Research › Search › Judgment

Allahabad High Court · body

2014 DIGILAW 1566 (ALL)

Mahendra Pratap v. Bhagwati Devi

2014-05-13

PANKAJ NAQVI

body2014
JUDGMENT Pankaj Naqvi,J.: - Heard Sri Ramendra Asthana learned counsel for appellant and Sri Swapnil Kumar learned counsel for respondent on the admission of appeal. 2. Smt. Bhagwati Devi (since deceased and now represented by her legal representative), plaintiff /respondent no.1 filed a suit for permanent injunction and cancellation of sale deed dated 26.04.1975 alleging that she is the owner in possession of the property i.e. Khasra no.332/1 situate at Mauza Bhoorh Ka Bagh(area 400 sq. yards) (property in dispute) Agra under a registered sale deed dated 07.06.1971, and since then, she constructed one room and a boundary-wall wherein she is engaged in the business of selling building materials. Defendants have no concern with the property in dispute, but as they attempted to take forcible possession thereof on 19.02.2002, she filed the suit. She claimed that subsequent to the filing of the written statement, plaintiff acquired knowledge that defendant had set up an alleged agreement dated 30.11.1971 and pursuant thereto a registered sale deed dated 26.04.1975 in his favour. She denied the execution of sale deed including the delivery of possession. She stated that the alleged agreement dated 30.11.1971 was infact a deed of mortgage as she had obtained some advance from defendants, which had been repaid. 3. The suit was resisted by defendants on the premise that plaintiff voluntarily executed a registered sale deed dated 26.04.1975 of the property in dispute, after receiving sale consideration. It was denied that plaintiff/respondent acquired knowledge of the sale deed only on 07.05.2002. 4. The Trial Court after exchange of pleadings and evidence held that the sale deed dated 26.04.1975 was a void document as it did not contain signatures of the alleged vendors, i.e. Smt. Bhagwati Devi and her husband Om Prakash and decreed the suit. The appeal too was dismisssed. 5. Sri Ramendra Asthana, learned counsel for appellant/defendants raised three submissions. Firstly, the courts below wrongly placed the burden of proof upon the defendant-appellant whereas it ought to have been on respondent-plaintiff to establish that the alleged sale deed dated 26.04.1975 was an outcome of fraud, and in support of his contention relied upon a judgment of the Apex Court in the case of Kuppuswami Chettiar vs. A.S.P.A. Arumugam Chettiar and another, AIR 1967 S.C. 1395 . Secondly, non-production of Om Prakash to prove the alleged execution of the sale deed dated 26.04.1975 on the part of plaintiff-respondent was fatal to the suit. Finally, in the absence of any expert report on behalf of either side as regards the authenticity of the signatures of Smt. Bhagwati Devi and Om Prakash on the alleged sale deed dated 26.04.1975, the Court had no competence to compare the admitted signatures of Smt. Bhagwati Devi and Om Prakash with that of the alleged sale deed. 6. It is not disputed that respondent-plaintiff was in possession of the property in dispute pursuant to registered sale deed dated 07.06.1971. The courts below on evidence held that the alleged agreement dated 30.11.1971 (Paper no.80-Ka) was not an agreement to sell, rather a mortgage deed as Smt. Bhagwati Devi had taken Rs.1000/- from the defendant-appellant and was liable to return the same along with interest and in order to secure the said repayment mortgage deed dated 30.11.1971 was executed. It was also not disputed that the mortgage deed (Paper no.80-Ka) contains signatures of Smt. Bhagwati Devi and of her husband Om Prakash as witness. 7. Section 102 of The Evidence Act provides that the burden of proof in a suit or proceedings lies on that person, who would fail if no evidence at all were given on either side, in order to ascertain as to on whom would the burden of proof lay. It would be pertinent to examine the nature of plaint allegations, on which the cancellation of the alleged sale deed dated 26.04.1975 has been sought. A reading of the plaint allegations in totality would lead to an irresistible conclusion that the respondent-plaintiff denied the very execution of the sale deed by stating that the same does not bear her thumb mark or signatures. No doubt, there are allegations of misrepresentation, undue influence also in the plaint, but once the execution of the sale deed itself is denied, then plea of misrepresentation, undue influence pale into insignificance. Thus the Court would have to examine only in the context as to on whom would the burden lay, in case execution of the sale deed is denied. 