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2014 DIGILAW 806 (PAT)

Jagdeo Singh v. Sheela Devi

2014-07-23

MUNGESHWAR SAHOO

body2014
MUNGESHWAR SAHOO, J.:–The contesting defendants have filed this First Appeal against the Judgment and Decree dt.01.09.1987 passed by the learned Subordinate Judge IInd Court, Patna in title Suit No.35 of 1984 whereby the plaintiff’s suit has been decreed. 2. The plaintiff respondent’s Sheela Devi filed the aforesaid Title Suit No.35 of 1984 for declaration that the sale deed dt.29.07.1983 purporting to have been executed by Jangali Devi @ Rukmani Devi in favour of the defendants’ appellants is forged, fabricated, bogus, fraudulent, illegal, null and void and inoperative and without consideration. The principle-defendants have not acquired any title and possession over the suit land. The plaintiff in the alternative prayed for recovery of possession with mean profit. 3. The plaintiff’s claims the aforesaid relief giving interalia the facts which are summarized hereinbelow without giving the great details. According to the plaintiff Jangali Devi @ Dhaneshwari Devi was wife of Baldeo Sao. They have a son Sheonarain Sao who is defendant No.4. Plaintiff Sheela Devi is the daughter of Sheonarain Sao. Balkishun Sao and his brother Baldeo Sao were members of joint family. On the death of Balkishun Sao without any heir, all the properties were inherited by the rule of survivorship by Baldeo Sao and his sons Sheonarain Sao who came in joint possession. Sheonarain Sao also acquired some property. Sheonarain Sao had no son. Therefore, Sheela Devi used to serve her father and grand mother Jangali Devi so Jangali Devi and Sheonarain Sao made a gift of the entire property in favour of Sheela Devi as they had become very old. The gift deed was executed and registered on 15.11.1983. Sheela Devi accepted the gift deed and came in possession. Jangali Devi @ Dhaneshwari Devi died on 15.12.1983. Her Shradh was performed by Sheonarain Sao. 4. The further case is that when husband of Sheela Devi and Sheonarain had gone to pay tax on 2.1.1984, they learnt that the defendants have already paid rents on the basis of the sale deed said to have been executed on 29.07.1983. The plaintiff got certified copy of the sale deed dt.29.07.1984. The principle defendant who in collusion and conspiracy with the Asarfi Lal Singh, the husband of defendant No.2 fabricated the sale deed. The plaintiff got certified copy of the sale deed dt.29.07.1984. The principle defendant who in collusion and conspiracy with the Asarfi Lal Singh, the husband of defendant No.2 fabricated the sale deed. It has also been alleged that Ashrfi Lal, the husband of defendant No.2 has his house adjacent to plot No.127 belonging to Sheonarain Sao, therefore, he was pressing Sheonarain Sao to sell plot No.127 and on their refusal, Ashrfi Lal Singh was annoyed. Sheonarain Sao and his mother Jangli Devi had 3.40 acres in total which was their source of livelihood, therefore, there was no reason as to why Jangli Devi could have sold 1 acre 16 decimal to the defendants by registered sale deed dated 29.07.1983. 5. On being noticed, the defendants appellants filed contesting written statement alleging that Baldo Sao died in the year 1942 and on his death, his wife Jangli Devi became entitled to half share in the property and she became absolute owner after coming into force of Hindu Succession Act, 1956 as such she had half share. There was partition between the mother and son and Jangali Devi was in need of money as such she sold a portion of property out of her share for Rs.25,000/-. The full consideration amount was paid and, therefore, the registered sale deed is valid, legal and genuine document which is for consideration. All other case of the plaintiff was denied. The defendants specifically pleaded in the written statement that the alleged deed of gift deed dated 15.01.1983 alleged to have been executed by Jangali Devi @ Dhaneshwari Devi along with Sheonarain Sao in favour of plaintiff is forged, collusive, inoperative and in effective document. Some imposter lady misrepresented herself as the widow of late Baldeo Sao at the instance of the plaintiff and Sheonarain Sao and the gift deed was thus fabricated by the plaintiff. By the gift deed, the plaintiff did not and could not acquire title and possession. The defendants after amalgamating the purchase land with their own land are coming in peaceful possession thereof. Their sale deed is genuine and legal and for consideration. 6. On the basis of the pleadings of the parties, the learned trial Court framed the following issues :— (i) Is the suit as framed maintainable? (ii) Has the plaintiff any valid cause of action for the suit? (iii) Is the suit barred by limitation? Their sale deed is genuine and legal and for consideration. 6. On the basis of the pleadings of the parties, the learned trial Court framed the following issues :— (i) Is the suit as framed maintainable? (ii) Has the plaintiff any valid cause of action for the suit? (iii) Is the suit barred by limitation? (iv) Is the suit barred by the principles of estoppel, waiver and acquiescence? (v) Has the suit property been properly valued and the court fee paid sufficient? (vi) Is the story of partition of the family property between Sheonarain Sao on one side and Mostt. Jangli Devi on the other side in 1971 as set up by the defendants correct? (vii) Is the sale deed dated 29.07.1983 alleged to be executed by Mostt. Jangli Devi in favour of the defendant nos.1 to 3 genuine, legal, valid and for consideration? (viii) Has the plaintiff got title to the suit land? (ix) Have the defendants acquired title to a possession over the suit land on the basis of the sale deed dated 29.07.1983? (x) Is the plaintiff entitled to a decree for injunction as prayed for? (xi) To what other relief or reliefs, if any, the plaintiff is entitled? 7. The trial Court on the basis of the materials available on record came to the conclusion that the story of partition between Sheonarain Sao and Mostt. Jangli Devi in the year 1971 set up by the defendant is false. The defendant No.1 to 2 have failed to prove that there was any negotiation with Jangli Devi for the alleged sale deed, ext.B and that Jangli Devi executed sale deed ext.B dated 29.07.1983 vide paragraph 43. On the point of payment of consideration money, the evidence of the defendant witnesses is very confusing. At paragraph 45, the Court below found that ext.B, the registered sale deed dated 29.07.1983 is not genuine, legal, valid and for consideration. The defendant Nos.1 to 3 have not acquired any title and possession over the suit land on the basis of this sale deed dated 29.07.1983. The plaintiff had acquired good title on the basis of the gift deed. Accordingly, the suit was decreed. 