Madhya Pradesh High Court
Balram Kirar Through L.Rs. vs Ram Krishna And Anr. on 23 January, 2002
Equivalent citations: AIR2002MP139, 2002(2)MPHT529
JUDGMENT P.C. Agrawal, J.
1. This is a plaintiffs second appeal under Section 100 of the Code of Civil Procedure (to be called as "Code" only).
2. Balram Kirar (since deceased.-L.Rs. brought on record to be called as plaintiff only), on 28-8-78 filed a civil suit for declaration that document dated 9-1-67 is not a sale deed but is a mortgage deed and for possession of agricultural land Khasra No. 4 area 27.62 situate in Village Ghograpura Khakrapura, District Hoshangabad. As per plaint the plaintiff was in need of money and had approached Ram Ratan (R-2) for taking loan on which Ram Ratan insisted that the plaintiff has to mortgage his land. Ram Ratan (R-2) is a money lender who advances loan to villagers and gets executed sale deeds of their lands. On 9-1-67 the plaintiff went to the Sub-Registrar's Office, Hoshangabad and Ram Ratan (R-2) got his thumb mark on certain papers without reading over the contents thereof. It was agreed between the parties that Ram Ratan (R-2) would take the usufruct of the land and trees in lieu of interest. On 0.70 acre of land on which the house and bada of plaintiff was situated was to remain in possession of the plaintiff. Later in year 1975, plaintiff several times approached Ram Ratan (R-2) to return the money which was avoided by him and thus this suit had to be filed. Market value of the land and trees was about Rs. 64,000/-. Ram Ratan (R-2) had got mutated the name of his son Ram Krishna (R-1) only on 24-10-77. Plaintiff could come to know about the fraud committed by Ram Ratan (R-2) on 20-7-78 when he obtained a copy of the deed that by committing fraud on him instead of mortgage deed a sale deed was got executed by Ram Ratan (R-2).
3. The respondent Nos. 1 and 2 in their joint written statement claimed that the plaintiff had sold his land as he required money to repay the Government loan. Plaintiff wanted to shift to District Sehore where he had to purchase land. The suit land was of poor nature, unproductive and valueless. Plaintiff had never proposed to take loan or execute any agreement. No such term was settled that the respondent Nos. 1 and 2 shall be taking usufruct of the lands and trees in lieu of interest. Plaintiff was not to retain possession of 0.70 acre of land. Possession of whole was handed over to these respondents. Plaintiff had never tendered the amount of Rs. 1,500/-. Ram Ratan (R-2) is not a money lender. Value of suit land or trees grown on it was not Rs. 64,000/-. It was also claimed that the plaintiff should pay advalorem Court fees on such value of lands and trees as claimed by him. The land was so poor that its land revenue was only Re. 0.25 per acre. Trees standing thereon were young. The respondent Nos. 1 and 2 have invested money in improvement of the land. The suit was barred by limitation.
4. The Trial Court found that :--
(1) the impugned document is not mortgage deed;
(2) no fraud could be proved by the plaintiff;
(3) plaintiff had not to retain his possession on 0.70 acre of land; and (4) suit was barred by limitation;
and thus civil suit was dismissed. The First Appellate Court has also confirmed all these findings of the Trial Court.
