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Uttarakhand High Court · body

2009 DIGILAW 398 (UTT)

BAHADUR RAM v. MANGLA DEVI

2009-07-30

PRAFULLA C.PANT

body2009
Judgment This appeal, preferred under Section 100 of Code of Civil Procedure, 1908, is directed against the judgment and decree dated 15-06-1987, passed by first appellate court (District Judge, Pithoragarh), in Civil Appeal No. 02 of 1987, whereby said appeal has been allowed and judgment and decree dated 15-12-1986, passed by the trial court (Munsif, Pithoragarh), in suit No. 05 of 1985, is set aside. 2. Heard learned counsel for the parties. 3. Brief facts giving rise to this appeal are that plaintiff/respondent instituted Suit No. 05 of 1985, for cancellation of sale deed dated 24-01-1983, purporting to have been executed by her in favour of the defendant/appellant. She has pleaded that she is an illiterate lady and was in a bad financial condition. In the circumstances, she required loan of Rs. 3,000/- for which she mortgaged the property in question, in favour of the defendant after taking loan from him. She never intended to execute sale deed in respect of the land in question, measuring 15 nali 3 mutthi in Village Udai, Patwari Cirle Deval Thal. Hence the suit for cancellatioin of sale deed on the ground that the fraud was played on her by the defendant. 4. Defendant/appellant contested the suit and filed his written statement, before the trial court. He pleaded that the plaintiff executed sale deed dated 24-01-1983, for a consideration of Rs. 5,500/- and the deed was registered before the Sub-Registrar, Didihat. It is further pleaded that before execution and registration of the deed, the deed was read over and explained to her and only thereafter, she signed it, and admitted the fact before the Sub-Registrar, Didihaat, before registration. It is further pleaded that one Rami Ram and Sundar Ram, were interested to purchase the property from the plaintiff and they instigated to the plaintiff to get the sale deed executed in favour of the defendant, cancelled. 5. On the basis of the pleadings of the parties, the trial court framed following issues:- 1. Whether the defendant got executed sale deed dated 24-01-1983, in respect of the land in suit, by playing fraud on the plaintiff? 2. To what relief, if any, is the plaintiff entitled? After recording the evidence and hearing the parties, the trial court found that no fraud was played on the plaintiff and she has executed the sale deed in favour of the defendant after receiving consideration of Rs. 5,500/-. 2. To what relief, if any, is the plaintiff entitled? After recording the evidence and hearing the parties, the trial court found that no fraud was played on the plaintiff and she has executed the sale deed in favour of the defendant after receiving consideration of Rs. 5,500/-. With said finding, suit was dismissed by the trial court (Munsif, Pithoragarh), vide its judgment and decree dated 15-12-1986, passed in the Suit No. 05 of 1985. Aggrieved by the said judgment and decree, the plaintiff filed civil appeal No. 02 of 1987, before first appellate court (District Judge, Pithoragarh). After hearing the parties, the first appellate court allowed the appeal, and reversed the decree passed by the trial court. The first appellate court decreed the suit for cancellation of the sale deed dated 24-01-1983 (registered on 10-02-1983). Hence this appeal was filed by the defendant before Allahabad High Court, where it was admitted on 04-08-1987 on following question of law:- Whether the lower appellate court has erred in law in ignoring the provision of sub-section (2) of Section 60 of Registration Act, 1908, which provides that the certificate endorsed by the Sub-Registrar in the registered document, shall be admissible for the purposes of proving that the document has been duly registered in the manner provided in the Act, and that the facts mentioned in the endorsements referred to in Section 59 have occurred, as therein mentioned? The appeal is transferred to this Court, by transfer under Section 35 of U.P. Reorganisation Act, 2000 (Central Act 29 of 2000). 6. Admittedly, the plaintiff was owner of land measuring 15 nali 3 mutthi, situated in Village Udai, Patwari Circle Deval Thal. The dispute between the parties is that whether the defendant played fraud in getting executed the sale deed dated 24-01-1983 (registered on 10-02-1983) on the plaintiff. The trial court has discussed the evidence of both the sides, and found that no fraud was played on the plaintiff by the defendant. On the other hand, the first appellate court held that defendant has played fraud on the plaintiff. But on perusal of the record, this Court find that the finding recorded in the impugned judgment and decree, passed by first appellate court is perverse and against the record. The plaintiff herself has admitted that she was in need of money and she executed mortgage deed in favour of the defendant. But on perusal of the record, this Court find that the finding recorded in the impugned judgment and decree, passed by first appellate court is perverse and against the record. The plaintiff herself has admitted that she was in need of money and she executed mortgage deed in favour of the defendant. Her only contention is this that she did not know that she was executing sale deed. The first appellate court has committed grave error of law in ignoring the fact that the deed in question is a registered document, which was registered before the Sub-Registrar, Didihat on 10-02-1983. Endorsement of Sub-Registrar on the deed, cannot be brushed aside on the basis of mere oral evidence of the plaintiff that she did not know that the sale deed is being got executed by her. Sub-section (2) of section 60 or Registration Act, 1908, reads as under:- “(2) Such certificate shall be signed, sealed and dated by the registering officer, and shall then be admissible for the purpose of proving that the document has been duly registered in manner provided by this Act, and that the facts mentioned in the endorsements referred to in Section 59 have occurred as therein mentioned.” In view of the above provision of law, the endorsements made by the Sub-Registrar in the document that the plaintiff admitted having executed the sale deed and received the consideration therefore, cannot be lightly disbelieved. The approach adopted by the first appellate court that the defendant should have proved that no fraud was played on the plaintiff, is erroneous in law, as the burden was on the plaintiff to prove that fraud was played on her. Merely for the reason that she was illiterate, her oral testimony is not sufficient to disbelieve the endorsement made by the Sub-Registrar relating to execution of sale deed by her for consideration. 7. Apart from this, Section 164 of U.P. Zamindari Abolition and Land Reforms Act, 1950 (U.P. Act I of 1951), provides that in any transfer of any holding or part thereof, made by a bhumidhar by which possession is transferred to the transferee, for the purposes of securing any payment of money advanced by way of loan, shall, not withstand anything contained in the document of transfer, be deemed to be a sale to the transferee. In the light of provisions contained in Section 164 of U.P. Act I of 1951, also since the plaintiff herself admits that she was in need of loan and executed deed in favour of the defendant, the deed so executed shall be treated to be that of a sale deed. 8. Accordingly, substantial question of law stands answered in favour of the defendant/appellant. 9. For the reasons, as discussed above, this appeal is allowed. Judgment and decree dated 15-06-1987, passed by first appellate court (District Judge, Pithoragarh), in civil appeal No. 02 of 1987, is set aside. The judgment and decree passed by the trial court is restored. However, costs easy.