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2019 DIGILAW 1344 (RAJ)

Kishnaram Meghwal v. Ramesh Chandra Gupta

2019-05-03

DINESH MEHTA

body2019
JUDGMENT : DINESH MEHTA, J. 1. The present appeal under Sec. 100 of the Code of Civil Procedure has been filed laying challenge to the judgment and decree dt. 09.09.2016, passed by the learned District Judge, Jalore (hereinafter referred as "the Appellate Court"), in Civil Appeal No. 05/2002, vide which, the judgment and decree dt. 27.02.2002, passed by learned Civil Judge (Senior Division), Jalore in Civil Suit No. 11/1997 (Kishnaram Vs. Kalu Ram & Ors.) has been affirmed. 2. Mr. Rakesh Arora, learned counsel for the appellant, at the outset, submitted that though both the Courts below have concurrently held against the appellant, yet there are two substantial questions of law, which if decided in his favour, both the judgments and decrees would be set aside and his suit would be decreed'. The questions he suggested were as follows:- "(i) Whether the Courts below were legally justified in deciding the issue No. 5 ^^>** against the appellant and holding his suit to be time barred? (ii) Whether learned Courts below were justified in discarding statements of PW-1 (executor of document) and PW-4 and PW-5, the attesting witnesses. who deposed that while executing the document dt. 21.12.1983 the appellant and the attesting witnesses understood the same to be a mortgage deed and not a sale deed?" 3. Heard learned counsel for the parties and perused the material available on record. 4. As far as question of limitation is concerned, learned counsel for the appellant argued that contentious document came to be executed on 21.11.1983, but the plaintiff-appellant was under an impression that he had executed a mortgage deed in security of a loan of Rs. 2,000/- which he had taken from the defendant Kalu, however, he came to know that the document which was got executed was a sale deed and not mortgage deed, only on 02.11.1987, when the defendants No. 1 and 2 came to his plot and asked him to vacate the premises. 5. According to learned counsel for the appellant, the factum of the fraud having been committed with him has come to plaintiff's notice on 02.11.1987 and that is the point of time the cause of action to take legal remedies accrued to him, therefore, the limitation would commence from 02.11.1987. As such, the suit in question which had been filed on 17.11.1987, was well within the prescribed period of limitation. As such, the suit in question which had been filed on 17.11.1987, was well within the prescribed period of limitation. According to him, in the facts obtaining in the present case, the limitation would start from 02.11.1987 and not from the date of execution of the contentious document dt. 21.11.1983. 6. With respect to the other question regarding the testimonies of the plaintiff's witnesses, learned counsel for the appellant argued that PW-4 Amritlal and PW-5 Mangilal have appeared in the witness box and deposed that they knew plaintiff and as per his instructions, they attested the document dt. 21.11.1983 as witness. Giving his interpretation to the statements of PW-4 and PW-5, Mr. Arora submitted that both these witnesses have stated that Kishnaram had taken a loan of Rs. 2,000/- from Kaluram and in security whereof, he had executed the document dt. 21.11.1983, treating it to be a mortgage deed and they had also witnessed the same considering it to be a mortgage deed. He submitted that the plaintiff (PW-1) in so many words had deposed that the mortgage deed had been fraudulently got executed given the fact that the plaintiff was an illiterate labour working with the defendant. 7. According to Mr. Arora, if the testimonies of these witnesses is read in this perspective, there remains no doubt that the defendant Kaluram fraudulently got the mortgage deed executed in the guise of a mortgage deed, for which it was liable to be set aside and declared void qua his rights. 8. Mr. Amit Mehta, learned counsel appearing for the respondents, on the other hand, submitted that in case of the registered document, heavy burden lies on the person who asserts that the same was fraudulently got executed. The plaintiff failed to discharge such' burden, even the plaintiff's witness did not support the story projected by him, inasmuch as PW-5 Mangi Lal had deposed that at the time of execution of the said document Kishnaram had informed about having taken a loan of Rs. 2,000/- and for security whereof, he is executing a sale deed in Kalu's favour. Mr. 2,000/- and for security whereof, he is executing a sale deed in Kalu's favour. Mr. Mehta invited attention of the Court towards his testimony, relevant extract whereof is reproduced hereunder:- ^^fdluk us eq>s crk;k fd mlus dkyw ls :i;s m/kkj fy;s vkSj mldh rlYyh ds fy, IykV dh jftLVªh dkyw ds i{k esa djok jgk gwaA dCtk fdluk ds ikl gh FkkA dkyw us dgk Fkk fd iSls okil vnk dj nawxk rks okil rqEgkjs uke jftLVªh djok nwaxk dCtk dkyw dks ugha lkSaikA** 9. Mr. Mehta submitted that in common parlance in this part of the Country, 'registry' means the execution of sale deed, which is evident from looking at the latter part of the statement wherein the said witness PW-5 had gone ahead to state that Kalu Ram had assured that on returning the money back, he would again execute a sale deed in plaintiff's favour. 