Gujarat High Court
Trivedi Kalidas Umiyashankar vs Lr Of Decd Thakor Fakirji Mafaji on 15 September, 2023
Author: Bhargav D. Karia
Bench: Bhargav D. Karia
NEUTRAL CITATION
C/SA/15/2023 CAV JUDGMENT DATED: 15/09/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SECOND APPEAL NO. 15 of 2023
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2023
In R/SECOND APPEAL NO. 15 of 2023
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE BHARGAV D. KARIA
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1 Whether Reporters of Local Papers may be allowed
to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy
of the judgment ?
4 Whether this case involves a substantial question
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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TRIVEDI KALIDAS UMIYASHANKAR
Versus
LR OF DECD THAKOR FAKIRJI MAFAJI
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Appearance:
MR. BHAVIK P SHAH(6391) for the Appellant(s) No.
1,2,2.1,2.1.1,2.1.2,2.1.3,3
MR. ZALAK B PIPALIA(6161) for the Appellant(s) No.
1,2,2.1,2.1.1,2.1.2,2.1.3,3
for the Respondent(s) No. 1.1,2,3
VINAY D BAIRAGRA(8360) for the Respondent(s) No.
1,1.2,1.3,1.4,1.5,1.5.1,1.5.2,1.6,1.7
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CORAM:HONOURABLE MR. JUSTICE BHARGAV D. KARIA
Date : 15/09/2023
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NEUTRAL CITATION
C/SA/15/2023 CAV JUDGMENT DATED: 15/09/2023
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CAV JUDGMENT
1.Heard learned advocate Mr. Zalak B. Pipalia for the appellants and learned Senior Advocate Mr. Kamal B. Trivedi assisted by learned advocate Mr. Vinay D. Bairagar for respondent nos. 1, 1.2, 1.3, 1.4, 1.5, 1.5.1, 1.5.2, 1.6 and 1.7.
2.By this appeal, the appellants have challenged the legality and validity of Judgment and Order dated 13.12.2022 passed below Exh.34 in Regular Civil Appeal No. 87 of 2019 passed by learned Additional District Judge, Gandhinagar at Kalol raising the following substantial questions of law:
"(A) Whether the Ld. Lower Appellate court has erred in coming to a conclusion that the aspect of fraud as alleged by the plaintiff is not proved before the Ld. Trial Court?
(B) Whether the Ld. Lower Appellate Court has wrongly not considered the oral evidence of Page 2 of 70 Downloaded on : Sat Sep 16 17:21:19 IST 2023 NEUTRAL CITATION C/SA/15/2023 CAV JUDGMENT DATED: 15/09/2023 undefined the defendant no.1 for the purpose of proving the factum of passing of consideration in lieu of execution of sale deed without appreciating the provisions of the Evidence Act?
(C) Whether the Ld. Lower Appellate Court has erred in giving the finding that the suit is barred by limitation?
(D) Whether the Ld. Lower Appellate Court has erred in reversing the well reasoned judgment of the Trial Court without appreciating that the burden of proof lies on the defendant to prove his defense as mentioned in his written statement?
(E) Whether the Ld. Lower appellate Court has erred in passing the impugned judgment without taking into consideration that there is no evidence produced on record by the defendants to show that they have paid the amount of consideration to the plaintiffs?"
3.Brief facts of the case are that land bearing Survey No.809 admeasuring 40193 sq. mtrs at Village Ranchada, Taluka Kalol, District Page 3 of 70 Downloaded on : Sat Sep 16 17:21:19 IST 2023 NEUTRAL CITATION C/SA/15/2023 CAV JUDGMENT DATED: 15/09/2023 undefined Gandhinagar was under the joint ownership of seven persons out of which the unsold portion of 11852.8 sq. mtrs (hereinafter referred to as "the suit property") was owned by the appellants - original plaintiff nos. 1 to 3 (hereinafter referred to as the plaintiffs), respondent no.2-original defendant no. 2 (hereinafter referred to as defendant no.2) and respondent no.3-original defendant no.3 (hereinafter referred to as defendant no.3). So far as respondent no.3 original defendant no.3 is concerned, he had no share in the disputed property but he was joined as party for technical reasons but no relief was claimed in the plaint.
3.1) On 06.06.2005, one Shri Chandrakantbhai Ramkrushnabhai Tripathy plaintiff no. 3 and Shri Jaydevbhai Ramkrushnabhai Tripathy - defendant no.2 executed a Power of Attorney in favour of Page 4 of 70 Downloaded on : Sat Sep 16 17:21:19 IST 2023 NEUTRAL CITATION C/SA/15/2023 CAV JUDGMENT DATED: 15/09/2023 undefined Shri Kalidas Umiyashankar Trivedi - plaintiff no.1 to execute the Agreement to Sale/Sale Deed on their behalf.
3.2) Plaintiffs and defendant no.2 being the owner of the land bearing Survey No.809 admeasuring 10371.2 sq. mtrs and defendant no.3 owning share of 1481.6 sq. mtrs executed a Sale Deed duly registered under the provisions of Indian Registration Act, 1908 on 13.09.2005 in favor of defendant no.1 for a sale consideration of Rs. 9,58,500/-. The parties to the aforesaid sale deed also executed a notarized Declaration cum Indemnity Bond to the effect that out of the total land under Survey no. 809, the remaining unsold portion of land admeasuring 11852.8 sq. mtrs is sold to one Shri Fakirbhai Mafaji Thakore, defendant no.1 in the suit.
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NEUTRAL CITATION C/SA/15/2023 CAV JUDGMENT DATED: 15/09/2023 undefined 3.3) The other landowners and their legal heirs having interest in the land bearing survey no. 809 executed an Acceptance Deed dated 12.08.2005 duly registered in favour of defendant no.1 inter-alia accepting and confirming the execution of the aforesaid sale deed in favor of defendant no.1 in its entirety.
3.4) It is the say of the plaintiffs that defendant no.1 and his men met deceased Dashrathbhai Umiyashankar who was engaged in commission business of land property and he assured good price for the disputed property and obtained Power of Attorney from the plaintiffs for want of some procedure and documentation in respect of prospective customers. It was also contended that the plaintiffs did not receive any amount of consideration from defendant no.1 in lieu of signature in Power of Attorney or other Page 6 of 70 Downloaded on : Sat Sep 16 17:21:19 IST 2023 NEUTRAL CITATION C/SA/15/2023 CAV JUDGMENT DATED: 15/09/2023 undefined documents. On the contrary, the plaintiffs were told to wait for completion of Diwali festival and were also assured for good prospective amount for the suit property but when the plaintiff inquired into Revenue record, it was revealed that defendant no.1 has executed a registered sale deed on 13.09.2005 for consideration of Rs.9,48,500/- The plaintiffs further contended that plaintiff no.1 was shown as Power of Attorney of plaintiff no.3 and defendant no.3 in the sale deed which was registered at Sr No.2633 in the office of sub registrar. The plaintiffs were surprised when they obtained copy of index on 27.10.2008 and came to know that they have been cheated by defendant no.1 by obtaining fraudulent signature in sale deed in the name of Power of Attorney. It was also contended that defendant no.1 has committed criminal breach of trust by obtaining sale deed fraudulently and mutation Page 7 of 70 Downloaded on : Sat Sep 16 17:21:19 IST 2023 NEUTRAL CITATION C/SA/15/2023 CAV JUDGMENT DATED: 15/09/2023 undefined of the same in Revenue record by Entry No.6465 without payment of consideration to the plaintiffs.
3.5) The plaintiffs filed Special Civil Suit No. 124 of 2008 before the learned Principal Civil Judge, Kalol seeking cancellation of Registered Deed dated 13.09.2005.
3.6) The defendant no.1 filed its written statement on 08.07.2009 raising various grounds including the aspect of limitation as well as categorically stating that there is no fraud on part of the original defendant no.1 and that sale consideration was duly paid to the plaintiffs.
3.7) The plaintiffs thereafter sought amendment of the plaint on 25.01.2012 which was allowed. Thereafter suit was dismissed Page 8 of 70 Downloaded on : Sat Sep 16 17:21:19 IST 2023 NEUTRAL CITATION C/SA/15/2023 CAV JUDGMENT DATED: 15/09/2023 undefined for non prosecution vide order dated 27.10.2015 under Order IX Rule 3 of the Code of Civil Procedure, 1908 (For short "the Code") which was restored vide order dated 03.02.2018 by the trial Court on an application filed by the plaintiffs. 3.8) The plaintiffs filed examination in chief on 11.12.2018 and plaintiff no. 1 was cross examined on 08.01.2019. Defendant No.1/2 and one Shri Thakore Ranchodji Buaji, who was watchman of the suit property, filed their respective affidavits on 18.03.2019 and 24.06.2019 and the said witnesses were cross examined on 15.04.2019.
