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2016 DIGILAW 1773 (HP)

Kashmiri Lal v. Seeta Devi through her L. R.

2016-08-24

AJAY MOHAN GOEL

body2016
JUDGMENT : Ajay Mohan Goel, J. This appeal has been filed by the appellant-defendant against the judgment and decree passed by the Court of learned District Judge, Una, in Civil Appeal No. 88 of 2003 dated 02.08.2004, vide which, learned Appellate Court allowed the appeal filed by the plaintiff against the judgment and decree passed by the learned Sub Judge 1st Class, Court No.2, Una, in Civil Suit No. 177 of 1995 dated 18.08.2003. 2. This appeal was admitted on 16.11.2004 on the following substantial questions of law: “1. Whether the judgment of the first appellate court is perverse and based on misreading of the oral and documentary evidence as also the pleadings of the parties? 2. Whether the evidence of the defendant was illegally closed by the trial Court resulting in manifest injustice to the appellant? 3. Whether adverse inference can be drawn against the party who does not appear as witness?” 3. Brief facts necessary for the adjudication of this case are that plaintiff Sita Devi filed a suit for declaration to the effect that she was owner in possession of the suit land and the alleged fake sale deed No. 275, purported to have been executed on 10.03.1995 and registered on 14.03.1995 in favour of the defendants by her, was a result of fraud, undue influence, misrepresentation, without consideration, null and void and was inoperative having no effect on the right, title or interest of the plaintiff as owner in possession of the suit land. She also prayed for consequential relief of permanent injunction restraining the defendant from interfering in the suit land in any manner, claiming any right, title or interest therein, taking forcible possession, alienating in any manner, raising any sort of construction etc. over the suit property. In the alternative, she prayed for decree of possession thereof. According to the plaintiff, she was an old, infirm and simpleton lady, aged about 50 years and was illiterate and rustic, residing in her parental house in the village Basal, Tehsil and District Una and she had succeeded property of her father alongwith mother. over the suit property. In the alternative, she prayed for decree of possession thereof. According to the plaintiff, she was an old, infirm and simpleton lady, aged about 50 years and was illiterate and rustic, residing in her parental house in the village Basal, Tehsil and District Una and she had succeeded property of her father alongwith mother. It was further her case that land measuring 0-23-02 being 6/43 share of total land, measuring 1-65-01 comprised in Khewat No. 98, Khatauni No. 134 to 138, Qita 20, as entered in Misal Hakiyat Bandobast Jadid Sani for the year 1987-88, situated in up Mohal Galua, Mohal Basal, Tehsil and District Una, was owned and possessed by the plaintiff alongwith other co-sharers and the defendants had got not right, title or interest in the suit property. According to her, defendant No. 1 used to visit plaintiff at her house at village Basal and he used to assure her that he will help her in tracing her missing husband. According to her, defendant No. 1 visited her house in the 1st week of March, 1995 and told her that since her husband was missing for a period of more than 12 years, she was required to accompany him to Una to move necessary applications for the purpose of advertisement as well as for getting financial help from the government. Plaintiff was allured and on 10.03.1995, without doubting the integrity of the defendant No. 1 and considering his sympathetic approach, she accompanied defendant No. 1 to Una and on 10.03.1995, she put her thumb impression on certain papers and registers at the instance of defendant No. 1, purported to be the papers required for publication material for tracing her missing husband. As per the plaintiff, she never intended to execute any other document other than the documents required for advertisement for tracing her missing husband. It was further her case that after getting executed the alleged papers in connivance with the Deed Writer, she was again allured by the defendants to accompany them on 14.03.1995 to Una under the pretext of preparing application for getting financial assistance like pension etc. and plaintiff again, without doubting the integrity of the defendants, put her thumb impression on certain papers and register. and plaintiff again, without doubting the integrity of the defendants, put her thumb impression on certain papers and register. Thus, as per plaintiff, she never executed any sale deed and alleged sale deed was fake, fictitious, illegal and result of fraud, undue influence, misrepresentation, and the same was null and void. According to her, on the basis of fake sale deed, defendants were threatening since a week from the filing of the suit and also to alienate the same. According to the plaintiff, the factum of the execution of the sale deed was disclosed to her by defendant No. 1 and on these bases, she filed the suit. 4. The case of the plaintiff was contested by the defendants who interalia in their written statement mentioned that the plaintiff was neither owner nor in possession of the suit land and she had no locus-standi to file the suit as the plaintiff had sold the same in their favour vide sale deed dated 10.03.1995 on passing of sale consideration and said sale deed was duly registered. It was further the case of defendants that they have raised construction on the suit land after spending about Rs. 7.00 Lac and they were coming in possession of the suit land as its owners. As per the defendants, plaintiff had accepted the sale consideration before the Sub Registrar and had subsequently manufactured a wishful story and filed the suit against the defendants. It was denied by the defendants that either any advertisement was to be made or any aid from the government was to be received as was alleged by the plaintiff, on the basis of which she was purportedly allured by the defendants. 