Himachal Pradesh High Court
Sohan Lal vs Ghanshyam on 4 May, 2016
Author: Tarlok Singh Chauhan
Bench: Tarlok Singh Chauhan
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
R.S.A. No. 47 of 2016
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Date of decision: 4th May, 2016
Sohan Lal ..... Appellant/Plaintiff
Versus
Ghanshyam ....Respondent/Defendant
of
Coram
The Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge.
rt
Whether approved for reporting ?1 Yes
For the Appellant : Mr. S. C. Sharma, Advocate.
For the Respondent : Mr. Amrinder Singh Rana, Advocate.
Tarlok Singh Chauhan, Judge (Oral)
This Regular Second Appeal has been preferred against the concurrent findings of fact recorded by the learned Courts below whereby the suit of the appellant/plaintiff (hereinafter referred to as the 'plaintiff') for cancellation of the sale deed came to be dismissed.
2. The plaintiff filed a suit for cancellation of sale deed on the ground that on 10.6.2013 he entered into a written agreement with the respondent/defendant (hereinafter referred to as the 'defendant') on certain terms and conditions and agreed to sell one bigha out of khasra No. 326/2, measuring 4-5 bighas, situated in Mauza Shattal, Pargana Bochali, Tehsil and District Solan, H.P. The sale consideration was fixed at `70,000/-, out of which, `50,000/- was paid and the remaining `20,000/- was to be paid lateron. The defendant after obtaining the 1 Whether reporters of Local Papers may be allowed to see the Judgment ?Yes ::: Downloaded on - 15/04/2017 20:16:19 :::HCHP 2 revenue papers got the sale deed executed on 5.8.2005 which was got drafted from the document writer and signatures of the plaintiff were also .
obtained on the said sale deed before the Sub Registrar on the pretext that the sale was only for one bigha of the land, whereas the sale deed was executed qua 1-18 bighas for a consideration of ` 80,000/-. The plaintiff claimed to have learnt about this fact in the first week of March, of 2006 when he applied for certified copy of the sale deed. The plaintiff claims himself to be an illiterate person and not knowing English and rt claimed that fraud had been practiced upon him when he was made to sell 1-18 bighas instead of 1 bigha. On the basis of these averments, the plaintiff prayed for declaration to the effect that sale deed was a result of fraud practised upon him and injunction by way of consequential relief was also prayed for.
3. The suit was resisted and contested by the defendant and it was averred that the sale deed had been executed as per the intention of the plaintiff and had been scribed as per his version and thereafter registered in accordance with law. The sale deed was duly read over and explained to the plaintiff not only by the document writer but even by the Sub Registrar before registering the same. It was further alleged that the plaintiff had been adopting the same tactics with other persons to whom he had sold the land and had therefore, come to the Court with un-cleaned hands. It was further averred that the entire sale consideration had been paid to the plaintiff and it was the defendant thereafter who is in possession of the suit land. The defendant accordingly prayed for dismissal of the suit.
::: Downloaded on - 15/04/2017 20:16:19 :::HCHP 34. The plaintiff filed replication wherein he re-affirmed the averments as set out in the plaint while denying the defence as set out in .
the written statement.
5. On 25.9.2012 the learned trial Court framed the following issues:
1. Whether the sale deed dated 5.8.2005 alleged to have been of executed by defendant is a result of fraud and cheating, as alleged? OPP
2. Whether the aforesaid sale deed is wrong, illegal, null and rt void? OPP
3. Whether the aforesaid sale deed is liable to be cancelled?
OPP
4. Whether plaintiff is entitled for the relief of possession in alternative? OPP
5. Whether the plaintiff is entitled for the relief of injunction?
OPP
6. Whether the defendant is in possession of suit land? OPD
7. Relief.
6. After recording the evidence led by the parties and evaluating the same, the learned trial Court dismissed the suit constraining the plaintiff to file appeal before the learned lower Appellate Court, which too, met with the same fate and undeterred, the plaintiff has filed the present appeal on the same grounds as have been set out in the plaint.
I have heard learned counsel for the parties and have gone through the records of the case carefully and meticulously.
