Chattisgarh High Court
Abdul Majid vs Rato (Died) 38 Mcrca/70/2020 Lakhan ... on 10 August, 2020
Author: Sanjay K. Agrawal
Bench: Sanjay K. Agrawal
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NAFR
HIGH COURT OF CHHATTISGARH, BILASPUR
Second Appeal No.115 of 2008
Judgment reserved on :20.07.2020
Judgment delivered on:10.08.2020
1. Abdul Majid Son of Late Mohammed Khalil, Caste
Musalman, aged about 45 years,
2. Shabejan Son of Peer Mohammed, aged about 26 years,
Caste Musalman;
Both are residents of Village Kenwra, Tahsil Pratap
pur, District Surguja (CG)
Appellants/Defendants
Versus
1. Rato (died) through LR's
1(a) Heeramani W/o Rambachan, aged about 50 years,
R/o Village Bagda, Tahsil Pratappur, District
Surajpur (CG)
1(b) Heeralal S/o Late Dhansai, aged about 45 years,
R/o Village Kevra, Tahsil Pratappur, District
Surajpur (CG)
1(c) Ranmat W/o Ramjeet, aged about 40 years, R/o
Village Kevra, Tahsil Pratappur, District Surajpur
(CG)
1(d) Kalesiya D/o Late Dhansai, aged about 35 years,
R/o Village Bisahipodi, Tahsil Bahiyathan, District
Surajpur (CG)
1(e) Jawahir S/o Late Dhansai, aged about 30 years,
R/o Village Kevra, Tahsil Pratappur, District
Surajpur (CG)
1(f) Rahul S/o Shyamkunwar, aged about 18 years
1(g) Fulmet Wd/o Shyamkunwar, aged about 42 years,
1(h) Shivcharan S/o Late Shyamkunwar, aged about 15
years, being minor, through the natural guardian
mother respondent No.1(g) Fulmet
Respondent No.1(f) to 1(h) are R/o Village Kevra, Tahsil Pratappur, District Surguja (CG) Plaintiff
2. Mohammed Gulam Son of Rehman, Caste Musalman, aged about 40 years;
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3. State of Chhattisgarh, Through The Collector, Ambikapur, District Surguja (CG) Respondents For Appellants/Defendants:
Mr.Ashok Kumar Shukla, Advocate For LR's Respondent NO.1/Plaintiff:
Mr.Sunil Tripathi, Advocate For Respondent No.3/State:
Mr.Rahul Jha, Govt.Advocate Hon'ble Shri Justice Sanjay K. Agrawal C.A.V. Judgment
1. The substantial questions of law involved, formulated and to be answered in this second appeal preferred by the appellants/defendants are as under: "1. Whether both the Courts below were justified in declaring the sale deed dated 09.11.1998 (Ex.D8) executed by plaintiff Rato Bai in favour of defendants No.1 & 2 is null & void ignoring the admission made by her in paragraph 8 of her crossexamination before the trial Court ?
2. whether the suit as framed and filed was maintainable in view of the fact that though plaintiff Rato Bai is party to sale deed dated 09.11.1998 (Ex.D8) but she did not seek cancellation of the said sale deed under Section 31 of the Specific Relief Act, 1963 ?"
[For the sake of convenience, the parties would be referred hereinafter as per their status shown and ranking given in the suit before the trial Court].
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2. The dispute relates to the suit land owned by Rato Bai (now deceased) and legal representatives have been brought on record. It is case of the plaintiff that the plaintiff agreed to sale only 4 decimals of land out of total area 0.579 hectare of Khasra No.285 owned by her situated at village Kewra, Ambikapur on cash consideration of ₹12000, but defendants No.1 and 2 taking advantage of her illiteracy got the sale deed executed for entire land i.e. 0.579 hectare owned by her, but no consideration was paid and entire land is said to have been purchased by playing fraud with her, as such, sale deed dated 09.11.1998 (Ex.D8) is void and mutation made on 16.7.99 is also without authority of law and sale deed dated 09.11.1998 (Ex.D8) be declared null and void and she be declared titleholder of the suit land.
