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2012 DIGILAW 647 (PNJ)

Tej Pal v. Shanti Devi

2012-05-01

JASWANT SINGH

body2012
JUDGMENT Mr. Jaswant Singh, J.: - Plaintiff/appellant is in this second appeal against the judgment and decree dated 29.04.2009 passed by the learned Court of Additional District Judge, Faridabad whereby the appeal filed by the defendant has been partly allowed to the extent that the judgment and decree dated 26.11.2007 passed by the Civil Judge(Jr. Divn.), Faridabad declaring the plaintiff to be lessee on the suit land was set aside but the judgment and decree passed by the trial court was upheld so far as it related to declaration that the defendant has no right to dispossess the plaintiff from the suit property except in due course of law. 2. Brief facts for proper adjudication of the case in hand are that the plaintiff/appellant has set up a case that he along with his brother Richhpal had taken on lease the land measuring 37 Kanals 16 marlas detailed in para no.1 of the plaint from its owner K.B. Sharma vide lease deed executed on 16.07.1982 and registered on 13.08.1982. He and his brother had mutually partitioned their lease hold rights and as a result, he has occupied land measuring rectangle no.40, Killa no.16(4-0), 24(6-9) and 25(8-0) (hereinafter referred to as the suit land) as exclusive lessee. Defendant/respondent Shanti Devi was widow of Nand Kishore who is the deceased brother of Richhpal and the plaintiff herein. She had purchased the entire 37 Kanal 16 marlas of land from previous owner K.B. Sharma vide sale deed executed and registered on 13.08.1982. Plaintiff claimed that the defendant was living with his brother Richhpal and she through her relatives and henchmen had asked him to surrender his lease hold rights. She threatened that she would otherwise forcibly dispossess him from the suit land. Hence, the plaintiff prayed for declaration that he is a lessee in possession of the suit land and entitled to a consequential relief of permanent injunction restraining the defendant/respondent from interfering in his possession in any manner whatsoever. 3. Upon notice, defendant/respondent filed written statement taking plea that the lease deed was a bogus and sham transaction, which the plaintiff and his brother Richhpal in collusion with previous owner K.B. Sharma had executed to defraud her. She claimed herself to be owner of the suit land on the basis of the sale deed dated 13.08.1982. 3. Upon notice, defendant/respondent filed written statement taking plea that the lease deed was a bogus and sham transaction, which the plaintiff and his brother Richhpal in collusion with previous owner K.B. Sharma had executed to defraud her. She claimed herself to be owner of the suit land on the basis of the sale deed dated 13.08.1982. She has further averred that she is an illiterate widow and was incapable to look after and manage her property. She had, therefore, executed a general power of attorney in favour of her Devar(husband’s brother) Richhpal who, however, dishonestly used the said GPA to transfer 19 Kanal 17 marlas of suit land to his son Sameer through Sale deed dated 30.09.1994. She claimed her possession over the suit land and alleged that plaintiff/appellant has never been in possession thereof. Accordingly she prayed for dismissal of the suit. 4. From the pleadings of the parties issues were framed. Both the sides led their respective evidence in support of their claims. After appreciating the evidence of both the sides, the trial Court decreed the suit in favour of the plaintiff/appellant vide judgment and decree dated 26.11.2007. Aggrieved against the same defendant filed an appeal which was partly allowed in his favour whereby the settled possession of the plaintiff was observed to have been proved but the lease in favour of the plaintiff was held to be defective due to non signing of the document by the lessee. Hence the lease deed was held to have not been properly executed and the same could not confer lease rights on the plaintiff. Thus the findings of the learned trial Court on issue no.1 were reversed by holding that plaintiff cannot be deemed to be a lessee in the suit land on the basis of the lease. Hence the present second appeal. 5. I have heard learned Counsel for both the parties and have gone through the case file very carefully. 6. Learned Counsel for the plaintiff/appellant has contended that the learned lower Appellate Court has committed grave error by reversing the findings on Issue no.1 given by the learned trial Court in view of the settled position of law as envisaged by the Hon’ble Supreme Court in 1998 (7) Supreme Court Cases 602 titled as Rajender Pratap Singh Vs. Rameshwar Prasad. Learned Counsel for the plaintiff/appellant has contended that the learned lower Appellate Court has committed grave error by reversing the findings on Issue no.1 given by the learned trial Court in view of the settled position of law as envisaged by the Hon’ble Supreme Court in 1998 (7) Supreme Court Cases 602 titled as Rajender Pratap Singh Vs. Rameshwar Prasad. It was further submitted that in the third para of Section 107 of the Transfer of Property Act, there is no stipulation that the instrument must be signed by both the parties. What is underlined in it is that the creation of a lease is not a unilateral exercise of one of the parties but a bilateral endeavour of both the lessor and the lessee. Thus it was submitted that the non signing of document by lessee would not make a registered lease deed to be a null and void document. 