3.9) Learned trial Court passed the Judgment and Decree dated 05.11.2019 in favour of the plaintiffs setting aside the registered Sale Deed dated 13.09.2005 and Acceptance Deed dated 12.08.2005. Page 9 of 70 Downloaded on : Sat Sep 16 17:21:19 IST 2023
NEUTRAL CITATION C/SA/15/2023 CAV JUDGMENT DATED: 15/09/2023 undefined 3.10) Being aggrieved and dissatisfied by the Judgment and Decree, defendant no.1 filed First Appeal being Regular Civil Appeal No.87 of 2019 before the learned Additional District Court, Gandhinagar. 3.11) Learned Appellate Court by Judgment and Order dated 13.12.2022 allowed the appeal filed by defendant no.1 quashing and setting aside Judgment and Decree dated 19.12.2019 passed by the trial Court.
3.12) The appellants being aggrieved by the Judgment and order dated 13.12.2022 have preferred this Second Appeal raising the substantial questions of law stated hereinabove.
4.Learned advocate Mr. Zalak B. Pipalia for the appellants submitted that learned Page 10 of 70 Downloaded on : Sat Sep 16 17:21:19 IST 2023 NEUTRAL CITATION C/SA/15/2023 CAV JUDGMENT DATED: 15/09/2023 undefined Appellate Judge did not deal with the evidence on record and has given weightage to the aspect that the appellants did not institute any criminal proceedings against defendant no.1 and did not challenge the entry of the registered sale deed before the revenue authority without considering the fact that the genuineness of the sale transaction was challenged before the trial Court and the plaintiffs have been successful on the basis of evidence on record in the said challenge before the trial Court. It was submitted that the Appellate Court ignored the aspect of non payment of consideration during the execution of the sale deed, more particularly, when the defendants have failed to prove contrary that the sale consideration was received by the plaintiffs by adducing any evidence to that effect.
4.1) It was submitted that the Appellate Page 11 of 70 Downloaded on : Sat Sep 16 17:21:19 IST 2023 NEUTRAL CITATION C/SA/15/2023 CAV JUDGMENT DATED: 15/09/2023 undefined Court committed an error by holding that plaintiffs did not claim any relief for recovery of possession and therefore, sale deed could not have been cancelled by the trial Court. It was submitted that as per the provisions of the Evidence Act, oral evidence is admissible to show that the document executed was never intended to operate but that some other agreement, not recorded into the document was entered into between the parties. It was submitted that the Appellate Court has not taken into consideration the material provisions of the Evidence Act while arriving at the finding that the judgment of the trial Court is only based upon cross examination of the defendant. 4.2) It was submitted that suit was instituted only on the basis that plaintiffs were made to understand that they were signing Power of Attorney and not sale deed, Page 12 of 70 Downloaded on : Sat Sep 16 17:21:19 IST 2023 NEUTRAL CITATION C/SA/15/2023 CAV JUDGMENT DATED: 15/09/2023 undefined but sale deed was executed in favour of defendant no.1 by misrepresentation without payment of any consideration to the plaintiffs. It was therefore, submitted that the Appellate Court failed to appreciate that the factum of payment of sale consideration as well as the financial capacity and requisite proof with regard to passing of the sale consideration has not been produced and not even proved by the defendants and therefore, well reasoned judgment passed by the trial Court could not have been reversed on assumption and presumption without assigning any cogent reason in support thereof.
4.3) Learned advocate Mr. Pipalia invited the attention of the Court to the cross examination of plaintiff no.1 to submit that when the plaintiff has specifically denied receiving of amount of sale consideration, no Page 13 of 70 Downloaded on : Sat Sep 16 17:21:19 IST 2023 NEUTRAL CITATION C/SA/15/2023 CAV JUDGMENT DATED: 15/09/2023 undefined questions/suggestions were put to the plaintiff asking what was the full amount of consideration to be paid to the plaintiff and other legal heirs prior to or on the date of execution of the sale deed nor any question was asked about the amount of consideration that was paid at the time of execution of the sale deed.
4.4) Learned advocate Mr. Pipaliya referred to and relied upon to the conclusion arrived at by the trial Court that defendant no.1 has failed to prove that payment of full consideration to the plaintiffs by adducing cogent evidence. It was therefore, submitted that the Appellate Court failed to appreciate the evidence led before the trial Court in its true perspective inspite of the fact that it was specifically the case of the plaintiffs that sale deed was executed fraudulently.
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NEUTRAL CITATION C/SA/15/2023 CAV JUDGMENT DATED: 15/09/2023 undefined 4.5) It was submitted that the Appellate Court was also required to check the minute details with regard to the signatures, measurement etc. of the suit property in the sale deed, more particularly, when defendant no. 1.2 Shaileshbhai Fakirbhai Thakor had deposed on oath that he was present at the time of execution of the sale deed with his deceased father and had signed the sale deed as witness. It was submitted that on consideration of signature of witness of the sale deed, it appears that one Bharat F. Thakore has signed the same and not defendant No.1.2 Shaileshbhai Thakor. Though defendant no. 1.2 during his cross examination stated that his second name is Bharat Thakor, he failed to clarify the same in his affidavit of examination in chief. It was therefore pointed out that the learned Appellate Court has missed all such minute Page 15 of 70 Downloaded on : Sat Sep 16 17:21:19 IST 2023 NEUTRAL CITATION C/SA/15/2023 CAV JUDGMENT DATED: 15/09/2023 undefined details while appreciating the evidence on record.
4.6) Learned advocate Mr. Pipaliya would submit that the learned Appellate Court has missed out the most relevant part that the plaintiffs' signature is also not present on each and every page of the registered sale deed which is considered in detail by the trial Court. Learned Appellate Court therefore, could not have quashed and set aside the detailed judgment rendered by the trial Court without taking into consideration all the infirmities in the sale deed sought to be cancelled by the plaintiffs. 4.7) It was submitted that learned Appellate Judge has given a finding that the burden of proving certain averments made in the plaint with regard to fraud and non receipt of consideration is upon the Page 16 of 70 Downloaded on : Sat Sep 16 17:21:19 IST 2023 NEUTRAL CITATION C/SA/15/2023 CAV JUDGMENT DATED: 15/09/2023 undefined plaintiffs, but at the same time learned Judge did not take into consideration that when it is a case of fraud, even oral evidence is admissible to show that the document in question was never intended to be executed and the same has been sufficiently proved by the plaintiffs relying upon the oral evidence of the defendant No.1. 4.8) It was submitted that learned Appellate Court has erroneously come to the conclusion since the plaintiffs no.1 was working with the office of the Ahmedabad Municipal Corporation, he was an educated person and therefore, he was well aware of the difference between power of attorney. agreement to sale and a sale deed ignoring the fact that the plaintiff no.1 in his cross examination has stated that he has studied till 7th Standard and in fact he was employed with the corporation as a peon, and therefore Page 17 of 70 Downloaded on : Sat Sep 16 17:21:19 IST 2023 NEUTRAL CITATION C/SA/15/2023 CAV JUDGMENT DATED: 15/09/2023 undefined a person who is educated till class 7 can hardly make out any difference between the documents such as power of attorney, sale deed and agreement to sale. It was therefore, submitted by learned advocate Mr. Pipaliya that the learned Appellate Judge has arrived at such findings only on the basis of inferences and learned Judge was not right in holding that since person is serving in the office of Municipal Corporation, he is bound to know about the difference in the documents.
