Allahabad High Court
Onkar Singh And Another vs Om Prakash on 19 January, 2016
Author: Pramod Kumar Srivastava
Bench: Pramod Kumar Srivastava
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Court No. - 19 Case :- SECOND APPEAL No. - 1956 of 1991 Appellant :- Onkar Singh And Another Respondent :- Om Prakash Counsel for Appellant :- R.S. Maurya, J.P.S. Singh, Kunal Ravi Singh, Manjari Singh, Manjoo Singh, Pankaj Kumar Singh, Pankaj Saxena, R.B. Maurya, R.K. Singh, R.S. Mishra, Ramendra Asthana, S.S. Maurya Counsel for Respondent :- B.D. Mandhyan, H.M. Srivastava, Madan Mohan, Madhav Jain, Ramendra Asthana, S.K. Srivastava, S.K. Tyagi, Santosh Srivastava, Satish Srivastava, Smt. Karuna Srivastava, Vinod Kumar Agarwal, Y.D. Saxena, Y.D. Sharma Hon'ble Pramod Kumar Srivastava, J.
1. Heard the arguments of learned counsel for the parties and perused the records.
2. The admitted facts between the parties are that Udai Ram had three sons namely, Jagannath, Om Prakash (plaintiff of original suit) and Ram Nath. Onkar Singh-defendant no.-1 and Lokesh-defendant no. 2 are sons of Jagannath, who had died. It is admitted fact that Ram Nath had also died without any issue. After the death of their father Udai Ram, the plaintiff Om Prakash and his two brothers Jagannath and Ram Nath became his legal heirs and each became owner of 1/3rd share. It is also admitted fact that on 29.05.1981 the Ram Nath had executed a sale-deed on his whole 1/3rd share in disputed property in favour of defendant Onkar Singh and Lokesh. Admittedly the Ram Nath had died after about two years of execution of said sale-deed dated 29.05.1981. After this, on 10.03.1987, the plaintiff Om Prakash filed a suit for cancellation of sale-deed dated 29.05.1981.
3. The plaint case in original suit no.-115/ 1988 was that Ram Nath was mentally ill and was like insane, so defendants have manipulated him and has got executed registered sale-deed dated 29.05.1981 on behalf of Ram Nath, regarding his share in disputed property, which is liable to be cancelled. The grounds taken in plaint for the cancellation of sale-deed were that Ram Nath had never executed the sale-deed in question. He had no need to execute the sale-deed, no consideration was paid to Ram Nath for said sale-deed, which was not read and explained to him, consideration mentioned in sale-deed is less, the defendant had no money to purchase the disputed land, and sale-deed was executed for dishonestly usurping the property. It was further pleaded in the plaint that the defendant came to know about sale-deed in January, 1987. Since he is legal heir of Ram Nath's property, therefore his rights would be affected from this sale-deed, therefore he has filed suit for cancellation of said sale-deed.
4. In original suit the defendant filed joint written-statements by which they have denied the plaint's averments and grounds mentioned for cancellation of sale-deed, and pleaded that Ram Nath had himself executed the sale-deed in question for a consideration of Rs.27,000, which was proper consideration received by him and there is illegality in said sale-deed. The defendant had capacity to purchase the land in question, Ram Nath had willingly executed the sale-deed and plaintiff had knowledge of said deed from the date of it's execution, therefore the suit is time-barred. No cause of action arose to plaintiff. The defendants are the owner of 2/3rd share in disputed property. By this suit the plaintiff wants to get the entries of revenue record cancelled and amended. For the relief sought the plaintiff should file suit in revenue court, and his suit is barred by time under Section 331-A of U.P.Z.A & L.R Act. The court has no jurisdiction to decide this suit and it is liable to be dismissed.
5. After affording opportunity of hearing to the parties, learned 3rd Additional Munsif, Bulandshahr had passed the judgement dated 29.03.1991 by which the plaintiff's suit was decreed. A perusal of the judgment reveals that the trial court had considered the statements of defendants' witnesses Parmanand Munshi and Latoor Singh, and held that their statements are self contradictory. The trial court had also held that there is no evidence that deceased Ram Nath was ill and how his property was partitioned, therefore it is not clear that how Ram Nath had given his free consent for the sale-deed. The trial court has also held that jurisdiction for cancellation of sale-deed is with Civil Court. On these grounds the trial court had decreed the suit.
