JUDGMENT A.K. Shrivastava, J. 1. This is defendant's second appeal against the judgment and decree passed by learned two Courts below decreeing the suit of plaintiff. 2. On 23-7-1983 (more than 28 years ago) the plaintiff filed suit for declaration and cancellation of the sale deed dated 23-7-1980 to be null and void and ineffective against the plaintiff and further that the same was obtained by playing fraud upon him by the defendant and by the said sale deed the plaintiffs Bhumiswami right are not affected. In para-1 the plaintiff has pleaded the details of the disputed land and according to him, he is the Bhumiswami of these lands and his name is also recorded in the revenue record as Bhumiswami. Further it has been pleaded by him that he obtained a loan (amount not disclosed) from one Sheetal Prasad (not examined) and to repay the loan he was in need of Rs. 500/-but nobody was giving this amount on credit, as a result of which he agreed to sell his one Survey No. 345 to the defendant for a consideration of Rs. 500/- in the presence of two reputed persons (not named in the plaint) of the village. According to the plaintiff, a sum of Rs. 500/- was paid at the residence of defendant on 23-7-1980 and thereafter both of them went to Satna to get the sale deed executed. They were accompanied by Bhola Prasad, who is the Chela of defendant and his brother Shyamsunder. After arriving at the Sub-Registrar office, the defendant purchased the stamp paper and by asking one Chandrashekhar (not examined) to sit little far away he carried the plaintiff to a document-writer (not examined) and interacted with him, but, the said document-writer refused to prepare the document of sale deed. Eventually, the defendant went to another document-writer Devisingh (not examined) and interacted with him and he got the sale deed prepared. On the said sale deed the plaintiff put his thumb-impression and the attesting witnesses also signed the said sale deed. Thereafter, the document-writer Devisingh along with the attesting witnesses, plaintiff and defendant went to the office of the Sub-Registrar. The plaintiff was under impression that only one Survey number is being sold for Rs. 500/-. The Sub-Registrar called the plaintiff and asked him whether he had obtained the money (consideration)? Thereafter, the document-writer Devisingh along with the attesting witnesses, plaintiff and defendant went to the office of the Sub-Registrar. The plaintiff was under impression that only one Survey number is being sold for Rs. 500/-. The Sub-Registrar called the plaintiff and asked him whether he had obtained the money (consideration)? In reply, he (plaintiff) told that he had already received the money in the village. Thereafter, in the presence of Sub-Registrar he put the thumb-impression and came out from his office. The plaintiff and defendant thereafter went to the village. 3. Further it has been pleaded by the plaintiff that when defendant did not return the Bhu-Adhikar Pustika (statutory document given to a Bhumiswami) certain doubts carved out in his mind and when in the village also the defendant did not return the said Bhu-Adhikar Pustika, the plaintiff made complaint to some reputed persons of the village and they called the defendant from his home and asked him why he is not returning the said Bhu-Adhikar Pustika to plaintiff. At this juncture, the defendant returned the said Bhu-Adhikar Pustika to him. The inhabitants of the village after going through the said Pustika asked the plaintiff whether he has sold his entire land to defendant? On this, plaintiff replied that he sold only one Survey number but those villagers told that in the Bhu-Adhikar Pustika there is an endorsement of selling the entire suit property. On knowing this fact the plaintiff became astonished and complained to other villagers and a Panchayat was assembled in which the defendant was summoned and he was interacted by the Panchas that how much money he has paid to the plaintiff and how much the land the plaintiff has sold to him because the plaintiff is saying that only Rs. 500/- has been paid to him and he has sold only one survey number. On this, the defendant admitted that he has paid only Rs. 500/- to the plaintiff and the sale deed has been executed for the entire suit property. On this act of defendant, the Panchayat persons scolded on him resultantly the defendant by assuring them that he would get the suit property reconveyed to the plaintiff by a registered document and thereafter he went to his house. 4. 500/- to the plaintiff and the sale deed has been executed for the entire suit property. On this act of defendant, the Panchayat persons scolded on him resultantly the defendant by assuring them that he would get the suit property reconveyed to the plaintiff by a registered document and thereafter he went to his house. 