Gujarat High Court
Veljibhai Mavjibhai Mistry vs Joitiben Wd/O Bababhai Jaitabhai ... on 18 September, 2017
Equivalent citations: AIR 2018 (NOC) 479 (GUJ.)
Author: Akil Kureshi
Bench: Akil Kureshi, Biren Vaishnav
C/FA/2254/2015 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
FIRST APPEAL NO. 2254 of 2015
WITH
FIRST APPEAL NO. 2255 of 2015
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE AKIL KURESHI
and
HONOURABLE MR.JUSTICE BIREN VAISHNAV
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1 Whether Reporters of Local Papers may be allowed
to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of
the judgment ?
4 Whether this case involves a substantial question of
law as to the interpretation of the Constitution of
India or any order made thereunder ?
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VELJIBHAI MAVJIBHAI MISTRY....Appellant(s)
Versus
JOITIBEN WD/O BABABHAI JAITABHAI PATELTHROUGH LEGAL HEIRS &
4....Defendant(s)
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Appearance:
MR DEVEN PARIKH, SENIOR COUNSEL WITH MR DEVARSHI C SHAH,
ADVOCATE for the Appellant(s) No. 1
MR BJ TRIVEDI, ADVOCATE for the Defendant(s) No. 5
MR JT TRIVEDI, ADVOCATE for the Defendant(s) No. 5
MR MEHUL S SHAH, ADVOCATE for the Defendant(s) No. 4
MR SAURABH SOPARKAR, SENIOR COUNSEL WITH MR TATTVAM K
PATEL, CAVEATOR for the Defendant(s) No. 3
MS JIGNASA B TRIVEDI, ADVOCATE for the Defendant(s) No. 5
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HC-NIC Page 1 of 99 Created On Tue Sep 19 00:19:59 IST 2017
C/FA/2254/2015 CAV JUDGMENT
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CORAM: HONOURABLE MR.JUSTICE AKIL KURESHI
and
HONOURABLE MR.JUSTICE BIREN VAISHNAV
Date : 18 /09/2017
CAV JUDGMENT
(PER : HONOURABLE MR.JUSTICE BIREN VAISHNAV)
1. These first appeals arise out of judgements and decrees passed by the learned 4th Additional Senior Civil Judge, Gandhinagar. Special Civil Suit No. 89 of 2010 was filed by the respondents no. 1 to 3 of First Appeal No. 2254 of 2015 whereas Special Civil Suit No. 90 of 2010 was filed by respondents no. 1 to 6 of First Appeal No. 2255 of 2015. As by the judgements and orders dated 24th September 2015, the suits having a common set of facts were decreed in favour of the respective plaintiffs, the common defendant no. 3 in both these suits, is in appeal before this court, albeit in separate appeals.
2. Two separate parcels of land, owned and possessed by two separate sets of owners, approached the Civil Court to set aside transactions of sale of their respective lands, initially in favour of defendant no. 2, who subsequently sold the lands in favour of defendant no. 3 (Appellant). According to the plaintiffs, such sale transactions ought be declared as non-est and therefore not effective, as according to the plaintiffs, the document ,Power of Attorney in favour of defendant no. 1 which was the genesis of such transactions, was itself a document which was forged, and the consequential sale deed also be declared as illegal, forged, fraudulent and non Page 2 of 99 HC-NIC Page 2 of 99 Created On Tue Sep 19 00:19:59 IST 2017 C/FA/2254/2015 CAV JUDGMENT effective.
3. The trial court allowed such suits. Hence, the successive purchaser, defendant no. 3 of both such sale transactions is in appeal. Evidence in both the suits being identical, facts of Special Civil Suit No. 89 of 1990 from which First Appeal No. 2254 of 2015 arises would be referred to.
FACTS OF FIRST APPEAL NO. 2254 OF 2015
4. Respondents no. 1 to 3 of this appeal were original plaintiffs of Special Civil Suit No. 89 of 2010 filed before the Principal Senior Civil Judge, Gandhinagar. Appellant herein shall be referred to as "defendant no. 3", respondents no. 1 to 3 as "plaintiffs", respondent no. 4 as "defendant no. 1" and respondent no. 5 as "defendant no. 2".
4.1 According to the plaintiffs, they are owners of land ad- measuring 8296 square meters of Survey No. 546 at village Khoraj, Taluka and District : Gandhinagar. Their names are even so recorded in the revenue records. It is the case of the plaintiffs that two months before filing of the suit, one Ratilal, a broker dealing in land contacted them to arrange for a buyer for their land, if they were so interested. Ratilal promised to arrange a meeting with a buyer for their as land as well as the land of the plaintiffs of Special Civil Suit No. 90 of 2010, Amrutbhai Shambhubhai.
4.2 The plaintiffs expressed their willingness to sell their lands and gave a go ahead for such a meeting. Ratilal, accordingly arranged a first meeting on 12.01.2010 at a hotel Page 3 of 99 HC-NIC Page 3 of 99 Created On Tue Sep 19 00:19:59 IST 2017 C/FA/2254/2015 CAV JUDGMENT on Sarkhej-Gandhinagar highway where they met the defendant no. 1 - Pushpendrasinh. Presenting himself as a relative of Shri Shaktisinh Gohil, Pushpendrasinh - the defendant no. 1 showed interest on his behalf to purchase lands after promising to arrange their meeting. Plaintiff no. 3
- Natubhai of Special Civil Suit No. 89 of 2010 and 90 of 2010 participated in such a meeting on 12.01.2010.
4.3 A meeting was then arranged by defendant no. 1 - Pushpendrasinh at the Gandhinagar Circuit House. Pushpendrasinh introduced one Digvijaysinh to the plaintiffs. Digvijaysinh projected himself as a cousin of Shaktisinh and showed interest in purchasing of such lands, dealing on his behalf. After negotiation, according to the plaintiffs, price of land was finalised. Telephonic conversations were exchanged between the parties and a final meeting for such deal was held on 23.01.2010 at the Gandhinagar residence of the plaintiffs of Special Civil Suit No. 90 of 2010. According to the plaintiffs, all individuals whose names appeared in the revenue records were instructed to remain present together with their photographs at the Gandhinagar residence at 10 pm on 23.01.2010. Such a meeting, as the pleading in the plaint reveals, was to undertake an exercise of obtaining a Title Clearance Deed. The defendant no. 1 had arranged a notary's representative, one Dipak Shah to come with a Notary Register so that the plaintiffs can sign a declaration authorizing the defendant no. 1 - Pushpendrasinh on their behalf to obtain a Title Clearance Certificate for their lands.
4.4 According to the plaintiffs, they were made to sign and affix their thumb impressions on a green ledger sheet below Page 4 of 99 HC-NIC Page 4 of 99 Created On Tue Sep 19 00:19:59 IST 2017 C/FA/2254/2015 CAV JUDGMENT the statement on the ledger sheet "FOR TITLE CLEARANCE". Signatures were obtained even in the Notary Register under the heading "FOR TITLE CLEARANCE". The plaintiffs believed the bonafides of the defendant no. 1 - Pushpendrasinh as cash token of Rs.1,00,101/- was paid to them. Photographs were collected by Mr. Dipak Shah who had come with the Register. Realising that no public notice had appeared in the newspapers for such a title clearance, the plaintiffs tried to contact Pushpendrasinh, defendant no. 1. Pushpendrasinh got back requesting for fresh document of authority to which the plaintiffs demanded the return of the first set of documents and photographs. At this point, Pushpendrasinh and the plaintiffs met at their lands and were shown the document and then the same was burnt in their presence.
4.5 On 20.02.2010, a month after the meeting when the authority of Title Clearance was signed, the defendant no. 2 found a cheque of Rs.4,00,000/- deposited in his account. The Bank could not explain the source of the deposit. Defendant no. 1 had stopped interacting with the plaintiffs. Sensing something amiss, the plaintiffs approached the office of the Sub-Registrar. On a search, they found a sale deed registered on 22.02.2010 which revealed a transaction of sale of their lands for a consideration of Rs.12,00,000/- in favour of defendant no. 2 Sumanbhai Kantilal Patel. According to the sale deed, the transaction was by the defendant no. 1 Pushpendrasinh as a Power of Attorney holder for and on behalf of the plaintiffs land owners. Also a sale deed, vis-a-vis the land of the plaintiff of Special Civil Suit No. 90 of 2010 for a consideration of Rs.21,00,000/- in favour of defendant no. 2, Page 5 of 99 HC-NIC Page 5 of 99 Created On Tue Sep 19 00:19:59 IST 2017 C/FA/2254/2015 CAV JUDGMENT Sumanbhai Patel based on a Power of Attorney in favour of defendant no. 1 Pushpendrasinh, was found to have been executed.
4.6 It was the case of the plaintiffs that they had not executed any Power of Attorney dated 23.01.2010 authorising the defendant no. 1 - Pushpendrasinh to deal in the lands and execute such sale deeds on 22.02.2010 of the lands in question. No consideration of such lands had passed on to the plaintiffs and the plaintiffs continued to be in possession of the said lands. The purported Power of Attorney, a photocopy of which was obtained from the Sub-Registrar's office, showed overwriting of dates changing the date of 23.01.2010 to 22.01.2010, by overwriting '23' as '22'. The plaintiffs had not entered into any such transaction.
4.7 The plaint, in the suit goes on to point out several circumstances which would substantiate the plaintiffs' stand that the Power of Attorney was a forged and a fraudulent document and no sale consequential to such a document could have been entered into. In order to better understand the factual aspects, circumstances laid out clause by clause in the plaint deserve reproduction. They are:
"(a) It was difficult to believe that property, market value of which is Rs.20 crores is sold for a consideration of Rs. 12 lakhs. Properties of both suits put together are worth more than Rs. 53 crores sold for a total consideration of Rs.33 lakhs.
(b) It is improbable that the sellers would not go to Page 6 of 99 HC-NIC Page 6 of 99 Created On Tue Sep 19 00:19:59 IST 2017 C/FA/2254/2015 CAV JUDGMENT the office of the Sub-Registrar even once to execute a sale deed. Sale transaction of such large financial ramifications in favour of a seller whom they have not seen is also improbable.
(c ) Signatures were obtained for title clearance on 23.01.2010 of plaintiff no. 2 Rameshbhai and plaintiff no. 3 Natubhai. On the forged Power of Attorney, dates were changed at all the three places to 22.01.2010 and the initials at all these three places appeared same. They are not the initials of the plaintiffs.
(d) The office of the Sub-Registrar is also involved in the fraud as without a registered Power of Attorney being presented, sale deeds were registered.
(e) No sale deed could have been registered on the strength of an unregistered Power of Attorney. Registration of such sale deeds were contrary to law.
(f) The Power of Attorney holder has shown his address at Soja. Meeting was held on 23.01.2010 and therefore the date 22.01.2010 mentioned on the purported Power of Attorney was an act of overwriting.
(g) The Power of Attorney which is dated 22.01.2010 recites that they have received the Page 7 of 99 HC-NIC Page 7 of 99 Created On Tue Sep 19 00:19:59 IST 2017 C/FA/2254/2015 CAV JUDGMENT entire consideration for the transaction from Sumanbhai Kantibhai. The sale deed was dated 22.02.2010. Neither have the plaintiffs as per such recital seen or met the purchaser Sumanbhai Patel. There is further contradiction as the sale deed shows payment of cash consideration of Rs.4,00,000/- each made to plaintiff no. 1 and plaintiff no. 3. No such averment is made in the Power of Attorney. Moreover, cheque of Rs.4,00,000/- in favour of plaintiff is dated 20.02.2010. Therefore, there is factual misstatement in the Power of Attorney that the entire consideration is paid.
(h) Witnesses to the Power of Attorney are not shown with their residential address.
(i) Even the witnesses Bharatbhai Nayanbhai Thakor and Rajnikant Devjibhai Parmar are not staying at the listed address.
(j) Even if the document of Power of Attorney is seen, last page shows erasure of "title clearance". Pages have been added before the last page and therefore apparently a forged document is created. The advocate identifying the document , Dipaben Parmar is also known to the defendant no.1."
4.8 In the plaint it was further stated that the defendants nos. 1 and 2 had no source of income and it was therefore difficult to believe how such considerations of Rs.12,00,000/-
Page 8 of 99HC-NIC Page 8 of 99 Created On Tue Sep 19 00:19:59 IST 2017 C/FA/2254/2015 CAV JUDGMENT and Rs.21,00,000/- were paid, of which Rs.29,00,000/- is purportedly paid in cash and the remaining Rs.4,00,000/- by way of a cheque. A further transaction on 23.03.2010 has been entered into by defendant no. 2 selling the land in favour of defendant no. 3. Defendant no. 3, therefore cannot be said to be a bonafide purchaser for value without notice. The fact of such a sale in quick succession on 23.03.2010 within 25 days was proof enough of the fraud. That the defendant no. 3 is also a party to the fraud is evident from the recital in the sale deed between defendant no. 2 and defendant no. 3 showing payment of Rs.3,00,000/- to defendant no. 2 on 26.02.2010. Therefore, even before the sale deed was executed, immediately on the basis of a deed of 22.02.2010, defendant no. 2 had accepted Rs. 3 lakhs from a subsequent purchaser. Based therefore on such recitations, a suit was filed on 01.04.2010 claiming the reliefs as set out in the plaint, praying to set at naught the sale deeds based on a forged and a fraudulent Power of Attorney.
4.9 As far as the Special Civil Suit No. 90 of 2010 is concerned, the lands in question are lands at village Khoraj ad-measuring 10694 sq. meters of Survey no. 501. The pleadings in the plaint and so are the defendants same.
EVIDENCE, ORAL AND DOCUMENTARY.
5. Plaintiff has been examined at Exh. 53. FSL Officer is also examined at Exh. 112. Documentary evidence is on record. The Revenue entry, the Power of Attorney (certified copy) and sale deed (certified copy) are on record at Exhs. 57 to 59 respectively.
Page 9 of 99HC-NIC Page 9 of 99 Created On Tue Sep 19 00:19:59 IST 2017 C/FA/2254/2015 CAV JUDGMENT 5.1 The defendants no. 1 & 2 have filed a written statement at Ex. 35. Their case is of complete denial. It is their case that an irrevocable General Power of Attorney coupled with interest was executed by the plaintiffs in favour of the defendant no. 1 by virtue of which a right to sell the property in question was acquired. Based on such authority, the defendant no. 1 executed a sale deed in favour of the defendant no. 2 on 22.02.2010. On execution of such a sale deed, ownership and possession of the open suit land has been acquired by such defendants, particularly in view of their title to such land by virtue of the sale deed.
5.2 The plaintiffs, according to the defendants voluntarily executed the Power of Attorney in favour of the defendant no. 1 on 22.01.2010. Sale deed was thereafter executed on 22.02.2010. The Power of Attorney is genuine. The defendant no. 2 has subsequently alienated the suit land in favor of defendant no.3 on 23.03.2010 by a subsequent registered sale deed. The defendants plead that the Power of Attorney is not a void or a voidable document and so also the sale deed. The suit is a frivolous suit and the plaintiffs are now seeking to resile from their own act of executing the Power of Attorney which was validly executed.
5.3 Defendants no. 1 and 2 have been examined at Exhs. 134 and 144 respectively. They too have produced an opinion of a Handwriting Expert at Exh. 160. Exh. 248 is a statement on affidavit of the defendant no. 2 by which he has admitted that the entire transaction was based on a forged Power of Attorney. Documentary evidence in the form of bank Page 10 of 99 HC-NIC Page 10 of 99 Created On Tue Sep 19 00:19:59 IST 2017 C/FA/2254/2015 CAV JUDGMENT statements of defendant no. 2 are produced at Exh. 152 and Exh. 154. Opinion of the expert is at Exh. 173.
5.4 The second purchaser in line, defendant no. 3, the present appellant also filed a written statement at Ex. 46. The reply is on the same lines as that of defendants no. 1 and 2. He has not offered himself as a witness.
5.5 Based on the pleadings on record and the evidence adduced by the respective parties, the learned judge allowed the suits of the plaintiffs and passed decrees holding that the sale deeds based on a forged and a fraudulent Power of Attorney are void and hence declared them as cancelled. In short, the entire sale transaction was set aside as bad, in both the suits.
5.6 Issues framed at Ex. 52 are as under:
(1) Does the plaintiff prove that the plaintiff was and is the owner and in possession of the suit land? (2) Does the plaintiff prove that the defendants have in collusion with each other executed a forged, illegal and fraudulent deed of Power of Attorney and sale deed and whether the same was consideration?
(3) Do the defendants prove that the suit is defective, barred by limitation and jurisdiction?
Further, whether the same is barred under sections 91, 92, 114 and 115 of the Indian Evidence Act and Sections 31, 34 and 41 of the Specific Relief Act and also defective on ground of non-joinder of Page 11 of 99 HC-NIC Page 11 of 99 Created On Tue Sep 19 00:19:59 IST 2017 C/FA/2254/2015 CAV JUDGMENT parties.
(4) Do the defendants prove that the defendant no. 1 had executed a Power of Attorney coupled with interest and that the defendant no. 1 had paid consideration for such execution.
(5) Do the defendants prove that the Power of Attorney executed in faovur of defendant no. 1was true and legal. Consequential, thereto whether the sale deed in favour of the defendants no. 2 and 3 were legal and therefore the transfer and ownership of the suit land was also valid.
(6) Is the plaintiff entitled to the relief sought for in the plaint?
(7) What order and decree?