8. The learned counsel, Mr. The defendant Nos.1 to 3 have not acquired any title and possession over the suit land on the basis of this sale deed dated 29.07.1983. The plaintiff had acquired good title on the basis of the gift deed. Accordingly, the suit was decreed. 8. The learned counsel, Mr. Jitendra Kishore Verma, appearing on behalf of the defendants appellants who are purchaser submitted that the learned Court below approached the case in wrong angle and decreed the plaintiff’s suit without scrutinizing / discussing the expert evidence of the appellants. It is the specific case of the plaintiff that some another lady impersonated Jangli Devi as such Jangali Devi has not put her left thumb impression / signature on the sale deed, ext.B. Surprisingly without there being any pleading, the plaintiff got the disputed signature of Jangli Devi compared with the signature of Kamla Devi the original appellant No.2 by private expert and on the basis of this, the Court below recorded the finding that left thumb impression / signature is of Kamla Devi. The learned counsel further submitted that when the defendant purchased by the registered sale deed said to have been signed by Jangli Devi, the plaintiff should have examined the expert by comparing the disputed signature of Jangli Devi with admitted signature of Jangli Devi but the Court below got the signature of Jangli Devi compared with the registered gift deed which was executed in favour of defendant which was alleged to have been executed in favour of the plaintiff, although this registered gift deed is not admitted document as the appellants clearly stated that this document is forged and fabricated and not singed by Jangli Devi as it was executed on 15.11.1983 whereas Jangli Devi died on 18.12.1983. According to the learned counsel, the evidence regarding comparison of signature / left thumb impression of Jangli Devi with that of Kamla Devi is neither pleaded nor amendment was sought for, nor any evidence was adduced to that effect by the plaintiff, therefore, in view of the decision of the Hon’ble Supreme Court reported in 2013 (1) PLJR 48 SC Union of India Vs. Ibrahim Uddin and A.I.R. 2009 SC 1103 Bachhaj Nahar Vs. Nilima Mandal = 2008 (17) SCC 491 . The evidence cannot be looked into. 9. Ibrahim Uddin and A.I.R. 2009 SC 1103 Bachhaj Nahar Vs. Nilima Mandal = 2008 (17) SCC 491 . The evidence cannot be looked into. 9. The learned counsel further submitted that there is presumption of genuineness of the registered sale deed and, therefore, according to law, the burden was on the person who challenges the genuineness of the registered sale deed. In support of his contention, the learned counsel, relied upon 2012 (2) PLJR 190 Sitasaran Prasad case and submitted that the Court below wrongly placed the burden on the defendant to prove the genuineness of the document. The lower Court also based his finding on the affidavit ext.4 and 4/A particularly when the author of the affidavit were not examined as witnesses by the plaintiff. D.W.3 who is said to have sworned the affidavit has been examined on behalf of the defendant but the document was not confronted to him, therefore, the affidavit was inadmissible in evidence and cannot be relied. The learned counsel further submitted that there is no case made out by the plaintiff that Asharfi singed as Motilal and Kamla signed as Jangli but expert was examined and the finding has been recorded on the basis of this evidence which is liable to be ignored. According to the learned counsel, the plaintiff was the only daughter of Sheonarain and there was no other issue of Sheonarain Sao. In such circumstances, in natural course, the property could have been inherited by the plaintiff as such there was no occasion for execution of the gift deed but in fact Sheonarain and plaintiff in collusion with each other to frustrate the claim of the defendants made a false case and fabricated a document, i.e., gift deed said to have been executed by Jangli Devi and Sheonarain Sao. So far this registered gift deed is concerned, the appellants never admitted it to have been signed by Jangli Devi but the Court below proceeded to decide the question of dispute recording a finding that this registered gift deed is an admitted document without considering the pleadings made by the appellant in written statement. The learned counsel further submitted that title of Jangli Devi is not disputed by the plaintiff. It is admitted that Jangli Devi and Sheonarain Sao have 3.40 acres of land. Out of that Jangli Devi had half share. The learned counsel further submitted that title of Jangli Devi is not disputed by the plaintiff. It is admitted that Jangli Devi and Sheonarain Sao have 3.40 acres of land. Out of that Jangli Devi had half share. Had the defendant got any fraudulent intention, he could have got the sale deed executed with respect to half share of Jangli Devi but Jangli Devi sold only 1.16 acres and the remaining land is still in possession of the plaintiff. The learned counsel further submitted that if it is held that the registered sale deed dated 29th July, 1982 is valid and genuine document then naturally the subsequent gift deed in favour of the plaintiff with respect to the property already sold will be invalid, as such the appellant is not required to pray for setting aside the gift deed as automatically, it will not be binding on the appellant because on the date of execution of the registered gift deed, Jangli Devi was not the owner of 1.16 acre which was sold by her to the appellants. On the other hand, if it is found that the sale deed is not genuine document and not executed by Jangli Devi then automatically, the plaintiff’s suit is liable to be decreed and the genuineness or otherwise of the gift deed is not required to be examined. On these grounds, the learned counsel submitted that the impugned Judgment and Decree are liable to be set aside. 