Karnataka High Court
Kenchawwa vs Amogonda And Ors. on 11 June, 2003
Equivalent citations: AIR2003KANT434, 2004(1)CTLJ161(KAR), ILR2003KAR2548, AIR 2003 KARNATAKA 434, 2003 AIR - KANT. H. C. R. 2001, 2004 (1) CTLJ 161, (2003) 10 ALLINDCAS 844 (KAR), (2003) ILR (KANT) (4) 2548, (2003) 3 ICC 641
JUDGMENT Rajendra Prasad, J.
1. Parties are referred with respect to their ranking as held in the lower Court in the course of this judgment for the purpose of convenience.
2. This Regular First Appeal by the unsuccessful plaintiff filed under Section 96 of the C.P.C. is directed against the judgment and decree dated 13.9.1976 passed in O.S.No. 20/1975 on the file of the erstwhile Civil Judge, Bijapur, wherein the learned Civil Judge had dismissed the suit of the plaintiff for declaration and the relief of permanent injunction, challenging the legality and validity of the judgment impugned.
3. At the outset, it should be mentioned that this Court, on 24/ 25.2.1988, had disposed of the appeal decreeing the suit of the plaintiff. Feeling aggrieved, the first defendant had carried the appeal to the Apex Court in Civil Appeal No. 8731/1994 arising out of S.L.P.(C) No. 6149/1988, and the Apex Court, vide its judgment dated 20.3.2002, had set aside the judgment and decree of this Court by allowing the appeal and had remanded the case to this Court for hearing the matter in the light of the observations made therein. Accordingly, this Court has again heard the arguments of both sides.
4. The learned Counsel for appellant, Sri Ajit Gunjal, strenuously contended that the material on record clearly shows that the judgment and decree of the Trial Court is illegal and invalid. The learned Civil Judge had not appreciated the evidence on record in the right perspective and the same has resulted miscarriage of justice. The learned Counsel also contended that the plaintiff has successfully proved the fraud played upon her by the defendants and on the contrary, the first defendant had not even got himself examined and thereby the best evidence had been shut out. He also contended that the first defendant had not produced the original sale deed to show that there had been an endorsement regarding payment of sale consideration before the Sub-Registrar and in view of the provisions of Section 59(c) of the Registration Act, the case putforth by the first defendant is totally unacceptable. He also contended that the suit has been filed within three years of the plaintiff coming to know of the fraud played by the defendants, and there were no compelling reasons for the plaintiff to sell the suit property as now alleged. He relied upon a decision reported in A.I.R. 1968 S.C. 956 in support of his contentions. Placing reliance on the ratio laid down in the said decision, he prayed for allowing the appeal.
5. On the contrary, Sri Gachina Mutt, the learned Counsel for first defendant strenuously contended that the material on record clearly shows that the judgment and decree of the Trial Court is legal and valid. The learned Civil Judge, after proper appreciation of the evidence on record, had arrived at the right conclusion. The material on record also goes to show that the plaintiff had utterly failed to prove the plea of fraud set up by her. The evidence placed on record by the plaintiff is highly insufficient and unacceptable. On the contrary, the material on record clearly shows that the plaintiff and her husband - second defendant, had been represented by a common advocate in O.S.No. 251/1973 filed by the first defendant and this itself shows the fraud and collusion between the husband and wife and as such no reliance could be paced on the case putforth by the plaintiff. The material on record also goes to show that the instant suit is a collusive suit between the husband and wife, designed only to defraud the first defendant, who, after purchase of the land, had made substantial improvement. The learned Counsel also contended that there had been family necessity and compelling circumstances for the plaintiff to sell the suit property in favour of the first defendant. The learned Counsel also contended that the suit of the plaintiff is totally barred by limitation and the material on record also goes to show that the first defendant had been put in possession of the suit property in pursuance of the sale deed and R.T.C. entries were also got changed in his name and at that time, the plaintiff, who was fully aware of this, did not choose to react to the situation and it is now too late for the plaintiff to contend anything to the contrary. Hence, the learned Counsel prayed for dismissal of the appeal.
6. During pendency of the appeal, the second defendant -husband of the plaintiff, died and his L.Rs. are brought on record.
7. Before proceeding further, it is felt necessary to mention a few factual aspects, which would be necessary for disposal of the appeal on hand.