The issues are answered accordingly:
(1) Yes
(2) Yes
(3) No
(4) No
(5) No
(6) Yes
(7) As per final order
5.7 The plaintiff no. 3 Natubhai produced his testimony in form of an affidavit at Exh. 53. The plaintiff narrated the entire sequence of events as made out in the plaint. Shortly put, he stated that Ratilal arranged for a meeting on 12.01.2010 at Hotel Classic, S.G. Highway, Ahmedabad where he met Pushpendrasinh for the first time. It is at such Page 12 of 99 HC-NIC Page 12 of 99 Created On Tue Sep 19 00:19:59 IST 2017 C/FA/2254/2015 CAV JUDGMENT meeting that a preliminary discussion was held. A second meeting followed a week thereafter which was at the Gandhinagar Circuit House where Ratilal was not present. Digvijaysinh who introduced himself as Shaktisinh Gohil's cousin remained present and negotiations were held to sell the land at a price of Rs.20,851/- per sq. meter. A third meeting was held on 21.01.2010. No consideration was exchanged or a final decision was taken at that meeting. Defendant no. 2, Sumanbhai was nowhere in the picture or was present. On 23.01.2010, a final meeting was held at 10.00 pm at Gandhinagar residence of Ghanshyambhai Shambhubhai. Apart from Pushpendrasinh, Dipak Shah, Rajni and Jigar were present at such meeting. The plaintiff denied that even on that day Sumanbhai was present at the meeting or any consideration for sale of land was passed on to him or possession was handed over to defendant no. 2 Sumanbhai. Though the plaintiffs admitted that there was no question of getting a title clearance certificate as the land was free from encumbrances, it was admitted in the cross examination that it is the responsibility of the purchaser to obtain a title clearance for which an authority has to be given. On 23.01.2010, the document on which the plaintiffs had signed was an authority to obtain such title clearance signed in presence of Dipak Shah, advocate and Pushpendrasinh and signatures were also affixed in the Notary Register. The paper was green coloured which stated the purpose was to obtain title clearance. "Title Clearance Letter" was the heading made on the top of the letter. No other document was executed on that date. When no such title clearance notice came forth, Pushpendrasinh was contacted and all of them again met on the site of the suit land where in his Page 13 of 99 HC-NIC Page 13 of 99 Created On Tue Sep 19 00:19:59 IST 2017 C/FA/2254/2015 CAV JUDGMENT presence the document which they had executed on 23.01.2010 was shown and that was burnt by Pushpendrasinh. Even in the Notary Register, the entry where signatures were made was crossed to depict cancellation. No power of attorney was given to the defendant no. 1 and even the subsequent sale to the defendant no. 3 Velji Mistry was illegal. Velji Mistry had opened a Bank Account with deposit of Rs.1000/- two days before such sale deed was executed. It was stated by the plaintiff in his cross examination that Velji Mistry, defendant no. 3 was never present in the meetings when negotiations for the sale were made.
5.8 The expert who gave his opinion in his FSL report at Exh. 115, Shri Vasava Pratapsinh was examined at Exh. 112. The notable points as discussed by the learned judge in his judgement are that he explained the contents of the FSL Report at Exh. 115 regarding the Notary Register which showed overwriting of '2' over '3' in the date " 23" to "22". According to him, the date 23.01.2010 was changed to 22.01.2010. There were signs of erasure marks. The FSL report was self explanatory and found that there was a change of date from 23.01.2010 to 22.01.2010.
5.9 The defendant no. 1 Pushpendrasinh who has deposed on an affidavit is produced at Exh. 134. He asserts that a valid Power of Attorney has been executed. The entire consideration for the sale of land was paid by defendant no. 2 Sumanbhai. His interest was only limited to earning brokerage. He admitted that he hasn't received any brokerage till date and no discussion on the rate of brokerage has been so held. He has no knowledge of the area of the suit Page 14 of 99 HC-NIC Page 14 of 99 Created On Tue Sep 19 00:19:59 IST 2017 C/FA/2254/2015 CAV JUDGMENT land. He hasn't maintained accounts of the brokerage earned in 2009. Entire consideration was paid on the same day. It was his case that the plaintiffs desired to enter into and execute a Power of Attorney so as to avoid the ladies' visit to the Sub-Registrar's office for execution of a sale deed. He also deposed that after some deliberations it was decided that consideration of Rs.21 lakhs would be paid for Amrutbhai's land and Rs.12 lakhs for Natubhai's land. From their side(seller), it was their desire to accept the entire consideration in cash. Once the amount of consideration is paid, Power of Attorney will be executed. The attorney holder can later at convenience execute the sale deed on their behalf. Finally it was after some deliberations decided to pay Rs. 4 lakhs by way of a cheque. The meeting was held outside Gandhinagar Court in the afternoon of 22.01.2010. The document of Power of Attorney was taken to the table of Govindbhai Patel. Only Natubhai and Amrutbhai the respective land owners signed on the document. No witnesses signed. The document was not stamped. It was decided to execute the remaining part of the document in the evening at the residence at Gandhinagar. Only Amrutbhai and Natubhai signed at Govindbhai's table. No one ever signed as witnesses. One advocate named Dipaben Parmar who is his lawyer in a loot case that he is facing, signed in the identification as an Advocate. The rest of the formalities were done at the residence when the document was stamped. He didn't recollect the name of the person who promised to pay the consideration at home. Sumanbhai handed over the entire consideration as agreed and the executors told him that henceforth land's possession and ownership was of the defendant no. 2.
Page 15 of 99HC-NIC Page 15 of 99 Created On Tue Sep 19 00:19:59 IST 2017 C/FA/2254/2015 CAV JUDGMENT 5.10 In his cross examination he admitted that the signatures and stamping did not happen in his presence. A suggestion was put which was denied that what was burnt on the day was a copy of the original document. The original was then used to create a Power of Attorney. He denied a suggestion that cheque for an amount of Rs.4 lakhs was thereafter deposited on 20.02.2010 in the account of Rameshbhai.
5.11 The affidavit eliciting the examination-in-chief of Sumanbhai - the defendant no. 2 is produced at Exh. 144. He admits that he has no source of income. Sumanbhai admits that he was employed and at the time of such employment he was drawing a salary of Rs.4500/-. It has been five years since he left the job. He admitted that he has a family and for maintaining and sustaining the family he has no source of income. The suit land was bought with no an intention of resale. He had no knowledge of the prevailing market price. He denies knowing the consideration for which the two lands were to be purchased. He admitted that he went to Rajkot on 23.03.2010. They went to Rajkot and returned within 15 to 20 minutes. At that point, Veljibhai had kept the sale deed ready. Veljibhai had given him a cheque. The sale deed mentioned the date 23.02.2010 as also the date of the cheque. Subsequently, he stated that the statement in the sale deed was incorrect. He admitted that he was staying at Naroda and not at Shahpur when the sale deed was executed. He denied knowing the area of land and the prevailing market rate. He denied knowing the rate at which Pushpendrasinh was to be paid his commission. He admitted that he did not inquire about the prevailing prices of the lands, when the Page 16 of 99 HC-NIC Page 16 of 99 Created On Tue Sep 19 00:19:59 IST 2017 C/FA/2254/2015 CAV JUDGMENT transaction in question was entered into. Veljibhai had come to Koba Circle and paid him Rs. 5 lakhs in cash. The amount was not deposited in a bank. The sale consideration decided was Rs. 15 lakhs for Survey No. 546 and Rs. 31 lakhs for Survey No. 505/559. He admitted that he has an account in ICICI Bank. In the period from 01.01.2009 to 31.12.2010, the deposit in the account did not exceed Rs.1000/- . He pleaded ignorance on the date of the meetings. He also pleaded ignorance of the fact of the date and place and time of signatures on the Power Of Attorney. He admitted that till such meeting in court, no consideration was paid. At Govindbhai Notary's table only Natubhai and Amrutbhai had signed. No other person had signed. When they met at Sector 3 at Gandhinagar all papers were ready. He was not present when the notary signed and stamped the document. He admitted that on 22.01.2010, he gave a cheque and that the date on the cheque was 18.02.2010. He denied a suggestion that on one day Rs.4,00,000/- was deposited in his account. On 20.03.2010, his account had no balance. He did not recollect for which land the cheque was handed over. He admitted that he left for Rajkot at around 11.00 - 11.30 and Veljibhai did not come till such time that the sale deed was registered. Gautambhai and Rakeshbhai were witnesses to the sale deed. He did not know their full names and addresses. He denied a suggestion that Dharmendrabhai was produced as Dipak Shah. When further cross examined, he admitted and produced Bank Statement for the period from 01.04.2010 to 31.10.2012 where there was zero balance.
5.12 A Handwriting Expert, Meghna Shah was examined on affidavit at Exh. 160 on behalf of the defendant no. 2. The Page 17 of 99 HC-NIC Page 17 of 99 Created On Tue Sep 19 00:19:59 IST 2017 C/FA/2254/2015 CAV JUDGMENT defence produced her opinion to support that the document i.e. the Power of Attorney was a valid document. She, in her cross examination admitted that no inquiry was made to suggest that the pages were changed before its execution. She also admitted that the page size was not measured.
5.13 After the evidence of the plaintiff and defendants no. 1 and 2 was led, despite sufficient opportunities, the defendant no.3 did not lead any evidence. The stage of evidence was thereafter closed.
5.14 At Exh. 248, the defendant no. 2 produced a declaration dated 18.06.2014. By this declaration, the defendant no. 2 admitted that he was made to enter into a sale transaction on the basis of a forged and a fraudulent Power of Attorney. That he had never met the sellers or paid any consideration. He also did not know the subsequent purchaser Velji Mistry. Under the guise of obtaining a Title Clearance Deed, they were made to sign in the Notary Register. Subsequently, colour photocopy of the document was made and what was burnt in presence of the owners was a colour photocopy. He admitted that the Power of Attorney was a forged document.
6. Based on these sets of evidences and on the arguments advanced by the learned Advocates for the parties, the learned trial Judge allowed the suit. The reasonings advanced by the learned trial judge in coming to such a conclusion in a nutshell are as under:
6.1 The Learned Trial Judge observed that the basis of the entire controversy at hand was the Power Of Page 18 of 99 HC-NIC Page 18 of 99 Created On Tue Sep 19 00:19:59 IST 2017 C/FA/2254/2015 CAV JUDGMENT Attorney. On the basis of the evidence on record, if the Power Of Attorney is held to be a genuine document, then the plaintiff would be non-suited. In the event the Power Of Attorney is held to be a forged and a fraudulent document then the plaintiff would be entitled to have the suit decreed in his favour. Keeping this in mind, the Trial Court examined the evidence on record to reach at the findings and the conclusion that it did.
While doing so the Trial Court, observed that it was conscious of the fact that the Plaintiff had to prove his case on the basis of his strength and evidence and not on the weak links in the defendant's set of evidence.
6.2 On the issue of whether the Power Of Attorney Exh.58 was a forged and a fraudulent document the Trial Court observed that the original Power Of Attorney was not on record. The original Power Of Attorney and the Notary Register were in the custody of the Criminal Court in view of the parallel criminal proceedings so lodged. Therefore, the originals were called for by an order at Exh. 175 and accordingly certified copies of these documents, namely the Power Of Attorney and the Notary Register were produced and as and when the occasion so arose the originals were offered for perusal at the time of cross-examination of witnesses. Based on a copy of the Power Of Attorney, it was to be considered whether in fact such a Power Of Attorney which was executed was a forged document.
6.3 The Trial Court considered the testimony of plaintiff no.3 Natubhai at Exh.53. Reading of the entire Page 19 of 99 HC-NIC Page 19 of 99 Created On Tue Sep 19 00:19:59 IST 2017 C/FA/2254/2015 CAV JUDGMENT evidence, as so done by the Trial Court suggested that such a Power Of Attorney was never executed. In the pleadings and the evidence, according to the Trial Court the case of the Plaintiff was that in fact the intention was to give an authorisation for Title Clearance and signatures were appended to the document and in the Notary Register.
6.4 According to the Learned Trial Judge, in accordance with the provisions of Order VI Rule 4 of the Code of Civil Procedure, the pleadings did make out, by extensive averments, that the document was a creation of fraud. Thereafter, on the basis of the evidence the Trial Court observed that on seeing the Power Of Attorney at Exh.58, the same was dated 22/1/2010, notarised by Govindbhai Patel at entry No.181 on his Register. There was overwriting on the date where figure 22 was written and even as per the testimony of the Handwriting Expert, at Exh 112 together with the documents at Exhs. 113 to 118, in photocopies of the Register overwriting was evident. The Court then went ahead to consider whether such overwriting was done purposely.
6.5 On examination of the testimony of the Handwriting Expert and the records, the Trial Court has relied on his report at Exh.115 and found tampering in the Notary Register inasmuch as there has been erasure mark where there has been an overwriting over 23 to 22 in the date. On consideration of the evidence on record that the defendant nos. 1 and 2, had admitted in their Page 20 of 99 HC-NIC Page 20 of 99 Created On Tue Sep 19 00:19:59 IST 2017 C/FA/2254/2015 CAV JUDGMENT cross-examination that at the time when they had gone to Govindbhai's table, only Natubhai and Amrutbhai had signed, nobody had signed as witnesses,that the defendant no.3 had categorically admitted that he did not remember where and when had the plaintiff signed. The learned Trial Judge held that when the meeting with the Notary took place in the afternoon of 22nd only the Plaintiffs Amrutbhai and Natubhai had signed. No other plaintiff or witnesses had signed and accordingly that the Power Of Attorney was not signed in presence of all and the case of the Plaintiff that the Power Of Attorney was a forged one seemed probable. That it was forged and tampered with was primarily a finding based on the copies of the Power Of Attorney and the Notary Register's pages read with the opinion of the Handwriting Expert.
6.6 The Trial Court considered the facts in light of the provisions of Section 106 of the Evidence Act. Having proved through the evidence of the Handwriting Expert at Exh 112 that there was overwriting of dates, that the fact that Power Of Attorney was executed in a valid manner was within the special knowledge of the defendants, such burden had not been discharged by the defendants. The Trial Court also found that at the places where there was overwriting there were neither initials of the person who gave the Power of Attorney nor the Notary. Taking into consideration the totality of the evidence i.e. the admission of the defendants that the Power Of Attorney was firstly signed only by the Plaintiff, then later signed by others in the evening, the Page 21 of 99 HC-NIC Page 21 of 99 Created On Tue Sep 19 00:19:59 IST 2017 C/FA/2254/2015 CAV JUDGMENT same was stamped later, that the defendant no.2 was not present when the Power of Attorney so signed or stamped, there was no consideration having passed at the time of execution, the document of Power Of Attorney does not appear to be genuine.
6.7 Considering the question, whether consideration was paid or not, in view of a specific pleading and testimony of the plaintiff denying such payment, the trial court once again considered the version of the defendants no. 1 and 2. In this context, it was the case of the defendant no.1 that he had not paid any consideration to the plaintiff as his interest was limited only to the extent of his commission. That the entire consideration was paid on the same day. The consideration was entirely paid in cash except one cheque of Rs.4,00,000. The defendant no.2's version is that no amount was paid till the documents were signed; that he was not present when the signatures were appended and stamps were affixed; that he had given a cheque and cash when they met at Gandhinagar in the evening.
6.8 On appreciation of the testimony of defendant no.1 together with the recitations in the Power Of Attorney and the first Sale Deed, the trial court has found that admittedly the deed only mentions amount and cheque number without a date. Oral testimony of the defendant no.1 shows that the Power Of Attorney was executed on 22/1/2010 whereas the Cheque of Rs.4,00,000 is dated 18/2/2010 and therefore the day on which the Power Of Attorney was executed, full consideration had not Page 22 of 99 HC-NIC Page 22 of 99 Created On Tue Sep 19 00:19:59 IST 2017 C/FA/2254/2015 CAV JUDGMENT passed. This is, therefore, in contradiction of what is stated in the Power Of Attorney and the evidence on record. The Power Of Attorney had stated that the entire amount of consideration was paid and there was a contradiction evident on the question of consideration having passed on the date of the document.
6.9 The trial court based on the evidence of defendant no.1 and having reproduced the provisions of Section 8 of the Notary Act also found that from the evidence, as discussed in the preceding paras as there was no simultaneous execution by all parties, there was non- compliance of the provisions of Section 8 and the same was not a valid Power Of Attorney. Looking to the evidence on record, the Trial Court observed that evidence suggested that parties to the document did not sign simultaneously, the question of identification before a notary, was suspect. All these facts were within the special knowledge of the defendant no.1 which burden of proof was not discharged. No explanation for the cause of overwriting was shown and therefore the case of the Plaintiff that the Power Of Attorney was forged was a case which was probable.
6.10 On the question whether the consideration did pass to the seller, the Trial Court on evidence also found that the purchaser and the Power Of Attorney Holder did not have sufficient means and were financially not capable of paying such large sums of money. Based on the evidence of the defendant No.1 Pushpendra, it had come on record that he was not an income tax payer, that never Page 23 of 99 HC-NIC Page 23 of 99 Created On Tue Sep 19 00:19:59 IST 2017 C/FA/2254/2015 CAV JUDGMENT before did his Bank Account have a balance of Rs.4,00,000. Though asked to produce statement of accounts to show sufficiency of funds, the defendant no.2 has not produced evidence whereas on cross- examination the financial incapacity to pay such consideration on the behalf of the defendants has come on record, which is one more pointer to the fact that the entire transaction of the execution of the Power Of Attorney cannot be believed. It had come on record that the defendant no.1 had not received any commission and he was even unaware of such payment and he was ignorant of the value of stamp used in the document.