10. On the other hand, the learned counsel, Smt. Veena Rani Prasad, for the respondent No.1 submitted that although no case was pleaded in the plaint that Kamla Devi put her left thumb impression as Jangli Devi and Asharfi Lal Singh identified as Motilal Singh but during the evidence, the plaintiff prayed that the left thumb impression of Kamla Devi be compared with left thumb impression of Jangli Devi. For that purpose, Kamla Devi was directed by the Court repeatedly to give sample of Kamla Devi for comparison with left thumb impression of Jangli Devi of ext.B, but she repeatedly refused to give left thumb impression before the Court, therefore, the Court allowed the respondent to obtain photographs of her admitted left thumb impression. For that purpose, Kamla Devi was directed by the Court repeatedly to give sample of Kamla Devi for comparison with left thumb impression of Jangli Devi of ext.B, but she repeatedly refused to give left thumb impression before the Court, therefore, the Court allowed the respondent to obtain photographs of her admitted left thumb impression. In such circumstances, only on technical ground that it was not pleaded the evidence produced by the plaintiff cannot be discarded, particularly when repeatedly, she was directed to give sample of left thumb impression for comparison. In such circumstances, she had the knowledge that her left thumb impression will be compared with left thumb impression of Jangli Devi and likewise Kamla Devi was repeatedly directed by the Court for production of her husband, Ashrfi Lal Singh, so that writing / signature of Ashrfi shall be examined with signature of Motilal Singh but again the defendant No.2 never produced her husband. In such circumstances, it cannot be said that surprisingly, without notice to the defendant, comparison was made. The learned counsel further submitted that the expert gave opinion after examining the disputed left thumb impression of Jangli Devi with the admitted left thumb impression of Kamla Devi and found it is the left thumb impression of same person and likewise writing / signature of Ashrfi was examined with signature of Moti Lal Singh occurring on ext.B and it was found that it is of Ashrfi Singh. The fact in this case is, therefore, different as such the decision relied upon by the learned counsel for the appellant on this question is not applicable. 11. The learned counsel further submitted that the husband of defendant No.2, namely, Asharfi had his house just by the side of plot No.127, therefore, he was insisting Sheonarain Sao to sell the said plot to him. When Sheonarain refused, he has forged the sale deed and in the sale deed, defendant No.2 put left thumb impress as Jangli Devi and her husband Ashrfi Lal put left thumb impression as attesting witness, Moti Lal Singh. Further, there was only 3.40 decimal land which was the source of livelihood of the family of Jangli Devi as such there was no occasion as to why valuable land could have been sold for meager amount of Rs.25,000/- only. Further, there was only 3.40 decimal land which was the source of livelihood of the family of Jangli Devi as such there was no occasion as to why valuable land could have been sold for meager amount of Rs.25,000/- only. The plaintiffs have produced evidences in support of the case that in the year 1983, the value of the land of similar nature was Rs.5000/- per kattha but the consideration amount shown in the sale deed is very low. The further submission is that in December, 1983, Jangli Devi died and there was no reason as to why at the fag end of her life, she would have sold the property, particularly when the son and grand daughter were with her. The defendant falsely recited in the sale deed that there had been partition between mother and sons in the year 1971. The Court below has disbelieved this story of partition on the basis of evidences. Likewise there was no necessity for selling the property by Jangli Devi. Considering all the materials, the Court below has, therefore, rightly decreed the plaintiff’s suit. 12. The learned counsel, Mr. J. S. Arora, appearing for the respondent No. 3 to 6 submitted that no doubt there is presumption of genuineness of a registered sale deed but this presumption is always rebuttable. The plaintiffs have produced reliable evidences to show that the facts regarding partition between mother and sons is false, the consideration was never paid, the sale deed was not executed by Jangli Devi and that there was no legal necessity and the Court below on the basis of the evidences found all these facts in favour of the plaintiff respondent. Since, the plaintiffs have denied the execution of the sale deed by Janlgi Devi it was for the defendants to prove that in fact consideration was paid to her and she sold the property for legal necessity as she was not maintained by son and grand daughter because there had already been partition. Once, the plaintiff denied the execution of sale deed by Jangli Devi, the burden shifted on the defendants to prove all the facts as they are claiming title on the basis of the sale deed. The plaintiffs have been able to prove the circumstances which are sufficient to indicate that the sale deed is a concocted forged sale deed. Once, the plaintiff denied the execution of sale deed by Jangli Devi, the burden shifted on the defendants to prove all the facts as they are claiming title on the basis of the sale deed. The plaintiffs have been able to prove the circumstances which are sufficient to indicate that the sale deed is a concocted forged sale deed. The learned counsel further submitted that even if the affidavit ext.4 and 4/A are not relied upon then also there are other evidences on record which clearly proves that the sale deed was never executed by Jangli Devi and left thumb impression occurring on it is not of Jangli Devi. 13. The learned counsel further submitted that for non-consideration of the expert report of the defendant is not a ground for setting aside the Judgment and Decree of the trial Court which is based on reliable evidence. On these grounds, the learned counsel for the respondents submitted that the First Appeal is liable to be dismissed. 14. In view of the rival contentions of the parties, the points arises for consideration in this First Appeal is as to whether the sale deed in question, i.e. ext.B dated 29.07.1983 is executed by Jangli Devi or not and whether the findings recorded by the Court below on this question is sustainable in the eye of law or not? 15. According to the pleadings at paragraph 28 of the plaint, the plaintiffs have given the circumstances in support of their case that the sale deed ext.B said to have been executed by Jangli Devi is forged and fabricated document. According to the plaintiff not a single farthing was paid before the Registrar, as such the sale deed is without consideration and bogus and the consideration amount of Rs.25,000/- is very meager amount. In the sale deed, the alias name of Jangli Devi has been mentioned as Rukmini Devi whereas the alias name of Jangli Devi is Dhaneshwari Devi. According to the plaintiff not a single farthing was paid before the Registrar, as such the sale deed is without consideration and bogus and the consideration amount of Rs.25,000/- is very meager amount. In the sale deed, the alias name of Jangli Devi has been mentioned as Rukmini Devi whereas the alias name of Jangli Devi is Dhaneshwari Devi. There was no negotiation between the contesting defendants and Jangli Devi for the sale of the land and she never instructed the scribe to scribe the sale deed nor in her presence it was read over and explained, nor she put her left thumb impression on the sale deed, nor she presented the sale deed before the Registrar, nor she put her left thumb impression on the back of the first page of the sale deed, nor on the T.I. Register and the principle defendants committed forgery and some imposter impersonated Jangli Devi and forged the sale deed. The scribe, Ram Itar Singh is Yadav by caste and is connected with the contesting defendants. Moti Lal Singh who is shown as identifier of Jangli Devi but in fact he never identified Jangli Devi and he never signed / or put left thumb impression on the deed nor on the T.I. Register. 