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2011 DIGILAW 1885 (RAJ)

Sajjan Kanwar v. Nathu Lal

2011-09-02

KAILASH CHANDRA JOSHI

body2011
Hon'ble JOSHI, J.—The instant second appeal has been filed by the appellant against the judgment and decree dated 15.9.2009 passed by the learned Addl. District & Sessions Judge (Fast Track) Parbatsar, District Nagaur in Civil Original Appeal No. 25/2009 (14/2006) whereby the learned first appellate Court dismissed the appeal of the present appellant and affirmed the judgment and decree passed by the learned Civil Judge (Jr. Divn.) Kuchaman City, District Nagaur dated 20.5.2006 in civil suit No. 26/1998. 2. In brief, the facts arising out of this appeal are that the plaintiff appellant filed a suit before the learned trial Court stating inter alia that the father of the appellant Dul Singh was in ownership and possession of ancestral land measuring 0.30 Hectares in old khasra No. 102 and new Khasra No. 502 and 0.04 hectares land in khasra No. 742/500, total 0.34 hectares in Nagaur District and the appellant is the sole daughter of Dulsingh and she is looking after the property in the capacity of his successor. Dul Singh, during his life time, sold 0.04 Hectares land out of the aforesaid land to respondent No. 1 and 2, for construction of Health Sub-Centre and the rest of the land remained in possession of Dul Singh. It was averred that taking advantage of the illiteracy of the father of the appellant, the respondents fraudulently got executed a sale deed in respect of 2/3rd of the total land in their favour. When the appellant came to know about the fraud played by the respondents, she prayed for a decree for cancellation of the sale deed. The learned trial Court framed 12 issues and after hearing the arguments and perusing the record of the case, decided issue No. 3 to 8 against the plaintiff and dismissed the suit vide its judgment dated 20.5.2006 against which the appellant preferred an appeal before the learned Addl. District Judge (Fast Track), Parbatsar who dismissed the appeal vide its judgment and decree dated 15.9.2009. Being aggrieved by the aforesaid judgment and decrees the plaintiff appellant has preferred this appeal. 3. It is contended by the learned counsel for the appellant that the learned courts below have erred in passing the impugned judgment and decrees and dismissing the suit filed by the appellant plaintiff which was further affirmed by the learned first appellate court. 4. Being aggrieved by the aforesaid judgment and decrees the plaintiff appellant has preferred this appeal. 3. It is contended by the learned counsel for the appellant that the learned courts below have erred in passing the impugned judgment and decrees and dismissing the suit filed by the appellant plaintiff which was further affirmed by the learned first appellate court. 4. Counsel for the appellant urged that both the courts below have failed to consider the evidence on record and the law applicable in the case. Counsel for the appellant contended that the respondents have played fraud and have prepared a forged sale deed as Dul Singh, father of the appellant has sold 2/3rd portion of the land to them whereas actually the father of the appellant only sold 0.04 hectares of the land for construction of a health Sub Centre. The learned trial court erred in recording the finding against the appellant on issue No. 3 to 6. Counsel for the appellant further contended that when issue No. 1 and 2 have been decided by the learned trial court in favour of the appellant there is no reason to dismiss the suit of the plaintiff and the learned appellate court also affirmed the finding of the learned trial court on issue No. 1, 2 and 3. Counsel for the appellant contended that the substantial question of law which arises in this appeal is as to whether the learned courts below have erred in de-ciding issue No.3 against the plaintiff appellant and holding that the plaintiff appellant's father sold 2/3rd part of khasra No.501 and 742/500 to defendants? 5. I have considered the contentions raised by the counsel for the appellant. 6. As per the plaint, the suit was filed for cancellation of the registered sale deed for permanent injunction. The appellant plaintiff pleaded in his plaint that due to the illiteracy of the father of the appellant the defendants got executed the sale deed of the 2/3rd port of the land in favour of them by fraud and the appellant plaintiff while examining herself in the evidence deposed that the defendant respondents got executed the sale deed by fraud. How the fraud was played, no evidence has been adduced regarding the essential ingredients of the fraud. How the fraud was played, no evidence has been adduced regarding the essential ingredients of the fraud. What was the rate of the suit property and what was the time of the execution of the sale deed and whether the consideration was too low in comparison to the market rate these were the relevant considerations which were required to be proved by the appellant. But the appellant simply adduced the evidence that the respondent played fraud with the father of the appellant. 7. In my considered view, this is not sufficient evidence so as to prove the fact of fraud played by respondent No. 1 and 2 with the father of the plaintiff appellant. The learned trial court, while deciding issue No. 3, 4, 5 and 6 considered all the oral and documentary evidence adduced by the appellant as well as the respondents and there is no reason to differ from the finding recorded on facts by the learned trial court as well as the first appellate court. 8. The instant second appeal is concluded by a finding of fact as recorded by the learned trial Court as well as by the first appellate court and no substantial question of law is involved in it within the meaning of section 100 of the Civil Procedure Code. 9. As a result of the aforesaid discussions, the instant second appeal lacks merit and it is hereby dismissed at the admission stage.