5. On the basis of pleadings of the parties, learned trial Court framed the following issues:- “1.Whether the plaintiff is owner in possession of the suit land, as alleged? OPP. 2. Whether the sale deed dated 10/3/95 is a result of fraud, undue influence and misrepresentation, as alleged? OPP 3. Whether the suit is valued properly, as alleged? OPD. 4. Whether the plaintiff has no locus-standi to file the present suit, as alleged? OPD. 5. Whether the plaintiff has no cause of action, as alleged? OPD 6. Whether the plaintiff is estopped to file the present suit by his acts and conduct, as alleged? OPD 7. Whether jurisdiction of this court is barred, as alleged? OPD. 8. Relief.” 6. 4. Whether the plaintiff has no locus-standi to file the present suit, as alleged? OPD. 5. Whether the plaintiff has no cause of action, as alleged? OPD 6. Whether the plaintiff is estopped to file the present suit by his acts and conduct, as alleged? OPD 7. Whether jurisdiction of this court is barred, as alleged? OPD. 8. Relief.” 6. The following findings were returned on the said issues by the learned trial Court:- “Issue No.1 : No. Issue No. 2 : No. Issue No. 3 : No. Issue No.4 : No. Issue No.5 : No. Issue No.6 : No. Issue No. 7 : No. Relief : The suit is dismissed as per the operative portion of judgment.” 7. On the basis of reasoning returned by the learned trial Court on the issues so framed, the suit so filed by the plaintiff was dismissed. 8. Feeling aggrieved by the said judgment passed by the learned trial Court, the plaintiff filed the appeal and the learned Appellate Court, vide judgment and decree dated 02.08.2004, accepted the appeal and decreed the suit of the plaintiff as under: “As a sequel of my detailed discussion made hereinabove, the present appeal succeeds and the same is accepted. The impugned judgment and decree of the ld. trial Judge is set aside and the suit of the plaintiff is decreed for declaration to the effect that the plaintiff is owner of the land measuring 0-23-02 being 6/43 share of total land measuring 1-65-01 comprised in khewat No. 98, Khatauni No. 134 to 138, total Qita 20 as entered in Misal Hakiat bandobast Jadid Sani for 1987-88, situate in Up Mohal Galua, Mohal Basal, Tehsil and District Una and the sale deed No. 275, purported to have been executed on 10.3.1995 registered on 14.3.1995 in favour of defendants in the office of Sub Registrar, Una is the result of fraud, undue influence, misrepresentation, without consideration, null and void, inoperative, having no right, title or interest in the suit land with a consequential relief a decree for recovery of possession is granted in favour of the plaintiff against the defendants with Costs. The plaintiff is also directed to make deficiency of the court fee good on the plaint as well as on memo of appeal within a period of 45 days failing which the plaint shall be deemed to have been rejected under Order 7 Rule 11 CPC. The plaintiff is also directed to make deficiency of the court fee good on the plaint as well as on memo of appeal within a period of 45 days failing which the plaint shall be deemed to have been rejected under Order 7 Rule 11 CPC. Decree sheet be prepared accordingly.” 9. Mr. K.D. Sood, learned Senior Counsel appearing for the appellant has argued that the judgment and decree passed by the learned Appellate Court was not sustainable as the learned Appellate Court has failed to appreciate that there were no specific pleadings of fraud made in the plaint and this very important aspect of the matter had been lost sight of by the learned Appellate Court. According to Mr. Sood, while decreeing the suit of plaintiff, learned Appellate Court had completely misread, both oral as well as documentary, evidence placed on record by the parties and learned Appellate Court had also erred in not appreciating that the evidence of the defendants was illegally closed by the learned trial Court. It was also argued that learned Appellate Court had also erred in drawing adverse inference against the defendants for not appearing as a witness in the case. 10. On the other hand, Mr. Ajay Kumar, learned Senior Counsel appearing for the respondent has argued that there is no infirmity or perversity with the judgment and decree passed by the learned Appellate Court and the said court after correctly appreciating the pleadings and evidence on record had set aside the judgment and decree passed by the learned trial Court and decreed the suit of the plaintiff. It was argued by Mr. Ajay Kumar that the requirement of Order 6 Rule 4 of the Code of Civil Procedure (for short ‘CPC’) was duly borne out from the contents of the plaint and after the plaintiff had led her evidence, the onus shifted upon the defendants to prove that a valid sale deed was in fact executed, especially keeping in view the fact that the plaintiff was a rustic and illiterate lady. Mr. Ajay Kumar also argued that it is not as if that the evidence of the defendant was illegally closed by the learned trial Court. He argued that even after ample opportunities were given to the defendants to lead evidence, as no evidence was led, learned trial Court had no option but to close the same. Mr. Mr. Ajay Kumar also argued that it is not as if that the evidence of the defendant was illegally closed by the learned trial Court. He argued that even after ample opportunities were given to the defendants to lead evidence, as no evidence was led, learned trial Court had no option but to close the same. Mr. Ajay Kumar, further pointed out that the order, vide which the evidence of the defendants was closed and subsequent order passed by the learned trial court dated 31.05.2003, vide which, application filed by the defendants under Order 16 Rule 7 read with Order 47 Rule 1 and 151 of CPC has been dismissed, had attained finality. Accordingly, he argued that there was no merit in the appeal and the same be dismissed. 