8. The suit against the defendant had been for declaration that the Sale Deed dated 4.10.1969 in respect of the suit land is null and void, not binding on the plaintiff and for consequential relief of injunction or in the alternative for possession. The case of the plaintiff in brief was to the effect that the suit land was acquired by the plaintiff as streedhan property exercising the right of ownership. The plaintiff had also mortgaged the suit property with possession under the Registered Mortgage Deed to one Sri K. Bhagawan Keshava Pandit on 11.4.1966 for Rs. 600/- and on 2.5.1968 the said mortgage was redeemed and consequently, the plaintiff got back the possession of the suit property. The plaintiff has been getting the land personally cultivated with the help of hired labourers. During November 1972, the first defendant tried to interfere with the possession of the suit property and on checking up the records it was found that the first defendant had managed to get the sale deed in his favour in collusion with the 2nd defendant. The plaintiff's signature had been obtained on the said document on 4.10.1969 by misrepresenting that the defendant No. 2 had taken a loan of Rs. 3,000/- from the first defendant and the first defendant wanted plaintiff's signature as a surety for the loan. As such the defendants 1 and 2 had collusively committed fraud on the plaintiff and had obtained her thumb impression over the sale deed. The plaintiff had not sold the schedule property to the first defendant at any time, muchless on 4.10.1969. Hence the suit.
9. The first defendant - the Purchaser of the suit property has resisted the suit by denying the material averments therein. The 2nd defendant - the husband of the plaintiff had remained absent by not choosing to participate in the proceedings. The first defendant has specifically contended that the plaintiff had sold the suit property in his favour under the registered sale deed for valuable consideration. The plaintiff herself had appeared before the Sub-Registrar for executing the document. The first defendant got the katha changed in his name and he has been paying the land revenue in respect of the suit property. The sale deed had been acted upon by the authorities concerned. The allegation of alleged fraud committed by the defendants 1 and 2 is totally false.
10. With these facts in issue, the parties went into trial. The plaintiff herself got examined as PW1 and relied upon Ex.P1 to 5. On the contrary the Power of Attorney Holder of the first defendant got himself examined as DW1 and relied upon Ex.D 1 to 13. After a full dressed trial the learned Civil Judge had dismissed the suit. The plaintiff feeling aggrieved had carried an appeal before this Court in MFA 45/77 and this Court on 24/25-2-1988 had allowed the appeal and consequently the suit of the plaintiff came to be decreed. Feeling aggrieved by the said Judgment the first defendant - Purchaser had carried an appeal before the Apex Court in Civil Appeal No. 8731/ 94 and after hearing, the Apex Court had allowed the appeal and had remanded the matter to this Court for re-hearing the matter in the light of the observations made in the course of the judgment.
11. We have carefully perused the material on record and have given our anxious thoughts over the rival contentions raised.
12. From the material on record the following admitted factual aspects emerge. It is not in dispute that the suit property originally belongs to the plaintiff and it had been her Sthreedhan property. The specific case of the plaintiff is that the plaintiff had not at all sold the suit property to the first defendant and the first defendant and husband of the plaintiff - 2nd defendant had joined hands together and had practiced fraud on the plaintiff and obtained her thumb impression at Bijapur on 4.10.1969 on the sale deed and the sale is not binding on her. On the contrary, the first defendant denies these aspects and contends that it had been an out and out sale deed and in pursuance of sale deed the first defendant had been put in possession of the suit property and he has been in possession and enjoyment of the same exercising the propriety and possessory rights.
13. It is a settled principle of law that in an adversary system to administration of justice, whenever a party approaches a court of law seeking relief by specifically asserting some fact to enable the party to get the relief, such pleading is called 'facta probanda'. It is again a settled principle of law that when a facta probanda is denied by the other side, the same forms a fact in issue and in proof of the fact in issue, the party, who has come up with such a plea, will have to place acceptable legal evidence and the said evidence partakes the nature of facta probantia. The party in order to succeed in such a case, will have to not only plead all the details of fraud or misrepresentation in detail and will have to lead evidence in support of facta probanda. It is also a settled principle of law that a facta probonda is required to be supported by facta probantia and facta probantia should be well supported by facta probanda. In other words, facta probanda and facta probantia go hand in hand and the court of law cannot afford to spell out a case in favour of such a litigation either merely acting upon facta probanda or facta probantia.
14. The plaintiff having raised the plea of fraud and misrepresentation on the part of the defendants, and the said plea having been denied by the contesting defendant, the burden of proof lies on the plaintiff. In this context, it is necessary to mention a portion of a passage from Sarkar on Evidence, 13th Edition, page 933, which runs thus. "A person who charges another with fraud must himself prove the fraud, and he is not relieved from this obligation because the defendant has told an untrue story."
