Himachal Pradesh High Court
Raj Rani vs Jitender Paul on 26 June, 2024
Neutral Citation No. ( 2024:HHC:4028 ) IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA RSA No. 133 of 2024 Reserved on: 28.05.2024 .
Date of decision: 26..06.2024 Raj Rani ....Appellant Versus Jitender Paul ....Respondent Coram Hon'ble Mr Justice Rakesh Kainthla, Judge.
Whether approved for reporting? Yes For the Appellant : Mr. Sudhir Thakur Senior Advocate with Mr. Karun Negi, Advocate.
For the Respondent : Nemo
Rakesh Kainthla,Judge
The present appeal is directed against the judgment and decree dated 09.04.2024, passed by learned Additional District Judge, Palampur, District Kangra, H.P. (learned First Appellate Court),vide which an appeal filed by the respondent (defendant before the learned Trial Court)was allowed and the judgment and decree passed by learned Civil Judge, Baijnath (learned Trial Court) dated 29.04.2023 were set aside. (Parties shall hereinafter be referred to in _________________________
1. Whether reporters of the local papers may be allowed to see the judgment? Yes ::: Downloaded on - 26/06/2024 20:32:50 :::CIS 2 the same manner as they were arrayed before the learned Trial Court for convenience).
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2. Briefly stated, the facts giving rise to the present appeal are that the plaintiff filed a civil suit seeking a declaration that General Power of Attorney stated to have been executed in favour of defendant's father on 04.09.1998 was forged one having been executed on the pretext that gun license of the deceased husband of the plaintiff was to be transferred in her favour and a Relinquishment Deed dated 10.04.2021 regarding the land comprised in Khata No.1, Khatauni No.1, Khasra No. 1030, measuring 0-04-06 hectares to the extent of 3/8 shares i.e. 0-01-52 hectares and Khata No. 4 min, khatauni No. 4, Khasra Nos. 1029, 1033 and 1034, measuring 0-38-58 hectares its 7/24 share i.e. 0-11-25 hectares situate at Mohal Chogan, Mauza Bir and Khata No. 2, Khatauni No. 13, Khara Nos. 857, 858, 859, 868 and 860 situated at Mohal Kotli, Mauza Bir (hereinafter referred to as the suit land) is the result of fraud, misrepresentation and deception and mutations No. 579 and 580 dated 29.01.2002 attested and sanctioned in favour of the defendant are not binding on the rights of the plaintiff. The plaintiff also sought consequential relief of permanent prohibitory injunction for restraining the ::: Downloaded on - 26/06/2024 20:32:50 :::CIS 3 defendant from alienating the suit land and changing its nature by way of construction or otherwise. The plaintiff also sought .
possession of the suit land.
3. It was asserted that the plaintiff was the owner in possession of the suit land. Her husband Devender Paul had a gun license. After his death, the defendant's father being the real brother of the plaintiff's husband advised the plaintiff to get the gun license transferred in her name. The plaintiff appointed the defendant's father as her General Power of Attorney (GPA) to act on her behalf.
She accompanied him to Palampur on 04.09.1998 and got registered the General Power of Attorney (GPA) in the office of Sub-Registrar, Palampur, District Kangra, HP. She believed that the GPA was executed for the completion of the formalities regarding the transfer of the gun license. She went to Bir in August 2008 where she found that her share was transferred to the defendant and his father Rajinder Paul Singh. Relinquishment Deed dated 10.04.2001 and subsequent mutations No. 579 and 580 dated 29.01.2002 are the result of fraud misrepresentation, and deception and the same are null and void. The plaintiff requested the defendant to get the Relinquishment Deed and subsequent mutation cancelled but in vain.
::: Downloaded on - 26/06/2024 20:32:50 :::CIS 4Hence, the plaintiff filed a suit seeking the reliefs mentioned hereinabove.
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4. The suit was opposed by the defendant by filing a written statement taking preliminary objection regarding lack of locus standi and cause of action, the suit being bad for non-joinder of the necessary party, the plaintiff being estopped by her act and conduct to file the present suit and the suit being barred by limitation. The contents of the plaint were denied on merit; however, it was admitted that the plaintiff's husband had died. It was specifically denied that the Power of Attorney (POA) was executed for transferring the gun license in the plaintiff's name. It was asserted that Devender Paul had died in the year 1993 and Power of Attorney (POA) was executed on 04.09.1998. The land owned by the defendant's father and the plaintiff's husband located in the village of Bishanpur, (Punjab), was divided by family arrangement. The best land near the residential house at Bishanpur was given to the plaintiff with an understanding that she would relinquish the suit land in favour of the defendant.
The General Power of Attorney (GPA) was executed in favour of the defendant's father to transfer the land in the defendant's name . The defendant and other co-sharers developed the suit land by spending ::: Downloaded on - 26/06/2024 20:32:50 :::CIS 5 an amount of ₹35,00,000/-. The plaintiff never objected to the same.
The plaintiff filed a false suit after the death of the defendant's .
father. Hence, it was prayed that the suit be dismissed.
