Himachal Pradesh High Court
Ram Rattan And Another vs Fateh Singh (Deceased) Through His on 25 April, 2018
Author: Tarlok Singh Chauhan
Bench: Tarlok Singh Chauhan
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA RSA No.525 of 2017.
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Date of decision: 25.04.2018.
Ram Rattan and another .....Appellants/Plaintiffs.
Versus Fateh Singh (deceased) through his LRs Geeta Devi and others ....Respondents/Defendants.
Coram The Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge.
Whether approved for reporting ?1 No For the Appellants : Mr.Ajay Kumar, Senior Advocate with Mr.Gautam Sood, Advocate, For the Respondents : Mr.G.D.Verma, Senior Advocate with Mr.Romesh Verma, Advocate, for respondents No.1 and 2.
Tarlok Singh Chauhan, Judge (Oral).
The plaintiffs are the appellants, who after having lost before both the learned Courts below, have filed the instant appeal. The parties shall be referred to as the plaintiffs and defendant.
2. Briefly stated the facts of the case are that the plaintiffs filed a suit for declaration and permanent prohibitory injunction on the allegations that she was a poor scheduled caste lady, who had been allotted Khasra No. 887/844/2, measuring 3 bighas, situated in Mauza and Pargana Satrol, Tehsil Kandaghat, District Solan,H.P. vide order dated 27.02.1999 by the Collector, Kandaghat on the basis that her family fell in the 'Antodaya Family' category. Over a portion of the land, the 1 Whether reporters of Local Papers may be allowed to see the Judgment ?Yes ::: Downloaded on - 27/04/2018 22:56:04 :::HCHP 2 Panchayat had constructed a link road 'Dhobra to Pangrol' and the defendant (now deceased), who was a clever person, came in contact .
with her for getting no objection from her. When the plaintiff after consulting her sons refused for the same, the defendant informed that she would be paid compensation as the road had already been construction on the spot. On this pretext, she was brought to Kandaghat Tehsil where her thumb impressions were obtained on certain papers. It was only on 06.10.2003, when the son of the plaintiff, Ram Rattan was present in Patwar Circle, Satrol, came to know that mutation pertaining to the suit land had already been sanctioned in favour of the defendant on the basis of some sale deed. This information was imparted by the Naib Tehsildar, Kandaghat. Thereafter, the copy of the sale deed was applied.
It was contended that there was no sale deed executed by the plaintiff and even otherwise no sale consideration had been passed over to the plaintiff and, therefore, the alleged sale was the result of fraud and misrepresentation played by the defendant. It was further claimed that even the possession of the land had not been delivered to the defendant.
It was on these allegations that the plaintiffs filed the suit.
3. The defendant resisted and contested the suit by filing written statement wherein various preliminary objections regarding maintainability, estoppel and inadequacy of court fee etc. were taken. On merits, it was averred that the suit land was allotted to the plaintiff about 24-25 years ago, but she was not residing at Village Satrol and infact was residing at Village Pandali, P.O. Junga, Tehsil Kasumpti, District Shimla. It was denied that the suit land had been allotted to the plaintiff in a manner as alleged by her, rather the land was granted as 'nautor'. The ::: Downloaded on - 27/04/2018 22:56:04 :::HCHP 3 plaintiff out of free will executed the sale deed in favour of the defendant and handed over the possession of the suit land along with the structure .
standing thereupon to the defendant. It was denied that the plaintiff was brought to Kandaghat Tehsil Office so as to enable her to get compensation, rather the plaintiff had due knowledge that in pursuance of the oral agreement to sell, the sale deed in question had to be executed.
4. The learned trial Court initially framed the issues on "1.
r to 05.04.2004 and thereafter on 24.06.2014 framed additional issues which are as under:-
Whether the sale deed dated 19.9.2003 is illegal, null and void? OPP.
1(a). Whether the sale deed dated 19.9.2003 registered as document No.200 is the result of fraud, misrepresentation exercised by the defendant on the plaintiff Smt. Shanti Devi, if so, its effect? OPP.
2. If issue No.1 is proved in favour of the plaintiff, for which relief, she is entitled? OPP.
2(a). Whether there was any bar for transferring of the land in question in favour of defendant as per Himachal Pradesh Common Land Vesting and Utilization Act, if so its effect? OPP.