8. A perusal of the judgment in the case of Kuppuswami Chettiyar (supra) would reveal that execution of the deed was challenged on the ground of misrepresentation. Thus the Court would have to examine only in the context as to on whom would the burden lay, in case execution of the sale deed is denied. 8. A perusal of the judgment in the case of Kuppuswami Chettiyar (supra) would reveal that execution of the deed was challenged on the ground of misrepresentation. The Apex Court held that the onus is upon the appellant to establish plea of misrepresentation. There could be no dispute to the said proposition. The said decision would have no application on the facts of the present case, where the very execution of the sale deed was denied. 9. Sri Swapnil Kumar learned counsel for respondent-plaintiff is right in contending that respondent-plaintiff cannot be called upon to lead negative evidence, as regards a transaction, the execution of which was itself denied as on the facts of the present case, burden lay upon the defendant that a valid sale deed was executed in their favour. 10. It has come on record that attesting witnesses, i.e. Bhogi Ram and Dwarika Nath Gupta were already dead. Smt. Bhagwati Devi the alleged vendor also died before case came up for evidence. Thus the only surviving witness was Om Prakash. As stated above burden was not upon respondent-plaintiff, when execution of the document itself had been denied, thus an adverse inference could not have been drawn against plaintiff for failure to produce Om Prakash in the witness box as it was always open for defendant-appellant to have obtained an appropriate summon for directing him to appear in the witness box. Once this duty was not discharged by defendant-appellant he cannot be permitted to contend that an adverse inference was liable to be drawn as against plaintiff-respondent for not producing Om Prakash, alleged vendor. 11. The defendant-appellant also did not get signatures on the sale deed dated 26.04.1975 compared by any expert. Although an application (Paper no.72-C) for appointing an expert was filed by defendant-appellant, but the same was rejected on 06.03.2010. But the Appellate Court held that the aforesaid application was rightly dismissed as by that date, Smt. Bhagwati Devi had already died. Burden was upon defendant-appellant to establish that Smt. Bhagwati Devi had validly executed a sale deed dated 26.04.1975 along with her husband in their favour. But the Appellate Court held that the aforesaid application was rightly dismissed as by that date, Smt. Bhagwati Devi had already died. Burden was upon defendant-appellant to establish that Smt. Bhagwati Devi had validly executed a sale deed dated 26.04.1975 along with her husband in their favour. Nothing prevented them to apply for an expert analysis of the alleged signatures of Smt. Bhagwati Devi while she was alive and this fact alone was sufficient to hold that defendant-appellant had failed to discharge their burden. The Court did not close the matter, and further proceeded to examine the alleged signatures on the sale deed with that of the admitted signatures on the mortgage deed (Paper 80 Ka). Undoubtedly, the Court had power under Section 73 of the Evidence Act, which in essence provides that the Court is entitled to make comparison of signatures. In doing so, the Court does not assume the role of an expert and depending on the facts and circumstances of each case, where distinguishing features between the admitted signatures and the disputed signatures are so writ large that they were evident even to a naked eye, it would always be open for the Court to record its satisfaction and thereafter record distinguishing features of disputed signatures with that of admitted signatures. The Court compared the disputed signatures on the alleged sale deed (Paper no.81-Ka) with that of the admitted signatures on the mortgage deed (Paper no. 80Ka) and found for cogent reasons that the registered sale deed does not contain the signatures of the alleged vendors Smt. Bhagwati Devi and her husband Om Prakash. This has been elaborately dealt with at page no.16 of the Appellate Court judgment to which no perversity could be demonstrated. 12. No substantial question of law arises. 13. No other plea is urged. 14. The second appeal is dismissed with costs.