Himachal Pradesh High Court
Smt. Krishna Sharma vs Sh. Rajinder Kumar & Ors on 23 September, 2016
Author: Sandeep Sharma
Bench: Sandeep Sharma
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA RSA No. 399 of 2007 Date of Decision: 23.09.2016 .
Smt. Krishna Sharma ....Appellant-plaintiff.
Versus Sh. Rajinder Kumar & Ors. ...Respondents-defendants.
Coram:
The Hon'ble Mr. Justice Sandeep Sharma, Judge.
of Whether approved for reporting?1 Yes.
For the Appellant : Mr. Rajnish K. Lall, Advocate.
For the Respondents
rt : Mr. Ramakant Sharma, Senior
Advocate, with Mr. Basant Thakur,
Advocate.
Sandeep Sharma, Judge
Instant Regular Second Appeal filed under Section 100 of the Code of Civil Procedure is directed against the judgment dated 16.06.2007, passed by learned District Judge, Solan, H.P, in Civil Appeal No. 27-NL/13 of 2006, titled as Shri Rajinder Kumar & Anr.
vs. Smt. Krishna Sharma, reversing the judgment and decree dated 24.01.2006, passed by learned Civil Judge (Senior Division), Nalagarh in Civil Suit No. 44/1 of 2003, titled as Smt. Krishna Sharma vs. Shri Rajinder Kumar & Anr., whereby suit of plaintiff for recovery Rs.
1,80,000/- was dismissed.
2. Briefly stated facts, as emerge from the record, are that present appellant-plaintiff filed suit for recovery of an amount of Whether reporters of the local papers may be allowed to see the judgment?
::: Downloaded on - 15/04/2017 21:18:07 :::HCHP...2...
Rs.1,80,000/- (i.e. Principal amount of Rs. 1,50,000/- plus interest @ 12% per annum calculated w.e.f. 4.6.2001 to 3.2.2003 and future .
interest from 4.2.2003 @ 12% per annum till the realization of decreetal amount alongwtih costs, expenses and charges etc., under Order VII, Rule 1 of the Civil Procedure Code.
3. Appellant-plaintiff further averred in the plaint that he of was owner in possession of land measuring 8 bighas, 19 biswas bearing Khasra Nos. 21, 207/22, 88, 89 and 216/106 situated in the area of village Shahpur, Pargana Dharampur, Tehsil Nalagarh, H.P. rt Appellant-plaintiff further averred that respondent-defendant No. 2 approached her for sale of aforesaid land and he agreed to purchase the aforesaid land for a total sale consideration of Rs.3,00,000/-, but defendant No. 2 at the time of purchasing the said land expressed his inability to make complete payment of whole sale consideration of Rs.3,00,000/-, in cash. Accordingly, defendant No. 2 paid a sum of Rs. 1,50,000/- at the time of execution and registration of sale deed in his favour, in cash. However, defendant No. 1 in order to discharge the legal liability of payment of remaining amount of Rs.1,50,000/-, issued two post dated cheques i.e. (i) Cheque No. 478773, dated 30.5.2001 of Rs. 50,000/- and (ii) Cheque No. 478772, dated 4.6.2001 of Rs.1,00,000/- in favour of appellant-plaintiff, payable from his account No. 2566 at UCO Bank, Joghon, Tehsil Nalagarh, District ::: Downloaded on - 15/04/2017 21:18:07 :::HCHP ...3...
Solan, H.P. Appellant-plaintiff further averred that since there was a good relation between them at that time, appellant-plaintiff believing .
aforesaid assurance of the respondents-defendants made statement before the Sub Registrar, Nalagarh at the time of execution and registration of sale deed of aforesaid land to admit the receipt of full and final sale consideration of aforesaid land before the Sub Registrar, of Nalagarh. Accordingly, sale deed No. 529, dated 5.5.2001 with respect to aforesaid land was executed by appellant-plaintiff in favour of respondent-defendant No. 2, which was registered before Sub rt Registrar, Nalagarh. Thereafter, appellant-plaintiff being holder of the aforesaid cheques, deposited the same in his bank i.e. Jogindra Central Cooperative Bank Limited, Nalagarh for encashment after receiving oral intimation from respondent-defendant No. 1 that he has arranged sufficient funds in the aforesaid account to honour the cheques.
4. However, fact remains that vide memo dated 29.11.2001, bank returned the cheques to the appellant-plaintiff with remarks "insufficient funds". Appellant-plaintiff claimed that respondents-defendants have taken undue benefit of the aforesaid land of appellant-plaintiff and have been getting and using the usufruct of aforesaid land of appellant-plaintiff for their own benefit and due to non payment of aforesaid amount of Rs.1,50,000/-, appellant-plaintiff has suffered damages, harassment and loss, as such, prayed for decree ::: Downloaded on - 15/04/2017 21:18:07 :::HCHP ...4...
of the suit for recovery for an amount of Rs.1,80,000/-alongwith interest @ 12% per annum till realization of the decreetal amount .
alongwith costs, charges etc. Thereafter, appellant-plaintiff through her counsel got issued demand notice dated 22.12.2001 to make payment of cheques amount within 15 days from the receipt of notice.