5. A replication denying the contents of the written statement and affirming those of the plaint was filed.
6. Learned Trial Court framed the following issues on 11.06.2010:
1) Whether the plaintiff is entitled for declaration asprayed for? OPP
2) Whether the GPA dated 4.9.98 executed and registered in favour of Rajinder Paul (father of the defendant) in respect of land comprised in khata No.1, khatauni No.1, khasra No.1030 and khata No.4 min, khatauni No.4 min, khasra No.1029, 1033 and 1034 situated at Mohal Chogan Mauza Bir, Tehsil Baijnath, Distt. Kangra H.P. and also land comprised in khata No.2, khatauni No.13, khasra No.857, 858, 859, 868 and 860 situated at Mohal Kotli, Mauza Bir, Teh. Baijnath District Kangra is result of fraud, deception, misrepresentation and not binding upon the plaintiff and are liable to be declared as such?
OPP
3) Whether the relinquishment deed dated 10.04.2001 executed by Rajinder Paul (father of defendant) on the strength of GPA dated 4.9.98 with respect to land comprised in khata No.1, khatauni No.1, khasra No.1030 land measuring 0-04-06 hectares to the extent of 3/8 share i.e. 0-01-52 hects and khata No.4, khatauni No.4, khasra No.1029, 1033 and 1034 (kita 3) land measuring 0-38-58 hects its 7/24 share i.e. 0-11-25 hects at Mohal Chogan Mauza Bir Tehsil Baijnath, District ::: Downloaded on - 26/06/2024 20:32:50 :::CIS 6 Kangra, H.P. is also the result of fraud, deception, misrepresentation as alleged? OPP
4) Whether the subsequent mutation No.579 dated 29.1.01 and 580 dated 29.1.02 were attested in absence of the .
plaintiff and without giving information to her in favour of the defendant are also liable to be declared as null and void being the result of fraud, deception and misrepresentation, as alleged?OPP
5) Whether the plaintiff is entitled for relief ofpermanent and prohibitory injunction, as prayed for?OPP
6) Whether the plaintiff is entitled for possession of land comprised in khata No.1, khatauni No.1, khasra No.1030 and khata No.3 min, khatauni No.3, khasra No.1029, 1033, 1034 situated at Mohal Chogan, Mauza Bir, Teh. Baijnath, Distt. Kangra, Н.Р. measuring 0-04-06 hects of Khata No.1 its 308 shares being equal to 0-01-52 hects and the area measuring 8-58 hects of Khata No.4 its 77/24 share being equal to 0- 11-25 hects vide jamabandi 2006-07 and 2007-08 asalleged? OPP
7) Whether the plaintiff has no locus standi to file the present suit? OPD
8) Whether the plaintiff has no cause of action to file the present suit? .OPD
9) Whether the suit is bad for non-joinder of necessary parties? OPD
10) Whether the plaintiff is estopped to file the present suit by her act and conduct? OPD
11) Whether the suit is not within time? OPD
12) Relief.
7. The parties were called upon to produce their evidence and the plaintiff examined herself (PW-1), Arti (PW-2), Renu Singh her Special Power of Attorney (PW-3), Vikram Chand (PW-4), Ashok ::: Downloaded on - 26/06/2024 20:32:50 :::CIS 7 Kumar (PW-5) and Sushil Kumar (PW-6). The defendant examined Subhash Chand (DW-1), himself (DW-2), Pawan Acharya (DW-3), .
Yog Raj (DW-4), Bhup Singh (DW-5) and Ajay Awasthi (DW-6).
8. The learned Trial Court held that Rajinder Paul, defendant's father, was the eldest male member of the family. There was a fiduciary relationship between the plaintiff and him. The plaintiff believed him and did not read the documents. The name of the identifier was scored out. Bhoop Singh, Sub-Registrar, stated that there was no alteration and had there been any alteration, he would not have registered the document. The testimonies of the witnesses were contradictory. The defendant failed to prove that the plaintiff had executed the General Power of Attorney for relinquishing her share. He failed to provide any explanation as to why the plaintiff himself had not executed the General Power Attorney. The Relinquishment Deed executed on the basis of General Power Attorney will not be valid. Hence, the learned Trial Court answered issues No.1 to 6 in affirmative, issues No.7 to 11 in negative and decreed the suit of the plaintiff.
9. Being aggrieved from the judgment and decree passed by the learned Trial Court, the defendant filed an appeal, which was ::: Downloaded on - 26/06/2024 20:32:50 :::CIS 8 decided by learned Additional District Judge, Palampur, District Kangra, H.P. (learned First Appellate Court). The learned First .
Appellate Court held that the plaintiff did not dispute the execution of the General Power of Attorney in favour of the defendant's father.
Her plea was that she had put the signatures for getting the gun licence of her husband transferred in her name. There is a presumption in favour of a registered document and the burden lies upon the person who asserts to the contrary to prove otherwise. The statement of the plaintiff was not sufficient to rebut this presumption. She had concealed material facts in her examination-
in-chief. The statements of other witnesses were also not sufficient to rebut the presumption. The evidence of the defendant, on the other hand, was cogent. The plaintiff had not pleaded the specific particulars of the fraud and her pleading was not sufficient to prove the fraud. Hence, the learned Trial Court erred in decreeing the suit.
