Allahabad High Court
Badri Prasad vs Babu Lal And Ors. on 4 September, 2002
Equivalent citations: AIR2003ALL206, AIR 2003 ALLAHABAD 206, 2003 ALL. L. J. 1709
Author: Kamal Kishore
Bench: Kamal Kishore
JUDGMENT
1. This is the second civil appeal against the judgment and decree dated 10-11-1978 passed by the then learned IV Additional District Judge, Unnao, dismissing the appeal and confirming the Judgment and decree passed by the then learned trial Court. The suit was for cancellation of sale deed.
2. The following question of law has been formulated in this second appeal :--
"Whether the findings recorded by the Courts below are perverse and illegal?"
3. I have heard the arguments and have gone through the record,
4. The brief facts of suit No. 36 of 1969 are that Babu Lal, respondent filed a suit, in the Court of Munsif South. Unnao with the allegations that he was the owner of the disputed hquse No. 94 (old) and 97 (new) situate in Mohalla Bastania Talab alias Narendra Nagar, City Unnao. The plaintiff further alleged that Badri Prasad was his tenant for five years on monthly rent of Rs. 15/-. One room in the upper floor of this house remain in possession of the plaintiff in which the plaintiff used to stay after coming from his village Asiwan. The defendant was in arrears of rent from June, 1966 and was liable to pay Rs. 480-00 as arrears of rent to the plaintiff. The plaintiff further alleged that he never sold the disputed house to the defendant Badri Prasad for a price of Rs. 1,000.00 and never executed any sale deed in favour of the defendant in respect of that house. He further alleged that the disputed sale deed dated 4-2-1966 was a fraudulent transaction and was, therefore, liable to be cancelled. He further alleged that the price of the disputed house was not less than Rs. 5,000.00. The defendant got the sale deed executed by some imposter with the help of two witnesses who were his close relations. The plaintiff further alleged that on 3-2-1967 in the evening he had gone to Badri Prasad at the disputed house for demanding the arrears of rent. At that time Megh Nath, a close relation of Badri Prasad was also present there, Both of them told the plaintiff that great saints had assembled at Nimsar, and both of them were going to have Darshan of them and it would be better, if he also accompanied them. Badri Prasad further told him that the arrears of rent would be paid to him at Nimsar, The plaintiff being a simple man, agreed for the same and on the same day Badri Prasad, Megh Nath and the plaintiff started for Nimsar and came to Unnao Railway Station. All these three persons reached at Balamau at about 2.00 a.m. where Badri Prasad and Megh Nath told the plaintiff that the (rain for Nimsar would start from there on the next morning therefore in the night they would take test in the neighbour in village where their relations resided. The plaintiff proceeded with them from Balamau Railway Station according to their directions. When they reached on a lonely place, Badri Prasad and Megh Nath laid the plaintiff on the ground and caused serious injuries on his body. On the alarm raised by the plaintiff some persons reached there and thereafter both the persons ran away leaving the plaintiff in seriously injured condition. The plaintiff lodged the report of this occurrence at Police Station Baghuli District Hardoi against Badri Prasad and Megha Nath. Both of them were challaned by the police of Police Station Baghuli under Section 307, IPC and were convicted by the learned Assistant Sessions Judge, Hardoi. When the case was under investigation, Badri Prasad defendant informed, the I.O. in the presence of the plaintiff on 30-3-1967 that he had got a sale deed executed by Babu Lal plaintiff in his favour in respect of the house No. 94 situate in Mohalla Bastania Talab alias Narendra Nagar, City Unnao. He further in formed that Megh Nath had also got a sale deed executed by the plaintiff Babu Lal in respect of the house No. 84 (old) situate in Mohalla Bastania Talab alias Narendra Nagar. Thereafter, the plaintiff obtained a copy of disputed sale deed in April 1967 and came to know about the disputed sale deed which was obtained by Badri Prasad by fraud. That sale deed was nullity. On the basis of above allegations, the plaintiff prayed for cancellation of disputed sale deed.