5. In this second appeal on 22-8-97 has applied under Order 41 Rule 27 of the Code to take certain documents on record as additional evidence. Proposed documents relate to an application by Ram Krishna (R-1) for grant of Patta of land representing himself to be landless person. The advocate has argued that Ram Krishna (R-l) by admitting that he was landless and by applying for grant of Patta admits that the impugned sale deed has not conferred any title in him. The advocate relied upon National Insurance Company Limited v. Shanker Singh, 1996 (I) MPWN 177, wherein documents having material bearing on points in issue were taken on record in first appeal and Ranjit Singh v. Amar Singh, 1996 (I) MPWN 203, wherein additional evidence was taken on record in the interest of justice in first appeal. It cannot be gainsaid that the Appellate Court has power to take additional evidence even in second appeal. Order XLII of Code of Civil Procedure applies rules of Order XLI of the said Code, so far as may be, to appeals from appellate decrees also. However, an Appellate Court can take additional evidence only when firstly the Courts below has refused to admit evidence which ought to have been admitted, secondly when the Court itself requires any document to be produced or any witness to be examined to enable it to pronounce judgment or for any other substantial cause. However, such is not a case here. These documents were not presented before the Court below. In my opinion, these documents are not necessary for the just decision of this case. There has been no direct admission or denial of the impugned sale-deed by Ram Krishna (R-l) in such documents. Further taking the documents on record would entail remand of the case after long lapse of 14 years after appeal is filed. City Improvement Trust, Bangalore v. H. Narayanaiah (AIR 1976 SC 2403) and Bhure Singh v. Khushal Singh, 1992 (II) MPWN 207, clearly show that grant of an opportunity to prove or disprove these documents, to the parties may be necessary. The application is dismissed and documents are not taken on record.
5-A. The following substantial questions of law were framed on 13-1-88 by this Court:--
(1) "Whether the findings recorded by the learned both Courts about the sale-deed are perverse ?"
(2) "Whether the learned Lower Appellate Court was justified in rejecting the amendment application ?"
6. First Question : Before proceeding further, it is necessary to consider the scope of power and jurisdiction of the High Court in second appeal to interfere with the concurrent findings of fact recorded by the Courts below. Obviously, fresh appraisal of evidence is not permissible in case the Courts below have considered the entire material circumstances of the case Dudh Nath Pandey (dead by L.Rs.) v. Suresh Chandra (AIR 1986 SC 1509). No interference is permissible where there is some evidence for the findings of the Courts below Thimmaiah v. Ningamma, (2000) 7 SCC 409, or where such findings are based on material on record and there is no procedural infirmity in arriving at such findings Sukhdei v. Bairo, (1999) 4 SCC 262. High Court would not interfere if findings of Courts below are plausible Govind Das v. Kanhaiyalal, (2000) 9 SCC 219. It would not interfere merely because some other conclusion from proved facts could be drawn Vidyadhar v. Manik Rao (AIR 1999 SC 1441). Even then this Court is not completely helpless being faced with the situation where the Courts below have given perverse or arbitrary findings or findings which no reasonable person would record.
7. In Ishwardas Jain v. Sohanlal (AIR 2000 SC 426 at page 429) the Apex Court held :--
"11. There are two situations in which interference with findings of the facts is permissible. The first one is when material or relevant evidence is not considered which would have led to an opposite conclusion......
12. The second situation is in which interference with Findings of facts is permissible, where a finding has been arrived at by the Appellate Court by placing reliance on inadmissible evidence which if it was omitted, an opposite conclusion was possible."
For the first proposition, the Apex Court relied upon Dilbagrai Punjabi v. Sharad Chandra (AIR 1988 SC 1858) wherein an admission by the defendant/ tenant in reply notice about plaintiffs title describing plaintiff as owner was ignored. Interference by the High Court on ground of non-consideration of vital evidence was affirmed by the Apex Court. In Jagdish Singh v. Nathu Singh (AIR 1992 SC 1604), non-consideration of relevant evidence or adoption of essentially wrong approach to the matter was held sufficient for interference. In Sundra Naicka Vadiyakar v. Rama Swami Ayyar (AIR 1994 SC 532) ignoring vital documents for deciding the question of possession was held sufficient for interference. In Mehrunnisa v. Visham Kumari (AIR 1998 SC 427) ignoring the second notice by the land lady and not noticing that the suit was not based on earlier notices was held sufficient for interference by the High Court. For the second proposition Srichand Gupta v. Gulmar Singh (AIR 1992 SC 123) wherein the Court below had relied upon an admission of third party treating it as binding on defendant, though it was inadmissible against the defendant, was relied upon.