4.9) It was submitted by learned advocate Mr. Pipaliya that heavy reliance was placed by learned Appellate Judge upon the cross examination of plaintiff no.1 wherein he has stated that he is not in possession of the subject land, to reach to a conclusion that without execution of sale deed in favor of defendant No.1, they could not have been put Page 18 of 70 Downloaded on : Sat Sep 16 17:21:19 IST 2023 NEUTRAL CITATION C/SA/15/2023 CAV JUDGMENT DATED: 15/09/2023 undefined in possession of the land in dispute. 4.10) It was therefore submitted that such findings arrived at by learned Appellate Judge is erroneous because it cannot be presumed that when a person is in possession then documents upon which he claims possession is legal and valid. 4.11) Learned advocate Mr. Pipaliya submitted that the findings arrived at by learned Judge that the suit is time barred is also erroneous as no such issue of limitation was ever raised before the trial Court while framing the issues and therefore, learned Appellate Judge could not have given any finding with regard to the said aspect. It was submitted that suit being filed within law of limitation is a mixed question of law and fact and the same was required to be raised before the trial Court and such issue Page 19 of 70 Downloaded on : Sat Sep 16 17:21:19 IST 2023 NEUTRAL CITATION C/SA/15/2023 CAV JUDGMENT DATED: 15/09/2023 undefined could not have been considered by the Appellate Judge in the First Appeal and therefore, it is to be presumed that the parties have waived the same. It was pointed out that the cause of action mentioned in the suit itself is clear to show that the suit was filed within the limitation prescribed in Article 56 of the Law of Limitation Act. It was also pointed out that learned Judge has misinterpreted the provisions of Section 54 of the Transfer of Property Act. 4.12) Learned advocate Mr. Pipaliya in support of his submissions referred to and relied upon the decision of this Court in case of Bhupendra Shantilal Shah v. Fanny Rustomji Contractor (Judgment dated 06.05.2022 passed in First Appeal No.2592/2019), wherein after referring to the decision of Apex Court in case of Subhra Mukherjee v. Bharat Coking Coal Ltd., Page 20 of 70 Downloaded on : Sat Sep 16 17:21:19 IST 2023 NEUTRAL CITATION C/SA/15/2023 CAV JUDGMENT DATED: 15/09/2023 undefined reported in (2000) 3 SCC 312, it was held that though the burden of proving fraud lies on the persons alleging it, fraud is not capable of being established by positive and tangible proof. It is therefore, sufficient if the evidence given is such as may lead to an inference that fraud must have been committed. It was submitted that in facts of the said case it was observed that defendants nos. 2 and 3 could not have remained silent spectators to have waited for defendant no.1 to produce the original documents on his own and law is clear on the point that if a party calls upon other to produce a document as evidence and on being produced, inspects them, the document should be taken as evidence by both the parties without proof and should be admitted in toto. 4.13) Learned advocate Mr. Pipaliya also referred to and relied upon the decision of Page 21 of 70 Downloaded on : Sat Sep 16 17:21:19 IST 2023 NEUTRAL CITATION C/SA/15/2023 CAV JUDGMENT DATED: 15/09/2023 undefined in case of Gangabai v. Chhabubai reported in (1982) 1 SCC 4, wherein the Apex Court while interpreting sections 92(1) and 92 of the Evidence Act, 1872 held that bar imposed by sub-section (1) of section 92 applies only when a party seeks to rely upon the document embodying the terms of the transaction and in that event, the law declares that the nature and intent of the transaction must be gathered from the terms of the document itself and no evidence of any oral agreement or statement can be admitted as between the parties to such document for the purpose of contradicting or modifying its terms. It was further held that sub-section is not attracted when the case of a party is that the transaction recorded in 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 Page 22 of 70 Downloaded on : Sat Sep 16 17:21:19 IST 2023 NEUTRAL CITATION C/SA/15/2023 CAV JUDGMENT DATED: 15/09/2023 undefined 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. The Apex Court referred to and relied upon the decision in case of Tyagaraja Mudaliyar v. Vedathanni reported in AIR 1936 PC 70 wherein it was held that the trial Court was right in permitting the respondent to lead oral evidence in support of her plea that the sale deed dated January 7, 1953 was a sham document and never intended to be acted upon. It was not disputed that if the oral evidence is admissible, the finding of the Court below in favour of the respondent must be accepted. It was therefore, submitted that in facts of Page 23 of 70 Downloaded on : Sat Sep 16 17:21:19 IST 2023 NEUTRAL CITATION C/SA/15/2023 CAV JUDGMENT DATED: 15/09/2023 undefined the case, the Appellate Court has failed to consider the oral evidence as admissible in favour of the appellants-plaintiffs. 4.14) Reliance was placed on decision of Division Bench of this Court in case of Veljibhai Mavjibhai Mistry v. Joitiben Wd/o Bababhai Jaitabhai Patel Through Legal Heirs and others (Judgment dated 18.09.2017 passed in First Appeal Nos.2254 and 2255 of 2015), wherein it is held as under:
"6. In light of the provisions of Order VI Rule 4 read with the provisions of Section 100 of the Evidence Act, once, the plaintiff asserted that no consideration was received, the burden of proof to prove the contrary was on the defendants 1 and 2. Apart from the fallacy of the consideration having being paid on the same day, being exposed through their cross- examination itself, no receipts of proof that actual consideration has been paid is brought forth by them. Payment of consideration in cash and cheque was within the special knowledge of the defendant no. 2 which burden both, the defendant No. 1 and defendant No. 2 have failed to discharge. If it was their case that Page 24 of 70 Downloaded on : Sat Sep 16 17:21:19 IST 2023 NEUTRAL CITATION C/SA/15/2023 CAV JUDGMENT DATED: 15/09/2023 undefined in fact, cash amount of Rs.29,00,000/- plus a cheque for an amount of Rs. 4,00,000/- was paid on the date of the Power Of Attorney, the primary responsibility to prove such fact was upon them. In fact, when a suggestion is made in the cross-examination, the defendant no. 1 categorically admits that he did not know whether the defendant No. 2 insisted for receipts."
5.On the other hand, learned Senior Advocate Mr. Kamal Trivedi with learned advocate Mr. Vinay Bairagar for the respondents original defendants submitted that learned Appellate Judge having appreciated the evidence on record has rightly arrived at conclusion that registered sale deed could not have been cancelled by the trial Court when fraud and non payment of consideration were not proved. It was submitted that assuming that entire sale consideration had not in fact being paid, it could definitely not be a ground for cancellation of the registered sale deed. It was submitted that no question of law much- Page 25 of 70 Downloaded on : Sat Sep 16 17:21:19 IST 2023
NEUTRAL CITATION C/SA/15/2023 CAV JUDGMENT DATED: 15/09/2023 undefined less any substantial question of law arises from the impugned judgment and order passed by the Appellate Court inasmuch as the appellants-plaintiffs have failed to prove the aspect of fraud, non payment of sale consideration to the defendant no.1. 5.1) Learned Senior Advocate Mr. Trivedi invited the attention of the Court that defendant no.3 was shown as a confirming party to the registered sale deed and he has never challenged the said registered sale deed. It was submitted that as per section 32(a) of the Registration Act, all the parties who have executed the aforesaid said deed, have signed and put their thumb impressions in front of Sub-Registrar Kalol. Therefore, the plaintiffs who have already signed the sale deed cannot now say that they have signed the sale deed as a Power of Attorney. It was also pointed out that in the Page 26 of 70 Downloaded on : Sat Sep 16 17:21:19 IST 2023 NEUTRAL CITATION C/SA/15/2023 CAV JUDGMENT DATED: 15/09/2023 undefined suit filed by the appellants-plaintiffs, the contents of the aforesaid registered sale deed have not been disputed on any count, but the sale deed is sought to be challenged only on the ground that the said document has been made to be signed by the plaintiffs under the guise of Power of Attorney and without consideration. It was submitted that Declaration cum Indemnity Bond which are containing identical contents to those mentioned in the sale deed have never been challenged by the plaintiffs, more particularly, paragraph no.32 of the said document refers to the aspect of sale of the suit property by the sale deed in favour of the defendant no.1.
5.2) It was submitted that none of the signatures to the Acceptance Deed which was sought to be cancelled in the plaint has never been questioned by any one before any Page 27 of 70 Downloaded on : Sat Sep 16 17:21:19 IST 2023 NEUTRAL CITATION C/SA/15/2023 CAV JUDGMENT DATED: 15/09/2023 undefined Court except by plaintiffs in the suit. 5.3) It was submitted that the Appellate Court after re-appreciating the evidence has come to the conclusion that the trial Court committed an error by allowing the suit by holding that Sale Deed dated 13.09.2005 was without consideration and therefore, null and void.
5.4) It was submitted that the trial Court did not appreciate the evidence properly as trial Court has given unnecessary importance to negligent and irrelevant description recorded in the cross examination of defendant nos. 1 and 2 to hold that sale deed was without consideration and was executed fraudulently by shifting onus upon defendant no.1 to prove the legality of the registered sale deed in question instead of the plaintiffs who are supposed to prove that Page 28 of 70 Downloaded on : Sat Sep 16 17:21:19 IST 2023 NEUTRAL CITATION C/SA/15/2023 CAV JUDGMENT DATED: 15/09/2023 undefined defendant no.1 got the sale deed executed in his favour fraudulently. It was submitted that the scope in Second Appeal is very narrow as per the settled legal position and only substantial questions of law can be considered without appreciating the evidence on record. It was submitted that the plaintiffs have not raised any question of perversity with regard to the impugned Judgment and Order passed by the Appellate Court.
