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2016 DIGILAW 201 (HP)

Shri Ram Sukh v. Mast Ram

2016-03-08

RAJIV SHARMA

body2016
JUDGMENT : Rajiv Sharma, J. This regular second appeal is directed against the judgment and decree of the learned District Judge, Hamirpur, H.P. dated 1.11.2004, passed in Civil Appeal No. 58 of 2002. 2. Key facts, necessary for the adjudication of this regular second appeal are that the respondent-plaintiff (hereinafter referred to as the plaintiff) has filed a suit against the appellant-defendant (hereinafter referred to as the defendant) for possession and cancellation of sale deed dated 8.4.1994 Ext. DW-1/A. The plaintiff's father Sh. Durga died on 29.9.1994. He was owner-in-possession of the suit land as detailed in the plaint. The plaintiff Sh. Mast Ram, Smt. Shankru and Smt. Soma Devi are the legal heirs of late Sh. Durga. He was about 95 years of age. His father never executed any sale deed in favour of the defendant. He was neither in disposing state of mind nor he could put thumb impression on any document. The defendant forcibly occupied the suit land on the basis of forged sale deed. It is, in these circumstances, the plaintiff has prayed for decree that the alleged sale deed dated 8.4.1994, in the custody of the defendant in respect of the suit land, was never executed by the deceased Durga and in the alternative the plaintiff sought the relief that the sale deed be adjudged fraudulent and void and the possession of the suit land be delivered to the plaintiff. 3. The suit was contested by the defendant. According to him, he became owner of the suit land by way of sale deed dated 8.4.1994 executed by late Sh. Durga in favour of defendant for consideration of Rs. 17,000/-. 4. The learned Sub Judge (I), Hamirpur, H.P., framed the issues on 12.11.1999 and suit was dismissed on 27.2.2002. Feeling aggrieved, the plaintiff preferred an appeal before the learned District Judge, Hamirpur. The learned District Judge, Hamirpur, allowed the same on 1.11.2004. Hence, this regular second appeal. 5. This Regular Second Appeal was admitted on the following substantial questions of law on 6.12.2004: ?1. Whether the Lower Appellate Court has taken erroneous view of law and facts by holding the Exhibit DW-1/A, a suspicious document by putting reliance on such evidence which was in variance of the pleadings? Hence, this regular second appeal. 5. This Regular Second Appeal was admitted on the following substantial questions of law on 6.12.2004: ?1. Whether the Lower Appellate Court has taken erroneous view of law and facts by holding the Exhibit DW-1/A, a suspicious document by putting reliance on such evidence which was in variance of the pleadings? Has not the Lower Appellate Court ignored the basic principle of law that the plaintiff is supposed to stand on his own legs to prove the case and not to rely on the weaknesses of the defence, are not the findings of the Lower Appellate Court erroneous and perverse by ignoring such principles of law? 2. Whether the Lower Appellate Court has committed grave error of jurisdiction in holding the deceased Shri Durga to be incompetent to execute the document on account of alleged impairment of his mental faculty without there being any cogent, proper and legal medical evidence, are not the findings of the Lower Appellate Court illegal, erroneous, arbitrary and perverse? 3. Whether the Lower Appellate Court has ignored the provisions of Transfer Property Act (Section 54 of said Act) when the Sale Deed became final during the life time of late Shri Durga, who did not challenge the same on insufficiency of the passing of the consideration of the sale transactions during his life time?? 6. Mr. Bhupinder Gupta, learned Sr. Advocate, on the basis of substantial questions of law framed, has vehemently argued that sale deed Ext. DW-1/A was a valid document. He has supported the judgment and decree passed by the learned Sub Judge (I), Hamirpur dated 27.2.2002. He then contended that deceased Durga was competent to execute the document. He has also referred to Section 54 of the Transfer of Property Act. On the other hand, Mr. K.D.Sood, Sr. Advocate, has supported the judgment and decree of the learned first appellate Court dated 1.11.2004. 7. I have heard the learned Senior Advocates for the parties and gone through the judgments and records of the case carefully. 