Therefore, the appeal was accepted and the judgment and decree passed by the learned Trial Court were set aside.
10. Feeling aggrieved and dissatisfied with the judgment and decree passed by the learned First Appellate Court, the appellant ::: Downloaded on - 26/06/2024 20:32:50 :::CIS 9 /plaintiff preferred the present appeal with the following proposed substantial questions of law: -
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1. Whether the findings of Ld. First Appellate Court are perverse, unjust, illegal and is the result of non-
appreciation of evidence on record?
2. That once it is admitted case of the parties that the plaintiff did not execute the Relinquishment deeds herself and the same have been presented to the Sub Registrar by her in person, is it permissible under law to get registered the Relinquishment deeds through the General Power of Attorney particularly when the General Power of Attorney is in dispute?
3. That once it is proved on record that the defendant has no pre-existing rights in the property in dispute and the defendant is not in blood relation with the plaintiff was it permissible under law i.e. Transfer of Property Act to execute the general power of attorney and get it registered and whether on this ground the judgment and decree passed by learned. First Appellate Court is illegal erroneous and is liable to be set aside?
4. That once the defendant has specifically taken the defence that relinquishment deeds was on the consideration of the family arrangement between the two families with respect to the property in Mukeria and Bir and once family settlement is not proved on record nor the defendant produced any such documents or oral evidence in this regard, whether the relinquishment deeds can be set to be valid in the eyes of law and whether on this ground the judgment and decree passed by learned First Appellate Court is sustainable in the eyes of law?
5. That once the defendant has categorically taken stand in the written statement that the plaintiff/ appellant has transferred property in Tehsil Mukeria, District ::: Downloaded on - 26/06/2024 20:32:50 :::CIS 10 Hoshiyarpur Punjab and once such transfer has not been produced on record and has not proved the same and has been specifically denied by the plaintiff, whether it was permissible for the learned First Appellate Court to hold .
that the relinquishment deeds are valid documents in the eyes of law and whether on this ground the judgment and decree passed by the learned First Appellate Court is illegal, erroneous and is liable to be set aside ?
6. That once it is proved on the record that the alleged relinquishment deeds are preceded by the consideration which recital is missing in the relinquishment deeds, was it permissible under law for the learned First Appellate Court under law to conclude that the relinquishment deeds are valid documents in the eyes of law and whether on this ground the judgment and decree passed by the learned First Appellate Court is illegal, erroneous and is liable to be set aside ?
7. Whether the General Power of Attorney ExD2 (Ex.
DW2/B) is proved to have been the result of fraud and misrepresentation and witnessed by the beneficiary of the relinquishment deeds, whether it was permissible under law to hold the same General Power of Attorney to be valid document and whether on this ground the judgment and decree passed by the learned First Appellate Court is illegal, erroneous and is liable to be set aside?
8. That once it is proved on record that cutting/ tempering in the general power of attorney ExD2 (Ex. DW2/B) is not explained by the defendant and other witnesses and proved on record to be got executed by misrepresenting the facts to an illiterate lady by a person who is an Advocate and not executed at the place where the property is situated but has gone to a distant place at Palampur for getting it registered, whether it was permissible for the Ld. First Appellate Court to hold the same general power of attorney to be a valid document and whether on this ground the judgment and decree ::: Downloaded on - 26/06/2024 20:32:50 :::CIS 11 passed by the Ld. First Appellate Court is illegal erroneous and is liable to be set aside ?
9. Whether it is permissible under law to have the relinquishment deed executed by more than one person .
by way of one document to get the property relinquished and whether the judgment passed by the Ld. First Appellate Court is erroneous, wrong and illegal on the ground of taking into consideration this aspect and is liable to be set aside?
11. I have heard Mr. Sudhir Thakur, learned Senior counsel assisted by Mr. Karun Negi, learned Counsel for the appellant.
12. Mr. Sudhir Thakur, learned Senior counsel submitted that the Relinquishment Deed was bad because it could have only been executed in favour of a co-owner and not a stranger. He relied upon the judgment of Hon'ble Supreme Court in Kuppuswami Chettiar vs. A.S.P.An Arumugam Chettiar and another AIR 1967 SC 1395:1967 (1) SCR 275 and judgment of Allahabad High Court in Raghvendra Jeet Singh vs Board of Revenue &Ors. 2015 (3) Civil Court Cases 098 (Allahabad) in support of his submission. He further submitted that the defendant had taken a plea that the Relinquishment Deed was executed because of the family arrangement regarding the property in Punjab. This family settlement was not proved and Relinquishment Deed was bad for want of consideration. The plea of the plaintiff that the General Power Attorney was executed by practising fraud was highly probable ::: Downloaded on - 26/06/2024 20:32:50 :::CIS 12 and the learned First Appellate Court erred in rejecting the same.
Therefore, he prayed that the appeal be admitted on the proposed .
substantial questions of law.