5.5) In support of his submissions, reliance was placed in case of Dahiben v. Arvindbhai Kalyanji Bhanusali (Gajra) Dead Through Legal Representatives and others reported in (2020) 7 Supreme Court Cases 366, wherein it is held by the Apex Court that if the plaintiffs had a genuine grievance of non payment of sale consideration then action could have been taken by the plaintiffs to Page 29 of 70 Downloaded on : Sat Sep 16 17:21:19 IST 2023 NEUTRAL CITATION C/SA/15/2023 CAV JUDGMENT DATED: 15/09/2023 undefined recover but same could not be a ground for cancellation of the sale deed as the plaintiffs may have other remedies in law for recovery of sale consideration but could not be granted relief of cancellation of registered sale deed. The Apex Court found that the suit filed by the plaintiffs was vexatious, meritless and does not disclose a right to sue.
5.6) Reliance was also placed on the decision in case of Rattan Singh and others v. Nirmal Gill and others reported in 2020 SCC OnLine SC 936, wherein the Apex Court in similar facts held that proof beyond reasonable doubt is not a requirement of law and when registered sale deed was not in dispute, the burden was on the party denying the receipt of sale price and onus to prove that the sale consideration was not paid, could not be placed on the defendants. The Page 30 of 70 Downloaded on : Sat Sep 16 17:21:19 IST 2023 NEUTRAL CITATION C/SA/15/2023 CAV JUDGMENT DATED: 15/09/2023 undefined Apex Court while considering the aspect of fraud in respect of documents i.e. General Power of Attorney and Sale Deed executed in the year 1990 held that even assuming that the burden had shifted upon the defendants, the witness identifying signatures of the dead when attesting witness was examined by the defendants then, the documents stood proved and the burden was duly discharged by the defendants. The Apex Court therefore, held that the plaintiff was obliged to rebut the positive evidence produced by the defendants regarding payment of consideration amount to the plaintiff; but also ought to have independently proved her case of non-receipt of the consideration amount. It was therefore submitted that in facts of the case, the plaintiffs did not prove non receipt of consideration and mere assertion in the oral evidence is not sufficient as sought to be Page 31 of 70 Downloaded on : Sat Sep 16 17:21:19 IST 2023 NEUTRAL CITATION C/SA/15/2023 CAV JUDGMENT DATED: 15/09/2023 undefined canvassed on behalf of the plaintiffs. It was submitted that learned Appellate Judge has therefore, rightly come to the conclusion after re-appreciating the evidence by negating the say of the plaintiffs in view of provisions of section 54 of Transfer of Property Act which defines "Sale" as transfer or ownership in exchange for a price paid or promised or part paid and part promised. The Appellate Court therefore, considering para 24 of the registered sale deed at Exh. 101 and 126 came to the conclusion that sale price of the subject land was received in piece-meal by the plaintiffs from defendant no.1 and thereafter the defendant no.1 was put in possession.
5.7) Learned Senior Advocate Mr. Kamal Trivedi also referred to the deposition of the witness of the defendant Thakor Ranchhodji Budaji at Exh.140, wherein he has Page 32 of 70 Downloaded on : Sat Sep 16 17:21:19 IST 2023 NEUTRAL CITATION C/SA/15/2023 CAV JUDGMENT DATED: 15/09/2023 undefined specifically stated that the subject land is in possession of the defendant No.1 and he is working as watchman for about last seven years. It was submitted that defendant no.1 was put in possession after execution of the sale deed on payment of sale consideration to the plaintiffs. Reference was also made to the evidence of plaintiff no.1 Trivedi Kalidas Umiyashankar at Exh.90, wherein he has also admitted that defendant No.1 and his legal heirs are in possession of the subject land and he has not challenged mutation entry no.6465 wherein names of Defendant No.1 wherein names of legal heirs have been entered since 13.01.2006 and running till today.
5.8) With regard to issue of limitation, it was submitted by learned Senior Advocate Mr. Trivedi that the Appellate Judge after scrutiny of the record and the impugned Page 33 of 70 Downloaded on : Sat Sep 16 17:21:19 IST 2023 NEUTRAL CITATION C/SA/15/2023 CAV JUDGMENT DATED: 15/09/2023 undefined judgment referred to the written statement at Exh.33 filed by the defendants raising bar of limitation which was not considered by the trial Court in view of allegation of fraud pleaded by the plaintiffs that they came to know about the alleged fraud in the year 2008 on receipt of index of sale deed. It was submitted that the Appellate Judge taking note of such issue examined the question on law and facts and held that trial Court has ignored the same resulting into miscarriage of justice. It was in this context that the Appellate Court held that suit filed by the plaintiffs was barred by limitation reversing the findings of the trial Court in light of facts on record. It was submitted that the learned Appellate Court has not decided the issue of limitation but has specifically referred to the same being lacuna in the Judgment and Decree passed by the trial Court.
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NEUTRAL CITATION C/SA/15/2023 CAV JUDGMENT DATED: 15/09/2023 undefined 5.9) Learned Senior Advocate Mr. Kamal Trivedi submitted that the Appellate Court after re-appreciating the evidence has come to the conclusion that it was not proved by the plaintiffs that no consideration was paid and it is the case of the defendants that the amount of consideration was paid in piece- meal to the plaintiffs by the defendant no.1 and even if some amount remained unpaid then in that case also as per the settled legal position, registered sale deed could not have been declared as null and void and the appellants-plaintiffs could have filed the suit for recovery of unpaid amount of consideration.
6.Heard the learned advocates for the respective parties and considered the paper book filed on behalf of the respondents containing all the documents on record, copy Page 35 of 70 Downloaded on : Sat Sep 16 17:21:19 IST 2023 NEUTRAL CITATION C/SA/15/2023 CAV JUDGMENT DATED: 15/09/2023 undefined of plaint, written statement, oral evidence of the plaintiff, oral evidence of the defendants, copy of Sale Deed, Acceptance Deed, Power of Attorney and Declaration cum Indemnity Bond etc.
7.Considering the impugned Judgment and Decree passed by the trial Court which is reversed by the impugned Judgment and order passed by the Appellate Court as well as the oral and documentary evidence placed on record, it emerges that in the suit filed by the appellants-plaintiffs for cancellation of sale deed on the ground of fraud and non receipt of Rs. 9,48,500/-, onus to prove that sale deed was fraudulent and without consideration was upon the appellants - plaintiffs by adducing clinching and cogent evidence.
8.It is well settled that when allegation of Page 36 of 70 Downloaded on : Sat Sep 16 17:21:19 IST 2023 NEUTRAL CITATION C/SA/15/2023 CAV JUDGMENT DATED: 15/09/2023 undefined fraud is levelled, it must be pleaded in no uncertain terms supported by evidence to be proved by the party alleging such fraud to demonstrate as to the manner in which fraud was played upon the plaintiffs.
9.On perusal of the Judgment and Decree passed by the trial Court, it appears that the trial Court relied upon the deposition and cross examination of defendant no.1/2 Shaileshbhai Fakirbhai Thakore at Exh.113 wherein he has denied the allegation of fraud and stated that the amount of consideration of Rs.9,48,500/- was paid in piece-meal. Ignoring such evidence trial Court unduly gave importance to the fact that defendant no.1 did not specifically submit how the amount of consideration was given, on which date and to whom it was so given and where it was given. Whereas on the other hand, the deposition and cross examination of the Page 37 of 70 Downloaded on : Sat Sep 16 17:21:19 IST 2023 NEUTRAL CITATION C/SA/15/2023 CAV JUDGMENT DATED: 15/09/2023 undefined plaintiff at Exh.90 was ignored wherein it is admitted by the plaintiff that defendant no.1 is in possession of the suit property and there was no evidence on record to prove the allegation of fraud and cheating in respect of execution of registered sale deed No.2633/2005. Learned Appellate Judge has therefore, rightly held that trial court could not have shifted the burden of proof upon defendant no.1 to prove the legality of the registered sale deed in question as it is not in dispute that the sale deed was registered before the office of Sub-Registrar and the mutation entry to that effect was made in revenue record in the year 2006 which is not challenged by the plaintiffs.
