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Madhya Pradesh High Court · body

2014 DIGILAW 1475 (MP)

Lalita Bai v. Ajay Pal Singh

2014-11-14

N.K.GUPTA

body2014
Judgment N.K. Gupta, J.:- Heard on admission. The appellants have preferred this second appeal against the judgment and decree dated 23.10.2008 passed by the Additional District Judge, Maihar District Satna in Civil Appeal No.85-A/1998 whereby the judgment and decree dated 30.9.1998 passed by the Civil Judge Class-I, Maihar in Civil Suit No.56-A/1991 was reversed. The trial Court has decreed the suit filed by plaintiff Babulal that the land bearing Survey No.339/2 area 0.73 acres situated at Village Naktara was of deceased plaintiff Babulal and the sale deed executed by the defendant No.1 Bhurelal in favour of the respondent No.1 Ajay Pal Singh was not binding upon the deceased Babulal and the appellants, legal representatives of Babulal. 2. During the pendency of the first appeal, the defendant Bhurelal had expired and his name was deleted. Similarly, plaintiff Babulal had also expired, and therefore his legal representatives (present appellants) were brought on record. 3. Brief facts of the case are that deceased Babulal had filed a civil suit before the trial Court that on 22.1.1981 he had purchased three pieces of land from defendant No.1 Bhurelal by a registered sale deed. There was no dispute relating to remaining two pieces of land, but he had also purchased the land bearing Survey No.339/2 area seven biswa. On 28.4.1981 a mutation was done in favour of the plaintiff. However, due to mistake of Patwari, the name of plaintiff was not mutated on the land bearing Survey No.339/2, but it was mutated on the land bearing Survey No.339/3, which was not the land of the plaintiff. Defendant Bhurelal in connivance with respondent Ajay Pal Singh prepared a fake agreement of sale and executed a sale deed dated 3.9.1991 in the name of Ajay Pal Singh of the suit property though on 3.9.1991 Bhurelal did not have any title on the suit land, that could be sold to Ajay Pal Singh. The possession of the property was with the plaintiff, and therefore he filed a suit for declaration of his title and to declare the sale deed executed by defendant Bhurelal in favour of respondent Ajay Pal Singh as null and void. A relief for perpetual injunction was also sought that no interference be done in the possession of the plaintiff over the suit property. 4. Defendants Bhurelal and Ajay Pal Singh had filed their joint written statement denying the claim of the plaintiff. A relief for perpetual injunction was also sought that no interference be done in the possession of the plaintiff over the suit property. 4. Defendants Bhurelal and Ajay Pal Singh had filed their joint written statement denying the claim of the plaintiff. It was pleaded that in the year 1980 it was agreed between Bhurelal and Kishore Singh that the land bearing Survey No.339/2 would be sold to Kishore Singh or his nominee. The possession was handed over and as & when remaining amount of sale would be received, a sale deed would be executed. Bhurelal was an illiterate person, and therefore plaintiff got advantage of his illiteracy. The suit property bearing Survey No.339/2 was never sold to the plaintiff, and therefore the claim of the plaintiff was denied. 5. The trial Court after framing the issues recorded the evidence of the parties and thereafter the suit was decreed in favour of plaintiff Babulal. Ajay Pal Singh and Bhurelal have challenged the judgment and decree passed by the trial Court by filing an appeal and the First Appellate Court after considering the submissions of the parties, reversed the judgment and decree passed by the trial Court and dismissed the suit filed by plaintiff Babulal. 6. The learned counsel for the appellants has submitted that the suit property was sold by Bhurelal in favour of plaintiff Babulal by a sale deed in the year 1981, and therefore if any contract took place between Bhurelal and Kishore Singh, then it was not binding on the purchaser Babulal. The appellate Court re-appreciated the evidence of the parties beyond its limit, and therefore on the basis of re- appreciation of evidence, which was not permissible, the learned appellate Court reversed the judgment and decree of the trial Court. In support of his contention, he has placed reliance upon the judgments of Hon'ble the Apex Court in the case of “Sarju Pershad Ramdeo Sahu Vs. Jwaleshwari Pratap Narain” ( AIR 1951 SC 120 ) and in the case of “Madhusudan Das Vs. Smt. Narayani Bai & others” ( AIR 1983 SC 114 ). 