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2013 DIGILAW 918 (MP)

Ramdevi Bai (dead thr. L. Rs. ) v. Kanak Singh (dead thr. L. Rs. )

2013-08-06

ALOK ARADHE

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JUDGMENT Alok Aradhe, J. 1. This appeal is by the defendants, which was admitted by a Bench of this Court on the following substantial questions of law:-- (1) Whether the finding of the First Appellate Court reversing the finding of the Trial Court that registered sale-deeds, dated 20-2-1986 (Exhs. P-1 and P-2) were obtained by fraud by the plaintiff, is highly perverse and unreasonable? (2) Whether the two registered sale-deeds mentioned above were obtained by the plaintiffs from Smt. Ramdevi Bai by exercising undue influence and fraud and these were sham and bogus documents? The facts, giving rise to filing of the appeal, briefly stated, are that the plaintiffs who are related to each other as husband and wife, filed the suit inter alia on the ground that the defendants are the members of their family. However, the partition had taken place amongst them about forty to forty-five years ago. It was further pleaded that the defendant No. 1, vide registered sale-deeds, dated 20-2-1986 (Exhs. P-1 and P-2) sold the suit lands for consideration of Rs. 10,000/- and Rs. 30,000/- respectively to the plaintiffs and handed over the possession of the suit lands. On the basis of the aforesaid sale-deeds, the names of the plaintiffs were recorded in the revenue record by Tehsildar vide order dated 19-7-1988. However, on 13-6-1993, the defendants threatened the plaintiffs with dispossession. Accordingly, the plaintiffs filed a suit seeking injunction. However, after dismissal of the application for grant of temporary injunction, the defendants forcibly took over the possession of the suit lands. Thereafter, by way of amendment, the plaintiffs incorporated the relief of declaration of title, possession and mesne profit. 2. The defendants filed the written statement in which execution of the sale-deeds dated 20-2-1986 was denied and it was pointed out that the defendant No. 1 had leased out the land in the year 1984-85 to the plaintiff No. 2. However, the plaintiff No. 2 fraudulently got the thumb impression of the defendant No. 1 on the sale-deeds on the pretext that the documents pertain to lease. It was further pleaded that the sale-deeds (Exhs. P-1 and P-2) are forged documents and the order of mutation in favour of the plaintiffs has been set aside by the Sub-Divisional Officer and the defendant No. 1 is in possession of the suit lands as owner thereof. 3. It was further pleaded that the sale-deeds (Exhs. P-1 and P-2) are forged documents and the order of mutation in favour of the plaintiffs has been set aside by the Sub-Divisional Officer and the defendant No. 1 is in possession of the suit lands as owner thereof. 3. The Trial Court vide judgment and decree dated 20-1-2000 inter alia held that though the defendant No. 1 has admitted her thumb impression on the documents (Exhs. P-1 and P-2) yet she had stated in her evidence that she put her thumb impression on the documents under impression that the said documents pertain to lease. It was further held that the burden was on the plaintiffs to prove the execution of the sale-deeds, i.e., Exhs. P-1 and P-2, however, the plaintiffs failed to discharge the same. The Trial Court also held that the witnesses to the sale-deeds, namely, Genda Lal and Nand Kishore were not examined as they are sons of the plaintiffs and since the documents (Exhs. P-1 and P-2) are ab initio void, therefore, it is not necessary for the defendant No. 1 to seek cancellation of the same. It was also found that the defendants were in possession of the suit lands since 1987 and, therefore, no injunction can be granted in favour of the plaintiffs; Accordingly, the suit filed by the plaintiffs was dismissed. 