6. Against the judgment of the trial court, the plaintiff of the original suit had preferred the Civil Appeal No. 70/ 1991 Onkar Singh & Anr. v. Om Prakash, which was dismissed by the judgement dated 19.11.1991 of the Xth Additional District Judge, Bulandshahr. In this judgment the first appellate court had appreciated all the seven points for cancellation of sale-deed mentioned in the plaint, and decided six points in favour of defendant-appellants, but the appeal was dismissed on the finding of non payment of consideration. The First Appellate Court had discussed the evidences and held that except the point of nonpayment of consideration, the other grounds mentioned in plaint are not proved. The first appellate court had held that there is no evidence to the effect that sale-deed in question was got executed by presenting any wrong person before the Sub-Registrar. The first appellate court had also held that it is not proved that sale-deed in question does not contain thumb impression of Ram Nath. The first appellate court had also held that sale-deed cannot be cancelled on the ground that executor Ram Nath had no need of money to sell it or its price was higher than mentioned in the sale-deed or the defendant had no money for payment of consideration. The first appellate has also held that it is not proved that sale-deed in question was not read and explained to Ram Nath at the time of its execution, and also that it is not proved that at the time of execution of sale-deed in question Ram Nath was mentally or physically weak. The first appellate court had discussed the evidences of defendant's side, especially of DW-1 Onkar Singh (defendant and purchaser) and DW-2 Latoor Singh (marginal witness) of sale-deed and held that there are contradiction in their statements on point of manner of payment of consideration. Therefore the payment of consideration for sale-deed is not proved, and on this ground alone the first appellate court had dismissed the appeal.
7. Against the judgment of the trial Court as well as the first appellate court, the present second appeal has been preferred by the defendants of the original suit.
8. At the time of hearing of appeal, following substantial question of law were framed:-
i. Whether sale deed having found genuine, can the same be cancelled just on the ground that sale consideration was not paid and whether in respect of Bhumidhari land, concept of joint Hindu family applies and brother has got right to file suit for cancellation of the sale deed?
ii. Whether sale deed was void in view of the provisions of Section 54 and 55 of the Transfer of Property Act and whether under the circumstances of the case sale deed could be cancelled?
iii. Whether the suit of plaintiff-respondent was barred by limitation?
9. A perusal of the lower court record reveals that the judgment of the trial court was very poor on it's merit and was almost perverse on finding of every issue. Issue no.-1 was framed that whether on the grounds mentioned in paragraph 4 of the plaint sale-deed in question is liable to be cancelled or not. There were seven grounds raised in paragraph 4 of the plaint, and none of the ground was discussed by the trial court. No evidence of plaintiff was discussed nor any finding was given that plaintiff had proved his plaint's case. The trial court had simply mentioned that two persons before whom the sale-deeds were executed, are Parmanand Munshi and Onkar Singh, and their statements are self-contradictory. It was nowhere mentioned or discussed as to on what points there was any contradiction or what they stated, and whether those points were were in support of plaint case or against the defendants' pleading. Thus on this point judgment of trial was not only non-speaking and erroneous but was also unreasonable and perverse. The other points raised based by the trial court was no proof of illness of Ram Nath.
10. Section 101, 102 and 103 of Evicence Act reads as under:
"101. Burden of proof.-- "Whoever desires any Court to give judgment as to any legal right or liability dependent on the existence of 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."
102. On whom burden of proof lies.--The burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side.
103. Burden of proof as to particular fact.--The burden of proof as to any particular fact lies on that person who wishes the Court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person."