13. I have given considerable thought to the submissions at the bar and have gone through the records carefully.
14. The plaintiff did not assert in the plaint or the memorandum of appeal before the learned First Appellate Court that the Relinquishment Deed was bad because it could not have been executed in favour of a person having no title. This plea was taken for the first time before this Court. It was laid down by the Hon'ble Supreme Court in Bachhaj Nahar v. Nilima Mandal, (2008) 17 SCC 491 :
(2009) 5 SCC (Civ) 927: 2008 SCC OnLine SC 1445 that it is impermissible to decide the second appeal on a plea which was never taken before the Trial Court. It was observed: -
10. The High Court, in this case, in its obvious zeal to cut delay and hardship that may ensue by relegating the plaintiffs to one more round of litigation, has rendered a judgment which violates several fundamental rules of civil procedure. The rules breached are:
(i) No amount of evidence can be looked into, upon a plea which was never put forward in the pleadings. A question which did arise from the pleadings and which was not the subject matter of an issue, cannot be decided by the court.::: Downloaded on - 26/06/2024 20:32:50 :::CIS 13
(ii) A court cannot make out a case not pleaded. The court should confine its decision to the question raised in pleadings. Nor can it grant a relief which is not claimed and which does not flow from the facts and the cause of .
action alleged in the plaint.
(iii) A factual issue cannot be raised or considered for the first time in a second appeal.
11. The Civil Procedure Code is an elaborate codification of the principles of natural justice to be applied to civil litigation. The provisions are so elaborate that many a time, fulfilment of the procedural requirements of the Code may itself contribute to delay. But any anxiety to cut the delay or further litigation should not be a ground to flout the settled fundamental rules of civil procedure. Be that as it may. We will briefly set out the reasons for the aforesaid conclusions.
12. The object and purpose of pleadings and issues is to ensure that the litigants come to trial with all issues clearly defined and to prevent cases from being expanded or grounds being shifted during trial. Its object is also to ensure that each side is fully alive to the questions that are likely to be raised or considered so that they may have an opportunity of placing the relevant evidence appropriate to the issues before the court for its consideration. This Court has repeatedly held that the pleadings are meant to give to each side intimation of the case of the other so that it may be met, to enable courts to determine what is really at issue between the parties and to prevent any deviation from the course which litigation on particular causes must take.
13. The object of issues is to identify from the pleadings the questions or points required to be decided by the courts so as to enable parties to let in evidence thereon. When the facts necessary to make out a particular claim, or to seek a particular relief, are not found in the plaint, the court cannot focus the attention of the parties, or its own attention on that claim or relief, by framing an appropriate issue. As a result, the defendant does not get an opportunity ::: Downloaded on - 26/06/2024 20:32:50 :::CIS 14 to place the facts and contentions necessary to repudiate or challenge such a claim or relief. Therefore, the court cannot, on finding that the plaintiff has not made out the case put forth by him, grant some other relief. The question before a .
court is not whether there is some material on the basis of which some relief can be granted. The question is whether any relief can be granted when the defendant had no opportunity to show that the relief proposed by the court could not be granted. When there is no prayer for a particular relief and no pleadings to support such a relief, and when the defendant has no opportunity to resist or oppose such a relief, if the court considers and grants such a relief, it will lead to a miscarriage of justice. Thus, it is said that no amount of evidence, on a plea that is not put forward in the pleadings, can be looked into to grant any relief.
14. The High Court has ignored the aforesaid principles relating to the object and necessity of pleadings. Even though the right of the easement was not pleaded or claimed by the plaintiffs, and even though parties were at issue only in regard to title and possession, it made out for the first time in the second appeal, a case of easement and granted relief based on an easementary right. For this purpose, it relied upon the following observations of this Court in Nedunuri Kameswaramma v. Sampati Subba Rao [AIR 1963 SC 884] : (AIR p. 886, para 6) "6. ... No doubt, no issue was framed, and the one, which was framed, could have been more elaborate; but since the parties went to trial fully knowing the rival case and led all the evidence not only in support of their contentions but in refutation of those of the other side, it cannot be said that the absence of an issue was fatal to the case, or that there was that mistrial which vitiates proceedings. We are, therefore, of opinion that the suit could not be dismissed on this narrow ground, and also that there is no need for a remit, as the evidence which ::: Downloaded on - 26/06/2024 20:32:50 :::CIS 15 has been led in the case is sufficient to reach the right conclusion."
But the said observations were made in the context of the absence of an issue, and not the absence of pleadings.
