part of the pleadings and if any law is required assistance can be taken from AIR 1971 Punjab and Haryana 437 Salig Ram v. Shiv Shankar. The averment of the plaintiff in the replication has not been controverted by the appellant. 17. The man may lie but the circumstances do not. Had the plaintiff voluntarily executed the sale deed dated 4.6.1975 he would be the last person to apply for the electricity connection and to deposit the security and he would be the last person to get the tube-well installed. The receipts Exs. P.2 dated 14.7.1980, P.4 dated 13.11.1978, P.5 dated 24.8.1979, P.6 dated 16.7.79, P.7, P.8, P.9 dated 8.11.1976, P.10 dated 2.11.1976 and P.11 dated 7.2.1977, show that plaintiff Shri Bant Singh has been paying the electricity charges of account No. 364 in respect of electricity consumed by the tubewell installed by him in the land in dispute. Moreover, Bills Ex.P. 12, P. 13 and P. 14 were issued in the name of the plaintiff against account No. 364 and these bills pertain to the year 1978. Moreover, Bills Ex.P. 12, P. 13 and P. 14 were issued in the name of the plaintiff against account No. 364 and these bills pertain to the year 1978. If the plaintiff had sold his land voluntarily on 4.6.1975, he would not have received the bills nor he would have made the payment of electricity bills to the Punjab State Electricity Board. Further it has been stated by Shri O.P. Gulati, Assistant Revenue Accountant, that Shri Bant Singh filed one application for electricity connection in the month of March 1970 and he was granted the electricity connection of 5 HP on 15.7.1977 and that the plaintiff had been paying the bills of the electricity connection. So much so the demand notice was also issued in the name of the plaintiff. In pursuance of that the plaintiff deposited the amount of Rs. 1,000/-. This coincides with the averment of the plaintiff that defendant No. 1 took the advantage of the situation by making representation that he had to sign or execute some document in the electricity department. Since the plaintiff had applied for the electricity connection he could always rely upon his close relation that he was executing the documents pertaining to the electricity department. The plaintiff could not know that under the garb of fraud he has been asked to execute the sale deeds dated 4.6.1975. If the plaintiff had actually sold the land in dispute on 4.6.1975 there was hardly any occasion for him to pay the electricity charges. 18. The case set up by the defendant No. 1-appellant is that a sum of Rs. 84725/- was paid to the plaintiff. Had it been so, defendant No. 1 could take an application from the plaintiff in the name of the Electricity Board that the electric connection be transferred in favour of defendant No. 1. In fact, the defendant No. 1 has also not been able to prove from where he got a sum of Rs. 84725/- for payment to the plaintiff. As I stated above, there was no agreement of sale between the parties prior to the sale deed. Though it is not obligatory for a vendee to get an agreement of sale in his favour but in the present case as a prudent man when the sale is for huge consideration of Rs. 84725/- this Court would have expected the execution of some document. 19. Though it is not obligatory for a vendee to get an agreement of sale in his favour but in the present case as a prudent man when the sale is for huge consideration of Rs. 84725/- this Court would have expected the execution of some document. 19. I had already stated above that the sale deeds are dated 4.6.1975. D.1 is the sale deed relating to the land measuring 35 Kanals 4 marlas situated in village Thakarwal. It was registered on 29.7.1975. D.2 relates to the land measuring 66 Kanals 4 Marlas situated in village Bahiromunarul. It was registered on 13.8.1975. There is no explanation worth the name from the side of the defendant why the two sale deeds dated 4.6.1975 were not registered on the same day. 20. Faced with this difficulty, the learned counsel for the appellant submitted that since the thumb impressions of the plaintiff on the sale deeds tally with the standard thumb impressions and that the sale deed D.1 and D.2 are registered documents, therefore, presumption should be drawn that these documents were voluntarily executed. The submission of the learned counsel for the appellant cannot be accepted in view of the peculiar facts of this case specially when the plaintiff is a blind man. Defendant is a close relation of the plaintiff. A plausible explanation has come from the side of the plaintiff with regard to putting up his signatures on the sale deed dated 4.6.75. His explanation has not been controverted in pleadings. Both the Courts below have accepted the explanation of the plaintiff as a matter of fact and, therefore, the High Court would be slow in interfering in the finding of fact of the Courts below when those findings are given on due appreciation of the evidence. 