But respondents-defendants neither replied the said notice nor paid the of cheques amount and started giving assurances that they will make the payment of aforesaid amount of cheques, in order to escape themselves from proceedings under Section 138 of Negotiable rt Instruments Act. Appellant-plaintiff claimed that, she kept waiting for payment of amount of aforesaid cheques by respondents-defendants, but till date respondents-defendants have not paid the aforesaid amount and period for filing criminal complaint under Section 138 of NIA has been elapsed and now on 16.2.2003, the respondents-
defendants have lastly and irrevocably refused to make the payment of aforesaid cheques amount. Hence, she has filed the suit against defendants for recovery of Rs.1,80,000/-.
5. Respondents-defendants by way of written statement refuted the claim put-forth on behalf of appellant-plaintiff and admitted that respondent-defendant No. 2 purchased the land measuring 8 bighas and 19 biswas from appellant-plaintiff for a sale consideration of Rs.3,00,000/-, and respondent-defendant No. 2 paid ::: Downloaded on - 15/04/2017 21:18:07 :::HCHP ...5...
the sale consideration of Rs.3,00,000/- to the appellant-plaintiff, as a result of which, sale deed No. 529, dated 5.5.2001 was duly executed .
and registered before the Sub Registrar, Nalagarh in favour of respondent-defendant No. 2 by appellant-plaintiff, as such, nothing remained due and to be paid to the appellant-plaintiff. Respondent-
defendant No. 1 specifically denied the allegations of issuance of of cheques, if any, in favour of appellant-plaintiff for discharge of any liability. Respondent-defendant No.1 specifically stated in the written statement that there was no liability on respondent-defendant No. 1 as rt the property had been purchased by defendant No. 2 after settling the bargain with the appellant-plaintiff and he never assured the appellant-
plaintiff to make any payment as alleged. It is further stated in written statement that at one point of time respondent-defendant No. 2 had a talk with respondent-defendant No. 1 that he is willing to purchase the remaining land of the appellant-plaintiff as she has earlier sold land to him and she showed her willingness that let the sale deed in favour of respondent-defendant No.1, but respondent-defendant No. 1 explained the position that if the sale deed is to be executed in his name then he will make the payment through cheque and gave the cheques to his father (respondent-defendant No.2) by signing the same but lateron it was told that appellant-plaintiff did not agree for the same as she insisted that sale deed will be in favour of defendant No. 2 as earlier ::: Downloaded on - 15/04/2017 21:18:07 :::HCHP ...6...
also sale deed is in his favour. Respondents-defendants further stated that thereafter aforesaid sale deed No. 529, dated 5.5.2001, was .
executed by the appellant-plaintiff in favour of respondent-defendant No. 2 and now he has disclosed that the above cheques are not with him, it is either lost or left in the house of the appellant-plaintiff as he has been visiting her house time and again in connection with the of above transaction, which was not be materialized. Respondents-
defendants claimed that cheques had fallen into the hands of the appellant-plaintiff and with dishonest intention she wants to utilize the rt same against the respondents-defendants. Respondents-defendants further stated that appellant-plaintiff is estopped by his act and conduct to claim any money by this concocted story because after sale deed mutation was entered by the Revenue Officer, same was contested by Shri Ramesh Chander etc. alleging to be legal heirs of Ram Rakha, wherein, they challenged that succession of the property of deceased Ram Rakha in favour of the appellant-plaintiff is illegal, void and Mutation No. 125 and 163 are illegal because Ist Class heir of Ram Rakha are alive and in these mutations the appellant-plaintiff had appeared and never objected that she had not received the sale consideration and further in appeal before the Collector, appellant-
plaintiff did not raise any objection. Respondents-defendants specifically stated that now a civil suit bearing No. 195/1 of 2001 ::: Downloaded on - 15/04/2017 21:18:07 :::HCHP ...7...
stand filed by Ramesh Chander etc. against the appellant-plaintiff (defendant No. 1 therein), challenging the sale deed, which is pending .
before the learned Sub Judge Ist Class, Nalagarh, wherein, appellant-
plaintiff had admitted that she had received full consideration from defendant No. 2 -Shankar Lal, hence, she is estopped by his act, conduct and acquiescence and cheques, if any, are without of consideration and the defendants are not liable for any liability as alleged. In the aforesaid background, respondents-defendants prayed for dismissal of the suit.
rt
6. Learned trial Court on the basis of aforesaid pleadings, framed following issues:-
"1.Whether the plaintiff is entitled to the recovery of amount as prayed alongwith interest and cost?...OPP
2. Whether the plaintiff is estopped to file the present suit by her acts, conducts and acquiescence? ...OPP
3. Whether the suit is not maintainable?...OPD
4. Relief."
7. Learned trial Court on the basis of pleadings as well as evidence adduced on record by the respective parties decreed the suit of the appellant-plaintiff for recovery of Rs.1,80,000/- and for further interest @ 12% per annum from the date of filing of suit till its realization.