10. It is also not in dispute that the registered sale deed No.2633/2005 contained signature of plaintiff no.1 Shri Kalidas Umiyashankar Trivedi who was working as a Page 38 of 70 Downloaded on : Sat Sep 16 17:21:19 IST 2023 NEUTRAL CITATION C/SA/15/2023 CAV JUDGMENT DATED: 15/09/2023 undefined peon in Ahmedabad Municipal Corporation as admitted by him in his cross examination at Exh.90. Plaintiff no.1 would have been well aware about the difference between Power of Attorney, Agreement to Sale and Sale Deed and could not have signed the sale deed in guise of Power of Attorney without verifying the contents of the Power of Attorney. The Appellate Court therefore, came to the conclusion that it could not have been inferred that signature of plaintiff no.1 was obtained under guise of Power of Attorney or Agreement to Sale. Moreover, the plaintiffs have not initiated any other proceedings except filing the suit for cancellation of the sale deed. The Appellate Court has therefore, rightly held that in view of the deposition and cross examination of plaintiff no.1 at Exh.90, if the fraud and cheating were played by defendant no.1 and others, then plaintiff no.1 would have definitely Page 39 of 70 Downloaded on : Sat Sep 16 17:21:19 IST 2023 NEUTRAL CITATION C/SA/15/2023 CAV JUDGMENT DATED: 15/09/2023 undefined filed a criminal complaint. The glaring fact that defendant no.1 is in possession of the suit property is also considered by the Appellate Court as a relevant factor to hold that if no registered sale deed was executed in favour of the defendant no.1-deceased Fakirji Mafaji, he would not have been put into possession of the subject land.
11. The learned Appellate Judge after appreciating the deposition of plaintiff no.1 also analysed the cross examination wherein he has stated that Umiyashankar had five sons and two daughters and all seven heirs were having their shares in the properties of Umiyashankar and all the heirs are not joined in the suit and therefore, it was rightly held that suit was suffering from bar of non joinder of parties. Similarly names of legal heirs of late Fakirji are reflected in village Form 7 and 12 of the subject land Page 40 of 70 Downloaded on : Sat Sep 16 17:21:19 IST 2023 NEUTRAL CITATION C/SA/15/2023 CAV JUDGMENT DATED: 15/09/2023 undefined till date which is never challenged by the plaintiffs.
12. On perusal of the sale deed produced on record at Exh.101 it appears that late Fakirji had signed as purchaser whereas late Dashrathbhai Umiyashankar Trivedi and Shri Kalidas Umiyashankar Trivedi had signed as sellers of the subject land whereas Pravinchandra Umiyashankar Trivedi signed as confirming party. Moreover, with regard to sale consideration stated in the sale deed the same is referred to payment made in piece-meal.
13. Moreover on perusal of the sale deed it appears that Kalidas Umiyashankar Trivedi signed on his behalf as well as Power of Attorney Holder of Chandrakant Ramkrushna Tripathy and Jaydev Ramkrushna Tripathy. However only Chandrakant Ramkrushna Tripathy Page 41 of 70 Downloaded on : Sat Sep 16 17:21:19 IST 2023 NEUTRAL CITATION C/SA/15/2023 CAV JUDGMENT DATED: 15/09/2023 undefined has been joined as plaintiff no.3 herein, whereas Jaydev Ramkrushna Tripathi was joined as defendant no.2 and confirming party Pravinchandra Umiyashankar Trivedi was joined as defendant no.3.
14. Thus, all the sellers who have signed the sale deed are not aggrieved by the registered sale deed and only plaintiff no.1 and legal heirs of late Dashrathbhai Umiyashankar Trivedi and Chandrakant Ramkrushna Tripathi are aggrieved by alleged fraud and cheating and non receipt of sale consideration without there being anything on record as to why other signatories to the sale deed have not joined the plaintiffs in making such allegations.
15. In view of above facts, it cannot be said that Appellate Court has committed any error while reversing the Judgment and Decree Page 42 of 70 Downloaded on : Sat Sep 16 17:21:19 IST 2023 NEUTRAL CITATION C/SA/15/2023 CAV JUDGMENT DATED: 15/09/2023 undefined passed by the trial Court holding that plaintiff no.1 and other signatories had executed sale deed No.2633/2005 in favour of defendant no.1 late Thakor Fakirji Mafaji and since then he was handed over the possession of the subject land in which after his demise his legal heirs are having uninterrupted possession.
16. The Appellate Court has also considered the fact that the plaintiff no.3 Chandrakantbhai Ramkrushna Tripathy and defendant no.3 Pravinchandra Umiyashnakar Trivedi did not step into the witness box in support of claim made by the plaintiffs in the plaint together with averments made in para 24 of the sale deed to the effect that entire sale consideration of Rs. 9,48,500/- is paid in piece-meal and the signatories to the sale deed have acknowledged the payment of full sale consideration received from Page 43 of 70 Downloaded on : Sat Sep 16 17:21:19 IST 2023 NEUTRAL CITATION C/SA/15/2023 CAV JUDGMENT DATED: 15/09/2023 undefined defendant no.1.
17. Section 54 of the Transfer of Property Act defines sale as under:
"54. "Sale" is a transfer or ownership in exchange for a price paid or promised or part-paid and part-promised."
18. In view of above definition of sale and considering para no.24 of the sale deed at Exh.101 and Deed of Acceptance at Exh. 127 which is also a registered deed with the office of Registrar at Serial No. 2364, wherein similar fact is stated about the sale and consideration paid by the defendant no.1 and accepted by all the legal heirs of the persons who have signed the sale deed, clearly shows that registered sale deed was executed for transfer of suit property in exchange of price paid.
19. The Appellate court after re- Page 44 of 70 Downloaded on : Sat Sep 16 17:21:19 IST 2023
NEUTRAL CITATION C/SA/15/2023 CAV JUDGMENT DATED: 15/09/2023 undefined appreciating the evidence has held as under :
"22. On the basis of above discussion and after re- appreciating the factual matrix and the evidence on record, Ld. Trial Court appears to have committed manifest error and has misapplied the settled legal position. Again, It is required to be noted that the plaintiff pleaded fraud in very vague manner in the plaint but in the evidence, they were not able to prove the same. When the registered sale deed was executed and brothers of the plaintiffs were also there and did not join the plaintiffs in the suit and thus joining them as proforma defendants by the plaintiffs, is self-speaking about the intentions of the plaintiffs. Therefore, it can safely be said that after execution of registered sale deed, plaintiff remained silent and did not ask anything about the sale deed or even mutation entries and on one fine morning, they seem to have thought of filing the suit in name of fraud in which they miserably failed. However, the Ed. Trial Court unfortunately relied upon the evidence and more particularly cross examination of Defendant No.1 /2 who is son of original Defendant No.1. It is true that in his cross examination certain discrepancies, more particularly Page 45 of 70 Downloaded on : Sat Sep 16 17:21:19 IST 2023 NEUTRAL CITATION C/SA/15/2023 CAV JUDGMENT DATED: 15/09/2023 undefined In respect to measurement of certain portions of lands is recorded but when the document was very much there on record only that would have prevailed and as such not believing the same having been executed genuinely, Ld. Trial Court has definitely erred in arriving at final conclusion. The findings arrived at by Ld. Trial Court are lacking proper application of law of evidence where it was necessary to see that on whom the onus of proof lies. Since, the registered document having been signed by the plaintiff was very much there the Ld. Trial Court ought not to have been influenced under concocted story produced by the plaintiff that his entire family was called at the office of Sub Registrar, Kalol and were made to sign dubious document. This could never have happened in light of the evidence as discussed earlier. Therefore, the Ld. Trial Court ought to have guided itself by the certain settled legal principles that a document is presumed to be genuine if the same is registered. In catena of case-law Hon. The Apex Court has time and again reiterated that there is a presumption that the registered document is validly executed. A registered document, therefore, prima facie would be valid in law. The onus of proof, thus, would be on a person who Page 46 of 70 Downloaded on : Sat Sep 16 17:21:19 IST 2023 NEUTRAL CITATION C/SA/15/2023 CAV JUDGMENT DATED: 15/09/2023 undefined leads evidence to rebut the presumption. Hence, in light of this settled law the plaintiffs were not able to rebut the said presumption and as such the initial onus was on them as they challenged the registered document and failure on their side to prove that is not considered by the Ld. Trial Court. It is crystal clear on record that the plaintiff did not discharge that onus and shifted it on the defendants and as has been discussed earlier, on the principle of preponderance of probability, the plaintiffs though miserably failed to bring home their case. Ld. Trial Court definitely erred in arrival at final conclusion. In this regard, section 101 of the Indian Evidence Act is also clear which casts initial burden on the plaintiff. In light of this provision also, the burden of proving the fact was on the plaintiff but the Ld. Trial Court proposed to decide the suit on the basis of the evidence of the Defendant and more particularly on his cross examination. At this juncture, on having perused the case-law cited by Ld. Advocate of the appellants from Dahiben V/s Arvindbhal Kalyanji Bhanushali (Gajra) (D) through LRs and others (Supra). It must be noted that looking to the order portion para 2 passed by the Ld. Page 47 of 70 Downloaded on : Sat Sep 16 17:21:19 IST 2023 NEUTRAL CITATION C/SA/15/2023 CAV JUDGMENT DATED: 15/09/2023 undefined Trial Court. It is stated that "It is hereby declared that the registered sale-deed no.2633 which is registered in office of Sub-Registrar, Kalol on dt.13.09.2005, is without consideration and therefore null and void". This order of the Ld. Trial Court is also unfortunately in gross mis-