3. Resisting the suit, the defendants filed their joint written statement and denied the averments made in the plaint stating interalia that sole plaintiff has voluntarily executed sale deed in favour of defendants No.1 and 2 by obtaining cash consideration of ₹12000/ and they are in possession after having recorded their names in revenue records, as such, the suit deserves to be dismissed with cost. 4
4. Before the trial Court, on behalf of the plaintiff, she examined herself (PW1) in support of her case and on behalf of the defendants, defendants No.1 & 2 namely Abdul Majid (DW1)and Sabejan (DW2) as well as defendant No.3Mohd. Gulam (DW3) were examined.
5. Upon appreciation of full consideration of oral and documentary evidence available on record, the trial Court by its judgment and decree dated 30.7.2005 decreed the suit subject to payment of advalorem court fee on the requisite court fee as per market value under Section 7(v)(c) of the Courtfees Act, 1870 (hereinafter called as 'the Act of 1870'). Feeling aggrieved against the judgment and decree of the trial Court, defendants No.1 and 2 preferred first appeal before the first appellate Court. During pendency of first appeal, an application under Order 6 Rule 17 of the Code of Civil Procedure was filed seeking amendment in the plaint and further seeking decree for possession over the suit land. That amendment was granted by the first appellate Court by the impugned judgment.
6. The first appellate Court upon appreciation of oral and documentary evidence available on record concurred with the finding recorded by the trial 5 Court and dismissed the appeal and also granted decree for possession in favour of the plaintiff. Questioning the judgment and decree of the first appellate Court, this second appeal under Section 100 of the CPC has been filed by the appellants/defendants, in which substantial questions of law have been formulated by this Court, which have been setout in the opening paragraph of this judgment.
7. Mr.Ashok Kumar Shukla, learned counsel for the appellants/defendants No.1 and 2, would submit that both the Courts below were absolutely unjustified in granting decree in favour of the plaintiff. He would further submit that entire sale consideration has been paid to the plaintiff which she has admitted in her statement before the Court and title has validly been passed in favour of defendants No.1 and 2. He would further submit that the plaintiff has clearly admitted the due execution of the sale deed in their favour, therefore, exception could not have been taken by her before the Court qua sale deed. He would also submit that the suit as framed and filed is not maintainable in view of fact that plaintiffRato Bai being party to sale deed (Ex.D8) did not seek 6 cancellation of sale deed under Section 31 of the Specific Relief Act, 1963 (hereinafter called as 'the Act of 1963'). He relied upon the judgment of the Supreme Court in the matter of Suhrid Singh alias Sardool Singh v. Randhir Singh and others1, as such, judgment and decree of both the Courts below deserve to be set aside and the suit be dismissed with cost.
8. On the other hand, Mr.Sunil Tripathi, learned counsel appearing for legal representatives of the plaintiff, would submit that sale deed is voidabinitio and 2.50 acres of land is said to have been purchased by defendant No.1 on petty sum of ₹12000/ and it is void document and no title has been passed on the basis of said sale deed in favour of defendants No.1 and 2. He would further submit that court fee as per market value has been paid pursuant to the decree of the trial Court on 22.8.2005, as such, contention of learned counsel for defendants No.1 and 2 based on Section 31 of the Act of 1963 is not at all tenable and the second appeal deserves to be dismissed.
9. I have heard learned counsel for the parties and considered their rival submissions made hereinabove and also went through the records with utmost circumspection.
1 (2010) 12 SCC 112 7
10. For sake of convenience, substantial question of law No.2 is taken first for consideration, which is based on Section 31 of the Act of 1963 as it is contention of learned counsel for the appellants/defendants No.1 and 2 that Rato Bai being party to sale deed ought to have sought for cancellation of sale deed under Section 31 of the Act of 1963 and reliance has been placed on the decision of the Supreme Court in the matter of Suhrid Singh (supra).