7. After considering the submission made by the learned counsel for the appellant and considering the evidence adduced by the parties and their pleadings before the trial Court, firstly it should be seen as to whether the appellate Court crossed its limit while appreciating the evidence. Smt. Narayani Bai & others” ( AIR 1983 SC 114 ). 7. After considering the submission made by the learned counsel for the appellant and considering the evidence adduced by the parties and their pleadings before the trial Court, firstly it should be seen as to whether the appellate Court crossed its limit while appreciating the evidence. In the case of Madhusudan Das (supra) Hon'ble the Apex Court in para 8 of the judgment has held as under: “8.......the general rule is that the appellate Court should permit the findings of fact rendered by the trial Court to prevail unless it clearly appears that some special feature about the evidence of a particular witness has escaped the notice of the trial Court or there is a sufficient balance of improbability to displace its opinion as to where the credibility lies.” Similarly, in the case of Sarju Pershad Ramdeo Sahu (supra) Hon'ble the Apex Court in para 7 of its judgment has held as under: “7.......In such cases, the appellate Ct. has got to bear in mind that if has not the advantage which the trial Judge had in having the witnesses before him and of observing the manner in which they deposed in Ct. This certainly does not mean that when an appeal lies on facts, the appellate Ct. is not competent to reverse a finding of fact arrived at by the trial Judge. The rule is—and it is nothing more than a rule of practice—that when there is conflict of oral evidence of the parties on any matter in issue and the decision hinges upon the credibility of the witnesses, then unless there is some special feature about the evidence of a particular witness which has escaped the trial Judge's notice or there is a sufficient balance of improbability to displace his opinion as to where the credibility lies, the appellate Ct. should not interfere with the finding of the trial Judge on a question of fact.” 8. In the light of the aforesaid judgments, it is to be seen as to whether the appellate Court has crossed its limit or not. In the present case, the evidence was initially dependent on the documentary evidence and initial burden was to be discharged by the plaintiff that he purchased the suit property by the concerned sale deed. In the light of the aforesaid judgments, it is to be seen as to whether the appellate Court has crossed its limit or not. In the present case, the evidence was initially dependent on the documentary evidence and initial burden was to be discharged by the plaintiff that he purchased the suit property by the concerned sale deed. Plaintiff Babulal has stated that he had purchased three pieces of land and there was no dispute regarding remaining two pieces of land. But a dispute was regarding one piece of land bearing Survey No.339/2 area seven biswa. The plaintiff has filed a photocopy of the sale deed before the trial Court and exhibited the same as Ex.P-1. According to the provisions of Section 62 of the Evidence Act, plaintiff was required to lead a primary evidence and to file the original sale deed and no reason has been shown by the plaintiff as to why he did not file such original sale deed. If he would have lost the original sale deed or he had any reason so that he was unable to file the same, then he would have received a permission to advance secondary evidence before the trial Court and thereafter a certified copy of the sale deed would have been filed and proved. Unfortunately the plaintiff did not take any interest in proving the sale deed, which was executed by Bhurelal in his favour. The photocopy of the sale deed was neither a primary evidence nor a secondary evidence in the eye of law. Since no permission for production of secondary evidence was taken, therefore the photocopy of the sale deed could not be accepted as evidence. Moreover, according to the provisions of Section 64 of the Evidence Act, any document should be proved in general by the primary evidence. Again by the provisions of Section 68 of the Evidence Act, the sale deed was to be proved by the plaintiff by examining at least one attesting witness of the sale deed. The provisions of Section 68 of the Evidence Act are re-produced as under: “68. Again by the provisions of Section 68 of the Evidence Act, the sale deed was to be proved by the plaintiff by examining at least one attesting witness of the sale deed. The provisions of Section 68 of the Evidence Act are re-produced as under: “68. Proof of execution of document required by law to be attested.