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15. The relevant principle relating to circumstances in which the deficiency in, or absence of, pleadings could be ignored, was stated by a Constitution Bench of this Court in Bhagwati Prasad v. Chandramaul [AIR 1966 SC 735] : (AIR p. 738, para 10) "10. ... If a plea is not specifically made and yet it is covered by an issue by implication, and the parties knew that the said plea was involved in the trial, then the mere fact that the plea was not expressly taken in the pleadings would not necessarily disentitle a party from relying upon it if it is satisfactorily proved by evidence. The general rule no doubt is that the relief should be founded on pleadings made by the parties. But where the substantial matters relating to the title of both parties to the suit are touched, though indirectly or even obscurely, in the issues, and evidence has been led about them, then the argument that a particular matter was not expressly taken in the pleadings would be purely formal and technical and cannot succeed in every case. What the Court has to consider in dealing with such an objection is : did the parties know that the matter in question was involved in the trial, and did they lead evidence about it? If it appears that the parties did not know that the matter was in issue at the trial and one of them has had no opportunity to lead evidence in respect of it, that undoubtedly would be a different matter. To allow one party to rely upon a matter in respect of which the other party did not lead evidence and has had no opportunity to lead evidence, would introduce considerations of prejudice, and in doing justice to one party, the Court cannot do injustice to another."(emphasis supplied) ::: Downloaded on - 26/06/2024 20:32:50 :::CIS 16
16. The principle was reiterated by this Court in Ram Sarup Gupta v. Bishun Narain Inter College [(1987) 2 SCC 555 : AIR 1987 SC 1242] : (SCC pp. 562-63, para 6) "6. ... It is well settled that in the absence of pleading, .
evidence, if any, produced by the parties cannot be considered. It is also equally settled that no party should be permitted to travel beyond its pleading and that all necessary and material facts should be pleaded by the party in support of the case set up by it. The object and purpose of pleading is to enable the adversary party to know the case it has to meet. In order to have a fair trial it is imperative that the party should settle the essential material facts so that the other party may not be taken by surprise. The pleadings however should receive a liberal construction; no pedantic approach should be adopted to defeat justice on hair-splitting technicalities.
Sometimes, pleadings are expressed in words which may not expressly make out a case in accordance with a strict interpretation of the law. In such a case it is the duty of the court to ascertain the substance of the pleadings to determine the question. It is not desirable to place undue emphasis on form, instead, the substance of the pleadings should be considered. Whenever the question about lack of pleading is raised the enquiry should not be so much about the form of the pleadings; instead, the court must find out whether in substance the parties knew the case and the issues upon which they went to trial. Once it is found that in spite of deficiency in the pleadings, parties knew the case and they proceeded to trial on those issues by producing evidence, in that event it would not be open to a party to raise the question of absence of pleadings in appeal."(emphasis supplied)
17. It is thus clear that a case not specifically pleaded can be considered by the court only where the pleadings in substance, though not in specific terms, contain the necessary averments to make out a particular case and the issues framed also generally cover the question involved ::: Downloaded on - 26/06/2024 20:32:50 :::CIS 17 and the parties proceed on the basis that such case was at issue and had led evidence thereon. As the very requirements indicate, this should be only in exceptional cases where the court is fully satisfied that the pleadings .
and issues generally cover the case subsequently put forward and that the parties being conscious of the issue, had led evidence on such issue. But where the court is not satisfied that such a case was at issue, the question of resorting to the exception to the general rule does not arise. The principles laid down in Bhagwati Prasad [AIR 1966 SC 735] and Ram Sarup Gupta [(1987) 2 SCC 555: AIR 1987 SC 1242] referred to above and several other decisions of this Court following the same cannot be construed as diluting the well-settled principle that without pleadings and issues, evidence cannot be considered to make out a new case which is not pleaded. Another aspect to be noticed is that the court can consider such a case not specifically pleaded, only when one of the parties raises the same at the stage of arguments by contending that the pleadings and issues are sufficient to make out a particular case and that the parties proceeded on that basis and had led evidence on that case. Where neither party puts forth such a contention, the court cannot obviously make out such a case not pleaded, suo motu.
15. In the present case, whether the defendant had a pre-
existing title or not could have been proved by leading the evidence.
The plaintiff did not assert this fact before the learned Trial Court.
No issues were framed regarding this fact. The defendant never got an opportunity to prove whether he had any title on the date of the execution of the Relinquishment Deed or not. Hence, the plea taken by the plaintiff that the Relinquishment Deed can only feed the title ::: Downloaded on - 26/06/2024 20:32:50 :::CIS 18 but cannot create the title cannot be permitted to be raised during these proceedings.
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16. The plaintiff had come to the Court with a specific plea that the Sale Deed was got executed by practising fraud upon her. The General Power of Attorney was executed to get the gun license transferred in the plaintiff's name but the defendant's father got executed a General Power of Attorney regarding the land from her. It was laid down by the Judicial Committee of the Privy Council more than 100 years ago in Abdool Hoosein Zenail Abadin v. Charles Agnew Turner, 1887 SCC OnLine PC 10 that charge of fraud must be substantially proved as laid and when one kind of fraud is alleged, another kind of fraud cannot be proved. It was observed:-
It is a well-known rule that a charge of fraud must be substantially proved as laid, and that when one kind of fraud is charged another kind of fraud cannot, upon failure of proof, be substituted for it. See the case of Montesquieu v. Sandys 18 Ves 302, in which it was held that relief cannot be given upon circumstances that are not made a ground of relief upon the record.