15. To quote another passage from a portion of page 911, which runs thus: " The phrase 'burden of proof' is not defined in the Act. It has two distinct and frequently confused meanings : (1) The burden of proof as a matter of law and pleading - the burden, as it has been called of establishing a case. This burden rests upon the party, whether plaintiff or defendant, who substantially asserts the affirmative of the issue. It is fixed at the beginning of the trial by the state of the pleadings, or their equivalent, and it is settled as a question of law, remaining unchanged under any circumstances whatever. (2) The burden of proof as a matter of adducing evidence. The burden of proof in this sense is always unstable and may shift constantly, throughout the trial, according as one scale of evidence or the other preponderates.
16. To quote a portion of passage from page 912, "It lies at first on that party who would be unsuccessful if no evidence at all were given an either side. This being the test, this burden of proof cannot remain constant but must shift as soon as he produces evidence which prima facie gives rise to a presumption in his favour. It may again shift back on him if the rebutting evidence produced by his opponent preponderates.
17. At this juncture, it is also felt necessary to quote a portion of page 245 from Indian Contract and Specific Relief Act of Pollock and Mulla, 11th Edition, Volume - I, which runs thus: "The mere fact that the plaintiff was an old and illiterate lady, by itself would not lead to an inference that the transaction was vitiated by undue influence or fraud or misrepresentation as the burden was on the plaintiff to prove all necessary facts".
18. These settled principles make it clear that the burden of proof of alleged fraud or misrepresentation committed by defendants - 1 and 2 lies on the plaintiff and on plaintiff placing some prima facie material in support of this plea, the onus of proof shifts on defendant-1 to place contra material in support of his plea and also to meet the facta probanda pleaded by the plaintiff. On the first defendant placing such material, the onus to prove again shifts on the plaintiff and at this stage, the plaintiff is required to place such contra material in the nature of rebuttal evidence. From the material on record it is seen that the plaintiff, in the course of discharging her burden, had basically relied upon her own interest testimony. On careful perusal of the evidence of the plaintiff, it is seen that the plaintiff has admitted her thumb impression on the sale deed, but has stated that she had not gone to the Sub-Registrar's office. She believed the words of her husband and the first defendant and so she signed on the stamp paper. She has also stated that when she asked her husband, he told that he did borrow the amount and so he asked her to become surety. The relations were not good and cordial with her husband at that time. Her husband used to visit and stay with her some times. Since her husband had deceived, on that score, he was not in good terms with her. Her husband brought her to Bijapur while taking signature on the stamp. None else were present at that time. She does not know whether she and her husband signed before the Sub-Registrar. Excepting this part of the evidence, there is absolutely nothing more spoken to by the plaintiff. The documentary evidence placed on record by the plaintiff is not related to the alleged fraud or mis-representation by defendants - 1 and 2. This part of the evidence, having regard to the facts and circumstances of the case, in our opinion, does not prima facie give raise to a presumption in her favour. Having regard to the nature and quality of evidence placed on record, in our opinion, the evidence is highly insufficient in material particulars and totally unacceptable. In addition, it is also necessary to mention that in the pleadings, the plaintiff had also alleged fraud and misrepresentation on the part of the first defendant also. But, in the course of evidence, she has given a total go-by to this part of the pleading and her evidence is totally silent so far as the involvement and participation of the first defendant while getting the sale deed. This aspect gives room for two inferences - first one is to the effect that the involvement and participation of the second defendant has been totally excluded by the plaintiff, which is contrary to the pleadings, and the second one is to the effect that there has been variance between the facta probanda and facta probantia. In other words, there has been clear variance between the pleadings and the proof. It is a settled elementary principle of law that the court cannot act upon either such pleadings or such evidence alone and spell out a case in favour of the plaintiff. In addition, it is also necessary to mention that the onus of proof of alleged fraud and misrepresentation would have been shifted to the first defendant on the plaintiff producing evidence which prima facie gives raise to a presumption in her favour. On the contrary, as mentioned above, the evidence is highly insufficient and unacceptable. Such being the case, in our opinion, the first defendant need not have adduced any evidence in meeting the case putforth by the plaintiff. In other words, in our opinion, particularly having regard to the nature and quality of evidence placed by the plaintiff, the court, while appreciating the evidence on record, had no option but to negative the contention of the plaintiff even if the first defendant had remained ex-parte.