3. Whether the plaintiff is estopped from filing the suit, as alleged? OPD.
4. Whether the defendant has been put into possession by the plaintiff, if so, its effect? OPD.
5. Relief."
5. The learned trial Court after recording the evidence and evaluating the same dismissed the suit filed by the plaintiffs. The plaintiffs though filed an appeal before the learned first appellate Court, ::: Downloaded on - 27/04/2018 22:56:04 :::HCHP 4 however the same was dismissed, constraining the plaintiffs to file the present appeal.
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6. It is vehemently argued by Shri Ajay Kumar, Senior Advocate, assisted by Shri Gautam Sood, Advocate, for the appellants/plaintiffs that the findings recorded by the learned Courts below are perverse and, therefore, the judgments and decrees passed by them should be set aside.
7. On the other hand, Shri G.D.Verma, Senior Advocate, assisted by Shri Romesh Verma, Advocate, for respondents/defendants No.1 and 2, would contend that no exception can be taken to the judgments and decrees passed by the learned Courts below as the same are based upon correct appreciation of the pleadings, oral and documentary evidence, available on record.
I have heard the learned counsel for the parties and gone through the records of the case.
8. What is 'perverse' was considered by the Hon'ble Supreme Court in a detailed judgment in Arulvelu and another vs. State Represented by the Public Prosecutor and another (2009) 10 SCC 206 wherein it was held as under:-
"26. In M. S. Narayanagouda v. Girijamma & Another AIR 1977 Kar. 58, the Court observed that any order made in conscious violation of pleading and law is a perverse order. In Moffett v. Gough, (1878) 1 LR 1r 331 the Court observed that a perverse verdict may probably be defined as one that is not only against the weight of evidence but is altogether against the evidence. In Godfrey v. Godfrey 106 NW 814, the Court defined `perverse' as turned the wrong way, not right; distorted from the right; turned away or deviating from what is right, proper, correct etc. ::: Downloaded on - 27/04/2018 22:56:04 :::HCHP 5
27. The expression "perverse" has been defined by various dictionaries in the following manner:
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1. Oxford Advanced Learner's Dictionary of Current English Sixth Edition PERVERSE:- Showing deliberate determination to behave in a way that most people think is wrong, unacceptable or unreasonable.
2. Longman Dictionary of Contemporary English - International Edition PERVERSE: Deliberately departing from what is normal and reasonable.
r 3. The New Oxford Dictionary of English - 1998 Edition PERVERSE: Law (of a verdict) against the weight of evidence or the direction of the judge on a point of law.
4. New Webster's Dictionary of the English Language (Deluxe Encyclopedic Edition) PERVERSE: Purposely deviating from accepted or expected behavior or opinion; wicked or wayward; stubborn; cross or petulant.
5. Stroud's Judicial Dictionary of Words & Phrases, Fourth Edition PERVERSE: A perverse verdict may probably be defined as one that is not only against the weight of evidence but is altogether against the evidence.
28. In Shailendra Pratap & Another v. State of U.P. (2003) 1 SCC 761, the Court observed thus: (SCC p.766, para 8 "8...We are of the opinion that the trial court was quite justified in acquitting the appellants of the charges as the view taken by it was reasonable one and the order of acquittal cannot be said to be perverse. It is well settled that appellate court would not be justified in interfering with the order of acquittal unless the same is found to be perverse. In the present case, the High Court has committed an error in interfering with the order of acquittal of the appellants recorded by the trial court as the same did not suffer from the vice of perversity."
29. In Kuldeep Singh v. The Commissioner of Police & Others (1999) 2 SCC 10, the Court while dealing with the scope of Articles 32 and 226 of the Constitution observed as under: (SCC p.14, paras 9-10) ::: Downloaded on - 27/04/2018 22:56:04 :::HCHP 6 "9. Normally the High Court and this Court would not interfere with the findings of fact recorded at the domestic enquiry but if the finding of "guilt" is based on no evidence, it would be a perverse finding and would be amenable to judicial scrutiny.
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10. A broad distinction has, therefore, to be maintained between the decisions which are perverse and those which are not. If a decision is arrived at on no evidence or evidence which is thoroughly unreliable and no reasonable person would act upon it, the order would be perverse. But if there is some evidence on record which is acceptable and which could be relied upon, howsoever compendious it may be, the conclusions would not be treated as perverse and the findings would not be interfered with."