6.11 The learned Trial Judge apart from the aspect of absence of consideration has also relied on the deposition of the Hand Writing Expert at Exh. 112 to hold that the opinion of the Hand Writing Expert was believable as he was an independent witness and when the defendants were confronted to dislodge his evidence and prove that the overwriting was genuine, they have failed to do so.
6.12 Based on these evidences, the Trial Court held that the Power Of Attorney was not executed in the presence of all signatories and witnesses; that there was overwriting of dates, no explanation of the cheque date, from which account was it issued was not clear; that evidence suggested erasure in the Notary Register and therefore it is a case where the plaintiffs' case that what was intended to be executed was a Title Clearance authorisation and not a Power Of Attorney is a plausible Page 24 of 99 HC-NIC Page 24 of 99 Created On Tue Sep 19 00:19:59 IST 2017 C/FA/2254/2015 CAV JUDGMENT explanation and the case of the plaintiffs stands proved.
6.13 The Trial Court also noted that if the case of the plaintiffs as pleaded was that if the original documents were shown to them and then burnt, the question would arise then how did the signatures surface on the Power Of Attorney. Relying on the declaration of the Defendant No.2 Sumanbhai at Exh.248 whereby the Defendant No.2 came out in support of the Plaintiffs and delving into the contents of Exh. 248, the court supplemented its earlier reasonings with the support of the Exh. 248 - statement of the Defendant No.2. Having considered the provisions of Section 17 and Section 58 of the Evidence Act, the court held that the admission of the defendant was to be taken into consideration without any need for offering the defendant to cross examination and therefore considering the statement at Exh. 248 the case of the plaintiffs was proved. No application was made by the rest of the defendants to permit the defendant no.2's cross examination and therefore also there was no reason to disbelieve or discredit such a statement and such a statement was binding to the defendant no.1.
6.14 On the basis of the totality of the evidence considered by the Trial Court, the Trial Court found that the Power Of Attorney was not entered into with free consent but was taken under deceit and fraud and the entire transaction was therefore hit by the provisions of Section 10 of the Contract Act. The title to the lands have not passed on to the defendants and the possession is also with the plaintiffs and since the defendant no.1 Page 25 of 99 HC-NIC Page 25 of 99 Created On Tue Sep 19 00:19:59 IST 2017 C/FA/2254/2015 CAV JUDGMENT has no right, title or interest, consequential exercise of the execution of the sale deed in favour of the defendant no.3 is also bad as no title has passed on to the defendant no.3.
6.15 The other perception of the Trial Court was based on the cross-examination of the defendant no.2. According to the Trial Court the defendant no.2 had deposed to have bought land in an interior part of Gandhinagar where the price was Rs.40 lakhs per square meter. Taking that as a yardstick, the learned trial judge observed that if that was the purchase price of land in the interior parts at Gandhinagar, then it was highly improbable that the entire land could be purchased for a consideration of Rs.12 lakhs. This itself suggested deceit and fraud on the part of the defendants.
6.16 On record, according to the learned trial judge, there is no evidence adduced on behalf of the defendants no. 2 and 3 on the payment of consideration of Rs.15,00,000 by the defendant no.3 to the defendant no.2. Evidence has also come on record to show that the cheques paid for consideration by the defendant no.3 to defendant no.2 returned dishonoured for which the defendant no.2 did not take any legal steps. Further, no evidence has come on record from the bank statements of the defendant no.2 to show receipt of the amounts. The entire transaction therefore doesn't seem to be a probable one as opined by the learned trial judge.
6.17 The other factor to hold the execution of the Power Page 26 of 99 HC-NIC Page 26 of 99 Created On Tue Sep 19 00:19:59 IST 2017 C/FA/2254/2015 CAV JUDGMENT Of Attorney as fraudulent and bogus was that the defendant no.1 has shown his address in the document as Soja and the defendant No.2 has shown it as Shahpur. Defendant No.1 in his cross-examination has admitted that he is not staying at Soja for several years now but at Chandkheda. Even in the cross-examination of the defendant no.2, it has come on record that he is not staying at Shahpur.
6.18 The Trial Court negated the defendants' contention that no notice was given by the plaintiff to cancel the Power Of Attorney. Moreover, if the plaintiffs found the deposit of Rs.4,00,000 from the defendants unexplained, no steps were taken to return the same to the party. According to the learned trial judge, when the case of the plaintiffs was that the Power Of Attorney itself was bogus and for which even criminal proceedings were taken, it cannot be said that it was necessary to give a notice for cancellation. The document itself was based on deceit and fraud. The defendants had the onus to prove that the Power of Attorney was absolutely genuine and not fraudulent. Having failed to discharge the onus to prove so, it has to be held that the Power Of Attorney was nothing but a fraudulent document 6.19 The Trial Judge therefore held that even the sale of land in favour of defendant No.3 cannot be said to valid. The defendant cannot be said to be a purchaser for value without notice. The objection of the defendants that the suit was beyond time was also rejected. The date of the Power Of Attorney being 22/1/2010, the suit was filed on Page 27 of 99 HC-NIC Page 27 of 99 Created On Tue Sep 19 00:19:59 IST 2017 C/FA/2254/2015 CAV JUDGMENT 1/4/2010 and therefore within three years.
6.20 The defendants' contention that the Power Of Attorney in favour of the defendant no.1 was a Power Of Attorney coupled with interest was also negated in view of the Court's finding that the Power Of Attorney was a bogus and a fraudulent document. There was no evidence on record to suggest that consideration was paid. It was within the defendants' right to examine the notary or the witnesses who had identified the attestation of the Power Of Attorney. When such option was open for the defendants to substantiate their case that the Power Of Attorney is a valid document it was a case where the defendants had failed to bring forth the best evidence that they had in their favour and therefore adverse inference had to be drawn against them. Once the plaintiffs through the examination of the expert at Exh. 112 had shown the document as being invalid and not genuine the burden to rebutt this claim had shifted on the defendants which they had failed to prove through the best evidence available to them.
7. The Trial Court by the Judgement and Decree dated 24/09/2015 allowed the Suit. The Sale Deed executed by the defendant No.1 in favour of defendant No.2 and in turn the Sale Deed executed by the defendant No.2 in favour of the defendant No.3 were held to be bad, illegal, fraudulent and the Power Of Attorney executed by the plaintiffs in favour of the defendant No.1 to be bad and without authority of law and non-existent. The present First Appeals, therefore, are at the instance of the Original Defendant No.3 in this factual and Page 28 of 99 HC-NIC Page 28 of 99 Created On Tue Sep 19 00:19:59 IST 2017 C/FA/2254/2015 CAV JUDGMENT legal background.
8. Senior Counsel Shri Deven Parikh for Mr D.C. Shah, learned advocate has appeared for the appellants in both the Appeals. Senior Counsel Shri Saurabh Soparkar with Mr.Tattvam Patel, learned advocate has appeared for the original plaintiffs of Special Civil Suit No.89/2010 in First Appeal No.2254/2015 and Senior Counsel Mr. Rasesh Sanjanwala has appeared with Mr Tattvam Patel for the original plaintiffs of Special Civil Suit No.90/2010 in First Appeal No.2255/2015.
SUBMISSIONS OF LEARNED ADVOCATE FOR THE
APPELLANTS
9. Shri Deven Parikh, learned Senior Counsel appearing on behalf of the appellants in the appeals has made the following submissions.
(A) The Trial Court, in coming to the findings that it did, has extensively relied upon an Affidavit of the Defendant No.2 Sumanbhai Patel produced at Exh.248. By this Affidavit, the defendant no.2 had resiled from his earlier stand of supporting the case that the Power of Attorney was in fact executed. By the affidavit at Exh. 248, he put forward a case before the Court that in fact the Power Of Attorney was obtained by fraud. According to Shri Parikh, the Affidavit could not have been taken into consideration as there was no chance of cross examination available to the defendant no.3.
Page 29 of 99HC-NIC Page 29 of 99 Created On Tue Sep 19 00:19:59 IST 2017 C/FA/2254/2015 CAV JUDGMENT Evidence on the basis of an Affidavit Exh. 248 without the test of cross-examination was no evidence in the eye of law. The Affidavit was therefore in violation of the provisions of Order XIX Rules 1 and 3 of the Code Of Civil Procedure.
(B) The Affidavit Exh 248 does not instill confidence. The stand of the defendant no.2 in the affidavit shows the inconsistent stand that he takes. It has come on record that even the said Affidavit at Exh. 248 has subsequently been withdrawn. The question therefore posed to the Court by Shri Parikh is that can the evidence of a witness who shifts his stand not only once but thrice can be taken into account?
(C) Inviting our attention to the provisions of Section 85 of the Indian Evidence Act, 1872, it is contended that the Power Of Attorney is presumed to be valid. Evidence had come on record that the Power Of Attorney was executed before, and authenticated by a Notary and therefore the same was presumed to be valid.
(D) On reading the plaint as a whole and the contemporaneous evidence in light of the pleadings in the plaint, the plaintiffs had failed to show that there was a fraud and that the entire document, the Power Of Attorney was a fraudulent one. Burden of proof heavily lay on the plaintiffs in view of the provisions of Order VI Rule 4. The plaintiffs had Page 30 of 99 HC-NIC Page 30 of 99 Created On Tue Sep 19 00:19:59 IST 2017 C/FA/2254/2015 CAV JUDGMENT failed to discharge such burden. Pleadings were inconsistent. Mr. Parikh has taken us through the Paper Book and particularly Pages 166 and 171 of the Paper Book and the contents of the plaint to support his contention. Mr. Parikh pointed out that at one point in the plaint the plaintiffs plead that they had signed on a green paper where on top of the page it was written "Title Clearance". Photographs were not stuck on the document. Dipak Shah had collected the photographs and had written the names. Thereafter, as no notice appeared in the newspapers for clearance they got in touch and were informed that the Solicitor who was engaged needed a fresh set of documents. When the plaintiffs asked for returning the photographs and the earlier document the defendant no.1 had called them at the land at the Khoraj-Gandhinagar Highway. The plaintiffs were shown the original document and the same was then burnt in their presence.
In the subsequent part of the plaint, as the pleading goes, the Plaintiffs have pleaded that the document of Power Of Attorney produced is a concocted document. There are no photographs but an imprint of such photographs. There is an alteration in dates. The words "For Title Clearance" on the last page is erased, new pages are added in front and a concocted document is produced.
Page 31 of 99HC-NIC Page 31 of 99 Created On Tue Sep 19 00:19:59 IST 2017 C/FA/2254/2015 CAV JUDGMENT These pleadings, in Mr. Parikh's submissions are inconsistent with each other. On one hand, it is pleaded that the original is destroyed in their presence, when they asked for its return, whereas, in the next breath, they plead that a document, purported to be Power Of Attorney has been produced, which has no photographs and the same is created. Inconsistent it is to, on the one hand plead that the original document was destroyed and also say that there exists a signed document which is forged.
(E) The basic story of concoction of the document is unbelievable. The plaintiffs do not dispute their photographs nor their signatures on the document. Once they do not dispute their signatures on the document, it is not open for them to contend that the document itself was never executed. If at one stage they say that the document was torn then how do they subsequently justify that it exists and is fraudulent.
(F) Our attention was invited to the cross examination of the plaintiff No.3 Natubhai. In his cross examination, he stated that the 4th Meeting was held in Sector No.3 at Gandhinagar. At such meeting his elder brother Rameshbhai, Joitiben, nephew Ghanshyambhai, neighbour Dashrathbhai Shambhubhai, Amrutbhai Shambhubhai, Arvindbhai Shambhubhai, Amthiben, Ambaben, Krishnaben were present. None of these persons Page 32 of 99 HC-NIC Page 32 of 99 Created On Tue Sep 19 00:19:59 IST 2017 C/FA/2254/2015 CAV JUDGMENT were called and examined as witnesses. Notary and the Broker Ratilal also were not examined as witnesses to substantiate their case of the fraud.
(G) Shri Parikh also submitted that the learned trial judge committed a serious error inasmuch as nowhere in the body of the judgement did he discuss the fact of payment of Rs.1,00,101 paid at the meeting at Gandhinagar. He further submitted that in land dealings payments of consideration by cash is well recognised and therefore the learned Judge should have believed the stand of the defendants that the consideration for the lands passed to the plaintiffs in cash. Once that was held to be an established practice, certainly the Power Of Attorney cannot to be held to be bad, as so held, on one of the grounds of absence of consideration.
(H) In support of his submissions Mr Parikh relied on several judgements.
(i) Inviting our attention to paragraph 14 of the judgement in the case of Bareilly Electricity Supply Co.Ltd vs The Workmen (AIR 1972 SC
330) Shri Parikh, in context of the affidavit Exh 248 and provisions of Order XIX Rule 1 and 3 contended that the affidavit could not have been relied upon without the author being put through the test of cross examination.
Page 33 of 99HC-NIC Page 33 of 99 Created On Tue Sep 19 00:19:59 IST 2017 C/FA/2254/2015 CAV JUDGMENT Shri Parikh also relied on the judgement in the case of Quamarul Islam vs S.V.Kanta (AIR 1994 SC 1733-Para 34) in support of his submission that the Learned Trial Judge could not have placed reliance on the Affidavit of the Defendant No.3 Sumanbhai at Exh.248.
Shri Parikh relied on the decision in the case of Sudha Devi vs M.P. Narayanan (AIR 1988 SC 1381-Para 4) to contend that affidavits are not evidence as defined under Section 3 of the Evidence Act and therefore could not have been relied upon.
Shri Parikh also relied on a decision in the case of Gajjan Singh vs. Ram Lok (AIR 1978 Punjab and Haryana 307). Relying on paragraph 6 of the judgement, Shri Parikh contended that Exh. 248 affidavit of Sumanbhai did not constitute evidence. Such affidavit itself was not evidence and therefore no support could have been drawn from such an affidavit.
In support of this, Shri Parikh also relied upon a decision in the case of Ram Ekwal Thakur vs. State of Bihar (AIR 1994 Patna 107). Affidavit Ex. 248, according to Shri Parikh was in breach of the provisions of Order XIX Rule 1 of the Code of Civil Procedure. Case of Tilak Ram Sons vs. State of Punjab (AIR 1973 Punjab and Haryana
359) was also relied upon for the same purpose.
Page 34 of 99HC-NIC Page 34 of 99 Created On Tue Sep 19 00:19:59 IST 2017 C/FA/2254/2015 CAV JUDGMENT
(ii) In context of Order VI Rule 4 of the Code of Civil Procedure Shri Parikh relied on the following case laws.:
Bijendra Nath Srivastava vs Mayank Srivastava (1994) 6 SCC 117. According to Shri Parikh, pleadings must be made to substantially prove fraud. Necessary facts must be stated to show that a fraud has been committed. In absence of such pleadings it cannot be said that conditions of Order VI Rule 4 have been satisfied and therefore it cannot be said that the plaintiffs have made out a case in the facts of the present case.
Shri Parikh relied on the judgement in the case of Shanti Budhiya Vesta Patel vs Nirmala Jayprakash Tiwari ((2010) 5 SCC 104 (Head Note B)) to contend that the burden to prove that fraud was committed lies on the party alleging the same. Allegations must be set out in full particulars and in absence thereof the case must fail. This was in context of the submission that the plaintiff has not sufficiently pleaded fraud nor has it discharged its burden to prove such a case.
The decision in the case of Kamla Rani and Others vs. M/s. Texmaco Ltd. (AIR 2007 Delhi
147) was relied upon in support of his contention relating to Section 85 of the Evidence Act. Once Page 35 of 99 HC-NIC Page 35 of 99 Created On Tue Sep 19 00:19:59 IST 2017 C/FA/2254/2015 CAV JUDGMENT the document was shown to be authenticated the same would be presumed to be executed and in order.
10. Mr B.J. Trivedi, learned advocate has appeared for the defendant No.2. He stated that he supported the stand of the defendant no.3, the present appellant. He extensively read out the Affidavit filed in the appeal to explain the circumstances under which the Affidavit Exh.248 was made. He stated that such an Affidavit was made under coercion and under the promise given to go soft on the Criminal case filed by the plaintiff.
SUBMISSIONS OF LEARNED ADVOCATE FOR THE ORIGINAL PLAINTIFF OF SPECIAL CIVIL SUIT NO. 89/2010 (FIRST APPEAL 2254/2015)
11. Shri S.N.Soparkar, Senior Advocate has appeared for Shri Tattvam Patel, learned advocate for the original plaintiffs and made the following submissions:
(A) The original document, namely the Power Of Attorney, before the Trial Court had been called for from the Criminal Court. Shri Soparkar demonstrated from such document before the Court that apparent it was on seeing the document that the document was doubtful.
The size of the paper was geometrically asymmetrical, it was certainly not a document of a legal size, on green paper which are normally recognised for execution of documents. The pages were not legal size, were Page 36 of 99 HC-NIC Page 36 of 99 Created On Tue Sep 19 00:19:59 IST 2017 C/FA/2254/2015 CAV JUDGMENT apparently cut from four corners, was certainly therefore not what the plaintiffs had signed. The portion where on top, as the plaintiffs' case was that the document was for "Title Clearance" was cut so as to pass off as a document as one to hold out as a Power Of Attorney. Taking us through the contents, Shri Soparkar drew our attention to the fact that the document was not signed by the plaintiffs on every page. No signature of the executor of the document appeared on each page which normally should have.