11. In present matter such plea of mental weakness or insanity was never raised by the defendants, but was raised by the plaintiffs in plaint. In absence of proof of such plea, the matter should have been decided against the plaintiffs because burden lies on him to prove this fact, but finding absence of any evidence this point was decided by the trial court against the defendant. Thus, the trial court has erroneously shifted the burden of proof of plaintiff over to defendants. The trial court had also given the finding that it is not proved that as to how disputed property was partitioned. It is not the case of any party that disputed property was ever partitioned. It is admitted case of parties that disputed property was not formally partitioned. There is evidence that plaintiff had instituted a suit for partition which was dismissed for non-prosecution. In this case the un-partitioned share of Ram Nath in disputed property was sold by the sale-deed in question. Therefore apparently judgment of trial court on this point was without proper understanding the facts of the case. The trial court had also held that their appears no knowledge about free-will consent of deceased Ram Nath. But there is no such specific finding that Ram Nath had executed the sale-deed in question without his free-will or consent. Thus it is clear that judgement of the trial court was non-speaking, erroneous and perverse. In this judgement the trial court had shifted the burden of proof of plaintiffs to defendants and created a new case of partition of property, and decided the issues to cancel of deed in question erroneously against the defendants. Before passing its judgment the trial court has nowhere mentioned in it that plaintiff had proved his case. The trial court had framed other issues on point of limitation and jurisdiction, and also gave incorrect and erroneous finding on it by an improperly discussed, illegal and erroneous order. Trial court had not applied its mind to fact that grounds mentioned in the plaint for cancellation of sale deed in question were based on alleged facts that had allegedly happened in absence of plaintiff or its witnesses and they were based on speculations and hearsay. Thus the judgement of the trial court was based on non-speaking, erroneous and illegal finding, and without finding of the plaint case being proved, was perverse and is liable to be set aside. It was one finding of non-payment of consideration of this trial court's judgment that was confirmed by the first appellate court.
12. The first appellate court had considered the fact, evidences and circumstances and all the seven points of cancellation of registered sale-deed in question mentioned in paragraph-4 of the plaint and out of them decided six points in favour of defendants-appellants. The findings of first appellate court are on those six findings (except one finding of non-payment of consideration) are proper and are found acceptable and correct. So far the point for cancellation of sale-deed raised in plaint regarding non-payment of consideration is concerned, the first appellate court had taken erroneous view on it. This point was raised by the plaintiffs-respondents in plaint. The burden of proving this fact lies on plaintiffs-respondents. If no evidences would have been led then this point should have been decided against the plaintiffs because it was his assertion and not of defendants-appellants. No evidence was given on this point by the plaintiff's side. Admittedly neither plaintiff nor his witnesses were present at the time of execution of sale-deed in question, nor have any personal knowledge about it. Thus the plaint case was based on hearsay evidences as plaintiffs had no knowledge of any act done in furtherance of sale-deed in question. In such case had there being no evidence, suit should have been dismissed because burden to proving all the facts were on plaintiffs. The evidences adduced by the plaintiff's side were hearsay and on basis of speculation. No first hand evidence or information was given by the witnesses of plaintiff, but these facts were not considered by the first appellate court when the finding about non-payment of consideration was given in first appeal. On one hand the first appellate court had given specific finding of fact that it is not proved that sale-deed in question was not read and explained to Ram Nath, neither it is proved that plaintiff was a person of weak-mind, and it is not proved that plaintiff had not executed willingly the sale-deed in question; then finding of first appellate court regarding non-payment of consideration merely on ground that one witness of defendant had stated that consideration of Rs.27,000/- was given before the deed-writer and another witness has stated that said amount was given in Registration Office. There was no finding of the trial court that at the time of registration of deed in question the deed writer was not present in the Registration Office and consideration was not given before him. Even in absence of any evidence of defendants the plaintiff's case was not proved. Thus, the finding of fact of this point for non-proving of consideration by the first appellate court is erroneous and perverse. It is pertinent to mention that there is specific finding of fact of first appellate court that Ram Nath had willingly executed the registered sale-deed in question in Sub-Registrar Office without undue pressure are fraud, so the case of plaintiff was not proved. Apart from it, even in case of any ambiguity in statements of defendant's witnesses about the payment of consideration, the case would have been that of execution of a voidable documents on the option of Ram Nath, and in any case on the discrepancies in evidences of defendants, the suit of plaintiff cannot be decreed. It is admitted fact that Ram Nath had never challenged the execution of sale-deed in question nor acceptance of consideration, he had not made any complaint in Sub-Registrar Office about the irregularities in payment. The document in question is a registered document, which contains endorsement of Sub-Registrar that consideration was accepted by Ram Nath before him. There is legal presumption of genuineness of said registered sale-deed unless otherwise proved. In fact nothing otherwise was proved by plaintiff whose case is based on speculation and hearsay informations. Therefore the finding of first appellate court regarding non-payment of consideration is found erroneous and perverse, and is hereby set aside. The result of it is that plaintiff-respondent had failed to prove it's plaint case and the grounds mentioned in the plaint for cancellation of sale-deed. The first part of the first substantial question of law is decided accordingly in favour of defendants-appellants and against the plaintiffs-respondents.