11. In Suhrid Singh (supra), Their Lordships of the Supreme Court considered the issue and held as under: "6. The second proviso to Section 7(iv) of the Act will apply in this case and the valuation shall not be less than the value of the property calculated in the manner provided for by clause (v) of the said section. Clause (v) provides that where the relief is in regard to agricultural lands, court fee should be reckoned with reference to the revenue payable under subclauses (a) to (d) thereof; and where the relief is in regard to the houses, court fee shall be on the market value of the houses, under sub clause (e) thereof.
7. Where the executant of a deed wants it to be annulled, he has to seek cancellation of the deed. But if a nonexecutant seeks annulment of a deed, he has to seek a declaration that the deed is invalid, or non est, or illegal or that it is not binding on him. The difference between a prayer for cancellation and declaration in regard to a deed of transfer/conveyance, can be brought 8 out by the following illustration relating to A and B, two brothers. A executes a sale deed in favour of C. Subsequently A wants to avoid the sale. A has to sue for cancellation of the deed. On the other hand, if B, who is not the executant of the deed, wants to avoid it, he has to sue for a declaration that the deed executed by A is invalid/void and nonest/ illegal and he is not bound by it. In essence both may be suing to have the deed set aside or declared as nonbinding. But the form is different and court fee is also different. If A, the executant of the deed, seeks cancellation of the deed, he has to pay ad valorem court fee on the consideration stated in the sale deed. If B, who is a non executant, is in possession and sues for a declaration that the deed is null or void and does not bind him or his share, he has to merely pay a fixed court fee of ₹ 19.50 under Article 17(iii) of Second Schedule of the Act. But if B, a non executant, is not in possession, and he seeks not only a declaration that the sale deed is invalid, but also the consequential relief of possession, he has to pay an advalorem court fee as provided under Section 7(iv)(c) of the Act."
12. Reverting to the facts of the case, it is quite vivid that there was no prayer for cancellation of sale deed dated 09.11.1998 (Ex.D8) and the case of the plaintiff is that sale deed is voidabinitio, therefore, she need not seek cancellation of sale deed dated 09.11.1998 (Ex.D8). The trial Court also considered the issue as issue No.3 and held that since prayer has been made seeking declaration of sale deed dated 09.11.1998 (Ex.D8) as null and void, and in fact it has the effect of cancellation of sale 9 deed, therefore, she has to pay advalorem court fee as per Section 7(v)(c) of the Act of 1870 and while granting decree in favour of the plaintiff it has been held that decree shall be operative only on the payment of court fee as per Section 7(v)(c) of the Act of 1870 and in compliance of the decree, the plaintiff has already paid court fee of ₹ 1200/ on 22.8.2005 before the trial Court, as such, for the reasons that the plaintiff did not seek cancellation of sale deed and advalorem court fee on market value of suit land has already been paid before the trial Court, therefore, it cannot be held that the suit is bad for not seeking relief of cancellation of sale deed, as such, the substantial question of law No.2 is answered in favour of the plaintiff and against the defendants.
