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2018 DIGILAW 1454 (ALL)

Sheo Dan Singh v. Om Prakash

2018-07-02

SIDDHARTH

body2018
JUDGMENT : Siddharth, J. Heard Sri Sudhanshu Pandey, learned Counsel for the petitioner and Sri Pankaj Agarwal, learned Counsel for the respondents. 2. This is defendants' Second Appeal directed against the Judgment and Decree dated 29.11.1991/07.12.1991, passed by Sri Vishnu Dutt Dubey, VIth Additional District & Sessions Judge, Aligarh, allowing Civil Appeal No.72/1991 and decreeing the suit of the plaintiffs by setting aside the Judgment and Decree dated 05.09.1991 passed by Sri B.N. Naqvi, Munsif Hawali, Aligarh in Original Suit No.190 of 1981 (late Mohan Lal and others Versus Shri Sheyodan Singh and others). 3. The plaintiffs instituted suit for the decree of cancellation of sale deed dated 02.06.1981, executed by plaintiff, Mohan Lal in favour of defendant nos. 1,2 and 3 on 02.06.1981 and for the decree of permanent injunction restraining defendants from interfering in the possession of the plaintiffs over the land in dispute. 4. The brief facts of the plaint are that plaintiffs are the owners in possession of the suit property; that plaintiff no.1, Mohan Lal, mortgaged the land in dispute in favour of defendant no.4, late Sri Jaswant Singh, on 25.06.1971 for an amount of Rs.8,000/- since he needed money for treatment of his daughter-in-law, who was suffering from cancer; that Mohan Lal had 29 bighas of land and he had 3 sons, who were doing service outside the village; that it was decided to get the mortgage deed executed by Mohan Lal in favour of defendant no.4 redeemed for an amount of Rs.24,000/- and on 02.06.1981, the same was done and receipt was duly executed by defendant no.4; that on the same day when the sons of Mohan Lal left for their places of service, defendant no.3 took him to Tehsil and on the pretext of getting a deed of redemption executed got his thumb impressions on a document, which later turned out to be a sale deed executed in favour of defendant nos. 1,2 and 3 and when his sons got knowledge of the same, they instituted the suit on the ground that Mohan Lal is aged about 95 years and lacks ability to hear, see and understand; that Mohan Lal had no need for selling his land and on the same day he paid Rs.24,000/- to defendant no.2 to get his land free from mortgage; that Mohan Lal was fraudulently made to put his thumb impressions on the documents by the defendants which was neither read and explained to him by the scribe and Registrar nor he was paid any sale consideration; that witnesses in the sale deed are persons of defendants and in reply to the notice dated 09.08.1981, defendants have threatened the plaintiffs of dispossession and hence the suit. 5. 5. Defendants filed their written statement denying plaint averments and stated that Mohan Lal took loan of Rs.8,000/- from defendant no.4 and executed mortgage deed dated 25.06.1971; that defendant no.4 demanded money given by him to Mohan Lal and threatened him of instituting suit for recovery of the same; that Mohan Lal contacted several persons of village to purchase his land mortgaged in favour of the defendant no.4, but no one agreed to purchase the same; that son of Mohan Lal arranged Rs.14,000/- and prayed for a months time to arrange remaining amount Rs.10,000/- but failed to arrange the same and therefore, Mohan Lal agreed to sell his land to defendant no.4 for a consideration of Rs.22,500/- and it was agreed that Rs.10,000/- shall be shown as adjusted by way of prior payment in the sale deed; that on 02.06.1981, Mohan Lal received Rs.12,500/- from defendant no.4 in presence of his son and Sub-Registrar and also admitted receipt of Rs.10,000/-; that the receipt of Rs.24,000/- was issued by defendant no.4 on the same date and taking undue advantage of its language, the suit has been instituted; that there is no fraud involved in execution of disputed sale deed; that Mohan Lal was not aged 95 years, nor he was illiterate nor had poor senses at the time of execution of sale deed; amount of Rs.24,000/- was never paid to defendant no.4; that plaintiffs have no cause of action, suit is under valued and court fees paid insufficient, cancellation of sale deed is required to be made by the revenue court and civil court has no jurisdiction to hear the same, plaintiffs are not in possession over the suit land and prayed that suit may be dismissed. 6. On the basis of pleadings of the parties, following issues were framed by the Trial Court, (1) Whether sale deed dated 02.06.1981 is required to be cancelled for reasons given in the plaint? (2) Whether plaintiffs are owners of land in dispute and have possession over the same? (3) Whether the suit is under valued and court fees paid insufficient? (4) Whether this court has jurisdiction to hear the present suit? (5) To what relief, if any, the plaintiffs are entitled? (6) Whether the suit of the plaintiffs has abated? (7) Whether plaintiff no.1/5 is alive or has died, if yes, then its effect? 