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2018 DIGILAW 2209 (HP)

Deep Ram v. Shakuntla Devi

2018-12-13

TARLOK SINGH CHAUHAN

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JUDGMENT Tarlok Singh Chauhan, J. - Since, common question of facts and law arise for determination in both these appeals, therefore, they are taken up together for consideration and are being disposed of by a common judgment. 2. Defendant No.1 is the appellant, who after having lost before both the learned Courts below, has filed the instant appeals. The parties hereinafter shall be referred to as the plaintiffs and defendants . 3. The plaintiffs filed a suit for declaration to the effect that the sale deed bearing registration No.627 dated 07.09.2005, registered in the Office of Sub Registrar, Kasauli, pertaining to the land comprised in Khata-Khatauni No. 47/86, Khasra No. 247/8, measuring 4 bighas, situated at Mauza Shiloda Khurd, Pargana Bhaget, Tehsil Kasauli, District Solan, H.P. (hereinafter to be referred as the suit land) is a fabricated document and has been executed by way of misrepresentation, fraud and coercion. 4. Briefly stated the facts of the case are that the plaintiffs are the legal heirs of deceased Sh. Ved Prakash, who was the owner of land comprised in Khata-Khatauni No. 47/86, Khasra No. 247/8, measuring 5 bighas, situated at Mauza Shiloda Khurd, Pargana Bhaget, Tehsil Kasauli, District Solan, H.P. Total land measuring 5 bighas out of which 4 bighas was sold through the sale deed bearing No. 627 dated 07.09.2005, registered in the Office of Sub Registrar, Kasauli, which is referred to as the suit land. This land had been allotted as Patta under the grant of land under the Himachal Pradesh Nautor land to landless persons scheme on 20.11.1985 (vide document Ex. PW-1/A) on payment of nazrana of Rs.125/-. Shri Ved Prakash had retired as NK(other rank) from the Indian Army and was not physically and mentally fit after retirement and was suffering from Asthma, hypertension, diabetes and was also having heart problem. This land had been allocated to Sh. Ved Prakash so that he may earn his livelihood and look after his family. The defendant No.3(since deceased) the son of Sh. Ved Prakash, was not under his control. Sh. Ved Prakash was not keeping good health and expired on 15.09.2005 and prior to his death, he remained hospitalized at Military Hospital, Kasauli from 09.08.2005 till 27.08.2005. He was not in sound disposing mind and was not able to understand his good and bad. The defendant No.3(since deceased) the son of Sh. Ved Prakash, was not under his control. Sh. Ved Prakash was not keeping good health and expired on 15.09.2005 and prior to his death, he remained hospitalized at Military Hospital, Kasauli from 09.08.2005 till 27.08.2005. He was not in sound disposing mind and was not able to understand his good and bad. It was averred that defendant No.1 Deep Ram in collusion with defendant No.2 Shiv Shankar Aggarwal, who is a property dealer at Kasauli and deceased defendant No.3 Ashok Kumar son of Sh. Ved Prakash, connived with each other and taking advantage of illness of Sh. Ved Prakash got a sale deed bearing No. 627 dated 07.09.2005 registered in the Office of Sub Registrar, Kasauli, whereby the suit land was sold off to defendant No.1 for a consideration of Rs.1,20,000/-. The market value of the suit land in the year 2005 was Rs.28,18,876/-. 5. It was also averred that Sh. Ved Prakash was not in a sound disposing mind while executing this sale deed and was not able to understand his good and bad. No consideration was ever paid to Sh. Ved Prakash. The fraudulent aspect of the sale deed can be visualized from the fact that the average market value of the land has been assessed as Rs.28,18,876/-, whereas, the sale consideration of the land has been written as Rs.1,20,000/-. The sale deed in question (Ex.PK) has been scribed on 09.09.2005 and it has been registered on 07.09.2005 i.e. two days prior to when it was scribed. The plaintiffs averred that after coming to know about the sale deed, Sh. Ved Prakash received a great shock and on account of his deteriorating condition expired on 15.09.2005. Sh. Ved Prakash prior to his death had disclosed to plaintiffs No.1 and 2 that he had been defrauded by the defendants, therefore, plaintiffs No.1 and 2 talked to defendant No.2 about the matter and he, in turn, assured them that he will get the things settled and will return the land to the plaintiffs and kept on delaying the matter for 6-7 months. Thereafter, the plaintiffs came to know that the mutation of the sale deed had also been got sanctioned by the defendants in an illegal manner. The cause of action accrued to the plaintiffs when they came to know about the fraudulent sale deed. Thereafter, the plaintiffs came to know that the mutation of the sale deed had also been got sanctioned by the defendants in an illegal manner. The cause of action accrued to the plaintiffs when they came to know about the fraudulent sale deed. It was prayed that the suit of the plaintiffs be decreed and sale deed bearing No. 627 dated 07.09.2005 registered in the Office of Sub Registrar, Kasauli, be declared false and fictitious document having been executed by way of fraud and misrepresentation. A decree of declaration has been sought that the plaintiffs are the owners of the suit land and further a decree of possession of the suit land has also been sought. 