4. Further it has been pleaded by the plaintiff that on the next day along with some persons of the village he went to Satna where he met one Premsingh (not examined) to whom the inhabitants of his village stated the entire episode. As a result of which, said Premsingh called defendant and inquired from him and to whom also the defendant admitted that in lieu of Rs. 500/- he got the entire suit property sold in his favour and further it was assured to said Premsingh that today only the suit property would be reconveyed to the plaintiff by a registered document. Thereafter, the defendant approached his counsel Mahesh Prasad Garg and thereafter he disappeared. In para-8 of the plaint it has been pleaded by the plaintiff that when the defendant disappeared from the Kachehari (Court) without informing anybody, the villagers who accompanied the plaintiff approached an Advocate Harishchandra and obtained the certified copy of the impugned sale deed. On the next day, the said Advocate advised to lodge a report in the police station as a result of which a report was lodged to the Superintendent of Police and Collector in writing (not produced and proved in the evidence). A written report was also submitted in the police station Baraudha (not filed). The police authorities rest assured plaintiff to hold an inquiry but no inquiry was made. Hence, the plaintiff filed the present suit by seeking the reliefs which I have already quoted herein-above. 5. The defendant by filing written statement refuted the plaint averments and specifically pleaded that for a consideration of Rs. 11,000/- the plaintiff sold the suit property to him. Rest of the averments pleaded by the plaintiff has been denied by him. 6. The learned trial Court framed necessary issues and after recording the evidence of the parties except Survey No. 345 decreed the suit of plaintiff and the first appeal which was filed by the defendant has been dismissed by the impugned judgment and decree. 7. Rest of the averments pleaded by the plaintiff has been denied by him. 6. The learned trial Court framed necessary issues and after recording the evidence of the parties except Survey No. 345 decreed the suit of plaintiff and the first appeal which was filed by the defendant has been dismissed by the impugned judgment and decree. 7. In this manner this second appeal has been filed by the defendant assailing the judgment and decree passed by learned two Courts below. 8. This Court on 1-8-1996 admitted the second appeal on the following substantial question of law : Whether the Courts below were justified in holding that fraud was committed by defendant in obtaining the sale deed and whether the findings to this effect recorded by the Court below are perverse? 9. The contention of Shri R. P. Agarwal, learned senior counsel for the appellant is that instant suit has been filed for cancellation of sale deed which was allegedly executed by playing fraud upon the plaintiff but necessary facts constituting the fraud are not pleaded. By inviting my attention to para-4 of the plaint it has been submitted by learned senior counsel that according to plaintiff the defendant asked one Chandrashekhar to sit little far-away and then he met one document-writer along with the defendant; in para-6 plaintiff has pleaded that the reputed persons of the village to whom the plaintiff made complaint called the defendant and they interacted with the defendant; in para-7 of the plaint he has pleaded that in Satna he narrated the entire episode to one Premsingh who also called defendant and asked him how the transaction has taken place; and in para-8 of the plaint it has been pleaded that plaintiff submitted the written report in the office of the Superintendent of Police, Collector and also lodged report in the police station, but, the said Devisingh, those alleged reputed persons and Premsingh have not been examined by the plaintiff in order to prove the fraud alleged to have been played upon by the defendant and further no copy of the police report has been filed nor it has been summoned from the office of Superintendent of Police or concerning police station. 10. 10. Further it has been contended by learned senior counsel that plaintiff has also not examined Sheetal Prasad for whom it is said that plaintiff was required to repay the loan, according to learned senior counsel he would have been an important witness to prove whether, in fact, there was any loan between him and the plaintiff and because the plaintiff was unable to repay the said loan to him, it became necessary for him to get only one of the survey number sold to defendant for Rs. 500/- and therefore, the plaintiff by not examining these material witnesses who would have thrown sufficient light on the case in order to infer that defendant played fraud upon the plaintiff and thus plaintiff has tried to hide real transaction of sale in respect to entire suit property which took place between him and plaintiff for a consideration of Rs. 11,000/-. 11. By inviting my attention to the judgment passed by learned trial Court it has been further contended by learned senior counsel that indeed the findings of learned trial Court while deciding the issues Nos. 1 and 2 are in the favour of defendant, but, against the pleadings and by making out an altogether different case which was not even pleaded by the plaintiff and which was not his case, has held that the sale deed was executed without free consent of the plaintiff. Vehemently, it has been put forth by learned senior counsel that entire case of plaintiff is based upon fraud and not of free consent, therefore, learned trial Court erred in decreeing his suit. By inviting my attention to para-26 of the judgment of learned trial Court it has been put forth by learned senior counsel that defendant played fraud upon the plaintiff is not at all proved and issue No. 2 was decided against the plaintiff and therefore, instead of dismissing the suit, learned trial Court erred in substantial error of law by decreeing the same and hence the finding of learned trial Court is perverse. 