17. This judgment was followed by the Hon'ble Supreme Court in Bishundeo Narain v. Seogeni Rai, 1951 SCC 447 wherein it was observed:-
::: Downloaded on - 26/06/2024 20:32:50 :::CIS 19"22. We turn next to the questions of undue influence and coercion. Now it is to be observed that these have not been separately pleaded. It is true they may overlap in part in some cases but they are separate and separable categories in law and .
must be separately pleaded. It is also to be observed that no proper particulars have been furnished. Now if there is one rule which is better established than any other, it is that in cases of fraud, undue influence and coercion, the parties pleading it must set forth full particulars and the case can only be decided on the particulars as laid. There can be no departure from them in evidence. General allegations are insufficient even to amount to an averment of fraud of which any court ought to take notice however strong the language in which they are couched may be, and the same applies to undue influence and coercion. See Order 6 Rule 4, Civil Procedure Code."
18. In the present case, the plaintiff has asserted that the General Power of Attorney was got executed by practising fraud by making her believe that it was being executed regarding the transfer of the gun license. The learned Trial Court did not record any specific finding that this fraud was proved. The learned Trial Court was influenced by the defendant's father being Karta and in a fiduciary relationship and shifted the burden upon the defendant to prove the validity of the General Power of Attorney. Significantly, the plaintiff never claimed that she was in a fiduciary relationship with the defendant's father or that she had reposed trust/confidence in him, which was abused by him. Thus, learned Trial Court had recorded a finding on a plea which was never taken by the plaintiff.
::: Downloaded on - 26/06/2024 20:32:50 :::CIS 2019. The General Power of Attorney is a registered document.
The learned First Appellate Court had rightly pointed out that there is .
a presumption that a registered document is validly executed and the burden will be upon the person who alleges to the contrary to prove that the document was vitiated by fraud. It was laid down by this Court in Kripa Ram vs. Smt. Maina 2002(2) Shim. L.C. 213, that there is a presumption regarding the correctness of the endorsement made on the registered documents. It was held:-
"10. Section 60 of the Registration Act specifically provides that the certificate endorsed on the document, registered by the Registrar, shall not only be admissible in evidence for the purpose of proving that the document has duly been registered in the manner provided under the Act but also that the facts mentioned in the document referred to in Section 59 have taken place as mentioned therein. It is now settled that the presumption of due execution of a document arises from the endorsement of the Sub Registrar under Section 60 of the Act.
As far back as in 1928 Privy Council in Sennimalai Goundan and another v. Sellappa Goundan and others, AIR 1929 Privy Council 81, interpreting the provisions of Section 60(2) read with Section 115 of the Evidence Act held that where a person admits execution before the Registrar after the document has been explained to him, it cannot subsequently be accepted that he was ignorant of the nature of the transaction. In that case, the plaintiff alleged that his father and brothers, with the intention of defrauding the plaintiff of his legitimate share in the family properties, entered into a fraudulent collusive partition. The Trial Court found that the plaintiff's case was proved and he decreed the suit. In the appeal, it was held that the plaintiff failed to make out the alleged fraud and allowed the appeal. The decree of the Trial Court was set aside. The Subordinate Judge ::: Downloaded on - 26/06/2024 20:32:50 :::CIS 21 had found that the partition was unequal because the land allotted to the plaintiff was less than that allotted to the other brothers. It was found that contemporaneously with the partition, some land that fell into the share of plaintiff Karuppa .
were conveyed to his second wife Nachakkal by a registered sale deed. Nachakkal gave evidence that the transaction was bogus, as she never paid the consideration for the sale though she admitted the execution of the sale deed before the Registrar. Her story that she was ignorant of the nature of the transaction, it was held, cannot be accepted as she had admitted the execution of the sale deed before the Registrar.
11. A Division Bench of this Court Kanwarani Madna Vati and another v. Raghunath Singh and others, AIR 1976 HP4I, interpreting the provisions of Section 62 of the Registration Act held that there is a presumption of correctness of the document if its execution is admitted before the Registrar. The Division Bench in para 20 observed:
"Under Section 60(2) of the Registration Act, the certificate given by the registering officer shall be admissible for the purpose of proving that the document has been duly registered in the manner provided by this Act and that the facts mentioned in Section 59 have occurred as therein mentioned. Therefore, there is a presumption, which attaches to the correctness of the endorsements made on the document by the Registering Officer. These endorsements show the presentation of the document personally by Smt. Madna Vati for registration. She was identified by Kr. Jowala Singh and her signatures were also obtained by the Registering Officer on both the endorsements, i.e., the endorsement of the presentation and that of admitting the contents of the documents and the receipt of the consideration by her. In order to rebut this, it was necessary for defendant No.2 to have produced the Sub Registrar. She did not produce him in the witness box. Therefore, the presumption of correctness shall become conclusive."::: Downloaded on - 26/06/2024 20:32:50 :::CIS 22
12. In the present case as noticed earlier, there is an endorsement of the Sub Registrar to the effect that the contents were read over and explained to the vendor-plaintiff Maina Devi and, therefore, the presumption is that the .
contents of the sale deed were read over and explained to her.
The Sub Registrar (DW3) himself is categorical in his evidence that the contents of the sale deed were read over to Maina Devi. He duly proved the endorsements. Therefore, in the circumstances, learned first Appellate Court was not right while reversing the findings of the Trial Court on the grounds that the contents of the sale deed were not read over or explained to the plaintiff.