21. The statement of Shri Tara Singh has been impressed upon by the learned counsel for the appellant to prove the genuineness of the sale deeds dated 4.6.1975 but his statement has been rightly disbelieved by the Courts below because under all the other entries of the documents, he was in the habit of drawing a line but in between the entries pertaining to the sale deeds in dispute he did not draw a line. He also admitted that two types of ink were used in writing the entry No. 63. There were also cuttings in the entry. He also admitted that two types of ink were used in writing the entry No. 63. There were also cuttings in the entry. It appears that Shri Tara Singh also connived with defendant No. 1 and the attesting witnesses and he prepared the false documents. 22. With regard to the sale consideration it is amply proved on the record that these sale deeds were without consideration. In the sale deed Ex.D.1 it is stated that Rs. 15,000/- were paid to the plaintiff at his house and Rs. 20,000/- were paid before the Sub Registrar. In the other sale deed it is recited that a sum of Rs. 20,000/- was paid to the plaintiff in advance and Rs. 29,725/- were paid before the Sub Registrar. Where are the receipts of Rs. 15,000/- and Rs. 20,000/- is a mystery. The evidence with regard to the passing of the sale consideration is discriminatory. Mohinder Singh attesting witness of the sale deeds dated 4.6.75 stated that Rs. 15,000/- in respect of the land situated in Bahiromunrul was paid by Ram Singh to the plaintiff before Tara Singh Deed Writer and Rs. 20,000/- were paid at the time of the execution of the sale deed and Rs. 15,00,000/- were paid before the Sub Registrar. The statement of this witness is contrary to the recitals. There is no evidence on the record to show from where a huge amount of Rs. 84,725/- was brought by Shri Ram Singh in order to make the payment to the plaintiff. The defendant has admitted in the cross-examination that except for the disputed land he had no other landed property or any other property in his name. In these circumstances, the defendant No. 1 Shri Ram Singh could not arrange Rs. 84,725/- which had a great value in the year 1975. 23. Faced with this difficulty, Shri Ram Singh made an excuse that he sold the crop to one Shri Dharam Pal but Shri Dharam Pal has not been produced in the witness box. Similarly, Gurdev Singh in whose favour a pronote has been executed has also not been produced in the witness box to strengthen the argument of the learned counsel for the appellant that Shri Ram Singh had the capacity to pay the amount of Rs. 84,725/-. Similarly, Gurdev Singh in whose favour a pronote has been executed has also not been produced in the witness box to strengthen the argument of the learned counsel for the appellant that Shri Ram Singh had the capacity to pay the amount of Rs. 84,725/-. Also there is nothing on the record to suggest that Shri Bant Ram plaintiff who was a blind, had deposited a sum of Rs. 84,725/- in any Bank, Post Office for safe custody. It has also come on record that the plaintiff had lodged the complaint with the Senior Superintendent of Police on the basis of which the DDR was registered. All these circumstances cumulatively suggest that the sale deeds dated 4.6.1975 were the result of fraud and without consideration. There was no due execution. 24. The learned counsel for the appellant has relied upon the judgments AIR 1937 Privy Council 146, Bharat Dharma Syndicate v. Harish Chandra; 1999(7) Supreme Court Cases 288, Hari Singh v. Kanhaiya Lal; AIR 1976 Allahabad 399 Brij Kishore v. Smt. Mushtari Khatoon; and Indian Appeals Vol. 14 111, Abdool Hoosein Zenail Abadin and another v. Chales Agnew Turner. 25. The crux of the cited judgments are that fraud has to be pleaded and proved by the party who alleges that the fraud has been played upon him and that after the amendment the amended pleadings have to be taken into consideration; and that the High Court while sitting in second appeal can always interfere if there is wrong appreciation of evidence by the Courts below. I do not dispute with the preposition of law laid down by the Honble Judges but in the present case, there is ample evidence on the record to show that how Shri Bant Singh became the victim of the fraud played by Shri Ram Singh. 26. Both the Courts below have scanned through the evidence both on the question of law and fact in the right perspective and then decreed the suit of the plaintiff. I do not see any infirmity in the impugned judgments and decrees of the Courts below and dismiss the appeal with no order as to costs. Appeal dismissed.