Allahabad High Court
Chhabiram And Others vs Smt. Vimla Devi on 8 January, 2020
Equivalent citations: AIRONLINE 2020 ALL 341
Author: Vivek Agarwal
Bench: Vivek Agarwal
HIGH COURT OF JUDICATURE AT ALLAHABAD Court No. - 53 Case :- SECOND APPEAL No. - 510 of 2007 Appellant :- Chhabiram And Others Respondent :- Smt. Vimla Devi Counsel for Appellant :- Arvind Srivastava Counsel for Respondent :- Manoj Kumar Mishra,Ashutosh Srivastava,M.K. Gupta,Pankaj Agarwal Hon'ble Vivek Agarwal,J.
This Second Appeal has been filed by the defendants being aggrieved of judgment and decree dated 05.05.2007 passed by the Court of Additional District Judge, Court No.13, Agra in Civil Appeal No.79 of 2006 arising out of the judgment and decree dated 01.11.2006 passed by learned Civil Judge (Sr. Division), Agra in original Suit No.518 of 1986.
This appeal was admitted on 18.05.2007 on the following substantial question of law:-
(1) Whether in spite of the defendant being recorded tenure holder and the plot in dispute being an agricultural land, the Courts below having mis-appropriated the provisions of Section 331 of U.P.Z.A. and L.R. Act vitiating the impugned judgment in the eyes of law.
(2) Whether the Courts below had erred in law in exceeding its jurisdiction by interfering in the assessment of the oral evidence as done by the Trial Court even in the absence of any special circumstances which has vitiated in law the impugned decree.
Admitted facts of the case are that plaintiff Smt. Vimla Devi had filed a suit seeking a declaration that sale deed dated 17.11.1984 is not binding on the plaintiff and does not affect her rights and be declared as null and void. Further relief was sought that defendants be restrained from causing any obstruction in peaceful possession of the plaintiff and further mandatory injunction be issued for demolition of new construction carried out by the defendants.
This suit as was filed by the plaintiff was dismissed by the Trial Court holding that as per the Commission Report construction carried out in the suit property was prior to filing of the suit and during the pendency of the suit, defendants have not carried out any construction. Suit was also dismissed on the ground that plaintiff had failed to prove that the sale deed which was executed on 06.02.1985 was executed on the basis of fraud and mis-representation and the vendor of the sale deed was not in a position to execute such sale deed.
Being aggrieved of such judgment and decree passed by the Trial Court, plaintiff had filed regular civil appeal which was registered as Civil Appeal No.79 of 2006. Plaintiff's case is that the suit property was that of Lotan Singh Rajput resident of Tehsil- Fatehabad, District-Agra. After his death, such property was vested in Smt. Ket Kunvar who is mother of the plaintiff and defendant no.4-Smt. Kamlesh. Smt. Ket Kunvar died on 06.06.1986 and prior to her death she was seriously ill and was not in her senses. She was not in a position to take correct decision and was neither able to hear nor able to see. Plaintiff's husband was staying close to the house of Ket Kunvar was taking care of the property of Ket Kunvar and also that of Ket Kunvar because Ket Kunvar had no son. Ket Kunvar had three daughters, out of which, one is the plaintiff-Vimla Devi, another is defendant no.4-Smt. Kamlesh and another Resham Devi. She had a very sound financial condition and, therefore, was not in need of any money but defendant's taking advantage of the illness of Ket Kunvar fraudulently got sale deed dated 17.11.1984 executed in relation to land contained in Survey No.226 measuring 10 bigha, one biswa and 10 biswasi for a considertion of Rs.1,12,500/- which was registered on 06.02.1985. It is submitted that no money was recovered from the belongings of Ket Kunvar and the pleading that such money was paid to Ket Kunvar to pay her debts is nothing but an arbitrary and perverse finding of the trial court because, she was neither in debt nor was in requirement of any money.
It is also submitted that first appellate court has erred in recording a finding that other important witnesses like Prabhu Dayal was not examined in support of the transaction of sale deed and, therefore, the sale deed has been termed to be void is nothing but a perverse finding which needs to be set aside.
Learned counsel for the appellant submits that plaintiff and the defendants are all related to each other. Defendant nos.1 to 3 are sons of Resham Devi whereas defendant no.4 is sister of the plaintiff and daughter of Ket Kunvar. It is further submitted that Ket Kunvar had executed another sale deed prior to execution of the sale deed in question on 28.09.1984 vide which mother of defendant nos.1 to 3. Smt. Resham Devi had purchased land contained in report Khasra No.164 from her mother-Smt. Ket Kunvar and no objection was taken on such sale transaction. It is further submitted that allegation of fraud and mis-representation could not be sustained and proved by the plaintiff for the reason that transaction had not taken place in one go. Earlier sale deed was drawn on 17.11.1984 and, thereafter, it was executed and registered in the Office of Sub-registrar on 06.02.1985. If the intention would have been to cause any fraud or mis-representation to obtain such document, then transaction could have been completed within one day rather than waiting for almost more than two months time to lapse in between. It is also submitted that admittedly, date of knowledge of the transaction to the plaintiff is February, 1986. This admission has nowhere been controverted by the plaintiff. Khet Kunvar died on 06.06.1986. Suit was filed on 17.10.1986.