8. Being aggrieved and dis-satisfied with the impugned judgment passed by learned trial Court filed an appeal under Section 96 of the Civil Procedure Code before learned District Judge, Solan, ::: Downloaded on - 15/04/2017 21:18:07 :::HCHP ...8...
which came to be registered as Civil Appeal No. 27-NL/13 of 2006.
However, fact remains that learned District Judge vide judgment dated .
16.6.2007 accepted the appeal and set aside the judgment and decree dated 24.1.2006 passed by learned trial Court.
9. In the aforesaid background, appellant-plaintiff filed instant Regular Second Appeal under Section 100 of the Code of Civil of Procedure praying therein for setting aside and quashing of judgment and decree dated 16.6.2007 passed by learned District & Sessions, Judge, Solan.
rt
10. This Court vide order dated 11.9.2007 admitted the present appeal on following substantial questions of law:-
"1.Whether the findings of the Court below are perverse based on misreading of oral and documentary evidence, wrong assumptions by misconstruing the pleadings of the parties and the documentary evidence particularly Exhibit PW1/A, PW1/B, P1, P2, P3 and P7 to P8 as also the documents Exhibit D1 to D4.
2.Whether the presumption attached to the cheques which was for consideration could be said to be rebutted and the plaintiff was precluded from leading the evidence under Section 92 of the Evidence Act and the conclusions drawn by the Court below against the appellant are sustainable in law.
3. Whether the judgment is contrary to the provisions of Order 20 Rule 5 of the Code of Civil Procedure and the law declared in AIR 2001 H.P. 18 Om Parkash vs. State of H.P.
11. Mr. Rajnish K. Lall, counsel representing the appellant-
plaintiff vehemently argued that impugned judgment and decree of learned First Appellate Court, whereby he reversed the well reasoned judgment of learned trial Court, deserves to be quashed and set aside being contrary to law and facts of the case. Mr. Lall further argued ::: Downloaded on - 15/04/2017 21:18:07 :::HCHP ...9...
that bare perusal of judgment of learned trial Court, whereby, suit of the appellant-plaintiff was decreed for a sum of Rs. 1,80,000/-
.
alongwith further interest from the date of filing of suit, is based upon the correct appreciation of evidence, led on record by the respective parties. Whereas, learned District Judge while wrongly placing reliance upon judgment and decree passed by learned Sub Judge, Ist of Class, Nalagarh in Civil Suit No. 195/1 of 2001, reversed the same, as such, deserves to be quashed and set aside. During arguments, Mr. Lall invited the attention of this Court to Exts. PW1/A, PW1/B, P1, rt P2, P3, P7 and P8 and also to the documents Exts. D1 to D4 to demonstrate that learned First Appellate Court while reversing the findings of learned trial Court, which was based upon correct appreciation of evidence, has misread and misconstrued the oral as well as documentary evidence led on record by the appellant-plaintiff.
Mr. Lall while referring to Exts.P1 and P2 i.e. cheques contended that learned First Appellate Court has fallen in grave error while concluding that presumption attached to the cheques Exts. P1 and P2 has been rebutted, as such, it cannot be said that same were paid for consideration. As per Mr. Lall, careful scrutiny of evidence led on record by the appellant-plaintiff clearly suggests that defendants had issued two cheques amounting to Rs. 1,50,000/- in favour of appellant-plaintiff for balance sale consideration and appellant-
::: Downloaded on - 15/04/2017 21:18:07 :::HCHP...10...
plaintiff was made to agree to the factum of sale consideration being received at the time of execution and registration of the sale deed, as .
such, learned First Appellate Court wrongly arrived to the conclusion that as per Section 92 of the Indian Evidence Act no evidence could be adduced against the terms and conditions of documents which has been reduced into writing, especially, the documents which is, by law, of required to be registered. Mr. Lall also invited the attention of this Court to the statements of PW1 to PW4 to demonstrate that appellant-
plaintiff was successful in establishing that defendants had not been rt paid the remaining sale consideration, as such, same could not be ignored or accepted in preference to the evidence of the defendants DW1 and DW2, which were wholly unreliable and otherwise also could not be relied upon.
