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2014 DIGILAW 1274 (ALL)

Kokila Devi v. Lallan Babu

2014-04-21

PANKAJ NAQVI

body2014
JUDGMENT Pankaj Naqvi,J.: - Heard Sri S.C. Tiwari, learned counsel for appellants and Sri S.D. Yadav, learned counsel for respondents on the admission of appeal. 2. This second appeal has been preferred by defendants, challenging the judgment and decree of the courts below decreeing the suit for cancellation of sale deed filed by plaintiff-respondent. 3. For the sake of convenience, parties shall be referred as they were described in trial court, i.e., as plaintiff / defendant, unless specified otherwise. 4. Lallan Babu and Rajesh Singh, plaintiffs alleged that their father Deshraj, 82 years old, was not mentally sound; taking advantage of said fact, their brother Santosh Kumar (defendant-appellant no. 3) and his wife Smt. Kokila Devi (defendant-appellant no. 1) got executed registered sale deed dated 24.7.2004 from their father Deshraj in favour of their minor children Shailendra Kumar and Shivendra Kumar of plot no. 138 (area-0.398 hectares) and another sale deed dated 23.12.2009 in favour of defendant-appellant nos. 1 & 2 of plot no. 69 (area-1.735 hectares). It was alleged that in both sale deeds, no sale consideration ever passed and that the land in dispute was ancestral and the same was not the self-acquired property of defendant no. 4 (since deceased). Thus, the plaintiffs filed suit for cancellation of registered sale deeds dated 24.7.2014 and 23.12.2009. The suit was contested by defendant nos. 1, 2, 3 & 5 on the ground that under the registered sale deed dated 23.12.2009 after receiving sale consideration of Rs.2,50,000/-, same was executed in favour of defendant nos. 1 & 2, whereas sale deed dated 24.7.2004 was also executed by defendant no. 5 in favour children of defendant no. 1 & 2, i.e., Shailendra and Shivendra after receiving a sale consideration of Rs.1,00,000/- and since the date of execution of sale deeds, purchasers are in possession thereof. The defendant no. 4 also filed his written statement and appears to have supported the case of plaintiffs by stating that no sale consideration ever passed under the sale deeds. 5. The plaintiff in support of case, examined PW-1 Lallan Babu, PW-2 Munnu Babu and PW-3 Mohan Singh. Documentary evidence was also filed on their behalf. The defendants examined Santosh Kumar (DW-1), Kokila Devi (DW-2), Awadhesh Kumar (DW-3), Bimla Devi (DW-4), Dinesh Kumar Yadav (DW-5) and they too filed documentary evidence. 5. The plaintiff in support of case, examined PW-1 Lallan Babu, PW-2 Munnu Babu and PW-3 Mohan Singh. Documentary evidence was also filed on their behalf. The defendants examined Santosh Kumar (DW-1), Kokila Devi (DW-2), Awadhesh Kumar (DW-3), Bimla Devi (DW-4), Dinesh Kumar Yadav (DW-5) and they too filed documentary evidence. The trial court after exchange of pleadings and evidence held that in so far sale deed dated 23.12.2009 was concerned, even though sale consideration of Rs.2,50,000/- was mentioned, but as per the endorsement made thereon, a sum of Rs.25,000/- was paid to vendor before the Sub-Registrar, whereas according to recital of sale deed, entire sale consideration of Rs.2,50,000/- was paid at the residence. DW-4 Bimla Devi, purchaser under sale deed dated 23.12.2009, in cross-examination, stated that she along with daughter-in-law paid Rs.1,25,000/- as sale consideration and thereafter stated that Rs.1,25,000/- each has been paid by her and daughter-in-law. However, another purchaser under sale deed dated 23.12.2009, DW-2 Kokila Devi in cross-examination stated that even though her father-in-law was demanding Rs.3,00,000/-, but she only paid Rs.1,25,000/- to which he agreed. Similar statement was also given by DW-1 Santosh Kumar. The trial court was of the view that from the copy of sale deed dated 23.12.2009, it was not evident that both Kokila Devi and Bimla Devi had paid sale consideration. Bimla Devi is none other than wife of deceased-defendant no. 5, who is rural rustic village woman, who stated in her cross-examination that while her husband was alive, she used to stay with him and all her needs were taken care of by him. Moreover Kokila Devi (DW-2) also admitted in cross-examination that she and her husband used to earn Rs.4,000/- to Rs.5,000/- by sale of milk from buffaloes and that they do not have other source of income. The attesting witness of sale deed dated 23.12.2009 also did not lead any evidence as regards payment of sale consideration. As regards sale deed dated 24.7.2004, which was executed in favour of Shailendra and Shivendra, minor children of defendant no.1&2, it was stated by DW-1 Santosh Kumar that sale consideration of Rs.1,00,000/- was arranged by his wife (DW-2) and the same was generated by sale of domestic animals. The defendants did not lead any evidence apart from DW-1 to indicate payment of sale consideration. 6. The defendants did not lead any evidence apart from DW-1 to indicate payment of sale consideration. 6. Thus, on the aforesaid evidence, trial court found that sale consideration did not accompany both the sale deeds dated 23.12.2009 and 24.7.2004, consequently, it decreed the suit for cancellation of said sale deeds. On appeal, the judgment of trial court has been confirmed. 7. Learned counsel for appellant challenged the impugned judgment primarily on three grounds. Firstly, plaintiff no. 2, i.e., Rajesh Singh had not signed the plaint. Secondly, in so far sale deed of 2004 was concerned, the purchasers thereof were not impleaded in the suit, thus no decree could have been passed against them. Thirdly, the suit was not cognizable by the court concerned. 8. The court finds that in so far first plea of appellant is concerned, from a perusal of written statement, it appears that no such plea was ever raised. However, said plea appears to have been pleaded in paragraph 7 of the memo of appeal before the appellate court, but there is nothing on record to indicate that the said plea was ever raised/pressed during the course of arguments. Thus, in the absence of any material to indicate that said plea was raised/pressed before appellate court, this Court is not inclined to enter into that aspect at this stage, as the same is only an irregularity which does not affect the jurisdiction of the court as held in AIR 1931 All 537 (S.B.) (Wali Mohd. Khan v. Isaq Ali Khan). Even otherwise, considering the nature of decree, learned counsel for appellant could not demonstrate as to how would a decree of cancellation of sale deeds passed in favour of plaintiff no. 1, would get affected even if for the sake of arguments, suit is held to be not maintainable qua plaintiff no. 2. Thus, the said submission deserves to be rejected. Coming to the issue of non-impleadment of minor purchasers Shailendra and Shivendra under the registered sale deed of 2004, suffice to state that their parents, i.e., Smt. Kokila Devi (defendant no. 1) and Santosh Kumar (defendant no. 3) were already impleaded, who were not claiming any interest adverse to that of said minors and thus non-impleadment of minor children, did not occasion any prejudice or miscarriage of justice so as to vitiate the decree of cancellation of sale deed. 1) and Santosh Kumar (defendant no. 3) were already impleaded, who were not claiming any interest adverse to that of said minors and thus non-impleadment of minor children, did not occasion any prejudice or miscarriage of justice so as to vitiate the decree of cancellation of sale deed. Moreover, no such plea was ever raised by them in the courts below. Coming to the issue of valuation, the Court finds that appellant would not demonstrate as to how it would affect the merits of the case or the possible prejudice. 9. The Court finds that impugned judgment is based on relevant and admissible evidence to which no perversity could be demonstrated. No substantial questions of law arises. 10. The appeal is dismissed under Order XLI Rule 11 C.P.C. with costs.