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2019 DIGILAW 1440 (HP)

Ashok Kumar v. Nazir Begum

2019-09-24

AJAY MOHAN GOEL

body2019
JUDGMENT : Ajay Mohan Goel, J. By way of this appeal, the appellant has prayed for the following reliefs: ?It is, therefore, respectfully prayed that in view of the submissions made hereinabove, the appeal may very kindly be accepted and impugned judgments and decrees dated 09.03.2012 in RBT. CA No. 22-P/XIII/07/2010, passed by learned Additional District Judge, Fast Track Court, Kangra at Dharamshala, H.P. and dated 20.10.2006 in Civil Suit No. 257/95 by ld. Civil Judge (Junior Division) (II), Palampur, District Kangra, H.P., whereby suit filed by plaintiff is dismissed, appeal filed is also dismissed, may very kindly be set aside and suit of the plaintiff may very kindly be decreed, in the interest of law and justice.? 2. Brief facts necessary for the adjudication of the present appeal are that appellant-plaintiff (hereinafter referred to as =the plaintiff') filed a suit for declaration that sale deed, dated 22.03.1994, executed in favour of defendant No. 1 qua the suit land comprised in Khata No. 90 min, Khatauni No. 159, Khasra Nos. 245, 243, 299, Kita 3, land measuring 0- 96-91 hectares, of which, 1/6th share, i.e., 0-16-06 hectares, situated in Mohal Lamehar, Mouja Saliana, Tehsil Palampur, District Kangra, H.P. was without consideration and was a result of fraud and mis-representation and thus was liable to be set aside and also for consequential relief of permanent prohibitory injunction by restraining the defendants from interfering with the suit land. As per the plaintiff, he was owner in possession of the suit land. As he required some money, he approached defendant No. 2, who agreed to mortgage the suit land with defendant No. 1 for an amount of Rs.25,000/-. An amount of Rs.19,000/- was paid to the plaintiff and balance was agreed to be paid at the time of attestation of mutation as per receipt, dated 11.10.1993. Thereafter, mutation was sanctioned, but balance of Rs.6000/- was not paid to the plaintiff. In these circumstances, Patwari Halqa suggested for registration of the mortgage deed to the defendants, who brought the plaintiff to Palampur on 22.05.1994 for getting mortgage deed executed and registered. However, defendants No. 1 and 2 connived with the scribe and instead of getting the mortgage deed executed and registered, they got a sale deed executed and registered with Sub-Registrar, Palampur. According to the plaintiff, the deed was neither read over nor explained to him nor the balance amount was paid to him. However, defendants No. 1 and 2 connived with the scribe and instead of getting the mortgage deed executed and registered, they got a sale deed executed and registered with Sub-Registrar, Palampur. According to the plaintiff, the deed was neither read over nor explained to him nor the balance amount was paid to him. According to him, the sale deed was without consideration and a result of fraud and misrepresentation. 3. Plaintiff's claim was opposed by the defendants on the ground that the suit land stood sold by him to the defendants for a consideration of Rs.10,000/- vide registered sale deed dated 22.03.1994. According to the defendants, earlier plaintiff had mortgaged part of the suit land with defendant No. 2 and mortgaged money was duly received by him and subsequently, defendant No. 1 only purchased share of the plaintiff in the suit land. According to the defendants, plaintiff had come to Palampur himself for the purpose of execution of the sale deed. 4. On the basis of pleadings of the parties, learned Trial Court framed the following issues: ?(1) Whether the plaintiff had mortgaged his share in the suit land with Jagdish Chand, as alleged? OPP 2. Whether the sale deed dated 22.03.1994 qua the suit land in favour of defendant No. 1 is invalid being without consideration and a result of fraud and misrepresentation as alleged? OPP 3. Whether the plaintiff is entitled to the relief of declaration qua the sale deed and consequential relief of permanent injunction against the defendants qua the suit land, as prayed? OPP 4. Whether the plaintiff is estopped by his act and conduct from filing the present suit? OPD 5. Whether the plaintiff has no cause of action? OPD 6. Whether the present suit is not maintainable? OPD 7. Relief. 5. On the basis of evidence adduced by the respective parties in support of their respective claims, the following findings were returned by learned Trial Court on the issues so framed: "Issue No. 1 Yes. Issue No. 2 No. Issue No. 3 No. Issue No. 4 No. Issue No. 5 No. Issue No. 6 No. Relief Suit of the plaintiff dismissed with costs, as per operative portion of the judgment." 6. The suit was dismissed by the learned Trial Court by holding that though the plaintiff had contended that alleged sale deed dated 22.03.1994 Ex. Issue No. 2 No. Issue No. 3 No. Issue No. 4 No. Issue No. 5 No. Issue No. 6 No. Relief Suit of the plaintiff dismissed with costs, as per operative portion of the judgment." 6. The suit was dismissed by the learned Trial Court by holding that though the plaintiff had contended that alleged sale deed dated 22.03.1994 Ex. DW4/A was executed without consideration and was a result of fraud and mis-representation, however, in his sworn testimony as PW-1, he denied the very execution of the sale deed as well as his signatures on the said exhibit. Learned Trial Court held that the sworn testimony of plaintiff was not inconsonance with his pleadings, which demonstrated that plaintiff had deposed beyond pleadings. It further held that though plaintiff stated that the sale deed was not bearing his signatures, however, signatures on the sale deed in fact were his, as was evident from other signatures of the plaintiff on record, including his signatures on application filed under Order V, Rule 20 of the Code of Civil Procedure and affidavit appended therewith. Learned Trial Court also held that otherwise also, it was not the pleaded case of the plaintiff that sale deed was not bearing his signatures, because his case was that the same was got executed by fraud and mis-representation. On these basis, learned Court held that the plaintiff could not be permitted to deny his signatures. Learned Trial Court also held that the plea of the plaintiff that value of the suit land was about Rs.50,000/- per Kanal and sale of the suit land to defendant for an amount