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2003 DIGILAW 1669 (PNJ)

Samunder Singh v. Ram Kishan

2003-12-16

SATISH KUMAR MITTAL

body2003
Judgment Satish Kumar Mittal, J. 1. This is a defendants Regular Second Appeal against the judgment and decree passed by both the Courts below vide which the suit of the plaintiff Ram Kishan for declaring the sale deed dated 1.7.1978 executed and registered by him in favour of the defendants-appellants as void ab initio and inoperative, has been decreed. 2. The brief facts of the case are that vide registered sale deed dated 1.7.1978, the plaintiff-Ram Kishan sold 3 kanals 18 marlas of land to the defendants for a consideration of Rs. 40,000/-. Subsequently, on 15.6.1979, the plaintiff Ram Kishan filed the instant suit through his father being natural guardian for declaration alleging therein that on the date of execution and registration of the aforesaid sale deed, he was minor and the said sale deed was got executed without consideration and by playing fraud upon him. The plaintiff alleged that his date of birth was 7.1.1964, therefore, on the date of the execution of the sale deed, he was minor and was not competent to enter into any contract or to execute any sale deed of his property in favour of the defendants. Thus, the said sale deed was void ab initio and the same was not binding on his rights, and the same was liable to set aside. 3. The defendants contested the said suit. It was averred that the aforesaid sale deed was executed by the plaintiff after receiving the full sale consideration. It is further averred that at the time of execution and registration of the sale deed, the plaintiff posed himself as major and actually he was major. Now, after a long time he filed the suit with the bad intention. Therefore, he was estopped from filing the instant suit. On the pleadings of the parties, the following issues were framed:- 1. Whether the plaintiff was a minor on 1.7.78, the date of sale? OPP 2. Whether the impugned sale deed dated 1.7.78 is based on fraud and is null, void, inoperative, not binding on the rights of the plaintiff and is liable to be set aside? OPP 3. Whether the plaintiff is the owner in possession of the suit land? OPP 4. Whether the impugned sale took place for consideration? OPD 5. Whether the plaintiff has no right to file the present suit? OPD 6. Whether the plaintiff has no cause of action? OPD 7. OPP 3. Whether the plaintiff is the owner in possession of the suit land? OPP 4. Whether the impugned sale took place for consideration? OPD 5. Whether the plaintiff has no right to file the present suit? OPD 6. Whether the plaintiff has no cause of action? OPD 7. Whether the plaintiff is estopped from filing the present suit? OPD 8. Whether the suit is not maintainable in the present form? OPD 9. Whether the suit is bad for mis-joinder and non-joinder of the parties? OPD 10. Whether the defendants are entitled to special costs u/s 35-A C.P.C. If so, to what effect? OPD 11. Whether the plaint has been signed and verified by a proper person? OPD 12. Whether the proper Court fee has not been paid by the plaintiff? OPD 13. Relief. 4. On issue No. 1, on the basis of a certificate issued by the Headmaster of the Middle School based on admission register, it was held that the date of birth of the plaintiff was 7.1.1964. No birth certificate from the Registrar of Births and Deaths issued under the Registration of Births and Deaths Act, 1969 (hereinafter referred to as "the Act") was produced by the plaintiff. The statements of the witnesses of the defendants i.e. DW1 and DW4, who stated that at the time of execution of the sale deed, the father of the plaintiff told his age as 20 years, were not believed in preference to the Transfer Certificate (Ex. PA) issued by the Headmaster. On the basis of finding on issue No. 1, it was held that the sale deed executed and registered by the plaintiff on 1.7.1978 was null and void and was not operative and binding on the rights of the plaintiff. 5. On issue No. 4, it was held that the sale deed in question was executed for a consideration of Rs. 4000/- but since it was executed by the minor, therefore, the plaintiff was not bound to refund the sale consideration. 6. 5. On issue No. 4, it was held that the sale deed in question was executed for a consideration of Rs. 4000/- but since it was executed by the minor, therefore, the plaintiff was not bound to refund the sale consideration. 6. Regarding possession of the suit land, it was held that though a recital was made in the sale deed that possession was given to the defendants at the time of execution of the sale deed but since the sale deed was held to be void on issue No. 1, therefore, the said recital does not have any meaning and the plaintiff will be deemed to be in possession of the land in question. 7. Against the aforesaid judgment and decree, the defendant filed an appeal before the first Appellate Court. They also filed an application under Order 41 27 C.P.C. for additional evidence. By the said application, the defendants wanted to produce on record the copy of the birth entry issued by the Registrar of Births and Deaths allegedly related to the plaintiff Ram Kishan, according to which, the date of birth of the plaintiff as 15.2.1960. Before deciding the appeal on merits, the trial Court vide its order dated 25.10.1982 dismissed the said application while observing that the defendants were allowed full opportunity before the trial Court to lead their evidence and they should have been vigilant at that time and now at the appellate stage they cannot be permitted to remove the lacuna in presenting their case. It was further observed that the appellate Court was in a position to pronounce the judgment on the material already available on the record. Subsequently, the learned first Appellate Court dismissed the appeal filed by the defendants by confirming the findings recorded by the trial Court. Against the said judgment and decree, the instant Regular Second Appeal has been filed by the defendants. 