It is further submitted that contention of the plaintiff that suit property was agricultural land which was ancestral and therefore Ket Kunvar had no right to alienate the same and further that plaintiff has 1/3 share in the total estate of Ket Kunvar and further that she was in possession of the suit land along with her husband from the life time of Ket Kunvar and has therefore on the strength of her possession for over 12 years, perfected her title on the suit land are the pleadings not substantiated from the documents on record and, therefore, the first Appellate Court has acted arbitrarily in reversing the findings recorded by the Trial Court.
It is submitted the judgment of the first Appellate Court is based on surmises and conjuctures. The first Appellate Court has overlooked the fact that no evidence was led by the plaintiff to prove that Ket Kunvar was ill or not keeping good health or that she had a diminished vision or impared hearing capacity taking advantage of which, sale deed was executed by the defendant-appellant. It is also submitted that finding of the first appellate court that once Khet Kunvar had received 96,000/- on 29.09.1984 by selling one portion of her holding in favour of one of her daughters-Resham Devi, then there was no occasion for her to sell another portion on 17.11.1984 when there is no evidence on record as to where, such money had gone and how much money was left with the Ket Kunvar to draw a finding that Ket Kunvar was put under psychological pressure and by keeping her in dark sale deed was executed by making another women to stand in place of Ket Kunvar is nothing but an imagination of the first appellate court which has been inspired by the material other than what is available on record and, therefore, the impugned judgment passed by the first appellate court deserves to be set aside.
It is also submitted that it has come on record and admitted by the plaintiff and her husband that on the date of death of Ket Kunvar neither the plaintiff nor her husband were residing with Ket Kunvar. They are residents of a different village.
On the other hand, learned counsel for the respondent-plaintiff submits that plaintiff was living with Ket Kunvar and, therefore, adverse inference drawn against the plaintiff is against the material available on record. It is submitted that trial court's finding that once plaintiff had gathered knowledge of the transaction carried out by Ket Kunvar on 20.02.1986, then being a matter within the family, it was not necessary for the plaintiff to have filed a suit for cancellation during the life time of Ket Kunvar or to have taken any other appropriate action as by way of prudence any prudent member of a family would not like to indulge in litigation against the family members.
It is also submitted that Trial Court has also placed undue emphasis on the affidavit of Ket Kunvar dated 11.04.1986 stating that she has executed the sale deed out of her own sweet will in completely aware state of mind. It is submitted that first appellate court has rightly held that this affidavit as has been filed by the defendant as document no.267(Ga) does not make a mention of any name of the court or the case number and, therefore, it has been rightly disbelieved by the first appellate court.
It is also submitted that first appellate court has rightly considered the material available on record and has held that in absence of the attesting witnesses to the sale deed who died, it was necessary for the defendants to have produced other relevant witnesses in front of whom allegedly transaction took place and has rightly held in para11 of the impugned judgment that Prabhu Dayal was an important witness to the transaction and he should have been examined by the defendants. It is also submitted that there is an admission on the part of the defendant witnesses namely DW-3 who has admitted that in the year in which document was executed, Ket Kunvar had harvested ''Arhar' crop in the month of ''Chaitra' and, thereafter, she continued to cultivate the field till she was alive.
Placing reliance on such submissions, it is submitted that Ket Kuvar never parted with the possession of the suit land, she was also always in possession with the suit land and plaintiff having perfected her title by virtue of adverse possession and also on account of the fact that the property was ancestral and therefore Ket Kunvar had no right to alienate the same by virtue of sale deed, thus undisputed 1/3 share to the plaintiff by virtue of being one of the three daughters of Ket Kunvar, leads to only reasonable and sensible conclusion that the land in question always remained vested and in possession of Ket Kunvar and she being not authorized to alienate any portion, plaintiff has a right to seek declaration of cancellation of the sale deed executed by Ket Kunvar in favour of the defendants.
Learned counsel for the appellants appearing for the defendants has placed reliance on the judgments of Supreme Court to support the substantial questions of law as have been framed by a Co-ordinate Bench of this Court on 18.05.2007.