8 Plaintiff has appeared as PW-1. According to him, his father was not able to speak. His father died in the year 1994. He remained ill for 2 ½ to 3 years prior to his death. He could not recognize any person. He was not able to execute the sale deed. 8 Plaintiff has appeared as PW-1. According to him, his father was not able to speak. His father died in the year 1994. He remained ill for 2 ½ to 3 years prior to his death. He could not recognize any person. He was not able to execute the sale deed. He denied the suggestion in his cross-examination that the defendant has paid Rs. 10,000/- to his father before Sub Registrar and he had also given statement before him. 9. Sh. Ram Lal, PW-2 deposed that he knew the parties to the suit whose father died in the year 1994. Late Sh. Durga lost his senses two years prior to his death. He was unable to talk or understand the matter. He was not able to execute the registered sale deed. 10. Sh. Amar Nath, PW-3 deposed that late Sh. Durga died in the year 1994. Two years prior to his death, he lost his senses and was unable to execute any document. 11. Sh. Partap Chand PW-4 has supported the versions of PW-1 to PW-3. He has also testified that late Sh. Durga was neither in his senses nor he was able to go to Bhoranj. He had gone to village Dalalar to collect money from his debtors when he saw late Sh. Durga senseless. 12. DW-1 Ram Sukh testified that he has purchased the suit land from late Sh. Durga vide registered sale deed for consideration of Rs. 17,000/-. The sale deed was scribed by Krishan Chand Shehja, Petition-writer on the request of late Sh. Durga in the presence of witnesses Dile Ram, retired Tehsildar and Balbir Singh, Lambardar. After scribing the same, the deed was read over and explained to late Sh. Durga, who after admitting the contents of the same to be correct put his thumb impression on the same. Thereafter the witnesses put their signatures on the same. He identified his signatures at point =A' and endorsement Ext. DW-1/A. He further stated that he had paid Rs. 10,000/- in the presence of Tehsildar to the father of the plaintiff. After the sale deed was presented before Tehsildar (Sub Registrar) Bhoranj for attestation, he recorded the statements of Durga Dass and witnesses. Late Sh. Durga was in good senses. He was able to distinguish between right and wrong. He was not ill. He was having injury on his leg. He voluntarily gave statement before the Tehsildar. After the sale deed was presented before Tehsildar (Sub Registrar) Bhoranj for attestation, he recorded the statements of Durga Dass and witnesses. Late Sh. Durga was in good senses. He was able to distinguish between right and wrong. He was not ill. He was having injury on his leg. He voluntarily gave statement before the Tehsildar. The plaintiff did not participate in the last rites of late Sh. Durga. The sale deed was executed by late Sh. Durga in Tehsil Complex at about 11:00 AM. The sale deed was presented before the Tehsildar at 4:30 PM. The Tehsildar was sitting in the Court at that time. The stamp papers were purchased by him for payment of Rs. 22/-. Late Sh. Durga was taken to the office of Tehsildar in a Jeep and in the same jeep he was also taken back to his residence after the execution of the registered sale deed. He also deposed that at the time of execution of sale deed the age of the executant was about 90/95 years. He denied that late Sh. Durga was not having good health for the last two years before his death. He has denied that the sale deed Ext. DW-1/A was not executed by late Sh. Durga. 13. Sh. Onkar Thakur DW-2 deposed that he is practicing Advocate at Hamirpur since 1963. He knew Sh. Krishan Chand, Petition-writer since 1963. He is well conversant with his hand writing. He identified his hand writing on the sale deed Ext. DW-1/A. It was scribed by Krishan Chand Petition Writer. 14. Sh. Balbir Singh DW-3, Lamberdar is witness to the sale deed Ext. DW-1/A. According to him, he knew the parties. The suit land is situated within the jurisdiction of his Lambardari. He deposed that late Sh. Durga had executed a registered sale deed in the month of April, 1994 in favour of the defendant. The deed was scribed by Krishan Chand Petition-writer. He identified his signatures on sale deed Ext. DW-1/A. After scribing the deed, it was read over and explained to late Sh. Durga in the presence of witnesses and late Sh. Durga put his thumb impression after admitting the contents of the same to be correct. He further stated that the registration of the sale deed was also done qua 2 kanals of land for consideration of Rs. 17,000/-, out of which, Rs. Durga in the presence of witnesses and late Sh. Durga put his thumb impression after admitting the contents of the same to be correct. He further stated that the registration of the sale deed was also done qua 2 kanals of land for consideration of Rs. 17,000/-, out of which, Rs. 10,000/- was paid by the defendant to Sh. Durga in the presence of Tehsildar and remaining Rs. 7,000/- were agreed to be paid to Sh. Durga at his residence. He deposed that he put his signatures on the sale deed alongwith the signatures of other witnesses before the Tehsildar. Sh. Ram Sukh also put his signatures on the same. He also deposed that at the time of execution of the deed, the health of late Sh. Durga was good and he was able to distinguish between right and wrong. Late Sh. Durga put his signatures on the sale deed in his presence. 