16. The further circumstance stated is that Moti Lal Singh attesting witness is agnate of husband of defendant No.2. The other attesting witness Nasib Singh is Dewar of defendant No.2, i.e., brother of husband of defendant No.2. It has been falsely recited in the sale deed that there was partition between Jangli Devi alias Rukmini Devi and her son Sheonarain Sao and Jangli Devi was separate in possession of the suit land which was sold. Jangli Devi was aged about 90 years in the year 1983. Therefore, the allegation of partition in the year 1971 is unbelievable. Since she was neither separate nor she had any necessity for money to pay debts nor she was being treated by any doctor as her needs were fulfilled by son, there was no occasion for her to sell the property. Further the contesting defendants have no means to purchase the property nor Jangli Devi ever negotiated with them. The land is situated by the side of Patna By Pass Road which is very valuable land and the market value of the land of Mauza Pipra Domchak in 1983 was Rs.5000/- per katha. 17. Further the contesting defendants have no means to purchase the property nor Jangli Devi ever negotiated with them. The land is situated by the side of Patna By Pass Road which is very valuable land and the market value of the land of Mauza Pipra Domchak in 1983 was Rs.5000/- per katha. 17. On the other hand, the defendant No.1 and 3 filed written statement alleging that Jangli Devi was not maintained by Sheonarain rather she was in possession of the property and was capable to maintain herself. The wife of Sheonarain Sao was quarrelsome and was ill treating Jangli Devi, as such in the year 1971, there was partition between son and mother by metes and bonds. The consideration amount is adequate and in fact Jangli Devi is still alive and has not died. The defendant No.2 filed separate written statement and her defence is in the same line. However, in this written statement, she admitted that Jangli Devi died in 1983 but not on 18.12.1983. In support of their respect cases, the parties have adduced evidences. 18. The learned counsel for the appellant strongly relied upon the decision of this Court in the case of Sitasharan Prasad Vs. Manorama Devi, 2012 (2) BLJ 165 and submitted that there is a presumption that a registered document is validly executed and onus of proof would be on a person who leads evidence to rebut the presumption. From the recitals in the sale deed, it cannot be said to be void ab initio and there cannot be presumptive invalidity attached to such transaction. According to the learned counsel in the present case since the sale deed dated 29.07.1983, ext.B has been produced by the appellant, the presumption is in favour of the appellant. The onus was on the plaintiff to prove that the document was not validly executed as they are challenging the sale deed but the Court below placed wrong onus on the defendants. 19. Now, let us consider the evidences produced by the parties in support of their respective cases. It is admitted fact that there is no documents produced by the appellant in support of their case that there was partition between the mother and the son. It will not be out of place to mention here that the lower Court record is not available. It is admitted fact that there is no documents produced by the appellant in support of their case that there was partition between the mother and the son. It will not be out of place to mention here that the lower Court record is not available. The trial Court as well as the High Court tried their best to trace the lower Court records. When it was not traced, the plaintiff respondent agreed that the pleading, depositions and documents photocopy of each are available shall be filed for reconstruction of L.C.R. and accordingly, the same were filed, so the lower Court record has been reconstructed and on the basis of the same, this appeal is being heard. 20. Since the defendant No.1 to 3 alleged that there was partition between the mother and son in the year 1971, it is for them to prove this fact. The reason for partition has been mentioned by the defendants that the wife of Sheonarain Sao was of quarrelsome nature and was ill treating Jangli Devi so there was partition. As stated above, no documentary evidences has been produced. D.W.1 is defendant No.3 who has stated that Jangli Devi was separate in mess and residence and property. In his cross-examination, he has admitted that so far the house is concerned, there was no wall between the portion allotted to mother and son. D.W.4 is driver who resides in Ashok Nagar. D.W.5 although says about partition, he admitted that Sheonarain Sao had already filed criminal case against him and he is on bail. Neither D.W.4 nor D.W.5 had seen any paper regarding partition. Therefore, admittedly, there is no paper regarding mutation of Jangli Devi or payment of rent by Jangli Devi. There was also no partition wall in the house between them. So far the evidence of D.W.5 who claims that in his presence partition took place is concerned, it is not safe to rely to him because he is in inimical term with Sheonarain Sao s/o Jangli Devi. D.W.6 is hearsay witness and is unable to give boundary of any land of either Jangli Devi or Sheonarain Sao. D.W.7 claims that in his presence partition took place through Panchayati and paper was prepared. It may be mentioned here that it is not the case of the defendant that any partition deed or memorandum of partition was prepared. D.W.6 is hearsay witness and is unable to give boundary of any land of either Jangli Devi or Sheonarain Sao. D.W.7 claims that in his presence partition took place through Panchayati and paper was prepared. It may be mentioned here that it is not the case of the defendant that any partition deed or memorandum of partition was prepared. Further he is unable to say the boundary of any land. 21. The plaintiffs have also adduced oral evidence. P.W.5 is the next door neighbour of Sheonarain Sao. He has clearly stated that wife of Sheonarain Sao died in the year 1969 and that there was no partition between mother and son. Sheonarain Sao is cultivating the entire land. P.W.9 is relative whose house is also adjacent to the house of Sheonarain Sao. He also stated that wife of Sheonarain Sao died in 1969 and denied partition and according to this witness, mother and son are joint and Sheonarain Sao cultivates the land. P.W.10 is the husband of plaintiff who also supported the case pleaded by the plaintiff. According to this witness also, his mother-in- law died in 1969. P.W.12 is Sheonarain Sao himself. He has fully supported the case of the plaintiff. 