6. Defendants No.1 and 2 contested the suit by filing written statement wherein preliminary objections qua maintainability, estoppel, locus standi and cause of action, were taken. On merits, it has been admitted that after his retirement, Sh. Ved Prakash was suffering from Asthma and diabetes. It has been denied that defendant No.3 (now deceased) was not having good relations with Sh. Ved Prakash and he was not in sound disposing mind. Defendants No.1 and 2 averred that the sale deed bearing No. 627 dated 07.09.2005 registered in the Office of Sub Registrar, Kasauli, was executed by Sh. Ved Prakash in sound disposing mind and further averred that the sale deed was scribed on 07.09.2005 and was proposed to be registered on 09.09.2005 as the payment was expected to reach late at Kasauli. Thereafter, the payment was made on the same day and the sale deed was executed on 07.09.2005 but the correction in the date i.e. 09.09.2005 could not be made. It was further averred that in fact the sale consideration was Rs.21 lacs, but on the request of Sh. Ved Prakash, only Rs.1,20,000/- were shown as sale consideration. In fact, a sum of Rs.21 lacs had been paid by defendant No.1 to Sh. Ved Prakash which was invested by him and the plaintiffs in various banks. Sh. Ved Prakash expired on account of heart attack on 15.09.2005. Defendants No.1 and 2 averred that actual physical possession of the suit land had been handed over to defendant No.1 at the time of execution of the sale deed. Lastly, it was prayed that the suit of the plaintiffs without being cause of action be dismissed. 7. Sh. Ved Prakash expired on account of heart attack on 15.09.2005. Defendants No.1 and 2 averred that actual physical possession of the suit land had been handed over to defendant No.1 at the time of execution of the sale deed. Lastly, it was prayed that the suit of the plaintiffs without being cause of action be dismissed. 7. Plaintiffs filed replication in which the averments made in the plaint were reasserted and those of the written statement were denied. It has been denied that any sale consideration had been paid to Sh. Ved Prakash. It was averred that defendant No.2 Shiv Shankar Aggarwal is a property dealer and is not an agriculturist of State of Himachal Pradesh and had purchased the land in the name of defendant No.1. Thereafter, defendant No.2 had given a cheque of Rs.3,00,000/- to defendant No.3 (now deceased) and this fact came to the knowledge of the plaintiffs after filing this suit. It was further averred that defendant No.2 Shiv Shankar Aggarwal had received a huge amount from some persons from Delhi regarding the suit land and thereafter the sale deed bearing No. 627 dated 07.09.2005 was got registered in the Office of Sub Registrar, Kasauli, in favour of defendant No.1 as a benami transaction by playing fraud upon deceased Sh. Ved Prakash taking advantage of his health condition. 8. On 25.07.2007, the learned trial Court framed the following issues:- 1. Whether sale deed dated 09.09.2005 registered with Sub Registrar, Kasauli, on 07.09.2005 is false, fictitious and is a result of fraud and misrepresentation exercised by the defendants in league with each other and marginal witnesses and is without consideration, as alleged? OPP. 2. If issue No.1 proved in affirmative, whether the plaintiffs and defendant No.3 are owners of the suit land in equal shares and mutation consequent the sale deed is wrong, illegal and not binding upon them, as alleged? OPP. 3. Whether the plaintiffs are entitled to the relief of perpetual injunction, as alleged?OPP. 4. Whether in alternative, the plaintiffs are entitled to the relief of possession, as alleged? OPP. 5. Whether the suit is not maintainable, as alleged? OPD. 6. Whether the plaintiffs have no cause of action, as alleged? OPD. 7. Whether the plaintiffs have no locus standi to file the present suit? OPD. 8. Whether the plaintiffs are estopped by their acts, deeds and conduct from filing the present suit? OPD. OPP. 5. Whether the suit is not maintainable, as alleged? OPD. 6. Whether the plaintiffs have no cause of action, as alleged? OPD. 7. Whether the plaintiffs have no locus standi to file the present suit? OPD. 8. Whether the plaintiffs are estopped by their acts, deeds and conduct from filing the present suit? OPD. 9. Whether this Court has no pecuniary jurisdiction to try the present suit? OPD. 10. Relief. 9. The learned trial Court after recording evidence and evaluating the same decreed the suit filed by the plaintiffs on 05.03.2013. 10. Aggrieved by the judgment and decree passed by the learned trial Court, the defendant assailed the same before the learned first appellate Court by filing Civil Appeal No.07-S/13 of 2017/2013, whereas, one Geeta, wife of late Shri Ashok Kumar filed a separate appeal being Civil Appeal No. 39-S/13 of 2017 on the ground that she was a necessary party to the suit as she was the legal heir of deceased-defendant No.3 Ashok Kumar. Both these appeals came to be tried together. As regards the appeal filed by the defendant Deep Ram, the same was dismissed, whereas, the appeal filed by Geeta was allowed and the judgment and decree passed by the learned trial Court was modified to the extent that the plaintiffs and Smt. Geeta, legal heir of defendant No.3 Ashok Kumar, were joint owners in possession of the suit land to the extent of 1/5th share each. 11. Aggrieved by the judgment and decree passed by the learned first appellate Court, whereby the appeal filed by defendant Deep Ram has been ordered to be dismissed, has filed the instant regular second appeal. 