12. Mr. Lall while concluding his arguments, forcefully contended that learned trial Court had rightly allowed the suit of the appellant-plaintiff for recovery because it had the advantage of showing the demneours of the witnesses and accordingly had rightly appreciated the evidence led on record by the appellant-plaintiff, whereas, learned First Appellate Court merely drawing wrong inferences and assumptions set aside the judgment of learned trial Court, which was admittedly based upon the correct appreciation of the evidence adduced on record by the respective parties to the lis. Mr. ::: Downloaded on - 15/04/2017 21:18:07 :::HCHP ...11...
Lall also contended that lower Appellate Court, which is a Court of fact ought to have examined the evidence on merit and return findings .
on each issue separately and having failed to do so, the judgment and decree is vitiated and no judgment in the eyes of law in view of Order 20 Rule 5 CPC. He also invited the attention of this Court to AIR 2001 H.P. 18 Om Parkash vs. State of Himachal Pradesh. In the of aforesaid submissions, Mr. Lall prayed for acceptance of the appeal by setting aside impugned judgment passed by learned First Appellate Court. rt
13. Mr. Ramakant Sharma, Senior Advocate, duly assisted by Mr. Basant Thakur, Advocate, strenuously argued that there is no illegality and infirmity in the judgment passed by learned First Appellate Court and the same is based upon correct appreciation of evidence as well as law led on record by the respective parties, as such, there is no scope of interference by this Court in the present case. Mr. Sharma contended that bare perusal of impugned judgment dated 16.6.2007 passed by learned First Appellate Court clearly suggests that it has dealt with each and every aspect of the matter very meticulously. By no stretch of imagination, it can be said that learned First Appellate Court has mis-read and mis-interpreted the evidence led on record by the respective parties. Mr. Sharma further contended that rather perusal of judgment passed by learned trial Court clearly ::: Downloaded on - 15/04/2017 21:18:07 :::HCHP ...12...
depicts that it has miserably failed to appreciate the evidence led on record in its right perspective and, as such, arrived at wrong .
conclusion. Mr. Sharma forcefully contended that documentary evidence led on record by the respondents-defendants was sufficient to conclude that appellant-plaintiff had received total amount of sale consideration in terms of sale deed No. 529 dated 5.5.2001, which was of registered with the Sub Registrar, Nalagarh. While referring to para 6 of the written statement Ext. PW1/A filed by the appellant-plaintiff (defendant therein) in Civil Suit No. 195/1 of 2001, titled Ramesh rt Chander & Ors. vs. Shri Shankar Lal & Anr., wherein present appellant-plaintiff was defendant No. 2, stated that learned trial Court failed to acknowledge specific admission made on record by the appellant-plaintiff that she being absolute owner in possession of the property sold the same to defendant No. 1 Shankar Lal (defendant No. 2 in Civil Suit No. 44/1 of 2003). Similarly, Mr. Sharma invited the attention of the Court to the judgment and decree passed by Sub Judge, Nalagarh, District Solan, H.P. In Civil Suit No. 195/1 of 2001, titled as Ramesh Chander & Ors. Vs. Shanakr Lal and Anr. to demonstrate that learned trial Court vide judgment dated 12.6.2003 decreed the suit of plaintiffs declaring them owners of the suit land and mutation No. 125, dated 24.12.1994 and mutation No. 163, dated 20.11.1999 were also held to be not binding on the plaintiffs.
::: Downloaded on - 15/04/2017 21:18:07 :::HCHP...13...
Similarly, sale deed No. 1259, dated 3.11.1999 and sale deed No. 529, dated 5.5.2001 executed by defendant No. 2 (Smt. Krishna Sharma-
.
appellant/plaintiff herein) in favour of defendant No. 1- Shankar Lal (respondent-defendant No.2 in C.S No. 44/1 of 2003) was also not held binding on the rights of the plaintiffs. Mr. Sharma forcefully contended that once Sale deed No. 529, dated 5.5.2001 executed by of appellant-plaintiff in favour of defendant No. 1 was held to be not binding, no decree for recovery of an amount of Rs.1,80,000/- could be passed by learned trial Court below against the respondents-
rt defendants. While concluding his arguments, Mr. Sharma contended that there is no error apparent in the judgment passed by learned First Appellate Court, rather the same is based upon correct analysis of the evidence, be it ocular or documentary, available on record. Hence, present appeal deserves to be rejected.
14. I have heard the learned counsel for the parties and gone through the record of the case.
15. Now, in view of the aforesaid pleadings, evidence available on record and submissions having been made on behalf of the parties, this Court would be making an attempt to explore the answer to substantial questions of law as reproduced hereinabove.
16. Since, this Court while examining the substantial questions of law, may have to refer entire evidence led on record by ::: Downloaded on - 15/04/2017 21:18:07 :::HCHP ...14...
the respective parties, it intends to take all the substantial questions of law together for consideration.
.