22. The plaintiffs have also produced documentary evidences. Ext.5 is sale deed dated 13.04.1978 executed by Sheonarain Sao and Sheela Devi. According to the defendants, the lands sold by this sale deed was allotted to Jangli Devi in partition in the year 1971. If in fact as alleged by defendant, the land was allotted to Jangli Devi then how the same was sold by Sheonarain Sao, there is no explanation at all. Therefore, the case of the defendant is falsified. Ext.6 is the Rehan deed of the year 1970 which was redeemed by Sheela Devi in the year 1975 and this land also is with respect to the land said to have been allotted in the share of Jangli Devi according to defendant. Ext.12 is the Ration Card wherein Dhaneshwari Devi is shown as member of Sheonarain Sao and this Ration Card is joint which is of the year 1983. Ext.13 is voter list the name of Sheonarain Sao and Jangli Devi are entered in the same holding which shows that they were residing in one house. Ext.12 is the Ration Card wherein Dhaneshwari Devi is shown as member of Sheonarain Sao and this Ration Card is joint which is of the year 1983. Ext.13 is voter list the name of Sheonarain Sao and Jangli Devi are entered in the same holding which shows that they were residing in one house. In view of these evidences produced by the plaintiff coupled with the presumption that every Hindu family is presumed to be joint, the only pleading and oral evidence of the defendant cannot be relied upon for the reasons that when wife of Sheonarain Sao died in the year 1969, there was no question of ill treating by her to Jangli Devi arises. It is not the case of the defendant that she was being ill treated by either Sheonarain Sao or his daughter. 23. In view of the above evidences, therefore, I find that there was no partition between Jangli Devi and Sheonarain Sao. The finding of the Court below on this question is, therefore, confirmed. 24. In the sale deed ext.B, there is recital that there had been partition between Jangli Devi and Sheonarain Sao. In view of the above finding, this recital is incorrect. The learned counsel for the appellant submitted that there was partition or no partition but it is admitted fact that Jangli Devi had 50 per cent share in the land measuring 3.40 acres and in fact the plaintiffs have admitted her title, therefore, now they cannot be allowed to challenge her title. So far this submission is concerned, it may be mentioned here that the plaintiffs have come with definite case that because of these facts enumerated in paragraph 28 of the plaint, the ext.B sale deed is forged and fabricated. Now, therefore each and every aspect has to be examined by the Court. 25. The next circumstances shown by the plaintiff is that Jangli Devi had no necessity at all because she was maintained by her son. We have seen above that there had been no partition between mother and son. In other words, Jangli Devi was jointly residing with her son. The defendants only denied that Jangli Devi was not being maintained and so she was separate in mess and residence and land and his wife was ill treating her. This is only mere allegation in the written statement. In other words, Jangli Devi was jointly residing with her son. The defendants only denied that Jangli Devi was not being maintained and so she was separate in mess and residence and land and his wife was ill treating her. This is only mere allegation in the written statement. The another case made out by the defendant that she was in need of money because she was separate. All these cases have only been pleaded but no reliable evidence have been adduced. When she was being maintained by his son and when we found above that she was joint with her son, there is no question of her separate need arises. 26. The next point raised by the plaintiff is that the land was sold for a meager amount. According to the plaintiff in the year 1983, the value of the land was Rs.5000/- per katha. In support of their contentions, the plaintiffs have produced ext.5 C, 5D and 5E sale deed which are of December, 1983. One of the vendor, Budhan Sao had been examined as P.W.13. In ext.5/C which is certified copy of registered sale deed dated 21.09.1983, Kamla Devi, the defendant No.2, herself purchased plot No.128 which is adjacent North to plot No.127. P.W.13 has stated that he has sold 3 decimal for Rs.5000/-. In this sale deed in the southern boundary, the name of Sheonarain Sao was given. It may be mentioned here that this sale deed is dated 21.09.1983 when Jangli Devi was alive. If plot No.127 was allotted to Jangli Devi then in this sale deed ext.5/C, the name of Jangli Devi should have been mentioned by defendant No.2. Ext.5/D and 5/E which are dated 1.12.1983 executed by Budhan Sao P.W.13 show that he has sold lands of 3 decimal each for Rs.5000/- 5/F is sale deed dated 26.06.1985 which is with respect to 2 katha and for Rs.10,000/-. In view of the above position, there is no dispute that the lands which is adjacent to the disputed land were sold for Rs.5000/- per katha in the year 1983. If this is the price, then why Jangli Devi sold 1 acre 16 decimal for Rs.25,000/- only. According to the learned counsel for the appellant, on the ground of inadequacy of consideration amount, the sale deed cannot be said to be illegal or void document. If this is the price, then why Jangli Devi sold 1 acre 16 decimal for Rs.25,000/- only. According to the learned counsel for the appellant, on the ground of inadequacy of consideration amount, the sale deed cannot be said to be illegal or void document. No doubt, on this ground alone, it cannot be said the sale deed is void document but here the facts are different. The plaintiff is giving the details of the fact and circumstances to show that how this deed have been fabricated. It may be mentioned that there is no contrary evidence produced by the defendant to rebut the above registered sale deeds regarding the valuation of the land. It is not denied by the defendant that plot No.128 is adjacent to the suit plot No.127. If plot No.128 was purchased by defendant No.2 for Rs.5000/- for 3 decimal rate, it is not believable that she purchased 1 acres 16 decimal for Rs.25,000/- only just two month prior to ext.5/C. This valuation given in the registered sale deed, ext.5/E, is unconceivable and unreasonable valuation. There is no reason as to why the old lady who is residing with her son could have sold the land in throw away price. 