(B) Shri Soparkar then invited our attention to a part of the examination in chief of the plaintiff No.3. It is the specific case in the plaint supported by the testimony of the plaintiff that the plaintiffs had signed in the Notary Register when the defendant no.1 had specifically written in the Register " For Title Clearance". That even on the top of the green paper the clear writing was "For Title Clearance". According to Shri Soparkar, therefore, a specific case was made out that the plaintiffs were made to sign on a legal size green paper which carried 'For Title Clearance" at the top. Evident it was on taking a look at the original Power Of Attorney, that the papers were legal size, appeared to be papers cut from top and bottom, as specifically so pleaded and testified by the plaintiff in his examination in chief.
(C) That each material statement made in the document was wrong. The addresses of the Power of Attorney, defendant No.1 and that of Sumanbhai - defendant No.2 were found to be wrong. The addresses Page 37 of 99 HC-NIC Page 37 of 99 Created On Tue Sep 19 00:19:59 IST 2017 C/FA/2254/2015 CAV JUDGMENT given in the document were in fact wrong which also lent credence to the case of the Plaintiffs. Mr. Soparkar has taken us to page 66 of the Paper Book which contains the Power of Attorney. The address of the defendant no.1 is shown to be Soja. Similarly, at page 67 of the Paper Book in the Power Of Attorney, the address of the defendant no.2, the first purchaser, Sumanbhai Kantibhai Patel is shown to be at Shahpur. In context of the false address of the defendant no.1, Shri Soparkar has taken us through a part of the cross examination of the defendant no.1. In his cross examination, the defendant no.1 admits that he has not registered any vehicle at the RTO. That he possesses a driving license where the address shown is of Chandkheda. Even in the Ration Card the address shown is that of Chandkheda. He admits that whenever an occasion arises to give his address, he has given the address of Chandkheda. To a specific suggestion made in the cross examination that the address was given with a view to create a forged document, though he denied such a suggestion, he admitted that he was not in a position to support by evidence that the correct address was Soja.
As in the case of defendant no.1, attention was also drawn to the cross-examination of the defendant no.2. Sumanbhai Patel, defendant no.2 in his cross examination had stated that he was known by three names - Suman Kantibhai Patel, Sunil Kantibhai Patel and Batla Sheth. To a suggestion that he had purchased some land in Shahpur this witness said that he did not remember that he had purchased some land before this Page 38 of 99 HC-NIC Page 38 of 99 Created On Tue Sep 19 00:19:59 IST 2017 C/FA/2254/2015 CAV JUDGMENT transaction at Shahpur. He admitted that in the deeds of the present transactions he had given his Shahpur address. He admitted that he had left Shahpur. That he did not remember the name of the village he went to after having left Shahpur. He admitted that he does not stay in Shahpur after his second marriage. He admitted that he stays behind Galaxy Cinema at Naroda. He also admitted that he did not own a house in Shahpur.
All these facts, according to Shri Soparkar clearly reveal that the document Power Of Attorney is a fraudulent one where even the defendants have shown their addresses which are wrong.
(D) Shri Soparkar further contends that on reading the Power Of Attorney, it becomes apparent that it is a bogus document. Even before an actual sale takes place, at the stage of execution of a deed of Power Of Attorney to sell a piece of land, a vendor is already identified and such a vendor is given possession. Such recitations in a Power Of Attorney present unusual facts. If at the stage of execution of a Power Of Attorney itself, a vendor was identified and possession was handed over, was it not, the question goes, plausible and possible to enter and execute a Sale Deed rather than a Power Of Attorney. If the case of defendant no.1 was that in order to see that the seller's family would not have to come on multiple occasions, a Power Of Attorney would save such a situation, then should it not have been a natural act of executing a Sale Deed, once the vendor was identified and possession handed over at the stage of execution of Page 39 of 99 HC-NIC Page 39 of 99 Created On Tue Sep 19 00:19:59 IST 2017 C/FA/2254/2015 CAV JUDGMENT the Power Of Attorney? Recitations in the Power Of Attorney state that the Power Of Attorney holder has sold the lands to Sumanbhai Patel, the defendant no.1 and possession also is handed over. This, according to Shri Soparkar needs to be appreciated in light of the facts that after the Power Of Attorney was executed on 22/1/2010, first Sale Deed was executed in favour of defendant No.1 on 22/2/2010 and the second one by the defendant no.2 in favour of defendant no.3 in quick succession on 23/3/2010. All these circumstances point to the fact that apparently the Power Of Attorney was a fraud.
(E) Relying on the Panchnama drawn during the proceedings it is submitted that the possession of the suit lands is still with the plaintiffs. The Sale Deeds show consideration of Rs.12,00,000 and Rs.21,00,000 on the dates of execution. If that is to be believed then obviously such a statement is wrong. Once even for the present it is proved that the possession is with the plaintiffs, the Sale Deeds are nothing but a fraud. There is no question of consideration having been received by the Plaintiffs.
(F) According to Mr Soparkar, various fact statements through the oral evidence of the two witnesses, namely defendant No.1 and defendant no.2 regarding the manner in which consideration is said to have been paid would go to show that in fact no consideration has been paid at the time when the Power Of Attorney was executed. If the Power Of Attorney, as it reveals is a Page 40 of 99 HC-NIC Page 40 of 99 Created On Tue Sep 19 00:19:59 IST 2017 C/FA/2254/2015 CAV JUDGMENT virtual sale, then in absence of consideration having been actually paid, though professed to have been, would go to show that the entire gamut of the transactions is an eye wash. The submission is made in context of the following evidence:
> In his cross examination defendant no.1 says that the sale consideration has been paid by the defendant no.2.
> A statement is made that the plaintiffs on the date of execution of the Power of Attorney had said that on the execution of the Power Of Attorney, the land's possession and title would vest in favour of the defendants. This being a virtual sale there has to be evidence of the entire consideration having been paid as it is so put up by the defendants. The defendant no.1 states that the entire consideration for the sale of land was Rs.12,00,000. Rs.8,00,000 was paid in cash. Remaining amount of Rs.4,00,000 was by way of a cheque in the name of Rameshbhai Patel. From the cross examination of the defendant no.2, it is evident that he admits that on 22/1/2010 his bank account did have a balance of Rs.4,00,000 or more. He feigned ignorance of knowing whether on the date of the Power Of Attorney, the Bank had a balance of Rs 4,00,000. From the suggestions made, it was apparent that there was no fund in the bank account of the defendant no.2 on 9/2/2010.
Though he deposed to produce the Bank Statements, he did not do so. He denied the Page 41 of 99 HC-NIC Page 41 of 99 Created On Tue Sep 19 00:19:59 IST 2017 C/FA/2254/2015 CAV JUDGMENT suggestion that on a single day i.e. on 22/2/2010 a cash deposit of Rs.4,10,000 was made in the Bank Account of the Defendant No.2. It was a further suggestion made that the defendant had no proof to show the source of funds to the extent of consideration of the amounts for the land in question. Though he deposed to produce the proof of the source of payments of the funds used for payment of cash consideration, he failed to do so. Even on the question of the payment of the cheque of Rs.4,00,000 in the cross examination, it was suggested to the defendant that the cheque was dated 18/2/2010. That the cheque dated 18/2/2010 was deposited in his account by Rajni Parmar. To a question whether he had cared to find out that the cheque had returned into his account he said that he would produce necessary proof of bank statements to clarify the fact which he did not do. He denied a suggestion that the Bank Pay-In Slip for depositing the amount was filled by Rajnibhai. From the Bank statements at Exh 152, the entry shows deposit of Rs.4,10,000 in cash in the defendant no 2's account on 22/2/2010 and cheque made out in favour of one of the plaintiffs, Rameshbhai on the same day.
Admittedly therefore the statements made that on the date of execution of the Power of Attorney, entire consideration had passed onto the seller is wrong.
From all these factors not only have the defendants Page 42 of 99 HC-NIC Page 42 of 99 Created On Tue Sep 19 00:19:59 IST 2017 C/FA/2254/2015 CAV JUDGMENT failed to prove their case that the consideration passed on to the plaintiffs on the date of the Power Of Attorney but their evidence suggests to the contrary. Power Of Attorney recites payment of full consideration. Sale Deed does mention a part payment of consideration by cheque but does not mention the date of the cheque. Cross examination of the defendants together with their bank statements indicate that preceding the date of deposit they had cash deposits/withdrawals below a thousand rupees. Never in their bank accounts they had large cash balance. The defendants were having no source of income. The cheque of Rs.4,00,000 was dated 22/2/2010. Cash of the same amount was deposited in the defendant no.2's account on the same day. No explanation has come on record to show the source. All these lead to the conclusion that no consideration was paid, the defendants had no means to pay such huge amounts of cash. No statements or details, though promised to produce were produced, questioning the whole transaction therefore.
(G) The Power Of Attorney holder was even otherwise not known to the plaintiffs. It is not even his case that the authorization was given to him as a result of he being a family member or an acquaintance. According to Shri Soparkar, on reading the defendant no 1's cross examination, it is evident that prior to 12/1/2010 he did not know the plaintiffs. In such a situation, particularly when it is pleaded in the plaint that there was no connection and a Patel without any family connection would not authorise anybody except from his community, Page 43 of 99 HC-NIC Page 43 of 99 Created On Tue Sep 19 00:19:59 IST 2017 C/FA/2254/2015 CAV JUDGMENT the same appears to be valid explanation.
(H) The execution of the Power Of Attorney is itself doubtful. It has come on record through the evidence of the defendants that all the parties to this document have not signed the document together. The witnesses were also not present when the Power Of Attorney was executed. From the deposition of defendant no.1, it emerges that the plaintiffs Natubhai and Amrutbhai went to the Gandhinagar Court. They met the defendant no.1. They went to the table of Notary Govindbhai. The Power Of Attorney was read by the defendant no.1. Natubhai and Amrutbhai plaintiffs of the respective suits and the defendant no.1 only signed. It was decided that the sisters/ladies would sign at the residence in Gandhinagar in the evening. It was in the evening that the remaining parties signed. The document was notarised and ready. It was then in the evening that the defendants were handed over the document on payment of consideration. No mention is made as to when and how did the witnesses sign and who identified the signatories. The defendant no.1 clearly admits in his cross examination that only Amrutbhai and Natubhai signed at Govindbhai's table.
No stamps were affixed in the Register or on the document. He further admits that except the signatures of Natubhai and Amrutbhai the signatures of the rest, stamping, signature of the witnesses and the notarisation was not done in his presence.
Even in the cross examination of the defendant no.2 it Page 44 of 99 HC-NIC Page 44 of 99 Created On Tue Sep 19 00:19:59 IST 2017 C/FA/2254/2015 CAV JUDGMENT has come out that to a question on the execution of the document at the table of Govindbhai, the defendant no.2 has admitted that he did not know as to how many signatures were made by Natubhai or Amrutbhai. He further did not recollect what was the document signed. He also admits that he was not present when the other members signed and the document was notarised. He further admitted that he was not present when the Notary stamped the document.
(I) From the defendant Pushpendrasinh's testimony, it is evident that the Advocate Dipaben Parmar who identified and endorsed the Power Of Attorney was an advocate known to the defendant no.1 as she was defending him in a police case.
(J) Shri Soparkar further submitted that it is explicit from the testimonies of the defendants that the witnesses who signed the Power of Attorney and the Sale Deeds are non existent. Attention is drawn to the cross examination of the defendant no.1 in this context. A specific question was put to the defendant whether the witnesses who signed the Power of Attorney were non- existent. To such a question, the defendant admitted that he did not know them. He admitted that he did not make inquiries whether the persons who signed as witnesses were at all there. This was in response to a suggestion by the plaintiffs that the photographs of the persons and the actual witnesses were different.
(K) Shri Soparkar submitted that on reading the Page 45 of 99 HC-NIC Page 45 of 99 Created On Tue Sep 19 00:19:59 IST 2017 C/FA/2254/2015 CAV JUDGMENT opinion of the FSL Officer in the report it was clear that there was overwriting in the dates. The change was made from 23 to 22. Erasure marks were found on the Notary Register. By an application made and an order passed thereunder at Exh 175, the Original Power Of Attorney and the Notary Register were called for and parties were offered to see the same and cross examine. Absence of the original documents in no manner would hamper the Court to come to a conclusion that the Document which was executed was forged. Heavy reliance was placed on the testimony of Pratapsinh Vasoya, the FSL Officer at Exh 112 to support the case that there was tampering with the Notary Register and that the Power Of Attorney was a forged document. It has also come on record that the date was changed from 23/1/2010 to 22/1/2010. This fact is in the cross examination of the defendant no.2 who has stated that the date had to be changed from 23/1/2010 to 22/1/2010 as Govindbhai was going to Ambaji.
From the testimony of the Power Of Attorney holder Pushpendra, defendant no.1 it is made out that he was unaware of the survey number and the area of the land of which he was a Power Attorney holder. He denied knowledge of the topographical situation of the land. It further emerges from Pushpendra's testimony that he did not know whether for the amounts paid Sumanbhai the defendant no.2 had asked for receipt.
(M) In the context of the subsequent sale in favour of the defendant no.3 Veljibhai, Shri Soparkar has drawn Page 46 of 99 HC-NIC Page 46 of 99 Created On Tue Sep 19 00:19:59 IST 2017 C/FA/2254/2015 CAV JUDGMENT the attention of the Court to the testimony of defendant no.2. It is extremely doubtful to see how the defendant no.2 had entered into land transactions by paying cash and then cheques. That the defendant did not come to Ahmedabad but the defendant No.2 went to Rajkot to show the sale deed and the defendant no.3 told him that the registration of the Sale Deed may be done at Ahmedabad in his absence. The casual manner in which the entire transaction of large pieces of valuable land for a substantial consideration so done by the defendant no.3 appears to be doubtful. The defendant no.3 was a resident of Rajkot. He did not come to see the lands at Ahmedabad. Admittedly, as is evident from the testimony of the defendant no.2, it is he who went to Rajkot to show the Sale Deed and the same was signed by him. Defendant No.2, according to his testimony, did not stay back in Rajkot for more than 15 to 20 minutes and that he then conveyed that in his absence the Sale Deed's registration formalities be done by the defendant No.2. All these are, in Mr Soparkar's submission, tell tale circumstances which show the hollowness of the claim and the genuineness of such transactions and therefore the entire episode is marred by fraud and the defendant no.3 is also an active participant in such a fraudulent transaction.
(N) Shri Soparkar, Senior Advocate in addition to the aforesaid submissions has relied on the following judgements to support his contentions:
Union Of India vs Moksha Builders and Page 47 of 99 HC-NIC Page 47 of 99 Created On Tue Sep 19 00:19:59 IST 2017 C/FA/2254/2015 CAV JUDGMENT Financiers Limited. AIR 1977 SC 409.
Relying on Para 16 of the judgement of the Supreme Court, Mr Soparkar contended that the burden of proof may shift during the course of evidence. In the facts on hand, once through the evidence adduced by the respective parties, it has been proved albeit, through the evidence of the defendants themselves that the Power Of Attorney was fraudulent in view of the circumstances such as absence of consideration, non existent witnesses etc, the plaintiffs cannot be non-
suited under the pretext of not having
discharged the onus. Rebutting the
submission of Shri Parikh for the Appellants therefore Shri Soparkar said that in the process of the course of evidence, the burden had shifted to the defendants to prove that the Power Of Attorney was genuine,which they had failed to discharge. Para 22 of the Judgement was relied upon in the context of the Affidavit of the Defendant at Exh.248 which had supplemented the case of the Plaintiffs and substantiated their assertion that the Power Of Attorney was a fraudulent document.
Nagindas Ramdas Versus Dalpatram
Ichharam AIR 1974 SC 471.
Relying on Para 26 of the Judgement in
context of Section 58 of the Evidence Act, Shri Page 48 of 99 HC-NIC Page 48 of 99 Created On Tue Sep 19 00:19:59 IST 2017 C/FA/2254/2015 CAV JUDGMENT Soparkar contended that the admission of the defendant no.2 in form of the Affidavit Exh.248 stands on a higher footing than the evidential admission. They constitute a waiver of proof. The learned Trial Judge, therefore, according to Shri Soparkar was not wrong in taking into consideration the Affidavit at Exh.248 as evidence.
Shri Soparkar in context of the role of the Notary has relied upon a decision in the case of H.P.Taneja and Others Vs Bipin Ganatra (2009) 2 Mh.L.J. 855, more particularly, paras 5 and 6 of the Judgement.
SUBMISSIONS OF THE ADVOCATE FOR THE
PLAINTIFFS IN SPECIAL CIVIL SUIT NO.90/2010
(FIRST APPEAL 2255/2015)
12. Senior Advocate Shri R.S. Sanjanwala has appeared in First Appeal No. 2255/2015. In addition to the submissions made by Shri Soparkar, which Shri Sanjanwala has adopted, he has made some further submissions too which are as under:
(A) According to Shri Sanjanwala presumption under Section 85 of the Indian Evidence Act cannot be raised. In order to raise such a presumption, the Power Of Attorney must be executed before the Notary and must be authenticated by the Notary.