11. I have heard the learned counsel for the parties and also gone through the records of the case as well as the judgments passed by both learned Courts below. 12. Order 6 Rule 4 of Civil Procedure Code provides as under: “4. Particulars to be given where necessary.- In all cases in which the party pleading relies on any misrepresentation, fraud, breach of trust, willful default, or undue influence, and in all other cases in which particulars may be necessary beyond such as are exemplified in the forms aforesaid, particulars (with dates and items if necessary) shall be stated in the pleading.” 13. Paragraphs 2 to 7 of the plaint are reproduced hereinbelow: 2. That the plaintiff is an old infirm, simpleton, lady aged about 50 years and is illiterate, rural rustic, residing in the parental house in village Basal, Tehsil and District Una, H.P. as the plaintiff has succeeded property of her father along with mother (though mother of the plaintiff has also died and plaintiff being sole successor has succeeded to her estate also). The defendants used to visit the plaintiff’s house at Basal off and on and asked her to trace her missing husband. 3. The defendants used to visit the plaintiff’s house at Basal off and on and asked her to trace her missing husband. 3. That defendant No. 1 in the first week of March 1995 came to house of the plaintiff at village Basal and told the plaintiff that since husband of the plaintiff is missing for a period of about 12 years back, the plaintiff is required to accompany defendant No. 1 to Una to move necessary applications for the purpose of advertisement as well for getting the financial help from the government and being allured by the plaintiff he promised to get the necessary formalities carried out. Plaintiff on 10-3-1995 without doubting the integrity of the defendant No. 1 and considering sympathetic approach of defendant No. 1, the plaintiff accompanied defendant No. 1 to Una. 4. That reposing confidence in defendant No. 1 the plaintiff on 10-3-1995 made to put certain thumb impressions on certain papers and registers at the instance of defendant No. 1 purported to be papers required for publication material for tracing the missing husband of the plaintiff. However, the plaintiff never intended to execute any other document other than for the purpose of making advertisement qua the tracing of missing husband of the plaintiff. 5. That after getting the alleged papers in connivance with the Deed Writer by defendant No. 2 under the hatching conspiracy of Rattan Chand of village Smoor the plaintiff was again required to come to Una for the purpose of preparing application for the financial assistance being given by the government as a matter of aid to the plaintiff due to the reason of her missing husband and on 14-3-995 the plaintiff was again to accompany to Una where again under the pretext of preparation of the application for getting financial assistance like of pension, the plaintiff without doubting the integrity and smelling of any foul play put thumb impression on certain papers and register. 6. That the plaintiff has never executed nor got registered any sale deed and alleged sale deed is fake, fictitious, illegal is the result of fraud, undue influence, misrepresentation null and void without any consideration is a sham transaction mere waste paper and have no effect upon the rights, title or interest of the plaintiff as the alleged sale deed does not create, convey or confirms any valid legal title to the defendants. 7. 7. That on the basis of said sham and fake sale deed the defendants are threatening since a week back to take forcible possession of the land in suit and to get the same alienated and also interfering therein in order to change the nature and character by raising construction and get the entries changed in their name in connivance with the field staff for which the defendants absolutely have got no right to do so in any manner. The act of the defendants is highly illegal, uncalled for and unwarranted. The plaintiff was not allowed to seek any legal advice in the matter.” 14. Order 6 Rule 4 requires that necessary and material facts with regard to misrepresentation, fraud, breach of trust or undue influence etc. should be pleaded in support of the case set up by the plaintiff and in the absence of pleadings, the evidence, if any, cannot be considered. The object of said rule is that in order to have a fair trial, it is imperative that the parties should state material facts so that the other party may not be taken by surprise. Law presumes primafacie case in favour of deeds duly executed. Therefore, ordinarily a person who challenges the validity of a transaction on the ground of fraud, undue influence etc. and draws the other party with bad faith has the burden of proof on him. However, where on account of existence of fiduciary relationship, one of them is in a position to exert undue influence over the other and take any benefit of the same, the burden of proving the good faith of the transaction is thrown upon dominant party. In this background, when we peruse the averments which have been made in the plaint, in my considered view, by no stretch of imagination, it can be said that the averments made in the plaint do not confirm to the provisions of Order 6 Rule 4 CPC, the incidents of fraud and undue influence were duly illustrated in the plaint and it cannot be said that the defendant was taken by surprise on the allegations of fraud and undue influence though these were not borne out from the plaint. 