Reliance is placed on the judgment of High Court of Allahabad in case of Babu Nandan (D) through L.Rs. Vs. Esraji as reported in 2003 Law Suit (Allahabad) 571 wherein placing reliance on the judgment of Allahabad High Court in the matter of Kamla Singh Vs. 3rd Additional District Judge, Gorakhpur and another as reported in 1984 AWC 984, it has been held that "8. After hearing the learned counsel for the petitioner, I am of the view that on the allegations made in the plaints of the two suits, the documents will dated 8.7.1969 and the gift deed dated 31.8.1971 whereby the basic allegations made for cancellation of these documents were that the executants of these deeds had no right, title or interest to convey any title. On these allegations, it would appear that the documents were void and the suits in respect of them had to be filed in the revenue court."
10. In the case of Azahar Hasan and Ors. Vs. District Judge, Saharanpur and others, 1998 (3) AWC 2024 (SC) : JT 1998 (4) SC 313. Hon'ble Supreme Court held as follows :
"2. On reading the plaint and on understanding the controversy, we get to the view that whether those persons who succeeded the recorded tenants, were rightly recorded as tenants or not, was a question determinable by the revenue authorities. Besides that, the sale deed which has been questioned on the basis of fraud, was not executed by the plaintiffs but by others, and they were not parties thereto, so as to allege the incidence of fraud. In these circumstances, we are of the view that the plaint was rightly returned to the plaintiffs. They are even now at liberty to approach the Revenue authorities and claim deduction of time spent in these proceedings, in computing limitation for the purpose of the suit. In this view of the matter, the appeal fails and is hereby dismissed. No costs."
Thus, placing reliance on the judgment of Babu Nandan, it is submitted that this judgment supports the issue no.1; that the suit was not maintainable in terms of the provisions contained in Section 331 of U.P.Z.A. and L.R. Act, 1950.
Similarly, reliance has been placed on the judgment of Allahabad High Court in case of Kundan Singh Vs. first Additional District Judge, Bijnor and others as reported in 2009 (4) ADJ 145 wherein placing reliance on the judgment of Babu Nandan (supra), it has been held that once the names of the petitioner who were defendant in the suit has already been mutated in the revenue records on the basis of the sale deed in his favour, therefore the proper forum for alianation of the rights of the parties is the revenue court under Section 229-B of the U.P.Z.A. and L.R. Act, 1950.
Reliance is also placed on the judgment of Supreme Court in case of Santosh Hazari Vs. Purrushottam Tiwari (dead) by L.Rs. as reported in AIR 2001 SC 965 wherein, it has been held that while writing a judgment of reversal, the Appellate Court must remain conscious of two principles. Firstly, the findings of fact based on conflicting evidence arrived at by the Trial Court must weigh with the Appellate Court, more so, when the findings are based on oral evidence, recorded by the same Presiding Judge who authors the judgment and, when there is conflict of oral evidence of the parties on any matter in issue and the decision hinges upon the credibility of the witnesses, then unless there is some special feature about the evidence of a particular witness which has escaped the trial judges notice or there is sufficient balance of improbability to displace his opinion as to where the credibility lies, the appellate Court should not interfere with the finding of the trial Judge on a question of fact.
Secondly, while reversing a finding of fact, the Appellate Court must come into close quarters with the reasoning assigned by the Trial Court and then assign its own reasons for arriving at a different finding. This would satisfy the court hearing a further appeal that the first appellate court had discharged the duty expected of it.
Placing reliance on such judgments of Supreme Court in support of second substantial question of law framed in this appeal, it is submitted that first appellate court has failed to exercise its authority properly and in a just manner.
Reliance is also placed on the judgment of Supreme Court in case of Madhukar Vs. Sangram as reported in 2001 (4) SCC 756 wherein, it has been again held that the Court at the instance of first appeal is required to discuss the documentary as well as oral evidence and assign reasons for reversal of the findings of the fact recorded by the Trial Court. This can be done when the Court of first appeal deals with all the issues and the evidence led by the parties before recording its findings. First appeal being a valuable right and the parties have a right to be heard both on questions of law and on facts therefore the first appeal must address itself to all the issues of law and fact and decide it with reasons in support of the findings.
Reliance is also placed on the judgment of Supreme Court in case of J.B. Sharma Vs. State of M.P. and another as reported in AIR 1988 SC 703 wherein, it has been held that while exercising its jurisdiction to hear a second appeal under Section 100 of Code of Civil Procedure, if the High Court comes to a finding that the first appellate court while recording its finding acting on an assumption not supported by any evidence and further fail to consider the entire document on the basis of which, the findings were recorded, it would be justified under Section-100 to set aside such findings.