Evidence has come on record that there was no Page 49 of 99 HC-NIC Page 49 of 99 Created On Tue Sep 19 00:19:59 IST 2017 C/FA/2254/2015 CAV JUDGMENT execution in the manner and the mode so prescribed and therefore there was no presumption as to the legality of such a document. Reliance has been placed on the decision of the Delhi High Court, in the case of M/S Electric Construction and Equipment Co.Ltd v.M/S Jagjit Electric Works,Sirsa (AIR 1984 DELHI 363) in this regard.
(B) Shri Sanjanwala relied on a decision of the Supreme Court in the case of John vs. Returning Officer reported in AIR 1977 SC 1724. Para 15 of the Judgment was read to support the reasonings of the Trial Court in context of Exh 248 Affidavit of the defendant No.2. According to Shri Sanjawala, once an admission of fraud was made on an affidavit by the Defendant No.2, it is the best evidence as so recognised under the Evidence Act.
(C) Reliance was also placed on the judgement of the Supreme Court in the case of Ishwarbhai C Patel versus Harihar Behera AIR 1999 SC 1341. It has come on record that the defendant no.3 had not entered the witness box. Once evidence had come on record and in the cross examination of the defendant no.2 it was substantiated that the entire transaction was fraudulent in the absence of the defendant no.3 not offering himself as a witness, no fault can be found at the hands of the Trial Judge to even hold against Page 50 of 99 HC-NIC Page 50 of 99 Created On Tue Sep 19 00:19:59 IST 2017 C/FA/2254/2015 CAV JUDGMENT the defendant no.3 as far as the second sale is concerned.
(D) Reliance was also placed on the Judgement of the Supreme Court in the case of Bhandari Construction Co. Versus Narayan Gopal Upadhye (2007) 3 SCC 163, para 15. This authority was cited in support of the submission that evidence has come on record that consideration has not passed to the seller of the lands in question. From the Power Of Attorney and the Sale Deeds it was the case of the defendants that cash amounts and cheque of Rs.4,00,000 as far as the first sale deed is concerned was paid. As far as the second sale in favour of the defendant no.3 is concerned, though pleading is that cash was paid as consideration, no evidence has come on record to show that for such transaction involving huge amounts, the purchasers had insisted for receipts for the payments made. Even otherwise from the statements of accounts and cheque of the 18/2/2010 apparently though the Power Of Attorney recital did say that consideration had been paid, in fact, evidence was to the contrary.
SUBMISSIONS IN REJOINDER OF LEARNED ADVOCATE FOR THE APPELLANTS
13. Shri Deven Parikh has in his rejoinder to the contentions of the advocates submitted as under:
Page 51 of 99HC-NIC Page 51 of 99 Created On Tue Sep 19 00:19:59 IST 2017 C/FA/2254/2015 CAV JUDGMENT (A) Relying on a decision of the Supreme Court in the case of Union Of India And Others Versus Vasavi Cooperative Housing Society Limited and Others (2014) 2 SCC 269, Shri Parikh reiterated that the burden of proof to establish the case is on the plaintiffs irrespective of whether the defendants prove their case or not. The plaintiffs cannot rely upon the weaknesses of the case of the defendants. Reliance was placed on Paras 16, 19, 20, 24 and 28 of the said Judgement.
(B) To the contention that there was no evidence on the aspect of passing of consideration, Shri Parikh submitted that the pleadings of the plaint show that the transaction of the lands were for and behalf of personalities highly placed. They were persons behind the scenes and therefore if the exchange of cash and payment of consideration has not come forth in evidence, it cannot be held against the defendants.
FINDINGS
14. The case of the plaintiffs in the plaint filed is that they did not execute a Power Of Attorney in favour of the defendant no.1. Their case is that they desired to sell their land. Defendant No.1 had met them with persons whom he presented as representative of Shaktisinh Gohil who was interested in purchase of these lands. The defendant no.1 introduced himself as a broker. Prompted to sell their land, the plaintiffs, at his instance, decided to obtain a Title Page 52 of 99 HC-NIC Page 52 of 99 Created On Tue Sep 19 00:19:59 IST 2017 C/FA/2254/2015 CAV JUDGMENT Clearance Certificate. For such purpose, at one of the meetings, which happened in presence of one Dipak Shah, a representative of a Solicitor Firm, Jani and Company, the plaintiffs were asked to give their photographs. They affixed their signatures on a green ledger paper and so also their thumb impressions. The document, at the top was given a heading "FOR TITLE CLEARANCE". Dipak Shah took their photographs. In the Notary Register which Dipak Shah had brought, the defendant no.1 and the plaintiffs signed against a remark,'FOR TITLE CLEARANCE". All this happened in a meeting on 23/1/2010 at Gandhinagar Residence of Amrutbhai.
14.1 As no notice appeared in the newspapers regarding the title clearance, the Plaintiffs got back to the defendant no.1 Pushpendra. The explanation that he offered was that a fresh document would need to be executed as instructed by the Solicitor. For such purpose, a meeting was again arranged, as the plaintiffs insisted for the return of the earlier document and their photographs. The defendant no.1 came over to their lands and the original document for the purposes of obtaining Title Clearance so executed by the plaintiffs together with the photographs was shown to them. The document was burnt in their presence.
14.2 After a few days when the defendant no.1 did not contact them they got suspicious and when on 20/2/2010, one of the plaintiffs found a deposit of Rs.4,00,000 in his account, inquiries were made at the Bank but nothing came forth as to the source of the money. Having got suspicious, they went to the Sub-Registrar's office where they found an entry showing Page 53 of 99 HC-NIC Page 53 of 99 Created On Tue Sep 19 00:19:59 IST 2017 C/FA/2254/2015 CAV JUDGMENT that on 22/2/2010, a Sale Deed was executed for sale of their lands. Such a Sale Deed was executed by the defendant No.1 in favour of one Sumanbhai - defendant no.2, on the basis of the Power Of Attorney given by the plaintiffs in favour of the defendant no.1. The Sale Deed showed that the sale of the land was for a consideration of Rs.12,00,000. It is then that they realised that they had been duped. A fraudulent and a forged Power Of Attorney was obtained by the defendant no.1. Based on such a bogus Power Of Attorney, he as a Power Of Attorney holder entered into a sale transaction. According to the plaintiffs, no such Power Of Attorney was ever executed in favour of the defendant no.1 Pushpendrasinh and therefore the entire transaction of sale based on the fraudulent Power Of Attorney was a sham. The entire case of the plaintiffs that no such Power Of Attorney was executed by the plaintiffs was based on several factors. Such factors have been reproduced in the earlier part of this judgement in paras 4.7 and 4.8 hereinabove and hence are not repeated.
14.3 The case of the plaintiffs, to substantiate their stand that the Power Of Attorney is a fraudulent document, is based on two seemingly alternative but linked contentions which are :
(A) That what was intended to be executed was a Title Clearance Deed. The defendant no.1, in a meeting on 23/1/2010 got them to sign on a green ledger paper, their photographs were collected. The paper had the words "FOR TITLE CLEARANCE" written. The Notary Register where the defendant no.1 and the plaintiffs signed had the words "TITLE CLEARANCE" inscribed.
The Notary Register did carry the same remarks. After Page 54 of 99 HC-NIC Page 54 of 99 Created On Tue Sep 19 00:19:59 IST 2017 C/FA/2254/2015 CAV JUDGMENT passing of a few days, realising that no notice had appeared in the newspapers,they inquired and asked for return of the photographs and the document. According to the plaintiffs, the original document which they executed as a TITLE CLEARANCE was burnt in their presence. If their stand that the Original Document was burnt is accepted, how did the present document in question subsist.
(B) The second ground pleaded,according to the Trial Court,a more plausible one is,that the document,namely the Power Of Attorney cannot be said to be valid. This is so because it was not executed in the manner and the mode as prescribed under Section 85 of the Evidence Act. According to the plaintiff the defendant's own oral evidence reveals this.
(C) The plaintiffs' further case is that the transaction of sale cannot be said to have been performed. The recitations in the document,Power Of Attorney and the Sale Deed,when seen in light of the oral evidence of the defendants themselves,would suggest that full consideration was not paid on the date of the execution of the Power Of Attorney. Such statement in the document was contrary to the oral evidence of the parties to the document. Evidence not only suggested that full consideration was not paid, it further indicated that the defendants had no means to pay such a large sum.
15. In the First Appeal, therefore, based on the assessment Page 55 of 99 HC-NIC Page 55 of 99 Created On Tue Sep 19 00:19:59 IST 2017 C/FA/2254/2015 CAV JUDGMENT of evidence, the findings of the trial court would need to be tested. What is evident from the pleadings of the respective parties and the evidence that they have led, the matters in issue are:
(a) The initial case of the plaintiffs is that, what they signed and delivered to the defendant no. 1 was an authorisation for Title Clearance. Their further case is that when they suspected something amiss they asked for return of the document. The defendant no. 1 showed the same original document and burnt it in their presence. The defendant no. 3, however, in his affidavit at Exh. 248 disputes the burning/destroying of the original. He puts up a case of the colour xerox being burnt and the original being utilized to make out a fake Power of Attorney.
(b) Based on the evidence on record, did the plaintiffs establish that the execution of the document was invalid.
Learned Advocate for the appellant has persuaded us to presume valid execution of the document whereas, the advocate for the respondents-original plaintiffs want us to hold that the execution of the Power Of Attorney was not in the manner and mode as prescribed under Section 85 of the Evidence Act.
(c ) Even otherwise, did the parties to the Power Of Attorney and the Sale Deed in fact act according to the recitations in the documents vis-a-vis payment and passing of consideration for the sale in question. Was the Trial Court right in assessment of evidence, both oral and documentary, to hold that no consideration actually passed on the date of the Power Page 56 of 99 HC-NIC Page 56 of 99 Created On Tue Sep 19 00:19:59 IST 2017 C/FA/2254/2015 CAV JUDGMENT Of Attorney as so deposed by the defendants and therefore no valid transaction of sale took place. Moreover, from the oral evidence of the defendants it was an admitted fact that they were in no financial means to pay such a large amount of consideration.
16. In light of these questions let us, therefore, now consider whether the plaintiffs have been able to make out a case on the questions raised or have they discharged their burden to prove fraud and therefore the onus shifted on to the defendants.
16.1 The first aspect that will therefore have to be considered is whether the document at Exh.58, the Power of Attorney was a forged or a tampered document. Or even if the document is not found to be tampered with was there evidence on record to suggest that it was validly executed and that no consideration passed to the Plaintiffs and therefore the sale was invalid.
16.1 Without repetition, as the case of the plaintiffs goes, what was agreed between the parties was to give a Title Clearance Authorisation. For such purpose on 23/1/2010, when a meeting was held at Gandhinagar, defendant no.1 made them sign on a green ledger sheet. The sheet carried a remark signifying that what was being executed was a Title Clearance Authorisation. One Dipak Shah from a Solicitor's firm was present with the Notary Register. Defendant No.1 signed in the Notary Register and so did the plaintiffs against the remark "TITLE CLEARANCE" .Primarily therefore the initial case of the Plaintiffs is that it was not their intention to Page 57 of 99 HC-NIC Page 57 of 99 Created On Tue Sep 19 00:19:59 IST 2017 C/FA/2254/2015 CAV JUDGMENT execute a Power Of Attorney. That the document that exists is a forged document. This is so because the document has overwriting in dates and erasure marks to suggest that it has been tampered with.
16.2 To support the case of tampering and forgery, in addition to the oral evidence, copies of the Power Of Attorney, Sale Deed and the Notary Register were produced. The originals were only briefly called for from the custody of the Criminal Court for the limited purpose during leading of oral evidence on this aspect. Oral evidence has come on record through the evidence of Natubhai and Pushpendra. Natubhai who is examined at Exh.53 stated that he had signed on a green ledger sheet which carried a remark "TITLE CLEARANCE".Notary register was signed by Defendant No.1 with the remark for TITLE CLEARANCE. Pushpendra who is examined at Exh.134, in his oral evidence states that the plaintiff had indicated that the title of the land was clear and therefore it was not necessary to obtain such a document. That the plaintiff wanted the entire consideration to be paid in cash. He denied a suggestion that the original title clearance documents were retained and what was burnt was a photocopy and the original was utilized for making Power of Attorney. Though the pleading in the plaint suggested that a Title Clearance authorisation was intended to be executed and therefore the document was tampered and changed into a Power Of Attorney,the defendant no.1 denied such a fact.He in his evidence suggested that the titles were clear and therefore no Title Clearance was needed.
16.3 The plaintiffs in order to attack the document's validity Page 58 of 99 HC-NIC Page 58 of 99 Created On Tue Sep 19 00:19:59 IST 2017 C/FA/2254/2015 CAV JUDGMENT and prove that it was a forged document also relied upon the FSL Opinion at Exh 115 together with the extract of the Notary Register and the FSL Officer Pratapsinh Vasava's testimony at Exh 112.
16.4 The photocopy of the Power Of Attorney is produced at Exh.58. Photocopies of the Sale Deeds, by the plaintiffs in favour of the defendant no.2 and then favour of the defendant no.3 are also on record at Exh.59 and Exh.61.The defendant's Handwriting Expert is examined at Exh.160. The defendant no.3 did not enter the witness box. The defendants no. 1 and 2 in their joint written statement raised preliminary objection that Ratilal - the broker, Dipakbhai Shah - the person who was from the Office of the Solicitor, Govindbhai Patel, the Notary were not joined as parties to the suit, though they were necessary and proper parties. The Power Of Attorney was voluntarily executed in favour of the defendant no.1. The sale deed in favour of the defendant no.2 was entered into on 22/2/2010 and he in turn sold the land to the defendant no.3 by executing a sale deed on 23/3/2010.
16.5 Copies of the documents i.e. the Power Of Attorney and the Sale Deed and not their originals were on record. The question therefore is,can the forgery or tampering of a document be proved merely on production of photocopies of such a document supported by an FSL Report/Opinion and his testimony.When it is a specific case of the plaintiffs that the document itself is fraudulent, production of the originals was important and inevitable.
17. It will be proper to see Sections 61 to 65 of the Indian Page 59 of 99 HC-NIC Page 59 of 99 Created On Tue Sep 19 00:19:59 IST 2017 C/FA/2254/2015 CAV JUDGMENT Evidence Act 1872 in this context. They read as under:
"61. Proof of contents of documents.--The contents of documents may be proved either by primary or by secondary evidence.
62. Primary evidence.-- Primary evidence means the document itself produced for the inspection of the Court. Explanation 1.--Where a document is executed in several parts, each part is primary evidence of the document; Where a document is executed in counterpart, each counterpart being executed by one or some of the parties only, each counterpart is primary evidence as against the parties executing it. Explanation 2.-- Where a number of documents are all made by one uniform process, as in the case of printing, lithography, or photography, each is primary evidence of the contents of the rest; but, where they are all copies of a common original, they are not primary evidence of the contents of the original. Illustration A person is shown to have been in possession of a number of placards, all printed at one time from one original. Any one of the placards is primary evidence of the contents of any other, but no one of them is primary evidence of the contents of the original.
63. Secondary evidence.--Secondary evidence means and includes--
(1) Certified copies given under the provisions hereinafter contained;
(2) Copies made from the original by mechanical processes which in themselves insure the accuracy of the copy, and copies compared with such copies;
(3) Copies made from or compared with the original;Page 60 of 99
HC-NIC Page 60 of 99 Created On Tue Sep 19 00:19:59 IST 2017 C/FA/2254/2015 CAV JUDGMENT (4) Counterparts of documents as against the parties who did not execute them (5) Oral accounts of the contents of a document given by some person who has himself seen it. Illustrations
(a) A photograph of an original is secondary evidence of its contents, though the two have not been compared, if it is proved that the thing photographed was the original.
(b) A copy compared with a copy of a letter made by a copying machine is secondary evidence of the contents of the letter, if it is shown that the copy made by the copying machine was made from the original.
(c) A copy transcribed from a copy, but afterwards compared with the original, is secondary evidence; but the copy not so compared is not secondary evidence of the original, although the copy from which it was transcribed was compared with the original.
(d) Neither an oral account of a copy compared with the original, nor an oral account of a photograph or machine-copy of the original, is secondary evidence of the original.
64. Proof of documents by primary evidence.-- Documents must be proved by primary evidence except in the cases hereinafter mentioned.
65. Cases in which secondary evidence relating to documents may be given.--Secondary evidence may be given of the existence, condition, or contents of a document in the following cases:--
Page 61 of 99HC-NIC Page 61 of 99 Created On Tue Sep 19 00:19:59 IST 2017 C/FA/2254/2015 CAV JUDGMENT
(a) when the original is shown or appears to be in the possession or power-- of the person against whom the document is sought to be proved, or of any person out of reach of, or not subject to, the process of the Court, or of any person legally bound to produce it, and when, after the notice mentioned in section 66, such person does not produce it;
(b) when the existence, condition or contents of the original have been proved to be admitted in writing by the person against whom it is proved or by his representative in interest;
(c) when the original has been destroyed or lost, or when the party offering evidence of its contents cannot, for any other reason not arising from his own default or neglect, produce it in reasonable time;
(d) when the original is of such a nature as not to be easily movable;
(e) when the original is a public document within the meaning of section 74;
(f) when the original is a document of which a certified copy is permitted by this Act, or by any other law in force in India to be given in evidence;
(g) when the originals consists of numerous accounts or other documents which cannot conveniently be examined in Court, and the fact to be proved is the general result of the whole collection. In cases (a), (c) and (d), any secondary evidence of the contents of the document is admissible. In case (b), the written admission is admissible. In case (e) or Page 62 of 99 HC-NIC Page 62 of 99 Created On Tue Sep 19 00:19:59 IST 2017 C/FA/2254/2015 CAV JUDGMENT
(f), a certified copy of the document, but no other kind of secondary evidence, is admissible. In case (g), evidence may be given as to the general result of the documents by any person who has examined them, and who is skilled in the examination of such documents.