4. The Lower Appellate Court vide judgment and decree dated 7-12-2000 inter alia, held that the sale-deeds (Exhs. P-1 and P-2) are registered documents. The defendant No. 1 admitted her thumb impression on the aforesaid documents and the burden to prove the plea of fraud is on the person who pleads the same. It was further held that though the defendant No. 1 had initially filed the suit seeking cancellation of the documents (Exhs. P-1 and P-2) however, the aforesaid suit was dismissed by the Trial Court on the ground that the reliefs claimed in the suit are beyond pecuniary jurisdiction of the Trial Court. Thereafter, the defendant No. 1 did not initiate any proceeding for cancellation of the sale-deeds. It was also held that the documents (Exhs. P-1 and P-2) are in existence and, therefore, they cannot be treated as null and void and on the strength of the sale-deeds the plaintiffs are the owners of the suit lands. Thereafter, the defendant No. 1 did not initiate any proceeding for cancellation of the sale-deeds. It was also held that the documents (Exhs. P-1 and P-2) are in existence and, therefore, they cannot be treated as null and void and on the strength of the sale-deeds the plaintiffs are the owners of the suit lands. The Lower Appellate Court further found that the land admeasuring 2.5 acres of Khasra Number 165 was acquitted and, therefore, no injunction in respect of the same can be granted. It was further held that the defendant No. 1 was placed in possession of the suit lands sometime in September, 1993. Accordingly, the claim of the plaintiffs for declaration in respect of lands admeasuring 4.77 hectares, 1.80 hectares, 0.05 hectare and 0.06 hectare bearing Khasra Numbers 112/1, 112/1, 113 and 189 respectively situate at Village Cheech, Tehsil Harsud, District Khandwa was decreed and the defendants were directed to pay the mesne profit at the rate of Rs. 3,000/- per annum from the date of institution of the suit till delivery of possession. 5. Learned Counsel for the appellants submitted that the Lower Appellate Court grossly erred in reversing the well-reasoned judgment and decree passed by the Trial Court. It is further submitted that the Lower Appellate Court reversed the findings recorded by the Trial Court only on the ground that the defendant No. 1 has admitted her thumb impression on the documents (Exhs. P-1 and P-2) and the documents in question are registered documents. It is also submitted that the plaintiff No. 2 was enjoying the good faith and confidence of the defendant No. 1 and, therefore, the burden was on the plaintiffs to prove due execution of the documents (Exhs. P-1 and P-2), which they failed to discharge. It was further urged that the sale consideration was not paid before the Registrar which renders the payment of the sale consideration doubtful. It is also contended that neither any attesting witness nor the scribe to the documents (Exhs. P-1 and P-2) was examined. In support of his submissions, learned Counsel for the appellants has placed reliance on the decisions in Padam Singh Vs. M/s. Nemichand Khemchand, 1994 (II) MPWN-SN 187 and Sirmul Vs. Smt. Annapurna Devi Ravi Kumar Awasthy, (2001) 2 MPLJ 339 . 6. P-1 and P-2) was examined. In support of his submissions, learned Counsel for the appellants has placed reliance on the decisions in Padam Singh Vs. M/s. Nemichand Khemchand, 1994 (II) MPWN-SN 187 and Sirmul Vs. Smt. Annapurna Devi Ravi Kumar Awasthy, (2001) 2 MPLJ 339 . 6. On the other hand, learned Counsel for the respondents submitted that the defendant No. 1 had previously filed the suit for cancellation of the sale-deeds (Exhs. P-1 and P-2). However, the same was dismissed on the ground that the Trial Court had no pecuniary jurisdiction. Thereafter, neither any action for cancellation of the sale-deeds in question was taken by the defendant No. 1 nor any counterclaim was filed. It is further submitted that the defendant No. 1 is a literate woman and, therefore, it cannot be inferred that she signed the document without even reading the same. It was also urged that the Lower Appellate Court has assigned valid and cogent reasons for setting aside the findings recorded by the Trial Court and in fact the burden was on the defendant No. 1 to prove that the sale-deeds (Exhs. P-1 and P-2) were got executed fraudulently. 