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2013 DIGILAW 1654 (PNJ)

Jafruddin v. Mohd. Sharukh Khan

2013-12-11

MAHAVIR S.CHAUHAN

body2013
JUDGMENT Mr. Mahavir S. Chauhan, J.: (Oral) - Abdul Rajak, who was owner and in possession of the land in suit sold it to the appellant vide sale deed dated 29.11.1999 (Exhibit P-1/A) for a consideration of Rs.32,000/-. To seek a declaration that aforesaid sale deed was a nullity, respondents brought civil suit No.271 of 1999 alleging that the property in the hands of Abdul Rajak was ancestral and as per custom prevalent in the society of the respondents sale of such property, except for legal necessity, was not permitted. The suit was contested by the appellant by filing a written statement wherein, besides pleading various legal objections, it was denied that that the property in suit could not be sold by Abdul Rajak and that the sale was not for legal necessity. 2. After replication was filed, court of Civil Judge (Jr.Divn.), Nuh (in short - ‘the trial Court’) appraised the pleadings of the parties and framed the following issues:- “i) Whether the plaintiff is entitled to the declaration sought? OPP ii) Whether the plaintiff is entitled to the permanent injunction sought? OPP iii) Whether the suit of the plaintiff is not maintainable in the present form? OPD iv) Whether the plaintiff has no cause of action and locus standi to file the present suit? OPD v) Whether the plaintiff has concealed true and material facts from the court and its effect? OPD vi) Whether the answering defendant No.1 is a bona fide purchaser and its effect? OPD No.1. vii) Relief.” 3. After conclusion of evidence on both the sides, learned trial Court appreciated the same along with the pleadings of the parties in light of the submissions made at bar and came to a conclusion that the respondents could not prove that there was a custom prevalent in the society of the respondents prohibiting sale of ancestral property except for legal necessity and that the sale was not for legal necessity. Accordingly, vide judgment and decree dated 24.1.2002, suit of the respondents was dismissed with no order as to costs. 4. Accordingly, vide judgment and decree dated 24.1.2002, suit of the respondents was dismissed with no order as to costs. 4. The unsuccessful plaintiffs (respondents No.1 and 2 herein) assailed the judgment and decree dated 24.1.2002 by way of Civil Appeal No.134 of 2002/2003 which, after contest, was allowed, suit of the respondents was decreed and sale deed dated 29.11.1999 (Exhibit P-1/A) was held to be null and void by the court of Additional District Judge (Fast Track Court), Gurgaon (in short - ‘the first appellate Court’) vide judgment and decree dated 31.7.2003. 5. The appellant (vendee) is before this Court by way of this instant Regular Second Appeal with a prayer that judgment and decree dated 31.7.2003 of the first appellate court be set aside and reversed and the judgment and decree dated 24.1.2002 of the learned trial Court be restored. 6. As per the memorandum of appeal, following substantial questions of law are stated to be involved in the appeal:- “i) Whether it can be presumed that a custom regarding alienation of land prevails in Meo Community without leading any cogent & reliable evidence? ii) Whether the land can be held as ancestral property without proving that the same has come from common ancestral. iii) Whether the vendee is bound to prove that the sale consideration was utilize for the ostensible purpose of alienation?” 7. As nobody appears on behalf of the respondents, I have heard Mr. Sudhir Aggarwal, Advocate for the appellant and have perused the record. 8. It is vehemently argued on behalf of the appellant that the respondents have failed to bring any evidence, whatsoever, to show that there was a custom prevailing in the society of the respondents prohibiting Abdul Rajak from selling the property in dispute and that the sale was not for legal necessity. 9. In view of the submissions made on behalf of the appellant, the only substantial question of law that, in my view, is involved in the appeal can be described as under:- “Whether the judgment and decree dated 31.7.2003 passed by the learned first appellate Court are perverse and based on misreading of evidence?” 10. Execution of sale deed 29.11.1999 (Exhibit P-1/A) and character of the suit property being ancestral in the hands of Abdul Rajak are not disputed. 11. It is specifically stated in the sale deed (Exhibit P-1/A) that Abdul Rajak was in dire need of money. Execution of sale deed 29.11.1999 (Exhibit P-1/A) and character of the suit property being ancestral in the hands of Abdul Rajak are not disputed. 11. It is specifically stated in the sale deed (Exhibit P-1/A) that Abdul Rajak was in dire need of money. The case of the respondents in its entirety is that there is a custom prevailing in the society of the respondents prohibiting sale of ancestral agricultural land except for legal necessity. That being so, the contesting respondents were required to bring cogent and convincing evidence to show that sale of the property in dispute by Abdul Rajak was prohibiting by a custom prevalent in their society and that the sale was not for legal necessity. However, the only evidence brought on record on behalf of the contesting respondents is the deposition of Hazra (PW-1). A perusal of deposition of PW-1 would show that she has not stated even a single word to say that a custom is prevalent in the society of the respondents prohibiting such a sale or that the transaction was entered into by Abdul Rajak without legal necessity. That being so, the finding recorded by the learned trial court against the plea of the respondents could not be reversed by learned first appellate Court without sufficient and valid reasons. A glance cross judgment of the first appellate court reveals that it is based on the bad habits which Abdul Rajak was statedly suffering from. The learned first appellate Court referred to the fact that part of sale consideration was paid before and part thereof after execution of the sale deed and based thereupon has presumed that payment of sale consideration in two parts goes to show that the money was not required by Abdul Rajak for raising construction of a house. The observation in my considered view is beyond evidence available on record. Learned counsel for the appellant has drawn my attention to judgment of this Court in case titled as Ram Lal Vs. Som Nath, 1999 Vol.II RRR, 324, decided on 19.3.1982 wherein it has been held that a vendee cannot be excepted to ensure that the sale consideration received by the vendor is utilized by him for the purpose it is stated to be needed by him in the sale deed. 12. Som Nath, 1999 Vol.II RRR, 324, decided on 19.3.1982 wherein it has been held that a vendee cannot be excepted to ensure that the sale consideration received by the vendor is utilized by him for the purpose it is stated to be needed by him in the sale deed. 12. Be that as it may, it was for the plaintiffs-respondents to show that either the sale was prohibited by a custom or it was not for legal necessity. As aforesaid, except for examining Hazra, PW-1, the respondents have not examined any witness from the village or the community to show prevalence of a custom in the society of the respondents prohibiting sale of ancestral agricultural land except for legal necessity. Even if it is accepted, though arguendo, that a custom was prevalent in the society of the respondents prohibiting such a sale, the respondents were required to show that the sale was not for legal necessity but even that aspect of the matter has remained unsubstantiated. The only witness examined on behalf of the respondents namely Hazra, PW-1, has felt satisfied only by saying that there was dire need of money by Abdul Rajak. Beyond this, she has stated nothing to suggest that Abdul Rajak sold the property to satisfy his addiction to gambling or alcohol. 13. That being the situation, the finding recorded by the first appellate court cannot be allowed to sustain. 14. In the consequence, the question posed hereinbefore is answered by holding that the judgment and decree dated 31.7.2003 passed by the learned first appellate court are not only based on misreading of evidence but are also perverse. In consequence, the appeal succeeds; judgment and decree dated 31.7.2003 of the appellate Court are set aside and the judgment and decree dated 24.1.2002 of the learned trial Court are restored. 15. No costs.