18. Reading of these provisions would indicate that none of the disqualifications mentioned therein existed in the facts on hand. Therefore, primary evidence through production of original documents was a must. In other words, the document, in original and not photocopies therefore ought to have been produced. The facts on hand indicate that what is in issue is the existence/form of the document. This is particularly when the execution of a document by affixing signatures is not in dispute. It is the nature of document that is questioned. Therefore, the originals were needed to be brought before the Court as the case was that they were tampered with.
18.1 Secondary evidence by way of an opinion of the FSL Officer together with the extract of the copy of the Notary Register and his oral testimony as such without the originals being on record would fail to substantiate the case of the plaintiff. Section 59 of the Evidence Act also states that all facts, except the contents of the document may be proved by oral evidence. It is a cardinal rule of evidence that where written documents exist they must be produced as being the best contents of their evidence. In this case, what was intended for execution was a title clearance and not Power of Attorney and that the document was tampered with. The proper evidence when the genuineness of a document is at issue was to produce the originals. Same test would apply to Page 63 of 99 HC-NIC Page 63 of 99 Created On Tue Sep 19 00:19:59 IST 2017 C/FA/2254/2015 CAV JUDGMENT the Notary Register. Production of an extract and not the Original Register would fail the test of scrutiny of its genuineness.
18.2 In the opinion of this court, when the case of the plaintiffs was that the documents were tampered with and they had erasure marks and overwritings, the case of fraud on account of such tampering could not be proved solely on the basis of the opinion of the handwriting expert and his testimony.
19. The contention of Shri Deven Parikh that fraud has to be proved and the burden to prove such a fraud lies heavily on the shoulder of one who alleges such a fraud, is a question which is seriously not in dispute. However, when we go on to examine the alternative facets of the case, which we would hereinafter do, burden of proof, in light of the alternate circumstances pleaded in the plaint would shift to the appellant/ defendants.
19.1 The issue whether the plaintiffs established that the manner and the mode of execution was in accordance with Section 85 of the Evidence Act is linked and interconnected with the issue as to whether the parties to the execution of such a document acted as suggested in the recitals. The plaintiffs having suggested in the plaint that no consideration was received, it became incumbent upon the defendants to prove otherwise. The burden shifted on to the defendants to prove that the recitals in the document matched their intentions and action. This was particularly when the plaintiff suggested in the plaint itself that a cheque of Rs 4,00,000 was Page 64 of 99 HC-NIC Page 64 of 99 Created On Tue Sep 19 00:19:59 IST 2017 C/FA/2254/2015 CAV JUDGMENT deposited in his account on 22/2/2010, a month after the Power Of Attorney was executed.
19.2 The plaintiffs in the plaint have further pleaded circumstances to show, how even the purported sale from defendant no. 2 to the appellant - defendant no. 3 is not a valid transaction. The transaction is said to have taken place on 23.03.2010 for a consideration of Rs.15,00,000/-. The revenue records still show the names of the plaintiffs. The sale deed of the subsequent transaction shows that a payment of Rs. 3 lakhs is paid by cheque to defendant no. 2 on 23.02.2010. The document of deed of sale of land between the plaintiff and defendant no. 1 is registered on 26.02.2010. That even before a sale is confirmed between the plaintiff and defendant no. 1, defendant no. 2 has paid the part consideration, is difficult to comprehend.
19.3 Section 100 of the Evidence Act suggests that whoever desires any Court to give judgement as to any legal right or liability, dependent on the facts which he asserts, must prove that those facts exist. When a person is bound to prove the existence of any fact ,it is said that the burden of proof lies on that person. The submission of Shri Parikh that the pleadings are inconsistent, inasmuch as at one point they plead destruction of a document which was executed as a forged one,whereas the other which professes that the existing Power Of Attorney is a fraud, may not be correct. It is a settled position of law that the pleadings have to be read in its entirety. Not only do the plaintiffs base their case on the document being not the one that was intended to be executed, Page 65 of 99 HC-NIC Page 65 of 99 Created On Tue Sep 19 00:19:59 IST 2017 C/FA/2254/2015 CAV JUDGMENT they have also extensively in their plaint suggested circumstances to show that the execution of the Power Of Attorney was not valid and no consideration as the document recites was received. That the transaction is a sham is also attempted to be shown by pleading that the true market value of the land is far more than the consideration actually received. Having said that, the evidence of the defendants, will have to be assessed to find out whether -
a) The Power Of Attorney was executed in the manner and the method so provided. This is so because Shri Parikh wants the court to presume such execution,in accordance with Section 85 of the Evidence Act.
b) Actual consideration did pass over to the plaintiffs on the date of Power Of Attorney and whether defendants prove such a fact as such an assertion is made in the Power Of Attorney.
19.4 This is in light of Shri Soparkar's submission that -
# On reading the Power Of Attorney, it becomes apparent that it is a bogus document. Even before an actual sale takes place, at the stage of execution of a deed of Power Of Attorney to sell a piece of land, a vendor is already identified and such a vendor is given possession. Such recitations in a Power Of Attorney present unusual facts. If at the stage of execution of a Power Of Attorney itself, a vendor was identified and possession was handed over, was it not, the question goes, plausible and possible to enter and execute a Sale Page 66 of 99 HC-NIC Page 66 of 99 Created On Tue Sep 19 00:19:59 IST 2017 C/FA/2254/2015 CAV JUDGMENT Deed rather than a Power Of Attorney. If the case of defendant no.1 was that in order to see that the seller's family would not have to come on multiple occasions, a Power Of Attorney would save such a situation, then should it not have been a natural act of executing a Sale Deed, once the vendor was identified and possession handed over at the stage of execution of the Power Of Attorney? Recitations in the Power Of Attorney state that the Power Of Attorney holder has sold the lands to Sumanbhai Patel, the defendant no.1 and possession also is handed over. This, according to Shri Soparkar needs to be appreciated in light of the facts that after the Power Of Attorney was executed on 22/1/2010, first Sale Deed was executed in favour of defendant No.1 on 22/2/2010 and the second one by the defendant no.2 in favour of defendant no.3 in quick succession on 23/3/2010. All these circumstances point to the fact that apparently the Power Of Attorney was a fraud.
# The Sale Deeds show consideration of Rs.12,00,000 and Rs.21,00,000 on the dates of execution. If that is to be believed then obviously such a statement is wrong. Once even for the present it is proved that the possession is with the plaintiffs, the Sale Deeds are nothing but a fraud. There is no question of consideration having been received by the Plaintiffs.
# According to Mr Soparkar, various fact statements through the oral evidence of the two witnesses, namely defendant No.1 and defendant no.2 regarding the manner in which consideration is said to have been Page 67 of 99 HC-NIC Page 67 of 99 Created On Tue Sep 19 00:19:59 IST 2017 C/FA/2254/2015 CAV JUDGMENT paid would go to show that in fact no consideration has been paid at the time when the Power Of Attorney was executed. If the Power Of Attorney, as it reveals is a virtual sale, then in absence of consideration having been actually paid, though professed to have been, would go to show that the entire gamut of the transactions is an eye wash.
19.5 The submission is made in context of the following evidence:
> In his cross examination defendant no.1 says that the sale consideration has been paid by the defendant no.2.
> A statement is made that the plaintiffs on the date of execution of the Power of Attorney had said that on the execution of the Power Of Attorney, the land's possession and title would vest in favour of the defendants. This being a virtual sale there has to be evidence of the entire consideration having been paid as it is so put up by the defendants. The defendant no.1 states that the entire consideration for the sale of land was Rs.12,00,000. Rs.8,00,000 was paid in cash. Remaining amount of Rs.4,00,000 was by way of a cheque in the name of Rameshbhai Patel. From the cross examination of the defendant no.2, it is evident that he admits that on 22/1/2010 his bank account did have a balance of Rs.4,00,000 or more. He feigned ignorance of knowing whether on the date of the Power Of Attorney, the Bank had a balance of Rs 4,00,000. From the Page 68 of 99 HC-NIC Page 68 of 99 Created On Tue Sep 19 00:19:59 IST 2017 C/FA/2254/2015 CAV JUDGMENT suggestions made, it was apparent that there was no fund in the bank account of the defendant no.2 on 9/2/2010. Though he deposed to produce the Bank Statements, he did not do so. He denied a suggestion that on a single day i.e. on 22/2/2010 a cash deposit of Rs.4,10,000 was made in the Bank Account of the Defendant No.2. It was a further suggestion made that the defendant had no proof to show the source of funds to the extent of consideration of the amounts for the land in question. Though he deposed to produce the proof of the source of payments of the funds used for payment of cash consideration, he failed to do so. Even on the question of the payment of the cheque of Rs.4,00,000 in the cross examination, it was suggested to the defendant that the cheque was dated 18/2/2010. That the cheque dated 18/2/2010 was deposited in his account by Rajni Parmar. To a question whether he had cared to find out that the cheque had returned into his account he said that he would produce necessary proof of bank statements to clarify the fact which he did not do. He denied a suggestion that the Bank Pay-In Slip for depositing the amount was filled by Rajnibhai. From the Bank statements at Exh 152, the entry shows deposit of Rs.4,10,000 in cash in the defendant no 2's account on 22/2/2010 and cheque made out in favour of one of the plaintiffs, Rameshbhai on the same day. Admittedly therefore the statements made that on the date of execution of the Power of Attorney, entire consideration had passed onto the seller is wrong.
20. Assessment of evidence, will have to be done in light of Page 69 of 99 HC-NIC Page 69 of 99 Created On Tue Sep 19 00:19:59 IST 2017 C/FA/2254/2015 CAV JUDGMENT such pleadings in the plaint as well as on the defendants' stand in the written statements and the oral evidence adduced by the defendant no.1 and defendant no.2.Defendant No.3 has not entered the witness box. At this point, it needs to be mentioned that before the stage of examination of defendant no. 3, Sumanbhai - the defendant no. 2 filed an affidavit at Ex. 248 resiling from his stand opposing the suit. In the affidavit so filed, he stated that he was prompted to enter into and be part of such a fraud, at the instance of the defendant no. 2 - Pushpendra. He denied having entered into any sale transaction of the kind. In brief, he supported the plaintiff's version. For the present,the contents and the legality of the evidential value of such an Affidavit is left for our consideration at a later stage.
21. The evidence to consider whether the Power of Attorney was executed in the manner and mode as envisaged under section 85 of the Evidence Act needs consideration. The contention of the appellant is that evidence on record suggests that the Power of Attorney was executed before a notary and therefore presumed to be valid. However, the respondents-plaintiffs suggest that a presumption under Section 85 cannot be raised as the evidence of the defendants itself suggest breach of Section 85. There was no simultaneous signing of the document before the Notary and even the witnesses and the identification was suspect.
22. The case of the plaintiffs is that at a meeting at Gandhinagar on 23.01.2010, signatures were made on the Deed of Title Clearance and signatures were made in the Notary Register. In contradiction, the defendants have Page 70 of 99 HC-NIC Page 70 of 99 Created On Tue Sep 19 00:19:59 IST 2017 C/FA/2254/2015 CAV JUDGMENT brought out a case that the Power of Attorney was executed on 22.01.2010 at Gandhinagar. To assert such a stand of a valid execution of such a document, the evidence of the defendant no .1 needs to be appreciated. The defendant no. 1's testimony at Ex. 134 reveals the following:
(I) According to him, the plaintiffs conveyed their desire to execute a Power of Attorney on 22.01.2010 at Gandhinagar and the defendant no.1 was informed to remain present. They met outside the Gandhinagar Court. The plaintiffs had come with a prepared Power Of Attorney which was shown to them. It was then decided to execute the Power of Attorney. Amrutbhai & Natubhai - the plaintiffs, Sumanbhai - the defendant no.
2 and defendant no. 1 went over to the table of the Notary Ghanshyambhai. Only Natvarbhai (the plaintiff of Suit No. 89/2010) and Amrutbhai (the plaintiff of suit No. 90/2010) put their signatures on the document. The defendant no. 1, the attorney holder signed too. Evidence further suggests that the plaintiffs then stated that the remaining members would sign the document in the evening at Gandhinagar. They were not present at the Court premises,before the Notary for their signatures.
(II) Accordingly, on the night of 22.01.2010, the defendant no. 1 together with defendant no. 2 went to the plaintiffs' place where the notarised Power of Attorney was signed by the remaining members of the Plaintiffs family,the sellers.
Page 71 of 99HC-NIC Page 71 of 99 Created On Tue Sep 19 00:19:59 IST 2017 C/FA/2254/2015 CAV JUDGMENT (III) The defendant no. 1 was cross examined.In such cross examination he admitted that Natubhai and Amrutbhai had come with the Power of Attorney. He accompanied them to the table of Notary Govindbhai Patel. Plaintiffs Amrutbhai and Natubhai signed before the Notary. The Notary did not stamp the document. Both Amrutbhai and Natubhai signed on different Power of Attorney documents. At that point of time, none of the witnesses signed the document. Advocate Dipaben Parmar identified the parties and signed on the document. She was his Advocate in the criminal proceedings. She did not know Natubhai and Amrutbhai. The stamp and identification by Dipaben also was not done in their presence. In the cross examination, he admitted that then it was decided that the remaining parties to the document would sign in the evening at Gandhinagar. He also admitted that the signatures, identification and the execution of the document was not done in his presence. He also admitted that he did not know the witnesses who signed as witnesses on the document.
22.1 Based on these evidences, the trial court came to the conclusion that the execution of the Power of Attorney was not done simultaneously by all parties and therefore the execution was invalid. Evidence of the defendant no. 1 especially his cross examination indicates that only Natubhai and Amrutbhai signed on the Power of Attorney at Gandhinagar court before the Notary. The rest of the plaintiffs signed subsequently in the night at the residence of one of the plaintiffs. There is no evidence brought on record Page 72 of 99 HC-NIC Page 72 of 99 Created On Tue Sep 19 00:19:59 IST 2017 C/FA/2254/2015 CAV JUDGMENT by the defendants to show as to when the Notary actually signed and stamped the document or made entries in the Notary Register. At one stage in the cross examination, the defendant no. 1 admits to the suggestion made that when the exercise of execution of the Power of Attorney was carried out, he (defendant no.1) was also not present. The identification done by the advocate was suspect as according to the defendant's own admission she did not know the plaintiffs. All these sets of circumstances based on assessment of evidences therefore amply show that the Power of Attorney was not executed and authenticated before the Notary by all parties simultaneously. The same was done at separate times, the witnesses' identity was not known, the identification by the advocate was suspect. It is here that Shri Parikh's contention that the plaintiffs should have examined the notary needs to be negatived in light of the burden of proof having shifted to the defendants. It was their case that the execution was valid. The Notary could have been called as their witness. It was not so done. The defendant no. 1 himself admits that he was not present when the entire exercise was carried out.
22.2 Even the defendant no. 2 in his cross examination admits that when Amrutbhai and Natubhai signed he was not present. In such circumstances, it cannot be presumed by the court that the document was executed in the manner and the mode prescribed.
23. The contention of the appellant that a presumption of a valid execution shall be drawn in light of such evidence does not deserve to be accepted. Having failed to execute such a document in the manner required, we hold that it cannot be Page 73 of 99 HC-NIC Page 73 of 99 Created On Tue Sep 19 00:19:59 IST 2017 C/FA/2254/2015 CAV JUDGMENT said to be a valid Power of Attorney. Shri Sanjanwala's contention that unless the document is executed and authenticated in the presence of the Notary, there is no presumption as to its validity, deserves to be accepted.
24. This brings us to the issue of payment and passing of consideration. Did the parties to the Power Of Attorney and the Sale Deed in fact act according to the recitations in the documents vis-a-vis payment and passing of consideration for the sale in question. Was the Trial Court right in assessment of evidence, both oral and documentary to hold that no consideration actually passed on the date of the Power Of Attorney as so deposed by the defendants and therefore no valid transaction of sale took place. Moreover, from the oral evidence of the defendants, it was an admitted fact that they were in no financial means to pay such a large amount of consideration. On independent assessment of evidence, can it be said that, on the date of execution of the Power of Attorney, full consideration as per recitations in the documents was paid? The question interwoven into the issue which was examined by the trial court was whether defendants no. 1 and 2 were financially sound to pay such large sums i.e. Rs. 29,00,000/- in cash and a cheque of Rs.4 lakhs.
25. The plaintiffs in their plaint have stated that the document in question, the alleged Power of Attorney was executed on 23.01.2010. It came to the notice of the plaintiff no. 2 that an amount of Rs. 4 lakhs was deposited in his bank account on 20.02.2010. The bank could not furnish details of the source from which the amount had come. Full Page 74 of 99 HC-NIC Page 74 of 99 Created On Tue Sep 19 00:19:59 IST 2017 C/FA/2254/2015 CAV JUDGMENT consideration on the date of execution of the Power Of Attorney was not received by the plaintiffs. The purported sale deed was executed on 22.02.2010. The case of the defendant no. 1 and the defendant no. 2 is that the entire amount of consideration was paid on the date of execution of the Power of Attorney. Evidence on record however showed to the contrary. The Power Of Attorney suggested that full consideration was paid. However, admittedly the remaining amount of Rs.4,00,000 was by a cheque dated 22.2.2010, a month after its execution. It is difficult to believe that in absence of payment of full consideration the plaintiffs would have parted with the possession of their lands.