17. It clearly emerges from the record that dispute is with regard to payment of full consideration of the sale amount by the respondents-defendants. Appellant-plaintiff by way of suit for recovery claimed that she being owner in possession of land as of described hereinabove sold the same to defendant No. 2 for the total consideration of Rs. 3,00,000/-. As per appellant-plaintiff, defendant No. 2, at the time of purchasing land, expressed his inability to make rt the payment of whole consideration of Rs. 3,00,000/- in cash and accordingly paid an amount of Rs. 1,50,000/- before execution and registration of sale deed and in order to discharge legal liability of payment of remaining amount of Rs.1,50,000/-, issued two post dated cheques, as mentioned hereinabove, for an amount of Rs.1,00,000/-
and Rs.50,000/- respectively, in her favour payable at UCO Bank, Joghon, Tehsil Nalagarh, District Solan. Since, the aforesaid cheques were dishonoured, appellant-plaintiff was compelled to issue legal notice to the respondents-defendants advising them to make payment good in terms of cheques as referred hereinabove. But fact remains that no payment qua cheques were made good, hence, appellant-
plaintiff filed civil suit for recovery.
::: Downloaded on - 15/04/2017 21:18:07 :::HCHP...15...
18. Respondents-defendants refuting the claim put-forth on behalf of appellant-plaintiff in the plaint, admitted that defendant No. .
2 purchased the land from appellant-plaintiff measuring 8 bighas and 19 biswas for a total sale consideration of Rs.3,00,000/- and respondent-defendant No. 2 paid entire sale consideration of Rs.3,00,000/- to the appellant-plaintiff and accordingly sale deed was of registered on 5.5.2001. As per respondents-defendants nothing was to be paid after execution of sale deed, as being claimed by the appellant-
plaintiff. Respondents-defendants specifically denied that they had rt issued cheques in favour of the appellant-plaintiff to discharge any liability. However, respondents-defendants in written statement also stated that at one point of time the defendant No. 2 in the house had talked with defendant No. 1 that he was purchasing the remaining land of the plaintiff as she had earlier sold land to him and accordingly defendant No. 2 showed his willingness that let this sale deed be in favour of defendant No. 1 but defendant No. 1 stated that if the sale deed is executed in his favour, then he will make the payment through cheque and in this process he gave two cheques to his father defendant No. 2 but that idea could not be materialized. After that sale deed was executed by appellant-plaintiff in favour of defendant No. 2, after receiving full consideration amount but now defendant No. 2 has disclosed that cheques were not with him and stated to have lost or left ::: Downloaded on - 15/04/2017 21:18:07 :::HCHP ...16...
in the house of appellant-plaintiff as he had been visiting her house time and again. Defendants also stated that cheques fallen in the hands .
of appellant-plaintiff who with dishonest intention utilized the same against the defendants by way of filing the present suit.
19. Defendants with a view to substantiate that full amount of sale consideration stand received by appellant-plaintiff, stated that of one Ramesh Chander had filed civil suit No. 195/1 of 2001, wherein appellant-plaintiff (defendant No. 2 in that suit) admitted that she received full consideration from defendant No. 2 -Shankar Lal rt (defendant No. 1 in that suit), as such, present suit for recovery deserves to be dismissed.
20. Learned trial Court while examining the evidence made available on record by the respective parties came to the conclusion that appellant-plaintiff were given two cheques for remaining payment of Rs.1,50,000/- by the respondents-defendants and there is statutory presumption that cheque is always issued for consideration and in discharge of legal liability, hence, plaintiff cannot be estopped to make good amount of cheques which got bounced by way of filing present suit. Learned trial Court below while referring to pleadings in Civil Suit No. 195/1 of 2001 observed that averments made by appellant-
plaintiff (defendant No.2 therein) is to be considered in a manner that ::: Downloaded on - 15/04/2017 21:18:07 :::HCHP ...17...
appellant-plaintiff were given cheques of remaining payment of Rs.1,50,000/- by the respondents-defendants.
.
21. This Court solely with a view to examine the correctness and genuineness of the aforesaid findings returned by the learned trial Court as far as admission made by appellant-plaintiff (defendant No.2 therein) in written statement in Civil Suit No. 195/1 of of 2001 perused Ext. PW1/B. Perusal of EX.PW1/B suggests that one Ramesh Chander had filed suit for declaration to the effect that they are absolute owner in possession of landed property comprised in rt Khata/Khatauni No. 50/55-56 Kitas 8 measuring 18 bighas and 4 Biswas situated in Moza Shahpur Hadbast No. 171, Pargana Dharampur, Tehsil Nalagarh, District Solan, H.P. and defendants have no right, title and interest in or over the said land, wherein, Smt. Kirshna Sharma present appellant-plaintiff was defendant No. 2 and respondent-defendant No. 2-Shankar Lal was defendant No. 1 therein.