12. 12. The contention of learned senior counsel for appellant is that learned trial Court decided issue No. 2 against the plaintiff by holding that sale deed was not executed by playing fraud, even then the plaintiff did not file any cross-objection before learned First Appellate Court and therefore, learned First Appellate Court erred in gross error of law in holding that sale deed was executed by playing fraud which was specifically negatived by the trial Court and thus the findings recorded by learned two Courts below are perverse. 13. On the other hand, Shri.M. L. Jaiswal, learned senior counsel for the respondent No. 1-plaintiff argued in support of the impugned judgment passed by learned two Courts below and submitted that because the learned trial Court decreed the suit, hence, there was no occasion for the plaintiff to file any cross-objection in the Court of First Appeal which had rightly concluded that the sale deed was executed by playing fraud upon the plaintiff. In support of his contention, learned counsel has placed heavy reliance on the decision of Supreme Court Krishna Mohan Kul alias Nani Charan Kul and another v. Pratima Maity and others, (2004) 9 SCC 468. 14. Having heard learned counsel for the parties I am of the view that this appeal deserves to be allowed. Regarding Substantial Question of Law framed: 15. On bare perusal of the judgment of learned trial Court this Court finds that after appreciating and marshalling the evidence vis--vis pleadings of the plaintiff the learned trial Court has recorded the following findings :-- Sr. No. Findings of trial Court Para Number of the judgment (i) disputed sale deed (Ex.P-2) was read over to the plaintiff; (see para-16) (ii) it is not proved that on account of conspiracy the sale deed was executed and there are sufficient grounds to hold that the sale deed was executed; (see para-17) (iii) the evidence of plaintiff is contrary to the pleadings in respect to the receipt of Rs. 500/-. In the pleadings only this much is pleaded that Sub-Registrar asked plaintiff whether he has obtained the money and plaintiff answered that yes he had obtained money and contrary to this pleading the evidence which plaintiff is giving is that he told Registrar that defendant had given only Rs. 500/-. In the pleadings only this much is pleaded that Sub-Registrar asked plaintiff whether he has obtained the money and plaintiff answered that yes he had obtained money and contrary to this pleading the evidence which plaintiff is giving is that he told Registrar that defendant had given only Rs. 500/- to him, cannot be relied upon and accepted; (see para-18) (iv) the Sub-Registrar is a Public Officer and if the sale deed was being executed for a consideration of Rs. 11,000/-, he will never register the sale deed by putting an endorsement on it that it has been sold for Rs. 11,000/- if the plaintiff would have said that he has obtained only Rs. 500; (see para-18) (v) the intention of Sub-Registrar was dishonest, this is not proved nor there is any proof of this fact; (see para-18) (vi) at the time of the execution of the sale deed only it came into the knowledge of plaintiff that there is something wrong in the sale deed or he came to know that the entire suit property has been sold; (see para-19) (vii) the document of Bhu-AdhikarPustikaobtained by plaintiff in the manner and fashion it has been stated by him in his evidence is not reliable and the plaintiff is not stating the correct facts in his evidence; (see para-20) (viii) from the evidence of plaintiffs witnesses it is not proved that fraudulently the sale deed was got registered; (see para-21 and 26) (ix) by keeping the plaintiff in dark on account of some captivation, it was so decided by the Panchayat in favour of plaintiff, is not proved and further it is not proved that the sale deed is a forged document; (see para-21) (x) the report lodged by plaintiff to the Superintendent of Police and Collector would have been very material evidence but these reports have not been filed by him; (see para-22) (xi) on the next date of the execution of the sale deed the plaintiff came to Satna and complained to one Premsingh who was an important witness, but, plaintiff has not examined him; (See para-22) (xii) this cannot be said that the plaintiff was not aware about the purchasing of the stamp papers for the execution of the sale deed; and (see para-23) (xiii) the sale deed was not executed by playing fraud upon plaintiff and issue No. 2 has been decided against the plaintiff. (see para-26) Thereafter, in para-24 again by making out an altogether new case for the plaintiff it has been held by the learned trial Court that without free consent of the plaintiff the sale deed was got executed. 