of Rs.10,000/- was unacceptable, was also without any merit as there was on record Ex. DW3/A, which was another sale deed executed by plaintiff in favour of defendant No. 2 on 22.05.1993, as per which, land measuring 0-06-95 hectares was sold by plaintiff for a consideration of Rs.11,000/-. Learned Court also held that an amount of Rs.10,000/- when added to the mortgaged amount received by the plaintiff did not make the sale price of the suit land to be unfair. Learned Court also held that the sale deed otherwise was duly corroborated by the testimonies of DW-3 and DW-4 and no contradictions in their depositions came forth which clearly proved the fact that the said sale deed was duly executed by the plaintiff in favour of the defendants. Learned Court also held that the sale deed otherwise was duly corroborated by the testimonies of DW-3 and DW-4 and no contradictions in their depositions came forth which clearly proved the fact that the said sale deed was duly executed by the plaintiff in favour of the defendants. On these basis, learned Trial Court dismissed the suit. 7. In appeal, learned Appellate Court upheld these findings by holding that the evidence on record clearly demonstrated that the plaintiff had failed to substantiate the contention of mis-representation and fraud. It held that defendants had examined DW-4 Ashwani Minhas, who had specifically sated that the sale deed was drafted at the instance of the plaintiff and the same was thereafter read over to him and marginal witnesses, signed the same in the presence of the plaintiff and plaintiff also appended his signatures over the same after admitting the contents thereof. 8. Learned Appellate Court dismissed the appeal by holding that plaintiff had not been able to prove that the sale deed was got executed by way of fraud and misrepresentation, 9. Feeling aggrieved, the appellant/plaintiff has filed the present appeal, which was admitted on 20.06.2012 on the following substantial question of law: ?Whether alleged sale deed Ex. DW4/A in the alternative is liable to be declared void being without any consideration and Courts below having overlooked this aspect of the matter thereby vitiating the impugned judgments & decrees?? 10. I have heard learned counsel for the parties and have also gone through the judgments and decrees passed by the learned Courts below as well as record of the case. 11. A perusal of the record of the case demonstrates that to prove his case, the plaintiff besides himself examined PW-2 Prem Chand and PW-3 Piar Chand in support of his case. A perusal of the plaint demonstrates that the plaintiff had mentioned therein that the sale deed which was got executed on 22.05.1994, was without consideration, result of misrepresentation and connivance between Sub-Registrar, the Scribe and the witnesses with defendants No. 1 and 2. 12. In the written statement, defendant No. 1 categorically mentioned while denying the fact that the sale deed was a result of fraud and mis-representation that he purchased the share of the plaintiff in its entirety for a sum of Rs.10,000/-. A perusal of sale deed Ex. PA demonstrates that the same contains the signatures of the plaintiff. 12. In the written statement, defendant No. 1 categorically mentioned while denying the fact that the sale deed was a result of fraud and mis-representation that he purchased the share of the plaintiff in its entirety for a sum of Rs.10,000/-. A perusal of sale deed Ex. PA demonstrates that the same contains the signatures of the plaintiff. Plaintiff on 12.04.2006 deposed that he had mortgaged the suit land with Jagdish Chand for a sum of Rs.19,000/-. Jagdish told him that they wanted to register the mortgage deed and for this purpose, he went to Palampur with the defendants. There he came to know that defendants wanted to get a sale deed registered qua the suit land, which he refused and he returned back to his house. He further deposed that he had not executed any sale deed in favour of the defendants and he had not sold the suit land. In his cross-examination, he agreed that he had received an amount of Rs.19,000/. However, he denied that he had sold the suit land for an amount of Rs.10,000/- to defendant No. 1. 13. A careful perusal of the plaint and the statement of plaintiff as PW-1 demonstrates that there are glaring contradictions in the same. Whereas in the plaint, the case of the plaintiff is that in the garb of getting the mortgage registered, the defendants fraudulently got a sale deed registered from the plaintiff in their favour without any consideration, however, in the Court plaintiff has deposed that when he was called to Palampur in the garb of registration of a mortgage deed and after he came to know that the defendants wanted a sale deed to be executed, he refused to do so and he returned back to his house. During the course of arguments, learned counsel for the appellant could not justify said discrepancy in the stand of the plaintiff. 14. Be that as it may, the plaintiff in the Court has denied the very execution of the sale deed and has alleged that the same was a result of forgery. There is no evidence led by him to demonstrate that the sale deed was not executed by him or was a result of fraud and mis-representation or was without consideration. 15. There is no evidence led by him to demonstrate that the sale deed was not executed by him or was a result of fraud and mis-representation or was without consideration. 15. On the other hand, a perusal of the evidence led by the defendants clearly demonstrates that they have proved on record the factum of the suit land having been sold by the plaintiff in favour of defendant No. 1 for a consideration of Rs.10,000/-. As it was the allegation of the plaintiff that sale deed Ex. PA was without consideration, onus was upon him to have had proved this fact. This he has miserably failed to do. Therefore, in the absence of there being any material on record from which it could be inferred that sale deed Ex. PA was without any consideration, it cannot be said that the learned Courts below have erred in not holding that the sale deed was without consideration or that the learned Courts below have overlooked this fact. Substantial question of law is answered accordingly. 16. In view of the discussions made hereinabove, as there is no merit in the present appeal, the same is dismissed. Miscellaneous applications, if any, also stand disposed of. No costs.