8. At the outset, the learned counsel for the appellant submitted that the learned first Appellate Court has illegally dismissed the application of the appellants for additional evidence. He submitted that the learned first Appellate Court without applying its mind has considered the application of the appellants for additional evidence and dismissed it on the ground that the same was filed to fill up the lacuna in the case. He submitted that the learned first Appellate Court without applying its mind has considered the application of the appellants for additional evidence and dismissed it on the ground that the same was filed to fill up the lacuna in the case. He submitted that the entire controversy in the suit is about the fact, whether the plaintiff was minor or not on the date of execution and registration of the sale deed. For that purpose and to prove the date of birth, the document wanted to be produced by the appellants as additional evidence, was very material. Not only that the said document was a certificate issued by the Registrar of Births and deaths, the said certificate carries presumption of truth and was coming from the custody of the government record. The learned counsel for the appellants submitted that the said document was very much relevant for the proper and just adjudication of the matter and the same was necessary for pronouncing the judgment on the real issue. 9. On the other hand, learned counsel for the respondent submitted that the appellants did not challenge the order vide which their application for additional evidence was dismissed by the learned first Appellate Court, by filing a revision petition, and now they cannot be allowed to challenge the said order in this Regular Second Appeal. He further submitted that the application of the appellants for additional evidence was rightly dismissed by the learned first Appellate Court as the same was not in conformity with the requirements laid down under Order 41 Rule 27 C.P.C. 10. After hearing the arguments of the learned counsel for the parties and perusing the record, I find force in the arguments raised by the learned counsel for the appellants. Merely because the appellants did not challenge the order vide which their application for additional evidence was declined, by filing a revision before this Court, the appellants cannot be debarred from impugning the said order in this Regular Second Appeal in view of Section 104 C.P.C. which clearly provides that such an order can also be challenged in appeal after the decision of the first Appellate Court. I also do not upheld the impugned order and the reasons recorded by the first Appellate Court dismissing the application of the appellants for additional evidence. I also do not upheld the impugned order and the reasons recorded by the first Appellate Court dismissing the application of the appellants for additional evidence. Firstly, the application of the appellants for additional evidence should have been taken into consideration and decided at the time of hearing of the appeal because if during the course of hearing of the appeal, the first Appellate Court found that the document sought to be produced as additional evidence as essential to pronounce the judgment in appeal, then the same should have been allowed and if not, then the same should have been dismissed at that stage, but deciding the application before hearing of the appeal was in appropriate. In this regard, reference can be made to the judgment of the Honble Apex Court in State of Rajasthan v. T.N. Sahani, (2001)10 S.C.C. 619. 11. Secondly, in my opinion, the document sought to be produce by additional evidence was very much essential for pronouncing the just decision between the parties. The main controversy between the parties is whether the plaintiff was minor on the date of execution of the sale deed or not. To prove the date of birth of a person, the certificate issued by the Registrar of Births and deaths under the Act is a clinching evidence. The said document was not produced by the plaintiff. On the contrary, a Transfer Certificate (Ex.PA) issued by the Headmaster on the basis of admission register of the School, was produced, which cannot be said to be a clinching evidence with regard to the date of birth of a person. The appellants could not produce the said document before the trial court as they were not having any specific knowledge about the date of birth of the plaintiff. Subsequently, the said document came to their knowledge which they wanted to produce at the appellate stage by way of additional evidence. The production of the said document in my opinion cannot be said to be filing up of the lacuna in the case. The reasoning recorded by the learned first Appellate Court in rejecting the application of the appellants, are totally unsustainable. 12. In view of the aforesaid, I am of the opinion that the first Appellate Court should have allowed the application for additional evidence and thereafter could have decided the appeal filed by the appellants. 13. The reasoning recorded by the learned first Appellate Court in rejecting the application of the appellants, are totally unsustainable. 12. In view of the aforesaid, I am of the opinion that the first Appellate Court should have allowed the application for additional evidence and thereafter could have decided the appeal filed by the appellants. 13. In view of the aforesaid discussion, the appeal is allowed. The judgment and decree passed by the first Appellate Court is set aside and the matter is remanded to the first Appellate Court with the direction to grant opportunity to the appellants to lead additional evidence sought to be produced and thereafter decide the matter in accordance with law. The respondent-plaintiff, if so desired, should also be provided opportunity to rebut the said evidence.