19. At this stage, it is also felt necessary to mention that the learned Counsel of the appellant has contended that the defendant had not got himself examined and the original sale deed has not been produced. In view of the discussion supra and having regard to the nature and quality of the evidence placed on record, the omission on the part of the first defendant in this regard is of no avail to the plaintiff as the plaintiff has failed to discharge the initial burden while proving the plea of fraud and misrepresentation. At this stage, it is also necessary to mention that the first defendant had filed a suit for permanent injunction in O.S. No. 251/1973 and the plaintiff and the second defendant (husband and wife) had engaged a common advocate to defend their cause. This goes to show that it is the husband and wife who are together and are impliedly colluding with each other and are fighting out the lis in a most unceremonious way. This aspect, in our opinion, also adds to negative the claim of the plaintiff. The learned Counsel also contended that there is no certificate of the Sub-Registrar to evidence payment before him to the plaintiff. In this regard, it is also necessary to mention that on careful perusal of Ex.D-1, there is no clear mention regarding payment of any amount as sale consideration to the plaintiff before the Sub-Registrar. Such being the case, the question of the Sub-Registrar appending any certificate to this effect does not arise at all. On the contrary, the sale consideration appears to have been paid before the attestors. In this regard, it is also necessary to mention that the defendant had also examined D.W. 2, who had identified the plaintiff in the sale deed, and also D.W. 3, the scribe of the sale deed, and has evidence is to the effect that he had read over the contents to the plaintiff and she admitted the contents and thereafter the plaintiff and her husband put their L.T.Ms. to the document. D.W. 4, in the course of evidence, has stated that he was present before the Sub-Registrar at the time of registration and also at the time of writing the document. As instructed by the plaintiff, the document had been read over after it had been written and thereafter the plaintiff had affixed her L.T. Mark. During the course of cross-examination of these witnesses, no noteworthy material has been elicited so as to discard their evidence. The discussion supra clearly goes to show that the evidence of these witnesses has added to the case putforth by the first defendant and is sufficient to demolish the alleged theory of fraud and misrepresentation by the defendant.
20. At this stage, it may not be out of context, if it is mentioned that as per the provisions of Illustration (e) of Section 114 of the Evidence Act, a presumption is attached o the official acts done by the Sub-Registrar in the course of registering the sale deed. The said presumption stands totally unrebutted by the plaintiff. On the contrary, the acts of the Sub-Registrar in this regard are the official acts and are presumed to have been performed in the regular course of business. Even this aspect, in our opinion, adds to the case of the first defendant.
21. This second aspect that requires our consideration is with regard to limitation and, on the pleadings, the Trial Court had raised issue No. 5 in this regard. Patently, the sale deed is dated 4.10.1969 and the suit had been filed on 6.9.1973. The learned Counsel for plaintiff strenuously contended that the suit had been filed within three years from the date of plaintiff coming to know of the fraud and misrepresentation by the defendants and as such the suit is in time. The learned Counsel also relied upon a decision of the Apex Court reported in AIR 1968 SC 956. The material on record clearly shows that the first defendant had been put in possession of the suit property in pursuance of the sale deed and he had been in physical possession and enjoyment of the suit property exercising both propriety and possessory rights and had also got changed the khatha in his name and had been paying taxes in this regard. The plaintiff and the first defendant hail from the same village. Such being the case, it is too much on the part of the plaintiff to contend that she came to know of the alleged fraud and misrepresentation only when she made enquiries after November 1972. The material on record clearly shows that the say of the plaintiff in this regard is totally unacceptable. The discussion supra also goes to show that the plaintiff had utterly failed to prove the alleged fraud and misrepresentation by the defendants, even on reappreciation of the evidence by us. Such being the case, question as to whether the suit is in time or not would be redundant. In view of these aspects, we have no hesitation to hold that the contention raised by the learned Counsel for the plaintiff is unacceptable.
22. The learned Civil Judge, on appreciation of the evidence on record, had arrived at a right conclusion and even on reappreciation of the evidence on record, we are unable to arrive at any other conclusion. Hence, we hold that the judgment impugned in the appeal is legal and valid and the same does not call for any interference by us.
23. So far as costs is concerned, normally, in a case of this nature, we would have taken a liberal view and would have waived the costs. But, the conduct of the plaintiff and her husband in fighting out this lis for over three decades in the most unrighteous way, prompts us to award costs also to the first defendant. It may not be out of context if it is mentioned in this regard that during pendency of the appeal, the second respondent, husband of the plaintiff, died and the plaintiff had filed L.R. application to bring her children on record and in the L.R. application, there has been a specific mention that she made efforts to get the details of L.Rs. and as such there had been delay in this regard. The L.Rs. of the second respondent were no other than her own children. This aspect also prompts us to dispose of the suit imposing costs on the plaintiff.
24. For the forgoing reasons, we dismiss the appeal with costs payable to the first defendant. The judgment and decree of the Trial Court hereby stands confirmed.