13. Admittedly, the basis of the suit was the declaration of rights and title of agricultural property, the plaint case was that originally the plaintiff was owner of 1/3rd share of the disputed agricultural land, who had become the owner of it's half share after the death of his brother because sale-deed is void. On the other hand the defendants-appellants are accepting only 1/3rd share of plaintiffs-respondents in disputed agricultural land. Thus the main relief sought in the plaint relates to declaration for title of agricultural property and the relief of cancellation of sale-deed in fact ancillary relief. Admittedly the Revenue Court had right to decide the title of agricultural property, but such relief was sought by the plaintiff-respondents in garb of relief of cancellation of sale-deed.
14. The suit of plaintiff/respondent has been based on claim of his ownership and bhumidhari rights over disputed agricultural land, for which the plea of bar of suit under Section 331 of U.P.Z.A. & L.R. Act was taken by defendants in their written statement. Section- 331 of U.P. Zamindari Abolition & Land Reforms Act, 1950 reads as under:
"331. Cognizance of suits, etc under this Act.- (1) Except as provided by or under this Act no court other than a court mentioned in Column 4 of Schedule II shall, notwithstanding an~hing contained in the Civil Procedure Code, 1908, (5 of 1908) take cognizance of any suit, application or proceedings based on a cause of action in respect of which any relief could be obtained by means of any such suit or application:
Provided that where a declaration has been made under Section 143 in respect of any holding or part thereof, the provisions of Schedule II in so far as they relate to suit, application or proceedings under Chapter VIII shall not apply to such holding or part thereof;
Explanation- If the cause of action is one in respect of which relief may be granted by the revenue court, it is immaterial that the relief asked for from the civil court may not be identical to that which the revenue court would have granted."
15. This section provides that no court other than court mentioned in Column 4 of Schedule II shall, notwithstanding anything contained in C.P.C., take cognizance of any suit, application or proceedings, mentioned in Column 3 thereof, or of a suit, application or proceedings based on cause of action in respect of which any relief could be obtained by means of any such suit or application. In Schedule II of this Act at serial number 34 Column 3 deals with ''Suit for declaration of rights'; and in front of it in column 4 name of court of original jurisdiction is given as ''Assistant Collector, 1st Class'. Present suit of the plaintiff-appellants is based on the claim that appellants are owner of disputed land.
16. The present case of plaintiff-appellant is based on claim that they are owner and bhumidhar of disputed land. Admittedly the name of defendant-respondent are recorded as bhumidhar on disputed land i.e. agricultural 'land' as defined in UPZA & LR Act. Even the alleged relief of permanent injunction regarding disputed land is also based on the relief of declaration of title of disputed agricultural 'land'. Therefore it is explicitly clear that only the court of Assistant Collector has jurisdiction to grant these reliefs, and Civil Court has no jurisdiction to decide the suit or other proceeding based on cause of action for declaration of ownership rights of such agricultural land. Therefore this finding of trial court as well as first appellate court are erroneous dispute between the parties. that civil court had jurisdiction to hear real
17. From above discussion, it is clear and proved that main relief sought by plaintiff-appellants are based on declaration of their alleged right of bhumidhari over disputed agricultural land but it cannot be granted to the appellants, and therefore, claim of plaintiff/respondent is barred by Section 331 of U.P.Z.A. & L.R. Act, so respondent is not entitled for any relief claimed in the original suit.