25.1 Recitations in the Power of Attorney Exh. 58 state that for the purposes of the sale of land, the plaintiffs authorised defendant no. 1, Pushpendra to deal on their behalf. The document further goes to state that the lands in question have been sold to Sumanbhai Patel, the defendant no.2 and possession is handed over. The entire amount of consideration has been paid and received by the executants. The defendant no. 1 was authorised to enter into and execute a sale deed with the defendant no. 2 Sumanbhai. The sale deed,at Ex. 59. is executed on 22.02.2010. The sale of the plaintiff's land was for a consideration of Rs.12,00,000/-. As far as the mode and manner of payment is concerned, the recitals in the sale deed are :
Rs.4,00,000/- Paid in cash to Joitiben
Rs.4,00,000/- By cheque No. 003036 drawn on
ICICI Bank Naroda in favour of
plaintiff no. 2 - Rameshbhai
Page 75 of 99
HC-NIC Page 75 of 99 Created On Tue Sep 19 00:19:59 IST 2017
C/FA/2254/2015 CAV JUDGMENT
Rs.4,00,000/- Paid in cash to Natubhai, the
plaintiff no. 3.
25.2 The sale deed also has a recitation to the effect that a Power of Attorney was executed by the seller on 22.01.2010 which was notarised on 22.01.2010. The Power of Attorney was in favour of Pushpendra. The consideration amount was accepted by the seller and possession handed over on 22.01.2010. When the two documents Exh. 58 - the Power of Attorney dated 22.01.2010 and Ex. 59 - sale deed dated 22.02.2010 are read, in context of the oral evidence of the defendant no.1 and defendant no.2, the evidence on passing and payment regarding consideration are :
(a) The Power of Attorney executed on 22.01.2010 states that the entire consideration amount was paid by defendant no. 2 Sumanbhai. The Power Of Attorney specifically names the defendant no.2 Sumanbhai as the purchaser.
(b) On payment of such consideration on such date, possession was handed over to the defendant no. 2 Sumanbhai.
(c) The sale deed recitals indicate that the amount of consideration was paid in cash; Rs. 4 lakhs each to plaintiffs no. 1 and 3 and a cheque (with no mention of date) of Rs. 4 lakhs in favour of Rameshbhai plaintiff no. 2.
26. The oral evidence of the defendants nos.1 and no.2 vis-a-
Page 76 of 99HC-NIC Page 76 of 99 Created On Tue Sep 19 00:19:59 IST 2017 C/FA/2254/2015 CAV JUDGMENT vis these recitals need to be assessed. It will be useful to recollect that it is the case of the plaintiffs that no consideration as asserted in the Power of Attorney and the sale deed has been received. It is their case that the plaintiff no. 2 having noticed deposit of Rs. 4 lakhs in his account on 20.02.2010 inquired as to the source of such deposit from the Bank. The Bank in turn could not explain the source. This deposit was not towards the part payment in the form of a cheque that is professed to be given by the purchaser defendant no. 2. On inquiries from the Sub-Registrar's office, it was found that a sale deed dated 22.02.2010 was registered in the name of defendant no. 2 based on a Power of Attorney in favour of defendant no. 1. Copies were obtained as the originals were in the custody of the defendants.
26.1 Defendant no. 1 - Pushpendra who is examined at Ex. 134 on the assertions regarding payment of consideration states thus:
(a) That on the date of execution of the Power of Attorney i.e. on 22.01.2010, Rs. 8 lakhs in cash and Rs. 4 lakhs by cheque was paid to the plaintiffs. In all, Rs.12 lakhs was paid. Similar assertion is made vis-a-vis the plaintiffs of the other suit.
(b) He asserts that plaintiffs handed over the possession of the lands on the date of execution of the Power Of Attorney with complete authority to the purchaser to deal with the lands as they so wished.Page 77 of 99
HC-NIC Page 77 of 99 Created On Tue Sep 19 00:19:59 IST 2017 C/FA/2254/2015 CAV JUDGMENT (c ) In the cross examination the defendant no.1 admits that the entire amount of consideration was paid by the defendant no. 2 - Sumanbhai. No amount was paid by him. His only interest in the transaction was his commission. The commission is at the rate of 2%. He doesn't recollect the exact amount that was agreed to be paid. That no amount of commission is received.
(d) The entire amount of consideration, cash and cheque was paid on the same day. He did not recollect whether Sumanbhai insisted for receipts. That he was present when the amounts were paid.
26.2 The defendant no. 2, the purchaser was examined at Ex.
144. His gist of evidence is as under:
(a) He asserts that on 22.01.2010, at Gandhinagar, consideration of Rs.12,00,000/- was paid. Cash amount of Rs.8,00,000/- was received and a cheque of Rs.4,00,000/- for the remaining amount was drawn on 22.2.2010.
(b) That the entire amount of consideration as suggested in the sale deed was paid.
(c) In the cross examination, he admits that he had no knowledge of whether the plaintiffs Natubhai or Amrutbhai had signed. No consideration was paid when they met for the first time on 22.01.2010. He denies giving the cheque and cash to the plaintiffs Page 78 of 99 HC-NIC Page 78 of 99 Created On Tue Sep 19 00:19:59 IST 2017 C/FA/2254/2015 CAV JUDGMENT on 22.01.2010.
(d) Bank statement of the defendant no. 2 is at Exh.
152. It shows receipt of cash of Rs.4,10,000/- and debit of a cheque on 22.02.2010 in favour of Rameshbhai.
26.3 The question of payment of consideration, on the date of Power of Attorney, (as so asserted in the document at Exh. 58 and Exh. 59 sale deed) when considered in light of the oral evidence of the defendants no. 1 and 2, the actual factual aspects which emerge are as under:
(1) The assertion that, the entire amount of consideration was paid on the date of execution of the Power of Attorney i.e. on 22.01.2010 is not supported by the actual evidence of the defendants no. 1 and 2. (2) The aspect of consideration having been paid on the date of the document assumes significance in light of the recital in the Power of Attorney deed that, the purchaser was already named. It was the defendant no.2. Possession, according to the recital was handed over to Sumanbhai on payment of consideration and execution of the deed of Power of Attorney. In light of these circumstances, what is evident is that in fact the entire consideration so agreed to has not been paid on the date of the deed of Power of Attorney. (3) The cash amount, is stated to have been paid on 22.01.2010. The remainder as per the sale deed is through a cheque. The sale deed does not mention the date of the cheque, however, the plaintiffs assert that, in Page 79 of 99 HC-NIC Page 79 of 99 Created On Tue Sep 19 00:19:59 IST 2017 C/FA/2254/2015 CAV JUDGMENT the account of Rameshbhai, a deposit of such amount was received on 22.02.2010.Bank Statement at Exh.152 confirms such statement.The Sale Deed,though does not mention the date of the cheque,it is admittedly,of a date,a month later than when the possession is purportedly handed over.
(4) According to the defendant no. 1, Sumanbhai - the defendant no. 2 paid the entire amount of consideration. Sumanbhai - defendant no. 2 denies having paid cash and cheque on the same date i.e. on the date of Power of Attorney. In fact, he has admitted that when the Power of Attorney was executed he was not present.
(5) Whether the defendant no. 2 insisted for receipts for paying cash consideration, is not within the knowledge of defendant no. 1. Therefore, though the Power of Attorney executed on 22.01.2010 expresses the fact of consideration having exchanged hands on the same day i.e. on 22.01.2010, oral evidence, through the cross examination of the defendant no. 1 and defendant no. 2 suggests that the remaining part of consideration, by cheque was paid one month after the sellers having parted with the possession as the recitals in the deed of Power of Attorney suggest. Exh. 152 - Bank details of defendant No. 2 also suggest such a payment. For paying such a large amount of consideration, Rs. 29,00,000/- in cash and Rs. 4,00,000/- by cheque in all Rs. 33,00,000/- for the lands in both the suits, it is difficult to comprehend that the defendants have not insisted for receipts in proof of discharge of Page 80 of 99 HC-NIC Page 80 of 99 Created On Tue Sep 19 00:19:59 IST 2017 C/FA/2254/2015 CAV JUDGMENT consideration.
(6) In light of the provisions of Order VI Rule 4 read with the provisions of Section 100 of the Evidence Act, once, the plaintiff asserted that no consideration was received, the burden of proof to prove the contrary was on the defendants 1 and 2. Apart from the fallacy of the consideration having being paid on the same day, being exposed through their cross-examination itself, no receipts of proof that actual consideration has been paid is brought forth by them. Payment of consideration in cash and cheque was within the special knowledge of the defendant no. 2 which burden both, the defendant No. 1 and defendant No. 2 have failed to discharge. If it was their case that in fact, cash amount of Rs.29,00,000/- plus a cheque for an amount of Rs. 4,00,000/- was paid on the date of the Power Of Attorney, the primary responsibility to prove such fact was upon them. In fact, when a suggestion is made in the cross-examination, the defendant no. 1 categorically admits that he did not know whether the defendant No. 2 insisted for receipts.
26.4 The defendants No. 1 and 2, have through their cross- examination and their own admissions brought out a fact that full consideration was not paid on 22/1/2010 as per the recitals in the Power Of Attorney. Such fact statements through the oral evidence of the two witnesses, namely defendant No.1 and defendant no.2 regarding the manner in which consideration is said to have been paid would go to show that in fact no consideration has been paid at the time when the Power Of Attorney was executed. If the Power Of Page 81 of 99 HC-NIC Page 81 of 99 Created On Tue Sep 19 00:19:59 IST 2017 C/FA/2254/2015 CAV JUDGMENT Attorney, as it reveals is a virtual sale, then in absence of consideration having been actually paid, though professed to have been, would go to show that the entire gamut of the transactions is an eye wash. In his cross examination defendant no.1 says that the sale consideration has been paid by the defendant no.2.
26.5 A statement is made that the plaintiffs on the date of execution of the Power of Attorney had said that on the execution of the Power Of Attorney, the land's possession and title would vest in favour of the defendants. This being a virtual sale there has to be evidence of the entire consideration having been paid as it is so put up by the defendants. The defendant no.1 states that the entire consideration for the sale of land was Rs.12,00,000. Rs.8,00,000 was paid in cash. Remaining amount of Rs.4,00,000 was by way of a cheque in the name of Rameshbhai Patel. From the cross examination of the defendant no.2, it is evident that he admits that on 22/1/2010 his bank account did have a balance of Rs.4,00,000 or more. He feigned ignorance of knowing whether on the date of the Power Of Attorney, the Bank had a balance of Rs 4,00,000. From the suggestions made, it was apparent that there was no fund in the bank account of the defendant no.2 on 9/2/2010. Though he deposed to produce the Bank Statements, he did not do so. He denied a suggestion that on a single day i.e. on 22/2/2010 a cash deposit of Rs.4,10,000 was made in the Bank Account of the Defendant No.2. It was a further suggestion made that the defendant had no proof to show the source of funds to the extent of consideration of the amounts for the land in question. Though he deposed to produce the proof of Page 82 of 99 HC-NIC Page 82 of 99 Created On Tue Sep 19 00:19:59 IST 2017 C/FA/2254/2015 CAV JUDGMENT the source of payments of the funds used for payment of cash consideration, he failed to do so. Even on the question of the payment of the cheque of Rs.4,00,000 in the cross examination, it was suggested to the defendant that the cheque was dated 18/2/2010. That the cheque dated 18/2/2010 was deposited in his account by Rajni Parmar. To a question whether he had cared to find out that the cheque had returned into his account he said that he would produce necessary proof of bank statements to clarify the fact which he did not do. He denied a suggestion that the Bank Pay-In Slip for depositing the amount was filled by Rajnibhai. From the Bank statements at Exh 152, the entry shows deposit of Rs.4,10,000 in cash in the defendant no 2's account on 22/2/2010 and cheque made out in favour of one of the plaintiffs, Rameshbhai on the same day. Admittedly, therefore, the statements made that on the date of execution of the Power of Attorney, entire consideration had passed onto the seller is wrong.
27. From all these factors not only have the defendants failed to prove their case that the consideration passed on to the plaintiffs on the date of the Power Of Attorney but their evidence suggests to the contrary. Power Of Attorney recites payment of full consideration. Sale Deed does mention a part payment of consideration by cheque but does not mention the date of the cheque.
28. Assessment of the evidence on record, by the trial Court suggests that such a large amount of consideration, of Rs.33,00,000/- could not have been paid by the defendants. Such a finding has been recorded by sifting through the Page 83 of 99 HC-NIC Page 83 of 99 Created On Tue Sep 19 00:19:59 IST 2017 C/FA/2254/2015 CAV JUDGMENT evidence of the defendants No. 1 and 2.Their admissions themselves, show that, they had no source of income to pay a large amount of consideration. Moreover, they even had no idea of the market price of the lands in question.
29. Cross examination of the defendants together with their bank statements indicate that preceding the date of deposit they had cash deposits/withdrawals below a thousand rupees. Never in their bank accounts they had large cash balance. The defendants were having no source of income. The cheque of Rs.4,00,000 was dated 22/2/2010. Cash of the same amount was deposited in the defendant no.2's account on the same day. No explanation has come on record to show the source. All these lead to the conclusion that no consideration was paid, the defendants had no means to pay such huge amounts of cash. No statements or details, though promised to produce were produced, questioning the whole transaction therefore. The address that the defendants No. 1 and 2 had given were incorrect. All these factors collectively led the trial court to conclude that the entire transaction was a sham.
30. Factors emerging from the cross-examination of defendant No. 1 and defendant No. 2, to show the fallacy of the transaction are as under:-
(A) That the defendant No. 1 admits that there is a misstatement in the affidavit that he was an agriculturist at Soja.
(B) That he has no source of income except
commission on land dealings.
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(C) That the defendant no. 1 admits of not filing of
income tax returns. When confronted with question of the amounts that he would have in his Bank Account he could not respond. He did not produce the Bank Statements, though he had promised to do so. That there is no fixed deposit in his name.
The defendant No. 1 further suggested that he did not know the amount of commission for which the land deal was struck. He admitted that he had no proof to substantiate his earnings through commission in the year 2009.
(D) The defendant No. 1 could not recollect the essentials with regard to the exact location of the land and the area. He admitted that he did not know the measurements and the area of land of which the transaction was entered into. He did not recollect the location of the lands of the plaintiffs.
(E) The defendant No. 1 further admitted in his cross-examination that he did not remember what was discussed in his meetings that were held with the sellers of the land.
(F) The address of Soja given in the Power of Attorney, was also found to be false. In the cross- examination he stated that in the driving licence his address was shown as Chandkheda. Even the Ration Card and Voters card carried the address of Chandkheda. He had no proof to show that his Page 85 of 99 HC-NIC Page 85 of 99 Created On Tue Sep 19 00:19:59 IST 2017 C/FA/2254/2015 CAV JUDGMENT residence was at Soja. He denied a suggestion that he had given a false address to evade arrest on being detained.
31. Even the cross-examination of the defendant No. 2 - Sumanbhai holds out that he was at all not privy to the transactions and had no means to pay the sale consideration. He admitted that he earned a salary of Rs.1200/- in the beginning. With regard to meeting his family's expense, he admitted that he had no source of income. He was not aware of the market price of the land nor was he aware at what price it was decided to purchase the land. Even with regard to his address at Shahpur, he admitted that he left the village; that when the deed was executed he was staying at Naroda and not at Shahpur. He admitted that he had an account in the ICICI bank. During the period from 01.01.2009 to 31.12.2010 the balance in his account did not exceed Rs. 1000/-. Though he promised to produce bank statement he did not do so.
32. Though the defendant No. 2 admitted that he had to pay Rs.12,00,000/- and Rs.21,00,000/- as consideration to the plaintiffs, he was not aware of the profit that would accrue. The defendant No. 2 feigned ignorance of the process of signing of documents at the Gandhinagar Court. He was not aware of the nature of the documents in which the plaintiffs Natubhai and Amrutbhai signed. He denied having made any payment. With regard to the entries in the bank account of Rs.4,00,000/-, he admitted that he does not remember whether before 22.01.2010 his bank account had a balance of Rs. 4,00,000. He denied the suggestion that his bank account had a balance of Rs. 4,10,000/- between 18.02.2010 Page 86 of 99 HC-NIC Page 86 of 99 Created On Tue Sep 19 00:19:59 IST 2017 C/FA/2254/2015 CAV JUDGMENT and 22.02.2010. That on 09.02.2010, his account had zero balance. He failed to produce any evidence though promised to explain source of deposit of Rs. 4,10,00/-. With regard to the explanation of the deposit of Rs.4,10,000 in the account, he admitted that the pay-in-slip to deposit such amount was filled in by his friend Raghubhai Parmar. He also admitted that in the bank statement that was produced his bank balance on 1st April was zero.
33. Based on such evidence, from the cross examination of the defendant no. 1 and defendant no. 2, it is evident that they not only had no source of income to pay such large amounts of cash consideration plus the cheque of the amount of Rs.4,00,000/-, the defendant no. 2 could not explain the deposit of Rs.4,10,000/- in the account of the plaintiff no. 2. Moreover, as was evident from their cross examination they were not residing at Soja and Shahpur, the addresses that were given in the documents. These factors add support to the other evidence on record as discussed in the preceding paragraphs to show that not only was consideration not paid, but they had no means to pay such amounts. Rather than discharging the burden of payment, in fact what their cross examination revealed was their incapacity to pay. This is in addition to the fact that they had admitted through their cross examination, their absence when the Power of Attorney was executed at Gandhinagar.