7. The Trial Court decided issue nos. (4) Whether this court has jurisdiction to hear the present suit? (5) To what relief, if any, the plaintiffs are entitled? (6) Whether the suit of the plaintiffs has abated? (7) Whether plaintiff no.1/5 is alive or has died, if yes, then its effect? 7. The Trial Court decided issue nos. 3 and 4 regarding valuation of suit, court fees paid and jurisdiction of Civil Court to entertain suit in favour of the plaintiffs and against defendants. Issue nos.6 and 7 were decided in favour of plaintiffs and against defendants. Issue Nos. 1, 2 and 5 were decided together holding that the receipt of Rs.24,000/- has not been proved by producing any witness; that Mohan Lal had died and no witness who was present at the time of registration of disputed sale deed and could have proved the allegation of fraud, has been produced in evidence; that two of the witnesses produced are sons of Mohan Lal, who were not present at the time of execution of the sale deed and P.W.2, Dal Chand, has been declared hostile; that plaintiffs are not entitled to get benefit of Section 111 of the Evidence Act since the defendants were not in a position of active confidence with Mohan Lal; that registered document can not be discarded only on the ground that Mohan Lal was illiterate and burden of proof was on defendants to prove the good faith of the transaction since there is recital in sale deed that Mohan Lal received RS.10,000/- prior to execution of sale deed and Rs.12,500/- on the date of sale deed; that plaintiffs have failed to prove their possession over the land in dispute and hence the suit deserves to be dismissed. 8. The plaintiffs preferred Civil Appeal against the Judgment and Decree of the Trial Court, wherein following points of determination were framed by the lower appellate court, (1) Whether Civil Court has jurisdiction to hear the suit and suit had abated? (2) Whether the plaintiffs are entitled to get the sale deed dated 02.06.1981 cancelled? 9. Point of determination no.1 was decided by the lower appellate court holding that notification under Sections-4 and 5(2) of U.P. Consolidation of Holdings Act will not come in the way of entertaining suit for cancellation of sale deed. (2) Whether the plaintiffs are entitled to get the sale deed dated 02.06.1981 cancelled? 9. Point of determination no.1 was decided by the lower appellate court holding that notification under Sections-4 and 5(2) of U.P. Consolidation of Holdings Act will not come in the way of entertaining suit for cancellation of sale deed. This issue was decided by the trial court on 15.12.1983 against the defendants and revision against the same has already been dismissed and therefore as per Section-31 of Specific Relief Act suit for cancellation of sale deed is maintainable. 10. Point of determination no.2 was decided by the lower appellate court holding that an amount of Rs. 24,000/- was paid by Mohan Lal towards repayment of loan of Rs.8,000/- to defendant no.4 is admitted by son of defendant no.4, D.W.1; that P.W.1, Om Prakash, has proved the receipt executed by defendant no.4, Jaswant Singh and also signature of the witnesses; that in the receipt it has been clearly mentioned that defendant no.4 received Rs.24,000/- from Mohan Lal and nothing remains to be paid. The lower appellate court further found that in the disputed sale deed, there is recital that Mohan Lal received RS.10,000/- in village and remaining amount of Rs.12,500/- at the time of execution of sale deed. The case of defendants is that Rs.10,000/- was adjusted towards redemption of mortgage deed but in the sale deed it has not been mentioned rather the need for execution of sale deed has been mentioned as requirement for domestic expenses by Mohan Lal. It has further been found that value of the land has been mentioned as Rs.45,000/- in the sale deed and stamp duty has been accordingly paid and therefore lower appellate court has recorded finding that on 02.06.1981 it can not be believed that sale deed was executed by Mohan Lal for an amount of Rs.22,500/- when on the same date he paid Rs.24,000/- to defendant no.4 for redeeming the land for mortgage for him. Once Rs.24,000/- was paid by Mohan Lal to defendant no.4, there was no need for selling his land from him for Rs.22,500/-. 11. However, lower appellate court believed recital in the sale deed regarding receipt of Rs.12,500/- by Mohan Lal before the Registrar and allowed appeal of the plaintiffs setting aside the decree of trial court and decreed the suit for reliefs of cancellation of sale deed and permanent injunction. 