8. The learned Advocate for appellants has vehemently argued that both the Courts below have ignored most vital facts and circumstances and evidence and reliable material in recording their finding of no fraud against the appellants. Mainly he has emphasised on following facts and circumstances :--
(1) By impugned sale-deed 28.32 acres of land with trees was sold only for Rs. 1,500/-, though number of trees was not disclosed in the sale-deed yet as per Khasra Ex. P-7 for the years 1970-71 and 1974-75 there were 8 Mango trees, 7 Kosama, 5 Harra, 3 Jamun and 60 Mahua trees on the suit land.
(2) Abandhiya also existed. As per sale-deed itself suit land was sold to Balram (plaintiff) who had to pay Taccabi loan of Rs. 884/- taken for building such Bandhiya.
(3) A bada 0.70 acre existed with a house in which late Balram used to reside.
Balram (P.W. 1), in para 4, had claimed that there were 8 Mango trees, 60 Mahua trees, 5 Harra trees and 3 Jamun trees on suit land. In para 5 he claims that the land valued at Rs. 500/- or Rs. 1000/- per acre. Mango trees and Mahua trees were 40 years' old. Mahua trees bore crop twice in a year. Price of each mango tree and Mahua was about Rs. 500-600/-. In para 20, he admitted that land revenue was Rs. 7/-. In rainy season crop of Kodon could be taken. He had admitted that in some year crop of mango used to be lighter. Ranjan Singh (P.W. 2), in para 2, Gajru (P.W. 3) in para 2, had fully supported his statement. There has been no effective cross-examination of these witnesses on the point. Sunderlal (P.W. 4), a Revenue Inspector had been Patwari for the years 1964 to 1977 in the same village. In para 2 he has supported the case of appellant. According to him, crop worth Rs. 200/- to Rs. 500/- could be taken from each mango tree whereas Rs. 400/- to Rs. 500/- could be taken from each Mahua tree. All these trees on suit lands were fruit bearing. In para 8, he has admitted that during years 1964-67 compensation of Rs. 500/- to Rs. 2000/- was paid by the Government for each Mango and Mahua tree. Even Ram Ratan (D.W. 1) (R-2), who is father of Ram Krishna (R-l), in para 5, has admitted existence of 4-5 Mango and 30-35 Mahua trees on the suit land. According to him, he had given the price of trees only. The land had no value. In other words he himself admits that market value of suit land was much above Rs. 1500/-. In para 7, he had admitted that Mango and Mahua trees were 50 years old. Obviously these trees were fruit bearing. Though, of course, in para 8, he had denied the suggestion of the appellant that crop worth Rs. 400/- could be taken from each Mango tree. Yet from whatever evidence has come on record it was abundantly clear that the market value of 28.32 acres of suit land with fruit bearing trees and Bandhiya was many times more than Rs. 1500/- only for which the impugned sale-deed was executed.
9. Further Balram (P.W. 1) had claimed in para 8, that a Bada also existed on 0.70 acre of land with a house in which he used to reside. Sunderlal (P.W. 4) Revenue Inspector, in para 3, had suggested therein that a house also existed on suit land and even on the date of evidence, a dilapidated Tapariya existed in its place. Girwar Singh (P.W. 5) Patwari, in para 1, has also admitted existence of Tapariya.
10. The learned First Appellate Court has not at all applied his mind to this aspect of the matter and has merely commented in para 15 (to quote) :
"The valuation of suit land on 9-1-67 was much above and the same could not be sold for Rs. 1500A. No evidence has been given by plaintiff (appellant) in this respect. Simply his saying that suit land was of Rs. 500/- to Rs. 1000/- per acre, it is not proper to assess. It would have been better had some other person who had sold the land in the vicinity about the date of sale, been examined. Statement of such person and sale-deeds should have been produced. In the same way value of the trees standing on the suit land should have been proved which could support the statement of the plaintiff (appellant)."