—If a document is required by law to be attested, it shall not be used as evidence until one 6 SA No.140/2009 attesting witness at least has been called for the purpose of proving its execution, if there be an attesting witness alive, and subject to the process of the Court and capable of giving evidence: [Provided that it shall not be necessary to call an attesting witness in proof of the execution of any document, not being a Will, which has been registered in accordance with the provisions of the Indian Registration Act, 1908 (16 of 1908), unless its execution by the person by whom it purports to have been executed is specifically denied.]” If the alleged sale deed was not under challenge, then mere filing of the original sale deed would have been considered as sufficient evidence in favour of the plaintiff, but it was challenged by the seller that the property bearing Survey No.339/2 was wrongly mentioned in the sale deed and mutation was also done by taking advantage of illiteracy of the seller, then according to the proviso of Section 68 of the Evidence Act, it was for the plaintiff to examine one attesting witness to prove the document. 9. In support of his case, plaintiff examined two witnesses. Firstly the plaintiff Babulal (PW-1) examined himself and second Sundarlal (PW-2) was examined. Sundarlal (PW-2) was neither the attesting witness for the sale deed Ex.P-1 nor he was a witness relating to possession of the property. He simply gave his evidence on the basis of information received by him, and therefore the evidence given by witness Sundarlal (PW-2) was nothing, but hearsay 7 SA No.140/2009 evidence, which has no evidentiary value. Hence the plaintiff could not prove its sale deed relating to the suit property. Some revenue documents like Ex.P-2 to P-5 and Ex.P-7 to P-8 were produced to show that the name of plaintiff Babulal was mutated in the revenue records relating to the suit property. Hence the plaintiff could not prove its sale deed relating to the suit property. Some revenue documents like Ex.P-2 to P-5 and Ex.P-7 to P-8 were produced to show that the name of plaintiff Babulal was mutated in the revenue records relating to the suit property. These documents are the public documents, but in case of a dispute in the entries, it was for the plaintiff to prove the genuineness of such documents. In the documents Ex.P-2 and P-9, the name of seller Bhurelal was still in the revenue entries in the year 1990-91, therefore the entries of revenue records in which mutation was directed by the Tahsildar and the name of the plaintiff was recorded, should have been proved by calling of the concerned Patwari along with the original record kept by the Revenue Officer. If the name of deceased plaintiff Babulal was inserted in place of seller Bhurelal on the suit property, then as to how in some of the revenue records, name of Bhurelal was still found. Plaintiff in para 5 has pleaded that he found that the name of seller Bhurelal was continued in the revenue records relating to the land bearing Survey No.339/2 and he has pleaded that in the mutation order instead of Survey No.339/2, Survey No.339/3 was mentioned. Looking to the pleading of the plaintiff, it was for him to prove that by a mistake, his name was mutated on the land bearing Survey No.339/3 instead of Survey No.339/2. But unfortunately, the plaintiff did not file the copy of order relating to mutation and he did not examine any revenue officer by calling the revenue records relating to the suit property. Under these circumstances, it was for the Court to depend its findings on the oral evidence given by the parties. 10. In the present case, as discussed above, the plaintiff did not examine any witness relating to his possession on the suit property bearing Survey No.339/2. On the contrary, the respondents Ajay Pal Singh and Bhurelal have examined Bhurelal (DW-1), Ajay Pal Singh (DW-2), Jangi Singh (DW-3) and Kallu Prasad (DW-4). They have also proved the document Ex.D-4 letter of contract of sale relating to the property. On the contrary, the respondents Ajay Pal Singh and Bhurelal have examined Bhurelal (DW-1), Ajay Pal Singh (DW-2), Jangi Singh (DW-3) and Kallu Prasad (DW-4). They have also proved the document Ex.D-4 letter of contract of sale relating to the property. According to this letter, on 9.7.1980 Bhurelal had already sold the entire land to one Kishore Singh relative of Ajay Pal Singh and it was decided that the sale deed will be executed as and when the payment of land would be made, and thereafter Bhurelal gave an affidavit Ex.D-3 on 12.9.1991 and executed a sale deed Ex.P-6 in favour of Ajay Pal Singh. The document Ex.D-4 was proved by its witness Kallu Prasad. The possibility cannot be ruled out that the document Ex.D-4 could be prepared by Bhurelal and