30. The meaning of `perverse' has been examined in H. B. Gandhi, Excise and Taxation Officer-cum- Assessing Authority, Karnal & Others v. Gopi Nath & Sons & Others 1992 Supp (2) SCC 312, this Court observed as under: (SCC pp. 316-17, para 7) "7. In the present case, the stage at and the points on which the challenge to the assessment in judicial review was raised and entertained was not appropriate. In our opinion, the High Court was in error in constituting itself into a court of appeal against the assessment. While it was open to the respondent to have raised and for the High Court to have considered whether the denial of relief under the proviso to Section 39(5) was proper or not, it was not open to the High Court re-appreciate the primary or perceptive facts which were otherwise within the domain of the fact-finding authority under the statute. The question whether the transactions were or were not sales exigible to sales tax constituted an exercise in recording secondary or inferential facts based on primary facts found by the statutory authorities. But what was assailed in review was, in substance, the correctness - as distinguished from the legal permissibility - of the primary or perceptive facts themselves. It is, no doubt, true that if a finding of fact is arrived at by ignoring or excluding relevant material or by taking into consideration irrelevant material or if the finding so outrageously defies logic as to suffer from the vice of irrationality incurring the blame of being perverse, then, the finding is rendered infirm in law."
9. What is 'perverse' has further been considered by this Court in RSA No.436 of 2000, titled 'Rubi Sood and another vs. Major (Retd.) Vijay Kumar Sud and others, decided on 28.05.2015 in the following manner:-
"25..... A finding of fact recorded by the learned Courts below can only be said to be perverse, which has been arrived at without consideration of material evidence or such finding is based on no evidence or misreading of evidence or is grossly erroneous that, if ::: Downloaded on - 27/04/2018 22:56:04 :::HCHP 7 allowed to stand, it would result in miscarriage of justice, is open to correction, because it is not treated as a finding according to law.
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26. If a finding of fact is arrived at by ignoring or excluding relevant material or by taking into consideration irrelevant material or even the finding so outrageously defies logic as to suffer from the vice of irrationality incurring the blame of being perverse, then the finding is rendered infirm in the eye of the law.
27. If the findings of the Court are based on no evidence or evidence, which is thoroughly unreliable or evidence that suffers from vice of procedural irregularity or the findings are such that no reasonable persons would have arrived at those findings, then the findings may be said to be perverse.
28. Further if the findings are either ipse dixit of the Court or based on conjectures and surmises, the judgment suffers from the additional infirmity of non application of mind and thus, stands vitiated."
10. What is 'perversity' came up for consideration before the Hon'ble Supreme Court in Damodar Lal vs.Sohan Devi and others (2016) 3 SCC 78 wherein it was held as under:-
"8. "Perversity" has been the subject matter of umpteen number of decisions of this Court. It has also been settled by several decisions of this Court that the first appellate court, under Section 96 of The Civil Procedure Code, 1908, is the last court of facts unless the findings are based on evidence or are perverse.
9. In Krishnan v. Backiam (2007) 12 SCC 190, it has been held at paragraph-11 that: (SCC pp. 192-93)
"11. It may be mentioned that the first appellate court under Section 96 CPC is the last court of facts. The High Court in second appeal under Section 100 CPC cannot interfere with the findings of fact recorded by the first appellate court under Section 96 CPC. No doubt the findings of fact of the first appellate court can be challenged in second appeal on the ::: Downloaded on - 27/04/2018 22:56:04 :::HCHP 8 ground that the said findings are based on no evidence or are perverse, but even in that case a question of law has to be formulated and framed by the High Court to that effect."
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10. In Gurvachan Kaur v. Salikram (2010) 15 SCC 530, at para 10, this principle has been reiterated: (SCC p. 532) "10. It is settled law that in exercise of power under Section 100 of the Code of Civil Procedure, the High Court cannot interfere with the finding of fact recorded by the first appellate court which is the final court of fact, unless the same is found to be perverse. This being the position, it must be held that the High Court was not justified in reversing the finding of fact recorded by the first appellate court on the issues of existence of landlord-tenant relationship between the plaintiff and the defendant and default committed by the latter in payment of rent."
11. In the case before us, there is clear and cogent evidence on the side of the plaintiff/appellant that there has been structural alteration in the premises rented out to the respondents without his consent. Attempt by the respondent-defendants to establish otherwise has been found to be totally non-acceptable to the trial court as well as the first appellate court. Material alteration of a property is not a fact confined to the exclusive/and personal knowledge of the owner. It is a matter of evidence, be it from the owner himself or any other witness speaking on behalf of the plaintiff who is conversant with the facts and the situation. PW-1 is the vendor of the plaintiff, who is also his power of attorney. He has stated in unmistakable terms that there was structural alteration in violation of the rent agreement. PW-2 has also supported the case of the plaintiff. Even the witnesses on behalf of the defendant, partially admitted that the defendants had effected some structural changes.