12. It is vehemently urged by Shri K.D.Sood, Senior Advocate, assisted by Shri Rajneesh K. Lal, advocate, for the appellant that the findings recorded by the learned Courts below are perverse as they are based upon misreading of the oral and documentary evidence available on record. That apart, the decree for possession as passed by the learned trial Court could not have been modified by the learned first appellate Court in the appeal of Smt. Geeta by holding the plaintiffs along with Geeta to be in possession of the suit land. 13. That apart, the decree for possession as passed by the learned trial Court could not have been modified by the learned first appellate Court in the appeal of Smt. Geeta by holding the plaintiffs along with Geeta to be in possession of the suit land. 13. Shri Sudhir Thakur, Advocate along with Shri Anirudh Sharma, Advocate, on the other hand, would contend that as regards the second contention, admittedly, the learned first appellate Court could not have modified the judgment by holding the plaintiffs along with Geeta to be in possession of the suit land. However, as regards the findings being perverse, it is argued that the findings recorded by both the learned Courts below are pure findings of fact and are, therefore, immune from challenge before this Court in second appeal. 14. I have heard the learned counsel for the parties and have gone through the records of the case. 15. At the outset, it needs to be noticed that the suit filed by the plaintiffs was one for declaration which was decreed by holding them to be the owners of the suit land to the extent of 1/4th share each. However, since the plaintiffs were out of possession, therefore, on the strength of their title, they were held entitled for possession of the same in accordance with law. Smt. Geeta whose interest in the property has been duly recognized by the learned first appellate Court and in fact has not been even disputed by other respondents before this Court, at best, had only 1/5th share in the property, but being out of possession, the decree passed by the learned trial Court could have been modified by holding her to be the joint owner in possession of the suit land to the extent of 1/5 share. Accordingly, the said judgment and decree were modified by concluding that plaintiffs along with Smt. Geeta are joint owners of the suit land to the extent of 1/5th share each and entitled to recover the possession in accordance with law. 16. Now, adverting to the question as to whether the findings recorded by the learned Courts below are perverse, it would be noticed that the learned Courts below have concurrently found the sale deed to be an outcome of fraud and misrepresentation. 16. Now, adverting to the question as to whether the findings recorded by the learned Courts below are perverse, it would be noticed that the learned Courts below have concurrently found the sale deed to be an outcome of fraud and misrepresentation. Some instances of the same are as under:- (a) As per the defence of the defendants, the deceased Ved Prakash had agreed to sell the suit land 15 days prior to the execution of the sale deed in favour of defendant No.1 regarding which an agreement to sell Ex.D3 was executed. However, in case the agreement Ex.D3 is perused, it would be revealed that the agreement to sell was executed on the same day i.e. 07.09.2005 when the alleged sale deed Ex.PK was registered at Kasauli before the Sub Registrar. If that be so, obviously, there was no need, requirement or necessity to execute the agreement on the same day when the alleged sale deed was being executed. (b) There are material variations with regard to payment of sale consideration. DW-1 Deep Ram while appearing as a witness had stated that at the time of execution of the sale deed, he had paid an amount of Rs.1,20,000/- to deceased Sh. Ved Prakash and besides this nothing had been paid to him. However, in his cross examination, he stated that he paid an amount of Rs.1,20,000/- to Sh. Ved Prakash at the time of execution of the agreement to sell. In this background, if the recitals of para-3 of the agreement to sell Ex.D3 are reverted, the same indicate that Shri Ved Prakash and defendant No.1 had agreed to sell the suit land for Rs.21 lacs, out of which defendant No.1 had already paid an amount of Rs.18 lacs as earnest money to Sh. Ved Prakash. (c) One of the most glaring suspicious circumstance that has come on record is that the sale deed Ex.PK is stated to have been executed/scribed on 09.09.2005, but the same already stood registered by the Sub Registrar earlier on 07.09.2005 when the same was produced before him. Defendant No.1 neither examined the scribe of the sale deed nor has examined any witness