Answer to substantial question of law No.1:
13. It is the case of the plaintiff that sale deed is voidabinitio. She agreed for sale of only 4 decimals of land, whereas by sale deed 2.50 acres of land has been got registered by defendants No.1 and 2 in their favour taking advantage of her illiteracy, as such, there were no intention to sale the entire land in favour of defendants No.1 and 2, therefore, 10 sale deed is void and market value of the land in question is much higher than what has been given by defendants No.1 and 2 to her. Same statement has been reiterated by the plaintiff in her examinationin chief under Order 18 Rule 4 of the CPC, but in the statement before the Court particularly in cross examination, she has clearly stated in para8 that she has made her thumb impression on the sale deed voluntarily and she has admitted the fact of visiting the office of SubRegistrar along with Rin Pustika and her son Heeralal though he is dumb and he was witness to sale deed. She has also stated that after registration of sale deed, defendants No.1 and 2 are in possession of the suit land. Upon further cross examination pursuant to the order dated 21.7.2005 she has clearly stated that she has received full consideration amount. She has also admitted that there was no manipulation in sale deed. Para16 of her statement states as under: "16.;g dguk xyr gS fd eS dgh Fkh fd rqe yksx T;knk iSlk nksxsa rks eS jftLVªh jn~n djk nqaxhA ;g dguk xyr gS fd xkao dk gjhjke eq>s dgk Fkk fd rqe ckjg gtkj esa tehu csp fn, eS rqEgsa rhl gtkj :i;s ns fn;k gksrkA ;g lgh gS fd eS jftLVªkj vkQhl esa jftLVªkj ds lkeus vaxqBk fulku yxkbZ FkhA ;g dguk xyr gS fd jftLVªkj us eq>ls tehu fodz; djus ds fy, iwNk FkkA ;g dguk xyr gS fd eS fy[kk i<+h ds ckn vaxqBk yxkbZ FkhA ;g lgh 11 gS fd fodzh ukek esa dksbZ xM+cM+h ugha gqbZ Fkh] lghlgh gqbZ Fkh eS fcdzh ukek ds i'pkr gh vaxqBk fulku yxkbZ FkhA gjhjke esjs i{k esa ugha FkkA ;g dguk xyr gS fd gjhjke tehu ysus dks rS;kj FkkA eS U;k;ky; esas bl rjg ls c;ku ugha nh gqvfd gekjs xkao esas tehu 5&7 gtkj :i;s ,dM+ fcdrk gSA ;g dguk lgh gS fd eS 'kiFk Ik= esa dksbZ c;ku ugha nh FkhA tks dkxt 'kiFk i= dk is'k gqvk gS tks iz- ih- 4 gS ij D;k fy[kk gS eq>s ugha ekyweA ;g dguk lgh gS fd eS lwjtiwj dksVZ esas c;ku nsus ugha xbZ gwaA ;g dguk xyr gS fd eS rglhynkj ds U;k;ky; esa gjhjke ds dgus ij vkifRr ntZ djkbZ Fkh] ,slk c;ku lwjtiqj dksVZ esa ugha nh FkhA eS ,slk c;ku ugha fy[kokbZ gwwa fd dsl ugha yM+uk pkgrh gwaA ;g dguk lgh gS fd jftLVªh esa fy[kk gS fd eS iwjk iSlk ik xbZ gwaA eS igys U;k;ky; esa ;g dFku ugha nh Fkh fd jftLVªh ij ew>s vkifRr ugha gSA ;g dguk lgh gS fd vkt eq>s esjs odhy lkgc dgWgs rc eS xokgh ns jgh gwaA ;g dguk lgh gS fd eq>s esjs odhy lkgc cksys Fks dh pkj fMlfey tehu csph gwa iwjs tehu dks ugha csph gwa cksys] mlh dks cksy jghs gwaA ;g dguk xyr gS fd eS vius eu ls c;ku ns jgh gwaA"
In last lines of para16, she has admitted that she is making the statement of selling of only 4 decimals of land as per advise given by her counsel.
14. From the aforesaid statement of the plaintiff, it is quite vivid that the plaintiff has clearly admitted the passing of consideration in her favour. She has also stated that she has signed the sale deed voluntarily and there is no manipulation in execution of sale deed, rather she has admitted the fact of passing of consideration in her favour. It is her 12 case in the plaint that sale deed is void. The burden was on her to prove that sale is void and no such transaction has ever been taken place between the parties, whereas she has clearly admitted the execution of sale deed, passing of consideration and registration of sale deed in favour of defendants No.1 and 2 and thereafter defendants No.1 and 2 are in possession of the suit land.
