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2013 DIGILAW 71 (CHH)

ISHWAR PRASAD v. KASHI PRASAD

2013-02-26

N.K.AGARWAL

body2013
JUDGMENT 1. The plaintiff-Ishwar Prasad executed a registered sale deed in favour of respondent No.4 - Sitambar on 26.03.1983 with regard to suit land bearing Kh.No.970, 977 and 1046 total area 3.65 acres of land situated in village Bhatgaon, Tahsil and District Bilaspur. 2. Respondent No.4 got his name mutated in revenue record and sold the same to Respondents No.1 to 3, vide registered sale deed dated 10.03.1986. Thereafter, names of Respondents No.1 to 3 was mutated in revenue records. 3. As per recital of sale deed (Ex.D.1), the possession of the suit land was delivered by the plaintiff to defendant - Sitambar. 4. Plaintiff filed a suit on 15.07.1986 claiming relief of declaration of title and possession, inter alia, on the ground, he has taken loan of Rs.7,000/- from respondent No.4 - Sitambar, who got executed a nominal sale deed from the plaintiff in security of loan with an assurance that the sale deed will not be acted upon as a sale and possession of the suit land would remain with the plaintiff. However, behind back of the plaintiff, respondent No.4 got his name mutated in revenue records and sold the suit land vide sale deed dated 10.03.1986 to respondents No.1 to 3. Respondents No.1 to 3 managed to get the land recorded in their name and on 15.06.1986 they dispossessed the plaintiff. It was further case of the plaintiff that on the date of execution of sale deed (Ex.D.1), the value of the land was Rs. 18,000/- and not Rs.7,000/-. 5. The claim was denied by the respondent. 6. The trial Court, vide judgment and decree dated 24.01.1991 decreed the plaintiff's suit. However, the first appeal preferred by the respondents was allowed and the suit was dismissed. Hence, this second appeal. 7. This Court, vide order dated 21.2.1997 admitted the appeal on the following substantial question of law: "Whether on the facts and in the circumstances of the case, the sale-deed dated 26/3/83 was sham and bogus and was executed as security towards the loan taken by the appellant and did not confer any title on the respondent/defendants?" 8. I have heard learned counsel for the parties and perused the records of both the Courts below. 9. I have heard learned counsel for the parties and perused the records of both the Courts below. 9. True, the plaintiff was entitled to adduce evidence to show that the sale deed was not intended to be acted upon and the real nature of the transaction was that it was merely a loan and Section 92 of the Evidence Act, 1872, does not preclude a party from showing that the writing is not really a contract between the parties but was only fictitious or colourable device, which cloaked something else and oral evidence is admissible under Section 92 (1) of the Evidence Act, 1872 to prove that the document though executed, was not intended to be acted upon and that it was a sham document executed only as a collateral security. 10. However, on any such plea being taken by a party, it is required to be proved that in fact, the document was signed with the express intention that it should not be acted upon and such a plea should be accepted only with great caution, for, a registered document is obtained with the intention that it represents a bona fide transaction and is intended to be acted upon and it would be valueless if it can be gone behind in every case by mere assertion that which was stated at the time before the Registrar was untrue. The onus in such a case would be clearly on the defendant. 11. Now, I shall examine whether the evidence adduced by the plaintiff proves the sale deed dated 26.03.1983 to be nominal. 12. The plaintiff examined Latel Ram as P.W.3, who was attesting witness to the sale deed (Ex.D.1). As per his statement para - 4, Sitambar, in the presence of Ishwar Prasad, informed him about the purchase of land from Iswhar Prasad for a sale consideration of Rs. 7,000/- and asked for his signature, and therefore, he signed the sale deed as attesting witness. Shiv Bharti, the another witness, had also signed the sale deed. 13. The other witness Shiv Bharti, examined by the respondents, had also stated that he was informed by Sitambar as well as by Ishwar Prasad about the purchase and sale of the land for a sale consideration of Rs.7,000/-, and therefore, he signed the sale deed as witness. Shiv Bharti, the another witness, had also signed the sale deed. 13. The other witness Shiv Bharti, examined by the respondents, had also stated that he was informed by Sitambar as well as by Ishwar Prasad about the purchase and sale of the land for a sale consideration of Rs.7,000/-, and therefore, he signed the sale deed as witness. He has further deposed that in their village, there is no custom to execute the sale deed (Ex.D.1) in security of loan. 14. As per the recital of the sale deed (Ex.D.1), the possession of the suit land has been delivered by the plaintiff in favour of purchaser - Sitambar. Regarding delivery of possession at the time of sale, in his statement of para-6, P.W.4 Ishwar Prasad has deposed that on his instructions, the recital of the sale deed (Ex.D.1) with regard to delivery of possession to Sitambar was written. 15. Admittedly, after execution of the sale deed (Ex.D.1), the land was mutated in favour of respondent No.4 and after its purchase by respondents No.1 to 3, their names were mutated. There is nothing on record to show that even after execution of sale deed, the plaintiff remained in possession of the suit land and only he was dispossessed by respondents No.1 to 3 on 15.06.1986. Therefore, on the face, the plaintiff failed to establish that the sale deed (Ex.D.1) was a sham and was a nominal document and was never intended to be acted upon. 16. A bare perusal of the judgment of the trial Court would reveal, the trial Court, without discussing and appreciating the evidence in its proper perspective and ignoring the material piece of evidence, as mentioned herein above, has granted a decree in plaintiff's favour. The first appellate Court, after re-appreciating the evidence and also after meeting the reasons given by the trial Court, has reversed the finding and allowed the appeal while dismissing the suit. 17. For the foregoing, I do not find any infirmity, absurdity and perversity in the reversal finding recorded by the first appellate Court. In my opinion, the plaintiff-could not prove the sale deed (Ex.D.1) as nominal one. Substantial question of law framed is answered accordingly in favour of the respondents. 18. In view of above, the appeal fails and is hereby dismissed. 19. No order as to costs. 20. A decree be drawn accordingly. Appeal Dismissed.