By way of aforesaid suit, plaintiffs also sought declaration that sale deed No. 1259, dated 3.11.1999 and sale deed No. 529, dated 5.5.2001 executed by defendant No. 2 - Smt. Krishna Sharma in favour of defendant No. 1-Shankar Lal, registered in the office of Sub Registrar, Nalagarh and Mutation No. 163 in favour of defendant No. 1-Shankar Lal, dated 20.11.1999 are wrong, illegal, null and void ab initio, which do not confer right, title and interest on the defendants. Pursuant to ::: Downloaded on - 15/04/2017 21:18:08 :::HCHP ...18...
filing of aforesaid suit as referred herein-in-above, defendant No. 2 therein-Smt. Krishna Sharma (appellant-plaintiff herein) filed written .
statement wherein in para 6 she stated as under:-
"6.That this para of the plaint as alleged are wrong and denied. The defendant No. 2 being absolute owner in possession of the property sold the same to defendant No. 1 by registered valid sale deed after receiving the consideration and the defendant No. 1 after due enquiry from the record and ascertaining the factual position purchased the same from defendant No. 2 for consideration, hence, the defendant No. 1 is of bonafide purchaser for consideration and the plaintiffs have no right to challenge the same as the defendant No. 1 is in possession as owner at the spot."
22. rt Careful perusal of aforesaid reply filed by present appellant-plaintiff in Civil Suit No. 195/1 of 2001 clearly suggests that she categorically admitted in that civil suit that being absolute owner in possession of the property sold it to defendant No. 1-Shankar Lal by registering valid sale deed after receiving the consideration and defendant No. 1 after due inquiry purchased the same from her for a sale consideration of Rs.3,00,000/-, hence, defendant No. 1 is bonafide purchaser.
23. This Court after perusing the aforesaid reply filed by defendant - Smt. Krishna Sharma (appellant-plaintiff) is of the view that learned trial Court below failed to appreciate the best piece of evidence led on record by appellant-plaintiff (defendant therein) to demonstrate that appellant-plaintiff had actually received full and final payment of Rs.3,00,000/- as a sale consideration for sale of land as described in the suit. Since, appellant-plaintiff specifically stated in ::: Downloaded on - 15/04/2017 21:18:08 :::HCHP ...19...
her plaint that defendants had issued two cheques amounting to Rs.1,50,000/-,defendants solely with a view to prove that entire .
payment was made to plaintiff in terms of sale consideration as agreed upon by the parties rightly placed reliance upon Ext. PW1/A i.e. reply filed by defendants in Civil Suit No. 195/1 of 2001, specifically admitting therein that she being absolute owner in possession of the of property sold the same to defendant No. 1 by valid sale deed and, as such, this Court sees considerable force in the contention put-forth on behalf of respondents-defendants that learned trial Court below failed rt to appreciate the evidence led on record by the respondents-defendants in its right perspective. Learned trial Court below failed to appreciate that since appellant-plaintiff claimed an amount of Rs. 1,80,000/- on account of cheques allegedly issued in her favour by the defendants for discharging of liability of remaining payment of Rs.1,50,000/-, respondents-defendants rightly adduced on record evidence in the shape of written statement Ext.PW1/A (in civil suit No. 195/1 of 2006), wherein, plaintiff admitted that she received entire payment of sale consideration from Shankar Lal (defendant) to demonstrate that nothing was payable to the appellant-plaintiff as far as sale consideration is concerned. Respondents-defendants by way of placing reliance upon PW1/A rightly made an attempt to demonstrate that there was no question of issuance of any cheque in favour of ::: Downloaded on - 15/04/2017 21:18:08 :::HCHP ...20...
appellant-plaintiff since they had already made entire payment of Rs.3,00,000/- as admitted by appellant-plaintiff (defendant No. 2 .
therein) in her written statement in Civil Suit No. 195/1 of 2001.
Since, plaintiff had filed suit for recovery on the strength of two cheques amounting to Rs.1,50,000/- allegedly issued by defendants, onus was upon her to prove that aforesaid cheques were issued by of defendants with a view to discharge legal liability for payment of remaining amount of Rs.1,50,000/-. Though, in the present case, appellant-plaintiff by leading cogent and convincing evidence on rt record was able to prove that cheques were issued by defendants but no evidence worth the name was led on record to prove that aforesaid cheques were issued by respondents-defendants to discharge their liability for payment of remaining amount of Rs.1,50,000/-, whereas, defendants by placing on record Ex.PW1/A were able to prove beyond reasonable doubt that entire amount of Rs.3,00,000/- was received by appellant-plaintiff as a total full consideration amount from respondents-defendants at the time of execution of sale deed No. 529, dated 5.5.2001.