15. In order to prove the due execution of sale deed, defendant No.3Mohd. Gulam has been examined who is witness to sale deed (Ex.D8). He has clearly stated that in sale deed (Ex.D8) he has signed "A"
to "A' and he has proved the contents of sale deed. Heeralal is other witness who is son of the plaintiff though he is dumb witness, but he could have been examined by the plaintiff as he can be competent witness in the light of provisions contained in Section 119 of the Indian Evidence Act, 1872 which the plaintiff has chosen not to examine though sale is branded to be void, but he was not examined, as such, the plaintiff withheld the important witness and that is her son while alleging that sale deed is void, therefore, adverse inference must be drawn against her.
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16. Sale deed is registered one and apparently containing stipulations of transfer of right, title and interest by the plaintiff in favour of defendants No.1 and 2. Onus of proof was on the plaintiff to prove that sale deed was in fact not executed and it was void transaction which the plaintiff did not demonstrate by withholding the important witness Heeralal, her son by not examining her.
17. The Supreme Court in the matter of Vimal Chand Ghevarchand Jain v. Ramakant Eknath Jadoo2 has held that a registered sale deed carries presumption that the transaction was a genuine one and heavy burden of proof lay upon other person to show that transaction was sham one which the plaintiff failed to demonstrate.
18. Similarly, in the matter of Jamila Begum (dead) through legal representatives v. Shami Mohd. (Dead) through legal representatives and Another 3 has held that registration of sale deed reinforces valid execution of sale deed. It was held as under: "16. Sale deed dated 21121970 in favour of Jamila Begum is a registered document and the registration of the sale deed reinforces valid execution of the sale deed. A registered document carries with it a presumption that it was validly executed. It 2 (2009) 5 SCC 713 3 (2019) 2 SCC 727 14 is for the party challenging the genuineness of the transaction to show that the transaction is not valid in law. In Prem Singh and Others v. Birbal and Others4, it was held as under: "27. There is a presumption that a registered document is validly executed. A registered document, therefore, prima facie would be valid in law. The onus of proof, thus, would be on a person who leads evidence to rebut the presumption. In the instant case, Respondent 1 has not been able to rebut the said presumption."
19. Reverting to the facts of the present case in light of the principles of law culled out from the abovestated judgments (supra), it is quite vivid that registered sale deed executed by Rato Bai in favour of defendants No.1 and 2 has a presumption of being valid in law and onus of proof was on the plaintiff to show that said transaction was not valid in law, but the plaintiff has failed to rebut the said presumption and she did not bring any legal evidence for that purpose except her selfserving statement. Both the Courts below were absolutely unjustified in holding that registered sale deed (Ex.D8) executed by Rato Bai in favour of defendants No.1 and 2 is void document ignoring the fact that it is registered one with a presumption to be valid. The plaintiff herself 4 (2006) 5 SCC 353 15 has admitted the execution of sale deed in favour of defendants No.1 and 2, passing of consideration in her favour and even in mutation proceedings the plaintiff on being noticed did not make any objection, which is duly recorded vide Ex.D2 i.e. order of NaibTahsildar, Pratappur dated 16.7.99, as such, both the Courts below were absolutely unjustified in holding that sale deed dated 09.11.1998 (Ex.D8) executed by the plaintiff in favour of defendants No.1 and 2 is void document. Accordingly, the judgment and decree of both the Courts below are hereby set aside and the plaintiff suit would stand dismissed by answering the substantial question of law No.1 in favour of defendants No.1 and 2 and against the plaintiff.
20. The various judgments cited and vehemently relied upon by learned counsel for the respondents/legal representatives of the plaintiff, based on fraud is clearly distinguishable as plea of fraud is neither elaborately pleaded nor proved by appropriate legal evidence, as such, those judgments are not helpful to the plaintiff/its legal representatives.
21. The second appeal is allowed to the extent 16 indicated hereinabove leaving the parties to bear their own cost(s).
22. A decree be drawnup accordingly.
Sd/ (Sanjay K.Agrawal) Judge B/