Reliance is also placed on the Constitution Bench Judgment of Supreme Court in case of Bishundeo Narain and another Vs. Seogeni Rai and others as reproted in AIR 1951 (0) SC 280 wherein, it has been held that the onus of proving fraud or negligence is on the party making such allegation which must make distinct allegations in their pleadings and substantiate them. He should furnish all particulars with the dates and items, if necessary should be stated in the pleadings. This Rule has been evolved with a view to narrow down the issue and protect the party charged with improper conduct from being taken by surprise. Vague and general allegations are not sufficient.
Similarly, reliance is placed on the judgment of Supreme Court in case of Subhas Chandr Das Mushib Vs. Ganga Prasad Das Mushib and others as reported in 1967(1) SCR 331, equivalent citation AIR 1967 SC 878 wherein, it has been held that placing reliance on the Judicial Committee of the Privy Council in Poosathurai Vs. Kannappa Chettiar wherein, it has been held that it must be noted that merely because parties were nearly related to each other, no presumption of undue influence can arise.
In this regard, para-9 and 10 from the said decision is quoted as under:-
"9. The law in India as to undue influence as embodied in Section 16 of the Contract Act is based on the English common law as noted in the judgment of this Court in Ladli Prasad Jaiswal Vs. Karnal Distillery Co. Ltd. 1964 1 SCR 270 at 300 According to Halsbury's Laws of England, 3rd Edn., Vol. 17, p. 673 Article 1298, "where there is no relationship shown to exist from which undue influence is presumed, that influence must be proved". Article 1299 p. 674 of the same volume shows that "there is no presumption of imposition or fraud merely because a donor is old or of weak character". The nature of relations from the existence of which undue influence is presumed is considered at pp. 678-81 of the same volume. The learned author notes at p. 679 that "there is no presumption of undue influence in the case of a gift to a son, grandson, or son-in-law, although made during the donor's illness and a few days before his death". Generally speaking the relation of solicitor and client, trustee and cestui que trust, spiritual adviser and devotee, medical attendant and patient, parent and child are those in which such a presumption arises. Section 16(2) of the Contract Act shows that such a situation can arise wherever the donee stands in a fiduciary relationship to the donor or holds a real or apparent authority over him.
10. Before, however, a court is called upon to examine whether undue influence was exercised or not, it must scrutinise the pleadings to find out that such a case has been made out and that full particulars of undue influence have been given as in the case of fraud. See Order 6 Rule 4 of the Code of Civil Procedure. This aspect of the pleading was also given great stress in the case of Ladli Prasad Jaiswal above referred to."
Placing reliance on such judgments, it is submitted by the learned counsel for the appellant that plaintiff's suit was barred and not maintainable in terms of the provisions of U.P.Z.A. and L.R. Act and, secondly, it is submitted that the first Appellate Court erred in exceeding its jurisdiction by interfering in the assessment of the oral evidence made by the Trial Court without there being any special circumstances and without bothering to discuss the circumstances appearing to be against the appellant-defendants and bringing them to the notice of the defendant.
On the other hand, learned counsel for the plaintiff-respondent in this appeal has placed reliance on the judgment of Allahabad High Court in case of Jai Singh Vs. 2nd Addl. District Judge, Muzaffar Nagar and others as reported in 2001 (92) R.D. 817 in which, it has been held that in a suit for cancellation of sale deed by a person either recorded in revenue papers or not if comes to civil court, jurisdiction of civil court not having been expressly barred to try such suits, the suit will be maintainable in the Civil Court.
Similarly, reliance is placed on the judgment of Supreme Court in case of Mst. Kharbuja Kuer Vs. Jangbahadur Rai and others as reported in AIR 1963 SC 1203 wherein, placing reliance on the provisions contained in Sections 101 and 103 of the Evidence Act in case of execution of a document by a ''Pardanashin Lady', it has been held that burden to establish that she executed it after understanding is on him who relies on it.
Similarly, reliance is placed on the judgment of Allahabad High Court in case of Smt. Saghiran Vs. Dy. Director of Consolidation and others as reported in 1988 Alld. L.J. 956 wherein, again placing reliance on the provisions contained in Section 101 and 103 of Evidence Act in case of execution of a document by old, illiterate lady, it has been held that burden to establish that she executed it after understanding the contents therein is on a person who relies on it.
Reliance is also placed on the judgment of the Allahabad High Court in case of Parasnath Rai and others Vs. Tileshra Kuar as reported in 1965 ALJ 1080 wherein, similar principle of law in case has been laid down where though plaintiff was not a ''Pardanashin Lady' but it was argued that she is entitled to be extended the same protection as the law gives to a ''Pardanashin lady' looking to her physical and mental capacity and circumstances of the life. It has been held that the finding recorded by the lower appellate court that the deed of gift in question was the result of fraud and mis-representation based on the statement of the plaintiff herself and her witness that the transaction in question was an outcome of fraud and mis-representation, cannot be disturbed in second appeal. Even if the finding as to undue influence is ignored, the findings as to fraud and mis-representation was quite sufficient for setting aside of the impugned deed of gift and, accordingly, the appeal at the instance of the defendant was dismissed.
