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2019 DIGILAW 1687 (JHR)

Shiv Nath Sao v. Dasrath Ram

2019-09-23

SANJAY KUMAR DWIVEDI

body2019
JUDGMENT : 1. Heard Mr. A.K. Sahani, learned counsel appearing for the appellants. 2. This second appeal has been filed against the judgment and decree dated 30.04.2016 (Decree signed on 17.05.2016) passed by the learned District Judge-IV, Palamau at Daltonganj in Title Appeal No.01 of 2012 affirming the judgment and decree dated 20.12.2011 (Decree signed on 11.01.2012) passed by the learned Civil Judge, Junior Division-I, Palamau at Daltonganj in Title Suit No.17 of 2003. 3. The Title Suit No.17 of 2003 was instituted by the appellants/plaintiffs to declare that the Deed No.7862 dated 14.07.1997 is void inasmuch as the same was without consideration. 4. It transpires from the judgment of the court below that it was the case of the appellants/plaintiffs before both the courts that the suit property was recorded in the name of Jattu Sao and Bali Sao each having equal share and plaintiff is the heir and successor of one of the recorded successor of one of the recorded raiyat Jattu Sao. It was pleaded that defendants/respondents over-powered plaintiff/appellant and caused a sale deed executed by him vide sale deed no.7862 dated 14.07.1997 with the help of deed writer and one Sardar Singh. It is further alleged that recitals of the alleged deed was prepared on the instructions of defendants/respondents and Sardar Singh. It was further case of the plaintiff that the deed was prepared on the instructions of defendants/plaintiffs and Sardar Singh and it has been falsely recited in the deed that full and final consideration that is Rs.20,000/-was paid to the plaintiff/appellant and he put his L.T.I., on the execution portion of the deed. It was further pleaded that the sale deed was neither read over nor explained to him and being and illiterate and rustic villager, the plaintiff/appellant could not know the implications of law and put his thumb impression out of belief and good faith. Further case of the plaintiff was that Chutka (registry receipt) was taken away by the defendants/respondents from the plaintiff/appellant and after some time a photo copy of the chutka was given to the plaintiff/appellant and owing to his illiteracy he could not know whether the chukta was original or photo copy. Further case of the plaintiff was that Chutka (registry receipt) was taken away by the defendants/respondents from the plaintiff/appellant and after some time a photo copy of the chutka was given to the plaintiff/appellant and owing to his illiteracy he could not know whether the chukta was original or photo copy. It was further case of the plaintiff/appellant was that under the impression that plaintiff/appellant was under bona fide belief that he would return the chukta after getting the consideration amount but the defendants/respondents never demanded the said receipt nor made payment of consideration amount. It was further pleaded that the defendants/respondents attempted to get the possession over the suit land and when the plaintiff knew some rumours spread by the defendants/respondents that consideration money has already been paid to the plaintiff/appellant, then the plaintiff/appellant vide deed no.5406 dated 26.05.1998 cancelled the deed no.7862 dated 14.07.1997. It was also further pleaded that the plaintiff/appellant is in continuous possession over the suit land without any objection and all the right, title, interest and possession with respect to suit land under deed no.7862 remained with the plaintiff/appellant only. It was further pleaded that in the month of February, 2003 plaintiff/appellant was threatened by the defendants/respondents in order to dispossess him from the suit land and thereupon cause of action for the suit arose. 5. On summon the respondent/defendant appeared and filed the written statement. It was further pleaded that the defendants/respondents are heirs, successors and legal representatives of recorded tenant Bali Chamar and accordingly, half share in Khata No.41 came in their possession and the remaining half was acquired by them vide sale deed no.8662 dated 14.07.1997. Further pleaded by the defendants/respondents that Sidhani Sao transferred his interest in the suit land who fulfill his legal necessity which he had inherited from Jattu Sao to these defendants and accordingly, defendants/respondents become owner of entire land of Khata No.41, area 4.78 acres. It was further case of the defendants that the entire consideration amount was paid to the plaintiff/appellant thereafter the deed was executed. It was further pleaded by the defendants that the plaintiff and his son Shivnath Sao got the sale deed described as per choice of their Taeed and they have got written some unwarranted statement in the sale deed which was unknown to these defendants/respondents when the summons of the suit was received. It was further pleaded by the defendants that the plaintiff and his son Shivnath Sao got the sale deed described as per choice of their Taeed and they have got written some unwarranted statement in the sale deed which was unknown to these defendants/respondents when the summons of the suit was received. It was again alleged that recital of the sale deed was prepared only to show that plaintiff was owner in possession of the entire portion of Khata No.41 and transferred half portion of it and remained in half portion of the same. It was also denied that defendants/respondents overpowered plaintiff and got the sale deed executed. It was also denied that the defendants/respondents in presence of his son and allegation of taking away Chutka from the