18. These facts and legal position were not at all considered by the Lower Courts, who had apparently and erroneously accepted the relief of cancellation of sale-deed as main relief of plaintiffs-respondents. Since the main relief is declaration of title over the agricultural land, therefore the jurisdiction to decide relief relating to it for cancellation of sale-deed in question also goes in jurisdiction of revenue court, therefore the judgment of lower courts are incorrect and illegal on the point of jurisdiction. Since the jurisdiction to decide the main relief lies revenue court, therefore the second part of the first substantial question of law is also decided against the plaintiffs-respondents and in favour of defendants-appellant.
19. The main question for consideration is as to whether the sale-deed would be valid when its deed recites that the price had been paid but in fact court finds that sale consideration was not actually paid. Section 54 of Transfer of Property Act, 1882 defines the ''sale' as ""Sale" is a transfer of ownership in exchange for a price paid or promised or part-paid and part-promised". The mere fact that a sale-deed recites the payment of consideration which is not true cannot render the document invalid. To support a sale it is not necessary that the whole of the price should be paid. The price may be paid or promised wholly or in part. If according to the tenor of the document the consideration was not actually paid, but the document shows that there was an intention to pay, then in that case the document is not rendered invalid on account of the non-payment of the consideration. If, on the other hand, the intention was not to pay any consideration, then the document is of no effect. There is a distinction between a sale where the consideration is intended to be paid and is not paid, and where the consideration is not intended by both parties to be paid at all. In the former case the title passes to the purchaser, and in the latter case though the vendor is tricked into going through the form of execution and registration of the document, the sale deed is void as a colourable transaction. To support a sale it is not necessary that the whole of the price should be paid. The price may be paid or promised wholly or in part.
20. If the vendor has executed the sale-deed with intention of transferring the property in question, but consideration has not actually passed to him within his knowledge but he still had intention of transferring the property in question; in such a case the provisions of Section 55 of Transfer of Property Act, 1882 will be applicable where unpaid amount shall remain a charge on the property. But the title of the property will be transferred to vendee.
21. The first appellate court, in present case, had given finding of the fact that executant had willingly executed sale-deed in question without any misunderstanding. Therefore, that in this case it cannot be said that there was no intention to pay the amount of the consideration, and in view of this circumstance it seems to us that the title had passed to the purchaser. It may be that the recital in the document stating payment of the consideration is not true. But that does not invalidate the document. On basis of this discussion it is hereby held that, if this contention of defendant-respondent is accepted for argument sake that in present matter payment of sale consideration is not proved, in such a case also, considering free consent and willingness of seller (Ram Nath) to sell his property to appellant-purchaser, the sale-deed cannot be treated as illegal or void; therefore it cannot be cancelled. Second substantial question of law is accordingly decided in favour of defendant-appellant and against plaintiff-respondent.
22. For the third substantial question of law, on point of limitation the contention of the learned counsel for the appellant was that since the claim of plaintiff-respondent is on the ground of being heir and legal representative of Ram Nath, therefore once limitation for cancellation of deed in question arose in lifetime of Ram Nath then it would run continuously without being stopped or paused even after his death. So for the deed dated 29.05.1981 executed by Ram Nath, the limitation would start running from that date and its period elapsed immediately after three years, therefore suit of plaintiff instituted in year 1988 is barred by time. This contention was refuted by learned counsel for respondent with argument that cause of action for the suit arose for the first time in January 1987 when the plaintiff had first knowledge of said deed; therefore suit instituted in year 1988 is within three years of period of limitation.
23. It is well established that a contract or other transaction induced or tainted by fraud is not void, but only voidable at the option of the party defrauded. Until it is avoided the transaction is valid, so that third parties without notice of the fraud may in the meantime acquire rights and interests in the matter which they may enforce against the party defrauded.