::: Downloaded on - 15/04/2017 20:16:19 :::HCHP 47. In order to prove his case, the plaintiff examined himself as PW-1 and furnished his evidence by way of affidavit Ex.PW-1/A. In the .
affidavit, he stated that he got executed an agreement dated 10.6.2003 with the defendant for selling land measuring 1 bigha for a sale consideration of `70,000/-, out of which he had received `50,000/-, while remaining `20,000/- was to be paid at the time of registration of the sale of deed. On 5.8.2005, the defendant got prepared a sale deed and obtained his signatures without reading over the document to him and presented it rt before the Sub Registrar and got executed the sale deed. Lateron, in the month of March, 2006 he came to know that the defendant had played fraud with him by purchasing 1-18 bighas of land for consideration of `80,000/-, which he never intended to sell, that too, at the given rate.
8. However, in his cross-examination, the plaintiff admitted that on the same date he had also got executed another sale deed in favour of Ved Parkash against whom also he had filed a civil suit with similar allegation. He also admitted that in the year 2005, he had submitted objections through his wife with respect to the sanction of mutation on the basis of the sale deed. He also admitted that he had earlier executed an agreement on 9.5.2002 with the defendant. He further admitted that the aforesaid agreement did not materalise and, therefore, he sold some other land to the defendant. He admitted that S/Shri Satish and Suresh were witnesses of the sale deed and had no enmity with them. He further admitted his signature on the sale deed and also admitted that he had put his signature on the sale deed in the presence of deed writer and the aforesaid witnesses. He also admitted that the Registrar had obtained his signatures on Ex.DA/1 under red circle 'A' and his signatures were ::: Downloaded on - 15/04/2017 20:16:19 :::HCHP 5 obtained before document writer in the sale deed in red circle 'B'. He also got examined PW-2 Devinder Singh as witness to the agreement .
Ex.PW-1/D.
9. On the other hand, the defendant in order to disprove the claim of the plaintiff appeared as DW-2 and tendered his evidence Ex.DW-2/A. In his affidavit, he had categorically stated that on 5.8.2005, of the deed writer Shiv Ram Bhatia, on the instructions of the plaintiff, scribed the sale deed of land measuring 1-18 bighas in favour of the rt defendant in the presence of witnesses Satish Chand and Suresh Kumar.
After writing the sale deed, the same was read over and explained by the deed writer to the plaintiff in the presence of the witnesses. It was only thereafter that the plaintiff put his signatures on it and thereafter the sale deed was also signed by the witnesses. An amount of `80,000/-, had already been paid earlier to the plaintiff at his house. The sale deed was thereafter presented before the Sub Registrar by the plaintiff and at that time two witnesses and Lambardar Yash Pal were present there. The plaintiff put his signature before the Sub Registrar after he had read over the contents of the sale deed to him and plaintiff admitted the same to be true and correct. He further stated that the plaintiff had failed to execute the agreement earlier entered on 10.6.2003 and further failed to honour another agreement which was entered on 9.5.2002 and pertained to sale of 8 biswas of land with the defendant but this land was subsequently sold to other persons. He also stated that the wife of the plaintiff had also filed objections at the time of the sanction of the mutation in the year 2005.
::: Downloaded on - 15/04/2017 20:16:19 :::HCHP 610. The only material question put to this witness during the course of his cross-examination was regarding the sale deed having not .
been read over to the plaintiff by the deed writer, but this suggestion was denied by the plaintiff.
11. Shiv Ram Bhatia, document writer in his affidavit Ex.DW-3/A categorically stated that on 5.8.2005 the plaintiff had got prepared a sale of deed of land measuring 1-18 bighas in favour of the defendant after he had earlier received `80,000/- from the defendant at his home. He typed rt the sale deed at the instance of the plaintiff in the presence of the witnesses Satish and Suresh Kumar. After typing it in the presence of the plaintiff and the witnesses, he read over the sale deed to the plaintiff, who admitted it to be correct and thereafter put his signature in English in the presence of the witnesses. After typing the sale deed, he handed over the same to the plaintiff, who presented it before the Sub Registrar in the presence of Lambardar and the defendant.
12. The only suggestion to this witness in the cross-examination was that the sale deed Ex.DA/1 had not been read over to the plaintiff, but this suggestion was denied by the witness.