10. Learned counsel for the respondents argued that as against the plaintiff's evidence, the defendant had produced enough evidence including DW-4 Jugal Kishore, the deed writer, who has practically demolished the case of the plaintiff by saying that it was the plaintiff Kalu Ram who came to him for getting the sale deed prepared and that plaintiff appeared before the registering authority, who had read over the contents of the said deed to Kishna before he signed the registry in the office. 11. Learned counsel for the respondents submitted that at the time of registration of a document, registering authority gets signature of the executor of the document in the register after explaining him the nature of document and ensures execution of the document with consent. The plaintiff has not been able to rebut the presumption of validity of a registered document. He submitted that even otherwise the defendants have proved their case beyond reasonable doubts and have even proved that the possession of the plot in question had been handed over to the defendant No. 1, by the evidence of Jhamatmal, brother of the defendant Kalu Ram who had stated that possession of the plot had been handed over to Kalu at the time of execution of the sale deed. 12. Having submitted this, Mr. 12. Having submitted this, Mr. Amit Mehta, contended that even if the question with regard to limitation is framed and the same is decided in appellant's favour, appellant's cause will not be served, inasmuch as both the Courts below have concurrently held against the appellant as far as other issues are concerned. 13. In this view of the matter, it was submitted by learned counsel for the respondents that present appeal does not involve any question of law much less substantial question of law, warranting interference by this Court under Sec. 100 of the Code of Civil Procedure, 1908. 14. I have given my thoughtful consideration towards the arguments advanced by learned counsel for rival parties and the material available on record, including the statements of PW-1- the plaintiff, PW-4 and PW-5 the attesting witnesses, DW-3 Jhamatmal, DW-4 Jugal Kishore the document writer. 15. If the judgments of both the Courts below are considered, it is clear that the Courts below have appreciated the evidence in its true perspective and have reached to a correct conclusion. 16. The question proposed by the appellant revolves around the testimonies of attesting witnesses viz. PW-4 Amritlal and PW-5 Mangilal, who according to learned counsel for the appellant, were independent witnesses. If their statements are examined in light of the submission made by Mr. Arora, then also it cannot be said with certitude that the document in question was meant to be a mortgage and not a sale deed. 17. It is pertinent that PW-5 Mangi Lal, despite being a plaintiff's witness, had expressly deposed that at the time of execution of the document, Kishnaram had contacted him for being witness to the document by saying that "he had taken a loan of Rs. 2,000/- from Kalu, in security whereof, he is executing a registry." Learned counsel for the appellant though submitted that the term 'registry' here means 'registration of a document of mortgage' as the witness was talking of a loan and its security, but I am not persuaded to accept this argument. 18. It is to be noted that PW-5 in the next breath, had stated that the plaintiff had told him that as per Kalu Ram purchaser/defendant No. 1, when he would receive his money back, he will again execute a registry in plaintiff's favour. 19. 18. It is to be noted that PW-5 in the next breath, had stated that the plaintiff had told him that as per Kalu Ram purchaser/defendant No. 1, when he would receive his money back, he will again execute a registry in plaintiff's favour. 19. In common parlance, in this part of the State, the expression 'registry' means a 'sale deed'. The term 'registry' ¼jftLVªh½ is used synonymously with sale deed. 20. A reading of the above quoted para of the statement of PW-5 leaves no room for ambiguity that even according to PW-5 Mangi Lal, a registered sale deed had been executed with the stipulation that when plaintiff would return back the loan money of Rs. 2,000/- to Kaluram, a sale deed in turn shall again be executed in plaintiff's favour. 21. That being the position, the plaintiff has failed to prove that the document executed on 21.12.2013 was agreed and intended to be a mortgage deed, whereas a sale deed had been got signed from plaintiff. 22. It is a different matter that looking to the plaintiff's stand that the sale deed was fraudulently got executed in place of a mortgage deed, the limitation would perhaps commence from 02.11.1987, the date when the plaintiff came to know about such fraud and not from the date of execution of the contentious document as provided in Section 17 of the Limitation Act, 1963. 23. But then, if the findings of the Court below are considered in their entirety, it is clear that the plaintiff-appellant has miserably failed to dispel the presumption in favour of a registered document and even if the suit is considered to be in limitation, it would not serve the cause of the appellant. 24. I neither find any error in the findings, nor do I find any reason to entertain the present appeal on the question of limitation, as the same would be an exercise in futility. 25. The concurrent finding of facts do not suffer from any perversity or infirmity. No other question of law has arisen in this case, except for the question of limitation, which, I refrain from answering for the reason stated hereinabove. 26. The appeal at hands fails. No order as to costs.