15. Sh. Dile Ram DW-4 deposed that he knew the parties. Sh. Durga executed the sale deed Ext. DW-1/A on 8.4.1994 qua 2 kanals of land for consideration of Rs. 17,000/-. It was scribed and executed in his presence by late Sh. Durga. It was scribed by Sh. Krishan Chand at Bhoranj and the same was also registered in his presence by Sub Registrar, Bhoranj. He identified his signatures on the sale deed Ext. DW-1/A. After scribing the sale deed, the same was read over and explained to late Sh. Durga who after admitting the contents of the same to be correct put his thumb impression over the same. He also signed the document as a witness. At that time, witness Balbir Singh Lamberdar was also present. Rs. 17,000/- were paid by the defendant to the father of the plaintiff in the presence of Tehsildar and after that the sale deed was got registered by the Tehsildar. Their statements were also recorded by the Tehsildar. Rs. 10,000/ were paid in the presence of Tehsildar and remaining payment was to be made later on. Mast Ram used to live separately from late Sh. Durga. Late Sh. Durga voluntarily executed the sale deed. 16. What emerges from the evidence discussed hereinabove is that late Sh. Durga was 95 years of age at the time of execution of the sale deed. He was not in senses. According to the case of the defendant, the sale deed Ext. Durga. Late Sh. Durga voluntarily executed the sale deed. 16. What emerges from the evidence discussed hereinabove is that late Sh. Durga was 95 years of age at the time of execution of the sale deed. He was not in senses. According to the case of the defendant, the sale deed Ext. DW-1/A dated 8.4.1994 was scribed by Sh. Krishan Chand Deed-writer. It was executed at Bhoranj. The endorsement made on the back of the sale deed made by the Sub Registrar reflects that Tehsildar himself had visited the house of the executant, late Sh. Durga in Village Dalalar for the purpose of registration. It is recorded in the endorsement on sale deed Ext. DW-1/A that the deed was presented at 3-4:00 PM by late Sh. Durga in his house at village Dalalar. This endorsement was made by Sub Registrar, Bhoranj during discharge of his official functions as a public servant being Sub Registrar. The presumption of truth is attached to all public functions of the public servants which are presumed to be done in regular manner unless contrary is established. Thus, it belies the case of the defendant that sale deed was scribed and registered in the office of Sub Registrar, Bhoranj. 17. Mr. Bhupinder Gupta, learned Sr. Advocate, has vehemently argued that the plea of fraud and forgery has not been pleaded in the plaint. The Court has gone through the plaint. It is specifically averred in para 3 of the plaint that the relinquishment deed was fraudulent and forged document. 18. Late Sh. Durga was 95 years of age at the time of execution of the alleged sale deed Ext. DW-1/A dated 8.4.1994. All the witnesses of the defendant have deposed falsely and incorrectly that the document was scribed and registered at Bhoranj. Late Sh. Durga was sick. He was not in a position to sign or put thumb impression on the document. Thus, Ext. DW-1/A sale deed, is the outcome of fraud. It is surrounded by suspicious circumstances which could not be removed by the defendant. Late Sh. Durga was incompetent to execute this document, being sick and old age. 19. Now, as far as the issue as to whether late Sh. Durga could challenge the sale during his life time or not has never been canvassed before the Courts' below. It is surrounded by suspicious circumstances which could not be removed by the defendant. Late Sh. Durga was incompetent to execute this document, being sick and old age. 19. Now, as far as the issue as to whether late Sh. Durga could challenge the sale during his life time or not has never been canvassed before the Courts' below. This question, in the absence of the pleadings and evidence cannot be permitted to be raised at this stage. The substantial questions of law are answered accordingly. 20. Consequently, there is no merit in this appeal and the same is dismissed, so also the pending application (s), if any.