24. Hence, in view of the above, this Court is of the view that learned trial Court has failed to appreciate the evidence led on record in its right perspective and wrongly came to the conclusion that there can be no question of estoppel against the statutory right accrued ::: Downloaded on - 15/04/2017 21:18:08 :::HCHP ...21...
in favour of the appellant-plaintiff on account of bouncing of the cheques. At this stage, it may be observed that learned trial Court .
below while decreeing the suit of the appellant-plaintiff on the strength of two cheques allegedly issued by respondents-defendants wrongly applied the principles of law, which are usually valid in proceedings/trial under Section 138 of Negotiable Instrument Act. In of the present proceedings, as has been discussed in detail, onus was upon the appellant-plaintiff to demonstrate that cheques were issued by defendants for discharge of liability of remaining balance amount.
rt Appellant-plaintiff was unable to prove that cheques, if any, were issued by defendants for discharge of liability of remaining payment of Rs.1,50,000/-,hence, this Court has no hesitation to conclude that there is no illegality and infirmity in the impugned judgment passed by the learned First Appellate Court, as far as this aspect of the matter is concerned.
25. Similarly, perusal of Ext. D1 i.e. judgment dated 12.6.2003, passed in Civil Suit No. 195-1/2001 clearly suggests that learned trial Court while decreeing the suit of the plaintiff (Ramesh Chander) declared them owner of the suit land and apart from that sale deed No. 529, dated 5.5.2001 executed by defendant No. 2 (appellant-
plaintiff herein) in favour of defendant No. 1 (respondent-defendant No. 2 herein) was held not binding on the right of the plaintiffs, ::: Downloaded on - 15/04/2017 21:18:08 :::HCHP ...22...
meaning thereby, the sale by the appellant-plaintiff in favour of defendant was not found to be bonafide transaction as far as sale deed .
No. 529, dated 5.5.2001 is concerned. Rather, if the effect of judgment Ex.D1, dated 12.6.2003 is seen, respondent-defendant No. 2 is entitled to get back the amount, which he allegedly paid to appellant-plaintiff at the time of execution of sale deed. Moreover, judgment and decree of dated 12.6.2003 (Ext.D1) was passed by learned trial Court, before the passing of the judgment and decree dated 24.1.2006 passed by learned trial Court in Civil Suit No. 44/1 of 2003 i.e. subject matter of the rt present case. Even during proceedings of the present case, counsel representing the appellant-plaintiff was unable to refute the aforesaid position as noted down by this Court hereinabove.
26. If the matter is viewed from another angle, it clearly emerges that with the passing of judgment and decree dated 12.6.2003 (Ext.D1), sale pursuant to sale deed No. 1259 dated 3.11.1999 and sale deed No. 529, dated 5.5.2001 having been declared void, wherein, appellant- plaintiff (defendant No. 2 in CS No. 195/1 of 2001) have been ordered to be delivered the possession of the rightful owners, as a result of which, defendants herein not only lost their ownership possession, rather respondents-defendants at this stage can be asked to pay balance amount of sale consideration as having claimed by the appellant-plaintiff in the present suit. In terms of judgment and decree ::: Downloaded on - 15/04/2017 21:18:08 :::HCHP ...23...
dated 12.6.2003 respondents-defendants are entitled to refund of total amount of sale consideration as admittedly received by appellant-
.
plaintiff from defendant No. 2. Since sale by the appellant-plaintiff in favour of respondent-defendant No. 2 has been found to be bona fide transaction in Civil Suit No. 195/1 of 2001, respondent-defendant No. 2 is definitely to get back the amount which he had allegedly paid to of the appellant-plaintiff at the time of execution of sale deed.
27. In view of the above, this Court has no hesitation to conclude that learned trial Court below while decreeing the suit of the rt plaintiff mis-read and misinterpreted the evidence adduced on record by the respective parties, which ultimately resulted into grave injury to the respondents-defendants. Hence, this Court sees no illegality and infirmity in the judgment passed by learned First Appellate Court while accepting the appeal preferred by the respondents-defendants.
28. This Court while examining the substantial questions of law, as has been referred hereinabove, also perused evidence i.e.Ext.
P1, P2, P3, P4, P5,P6, P7 and P8 and also Ext. D1 to D4. Ext.P1 and P2 i.e. cheques allegedly issued by the respondents-defendants in favour of appellant-plaintiff. Since, appellant-plaintiff, as has been discussed in detail, failed to prove that cheques were issued by respondents-defendants with a view to discharge their liability to pay remaining balance amount towards sale consideration, it cannot be ::: Downloaded on - 15/04/2017 21:18:08 :::HCHP ...24...
said that learned First Appellate Court below misread and misinterpreted the same. Similarly, Ex.P3(Sale Deed), perusal whereof .
clearly suggests that appellant-plaintiff had received total amount of sale consideration of Rs.3,00,000/- from the respondents-defendants at the time of execution of sale deed No.529, dated 5.5.2001 duly registered with the Sub Registrar. Ext. P4 and Ext.P5 being memos of issued by bank while returning the cheques with endorsement 'insufficient funds".Ex.P6 i.e. legal notice issued by appellant-plaintiff to the respondents-defendants making demand for payment of rt Rs.1,50,000/-. Ex. P7 and Ext.P8 are postal receipts to demonstrate that legal notice was got issued by the appellant-plaintiff. Ext.P9 is statement of current account placed on record by the appellant-
plaintiff to demonstrate that cheques were presented and same were returned. Perusal of these Exts. P4, P5, P6, P7, P8 and P9 suggest that they have no relevance in the teeth of specific findings returned by the learned First Appellate Court that appellant -plaintiff was unable to prove on record that cheques, which were allegedly issued by respondents-defendants, were towards discharge of their liability to make balance payment towards sale consideration and hence those were not of much help to the appellant-plaintiff to prove her case.