In para 17 the First Appellate Court comments that there has been no evidence on record that a house existed on suit land and Balram (appellant) resided in it ignoring the evidence of Balram (P.W. 1), Sunderlal (P.W. 4), Girwar Singh (P.W. 5) cited above.
11. Obviously the First Appellate Court has ignored the vital evidence on record on record and misstated that there has been no evidence about the market price of the suit land and fruit bearing trees existing on it.
12. It is noteworthy that even these Rs. 1500/- were not paid in cash to the plaintiff. As per sale-deed Ex. P-8 Rs. 100/- were paid in advance, Rs. 516/-were paid before the Sub-Registrar and Rs. 884A were kept by Patel Ram Krishna (R-2). Ram Ratan (D.W. 1), in paras 3 and 4 has admitted that he has kept this amount of Rs. 884/- for three years and had paid the amount later to the Tehsildar for which no receipt has been filed by him in the Court. Balram (P.W. 1) in para 1, has claimed that Tehsildar had issued warrant of attachment against him whereupon he informed Tehsildar that such amount he was deposited with Ram Ratan (D.W. 1) who had deposited the amount after two or four days. May be Ram Krishna (R-2) has paid this amount, yet obviously the consideration was not paid in cash.
13. In this respect, it is further notable that Taccabi loan for repayment of which the land was alleged to have been sold was invested in the suit land. Obviously, Bandhiya has also been transferred with the land. The very story of sale of land of 28.32 acres with the trees, Bandhiya and house for repayment of Taccabi loan taken for Bandhiya is preposterous.
14. Obviously, Balram (P.W, 1) was illiterate. He had affixed his thumb mark on sale-deed Ex. P-8. He has affixed his thumb mark on plaint also. The Advocate for appellants has drawn my attention to Kisna v. Hiralal (2001 RN 217) in which Natthulal v. Anandlal (MBLR 1952 Civil 130) is relied upon for the proposition that burden of proof of good faith in cases of illiterate and ignorant vendors is on the purchasers. Authorities are legion on the point. Hazarilal v. Gyasiram (1975 JLJ-SN 50) is one of them. It is obvious that the transaction is wholly unconscionable and the allegation of fraud by the appellant had to be examined in this perspective. The Judge has to apply his experience of life in appreciation of evidence Chaturbhuj Pandey v. Collector, Raigarh (AIR 1969 SC 255) wherein the Apex Court has held at page 257 :--
"The Judges are not computers. In assessing the value to be attached to oral evidence, they are bound to call into aid their experience of life. As Judge of fact it was open to the Appellate Judges to test the evidence placed before them on the basis of probabilities."
Of course, it was a land acquisition case and question of valuation of the land was before the Court. Our High Court has followed such views in Smt. Laxmi Bai v. Keshrimal (l994 JLJ 747), Modi P.R. v. Collector, Durg (1975 JLJ 595).
15. In para 11, the learned First Appellate Court has banked heavily on the point that the appellant did not object before Registrar at the time of registration. However, there was no occasion for objection at that time. There has been no evidence on record that the appellant/plaintiff could come to know about the real nature of document Ex. P-8on the date on which it was executed. The learned Judge has relied upon the endorsement of Sub-Registrar that the document was read over to the appellant. However, as held in Maharani Bahoo v. Gangabai (1962 JU-SN 194) any such endorsement of registering authority is rebuttable and not a conclusive evidence. The learned First Appellate Court has heavily relied upon the admission of Balram in para 15, that the document was read over to him after writing and the same was written in his presence on dictation of Ram Ratan (D.W. 1) by the document writer, His claim that he was sitting five steps away has not been sufficient to show that he knew the contents thereof. However, as observed in Dhani Ram v. Karan Singh (1985 MPWN 540), in case of rustic and illiterate executant heavy burden lies on purchaser to prove that document was explained and interpreted to executant. Common experience shows that mere drafting or dictating a document in presence of illiterate and rustic villager is not sufficient to show that such person has really understood the contents thereof. As such mere presence of appellant at the time of drafting or writing is not sufficient to prove that the appellant knew the contents thereof.