13. A Single Judge of this Court in Rewat Ram Sharma v. Munshi Ram (RSA No.242 of 1994) decided on December 13, 2001, relying upon Kanwarani Madya Vati, Sennimalai Goundan (supra) and Dinesh Chandra Guha v. Satchindannanda Mukherji, AIR 1972 Orissa235, held that admission of signatures on the endorsement made by the Registrar by an executant of the document in the absence of anything else to the contrary, would lead to the inference that the plaintiff was present before the Sub Registrar when the document was presented for registration and the onus to rebut the presumption under Section 60(2) the Registration Act was heavily on the plaintiff which the plaintiff did not discharge. In that case, the case of the plaintiff was that he had borrowed some money from the defendant and had agreed to mortgage his property in favour of the defendant. The plaintiff was taken to the Tehsil Headquarters for the purpose of execution of the mortgage deed. His signatures were obtained by the defendant by making him believe that it was a mortgage deed and later on, the defendant proclaimed that the property has been gifted to the defendant and the plaintiff realized that instead of the mortgage deed, a gift deed was executed from him fraudulently by the defendant. He repudiated the gift deed and filed a suit that the gift deed was a result of misrepresentation, fraud and undue influence on the part of the defendant. It is in this context that the Court held that Section 60(2) of the Evidence Act raises presumption as to the correctness of the ::: Downloaded on - 26/06/2024 20:32:50 :::CIS 23 endorsement made on the document by the Registering Officer."
20. It was laid down by this Court in Sohan Lal v. Ghanshyam, .
2016 SCC OnLine HP 1187 that there is a presumption regarding the valid execution of the Registered Deed and the burden lies upon the person, who asserts to the contrary to establish the same. It was observed:-
"18. In Ningawwa v. Byrappa Shiddappa Hireknrabar AIR 1968, SC 956, the Hon'ble Supreme Court held as under:
"27. There is a presumption that a 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 leads evidence to rebut the presumption. In the instant case, Respondent 1 has not been able to rebut the said presumption."
19. Indisputably, the sale deed in question is a registered one and is presumed to have been validly executed and the onus of proof, will be on those, who want to offset the above presumption.
20. In Prem Singh v. Birbal (2006) 5 SCC 353, it was held as under:
"27. There is a presumption that a 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 leads evidence to rebut the presumption. In the instant case, respondent No. 1 has not been able to rebut the said presumption."
21. In Vimal Chand Ghevarchand Jain v. Ramakant Eknath Jadoo (2009) 5 SCC 713, the Hon'ble Supreme Court held that a registered sale deed is presumed to be valid unless the contrary is proved. The onus is on the person who challenges the same ::: Downloaded on - 26/06/2024 20:32:50 :::CIS 24 to show that it is either not acted upon or is a sham transaction."
22. It would also be noticed that the plaintiff has miserably failed to prove the plea of fraud. It is well settled that the plea .
of fraud must be specifically proved and cannot be based on mere suspicion. The party alleging fraud is to establish it beyond reasonable doubt with cogent evidence and suspicion cannot be accepted as proof. Fraud like any other charge of a criminal offence whether made in civil or criminal proceedings must be established beyond reasonable doubt and the same cannot, therefore, be based on suspicion and conjecture.
21. Thus, it was not permissible for the learned Trial Court to hold that fraud was practised merely because of the conflict in the testimonies of the defendant's witnesses. The burden was upon the plaintiff to establish that defendant's father had practised fraud upon her. This burden was required to be discharged by legally admissible evidence.
22. The plaintiff stated that the defendant's father was a lawyer by profession. Her husband died on 10 th June 1993. The defendant's father went to Mukerian in 1998 and told her that the gun licence of her husband was to be transferred in her name. Gun licence had to be made effective in all India and documents were required to be prepared. The plaintiff went to Bir on 2 nd and 3rd September, 1998. The defendant and his father asked her to accompany them to Baijnath. She asked that 2-3 respectable people ::: Downloaded on - 26/06/2024 20:32:50 :::CIS 25 of the village should be taken but the defendant and his father stated that there was no necessity to do so. She was sitting in a car. The .
defendant's father asked her to sign some papers. The documents were never read over and explained to her. She was taken to Palampur on 05.09.1998. The defendant asked her to sign the documents and she was not permitted to read them. She was not produced before the Tehsildar and General Power of Attorney was executed fraudulently.
She stated in her cross-examination that she did not know the date on which the gun license was transferred in her name. She volunteered to say that the gun license was transferred by her in the name of her daughter. She admitted that the defendant and Vishnu were the witnesses of her General Power Attorney.
23. Her Special Power of Attorney Renu Singh (PW-3), produced a letter (Ext.PW-3/B), dated 04.07.1995 asking Renu about the gun and gun its licence, which was valid up to 19.05. This letter instead of supporting the plaintiff's version demolishes the same. It shows that the defendant's father corresponded with Renu Singh (PW-3) about the gun license. The gun licence was already renewed on 19.05.1998. The plaintiff's husband had died on 10.06.1993 as per the plaintiff's testimony.The fact that the gun license was valid till ::: Downloaded on - 26/06/2024 20:32:50 :::CIS 26 19.05.1995 and was to be renewed on 19.05.1998 shows that the gun license did not require any transfer and was already transferred that .
is why it was valid even after the death of the holder and was renewed till 19.05.1998. Further plaintiff stated that the gun licence was transferred by her to her daughter which statement along with the letter shows that the gun licence was in the name of the plaintiff's daughter and the defendant's father could not make any representation to the plaintiff regarding the transfer of the gun license and making it effective for all India.