This Court also perused Ext. D1 to Ext. D4. Ext. D1 is a copy of judgment and decree passed by Sub Judge, Nalagarh, District Solan in ::: Downloaded on - 15/04/2017 21:18:08 :::HCHP ...25...
Civil Suit No. 195/1 of 2001, wherein, Smt. Krishna Sharma (defedant No. 2 herein) by way of written statement Ex. PW1/A categorically .
admitted that she being absolute owner of the land sold the same to Shri Shankar Lal (defendant No. 1 therein) after receipt of full amount of consideration. Perusal of Ext. D1 also suggests that suit filed by the plaintiffs (Ramesh Chander & Ors.) was decreed by holding them to of be owner of the suit land and Mutation No. 125, dated 24.12.1994 and Mutation No. 163, dated 20.11.1999 and order of concerned revenue officer were also not held binding upon the plaintiffs therein. But rt most importantly sale deed No. 529, dated 5.5.2001, executed by defendant No. 2 (appellant-plaintiff herein) in favour of defendant No. 1 (defendant No. 2 herein) was held not binding on the right of the plaintiffs, meaning thereby, sale deed No. 529, dated 5.5.2001 executed by appellant-plaintiff herein in favour of respondents-
defendants was declared null and void. Since, aforesaid sale deed was declared null and void in the Civil Suit No. 195/1 of 2001, learned First Appellate Court rightly came to the conclusion that appellant-
plaintiff is estopped from claiming this amount in terms of sale deed as referred hereinabove.
29. Careful perusal of aforesaid exhibits, as referred hereinabove, no where suggests that learned trial Court while accepting the appeal preferred on behalf of defendants mis-read and ::: Downloaded on - 15/04/2017 21:18:08 :::HCHP ...26...
mis-interpreted the oral as well as documentary evidence adduced on record by the respective parties. Rather, careful perusal of documents .
as has been discussed hereinabove, clearly suggests that learned trial Court miserably failed to appreciate the evidence led on record in its right perspective and wrongly decreed the suit of the appellant-
plaintiff. Since presumptions attached to the cheque is concerned, it of may be reiterated that though appellant-plaintiff was successful in proving that cheques were issued by defendants, but as has been discussed in detail, onus was upon appellant-plaintiff to prove that rt cheques Exts. P1 and P2 were allegedly issued by defendants to discharge their legal liability for payment of remaining amount of Rs.
1,50,000/-. Since, this Court has came to the conclusion that respondents-defendants were able to prove by leading cogent and convincing evidence that appellant-plaintiff had received full and final payment at the time of execution of sale deed, this Court is unable to accept the contention put-forth on behalf of appellant-plaintiff that cheques Ex.P1 and Ext.P2 were issued by defendants discharging their liability to pay remaining amount of Rs.1,50,000/-. Moreover, learned trial Court while decreeing the suit filed by the appellant-plaintiff applied the principles which were applicable in proceedings under Section 138 of Negotiable Instruments Act, as such, impugned judgment was rightly set aside by the learned First Appellate Court.
::: Downloaded on - 15/04/2017 21:18:08 :::HCHP...27...
30. After perusal of the entire evidence led on record, this Court is unable to accept the contention put-forth on behalf of .
appellant-plaintiff that judgment and decree vitiated in the eyes of law since learned First Appellate Court failed to render findings on each issue separately as required under Order 20 Rule 5 of the Civil Procedure Code, because, close scrutiny of evidence available on of record clearly suggests that learned First Appellate Court has dealt with each and every aspect of the matter very meticulously and has returned findings on each issue while accepting the appeal preferred rt on behalf of the respondents-defendants. Hence, in view of the detailed discussed made hereinabove, this Court sees no merit in the contention put-forth on behalf of appellate-plaintiff and, as such, substantial questions of law are answered accordingly.
31. Consequently, in view of the detailed discussion made hereinabove, this Court sees no force in the present appeal, as such, the same is dismissed and judgment passed by learned First Appellate Court is upheld.
(Sandeep Sharma )
September 23, 2016 Judge.
(sanjeev)
::: Downloaded on - 15/04/2017 21:18:08 :::HCHP