16. It is noteworthy that the original document of Ex. P-8 remained in possession of Ram Ratan (R-2) since after execution thereof. Actually, original has not been filed at all before the Court. There was no means for the appellant to know the contents of the document after its execution.
17. It is also noteworthy that name of Balram continued in Revenue Record till 24-10-77 that is to say, for about ten years 9 months after execution of impugned document. Bhooadhikar and Rin Pustika Part I Ex. P-l, Part II, Ex. P-2 continued in name of Balram, notice in revenue case Ex. P-3 was served on Balram on 3-1-78 in Kistbandi Khatauni Ex. P-6. His name had continued in years 1974-75, so was the situation in Khasra Ex. P-7 in which his name appeared for the periods 1970-71 to 1974-75. Ram Ratan (R-2) as per Ex. P-7 had dispossessed Balram in the year 1971-72 and gave the land on Adhbatai to Ramlal Korku and Ranjan. It is noteworthy that the suit land was not completely barren and Kodon and Kutki atleast could grow therein to negative the claim of the respondents that land had no market value.
18. It is noteworthy that on 24-10-77 Ram Krishna (R-l) applied for correction of record. Naib Tehsildar perused the sale-deed and amended the entry on the same day. Obviously, no notice was issued to the alleged seller Balram (appellant). There was no proclamation by beat of drum. Obviously Balram was not present and had not consented to the mutation. Keeping quite for long 10 years and 9 months and then completion of the whole process of amendment of Revenue Records on the same day go a long way to show the suspicious nature of the whole proceedings. Obviously had Ex. P-8 been a genuine sale, the respondents would have immediately taken over possession of the suit land and would have got mutated their names in revenue papers.
19. It is noteworthy that Balram himself in para 1 claimed that he had agreed merely to mortgage the land. It is true that being rustic he could not state the period for which the land was mortgaged and what could be the mode of repayment of loan. However, his statement was supported by Ranjan (P.W. 2), and Gajru (P.W. 3) who have claimed that Balram (P.W. 1) had merely taken loan. Ram Ratan (D.W. 1) who is respondent No. 2 himself and father of Ram Krishna (R-l) in para 2 has admitted that he had kept the land of Balram on mortgage. However, later on he has claimed that he had purchased the land. He has denied that he has been a money lender or has advanced money or loan to any body on execution of sale-deed. However, he admits that in 20-25 acres of land Gajraj is in possession for which no sale-deed is executed. He admits that there has been a mutual agreement. There has been no registered sale-deed for the same and consequently there has no mutation also. Obviously Gajraj Singh who has been the attesting witness of Ex. P-8 is under the influence of Ram Ratan (D.W. 1) and thus his non-examination by the appellant is of no consequence. Actually Gajraj Singh could have been produced by the respondents to disprove the claim of the appellant. The adverse inference drawn by the First Appellate Court against the appellant from non-examination of Gajraj Singh has not been sound. True it is that Ram Ratan (R-2) is not proved to be a money lender, yet that in itself in the facts and circumstances of the case does not disprove the case of the appellant.
20. It is well settled that oral evidence is admissible under Sections 91 and 92 of the Evidence Act. Even the First Appellate Court has conceded that oral evidence is admissible to prove that a document though executed was a sham document. In Ishwar Dass Jain v. Sohal Lal (AIR 2000 SC 426) at page 431, the decision in Gangabai v. Chhabubabi, (1982) 1 SCC 4 : (AIR 1982 SC 20) was relied on for the proposition that it is permissible for a party to a deed to contend that deed was not intended to be acted upon but was only a sham document. The bar arises only when the document is relied upon and its terms are sought to be varied and contradicted, D.A. Desai, J., was quoted:
"The bar imposed by Section 92(1) applies only when a party seeks to rely upon the document embodying the terms of the transaction and not, when the case of a party is that the transaction recorded m the document was never intended to be acted upon at all between the parties and that the document is a sham. Such a question arises when the party asserts that there was a different transaction altogether and what is recorded in the document was intended to be of no consequence whatever. For that purpose, oral evidence is admissible to show that the document executed was never intended to operate as an agreement but that some other agreement altogether, not recorded in the document, was entered into between the parties."