12. Be that as it may, the question whether there is a structural alteration in a tenanted premises is not a fact limited to the personal knowledge of the owner. It can be proved by any admissible and reliable evidence. That burden has been successfully discharged by the plaintiff by examining PWs-1 and
2. The defendants could not shake that evidence. In fact, that fact is proved partially from the evidence of the defendants themselves, as an admitted fact. Hence, only the trial court came ::: Downloaded on - 27/04/2018 22:56:04 :::HCHP 9 to the definite finding on structural alteration. That finding has been endorsed by the first appellate court on re-appreciation of the evidence, and therefore, the High Court in second appeal was .
not justified in upsetting the finding which is a pure question of fact. We have no hesitation to note that both the questions of law framed by the High Court are not substantial questions of law.
Even if the finding of fact is wrong, that by itself will not constitute a question of law. The wrong finding should stem out on a complete misreading of evidence or it should be based only on conjectures and surmises. Safest approach on perversity is the classic approach on the reasonable man's inference on the facts. To him, if the conclusion on the facts in evidence made by the court below is possible, there is no perversity. If not, the finding is perverse. Inadequacy of evidence or a different reading of evidence is not perversity.
13. In Kulwant Kaur v. Gurdial Singh Mann (2001) 4 SCC 262, this Court has dealt with the limited leeway available to the High Court in second appeal. To quote para 34: (SCC pp.278-79) "34. Admittedly, Section 100 has introduced a definite restriction on to the exercise of jurisdiction in a second appeal so far as the High Court is concerned. Needless to record that the Code of Civil Procedure (Amendment) Act, 1976 introduced such an embargo for such definite objectives and since we are not required to further probe on that score, we are not detailing out, but the fact remains that while it is true that in a second appeal a finding of fact, even if erroneous, will generally not be disturbed but where it is found that the findings stand vitiated on wrong test and on the basis of assumptions and conjectures and resultantly there is an element of perversity involved therein, the High Court in our view will be within its jurisdiction to deal with the issue. This is, however, only in the event such a fact is brought to light by the High Court explicitly and the judgment should also be categorical as to the issue of perversity vis-à-vis the concept of justice. Needless to say however, that perversity itself is a substantial question worth adjudication -- what is required is a categorical finding on the part of the High Court as to perversity. In this context reference be had to Section 103 of the Code which reads as below:
'103. Power of High Court to determine issues of fact.- In any second appeal, the High Court may, if the evidence on the record is sufficient, determine any issue necessary for the disposal of the appeal,--::: Downloaded on - 27/04/2018 22:56:04 :::HCHP 10
(a) which has not been determined by the lower appellate court or by both the court of first instance and the lower appellate court, or .
(b) which has been wrongly determined by such court or courts by reason of a decision on such question of law as is referred to in Section 100."
The requirements stand specified in Section 103 and nothing short of it will bring it within the ambit of Section 100 since the issue of perversity will also come within the ambit of substantial question of law as noticed above. The legality of finding of fact cannot but be termed to be a question of law. We reiterate however, that there must be a definite finding to that effect in the judgment of the High Court so as to make it evident that Section 100 of the Code stands complied with."
14. In S.R. Tiwari v. Union of India (2013) 6 SCC 602, after referring to the decisions of this Court, starting with Rajinder Kumar Kindra v. Delhi Administration, (1984) 4 SCC 635, it was held at para 30: (S.R.Tewari case6, SCC p. 615) "30. The findings of fact recorded by a court can be held to be perverse if the findings have been arrived at by ignoring or excluding relevant material or by taking into consideration irrelevant/inadmissible material. The finding may also be said to be perverse if it is "against the weight of evidence", or if the finding so outrageously defies logic as to suffer from the vice of irrationality. If a decision is arrived at on the basis of no evidence or thoroughly unreliable evidence and no reasonable person would act upon it, the order would be perverse. But if there is some evidence on record which is acceptable and which could be relied upon, the conclusions would not be treated as perverse and the findings would not be interfered with. (Vide Rajinder Kumar Kindra v. Delhi Admn. [(1984) 4 SCC 635 : 1985 SCC (L&S) 131 : AIR 1984 SC 1805] , Kuldeep Singh v. Commr. of Police [(1999) 2 SCC 10 : 1999 SCC (L&S) 429 : AIR 1999 SC 677] , Gamini Bala Koteswara Rao v. State of A.P. [(2009) 10 SCC 636 : (2010) 1 SCC (Cri) 372 : AIR 2010 SC 589] and Babu v. State of Kerala[(2010) 9 SCC 189 : (2010) 3 SCC (Cri) 1179] .)"