of the same. Whereas, the plaintiffs have specifically come with the allegations that defendants had played fraud upon deceased Sh. Defendant No.1 neither examined the scribe of the sale deed nor has examined any witness of the same. Whereas, the plaintiffs have specifically come with the allegations that defendants had played fraud upon deceased Sh. Ved Prakash at the time of getting the sale deed executed, specifically making reference of the dates of execution of the sale deed as well as its registration. DW-1 Deep Ram has stated in his cross examination that on the date when the sale deed Ex.PK was executed, defendant No.2 was not present, but surprisingly, in his further cross-examination, he has categorically admitted that defendant No.2 is clearly visible in the photograph of Ex.PK that was taken on the said date. 17. Learned counsel for the appellant/defendant would then vehemently argue that even if the appellant/defendant was not held entitled to specific performance of contract, even then the amount paid by him as advance should have been refunded to him. I am afraid even this contention is without merit and fraud vitiates all transactions and, therefore, the appellant/defendant cannot take any advantage or even refund of the amount alleged to have been paid by him. That apart, even the sale consideration in this case otherwise has not been proved on record so as to order refund of the amount. 18. In view of the aforesaid findings which otherwise are pure findings of fact, obviously, no exception can be taken to the findings arrived at by the learned Courts below. The appellant/defendant had no answer to the question as to how the document (sale deed Ex.PK) that was subsequently prepared on 09.09.2005 could have been registered by the Sub Registrar on 07.09.2005. 19. It is otherwise more than settled that the appellate Court continues to be a final court of fact and law and second appeal to the High Court lies only where there is a substantial question of law. Meaning thereby, the pure findings of fact remain immune from challenge before this Court in second appeal. It shall be apt to refer to three Judge Bench decision of the Hon ble Supreme Court in Santosh Hazari vs. Purushottam Tiwari (deceased) by LRs , (2001) 3 SCC 179 wherein it was observed as follows: 15 The first appellate Court continues, as before, to be a final Court of facts; pure findings of fact remain immune from challenge before the High Court in second appeal. Now the first appellate Court is also a final Court of law in the sense that its decision on a question of law even if erroneous may not be vulnerable before the High Court in second appeal because the jurisdiction of the High Court has now ceased to be available to correct the errors of law or the erroneous findings of the first appellate Court even on questions of law unless such question of law be a substantial one. 20. What would be the substantial question of law was thereafter considered in para 12 of the judgment, which reads thus: 12. The phrase substantial question of law , as occurring in the amended Section 100 is not defined in the Code. The word substantial, as qualifying question of law , means - of having substance, essential, real, of sound worth, important or considerable. It is to be understood as something in contradistinction with- technical, of no substance or consequence, or academic merely. However, it is clear that the legislature has chosen not to qualify the scope of substantial question of law by suffixing the words of general importance as has been done in many other provisions such as Section 109 of the Code or Article 133(1)(a) of the Constitution. The substantial question of law on which a second appeal shall be heard need not necessarily be a substantial question of law of general importance. In Guran Ditta & Anr. Vs. T. Ram Ditta , (1928) AIR PC 172, the phrase substantial question of law as it was employed in the last clause of the then existing Section 110 of the C.P.C. (since omitted by the Amendment Act, 1973) came up for consideration and their Lordships held that it did not mean a substantial question of general importance but a substantial question of law which was involved in the case as between the parties. In Sir Chunilal V. Mehta & Sons Ltd. Vs. The Century Spinning and Manufacuring Co., Ltd. , (1962) Supp3 SCR 549, the Constitution Bench expressed agreement with the following view taken by a Full Bench of Madras High Court in Rimmalapudi Subba Rao Vs. In Sir Chunilal V. Mehta & Sons Ltd. Vs. The Century Spinning and Manufacuring Co., Ltd. , (1962) Supp3 SCR 549, the Constitution Bench expressed agreement with the following view taken by a Full Bench of Madras High Court in Rimmalapudi Subba Rao Vs. Noony Veeraju , (1952) ILR(Mad) 264:- When a question of law is fairly arguable, where there is room for difference of opinion on it or where the Court thought it necessary to deal with that question at some length and discuss alternative view, then the question would be a substantial question of law. On the other hand if the question was practically covered by the decision of the highest Court or if the general principles to be applied in determining the question are well settled and the only