27. The next circumstances shows by the plaintiff is that Ashrfi Lal Singh, the husband of Kamla Devi was pressing Sheonarain Sao to sell the property because his house was just adjacent to plot No.127. But defendant No.4, Sheonarain Sao refused. The alias name of Jangli Devi was Dhaneshwari Devi but the registered deed was never executed by her, therefore, wrongly the alias name has been mentioned as Rukmini Devi. One of the attesting witness namely, Nasib Singh is Dewar of defendant No.2. Nobody accompanied alleged Jangli Devi to the Registry office for presentation of the sale deed because Jangli Devi died at the age of 90 and it is not expected that an old lady of 90 years old would have gone to Registry office without the help of any of her relative, particularly when her son, grand daughter and the husband and children of grand daughter were there. There is no allegation made by the defendants to show that the relationship of mother and son and the grand daughter and children of grand daughters was so strained that nobody accompanied her either for scribing the document or for presenting the same before the Registrar. There is no allegation made by the defendants to show that the relationship of mother and son and the grand daughter and children of grand daughters was so strained that nobody accompanied her either for scribing the document or for presenting the same before the Registrar. In view of the above fact, now it becomes clear that no person related to Jangli Devi was present either at the time of scribing the sale deed or at the time when the document was produced before the Registrar for registration. The recital made in the registered sale deed regarding partition between Jangli Devi and Sheonarain Sao is entirely false statement. Likewise, the consideration amount was very meagre. It further appears that there was no legal necessity or need of Jangli Devi and moreover, nothing has been brought on record to show that the need was so dire and urgent that old lady sold that very property which Ashrfi Lal Singh was pressing the son of Jangli Devi to sell. 28. So far passing of consideration is concerned, no doubt, the defendants have adduced evidence in support of the fact that Rs.15,000/- was paid prior to registration of the sale deed and Rs.10,000/- was paid at the time of ta khubzul badlain. D.W.1 and D.W.5 have said that Rs.10,000/- was paid in their presence at the time of ta khubzul badlain. There is great contradiction between the evidence of D.W.1 and D.W.5. D.W.1 says that Rs.15,000/- was paid four days prior to execution of the sale deed whereas D.W.5 says that Rs.15,000/- was paid six months before the execution of the sale deed whereas D.W.2 says that Rs.15,000/- was paid eight days prior to the execution of the sale deed. When the plaintiffs categorically pleaded that no consideration amount was paid, the appellants should have produced cogent and reliable evidence in support of the payment of the consideration amount. The evidences produced by the defendants appears that those are formal in nature who have stated that in their presence, amount was paid but in the cross-examination, they fail to substantiate the case of the appellant. In view of the evidence of D.W.1, D.W.2 and D.W.5, it appears that there must have been any negotiation to sell the property otherwise the amount could not have been paid either four days or eight days or six months prior to execution of the sale deed. In view of the evidence of D.W.1, D.W.2 and D.W.5, it appears that there must have been any negotiation to sell the property otherwise the amount could not have been paid either four days or eight days or six months prior to execution of the sale deed. The plaintiffs at paragraph 28 of the plaint categorically stated that there was no negotiation with Jangli Devi for sell of the land. D.W. 1 has stated that the negotiation was finalized at the residence of Ram Chandra Mishtri and at that time Kamla Devi Jagdeo Rai, Nasib Rai and Ashrfi Lal were present. The other witness D.W.2 named the persons who were present at the time of execution of the sale deed. D.W.7 contrary to the evidence of D.W.1 stated that negation took place in the house of Jangli Devi and at that time Kamla Devi, Raj Ballabh Rai, Jagdeo Rai and Ashrfi Rai were present. D.W.9 who is scribe clearly stated that he was not knowing Jangli Devi or the witnesses prior to the date of the sale deed. 29. From the above witnesses examined by the defendant regarding negotiation, it appears that none of the witnesses stated that any of the relation of Jangli Devi either her son or her grand daughter or husband of grand daughter or their children were present at the time of negotiation. One witness said that negotiation was held in the house of another person whereas one witness said that negotiation took place in the house of Jangli Devi. Again here there is no explanation as to why no relation of Jangli Devi was present at the time of negotiation. 30. The learned counsel, Mr. Verma, for the appellant submitted that since the document is registered and the same has been produced from the custody of the appellant, the presumption is that entire consideration amount was paid. No doubt, there is a presumption of payment of consideration amount, if the document is produced from the custody of the vendee but then this presumption is rebuttable. The learned counsel relied upon the decision of Hon’ble Supreme Court in the case of Janak Dulari Devi Vs. Kapildeo Rai 2011 (6) SCC 555 . No doubt, there is a presumption of payment of consideration amount, if the document is produced from the custody of the vendee but then this presumption is rebuttable. The learned counsel relied upon the decision of Hon’ble Supreme Court in the case of Janak Dulari Devi Vs. Kapildeo Rai 2011 (6) SCC 555 . From perusal of the said decision, it appears that the Hon’ble Supreme Court has held that ‘as per practice of ta khubzul badlain prevalent in Bihar (that is, title to the property passing to the purchaser only when there is exchange of equivalents), where a sale deed recites that the entire sale consideration has been paid and possession has been delivered, but the registration receipt is retained by the vendor and possession of the property is also retained by the vendor, as the agreed consideration (either full or a part) is not received, irrespective of the recitals in the sale deed, the title would not pass to the purchaser, till payment of the entire consideration to the vendor and the registration receipt is obtained by the purchaser in exchange.’ In the present case, the specific case of the plaintiff is that not a single farthing has been paid. Therefore, merely because there is exchange of equivalent, it cannot be said conclusively that consideration amount was paid. As discussed above, there is shaky evidence produced by the appellants. Moreover, when it is pleaded by the plaintiff that the sale deed itself was never executed by Jangli Devi nor she put her left thumb impression, there is no question of payment of consideration to Jangli Devi arises. 31. In view of the above facts now let us consider whether in fact the sale deed was executed by Jangli Devi and she put her left thumb impression on the same. We have considered the evidences and the facts and circumstances leading to execution of this sale deed. The appellants have failed to prove that there had been partition between Jangli Devi and her son. They also failed to prove / explain as to why the land measuring 1 acre 16 decimal was sold for a poultry sun of Rs.25,000/-. We have considered the evidences and the facts and circumstances leading to execution of this sale deed. The appellants have failed to prove that there had been partition between Jangli Devi and her son. They also failed to prove / explain as to why the land measuring 1 acre 16 decimal was sold for a poultry sun of Rs.25,000/-. The appellants also failed to prove the need of Jangli Devi and that there was so strained relation between her relatives and why none of the relations of Jangli Devi were not present at the time of execution and registration of the sale deed. 32. In view of the above facts and circumstances which have been pleaded and proved by the plaintiff, the genuineness of the registered sale deed is to be examined. The plaintiff has examined expert, P.W.20, who has compared the admitted signature of Ashrfi Lal Singh with that of Moti Lal Singh on first page of ext.B, the registered sale deed dated 29.07.1983. He opined that the signature is of same person. The expert also examined the left thumb impression of Jangli Devi as occurring on first page of ext. B with the left thumb impression of Kamla Devi which is admitted and opined that it tallies. Ext.16 is the report of the expert. Ext.15H, 15/I, 15/J and 15 /K are the admitted writings of Ashrfi Lal Singh and ext.15/F is disputed writing of Motilal Singh. The specific case of the plaintiff is that Motilal Singh has not signed as attesting witness of ext.B. It may be mentioned here that Motilal Singh was never produced by the defendants. In view of the above opinion of P.W.20, now it is clear that signature and writing of Ashrfi Lal tallies with the disputed signature of Moti Lal Singh. In other words, the signature and writing as Moti Lal Singh is of Ashrfi Lal, the husband of defendant No.2. Likewise in view of the report of P.W.20, i.e., ext.16, the left thumb impression of defendant No.2, Kamla Devi tallies with that of Jangli Devi occurring on ext.B. It goes without saying that the left thumb impression is not of Jangli Devi but is of Kamla Devi, the defendant No.2. 33. Likewise in view of the report of P.W.20, i.e., ext.16, the left thumb impression of defendant No.2, Kamla Devi tallies with that of Jangli Devi occurring on ext.B. It goes without saying that the left thumb impression is not of Jangli Devi but is of Kamla Devi, the defendant No.2. 33. So far this question is concerned, the learned counsel for the appellant submitted that there is no pleading in the plaint nor any evidence was adduced by the plaintiff to the effect that Kamla Devi put her left thumb impression in place of Jangli Devi and Ashrfi Lal Singh identified her as Moti Lal Singh. Therefore, this evidence being based on no pleading is not reliable and the findings cannot be based on these evidence. The learned counsel relied upon the decision of the Hon’ble Supreme Court in the case of Bachhaj Nahar Vs. Nilima Mandal A.I.R. 2009 SC 1103 = 2008 (17) SCC 491 and 2013 (1) PLJR 48 SC Union of India vs. Ibrahim Uddin. 34. The Hon’ble Supreme Court in the case of Bachhaj Nahar (supra) has held ‘the object and purpose of pleadings and issues is to ensure that the litigants come to trial with all issues clearly defined and to prevent cases being expanded or grounds being shifted during trial. Its object is also to ensure that each side is fully alive to the questions that are likely to be raised or considered so that they may have an opportunity of placing the relevant evidence appropriate to the issues before the Court for its consideration. A case not specifically pleaded can be considered by the Court only where the pleadings in substance, though not in specific terms, contains the necessary averments to make out a particular case and the issues framed also generally cover the question involved and the parties proceed on the basis that such case was at issue and had led evidence thereon.’ 35. The Hon’ble Supreme Court in the case of Union of India (supra) at paragraph 69 (vii) held that ‘the Court cannot travel beyond the pleadings as no party can lead the evidence on an issue / point not raised in the pleading and in case, such evidence has been adduced or a finding of fact has been recorded by the Court, it is just to be ignored. Though it may be a different case where in spite of specific pleadings, a particular issue is not framed and parties having full knowledge of the issue in controversy lead the evidence and the Court records a finding on it.’ 36. So far these decisions are concerned, it may be mentioned here that the specific case pleaded by the plaintiff is that the sale deed is not executed by Jangli Devi nor she put left thumb impression on it. On the other hand, the defendant appellant pleaded that it was executed by Jangli Devi and she put her left thumb impression. Therefore, this point as to whether left thumb impression is of Jangli Devi or not was an issue between the parties and this was the most important issue. The other matter is that when no relation of the plaintiff was present as found above and admitted by the witness of the defendants how the plaintiff could have mentioned the person who signed as Moti Lal Singh and the person who put left thumb impression as Jangli Devi as it was not known to the plaintiff. Therefore, there is specific denial. In such circumstances, the plaintiff prayed before the Court for allowing to take photograph of the different left thumb impression and signatures for comparison with the signature and left thumb impression of Asharfi and Kamla Devi. The Court below repeatedly directed the defendant No.2 to produce her husband Asharfi Lal Singh for giving sample of signature / writing so that it may be compared with signature of Moti Lal Singh. In spite of repeated