This Court has also dealt with other aspects of perversity.
15. We do not propose to discuss other judgments, though there is plethora of settled case law on this issue. Suffice to say that the approach made by the High Court has been wholly wrong, if not, perverse. It should not have interfered with concurrent findings of the trial court and first appellate court on a pure question of fact. Their inference on facts is certainly reasonable. The strained effort made by the High Court in second appeal to arrive at a different finding is wholly unwarranted apart from being impermissible ::: Downloaded on - 27/04/2018 22:56:04 :::HCHP 11 under law. Therefore, we have no hesitation to allow the appeal and set aside the impugned judgment of the High Court and restore that of the trial court as confirmed by the appellate court."
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11. Now, in order to ascertain and finding out whether there is perversity in the judgments passed by the learned Courts below, I would cursorily refer the evidence led by the parties.
12. PW-1 Ram Rattan furnished his evidence by way of affidavit Ex.PW1/A wherein he reiterated the contents of the plaint. He also tendered certificate issued by the Collector, Kandaghat, Mark-B, jamabandi for the year 1996-97 Ex.PW1/B and copy of mutation Ex.PW1/C. In his cross examination, he stated that he had seen the sale deed Ex.D-1 wherein his mother's photographs appear in red circle 'A', photographs of Fateh Singh appear in red circle 'B', whereas, photographs of his mother, brother Asha Ram, Kanungo Ram Rattan, Fateh Singh and Rama Nand appear in red circle 'C'. He stated that he was having three bighas of land at Village Satrol and except this, he was not having any land there. Shanti Devi died in the year 2007, while the land had been allotted in her favour in the year 1979. He admitted that they were not residing in the houses standing over the land as the same were in a dilapidated condition. He stated that his house was at a distance of 1/2 kilometer from the disputed land. The road was constructed by the defendant from 'Dogra to Panchol' in the year 2003 and about one bigha of land had been utilized for construction of the road. He denied that his mother out of her free will and volition had sold the suit land to the defendant Fateh Singh (now deceased) for a sale ::: Downloaded on - 27/04/2018 22:56:04 :::HCHP 12 consideration of Rs.20,000/-. He also denied the possession having been delivered to the defendant.
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13. PW-2 Liaq Ram furnished his evidence by way of his affidavit Ex.PW2/A and would claim that the suit land is still in possession of the plaintiffs and had not been sold to the defendant. In his cross examination, he stated that prior to lease, Ram Rattan was having one bigha of land and denied that Shanti Devi had sold the land vide sale deed No.200 in favour of the defendant on 19.09.2003. He, however, admitted that the house standing over the suit land was in a dilapidated condition and some part thereof had fallen off.
14. On the other hand, defendant examined DW-1 Hima Nand, Junior Assistant from Tehsil Office, Kandaghat, to prove the sale deed Ex.D-1
15. DW-2 Daulat Ram Chandel, Tehsildar, who remained posted with effect from 2003 to 2005 in the Office of Tehsildar, Kandaghat, stated that sale deed Ex.D-1 had been executed by Shanti Devi, who was produced before him for registration. He had asked Shanti Devi about the sale deed and she admitted the contents thereof to be correct and even receiving sale consideration of Rs.20,000/-. Thereafter, he registered the sale deed and photographs were also taken. Further, he stated that he remembered the fact that Shanti Devi had received the consideration amount at her home.
16. DW-3 Fateh Singh has furnished his evidence by way of Ex.DW3/A and reiterated the contents of written statement. He stated that he had seen sale deed Ex.D-1 wherein his photographs were encircled in circle 'B' while in red circle 'A' therein were the photographs ::: Downloaded on - 27/04/2018 22:56:04 :::HCHP 13 of Shanti and his signatures to that effect were in circle 'G' and 'H'. He admitted in his cross examination that the land was allotted to Shanti Devi .
by the Government. Further, stated that the houses standing on the suit land were not habitable and proved Ex.PX-1 to PX-3. DW-3 stated that he had paid the sale consideration two days prior to the registration to Shanti Devi, who had been residing in the house of Gita Ram. At that time, Rama Nand Shandil and Asha Ram were also present. He further
17.
r to stated that he had withdrawn this amount of Rs.20,000/- from his GPF account.