7. Per contra the learned Counsel for the defendant/respondent has vehemently argued that the fraud is writ large on the face of the record. It was submitted that the parties are related to each other and the sale deed is thumb marked by the lady who is illiterate and she has alleged that she is illiterate and Parda Nashin lady. It is apparent on the face of record that her Devar Richhpal Singh has committed fraud upon her. It was further submitted that the lease deed and sale deed were registered on the same day i.e. 13.08.1982. The lease deed is not signed by the lady and that the execution has to be by both the parties by agreeing to the terms and conditions. The lease deed is in favour of two persons i.e. Tej Pal and Richhpal and thus they were in a position to dominate her understanding and hence the lease is liable to be ignored and set aside. 8. It was further argued that Richhpal is the beneficiary but still he himself states that the sale deed is bogus one. Lease Deed is of 99 years and it is for a meager amount of Rs.500/- per year. 8. It was further argued that Richhpal is the beneficiary but still he himself states that the sale deed is bogus one. Lease Deed is of 99 years and it is for a meager amount of Rs.500/- per year. It has been argued that in written statement the plea has been taken that the fraud has been committed and there is nothing on record to show that he has ever paid Rs.500/- to the lessor rather the plaintiff has stated in the plaintiff that he is prepared to pay. Lease deed was a bogus document and the same is not a genuine document and never intended to be acted upon. It is a bogus document to defeat the right of preemption. Finally the counsel concluded his argument by stating that it is Richhpal who has defrauded the lady of her rightful claim. In support of his contentions the learned counsel for the defendant/respondent has relied upon 1993 PLJ 675 Smt. Surjo Devi Vs. M/s Arvind Overseas Project Services Pvt. Ltd., 1984 PLJ 511 Umrao Vs. Smt. Nihali & Ors. & 2010(3) SCC 251 Santosh Vs. Jagat Ram & Anr. 9. After hearing learned Counsel for both the parties, in my considered opinion the foremost question that needs to be decided is qua issue no.1 which is reproduced herein below:- 1. Whether the plaintiff along with Richhpal is lessee in the suit land under the defendant?OPP. 10. A bare perusal of Section 107 of Transfer of Property Act would make it clear that the third paragraph of Section 107 of Transfer of Property Act (hereinafter referred to as the Act) requires only that the execution of the lease through a registered instrument shall be a joint endeavour of both the lessor and lessee. The reason for introducing the said paragraph by the Transfer of Property (Amendment) Act, 1929 in the said section was to settle the conflict of opinion expressed by different High Courts regarding the validity of the lease made through a rent note signed by the lessee alone. The third paragraph of Section 107 of the Act nowhere stipulates that the instrument must be signed by both the parties. What has been underlined in it is that the creation of a lease is not a unilateral exercise of one of the parties but a bilateral endeavour of both the lessor and the lessee. The third paragraph of Section 107 of the Act nowhere stipulates that the instrument must be signed by both the parties. What has been underlined in it is that the creation of a lease is not a unilateral exercise of one of the parties but a bilateral endeavour of both the lessor and the lessee. An instrument is usually executed through multifarious steps of different sequences. At the first instance, the parties might deliberate upon the terms and reach an agreement. Next, the terms so agreed upon would be reduced to writing. Sometimes one party alone would affix the signature on it and deliver it to the other party. Sometimes both parties would affix their signatures on the instrument. If the document is required by law to be registered, both parties can be involved in the process without perhaps obtaining the signatures of one of them. If an instrument is signed by only one party, it does not mean that both the parties have not executed it together. Whether both the parties have executed the instrument will be a question of fact to be determined on evidence if such a determination is warranted from the pleadings of the suit. Merely because the document shows only the signature of one of the parties, it is not enough to conclude that the non signing party has not joined in the execution of the instrument, it has been so held in the cited judgment of the Hon’ble Supreme Court in Rajender Pratap’s case (supra). 11. Now, in the case in hand it is not in dispute that the sale deed in favour of the defendant-Smt. Shanti Devi was executed and registered in the presence of defendant and she along with K.B. Sharma, Vendor had thumb marked upon the endorsement of the sale deed. In the sale deed Ex.P-2, it has been recited that the land being transferred through this sale deed to the vendee is already on 99 year lease in the name of Sh. Tej Pal and Sh. Richhpal and the possession of land is already with the lessee. The attesting witnesses of the lease deed Ex.P-1 and sale deed Ex.P-2 Sunder Singh Baba was examined as PW-2. He specifically stated that Shanti Devi appeared before the Registrar on 13.08.1982. Tej Pal and Sh. Richhpal and the possession of land is already with the lessee. The attesting witnesses of the lease deed Ex.P-1 and sale deed Ex.P-2 Sunder Singh Baba was examined as PW-2. He specifically stated that Shanti Devi appeared before the Registrar on 13.08.1982. The Registrar read over and explained the contents of the sale deed to K.B. Sharma and defendant and after accepting the contents to be true K.B. Sharma signed upon the endorsement of the lease deed and Shanti Devi thumb marked the same in the presence of Registrar. He also testified that Shanti Devi was told that only ownership rights are being sold to her as the land is already on lease for 99 years with Tejpal and Richhpal. This