13. Suresh Kumar the witness to the sale deed was examined as DW-4, who in his evidence by way of affidavit Ex.DW-4/A, reiterated that on 5.8.2005 the plaintiff accompanied by the other witness Satish met him at Tehsil office. The plaintiff had stated that he wanted to execute a sale deed of land measuring 1-18 bighas in favour of the defendant as he had already received a sum of `80,000/- towards its sale consideration at his house from the defendant and had asked him to be a witness. He further stated that Shiv Ram Bhatia a document writer on the asking of ::: Downloaded on - 15/04/2017 20:16:19 :::HCHP 7 the plaintiff had prepared the sale deed as per his desire and after preparing the same it was read over to the plaintiff, who admitted it to be .
correct and put his signature in English in his presence as also in the presence of other witness Satish.
14. In his cross-examination, the witness clarified that upon asking by the Tehsildar regarding the extent of the land to be sold, the of plaintiff had duly answered that he had sold land measuring 1-18 bighas in favour of the defendant. He reiterated and re-asserted in his cross-
rt examination that the sale deed had been typed in his presence.
15. It is more than settled that heavy burden of proof lies upon a person impugning transaction to show that the transaction was a sham or fraudulent one. It is not a case where a party did not intend to enter into any transaction at all because admittedly, the parties had already entered into two transactions earlier to the one involved in the present lis. It is also not in dispute that a transaction did take place. Only the nature of transaction is in issue.
16. A distinction must therefore be borne in mind in regard to the nominal nature of a transaction which is no transaction in the eye of the law at all and the nature and character of a transaction as reflected in a deed of conveyance. The parties entered into an agreement as a result whereof, the defendant was put in possession and, therefore, in such circumstances, it was incumbent upon the plaintiff to have led clear, cogent and convincing evidence regarding the sale deed being vitiated by fraud.
17. In Ningawwa vs. Byrappa Shiddappa Hireknrabar AIR 1968, SC 956, the Hon'ble Supreme Court held as under:
::: Downloaded on - 15/04/2017 20:16:19 :::HCHP 8"27. There is a presumption that a registered document is validly executed. A registered document, therefore, prima-facie would .
be valid in law. The onus of proof, thus, would be on a person who leads evidence to rebut the presumption. In the instant case, Respondent 1 has not been able to rebut the said presumption."
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18. Indisputably, the sale deed in question is a registered one and is presumed to have been validly executed and the onus of proof, will rt be on those, who want to off-set the above presumption.
19. In Prem Singh vs. Birbal (2006) 5 SCC 353, it was held as under:
"27. There is a presumption that a registered document is validly executed. A registered document, therefore, prima-facie would be valid in law. The onus of proof, thus, would be on a person who leads evidence to rebut the presumption. In the instant case, respondent No.1 has not been able to rebut the said presumption."
20. In Vimal Chand Ghevarchand Jain and others vs. Ramakant Eknath Jadoo (2009) 5 SCC 713, the Hon'ble Supreme Court held that registered sale deed is presumed to be valid unless the contrary is proved. The onus is on the person who challenges the same to show that it is either not acted upon or is a sham transaction.
21. It would also be noticed that the plaintiff has miserably failed to prove the plea of fraud. It is well settled that the plea of fraud must be specifically proved and cannot be based on mere suspicion. The party alleging fraud is to establish it beyond reasonable doubt with cogent evidence and suspicion cannot be accepted as proof. Fraud like any ::: Downloaded on - 15/04/2017 20:16:19 :::HCHP 9 other charge of a criminal offence whether made in civil or criminal proceedings, must be established beyond reasonable doubt and same .
cannot therefore be based on suspicion and conjecture.
22. The findings recorded by the learned Courts below are pure findings of fact which are normally not open to interference by this Court in exercise of its power under Section 100 of the Code of Civil Procedure.
of No question of law much less substantial question of law arise for consideration and consequently, there is no merit in this appeal and the rt same is accordingly dismissed, leaving the parties to bear their own costs. Pending application(s), if any, also stands disposed of.
( Tarlok Singh Chauhan )
May 4, 2016 Judge.
(GR)
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