Reliance is also placed on the judgment of Allahabad High Court (Lucknow Bench) in case of Ashok Kumar and another Vs. Gaon Sabha, Ratauli and others as reported in AIR 1981 Allld. 222 wherein, it has been held that if plaintiff is an illiterate, rustic village woman, she would be entitled to the benefit available to ''Pardanashin Lady'. It is also held that if the consideration of sale had not passed before the Registrar then parties being aware of their respective cases, question of burden loses its importance and it was held that no consideration was paid.
Reliance is also placed on the judgment of Division Bench of Allahabad High Court in case of Rahul Vs. Kartar Singh as reported in 1990 Alld. L.J. 749 wherein, placing reliance on section 16 of the Contract Act under the given facts and circumstances of the case, where the vendor was an illiterate person with substantial impairment of site and alone with 20 years of life ahead with additional fact that property involved was the only source of concerned for subsistence, it is held that on a complaint of mis-representation as to nature of document, document is liable to be cancelled.
Reliance is also placed on the judgment of Supreme Court in case of Gian Chand and brothers and another Vs. Rattan Lal @ Rattan Singh as reported in 2013 (2) SCC 606 that where denial is evasive then facts are treated to be admitted.
Reliance is also placed on the judgment of Santosh Hazari Vs. Purshottam (supra) on which counsel for the appellant has also placed reliance. Besides placing reliance on judgments of Supreme Court in case of Union of India Vs. K.V. Laxman and others as reported in 2016 (3) ARC 3 to substantiate that first appellate Court has very vide powers and it is the duty of the first appellate court to appreciate the entire evidence and may come to a conclusion different from that of trial court. The first appeal should not be dismissed in limine, court should first admit and, then decide it finally.
Placing reliance on such judgments, it is submitted that there is no error apparent in the judgment of reversal recorded by the first Appellate Court allowing the appeal of the plaintiff and that does not call for any interference.
In the above backdrop, after hearing arguments of learned counsel for the parties, going through the record and the judgment cited by the rival counsels, keeping in mind, two substantial questions of law on which present second appeal has been admitted, this Court is of the opinion that as far as first substantial question of law is concerned that the suit was not maintainable before the Civil Court, and in support of which, learned counsel for the appellant has placed reliance on the judgment of Allahabad High Court in case of Babu Nandan Vs. Esra Ji (supra) wherein, it has been held that in case in regard to sale deed being called in question as void on the ground that the land in question is that the plaintiff's predecessor were ''Bhoomidhar' of land in dispute and sale deed was executed by some one else in favour of the defendant, then such suit is barred by Section 331 of U.P.Z.A. and L.R. Act as it was cognizable by the revenue court and not by the civil court. Same is the ratio of the case of Kundan Singh Vs. 1st Additional District Judge, Bijnor (supra) is to be examined in the light of the Full Bench judgment of this High Court in case of Ram Padarath Vs. 2nd Additional District Judge as reported in 1989 RD 21 wherein, it has been held that in para-41 reads as follows:-
"We are of the view that the case of Indra Deo v. Smt. Ram Pyari 1982 All.L.J. 1308 has been correctly decided and the said decision required no consideration, while the Division Bench case, Dr. Ayodhya Prasad V. Gangotri 1981 All.L.J. 647, is regarding the jurisdiction of consolidation authorities, but so far as it holds that suit in respect of void document will lie in the Revenue Court, it does not lay down a good law. Suit or action for cancellation of void document will generally lie in the civil court and a party cannot be deprived of his right getting this relief permissible under law except when a declaration of right or status of a tenure holder is necessarily needed in which even relief for cancellation will be surplusages and redundant. A recorded tenure holder having prima facie title in his favour can hardly be directed to approach the Revenue Court in respect of seeking relief for cancellation of a void document which made him to approach the court of law and in such case he can also claim ancillary relief even though the same can be granted by the Revenue Court."
This judgment and that in case of Indra Deo Vs. Smt. Ram Pyari as reported in 1982 Alld. L.J. 1308 have been taken note of by the Hon'ble Supreme Court in the case of Smt. Bishmillah Vs. Janeshwar Prasad as reported in AIR 1980 SC 540 and having approved such decision of Full Bench of the Allahabad High Court, whereas decision in case of Babu Nandan (supra) has not taken into consideration the law laid down by the Full Bench of this Court in case of Ram Padarath (supra) and as approved by the Hon'ble Supreme Court in case of Smt. Bishmillah Vs. Janeshwar Prashad (supra), and has also not taken into consideration the ratio of the law laid down by the Supreme Court in case of Sri Ram Vs. 1st A.D.J. as reported in 2001 RD 241 (SC) and, therefore, first substantial question of law that the suit as was filed by the plaintiff was not maintainable before the Civil Court in view of the express provisions contained in Section 331 of U.P.Z.A and L.R. Act is decided against the appellant and in favour of the respondents-plaintiff.