interpretation of the evidence as discussed above. It seems that the said order makes it clear that the registered sale deed is declared null and void in name of the same being without consideration. Hence in this regard, the case-law from Dahlben V/s Arvindbhal Kalyanji Bhanushall (Gajra) (D) through LRs and others (Supra) is very much clear and perfectly applicable to the case of the appellant. At this Juncture, it would be appropriate to note that in the said case-law, the plaintiffs had made out a case of alleged non-payment of a part of the sale consideration in the plaint, and prayed for relief of cancellation of the sale deed on that ground. In the case on hand. It was clear that plaintiffs alleged fraud and clubbed that plea with non-
payment of consideration also. However, fact remains that fraud was definitely not proved and as discussed earlier amount of consideration in piece-meal was definitely paid. Assuming that Page 48 of 70 Downloaded on : Sat Sep 16 17:21:19 IST 2023 NEUTRAL CITATION C/SA/15/2023 CAV JUDGMENT DATED: 15/09/2023 undefined some amount remained unpaid, then in that case also, as per the said case-law, the Ld. Trial Court ought not to have declared the registered sale deed null and void. In this regard, it would be appropriate to reproduce specific portion of the case-law at page 17 which is as under:
"......In Vidyadhar V/s Manukrao & Anr (1999)3-SCC-573, this court held that the words "price paid or promised or part paid and part promised" indicates that actual payment of the whole of the price at the time of the execution of the sale deed is not a sine qua non for completion of the sale. Even if the whole of the price is not paid, but the document is executed, and thereafter registered, the sale would be complete, and the title would pass onto the trespasser under the transaction. The non-payment of a part of the sale price would not affect the validity of the sale. Once the title in the property has already passed, even if the balance sale consideration is not paid, the same could not be invalidated on this ground. In order to constitute a "sale", the parties must intend to transfer the ownership of the property, on the agreement to pay the price either in present or in future.Page 49 of 70 Downloaded on : Sat Sep 16 17:21:19 IST 2023
NEUTRAL CITATION C/SA/15/2023 CAV JUDGMENT DATED: 15/09/2023 undefined The intention is to be gathered from the recitals of the sale deed, the conduct of the parties, and the evidence on record."
The case-law, thus, makes it amply clear that in case of non-
payment of consideration, plaintiffs were supposed to file a suit for recovery of that amount, but declaration about the said registered sale deed as passed by Ld. Trial Court was not in consonance with the law and thus in mis-interpretation of the facts and law. At the cost of repetition, it must be noted that when fraud and non- payment of consideration were not proved, assuming that the entire sale consideration had not in fact been paid, it could definitely not a ground for cancellation of the registered sale deed. At this juncture, it may also be noted that the arguments advanced by Ld. Advocate of the appellant in light of the above case-law is very much convincing to believe that the impugned judgment and decree requires interference in this appeal. The argument of Ld. Advocate of the Defendants as mentioned earlier is found general in nature and no specific argument is canvassed as to why the impugned judgment is sustainable in the law.
Therefore, after having gone Page 50 of 70 Downloaded on : Sat Sep 16 17:21:19 IST 2023 NEUTRAL CITATION C/SA/15/2023 CAV JUDGMENT DATED: 15/09/2023 undefined through the complete re-
appreciation of the evidence in light of the settled law, points of determination No.1 to 3 are replied in affirmative and in reply to point no.4 following is the final order."
20. In view of above findings arrived at by the Appellate Court decision relied upon by learned advocate for the appellant in case of Gangabai v. Chhabubai (supra) would not be applicable as in the said case, issue was with regard to applicability of section 92 of the Evidence Act for admission of oral evidence in absence of documentary evidence. In facts of the case, oral evidence of plaintiff no.1 is required to be looked into as onus to prove that sale deed was by fraud and cheating, could not have been shifted upon the defendants. Similarly decision in case of Bhupendra Shantilal Shah (supra) is also not applicable in facts of the case as the appellants plaintiffs have failed to prove that transaction was not bona fide and Page 51 of 70 Downloaded on : Sat Sep 16 17:21:19 IST 2023 NEUTRAL CITATION C/SA/15/2023 CAV JUDGMENT DATED: 15/09/2023 undefined genuine more particularly, when intrinsic evidence on record clearly points out that transaction was bona fide. In view of findings of fact recorded by the Appellate Court, in Second Appeal, no further appreciation of the evidence is required in absence of any pleading or issue raised with regard to perversity of such findings. Even independently findings arrived at by learned Appellate Judge cannot be said to be perverse in any manner on perusal of the documentary and oral evidence on record.
21. Reliance placed on decision of Veljibhai Mavjibhai Mistry (supra) by the learned advocate for the appellants is also without any basis inasmuch as in light of the provisions of Order VI Rule 4 read with provisions of section 100 of the Evidence Act, in the deposition and cross examination of plaintiff no.1 clearly admits with regard Page 52 of 70 Downloaded on : Sat Sep 16 17:21:19 IST 2023 NEUTRAL CITATION C/SA/15/2023 CAV JUDGMENT DATED: 15/09/2023 undefined to signature on the sale deed as well handing over the possession coupled with Exh.127 of the Acceptance Deed registered by plaintiff no.1 and other plaintiffs and therefore, mere oral assertion of fraud and cheating in absence of any further corroborative evidence cannot be considered by shifting the burden of proof upon the defendants to prove the contrary without other signatories to the sale deed having stepped into witness box in support of the plaintiffs.
22. The Hon'ble Supreme Court in case of Dahiben(supra) with regard to issue of cancellation of registered sale deed has held as under:
"29.1 On a reading of the plaint and the documents relied upon, it is clear that the Plaintiffs have admitted the execution of the registered Sale Deed dated 02.07.2009 in favour of Defendant No.1/Respondent No.1 herein. Para 5 of the plaint reads as :Page 53 of 70 Downloaded on : Sat Sep 16 17:21:19 IST 2023
NEUTRAL CITATION C/SA/15/2023 CAV JUDGMENT DATED: 15/09/2023 undefined "(5) ...Thus, subject of the aforesaid terms the plaintiffs had executed sale deed selling the suit property to the opponent no.1 vide sale deed dated 02/07/2009 bearing Sr.No. 5158..."
29.2 The case made out in the Plaint is that even though they had executed the registered Sale Deed dated 02.07.2009 for a sale consideration of Rs.1,74,02,000, an amount of only Rs.40,000 was paid to them. The remaining 31 cheques mentioned in the Sale Deed, which covered the balance amount of Rs.1,73,62,000 were alleged to be "bogus" or "false", and allegedly remained unpaid. We find the averments in the Plaint completely contrary to the recitals in the Sale Deed dated 02.07.2009, which was admittedly executed by the Plaintiffs in favour of Respondent No.1. In the Sale Deed, the Plaintiffs have expressly and unequivocally acknowledged that the entire sale consideration was "paid" by Defendant No.1/Respondent No.1 herein to the Plaintiffs.
xxxx 29.6 The Plaintiffs have made out a case of alleged nonpayment of a part of the sale consideration in the Plaint, and prayed for the relief of cancellation of the Sale Deed on this ground.