plaintiff is unbelievable. It was pleaded that the defendants/respondents are in possession of the land under suit and exercising their right, title and interest and it was denied that plaintiff/appellant was ever threatened by the defendants/respondents for his dispossession and it was prayed to dismiss the suit with cost. On the above pleadings, the trial court framed the following issues which is quoted herein below: (i) Whether the suit as framed is maintainable? (ii) Whether the plaintiff has any cause of action for the suit? (iii) Whether the suit is barred by law of limitation, waiver, and acquiescence? (iv) Whether the deed no.7862 dated 14.07.1997 is willful and same has been acted upon for a void documents? (v) Whether the deed no.7862 dated 14.07.1997 was without consideration and executed by overpowering the plaintiff? In order to prove its case, appellant/plaintiff has produced and examined eight witnesses and the respondents/defendants examined six witnesses. The plaintiff filed the documents which were exhibited as Ext.1 to 3. While deciding the issue no.4 the trial court after examining the witnesses of D.W.2, D.W.3, D.W.4 and D.W.5, came to the conclusion that the Ext.1 is the certified copy of sale deed which bears the left thumb impression of Sidhani Sao and there is an execution portion giving detail as regards the realization of consideration amount of Rs.20,000/-and son of the plaintiff namely Shivnath Sao also signed as a witness. Ext. 1/a is the cancellation deed of Kewala No.7862 dated 14.07.1997 for rent receipts has been filed to show that rent is being paid by the plaintiffs with respect to the khata no.41, plot no.2, 3 and 647. Ext. 1/a is the cancellation deed of Kewala No.7862 dated 14.07.1997 for rent receipts has been filed to show that rent is being paid by the plaintiffs with respect to the khata no.41, plot no.2, 3 and 647. Ext.3 was the khatiyan of Khata No.41, Plot Nos.2, 3 and 647, the trial court further examined the witnesses of defendants and came to the conclusion that the evidences of both the sides prove that the plaintiff has failed to prove that the consideration was not paid at the time of execution of sale deed and the registry receipt (Chutka) was taken away by the defendants on demand and its photo copy was returned keeping the original by the defendants themselves. The trial court found that there is no available evidence to prove the pleadings of the appellant/plaintiff, accordingly, the issue no.4 and 5 could not be proved by the plaintiff and finally the suit was dismissed on contest with cost. Appellant filed the title appeal being Title Appeal No.01 of 2012 which was decided by the learned District Judge-IV, Palamau at Daltonganj vide judgment dated 30.04.2016 the appellate court examined the issues and answered while deciding the issue no.5 with regard to the sale deed no.7862 dated 14.07.1997 whether it was without consideration and adjudicated the same. The P.W.1 stated in paragraph 11 of the cross examination that the defendants are cultivating the suit land there is dispute with regard to the suit land from 7-8 years. The trial court has taken into consideration of evidence of P.W.5 who has stated that the Chutka was taken away by some miscreants forcefully and a complaint was made to the Choukidar and the trial court found from the evidence of P.W. it comes out that after execution of kewala plaintiff and his son took the registry Chutka but it was alleged that the same was looted by the party men on the direction of the defendants but strangely no case was registered which could put a note of interrogation on the averment of the plaintiff. The plaintiff has also got proved some documents being marked as exhibits out of which Ext.1, is the certified copy of sale deed which bears the L.T.I. to Sidhani Sao and there is an execution portion giving detail as regards the realization of consideration amount of Rs.20,000/-and son of the plaintiff namely Shivnath Sao also signed as a witness. Ext.1/a is cancellation deed of Kewala No.7862 dated 14.07.1997 but this cancellation deed has no value in the eye of law and Ext.3 is the Khatiyan of Khata No.41. After discussing all the witnesses and documents, the trial court came to the finding that the appellant/plaintiff has failed to prove that the consideration amount was not paid at the time of execution of sale deed and the registry receipt (Chutka) was taken away by the defendants on demand and its photo copy was returned keeping the original by the defendants themselves. Appellant/plaintiff has literally failed to prove the averments made in the plaint. 6. Mr. A.K. Sahani, learned counsel appearing for the appellant submits that so far as the Ext.1/a is concerned, the documents was not correctly interpreted by both the trial court as well as the appellate court on the law point and that is substantial question of law and second appeal is fit to be admitted. 7. Having heard the learned counsel for the appellants, this Court looking into the facts and after examining the judgment passed by the trial court as well as the appellate court, finds that both the courts below after discussing the entire evidences on record including the documents came to the finding that the appellant/plaintiff has not been able to prove its case and both the court below are the fact finding courts. The findings are concurrent. 8. This Court sitting under Section 100 of the Code of Civil Procedure, cannot enter into the discussions of evidences of the parties led before the court below and finds that there is no substantial question of law involved in this case and accordingly, in that view of the matter, the Second Appeal is dismissed.