Coming to the second substantial question of law, the judgments relied on by the respondents-plaintiff in regard to burden of proof are distinguishable. In fact, in case of Mst. Kharbuja Kuar (supra), plaintiff was herself a widow of Rameshwar Rai and she contended that she and her mother-in-law being ''Pardanashi, Lady' were in possession of the suit property after partition being made between her husband and Jang Bahadur Rai-defendant no.1. Her husband died in the year 1930 and mother-in-law in 1938. However before death of the mother-in-law, plaintiff and her mother-in-law were asked to execute a Power of Attorney in favour of the defendant no.1 and being a ''Pardanashin Lady', they had executed a document on 24th August, 1935 in favour of the defendant no.1 believing it to be a Power of Attorney that they subsequently came to know that it was a maintenance deed containing false recitals to the effect that there was no separation and the property was joint family property. They had alleged that the deed in question was never read out to them and the scribe and the attesting witnesses were partitions of the first defendant.
Under such facts and circumstances, ratio of law has been laid down that in case of a document executed by a ''Pardanshin Lady', burden to establish that she executed it after understanding is on him who relies on it.
Similarly is the ratio of the judgment of this High Court in case of Smt. Sangharin (supra) and Parasnath Rai and others (supra). In that very context, law has been laid down in case of Ashok Kumar and another (supra), however, in the present case, plaintiff is not a ''Pardanashin Lady'. She is daughter of the vendor. Evidence was led on behalf of the plaintiff to the effect that Ket Kunvar was not keeping good health and when she was sick, then plaintiff was staying with her and was taking care of her medical needs. Her husband was also staying with her and taking care of his mother-in-law. Two years prior to her death she had been staying with her mother and she had no deficiency of money and had no requirement for money. It was also alleged that Ket Kunvar since two years prior to her death, was not conscious of her own health, and was using spectacles (chasma) and her hearing was impared. Her husband was cultivating the fields of the Ket Kunvar. She admitted that her father died about 35 years prior to date of statement. Thereafter, name of Ket Kunvar was recorded. Ket Kunvar had no son and only three daughters. She further reported that Chavi Ram Mehtab and Virendra Singh, defendants are sons of her elder sister Resham Devi. On death of their mother all the three sisters were owners of the land in question. She further averred that during the life time of her mother, her husband was cultivating such land. After death of their mother, dispute had taken place as plaintiff had taken her 1/3 share and had given 2/3 share to the defendants. However, in cross-examination this very witness admitted that when she had given her statements, her husband Gajadhar Singh was standing by her side. She will not lead evidence of her husband in this case. Plaintiff admitted that she is not aware as to what is written in the ''Bainama' 15(ka) as neither she has read it nor asked anybody to read it. She admitted that she had taken a copy of the sale deed after six months of its execution.
It has also come on record that her mother was ill for last two years and was not in a position to stand therefore she could not have visited the Tehsil. This witness averred that her mother Ket Kunvar had informed her in December, 1986 about the transaction of sale deed. Similarly, this witness admitted that the sale deed which was executed by Khet Kunvar in favour of the defendants, proceedings in regard to that were undertaken by her husband and not by the plaintiff. She had no knowledge about the appeal filed in case of Vimla Devi Vs. Chavi Ram (supra). She was not aware as to how many sale deeds were executed by Ket Kunvar. However, mentioned that the area of Survey no.226 is about 25 ''Kaccha Bigha'. She denied having any knowledge of the ''Lagan'. Plaintiff admitted that she has no dispute with the field owners having their field adjacent to survey no.226 and then further admitted that she is not staying there and therefore she has no talking terms with them. She further admitted that now she is staying in her matrimonial home. She admitted that she is residing in her matrimonial home, where for last three years she has a tractor also. She denied having knowledge as to when she had filed a case. She also denied having any knowledge as to for how much land Ket Kunvar had executed a sale deed in favour of the defendants. She admitted that she has not met Beni Ram- Stamp vendor. However, she had met Rajpati son of Raghuvar. She also admitted that she never asked Rajpati about disputed sale deed. She also admitted that she has never met Chand Khan, Document Writer who is said to be of Tehsil-Fatehabad. She also admitted that she is knowing Janak Singh son of Suraj Pal resident of Kanha, Fatehabad, who is son of brother-in-law of Ket Kunvar. She further deposed that Janak Singh is dead and she never had any talk with Janak Singh about the disputed sale deed. According to her, Ket Kunvar died in June, 1984. She admitted that she has no knowledge of the sale deed which was executed by Ket Kunvar on 01.06.1976 in regard to survey no.130 and 131 in favour of Munni Lal, Ram Babu son of Mata Prasad. She admitted that Ket Kunvar was owner of survey no.164. She expressed that she is not aware of the sale deed which was executed dated 28.09.1984. She admitted that she had not made any enquiry from Ket Kunvar as to whether sale deed in regard to survey no.226 was executed prior to 164 or not. She admitted that she knows Hari Singh son of Gaya Prasad resident of Fatehabad as Hari Singh visits her husband Gajadhar.
