Allahabad High Court
Paan Dei vs Summer Singh (Deceased) And 5 Others on 6 January, 2020
Author: Anjani Kumar Mishra
Bench: Anjani Kumar Mishra
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Reserved Court No. - 6 Case :- SECOND APPEAL No. - 1061 of 2019 Appellant :- Paan Dei Respondent :- Summer Singh (Deceased) And 5 Others Counsel for Appellant :- Gaurav Singh Hon'ble Anjani Kumar Mishra,J.
Heard learned counsel for the appellant.
This is a defendant's second appeal arising out of a suit for cancellation of a sale deed dated 28.03.2011 allegedly executed by the plaintiff, Sumer Singh in favour of the appellant.
The suit was filed on the ground that the sale deed was a fraudulent document. The husband of the appellant, on the pretext of getting the plaintiff a Kishan Credit Card,took him intoxicants and a sale deed appears to have been got executed; of which the plaintiff was totally unaware. He came to know of the same when on plough it, he was stopped on the pretext that he has sold the land to the appellant.
It was also alleged that the sale deed was without sale consideration and that the plaintiff never had any intention of executing any sale deed.
The trial Court dismissed the suit but the same has been decreed by the lower appellate Court on the finding that although the registered sale deed required attestation by two persons, it was manifestly attested by only one witness. The second witness mentioned in the sale deed is not its attesting witness.
Upon appreciation of the evidence, especially, the oral testimony of the three defence witnesses, the lower appellate Court has also returned a finding that the payment of sale consideration is not proved because , there were huge discrepancies as regards its payment in the oral testimony of three witnesses, who were in any case, the appellant, her husband and son.
Besides, the Court has come to the conclusion that one page of the sale deed was changed because the signature of the Sub Registrar on these two pages was found in different inks.
From a perusal of the sale deed it was not clear as to whose photographs has been affixed.
The Court below also observed that the background in the photographs were different, although, the appellant, in her oral testimony has said that all the photographs were taken at the same place.
The contention of counsel for the appellant is that one of the marginal witness of the sale deed in favour of the appellant was produced but his testimony has been discarded on the ground that he is an interested witness, being the son of the appellant. In so far as the second marginal witness of the sale deed is concerned he never appeared despite summons having been sent to him by the court. Under the circumstances, and without any other evidence having been looked into an adverse interference could not and should not have been drawn against the appellant. In doing so, the lower court had committed manifest illegality.
In any case, if thumb impression of this second marginal witness on the reverse of the registered document was not clear, it was for the Sub Registrar and the employees in his office to explain the same. It is next contended that even the photograph on the registered document have been found by the lower appellate court to be doubtful. Therefore, it is contended that the judgment of the lower appellate court is based on surmises and conjectures.
It is lastly submitted that the finding that the sale deed in question was a product of collusion between Sub Registrar and Officials in his office,and the appellant is again based on surmises and conjectures and has been arrived at only because the Sub Registrar has at two different places signed in different inks.
In so far as the first contention that only one marginal witness was required to be produced and this was actually done and therefore, the Court below should not have cancelled the sale deed, it would be relevant to note that the testimony of the sole marginal witness produced has been discarded as he was an interested witness, the son of the purchaser. This was done also because his name was not mentioned as a marginal witness on the first page of the document. It is in this context that the page on which, the name of the alleged marginal witness was recorded in the sale deed, has been held to be an interpolated page, and not the original page.
In my considered opinion, the finding is a finding of fact, which is based upon the appreciation of the evidence on record. This Court while exercising second appellate jurisdiction is not entitled to interfere with such findings, returned upon appreciation of the evidence on record, even if a contrary or different view can be taken. This is so because appreciation of the evidence is not a question of law. The second appeal is to be entertained only on a substantial question of law. No substantial question of law arises on the basis of the submissions that have been made.The second appeal therefore, lacks merit.
The second appeal lacks merit also because the sale deed in question of being cancelled on a finding that no sale consideration is proved to have been actually paid. A sale deed is without consideration is void. Counsel for the appellant, during the course of his submissions, has not submitted anything as regards this finding.
In view of the foregoing and since the submissions made by counsel for the appellant, all pertain to appreciation of evidence, the second appeal is found to be without merit and raises no substantial question of law for consideration by this Court.
It is, therefore, dismissed.
Order Date :- 6.1.2020 RKM