DW-4 Rama Nand Shandil is a witness to sale deed and DW-5 Ram Saran is the identifier of the sale deed Ex.D-1 and they have furnished their evidence by way of affidavits to this effect vide Ex.DW4/A and Ex.DW5/A.
18. DW-6 Gagan Bhardwaj is a deed writer, who scribed the sale deed Ex.D-1 in the presence of Asha Ram and Rama Nand. The sale deed was entered at Sr.No.304 in his register on 19.09.2003.
19. DW-7 Jagdish Chand an official from the D.C. Office, Solan, proved letter Ex.DW7/A and in terms whereof the land which was allotted to the person could not be sold till the life time of his wife. This in entirety is the evidence led by the parties.
20. Evidently, the entire claim in the suit filed by the plaintiffs was based on the plea of fraud, however, the same has not been specifically pleaded as is required under Order 6 Rule 4 CPC.
::: Downloaded on - 27/04/2018 22:56:04 :::HCHP 1421. The allegations as levelled do not meet and rather fall short .
of the requirement of Rule 4 of Order 6 C.P.C., which reads as under:-
"4. Particulars to be given where necessary.- In all cases in which the party pleading relies on any misrepresentation, fraud, breach of trust, wilful default, or undue influence, and in all other cases in which particulars may be necessary beyond such as are exemplified in the forms aforesaid, particulars (with dates and items if necessary) shall be stated in the pleading."
22. It is clearly evident from the aforesaid provision that as per Rule 4, particulars with dates and items are clearly required to be stated in the pleading inter alia in cases of misrepresentation, fraud, breach of trust, willful default or undue influence. The object of insisting on these particulars is two fold:
(i) It enables the opposite party to know the case he has to meet with; and
(ii) It prevents the issue being enlarged and enables the court to determine the controversy at the earliest.
'Fraud' is obtaining of an advantage by unfair or wrongful means.
23. Under this rule, where fraud is alleged, necessary particulars have to be set out and stated in the pleadings which must be clear, definite, express and specific. It is not enough to allege fraud without stating particulars with dates and items as to such fraud. General allegations, however strong, if unaccompanied by sufficient particulars, are not enough and the Court will not take notice.
24. The plaintiffs apart from using the word "fraudulent/misrepresentation" have not given any specific particulars ::: Downloaded on - 27/04/2018 22:56:04 :::HCHP 15 regarding fraud and misrepresentation and it is more than settled that a vague or general plea can never serve this purpose of Order 6 Rule 4 .
CPC and the party pleading must therefore be required to plead the precise nature of the influence exercised, the manner of use of the influence and the unfair advantage obtained by the other.
25. Reference in this regard can conveniently be made to the judgment of the Hon'ble Supreme Court in Subhas Chandra Das "10.
r to Mushib v. Ganga Prosad Das Mushib and others AIR 1967 SC 878 wherein it was held as under:
Before, however a court is called upon to examine whether undue influence was exercised or not, it must scrutinize the pleadings to find out that such a case has been made out and that full particulars of undue influence have been given as in the case of fraud. See Order 6 Rule 4 of the Code of Civil Procedure. This aspect of the pleading was also given great stress in the case of Ladli Prasad Jaiswal (1964) 1 SCR 270: (AIR 1963 SC 1279) above referred to. In that case it was observed (at p. 295 of SCR):
(at p. 1288 of AIR):
"A vague of general plea can never serve this purpose; the party pleading must therefore be required to plead the precise nature of the influence exercised, the manner of use of the influence, and the unfair advantage obtained by the other."
"25. There was practically no evidence about the domination of Balaram over Prasanna at the time of the execution of the deed of gift or even thereafter. Prasanna, according to the evidence, seems to have been a person who was taking an active interest in the management of the property even shortly before his death.
The circumstances obtaining in the family in the year 1944 do not show that the impugned transaction was of such a nature as to shock one's conscience. The plaintiff had no son. For a good many years before 1944 he had been making a living elsewhere. According to his own admission in cross-examination, he owned a ::: Downloaded on - 27/04/2018 22:56:04 :::HCHP 16 jungle in his own right (the area being given by the defendant as 80 bighas) and was therefore possessed of separate property in which his brother or nephew had no interest. There were other .
joint properties in the village of Parbatipur which were not the subject matter of the deed of gift. It may be that they were not as valuable as the Lokepur properties. The circumstances that a grandfather made a gift of a portion of his properties to his only grandson a few years before his death is not on the face of it an unconscionable transaction. Moreover, we cannot lose sight of the fact that if Balaram was exercising undue influence over his father he did not go to the length of having the deed of gift in his own name. In this he was certainly acting very unwisely because it was not out of the range of possibility that Subhas after attaining majority might have nothing to do with his father."