7. I have considered the submissions made by learned Counsel for the parties and have perused the records. Before proceeding to answer the substantial questions of law, it is appropriate to notice relevant legal principles, which are necessary to be reiterated for enabling this Court to answer substantial questions of law involved in the appeal. An admission is the best piece of evidence that a party can rely upon, and though not conclusive, is decisive of the matter, unless successfully withdrawn or proved erroneous. [Narayan Bhagwant Gosavi Balajiwale Vs. Gopal Vinayak Gosavi and others, AIR 1960 SC 100 ]. It is equally well-settled legal proposition that an admission of a document is admission of the facts contained in the document [See: Sitaram Motilal Kalal Vs. Santanuprasad Jaishanker Bhatt, AIR 1966 SC 1697 ]. In Hemraj Marwari Vs. Trimbak Kunbi, AIR 1924 Nag 146, it has been held that it is the intention of the parties, which has to be looked into to decide whether the sale-deed operates as a transfer of interest from the vendor to the vendee and burden of proving that it was not so intended is on the party who asserts this fact. Trimbak Kunbi, AIR 1924 Nag 146, it has been held that it is the intention of the parties, which has to be looked into to decide whether the sale-deed operates as a transfer of interest from the vendor to the vendee and burden of proving that it was not so intended is on the party who asserts this fact. Similar view has been expressed by a Division Bench of this Court in Sukaloo Basari Satnami and another Vs. Punau Bodhan Satnami, AIR 1960 MPLJ 1326 . In Chandra Kumar Vs. Narpat Singh, ILR 29 All. 184 (PC), it has been held that where vendor receives full consideration under the sale-deed and subsequently, denies the receipt of full consideration, the burden lies heavily on him to explain his admission and to prove non-receipt of consideration. Similar view has been taken in Pandit Ramjilal Tiwari Vs. Vijay Kumar and others, 1970 MPLJ 50 . 8. After having noticed the relevant legal propositions, the question that survives for consideration is whether the defendant No. 1 has been able to discharge the burden that there was no intention to transfer the suit lands to the plaintiffs. The sale-deeds (Exhs. P-1 and P-2) are registered documents. The defendant No. 1 has admitted her thumb impression on the sale-deeds. The sale-deeds also contain recital with regard to payment of consideration. Thus, the execution of the sale-deeds is established beyond any iota of doubt. The defendant No. 1, who has been examined D.W. 1 in her evidence in Paragraph 5 stated that she signs a document and does not put the thumb impression. In Paragraph 7 of her evidence, she has further admitted that no threat was given by the plaintiffs when she put the thumb impression on the documents (Exhs. P-1 and P-2). However, she has merely stated that the plaintiffs had played fraud on her. In Paragraph 12, she stated that previously she had filed the suit to set aside the sale-deeds, which was dismissed. It is pertinent to mention here that though the defendant No. 1 had previously filed the suit seeking cancellation of the sale-deeds (Exhs. P-1 and P-2) however, even after dismissal of the same on the ground that the Trial Court has no pecuniary jurisdiction to try the claim of the defendant No. 1, she did not initiate any action for cancellation of the sale-deeds. P-1 and P-2) however, even after dismissal of the same on the ground that the Trial Court has no pecuniary jurisdiction to try the claim of the defendant No. 1, she did not initiate any action for cancellation of the sale-deeds. From close scrutiny of the statement of defendant witness No. 1, it is pertinent to mention here that in her evidence, the defendant No. 1 had nowhere stated that the plaintiffs got her thumb impression on the sale-deeds on the pretext that the documents in question, namely, Exhs. P-1 and P-2 pertain to lease. Thus, from the narration of the facts, it is graphically clear that the defendant No. 1 failed to discharge the burden to prove that by execution of Exhs. P-4 and P-2, she did not intend to convey the suit lands to the plaintiffs. For the aforementioned reasons, the substantial questions of law framed by this Court are answered in the negative and against the appellants. In the result, the appeal fails and is hereby dismissed. However, there shall be no order as to costs.