24. The defendant's father was already talking to Renu Singh (PW-3) her power of attorney about the gun licence. Hence, there was no necessity for the plaintiff to trust the defendant's father to transfer the gun license. These circumstances clearly show that her version regarding the execution of the General Power of Attorney for the transfer of the gun licence is not believable and the learned First Appellate Court had rightly discarded the same.
25. The plaintiff also examined Arti (PW-2), who stated that defendant Rajinder Pal visited Mukerian in 1998 and enquired about the gun. He asked the plaintiff to visit Bir. She stated in her cross-
examination that the year 1998 was told to her by the plaintiff. Her ::: Downloaded on - 26/06/2024 20:32:50 :::CIS 27 statement does not support the plaintiff's version. She was told about the year by the plaintiff and this is not based upon her knowledge.
.
Further, the plaintiff had pleaded that the defendant's father got the General Power of Attorney executed for transferring the gun licence.
She had never pleaded that the defendant had done so. Hence, her testimony does not corroborate the plaintiff's version.
26. Vikram Chand (PW-4) and Ashok Kumar (PW-5) are the registration clerks and their testimonies will not help in establishing the plea of fraud. Thus, the learned First Appellate Court had rightly held that the plaintiff had failed to prove the plea of fraud. This finding was based upon the appreciation of the evidence. It was laid down by Sukhdei v. Bairo, (1999) 4 SCC 262 that when the findings regarding the fraud are supported by the material on record, the High Court cannot interfere with the same while exercising the jurisdiction under Section 100 of CPC. It was observed: -
10. The above findings of facts arrived at by the lower appellate court while concurring with the judgment of the trial court, in our opinion, cannot be faulted since the same is borne out from the records of the case. Once we come to the conclusion that the findings of fraud arrived at by the trial court and the first appellate court are based on the material on record and there is no infirmity in arriving at the said finding, the logical conclusion is that the High Court was in error in upsetting this finding while entertaining an appeal under Section 100 of the ::: Downloaded on - 26/06/2024 20:32:50 :::CIS 28 CPC. Though the High Court has endeavoured to bring the case of the plaintiff on a question of law, as already referred to hereinabove, we are unable to agree with the High Court for the reasons already given. We having accepted the case of the .
defendants on the question of fraud, but in our opinion, nothing further survives for consideration in this appeal. However, we may observe that we have also carefully considered the findings of the trial court and the lower appellate court in regard to the nature of Ex. P-10 and we agree with the said finding of the trial court and the lower appellate court that the document in question is a mortgage deed and not a sale deed and that the entire amount due under the said document has been recovered by the plaintiff. Consequently, the plaintiff cannot have any claim based on the said document.
27. The Relinquishment Deed was executed by the General Power of Attorney, who was authorized to do so. The plaintiff was not a signatory to it and could not have stated anything about the fraud in the execution of the same. Her simple case is that since the General Power of Attorney executed by her was vitiated by fraud, therefore, the Relinquishment Deed executed by the General Power of Attorney was also invalid. It has been found out above that the plaintiff had failed to prove that the General Power of Attorney was vitiated by fraud. Therefore, the Relinquishment Deed cannot be said to be bad.
28. Much was made of the alteration in the General Power of Attorney and the statement of Bhoop Singh, Sub-Registrar (DW-5), who stated in his cross-examination that he would not have ::: Downloaded on - 26/06/2024 20:32:50 :::CIS 29 registered the document had he found the alteration to submit that this is a suspicious circumstance. First of all, the statement made by .
the Sub Registrar regarding the process of registration is not admissible because the procedure for registration is laid down by the Registration Act, which does not provide that any document containing any alteration is not to be registered. Secondly, even if there was some alteration, the same does not prove the fraud alleged by the plaintiff. As already stated, the Court can only find the fraud pleaded and it is not permissible to hold that some different kind of fraud was proved. Since alteration was not pleaded to be a ground of fraud; hence, no advantage can be derived from the alteration.
29. The Relinquishment Deed does not require any consideration, hence, it cannot be held to be bad for want of consideration.
30. The plea that the Relinquishment Deed was executed by more than one person was not taken before the learned Court below and cannot be taken before this Court.
31. Thus, the findings recorded by the learned First Appellate Court cannot be said to be perverse, unjust and illegal. Hence, no substantial questions of law arise in the present case.
::: Downloaded on - 26/06/2024 20:32:50 :::CIS 3032. Consequently, the present appeal does not disclose any substantial question of law. Hence, the present appeal fails and the .
same is dismissed.
33. Pending application(s), if any, also stand(s) disposed of.
(Rakesh Kainthla) Judge 26th June, 2024.
(Ravinder) ::: Downloaded on - 26/06/2024 20:32:50 :::CIS