This Court has also consistently held the same view in Lekhraj v. Sardar Sawan Singh [1971 JU 545 = AIR 1971 MP 172 (DB)], Mandas v. Manbai [1972 JLJ 632 (DB)], Kodu Satnami v. Ramdayal (1986 MPWN 114), Babu Khan v. Mahila Narayan Devi [1993 (1) Vidhi Bhasvar 93].
21. Of course, fraud vitiates any transaction howsoever solemn it may be. In the present case the appellant had been able to prove fraud in execution of Ex. P-8. Gross inadequacy of consideration, unconscionable nature of the transaction, factum of non-transfer of possession for atleast 4 to 5 years and mutation after 10 years 9 months of the sale, that too without notice to the appellant or proclamation coupled with the oral statement of the witnesses have clearly proved that there had been fraud and the impugned sale-deed Ex. P-8 is void being vitiated due to fraud.
22. The view taken by the learned Trial Court that the civil suit was barred by limitation was also not sound though Ex. P-8 was executed on 9-1-67. Balram (P.W. 1) in para 6 of the plaint had claimed that he came to know of the fraud in the year '77 when name of Ram Krishna (R-l) was mutated to the suit land. The civil suit was filed on 28-8-78. Balram (P.W. 1) was examined on 24-3-81. In para 22 he had admitted that in month of Asadh Ram Ratan (D.W. 1) had told him that he could not get back the land as he has sold it. Balram (P.W. 1) before that date had visited Ram Ratan (R-2). The learned Trial Court was much affected by the admission of Balram that such Asadh was 5 or 6 years before his statement was recorded. First of all this was merely an estimate of a rustic villager. No exact date was admitted of the knowledge which could well suit with the date disclosed in the plaint for the knowledge of fraud. Ex. P-9 copy of application before Debt Recovery Court was also supported the claim of Balram, thus the finding recorded by the learned Trial Court that suit was barred by limitation was incorrect. Of course Balram could have filed the civil suit only after the disclosure of fraud to him. Thus, the first question has to be answered in affirmative. I hold that finding of both the Courts below were perverse and arbitrary and the sale-deed Ex. P-1 was vitiated by fraud and was null and void.
23. Second Question : On 20-3-84 appellant had applied for amendment of plaint. He proposed to add a plea that Ram Krishna (R-l) was minor on 9-1-67 when Ex. P-8 was executed. This application was rightly dismissed by the First Appellate Court. Minority of Ram Krishna (R-l) did not affect the situation at all though, respondents had claimed that Ram Krishna (R-l) was not minor on that date. Another application for amendment was moved on 2-4-87 whereby the appellant proposed to add that the suit was his joint family property in which his minors sons were also coparceners. Obviously this was putting a entirely new case in appeal. The dismissal of this application also docs not affect the case on merits. Thus, second question has to be answered in negative.
24. Thus, this second appeal is allowed with costs. The findings recorded by both the Courts below upholding validity of sale-deed Ex. P-8 are set aside and civil suit filed by Balram is hereby decreed and legal representatives of deceased Balram (appellant) are declared owners of the suit land Khasra Nos, 4 and 11/3 area 28.32 acres. Respondents shall handover the possession of the same with trees standing on it to the legal representatives of the deceased Balram (appellant). Costs on respondents for this Court and for both the Courts below. Advocates' fees as per schedule.