Statement of Gajadhar is also on record. He admitted on oath that he is husband of the plaintiff in the case and is doing Pairvi in the case on behalf of the plaintiff. Number of disputed land is 226 measuring 10 bigha, 1 bishwa and 19 bishwashi. He stated that he was cultivating and harvesting the crops on the disputed land on behalf of the plaintiff since his marriage. This witness has admitted that Ket Kunvar has died on 06.06.1986. He admitted that he has knowledge of the suit averments as it was written on his instructions. He admitted that at the time of his marriage Ket Kunvar had about 60-65 bigha of land. When Ket Kunvar died prior to that some sale deeds were executed but she had 42 bigha of land remaining land was of the joint holding. This witness admitted that he had obtained copy of the deed dated 17.11.1984 but has not read it till date. However, he got it read over from Bacchu Babu etc. and then they had advised him to file a suit and on the advise of Bachhai Babu, he got this suit filed from Vimla Devi. He admitted that Janak Singh has enmity with Vimla Devi but Rajpati had no enmity with Vimla Devi. He admitted that Vimla Devi has studied upto 4-5th Class. He further admitted that whatever sale deeds were executed by Ket Kunvar in addition to Munni Lal and Gopi Chand are within his knowledge.
Thus, it is apparent that when Gajadhar admits that plaintiff has studied upto 4-5th Class, then it is not open to the plaintiff to say that she is illiterate and take advantage of the judgments on the issue that if a lady is ''Pardanashin' or illiterate, then onus on the person taking advantage of such document to prove that such document was executed by the person concerned and such burden will not be discharged by the plaintiff making such allegations.
In fact, Gajadhar has admitted in his cross examination that in January and February, 1986, he had gathered information about disputed sale deed when case for mutation was filed and he had received notice in regard to that. He further admits that when they had received intimation about such sale deed that time Khet Kunvar was alive. He had met Ket Kunvar. Vimla Devi had filed objection to such mutation application in the Tehsil. He and Bini Ram were examined as a witness. He further admits that he is High School fail.
After confronted with document no.268(G), he admitted that it was certified copy of his statements which was recorded by the Tehsildar in mutation case. He further admits that Ket Kunvar had not filed any objection and she had asked Gajadhar that wherever necessary he may appear. He further averred that the affidavit of Ket Kuvar which was filed in mutation proceedings was forged. He further admitted that they had not filed any objection from Ket Kunvar to the effect that she had not filed any affidavit on 11.04.1986.
P.W.-2, Gajadhar has also admitted that Khet Kunvar till her death used to inform him and his wife Vimla Devi about every work and she never informed him about execution of such sale deed. This witness has also admitted that his village is 6 k.m. away from Fatehabad and is about 8 k.m. away from the road. He has admitted that he was married to Vimla Devi in 1969 whereas Kamlesh was married in the year 1974. Ket Kunvar had executed a sale deed in favour of Munni Lal in front of him. There were two brother-in-laws (devar) to Ket Kunvar but no ''Jeth'. This witness has also admitted that during life time of Khet Kunvar, he had not seen Khasra Khatauni of Khet Kunvar.
In view of such admission on part of plaintiff witness that Ket Kunvar had filed a no objection, (though it is termed as forged by the plaintiff) before the Tehsildar where mutation proceedings took place and also a fact that, no objection was filed on behalf of the Ket Kunvar to the effect that her affidavit is forged, and in view of the evidence of P.W.-3 Tek Chand that after death of Lotan Singh, Ket Kunvar had become owner of the said land. It is evident that plaintiff-Vimla Devi was not under any such disability so to shift the burden of proving the factum of execution of sale deeds on to the defendant, inasmuch as, she was aware of the fact as to who was the Document Writer who were the witnesses to the deed, and where such deed was executed, and yet did not prefer to examine any of these witnesses to substantiate that the sale deed was fraudulently executed by mis-representing the presence of Ket Kunvar. She could not prove that any other person impersonnated for Ket Kunvar especially when affidavit of Ket Kunvar was filed in the mutation proceedings and despite being present before the Tehsildar to object to such mutation proceedings and also admitting the fact that Khet Kunvar was alive at the relevant point of time and Gajadhar-husband and Pairvikar of the plaintiff admitting this fact that they had not asked Khet Kunvar to file any objection alleging that her affidavit as was produced before the Tehsildar in support of mutation proceedings was forged, it is no more open to the respondents-plaintiff to allege that there was lack of opportunity to them, and the burden of proof will shift on the shoulders of the defendants. In fact onus was on the plaintiff to prove that no objection filed by Ket Kunvar is forged and explain the circumstances under which no objection was filed to challenge her affidavit giving no objection.