15. 15. Hon’ble Supreme Court in Subhash Chandra Das Mushib v. Ganga Prosad Das Mushib and others, AIR 1967 Supreme Court 878, has held as under: “Before, however a court is called upon to examine whether undue influence was exercised or not, it must scrutinize the pleadings to find out that such a case has been made out and that full particulars of undue influence have been given as in the case of fraud. See Order 6 Rule 4 of the Code of Civil Procedure. This aspect of the pleading was also given great stress in the case of Ladli Prasad Jaiswal, (1964) 1SCR 270: ( AIR 1963 SC 1279 ) above referred to. In that case, it was observed (at p. 205) (of SCR): (at p. 1288 of AIR): “A vague or general plea can never serve this purpose; the party pleading must therefore be required to plead the precise nature of the influence exercised, the manner of use of the influence, and the unfair advantage obtained by the other”.” 16. Besides this, in the present case, the defendant has not led any evidence in order to support its case that the sale deed under challenge was not a result of fraud and undue influence but was duly executed by the plaintiff in their favour and when the same was executed, the plaintiff was aware as to what was the transaction being carried out at the relevant time. Neither the defendant himself has entered the witness box nor any other evidence has been produced, either ocular or testimony, in support of its case by the defendant. 17. As per the records of the learned trial Court, on 14.06.2001, the matter was fixed for 03.09.2001 for recording the evidence of the defendants. The evidence of the defendants was closed vide order dated 7.10.2002, in view of the fact that no D.Ws were present despite sufficient opportunities having been granted. 18. Thereafter, the defendants moved an application under Order 16 Rule 7 read with Order 47 Rule 1 and 151 of CPC which was also dismissed by learned trial Court on 31.05.2003 and thereafter case was ordered to be listed for arguments on 07.08.2003. The orders vide which the evidence of the defendants was closed and the application under Order 16 Rule 7 read with Order 47 Rule 1 and 151 of CPC was dismissed, have attained finality. 19. The orders vide which the evidence of the defendants was closed and the application under Order 16 Rule 7 read with Order 47 Rule 1 and 151 of CPC was dismissed, have attained finality. 19. The arguments of learned Senior Counsel appearing for the appellant that the learned Appellate Court has erred in holding that the defendants did not lead any evidence whereas the fact of the matter was that the right of the defendants to lead evidence was wrongly closed, is without merit. As is evident from the discussion made hereinabove, despite ample opportunities having been given to the defendants to lead evidence, no evidence was led. It is in these circumstances that the right of the defendants to lead evidence was closed by the learned trial Court. Application filed by the defendants under Order 16 Rule 7 read with Order 47 Rule 1 and 151 of CPC was also dismissed by the learned trial Court and these orders have attained finality. Learned trial Court gave opportunities to the defendants to lead his evidence for more than one year but of no avail. Therefore, in these circumstances, the findings returned by the learned Appellate Court to the effect that defendants did not lead any evidence, cannot be faulted. 20. Further, keeping in view the fact that the plaintiff is a rustic elderly lady and she had produced evidence on record in support of her version that the alleged sale deed executed by her in favour of defendants was a result of fraud and undue influence, the onus was now upon the defendants to prove to the contrary. The defendants by failing to lead any evidence in this regard have miserably failed to discharge the said onus whereas the plaintiff did prove, on the basis of material placed on record, both ocular as well as documentary, that the sale deed was a result of fraud and undue influence. 21. Therefore, in these circumstances, in my considered view, it cannot be said that the findings returned by the learned Appellate Court are result of misreading or misrepresentation of evidence. 21. Therefore, in these circumstances, in my considered view, it cannot be said that the findings returned by the learned Appellate Court are result of misreading or misrepresentation of evidence. As far as the factum of drawing adverse inference against a party who does not appear as a witness, is concerned, in my considered view, in the present case, despite ample opportunities having been given by the learned trial Court to the defendant to lead evidence, neither evidence was led by the defendant nor he himself entered into the witnesses box. In this background, it is but obvious that adverse inference has to be drawn against the party which neither leads any evidence nor puts in appearance in the witness box as a witness. The substantial questions of law are answered accordingly. 22. In view of the fact that there is no merit in the present appeal, while upholding the judgment and decree passed by the learned Appellate Court, the present appeal is dismissed with costs. Pending applications, if any, also stands disposed of.