24. The fact that the contract has been induced by fraud does not make the contract void or prevent the property from passing, but merely gives the party defrauded a right on discovering the fraud to elect whether he shall continue to treat the contract as binding or disaffirm the contract and resume the property. If it can be shown that the ''person defrauded' has at any time after knowledge of the fraud either by express words or by unequivocal acts affirmed the contract, ''his' election is determined for ever. The party defrauded may keep the question open so long as he does nothing to affirm the contract.
25. In present case, as per plaint case, the alleged person defrauded was Ram Nath. Trial court had held that there is no evidence of his mental weakness or mental illness. First appellate court had given specific finding of fact that it is not proved that sale-deed in question was not read and explained to Ram Nath, neither it is proved that plaintiff was a person of weak mind and nor it is proved that plaintiff had not executed the sale-deed in question willingly. According to first appellate court, except non-payment of consideration there remained no fact that may be indicate the sale-deed in question as improper. For alleged non-payment of consideration, no evidence was led by plaintiff-respondent or his witnesses, as they were not present at the time of its execution, and the expectant Ram Nath had never told him anything about it. Since this fact was conclusively held by the first appellate court that executant had willingly executed sale-deed in question without any misunderstanding, then such sale-deed cannot be treated as void. In extreme case, in absence of alleged non-payment of consideration before the Sub-Registrar at the time of registration, it may be voidable at the option of its executant. Therefore so far as to any right to set aside the deed in question is concerned it is clear that it arose in lifetime of executant (Ram Nath) immediately after the said deed was executed, who survived for about two years after the execution of deed in question and had proper knowledge of the same, but had not opted for challenging it.
26. The claim of plaintiff-respondent is only for his share in disputed property of Ram Nath after his death. Thus the plaintiff-respondent's claim is on the basis of alleged right as legal heir of Ram Nath's property. Since cause of action for the cancellation of sale-deed in question regarding share of Ram Nath arose during his lifetime within his knowledge, therefore limitation for the same had started running immediately after execution of deed in question in year 1981.
27. The relevant provisions of Limitation Act, 1963 in this regard are definition of word "plaintiff" in Section 2(i)(i), Section 9 which is for initiation and running of period of limitation and Article 59 of Schedule of the Act. They are as under:
"Section 2. Definitions
(i) "plaintiff" includes--
(i); any person from or through whom a plaintiff derives his right to sue;"
"9. Continuous running of time.--Where once time has begun to run, no subsequent disability or inability to institute a suit or make an application stop it"
"The Schedule PART IV--Suits Relating To Decrees and Instruments
59. To cancel or set aside an instrument or decree or for the rescission of a contract.- Three years - When the facts entitling the plaintiff to have the instrument or decree cancelled or set aside or the contract rescinded first become known to him."
28. For the computation of limitation to plaintiff-appellant, the word ''plaintiff' has to be read with the definition in Section 2(i)(i) of the Limitation Act which defines "plaintiff includes any person from or through whom a plaintiff derives his right to sue". In present case the claim of plaintiff for the relief claimed arose only after the death of his brother Ram Nath, when he allegedly became heir, legal representative and owner of half of the property of Ram Nath. Thus plaint case is that the plaintiff-respondent had derived his right to sue for the relief claimed from the Ram Nath after his death. As held above the limitation for cancellation had started to Ram Nath during his lifetime immediately after the execution of sale deed in question on 29.05.1981. the provisions of section 9 of Limitation Act are mandatory in nature which makes it explicitly clear that if time of limitation had begun running, then any subsequent in ability to institute suit cannot stop it. Therefore if it is accepted for the sake of argument that the plaintiff-respondent had no knowledge of execution of sale deed in question dated 29.05.1981, in that case also limitation would not stop running because it had already started during the life-time of Ram Nath. Therefore it is held that original suit of plaintiff-respondent instituted in year 1988 is time barred. Third substantial question of law is accordingly decided in affirmative, in favour of appellant and against plaintiff-respondent.
29. For the reasons discussed above, this Second Appeal is allowed. The judgment dated 29.03.1991 of the trial court and the judgment dated 19.11.1991 of the first appellate court are set aside and the original suit no. 115/ 1988 is hereby dismissed with costs of whole proceedings.
Order Date :- 19.01.2016.
Vinod.