Page 54 of 70 Downloaded on : Sat Sep 16 17:21:19 IST 2023
NEUTRAL CITATION C/SA/15/2023 CAV JUDGMENT DATED: 15/09/2023 undefined 29.7 Section 54 of the Transfer of Property Act, 1882 provides as under:
"54. 'Sale' defined.-'Sale' is a transfer of ownership in exchange for a price paid or promised or part-paid and part- promised."
The definition of "sale" indicates that there must be a transfer of ownership from one person to another i.e. transfer of all rights and interest in the property, which was possessed by the transferor to the transferee. The transferor cannot retain any part of the interest or right in the property, or else it would not be a sale. The definition further indicates that the transfer of ownership has to be made for a "price paid or promised or part paid and part promised". Price thus constitutes an essential ingredient of the transaction of sale.
29.8 In Vidyadhar v. Manikrao & Anr., (1999) 3 SCC 573, this Court held that the words "price paid or promised or part paid and part promised" indicates that actual payment of the whole of the price at the time of the execution of the Sale Deed is not a sine qua non for completion of the sale. Even if the whole of the price is not paid, but the document is executed, and thereafter registered, the sale Page 55 of 70 Downloaded on : Sat Sep 16 17:21:19 IST 2023 NEUTRAL CITATION C/SA/15/2023 CAV JUDGMENT DATED: 15/09/2023 undefined would be complete, and the title would pass on to the transferee under the transaction. The non- payment of a part of the sale price would not affect the validity of the sale. Once the title in the property has already passed, even if the balance sale consideration is not paid, the sale could not be invalidated on this ground. In order to constitute a "sale", the parties must intend to transfer the ownership of the property, on the agreement to pay the price either in present, or in future. The intention is to be gathered from the recitals of the sale deed, the conduct of the parties, and the evidence on record. 29.9 In view of the law laid down by this Court, even if the averments of the Plaintiffs are taken to be true, that the entire sale consideration had not in fact been paid, it could not be a ground for cancellation of the Sale Deed. The Plaintiffs may have other remedies in law for recovery of the balance consideration, but could not be granted the relief of cancellation of the registered Sale Deed. We find that the suit filed by the Plaintiffs is vexatious, meritless, and does not disclose a right to sue. The plaint is liable to be rejected under Order VII Rule 11
(a).
xxxx 29.12 On a reading of the plaint, it is clear that the cause of action Page 56 of 70 Downloaded on : Sat Sep 16 17:21:19 IST 2023 NEUTRAL CITATION C/SA/15/2023 CAV JUDGMENT DATED: 15/09/2023 undefined arose on the non-payment of the bulk of the sale consideration, which event occurred in the year 2009. The plea taken by the Plaintiffs is to create an illusory cause of action, so as to overcome the period of limitation. The plea raised is rejected as being meritless and devoid of any truth.
29.13 The conduct of the Plaintiffs in not taking recourse to legal action for over a period of 5 and years from the execution of the Sale Deed in 2009, for payment of the balance sale consideration, also reflects that the institution of the present suit is an after-thought. The Plaintiffs apparently filed the suit after the property was further sold by Respondent No.1 to Respondent Nos. 2 and 3, to cast a doubt on the title of Respondent No.1 to the suit property.
xxxx 29.15 If the Plaintiffs had a genuine grievance of nonpayment of the balance sale consideration, the Plaintiffs could have moved for revocation of the permission granted by the Collector on 19.06.2009. Clause 6 of the Order provided that :
"(6) On making violation of any of the aforesaid terms, the permission shall automatically be treated as cancelled and, separate proceeding shall be Page 57 of 70 Downloaded on : Sat Sep 16 17:21:19 IST 2023 NEUTRAL CITATION C/SA/15/2023 CAV JUDGMENT DATED: 15/09/2023 undefined taken up for the violation of the terms and conditions."
The Plaintiffs did not make any complaint whatsoever to the Collector at any point of time. The conduct of the Plaintiffs is reflective of lack of bona fide."
23. The Apex Court in case of Rattan Singh and others (supra)has held as under:
"42. The trial Court had justly placed the initial burden of proof upon the plaintiff as it was her case that the subject documents were forged or product of fraud and more so because the documents bore her signature. The first appellate Court did not elaborate on that aspect. Even assuming that the burden had shifted upon the defendants, the witness identifying signatures of the dead attesting witness was examined by the defendants. Therefore, the documents stood proved and the burden was duly discharged by the defendants.
66. The plaintiff also asserted that she had not received the consideration in relation to the stated transactions and that the defendants had no means to pay the Page 58 of 70 Downloaded on : Sat Sep 16 17:21:19 IST 2023 NEUTRAL CITATION C/SA/15/2023 CAV JUDGMENT DATED: 15/09/2023 undefined consideration. It has come on record that the defendants had mortgaged the joint lands several times as they were in need of money. Further, the defendant No. 4 after admitting to have mortgaged the land had said that he used that money to install tubewells and buy tractors. The said fact does not conclusively prove that they did not possess funds as the said loans were obtained to make investments on the joint lands and not on the personal property of the defendant No. 4.Further, the defendant No. 4
had deposed that the sale
consideration was paid from
the sale proceeds received by
selling the land of their mother in the village Ashrafpur. Since the attesting witness had proved the execution of the sale deeds, the primary onus upon the plaintiff had not shifted unto the defendants. Further, the plaintiff was obliged to rebut the positive evidence produced by the defendants regarding payment of consideration amount to the plaintiff; but also ought to have independently proved her case of nonreceipt of the consideration amount."
24. It is a trite law that while considering the decision of the Appellate Court as per Page 59 of 70 Downloaded on : Sat Sep 16 17:21:19 IST 2023 NEUTRAL CITATION C/SA/15/2023 CAV JUDGMENT DATED: 15/09/2023 undefined provisions of section 100 of the Code, no further appreciation of oral and documentary evidence can be made in second appeal and only substantial questions of law can be considered and as such there is a very narrow scope while considering second appeal as held by the Apex Court in the following decisions:
(i) Afsar Sheikh v. Soleman Bibi reported in (1976) 2 SCC 142, wherein it is held as under:
"19. The scope of the powers of the High Court to interfere in second appeal with judgments and decrees of courts below is indicated in Sections 100, 101, and 103 of the Code of Civil Procedure. Broadly, the effect of Sections 100 and 101, read together, is that a second appeal is competent only on the ground of an error in law or procedure, and not merely on the ground of an error on a question of fact. The High Court has no jurisdiction to entertain a second appeal on the "ground of an erroneous finding of fact, however gross or inexcusable the error may seem to be" (Durga Choudhrani v. Jawahar Singh [17 IA Page 60 of 70 Downloaded on : Sat Sep 16 17:21:19 IST 2023 NEUTRAL CITATION C/SA/15/2023 CAV JUDGMENT DATED: 15/09/2023 undefined 122 : ILR 18 Cal 23 (PC)] ). Section 103 enables the High Court in second appeal, where the evidence on the record is sufficient, to determine an issue of fact necessary for the disposal of the appeal only--
(a) if the lower appellate Court has not determined that issue of fact, or
(b) if it has determined that issue wrongly by reason of any illegality, omission, error or defect such as is referred to in sub-section (1) of Section 100."
(ii) Hero Vinoth v. Seshammal, reported in (2006) 5 SCC 545, wherein it is held as under:
"18. It has been noted time and again that without insisting for the statement of such a substantial question of law in the memorandum of appeal and formulating the same at the time of admission, the High Courts have been issuing notices and generally deciding the second appeals without adhering to the procedure prescribed under Section 100 CPC. It has further been found in a number of cases that no efforts are made to distinguish between a question of law and a substantial question of law. In exercise of the powers under this section in several cases, the Page 61 of 70 Downloaded on : Sat Sep 16 17:21:19 IST 2023 NEUTRAL CITATION C/SA/15/2023 CAV JUDGMENT DATED: 15/09/2023 undefined findings of fact of the first appellate court are found to have been disturbed. It has to be kept in mind that the right of appeal is neither a natural nor an inherent right attached to the litigation. Being a substantive statutory right, it has to be regulated in accordance with law in force at the relevant time. The conditions mentioned in the section must be strictly fulfilled before a second appeal can be maintained and no court has the power to add or to enlarge those grounds. The second appeal cannot be decided on merely equitable grounds. The concurrent findings of facts will not be disturbed by the High Court in exercise of the powers under this section. Further, a substantial question of law has to be distinguished from a substantial question of fact. This Court in Sir Chunilal V. Mehta and Sons Ltd. v. Century Spg. & Mfg. Co. Ltd. [1962 Supp (3) SCR 549 : AIR 1962 SC 1314] held that : (SCR pp. 557-58) "The proper test for determining whether a question of law raised in the case is substantial would, in our opinion, be whether it is of general public importance or whether it directly and substantially affects the rights of the parties and if so whether it is either an open question in the sense that it is not finally settled by this Court or by the Page 62 of 70 Downloaded on : Sat Sep 16 17:21:19 IST 2023 NEUTRAL CITATION C/SA/15/2023 CAV JUDGMENT DATED: 15/09/2023 undefined Privy Council or by the Federal Court or is not free from difficulty or calls for discussion of alternative views.