34. The plaintiffs had at the very outset in their plaint pointed out that it was difficult to comprehend that lands valued at Rs.20 crores could be sold for a paltry consideration of Rs.12,00,000/-. In this context, the relevant portion of the Page 87 of 99 HC-NIC Page 87 of 99 Created On Tue Sep 19 00:19:59 IST 2017 C/FA/2254/2015 CAV JUDGMENT defendant no. 2's cross examination needs to be seen. In his testimony, he admits that he had purchased a piece of land in Shahpur, which was disputed land. Had the land been not under dispute, the same which was bought for Rs.10,00,000/- would be priced at Rs.40,00,000/-. What the learned trial judge records is that the present lands at Khoraj were abutting the road as compared to the one at Shahpur and were free from encumbrances. The lands would therefore have fetched a higher price. The instance thereof clearly suggested that the transaction of land sale at Rs.12,00,000/- which would otherwise have fetched a higher amount pointed to the taint in the deal.
35. All these factors, individually and collectively therefore according to the learned trial judge suggested that the exercise of execution of the Power of Attorney apart from its manner showed that the entire transaction was founded on fraud. The summary of such reasons is as under:
(A) As discussed extensively in absence of the documents in original being produced, namely the Power of Attorney and the sale deed, the plaintiffs have not successfully established that the intention was to execute a Title Clearance Authorisation.
Forgery on the documents could not be established on the basis of secondary evidence such as the opinion of the FSL Officer and his oral testimony and copies of the extract of the Notary Register.
However merely because the Plaintiffs failed to establish the document to be forged would not Page 88 of 99 HC-NIC Page 88 of 99 Created On Tue Sep 19 00:19:59 IST 2017 C/FA/2254/2015 CAV JUDGMENT make their case weaker. The Plaintiffs also had extensively pleaded that the circumstances surrounding the execution suggested that no consideration passed over on the date of the Power Of Attorney.
(B) From the recitations in the Power of Attorney executed on 22.01.2010 and the sale deed executed on 22.02.2010, it was the case of the purchaser, defendant no. 2 that the entire sale consideration was paid on 22.01.2010. The sale deed mentioned details of two cash transactions and one cheque.
No date of the cheque was mentioned. Oral evidence, in the form of cross examination of the defendants no. 1 and 2 indicated that the cheque was deposited in Rameshbhai's account (plaintiff no. 2) on 22.02.2010. Admittedly, therefore no consideration in full was paid on 22.01.2010.
Mr. Soparkar during the course of submissions pointed out a peculiarity in the deed of Power of Attorney, inasmuch as even at that stage, defendant no. 2, the seller was identified and named. In such circumstances, why would the parties first execute a Power of Attorney and not the sale deed itself. One also fails to comprehend, how, in absence of payment of full consideration on 22.01.2010, possession of land would be handed over to the defendant no. 2.
(C ) The plaintiffs had in their plaint and through Page 89 of 99 HC-NIC Page 89 of 99 Created On Tue Sep 19 00:19:59 IST 2017 C/FA/2254/2015 CAV JUDGMENT their evidence asserted that no consideration was paid to them for the sale of land. It was therefore the primary duty of the defendants to discharge this burden by leading evidence to the contrary. It is in this context that the observations of the Supreme Court in the case of Union of India vs. Moksh Builders and Financiers Ltd reported in 1977(1) SCC 60 needs to be considered. The Supreme Court observed thus:
"16. The burden of proof is, however not static, and may shift during the course of the evidence. Thus while the burden initially rests on the party who would fail if no evidence is led at all after the evidence is recorded, it rests upon the party against whom judgment would be given if no further evidence were adduced by 'either side, i.e. on the evidence on record. As has been held by this Court Kalwa Devadattam and others v. The Union of India, (1964) 3 SCR 191 that where evidence has been led by the contesting parties on the question in issue, abstract considerations of onus and out of place, and the truth or otherwise of the case must. always be adjudged on the evidence led by the parties. This will be so if the court finds that there is no difficulty in arriving at a definite, conclusion. It is therefore necessary to weigh the evidence in this case and to decide whether, even if it were assumed that there was no conclusive evidence to establish or rebut the "benami" allegation, what would, on a careful assessment of the evi- dence, be a reasonable probability and a legal inference from relevant-and admissible evidence."Page 90 of 99
HC-NIC Page 90 of 99 Created On Tue Sep 19 00:19:59 IST 2017 C/FA/2254/2015 CAV JUDGMENT It is in this context, it needs to be seen that as extensively discussed, on assessment of evidence,the cross examination of the defendants no. 1 and 2 revealed that not only consideration was not paid on the date of Power of Attorney's execution though the recital so stated, it has also come on record that the defendants no. 1 and 2 had no source of income to pay such amounts.
(D) From the cross examination of the defendants no. 1 and 2, it has also come on record that the Power of Attorney was not only,not executed in a manner and method as envisaged under section 85 of the Evidence Act, what is elicited is that on 22.01.2010, at the table of the notary, Govindbhai Patel, only the plaintiff, Natubhai and the plaintiff of the other suit, Amrutbhai signed. Both defendant no. 1 and defendant no. 2 have agreed to the suggestion that they were not present at the time of execution. The Notary did not affix his seal and stamp at the time. All parties to the document did not simultaneously sign the document and therefore it was not a valid Power of Attorney.
(E) The witnesses to the document were ghost witnesses. The advocate who carried out the identification was neither known to the plaintiffs nor did she know them. Addresses of the defendant no. 1 and defendant no. 2 of Soja and Shahpur were found to be incorrect. Sumanbhai - defendant no. 2 had never met the plaintiffs which was a highly Page 91 of 99 HC-NIC Page 91 of 99 Created On Tue Sep 19 00:19:59 IST 2017 C/FA/2254/2015 CAV JUDGMENT unusual circumstance. All these collectively led the trial court to hold the Power of Attorney to be invalid. We, on assessment of evidence, are not persuaded to take a different view.
36. Having held the Power of Attorney to be an invalid document, the consequential transaction of sale is also bad. The sale deed dated 22.02.2010 should and is also accordingly declared invalid. The plaintiffs, in one of the grounds in the plaint have stated that the theory that the Power of Attorney was executed to facilitate the lady members of the family, who would not have to visit the Sub-Registrar's office. If that be so, rather than enter into a Power Of Attorney a Sale Deed could have been executed. That the Power Of Attorney is a fraudulent document becomes apparent when even before an actual sale takes place, at the stage of execution of a deed of Power Of Attorney to sell a piece of land, a vendor is already identified and such a vendor is given possession. Such recitations in a Power Of Attorney present unusual facts. If at the stage of execution of a Power Of Attorney itself, a vendor was identified and possession was handed over, was it not, the question goes, plausible and possible to enter and execute a Sale Deed rather than a Power Of Attorney. If the case of defendant no.1 was that in order to see that the seller's family would not have to come on multiple occasions, a Power Of Attorney would save such a situation, then should it not have been a natural act of executing a Sale Deed, once the vendor was identified and possession handed over at the stage of execution of the Power Of Attorney? Recitations in the Power Of Attorney state that the Power Of Attorney holder has sold the lands to Sumanbhai Patel, the defendant no.1 and Page 92 of 99 HC-NIC Page 92 of 99 Created On Tue Sep 19 00:19:59 IST 2017 C/FA/2254/2015 CAV JUDGMENT possession also is handed over. This, according to Shri Soparkar needs to be appreciated in light of the facts that after the Power Of Attorney was executed on 22/1/2010, first Sale Deed was executed in favour of defendant No.1 on 22/2/2010 and the second one by the defendant no.2 in favour of defendant no.3 in quick succession on 23/3/2010. All these circumstances point to the fact that apparently the Power Of Attorney was a fraud. The Power of Attorney was with an identified seller, then why was not a sale deed directly executed. This also supports the plaintiff's case.
37. Once the sale transaction between the plaintiffs and the defendant no. 2 is held to be invalid, the transaction of sale between defendant no. 2, Sumanbhai and defendant no. 3, Velji Mistry, the present appellant, should also be held to be non-est. Even otherwise the trial court, on assessment of evidence found the transaction of sale between defendant no. 2 and defendant no. 3 suspect. The transaction needs to be viewed in the light of such evidence. Defendant no. 3 has not offered himself for examination as a witness.
38. While considering the evidence, it has come on record that, the sale price of Rs.12,00,000/- for a parcel of land whose market price was Rs.20 crores becomes highly suspect. In the evidence of defendant no. 2 itself, we have referred to a deal of lands situated at Shahpur, in the interior, which the defendant no. 2 bought. Holding that based on comparison of the consideration the defendant no. 2 paid for such a transaction, Rs.12,00,000/- for land situated at a better place would definitely fetch a higher price. Based on the same set of reasoning, the sale consideration of RS.15,00,000/- paid by Page 93 of 99 HC-NIC Page 93 of 99 Created On Tue Sep 19 00:19:59 IST 2017 C/FA/2254/2015 CAV JUDGMENT defendant no. 3 to defendant no. 2 fails to be reasonable.
39. In the deposition of the defendant no. 2, it has been stated that on 22.02.2010, one Rajabhai Shivkumar Kshatriya promised to get a suitable purchaser for the lands which the defendant no. 2 had bought. The appellant - defendant no. 3 came into the picture agreeing to purchase the lands for a consideration of Rs.15,00,000/- and Rs.31,00,000/- respectively. Initially, according to the defendant no. 2, defendant no. 3 paid Rs.5,00,000/-, then Rs.22,00,000/- and Rs.10,00,000/- on 23.03.2010 in cash. A cheque of Rs.6,00,000/- was kept ready. The sale deed was kept ready at Rajkot, as defendant no. 3 - appellant had expressed his inability to come to Ahmedabad and asked the defendant no. 2 to register the same at Ahmedabad.
40. The defendant no. 2 admits in his cross examination that he along with his friend, Rajabhai visited Rajkot on 23.03.2010. They reached Rajkot at 10.00 AM. The stop over at Rajkot was for 15 minutes only, where Veljibhai the appellant - defendant no. 3 had kept the document of sale ready. The sale deed mentioned of a giving of an amount by cheque. The cheque was dated 23.02.2010. The sale deed was executed on the same day. He does not recollect where at Rajkot they met Veljibhai on the roadside. The sale deed handed over at Rajkot was on a stamp paper. Velji was not present when the deed was registered at Ahmedabad.
41. The cross examination of the defendant no. 2 further reveals that the first meeting he had with the defendant no. 3 was at Vaishnodevi temple. The second meeting was at Koba Page 94 of 99 HC-NIC Page 94 of 99 Created On Tue Sep 19 00:19:59 IST 2017 C/FA/2254/2015 CAV JUDGMENT Circle. Veljibhai, the defendant no. 3 had come to give cash of Rs.5,00,000/-. Such amount was not deposited in the bank account. He further states that the defendant no. 3 paid him Rs.46,00,000/- for the two lands. Cheques of Rs.3,00,000/- and Rs.6,00,000/-. He did not recollect for which lands were these cheques issued. Rs.37,00,000/- cash was paid at various places, locations of which he cannot recollect.
42. The gist of evidence suggests that as per the defendant no. 2's own admission, a cheque towards part payment was ready on 23.02.2010. This, therefore, is immediately on the next date of the sale deed between the plaintiffs and the defendant no. 1 on 22.02.2010. The sale deed was kept ready by the defendant no. 3 at Rajkot on the stamp paper. The defendant no. 2 went to Rajkot, met the defendant no. 3 there, on the roadside. On return from Rajkot, at a meeting on the roadside, which lasted only for 15 minutes, the sale deed was registered at Ahmedabad in the absence of defendant no. 3, Velji Mistry. Bank statements at Exh. 152 of the defendant no. 2 show entries of two cheques of Rs.6,00,000/- and Rs.3,00,000/- respectively of 27th July 2017 and return on the same day.
43. All these circumstances make the subsequent transaction suspect. Immediately a day after the execution of the sale deed between the plaintiffs and the defendant no. 1 on 22.02.2010, on 23.02.2010 a cheque is handed over by defendant no. 3 to defendant no. 2. A sale deed is executed on 23.03.2010, within a month. The sale deed, on a stamp paper is kept ready at Rajkot and is exchanged on a roadside at a meeting which lasted for 15 minutes. Same day, in the Page 95 of 99 HC-NIC Page 95 of 99 Created On Tue Sep 19 00:19:59 IST 2017 C/FA/2254/2015 CAV JUDGMENT absence of the purchaser, the deed is executed in Ahmedabad. The manner of carrying out such a transaction of the sale of lands in quick succession raises a serious doubt regarding the genuineness of such a transaction. The entire modus seems suspect and therefore the transaction between the defendant no. 2 and defendant no. 3 on this count also deserves to be declared as invalid.
44. Much has been said in regard to the Affidavit Exh 248 filed by the defendant no.2. This defendant filed such an affidavit rescinding his stand and turned around to support the case of the plaintiffs. According to him ,he was lured into being a part of the transaction. In fact, no Power of Attorney was executed by the plaintiffs in favour of the defendant no. 1. He completely supported the case of the plaintiff. The learned trial judge though did not exclusively rely on such affidavit, he held it to be admissible in evidence, overruling the objection of the defendant no. 1. The defendant no. 2 was also not cross examined on the affidavit.
45. During the course of submissions made by Shri Deven Parikh, he has contended that such an affidavit could not have been held to be admissible in evidence. The affidavit, according to Shri Parikh was in violation of the provisions of Order XIX Rule 1 and Rule 3 of the Code of Civil Procedure. Inviting our attention to paragraph 14 of the judgement in the case of Bareilly Electricity Supply Co.Ltd vs The Workmen (AIR 1972 SC 330) Shri Parikh, in context of the affidavit Exh 248 and provisions of Order XIX Rule 1 and 3 contended that the affidavit could not have been relied upon without the author being put through the test of cross Page 96 of 99 HC-NIC Page 96 of 99 Created On Tue Sep 19 00:19:59 IST 2017 C/FA/2254/2015 CAV JUDGMENT examination. Shri Parikh also relied on the judgement in the case of Quamarul Islam vs S.V.Kanta (AIR 1994 SC 1733- Para 34) in support of his submission that the Learned Trial Judge could not have placed reliance on the Affidavit of the Defendant No.3 Sumanbhai at Exh.248.Shri Parikh relied on the decision in the case of Sudha Devi vs M.P. Narayanan (AIR 1988 SC 1381-Para 4) to contend that affidavits are not evidence as defined under Section 3 of the Evidence Act and therefore could not have been relied upon. Relying on a decision in the case of Gajjan Singh vs. Ram Lok (AIR 1978 Punjab and Haryana 307), Shri Parikh contended that Exh. 248 affidavit of Sumanbhai did not constitute evidence. Such affidavit itself was not evidence and therefore no support could have been drawn from such an affidavit. In support of this, Shri Parikh also relied upon a decision in the case of Ram Ekwal Thakur vs. State of Bihar (AIR 1994 Patna 107). Affidavit Ex. 248, according to Shri Parikh was in breach of the provisions of Order XIX Rule 1 of the Code of Civil Procedure. Case of Tilak Ram Sons vs. State of Punjab (AIR 1973 Punjab and Haryana 359) was also relied upon for the same purpose.
45.1 Order XIX Rule 1 of the Code of Civil Procedure permits the Court to permit the parties to adduce evidence on affidavits. However, such exercise has to be undertaken provided the witness cannot be produced for cross- examination. Such was not the fact in the present case. Defendant No.2 had given his oral evidence. However, at the stage before the defendant no. 3 could be examined, he filed an affidavit resiling from what he stated earlier. He in such Page 97 of 99 HC-NIC Page 97 of 99 Created On Tue Sep 19 00:19:59 IST 2017 C/FA/2254/2015 CAV JUDGMENT an affidavit turned around and supported the case of the plaintiffs. Before this Court, he again through an affidavit read out by way of a Civil Application, said that the affidavit at Exh. 248 was filed under coercion. Serious doubt regarding taking into consideration evidence of such a witness arises. One who approbates and reprobates is not a trusted witness. Exh. 248 therefore could not have been relied upon by the learned Trial Judge. However, we may hasten to add that the findings of the learned Judge are not solely based on such an affidavit and therefore our observations in discarding the affidavit would in no manner persuade us to take a different view.
46. For the reasons stated hereinabove, the judgements and decrees passed by the learned 4th Additional Senior Civil Judge, Gandhinagar dated 24th September 2015 passed in Special Civil Suits No. 89 and 90 of 2010 are confirmed. First Appeals are accordingly dismissed.
(AKIL KURESHI, J.) (BIREN VAISHNAV, J.) FURTHER ORDER:
After pronouncement of the judgement, learned advocate for the appellants requests for extension of the status quo granted earlier by this court. Status quo granted earlier is extended for a period of eight weeks from today.Page 98 of 99
HC-NIC Page 98 of 99 Created On Tue Sep 19 00:19:59 IST 2017 C/FA/2254/2015 CAV JUDGMENT (AKIL KURESHI, J.) (BIREN VAISHNAV, J.) divya Page 99 of 99 HC-NIC Page 99 of 99 Created On Tue Sep 19 00:19:59 IST 2017