question was of applying those principles to the particular fact of the case it would not be a substantial question of law. and laid down the following test as proper test, for determining whether a question of law raised in the case is substantial:- The proper test for determining whether a question of law raised in the case is substantial would, in our opinion, be whether it is of general public importance or whether it directly and substantially affects the rights of the parties and if so whether it is either an open question in the sense that it is not finally settled by this Court or by the Privy Council or by the Federal Court or is not free from difficulty or calls for discussion of alternative views. If the question is settled by the highest Court or the general principles to be applied in determining the question are well settled and there is a mere question of applying those principles or that the plea raised is palpably absurd the question would not be a substantial question of law. 21. Finally, in paragraph 14, the Hon ble Supreme Court laid down the guidelines on the test of as to what is the substantial question of law, which read thus: 14. A point of law which admits of no two opinions may be a proposition of law but cannot be a substantial question of law. 21. Finally, in paragraph 14, the Hon ble Supreme Court laid down the guidelines on the test of as to what is the substantial question of law, which read thus: 14. A point of law which admits of no two opinions may be a proposition of law but cannot be a substantial question of law. To be substantial , a question of law must be debatable, not previously settled by law of the land or a binding precedent, and must have a material bearing on the decision of the case, if answered either way, in so far as the rights of the parties before it are concerned. To be a question of law involving in the case there must be first a foundation for it laid in the pleadings and the question should emerge from the sustainable findings of fact arrived at by court of facts and it must be necessary to decide that question of law for a just and proper decision of the case. An entirely new point raised for the first time before the High Court is not a question involved in the case unless it goes to the root of the matter. It will, therefore, depend on the facts and circumstance of each case whether a question of law is a substantial one and involved in the case, or not; the paramount overall consideration being the need for striking a judicious balance between the indispensable obligation to do justice at all stages and impelling necessity of avoiding prolongation in the life of any lis. 22. No question of law much less substantial question of law arises for consideration in these appeals. 23. Even though, there is no substantial question of law involved in the present appeals, however, the same are partly allowed by declaring the plaintiffs and Smt. Geeta to be the owners of the suit land to the extent of 1/5th share each now since the plaintiffs and Smt. Geeta are admittedly not in physical possession of the suit land, therefore, the decree passed by the learned first appellate Court holding them to be in physical possession is set aside and instead they are held entitled to possession of the suit land in accordance with law. 24. 24. However, before parting, it would be noticed that most of the mess as created in this case could have conveniently been avoided in case the Document Writer and the Registration Authority would have acted diligently and honestly and in accordance with law. 25. Section 81 of the Registration Act 1908 clearly provides that every Registering Officer appointed under this Act and every person employed in his office for the purpose of this Act, who being charged with the endorsing, copying, translating or registering of any document presented and deposited under its provisions endorses, copies, translates or registers such document in a manner which he knows or believes to be incorrect, intending thereby to cause or knowing it to be likely that he may thereby cause injury as defined in the Indian Penal Code (XLV of 1860), to any person, shall be punishable with imprisonment. 26. Section 83 of the Act also provides that prosecution for any offence under this Act coming to the knowledge of Registering Officer in his official capacity may be commenced by or with the permission of the Inspector-General, the Registrar, or the SubRegistrar, in whose territories, district or sub-district, as the case may be, the offence has been committed. Since, in the present case, the sale deed was registered on 7th September, 2005 prior to the date of its preparation i.e. 9th September, 2005, therefore, it is prima facie apparent that Registering Officer had registered the document which he knew to be incorrect and thereby injury was caused to the plaintiffs and the original owner by such act of registration. Hence, it is a fit case where the powers under Section 83 are to be exercised by Inspector General of Registration. Therefore, a copy of this judgment be forwarded to the Inspector General of Registration, H.P. for taking action as may be deemed appropriate under the Registration Act in the light of findings recorded above.