26. It shall be apt to make reference to the judgment of the Hon'ble Supreme Court in Afsar Shaikh and another v. Soleman Bibi and others AIR 1976 Supreme Court, 163, wherein the Hon'ble Supreme Court has held as under:
"15. While it is true that 'undue influence', 'fraud', 'misrepresentation' are cognate vices and may, in part, overlap in some cases, they are in law distinct categories, and are in view of Order 6, Rule 4, read with Order 6, Rule 2 of the Code of Civil Procedure, required to be separately pleaded, with specificity, particularity and precision. A general allegation in the plaint, that the plaintiff was a simple old man of ninety who had reposed great confidence in the defendant, was much too insufficient to amount to an averment of undue influence of which the High Court could take notice, particularly when no issue was claimed and no contention was raised on that point at any stage in the trial court, or, in the first round, even before the first appellate court."
27. In Sukhdei (Smt.) (dead) by LRs vs. Bairo (dead) and others (1999) 4 SCC 262, the Hon'ble Supreme Court held that while pleading fraud, particulars necessary for establishing the same should be ::: Downloaded on - 27/04/2018 22:56:04 :::HCHP 17 specifically stated in the plaint and it was further held that findings on a question of fraud concurrently arrived at by the Courts below should not .
be interfered with by the High Court while exercising power under Section 100 of CPC. The aforesaid Rule is mandatory and no departure from the Rule is permissible while leading evidence. As regards the plea of misrepresentation, the same means wrong, false or misleading representation.
28. Yet again on the subject, reference to a judgment rendered by this Court in Upasna and others vs. Omi Devi, 2001 (2) Current Law Journal (H.P.) 278 is also essential as the law on the subject was lucidly dealt and it was held as under:
"............The allegation of fraud, coercion and undue influence could not be proved by the plaintiffs and as such both the courts below have rightly held that the plaintiffs have failed to prove that the gift deed was as a result of fraud, coercion and undue influence. The possession of the land in dispute was given to the defendant and the mutation of entry in the revenue record in her name was made by the Patwari in the presence of Beli Ram during his life time. The execution of the gift deed was the personal right of the donor and since Beli Ram had not assailed the gift made by him in favour of the defendant during his life time, the plaintiffs have failed to establish that the donee had not rendered any service to the donor during his life time. The gift has been validly made by the donor in favour of the donee voluntarily and with his free will and accepted by the donee it cannot be said that the gift was induced by undue influence under Section 16 (2) & (3) of the Indian Contract Act, 1872 and was as a result of fraud as defined under Section 1 of the Act. The ratio of the judgment in Ladli Parshad Jaiswal v. The Karnal Distillery Co., Ltd. Karnal & Ors., AIR 1963 Supreme Court 1279 strongly relied on by the learned counsel for the plaintiffs in my view does not advance the case of the plaintiffs that the gift in question was as a result of ::: Downloaded on - 27/04/2018 22:56:04 :::HCHP 18 undue influence under S. 16 (2) & (3) of the Contract Act, 1872. In Subhas Chandra Das Mushib v. Ganga Prasad Das Mushib & Ors., AIR 1967 Supreme Court 878, it has been observed that law .
under Section 122 of the Transfer of Property Act, 1882 as to undue influence is the same in case of a gift inter vivos as in case of a contract. It has further been held that the court trying a case of undue influence under Section 16 of the Contract Act, 1872 must consider two things to start with, namely, (1) are the relations between the donor and the donee such that the donee is in a position to dominate the will of the donor, and (2) has the donee used that position to obtain an unfair advantage over the donor? Upon the determination of these issues a third point emerges, which is that or the onus probandi. If the transaction appears to be unconscionable, then the burden of proving that the contract was not induced by undue influence is to lie upon the person who was in a position to dominate the will of the other. The judgment further proceeded to observe that merely because the parties were nearly related to each other or merely because the donor was old or of weak character, no presumption of undue influence can arise. In this view of the matter, as noticed hereinabove, the plaintiffs have miserably failed to establish that the gift deed was executed by donor in favour of the donee under undue influence or fraud......"