If the question is settled by the highest court or the general principles to be applied in determining the question are well settled and there is a mere question of applying those principles or that the plea raised is palpably absurd the question would not be a substantial question of law."
xxxx
21. The phrase "substantial question of law", as occurring in the amended Section 100 CPC is not defined in the Code. The word substantial, as qualifying "question of law", means-- of having substance, essential, real, of sound worth, important or considerable. It is to be understood as something in contradistinction with--technical, of no substance or consequence, or academic merely. However, it is clear that the legislature has chosen not to qualify the scope of "substantial question of law" by suffixing the words "of general importance" as has been done in many other provisions such as Section 109 of the Code or Article 133(1)(a) of the Constitution. The substantial question of law on which a second appeal shall be heard need not necessarily be a substantial question of law of general Page 63 of 70 Downloaded on : Sat Sep 16 17:21:19 IST 2023 NEUTRAL CITATION C/SA/15/2023 CAV JUDGMENT DATED: 15/09/2023 undefined importance. In Guran Ditta v. Ram Ditta [(1927-28) 55 IA 235 : AIR 1928 PC 172] the phrase "substantial question of law" as it was employed in the last clause of the then existing Section 100 CPC (since omitted by the Amendment Act, 1973) came up for consideration and their Lordships held that it did not mean a substantial question of general importance but a substantial question of law which was involved in the case. In Sir Chunilal case [1962 Supp (3) SCR 549 : AIR 1962 SC 1314] the Constitution Bench expressed agreement with the following view taken by a Full Bench of the Madras High Court in Rimmalapudi Subba Rao v. Noony Veeraju [AIR 1951 Mad 969 : (1951) 2 MLJ 222 (FB)] : (Sir Chunilal case [1962 Supp (3) SCR 549 : AIR 1962 SC 1314] , SCR p. 557) "[When a question of law is fairly arguable, where there is room for difference of opinion on it or where the Court thought it necessary to deal with that question at some length and discuss alternative views, then the question would be a substantial question of law. On the other hand if the question was practically covered by the decision of the highest court or if the general principles to be applied in determining the question are well settled and the only question was of applying those principles to the Page 64 of 70 Downloaded on : Sat Sep 16 17:21:19 IST 2023 NEUTRAL CITATION C/SA/15/2023 CAV JUDGMENT DATED: 15/09/2023 undefined particular fact of the case it would not be a substantial question of law."
This Court laid down the following test as proper test, for determining whether a question of law raised in the case is substantial : (Sir Chunilal case [1962 Supp (3) SCR 549 : AIR 1962 SC 1314] , SCR pp. 557-
58) "The proper test for determining whether a question of law raised in the case is substantial would, in our opinion, be whether it is of general public importance or whether it directly and substantially affects the rights of the parties and if so whether it is either an open question in the sense that it is not finally settled by this Court or by the Privy Council or by the Federal Court or is not free from difficulty or calls for discussion of alternative views.
If the question is settled by the highest court or the general principles to be applied in determining the question are well settled and there is a mere question of applying those principles or that the plea raised is palpably absurd the question would not be a substantial question of law."
22. In Dy. Commr. v. Rama Krishna Narain [1954 SCR 506 : AIR 1953 SC Page 65 of 70 Downloaded on : Sat Sep 16 17:21:19 IST 2023 NEUTRAL CITATION C/SA/15/2023 CAV JUDGMENT DATED: 15/09/2023 undefined 521] also it was held that a question of law of importance to the parties was a substantial question of law entitling the appellant to a certificate under (the then) Section 100 CPC.
23. To be "substantial" a question of law must be debatable, not previously settled by law of the land or a binding precedent, and must have a material bearing on the decision of the case, if answered either way, insofar as the rights of the parties before it are concerned. To be a question of law "involving in the case" there must be first a foundation for it laid in the pleadings and the question should emerge from the sustainable findings of fact arrived at by court of facts and it must be necessary to decide that question of law for a just and proper decision of the case. An entirely new point raised for the first time before the High Court is not a question involved in the case unless it goes to the root of the matter. It will, therefore, depend on the facts and circumstance of each case whether a question of law is a substantial one and involved in the case or not, the paramount overall consideration being the need for striking a judicious balance between the indispensable obligation to do justice at all stages and impelling necessity of avoiding prolongation in the life of any lis. (See Santosh Page 66 of 70 Downloaded on : Sat Sep 16 17:21:19 IST 2023 NEUTRAL CITATION C/SA/15/2023 CAV JUDGMENT DATED: 15/09/2023 undefined Hazari v. Purushottam Tiwari [(2001) 3 SCC 179] .)
24. The principles relating to Section 100 CPC relevant for this case may be summarised thus:
(i) An inference of fact from the recitals or contents of a document is a question of fact. But the legal effect of the terms of a document is a question of law. Construction of a document involving the application of any principle of law, is also a question of law. Therefore, when there is misconstruction of a document or wrong application of a principle of law in construing a document, it gives rise to a question of law.
(ii) The High Court should be satisfied that the case involves a substantial question of law, and not a mere question of law. A question of law having a material bearing on the decision of the case (that is, a question, answer to which affects the rights of parties to the suit) will be a substantial question of law, if it is not covered by any specific provisions of law or settled legal principle emerging from binding precedents, and, involves a debatable legal issue. A substantial question of law will also arise in a contrary situation, where the legal position is clear, either on account of express provisions of law or binding precedents, but the court below has Page 67 of 70 Downloaded on : Sat Sep 16 17:21:19 IST 2023 NEUTRAL CITATION C/SA/15/2023 CAV JUDGMENT DATED: 15/09/2023 undefined decided the matter, either ignoring or acting contrary to such legal principle. In the second type of cases, the substantial question of law arises not because the law is still debatable, but because the decision rendered on a material question, violates the settled position of law.
(iii) The general rule is that High Court will not interfere with the concurrent findings of the courts below. But it is not an absolute rule. Some of the well-recognised exceptions are where (i) the courts below have ignored material evidence or acted on no evidence; (ii) the courts have drawn wrong inferences from proved facts by applying the law erroneously; or (iii) the courts have wrongly cast the burden of proof. When we refer to "decision based on no evidence", it not only refers to cases where there is a total dearth of evidence, but also refers to any case, where the evidence, taken as a whole, is not reasonably capable of supporting the finding."
(iii) Gurvachan Kaur v. Salikram, reported in (2010) 15 SCC 530, wherein it is held as un-
der:
"10. It is settled law that in exercise of power under Section 100 of the Code of Civil Procedure, the Page 68 of 70 Downloaded on : Sat Sep 16 17:21:19 IST 2023 NEUTRAL CITATION C/SA/15/2023 CAV JUDGMENT DATED: 15/09/2023 undefined High Court cannot interfere with the finding of fact recorded by the first appellate court which is the final court of fact, unless the same is found to be perverse. This being the position, it must be held that the High Court was not justified in reversing the finding of fact recorded by the first appellate court on the issues of existence of landlord-tenant relationship between the plaintiff and the defendant and default committed by the latter in payment of rent."
25. In view of above conspectus of law and facts emerging from record, the registered sale deed could not have been set aside by the trial Court as null and void and therefore, the impugned Judgment and order passed by the Appellate Court is just and proper and requires no interference in view of provisions of section 100 of the Code. No question of law much-less any substantial question of law arises from the impugned Judgment and Order passed by the Appellate Court in Regular Civil Appeal No. 87 of 2019.
26. The appeal therefore, being devoid of any Page 69 of 70 Downloaded on : Sat Sep 16 17:21:19 IST 2023 NEUTRAL CITATION C/SA/15/2023 CAV JUDGMENT DATED: 15/09/2023 undefined merit is accordingly dismissed. No order as to costs.
27. In view of above, Civil Application also stands disposed of.
(BHARGAV D. KARIA, J) RAGHUNATH R NAIR Page 70 of 70 Downloaded on : Sat Sep 16 17:21:19 IST 2023