Ajay Pal Singh just before the execution of the sale deed Ex.P-6. The document Ex.D-4 is neither registered nor notarized, even it is not on any stamp paper, and therefore its authenticity was under challenge. However, if evidence of various witnesses including the evidence of plaintiff himself is considered, then it would be apparent that Kachcha Tapra (hutment) was constructed by Kishore Singh in the half portion of the suit property, which was on its northern side. If the plaintiff had purchased the property in question, then certainly Kishore Singh or his brother Pahalwan Singh could not erect the hutment in the property belonging to the plaintiff and the plaintiff would have objected when such hutment was being constructed. The appellate Court has found that the plaintiff has accepted in para 4 and 5 of his evidence that since there was an encroachment on the property, he was entitled to get another property on replacement from Bhurelal. The statement of deceased plaintiff Babulal in those paras clearly indicates that the hutment in question constructed by Kishore Singh was existing prior to the transaction of sale by which the property was received by the plaintiff on sale. Under these circumstances, the document Ex.D-4 appears to be genuine and it was prepared on 8.7.1980 prior to sale executed by seller Bhurelal in favour of plaintiff Babulal. 11. It appears that initially seller Bhurelal contracted to sell the suit property to Kishore Singh for a sum of Rs.90/-, whereas at the time of execution of sale deed Ex.P-6, he received a sum of Rs.3,000/-. 11. It appears that initially seller Bhurelal contracted to sell the suit property to Kishore Singh for a sum of Rs.90/-, whereas at the time of execution of sale deed Ex.P-6, he received a sum of Rs.3,000/-. If the language of the document Ex.D-4 is perused, then it appears that the said agreement was accepted by seller Bhurelal, because Kishore Singh had already constructed hutment on half portion of his property, and therefore Bhurelal has accepted in the document Ex.D-4 that Kishore Singh had possession over half portion of the property prior to that contract and on the date of contract he handed over the possession of remaining half portion of the property to Kishore Singh, relative of respondent Ajay Pal Singh. Hence, by the document Ex.D-4 and evidence given by the various witnesses of the defendants, it appears that at the time of alleged sale of the property to plaintiff Babulal, the property in question was in possession of Kishore Singh and Pahalwan Singh. By the alleged sale of property, plaintiff could not get the possession of the property. 12. Looking to the document Ex.D-4 and the evidence of the defendants’ witnesses, it was for the plaintiff to prove that he received the possession of the suit property after alleged sale. It can be presumed that an erroneous mutation order was passed by the Tahsildar concerned on the basis of disputed sale deed and in view of the order passed by the Tahsildar, the land bearing Survey No.339/2 was not mutated, but the land bearing Survey No.339/3 was shown in the name of plaintiff Babulal, but if he would have received the physical possession of the property, then he could show his possession at the time of sale deed as well as at the time of filing of the civil suit. It is shocking position that no witness has been examined by the plaintiff to show that the possession of the suit property was handed over to him and he was still in possession of the suit property at the time of filing of the civil suit. It is shocking position that no witness has been examined by the plaintiff to show that the possession of the suit property was handed over to him and he was still in possession of the suit property at the time of filing of the civil suit. Secondly, if he was in possession of the suit property and he was cultivating the field, then certainly such entry would have been lodged by the Revenue Inspector in the revenue records and those entries would have been shown in the revenue records against the entry of land being Survey No.339/2 or 339/3, but the plaintiff did not file the various Khasras from the year 1981 to 1991 relating to Survey No.339/2 or 339/3 to show that he was cultivating the land and he was in possession of the suit property after execution of sale deed. 13. The plaintiff could not file any Khasra entry of 11 years to show his possession. Under these circumstances, the plaintiff could not prove his possession over the suit property, which was alleged to be purchased by him. The sale deed relating to property in question was not proved according to the provisions of the Evidence Act and the possession was also not proved by