29. The question whether a particular transaction is vitiated on the ground of undue influence, fraud and misrepresentation etc. is primarily a decision on a question of fact as was held by the Privy Council in Satgur Prasad versus Har Narain Das, A.I.R. 1932 Privy Council 89 wherein it was observed that in a suit for setting aside a deed on the ground that it was procured by undue influence and fraud, the finding as to undue influence and fraud is a finding of pure fact and in appeal the concurrent finding of fact by the lower Courts will not be disturbed unless ::: Downloaded on - 27/04/2018 22:56:04 :::HCHP 19 it is shown that there has been a miscarriage of justice or violation of any principle of law.
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30. The ratio laid down in Satgur Prasad's case (supra) was relied upon with approval by a Constitution Bench of the Hon'ble Supreme Court in Ladli Parshad Jaiswal versus The Karnal Distillery Co. Ltd., Karnal and others, AIR 1963 SC 1279 and it was observed as under:-
"19. Whether a particular transaction was vitiated on the ground of undue influence is primarily a decision on a question of fact. In Satgur Prasad v. Har Narain Das, 59 Ind App 147: (AIR 1932 PC
89) the Privy Council held that in a suit to set aside a deed on the ground that it was procured by undue influence and fraud, the finding that it was so procured is a finding of fact and is not liable to be reopened if fairly tried. Under the Civil Procedure Code, a second appeal does not lie to the High Court, except on the grounds specified in the relevant provisions of the Code, prescribing the right to prefer a second appeal, and the High Court has no jurisdiction to entertain a second appeal "on the ground of an erroneous finding of fact however gross or inexcusable the error may seem to be" (Mt.Durga Choudhrain v.
Jawahir Singh Choudhri, 17 Ind App 122(PC). But the challenge before Bishan Narain, J., to the decision of the District Judge was founded not on the plea that appreciation of evidence was erroneous, but that there were no adequate particulars of the plea of undue influence, that the particulars of facts on which undue influence was held established by the District Judge were never set up, that there was no evidence in support of the finding of the District Judge and that burden of proof on a misconception of the real nature of the dispute was wrongly placed on the plaintiff. A decision of the first appellate Court reached after placing the onus wrongfully or based on no evidence, or where there has been substantial error or defect in the procedure, producing error or defect in the decision of the case on the merits, is not conclusive and a second appeal lies to the High Court against that decision."
::: Downloaded on - 27/04/2018 22:56:04 :::HCHP 2031. Similar reiteration of law can be found in the subsequent judgment of the Hon'ble Supreme Court in Bellachi (dead) by LRS.
.
versus Pakeeran, (2009) 12 SCC 95 and in a judgment of this Court in Smt. Padma Devi & Anr. versus Smt. Soma Devi, AIR 2011 HP 98.
32. Apart from lack of pleadings, even the evidence in support of plea of fraud is virtually missing.
33. Adverting to the statements of one of the plaintiff Ram Rattan, this witness in his cross examination has categorically admitted that sale deed Ex.D-1 had been executed by Smt. Shanti Devi. He further identified his mother, the defendant and the persons, who were present there at the time of execution of the sale deed. That apart, the sale deed otherwise stands duly proved by the Tehsildar, who was examined as DW-2. This document also stands established in the testimony of DW-4 Rama Nand Shandil, witness to the sale deed and identifier DW-5 Ram Saran and deed writer, who appeared as DW-6, in his statement has categorically stated that on 19.09.2003 he had written the sale deed as per directions of Smt. Shanti Devi in favour of defendant Fateh Singh.
After writing this deed, he had read over its contents before Smt. Shanti Devi and Fateh Singh in presence of witnesses Asha Ram and Rama Nand. Thereafter, Smt. Shanti Devi after admitting the contents to be correct had put her thumb impressions on the sale deed and thereafter the witnesses had also put their signatures on the document. He entered the sale deed at Sr.No.304 in his register. He further stated that Smt.Shanti Devi had told him that she had received the amount of sale consideration at her home. More specifically, even these witnesses were ::: Downloaded on - 27/04/2018 22:56:04 :::HCHP 21 cross examined at length by the plaintiffs, but nothing material could be elicited therefrom so as to discredit their testimonies.
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34. Since, the findings recorded by both the learned Courts below are pure findings of fact, therefore, no question of law much less substantial question of law arises for consideration.
35. Accordingly, there is no merit in this appeal and the same is dismissed, alongwith all pending applications.
th 25 April, 2018.
(krt)
r to ( Tarlok Singh Chauhan )
Judge
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