16. According to me, the learned trial Court has totally made out a new case for the plaintiff which was not even pleaded and was not at all his case and decreed the suit of plaintiff on altogether different case which admittedly he has not submitted and filed. 17. The learned trial Court in para-19 of the impugned judgment came to hold that looking to the circumstances that because there is no one in the family of the plaintiff and he (plaintiff) is issue-less, the defendant might have succeeded to pacify the plaintiff that instead of selling one Survey number, he (plaintiff) should sell the entire suit property but it will only be a nominal sale and the plaintiff shall remain in possession of the suit property. Indeed, an altogether new case, which is not at all of plaintiff, the learned trial Court has made for him, which according to me, is not at all permissible. According to me, the probabilities and preponderance cannot be stretched upto the extent that it would turn into conjectures and surmises. The case of plaintiff is that the sale deed was executed by defendant by playing fraud upon him. It is not his case that without free consent he executed the sale deed and therefore, learned trial Court erred in substantial error of law and by making out a new case for the plaintiff and thereby decreed his suit on the grounds which were not even pleaded by him. Specifically by deciding issue No. 2 against the plaintiff it has been held by learned trial Court that fraud was not played by the defendant while executing the sale deed. 18. Since the learned trial Court has come to a conclusion that sale deed was not executed with the free consent of the plaintiff, I am required to see the law in this regard. 18. Since the learned trial Court has come to a conclusion that sale deed was not executed with the free consent of the plaintiff, I am required to see the law in this regard. Section 14 of the Indian Contract Act, 1872 has defined the term "Free consent" and according to this section a Consent is said to be free when it is not caused by -- (1) coercion, as defined in section 15, or (2) undue influence, as defined in section 16, or (3) fraud, as defined in section 17, or (4) misrepresentation, as defined in section 18, or (5) mistake, subject to the provisions of sections 20, 21 and 22." The case of plaintiff is not of coercion or undue influence or misrepresentation as defined under Sections 15, 16 and 18 of the Contract Act. His case is not even of mistake subject to the provisions of sections 20, 21 and 22 of the said Act. The learned trial Court in paras 21 and 26 has specifically held that fraud has not been played by the defendant upon plaintiff. Since the case of plaintiff is not of coercion, undue influence, misrepresentation and mistake and further because the fraud has not been played by defendant upon the plaintiff, therefore, it cannot be said that there was no free consent of plaintiff to execute the sale deed in question. On the other hand, it would be deemed that there was free consent of the plaintiff when the disputed sale deed was being executed. The finding of learned trial Court holding that there was no free consent of the plaintiff is contrary to section 14 of the Contract Act as well as it is not the case of plaintiff and thus, it is perverse. The learned First Appellate Court has concurred with the view of learned trial Court and the findings recorded by it have not been reversed except by reversing the findings of learned trial Court on Issue No. 2 that fraud was not played, the learned First Appellate Court has held that defendant played fraud upon the plaintiff and therefore the finding of learned First Appellate Court is also perverse. 19. 19. So far as the finding of learned First Appellate Court holding that fraud played by the defendant upon plaintiff is proved is concerned, indeed, the issue No. 2 which is in respect to fraud was decided against the plaintiff and he did not file any cross-objections in first appeal. According to me, in absence of filing any cross-objections by the plaintiff, the judgment of learned trial Court deciding this issue against him, the finding of learned First Appellate Court holding that the sale deed (Ex.P-2) was executed by playing fraud upon plaintiff is not only perverse but is ex facie contrary to the law. 20. On the basis of the aforesaid backdrop and the enunciation of law, the decision of Supreme Court Krishna Mohan Kul (supra) relied upon by learned senior counsel for the respondent is quite distinguishable on the facts and is not applicable because the defendant played fraud has not at all been found to be proved by the learned trial Court. 21. The substantial question of law is, thus, answered that the defendant obtained sale deed by playing fraud upon plaintiff, is not proved and the findings of the learned two Courts below in that regard are perverse. 22. Resultantly, this appeal succeeds and is hereby allowed. The impugned judgment and decree passed by learned two Courts below are hereby set aside and suit of plaintiff is hereby dismissed with no order as to costs.