direction, Ashrafi Lal never appeared before the Court. Likewise repeatedly, the defendant No.2, Kamla was directed to give sample of her left thumb impression for comparison with the so-called left thumb impression of Jangli Devi but she refused and never gave any sample. Now, in view of the above facts, can it be said that the defendant No.2 or her husband were not knowing that their left thumb impression or signature is going to be compared with signature of Moti Lal Singh and left thumb impression of Jangli Devi respectively. Now, in view of the above facts, can it be said that the defendant No.2 or her husband were not knowing that their left thumb impression or signature is going to be compared with signature of Moti Lal Singh and left thumb impression of Jangli Devi respectively. They were knowing fully the fact that their signature and left thumb impress is going to be compared, they did not give their signature and left thumb impression before the Court and, therefore, they tried to prevent the Court of law from arriving at a finding. In other words, they refused to assist the Court. Now, therefore, can they be allowed to say that because there is no pleading in the plaint, the Court could not have compared their writing and signature with that of Moti Lal Singh and Jangli Devi. The answer will be ‘No’. The Hon’ble Supreme Court as quoted above has clearly held that ‘a case not specifically pleaded can be considered by the court only where the pleadings in substance, though not in specific terms, contains the necessary averments to make out a particular case.’ Here though the plaintiff has not specifically pleaded and the plaintiff could not have specifically pleaded because the plaintiff’s case is that someone impersonated Jangli Devi and likewise attesting witnesses Moti Lal Singh. Therefore, this is the specific pleading. Whether Kamla Devi impersonated Jangli Devi and Ashrfi Lal Singh impersonated Moti Lal Singh is a matter of record and that can only be seen after comparison. The plaintiff cannot be expected to know who the person were, who were impersonating either Jangli Devi or Moti Lal Singh. In such view of the matter, in the present case, the appellants were not taken to surprise. They were directed by the Court repeatedly on the request of the plaintiff. In the facts and circumstances of the present case, therefore, on the ground of no pleading, this evidence produced by the plaintiff cannot be discarded and the Court cannot shut the eyes on this ground, particularly when now it has been proved that Moti Lal Singh has been impersonated by Ashrfi Lal Singh and Jangli Devi was impersonated by Kamla Devi according to report of P.W.20, i.e., ext.16. Kamla Devi is the defendant No.2 who is purchaser in the sale deed and her husband is Ashrfi Lal who was pressing to sell the property to Sheonarain Sao. Kamla Devi is the defendant No.2 who is purchaser in the sale deed and her husband is Ashrfi Lal who was pressing to sell the property to Sheonarain Sao. Therefore, considering the peculiar facts and circumstances of this case, in my opinion, both the decisions relied upon by learned counsel for the appellant will not help the appellant. 37. The learned counsel for the appellant submitted that the report of the expert of the defendant ext. D has not been analyzed by the Court below and the evidence of D.W.10 has also not been discussed. From perusal of the Judgment at paragraph 36, it appears that the Court below held that the complete study of the report of the two experts, it is clear that the evidence of P.W.20 is acceptable and opinion of D.W.10 is not acceptable. 38. It will not be out of place to mention here that D.W.10 at paragraph 7 of his cross-examination has admitted that he has not obtained any decree from any Government institution, therefore, merely because the Court below has not discussed the opinion, the Judgment cannot be said to be vitiated moreover he himself has admitted that he has not obtained any certificate from any Government institution. In such view of the matter, there is no reason as to why the report, ext.D, be not discarded. 39. In view of the above discussion, I find that the sale deed ext.B was not executed by Jangli Devi and Moti Lal Singh has not attested the sale deed. In fact in place of Jangli Devi, Kamla Devi put her left thumb impression and in place of Moti Lal Singh, Ashrfi Lal Singh has signed. In view of the above finding, there is no question of presumption of validity or genuineness of the sale deed arises. Therefore, the decision relied upon by the learned counsel for the appellant, i.e., the case of Sitasaran Prasad (supra) will not come in aid of the appellant. 40. So far the submission of the learned counsel that ext.4 the affidavit and ext.4/A are concerned, are inadmissible. It may be mentioned here that even if these evidences are discarded, then also the plaintiffs have produced reliable evidences oral and documentary in support of their cases. 41. 40. So far the submission of the learned counsel that ext.4 the affidavit and ext.4/A are concerned, are inadmissible. It may be mentioned here that even if these evidences are discarded, then also the plaintiffs have produced reliable evidences oral and documentary in support of their cases. 41. So far the submission that there was no occasion for gifting the property by the father Sheonarain Sao and grand mother Jangli Devi to plaintiff because she was the only heir is concerned, it may be mentioned that on this ground, it cannot be said that the sale deed is genuine sale deed. 42. So far the argument advanced by the appellant regarding comparison of left thumb impression of Jangli Devi occurring in ext.B the sale deed with the registered gift deed ext.3 to the effect that ext.3 is also disputed document is concerned, as stated above, we have already found that left thumb impression occurring on ext.B is not of Jangli Devi. Now, therefore, the opinion of the expert P.W.20 regarding comparison of left thumb impression of ext.B with left thumb impression of ext.3 will make no difference and even if it is discarded then also it has been found that left thumb impression on ext.B is not of Jangli Devi. 43. In view of my above discussions, the plaintiffs have been able to prove the fact that the sale deed dated 29.07.1983, ext.B, was not executed by Jangli Devi. They also proved that no consideration amount was paid to Jangli Devi and false recitals have been mentioned in the sale deed. Therefore, the findings of the trial Court on these questions upheld. 44. In the result, this First Appeal is dismissed with cost of Rs.10,000/- to be paid by the appellants to the respondents within 2 months failing which the respondent shall realise the same through process of Court. ?