witness also identified his signatures on Sale deed Ex.P-2. The defendant Shanti Devi when appeared as DW-1, also admitted in her cross examination that in Delhi, she had rightly got written and executed the sale deed. She also stated that she did not know whether the land in dispute was taken on lease by Tejpal and Richhpal. She further stated in her cross examination that she did not know whether names of Tejpal and Richhpal are incorporated in the revenue records as Pattedar. She has not uttered even a single word that lease deed was executed on the basis of fraud played upon her by Tejpal and Richhpal. In her cross examination she has further stated that she has been residing with Richhpal since when her husband expired about 35-40 years ago. Moreover, she also admitted in her cross examination that she had full faith in Richhpal and still she is residing with Richhpal. Thus, when there is a clear reference of the lease deed in the sale deed in which it has been specifically recited that the possession of land under sale is already with the lessee(plaintiff-Tejpal & Richhpal) and defendant in her cross examination as DW-1 has admitted the proper execution of the sale deed Ex.P-2, it does not lie in her mouth to say that the said lease deed Ex.P-1 is a sham and a bogus document. Even further, the whole revenue record pertaining to the land in dispute also shows the land to be in possession of Pattedar. Even further, the whole revenue record pertaining to the land in dispute also shows the land to be in possession of Pattedar. Here it is also pertinent to mention that the land in dispute is an agricultural land as is evident from the Jamabandi entries Ex.P-15 & Ex.P-16 whereby the nature of the land has been mentioned as “Chahi”. 12. Hence, in view of the above, in my considered opinion, issue no.1 has been rightly decided in favour of the plaintiff/appellant by the learned trial Court whereas the finding returned by the learned lower Appellate Court qua issue no.1 is hereby reversed and thus the findings given by the learned trial Court are hereby affirmed. 13. As far as the contention of the learned Counsel for the respondent qua the fraud having been played upon her is of no consequence at all because both the courts below have categorically held that the defendant has miserably failed to prove the fraud that was played upon her. Infact bare perusal of the examination in chief tendered by her by way of an affidavit Ex.DW-1/A would show that she had not made even a bald assertion that the contents of the sale deed were not read over to her. Further in her cross examination she has admitted that she is residing with Richhpal and has full confidence in him. She further admitted that she in the year 1989 had executed a GPA Ex.P-6 in favour of Richhpal and the latter on its basis, had sold her land in favour of his son Sameer vide sale deed Ex.P-7. There is no material on record to indicate that the defendant had ever initiated any action against Richhpal or his son Sameer to have the sale deed cancelled or be declared null and void. This conduct in the year 1989 to wards Richhpal and his son was not expected from her if Richhpal along with plaintiff had defrauded her in the year 1989 in securing the impugned lease deed. Infact when the attesting witness of the sale deed as well as the lease deed Surender PW-2 was cross examined there was not even a single assertion/suggestion challenging that the sale deed was never read over to her or the defendant was never told that the land is on lease of 99 years. Infact when the attesting witness of the sale deed as well as the lease deed Surender PW-2 was cross examined there was not even a single assertion/suggestion challenging that the sale deed was never read over to her or the defendant was never told that the land is on lease of 99 years. The defendant has miserably failed to prove that plaintiff Tejpal was ever in position to dominate the Will of the defendant. Both the courts below have categorically held the possession of the plaintiff over the suit property has been duly incorporated in the revenue records as lessee and thus the possession has been duly proved by him. There is nothing on record which has been brought forth by the learned Counsel for the respondent to negate the said plea. The judgments relied upon by the learned Counsel for the respondent are on a separate footings and do not apply to the facts and circumstances of the case in hand. The judgment Umrao Vs. Smt. Nihali (supra) was dealing with the question whereby a preemptor had filed a suit challenging the transaction between the vendor and the vendee by executing a lease as well as a sale in favour of the vendee, and in view of the facts of that case it was held by the Hon’ble Division Bench of this Court that the transaction was a sham and bogus one. Thus the said authority is not applicable to the facts and circumstances of the case in hand. The second authority relied upon by the learned Counsel for the defendant/respondent titled Surjo Devi (supra) is also peculiar to its own facts and circumstances and it dealt primarily with the question of interference of this court as per the provisions of Section 100 of the CPC. Thus this authority is distinguishable on the facts and circumstances of the case in hand. Finally the citation of Santosh (supra) is again not applicable to the present case in hand especially when the defendant has failed to prove the fraud that she alleges to have been played upon her. 14. In view of the foregoing discussion the present regular second appeal is allowed and the judgment and decreed passed by the learned lower Appellate Court dated 29.04.2009 is hereby set aside and the judgment and decree passed by the learned trial Court dated 26.11.2007 is hereby affirmed. ---------0.B.S.0------------