5. Badri Prasad contested the suit on the ground that the disputed sale deed was executed by Babu Lal in his favour for a price of Rs. 1,000.00. He admitted that he was the tenant of the plaintiff in the dispute house, but after the execution of the sale deed he was the owner of the house. He further pleaded that rent of the house insist was Rs. 7.00 per month and not Rs. 15.00 per month. The Regular Suit No. 37 of 1969 Babu Lal v. Megh Nath, whereby the suit of the plaintiff for cancellation of the disputed sale deed in respect of the house No. 84 (old) and 87 (new) situate in Mohalla Baslania Talab alias Narendra Nagar, City Unnao was decreed with costs though out.
6. The plaintiff-respondent examined Shri S.P. Chose hand writing and finger print expert (P.W. 1), Shri Malkhan Singh hand writing and finger print expert (P.W. 2), Suresh Chandra (P.W. 3) and himself as (P.W. 4) for showing that the disputed sale deeds were forged documents and were not executed by him. Original thumb impression of the executant of the disputed sale deeds was summoned from the office of Sub-Registrar, Unnao by the Trial Court for the purposes of comparison of that thumb impression with the specimen thumb impression of Babu Lal (P.W. 4), the plaintiff. Shri S.P. Ghose (P.W. 1) compared the disputed thumb impressions present in Register No. 8 of the office of Sub-Registrar, Unnao with specimen thumb impressions of Babu Lal (P.W. 4) and came to the conclusion that both the thumb impression were not tallying with each other. Shri S.P. Ghose (P.W. 1) has given grounds of his opinion in his report. He has supported his report in his evidence on oath. On the, other hand, Shri Rajendra Prasad, hand writing and finger print expert (D.W. 1) compared the disputed thumb impression present in the Register No. 8 of the office of Sub-Registrar, Unnao with the specimen thumb impressions of Babu Lal (P.W. 1) and opined that the disputed thumb impression was tallying with the specimen thumb impression of Babu Lal.
7. The expert opinion of Shri S.P. Ghose hand writing and finger print expert who has been examined as P.W. 1 is well reasoned and his testimony also inspires confidence. The dissimilarities in the disputed and speci: men thumb impressions go to show that the disputed thumb impression marked by D. summoned from the office of Sub Registrar. Unnao does not tally with the specimen thumb impression of Babu Lal (P.W. 4). The report of Shri S.P. Ghose (P.W. 1) is based on sound reasonings and I fully agree with his report. I fully agree with the findings recorded by the Courts below to the effect that Badri Prasad and Megh Nath got the disputed sale deeds executed by some imposter and not by Babu Lal, the plaintiff. I, therefore, hold that the disputed sale deeds are void and not binding on Babu Lal (P.W. 4) and are, therefore, liable to be cancelled. It is settled that a fraud is committed in secrecy and it becomes very difficult in such cases for the plaintiff to prove as to how fraud was committed, especially when the very thing is done behind his back. But the fraud can be inferred from the facts and circumstances of the case as well as from the materials on record.
8. There are concurrent findings recorded by both the Courts below to the effect that the impugned sale deed is null and void. The defendant was the tenant of the plaintiff-respondent at the rent alleged by the plaintiff. It has further been held by both the Courts below that the plaintiff-respondent is also entitled to Rs. 480-00 only as arrears of rent. These concurrent findings of fact recorded by both the Courts below are based on evidence on record and they do not call for any interference by this Court. The question of law formulated above is being answered in negative.
9. Thus, the findings of fact recorded by both the Courts below are based on evidence on record. These concurrent findings of fact recorded by both the Courts below are based on evidence on record, hence they do not call for any interference by this Court in view of the record rulings of Hon'ble Supreme Court as reported in (1999) 3 SCC 722 : (AIR 1999 SC 2213), Kondiba Dagadu Kadam v. Savitribai Sopan Gujar, 2001 AIR SCW 2057, Hamida v. Mohd. Khalil. 2001 AIR SCW 2295; Chandra Bhan v. Pamma Bai and 2001 AIR SCW 2290; Kaluram v. Shrinathdas.
The second civil appeal is devoid of merit and is hereby dismissed with costs.