the plaintiff. The oral evidence of the plaintiff remains against the oral evidence given by the witnesses of the defendants to assess. The defence of the defendants was that by taking advantage of illiteracy of defendant Bhurelal, the description of suit property bearing Survey No.339/2 was shown in the sale deed and even an erroneous mutation order was passed by the Tahsildar concerned for mutation of another land. The defendants have proved their contention by various documents and witnesses that at the time of alleged sale, the suit property was in possession of Kishore Singh and Pahalwan Singh, relatives of Ajay Pal Singh and the hutment was constructed in the half portion of the suit property, by Kishore Singh prior to the execution of the alleged sale deed and therefore there was no possibility to sell the disputed property to the plaintiff and hence no possession over the suit property was given to the plaintiff. Hence, if the oral evidence of the witnesses was to be assessed by the trial Court, certainly the evidence given by the plaintiff which was not supported by either oral evidence of other witnesses or any documentary evidence and he could not prove his ownership as well as possession over the suit property, then certainly the evidence of the defendants which was dependent upon the factual position of the case as well as various documents and entry in the revenue records that the name of the seller Bhurelal was still existing in the revenue records relating to the suit property upto the year 1990-91 was sufficient to rely upon the testimony of the defence witnesses, over the testimony of the plaintiff. 14. The present case is a peculiar case where the testimony of the witnesses was dependent upon the factual position of the possession and relevant revenue entries of the suit property and both the things were never denied. In the present case, in the light of the aforesaid judgments of Hon'ble the Apex Court, it can be said that the appellate Court did not cross its limits. It is the general principle of appreciation of evidence that the witnesses who are examined before the trial Court can be believed or disbelieved by the trial Court in a better position, but in the light of documentary evidence and circumstances specially when the plaintiff did not examine any witness to conform his possession on the suit property, the appellate Court has right to appreciate the evidence, if it was not properly appreciated by the trial Court. The present case did not fall within the purview of rule held by Hon'ble the Apex Court. It is an exceptional case in which the appellate Court could appreciate the evidence according to the documentary evidence adduced by the parties. Therefore, the contention of the learned counsel for the appellant cannot be accepted that the first appellate Court has crossed its limit while appreciating the evidence adduced by the parties. 15. It is an exceptional case in which the appellate Court could appreciate the evidence according to the documentary evidence adduced by the parties. Therefore, the contention of the learned counsel for the appellant cannot be accepted that the first appellate Court has crossed its limit while appreciating the evidence adduced by the parties. 15. On the basis of the aforesaid discussion, it appears that the seller Bhurelal did not sell the suit property to the deceased Babulal, though at that time the sale deed was not executed by seller Bhurelal in favour of Kishore Singh or Ajay Pal Singh, but Kishore Singh and Pahalwan Singh were in possession of the suit property since the year 1980 and seller Bhurelal was not in a position to sell that property to deceased plaintiff Babulal. Since deceased Babulal did not receive any title or possession of the property in question by the alleged sale deed, the contention of the defendants can be accepted that the description of the suit property was wrongly mentioned in the sale deed, whereas such property was not sold to the plaintiff. Hence neither any title of the deceased plaintiff or his legal representatives can be declared on the suit property nor the sale deed executed by Bhurelal in favour of Ajay Pal Singh can be declared null and void. 16. On the basis of the aforesaid, no illegality or perversity is visible in the judgment passed by the First Appellate Court in reversing the judgment and decree of the trial Court. There is no substantial question of law involved in the present appeal so that the present second appeal can be accepted. Consequently, the present appeal filed by the appellants is hereby dismissed at motion stage. 17. A copy of this order be sent to both the Courts below along with their records for information.