11. However, lower appellate court believed recital in the sale deed regarding receipt of Rs.12,500/- by Mohan Lal before the Registrar and allowed appeal of the plaintiffs setting aside the decree of trial court and decreed the suit for reliefs of cancellation of sale deed and permanent injunction. It was directed that amount of Rs.12,500/- shall be returned by the plaintiffs to the defendants with 10% interest per annum. 12. Learned Counsel for the appellants has relied upon the Judgment in the case of A.M. Sangappa @ Sangappa, 2014(2) AWC 1153 (SC), 6. In a series of decisions, this Court has highlighted how a regular first appeal is to be disposed of, particularly. In the light of Order XL1, Rule 31, C.P.C. It mandates that the appellate court has to frame points for determination, decision thereon, reasons for the decision and where the decree appealed from is reversed or varied, the relief to which the appellant is entitled. Such recourse has not been followed by the High Court, while disposing of the regular first appeal. 7. It is not in dispute that the first appeal is a valuable right of the parties and unless restricted by law, the whole case is therein open for rehearing both on questions of fact and law. Accordingly, the judgment of the appellate court must reflect its conscious application of mind and record findings supported by reasons, on all the issues arising along with the contentions put forth by both the sides. These principles have been reiterated in B.V. Nagesh and another V. H.V. Sreenivasa Murthy, (2010) 13 SCC 530 : 2011 (2) AWC 1810 (SC). 13. Defendants have preferred second appeal against judgment of the lower appellate court. A perusal of the material on record shows that as per Section-91 and 92 of the Indian Evidence Act, when terms of any contract grant or other disposition of property have been reduced in writing, no evidence of any oral agreement or statement shall be admitted as between parties to any such instrument or their representatives in interest, for the purpose of contradicting, varying, adding to, or subtracting from, its terms. It was specific case of defendants that since plaintiff no.1, Mohan Lal, could not arrange for the entire amount of Rs.24,000/- towards discharge of his liability of loan, therefore, he executed the sale deed, wherein Rs.10,000/- was adjusted and Rs.12,500/- was paid to Mohan Lal. It was specific case of defendants that since plaintiff no.1, Mohan Lal, could not arrange for the entire amount of Rs.24,000/- towards discharge of his liability of loan, therefore, he executed the sale deed, wherein Rs.10,000/- was adjusted and Rs.12,500/- was paid to Mohan Lal. The lower appellate court has recorded categorical finding that there is no such recital in the sale deed in dispute regarding execution of the same for the purpose of adjustment of the loan amount, rather recital therein is that Mohan Lal needs money for domestic expenses. Lower Appellate Court has further found that in case Mohan Lal and his sons, plaintiffs, were not able to arrange money for repayment of loan amount and for this purpose Mohan had to sell of his land to defendant no.4, after adjusting Rs.10,000/-, this fact should have been mentioned in the sale deed itself. The terms of the sale deed can not be explained differently by defendants by setting up different explanation than that mentioned in the sale deed itself. 14. As per Section-68 of the Indian Evidence Act, once the execution of the sale deed was denied by the Mohan Lal and he admitted only execution of deed of redemption of mortgage, at least one attesting witness of the disputed sale deed should have been produced in evidence by defendants to prove its due execution as sale deed only before the Court, which has not been done. 15. As discussed earlier, the lower appellate court has framed necessary point of determination as per Order-XLI, Rule-31 C.P.C. and has given its decision on both the issues supported by reasons and therefore it can not be said that the valuable right of the parties has not been taken into account. The Judgment has no application to the facts of the case. 16. The Apex Court in the case of Deity Pattabhiramaswamy Vs. S. Hanymayya & others, AIR 1959 SC 57 , has held that even erroneous findings of fact cannot be disturbed by the High Court in its Second Appellate Jurisdiction. 17. From perusal of the entire material on record and the judgment of the both Court below, this Second Appeal does not raises any substantial question of law and requires to be dismissed under Order- 41, Rule -11 C.P.C. 18. Second Appeal is dismissed. Parties shall bear their own costs.