Therefore, the decisions relied on by the plaintiff-respondents turn on their own facts and are not applicable to the facts and circumstances of the present case.
Similarly, law laid down in case of Gyan Chand and brothers (supra) is not applicable to the facts and circumstances of the present case, inasmuch as, there are no evasive denial so to treat the pleading in the plaint to be admitted.
In fact, after admitting this fact that plaintiff and her husband had gathered knowledge of the alleged transaction in January, 1986 prior to death of Ket Kunvar, and then submitting that they were staying with Ket Kunvar throughout, there was no justification for not filing a suit for cancellation of the said sale deed in the hands of Ket Kunvar. This coupled with the fact that there is admission of Gajadhar, P.W-2 that he was aware of the affidavit as was filed on behalf of the defendants before the Court of Tehsildar in mutation proceedings and alleged it to be forged, yet did not file any counter affidavit or objection on behalf of the Ket Kunvar to submit that it was a forged affidavit and Ket Kunvar had never given such affidavit in favour of the defendants, it was no more open to the plaintiff to allege that either Ket Kunvar was kept in dark and taking advantage of her failing health, sale deed was executed by impersonating a person in place of Ket Kunvar. In fact, burden to prove allegation of impersonation was on the plaintiff which could not be discharged appropriately by the plaintiff.
Plaintiff also could not substantiate the plea of adverse possession as was required to be substantiated by them to prove uninterrupted possession for 12 years, and also to plead that their possession was hostile and it was peaceful open and continuous, and as they could not prove their adverse possession, in terms of the law laid down by Supreme Court in case of Brijesh Kumar and another Vs. Sharda Bai (dead) by L.Rs. and others as reported in 2019 (9) SCC 369, plea of adverse possession could not be proved by the plaintiff.
Similarly they could not prove that Ket Kunvar had no Authority to alienate the suit land. Therefore, their pleading that being legal heir of Lotan Singh, plaintiff is entitled to 1/3 share in the state of Lotan Singh is not made out.
In fact, it will be seen from the pleadings that though alternate pleadings were taken by the plaintiff namely (1) of adverse possession for 12 years and more; (2) of incapacity of Ket Kunvar to execute the sale deed and (3) to the effect that sale deed as was executed by Ket Kunvar was a forged documents. Plea of adverse possession could not be proved. P.W.-2, Gajadhar has admitted that he and his wife are aware of the sale deed which was executed by Ket Kunvar in 1979. Therefore, they never challenged that sale deed by virtue of which it is admitted by the plaintiffs that Ket Kunvar was the sole owner of the property of Lotan Singh and was capable of alienating the same, therefore, now at this distance of time, it was not open to them to claim that Ket Kunvar was not having any authority to alienate the suit land. Though, they have tried to establish a case of fraud and mis-representation but have miserably failed to substantiate the same. They could not substantiate that how onus could have been shifted on the defendants as has been noted by learned first appellate court in regular appeal that their failure to examine Prabhu Dayal after death of two witnesses of the sale deed, Janak Singh and Rajpati could have been taken as circumstance against the defendants.
Admittedly, plaintiff was required to stand on her own legs and prove her case.
On the other hand, learned first appellate court recording minor omission and abbehations in the evidence of the defendants has decreed the suit in favour of the plaintiff overlooking the fact that plaintiff could not prove any of the line of defence taken by her in support of her plaint averments. Therefore, law laid down in case of Santosh Hazari (supra) which specifically deals with the aspect of powers of the first appellate court when examined in the light of second substantial question of law, reveals that the first appellate court has failed to apply its mind consciously while giving its judgment. It is true that it was not required to concur with the findings of the Trial Court but at the same time while reversing a finding of fact, it was required to assign its own reasons for the different findings. It was not open to the appellate court to interfere with the findings of a trial judge on a question of fact without recording a categorical finding that what were the peculiar features connected with evidence of witness which were overlooked by the trial court and how such appreciation was sufficiently improbable so as to invite displacement by the appellate court.
In view of the fact that no such appreciation has been carried out by the first appellate court, even law laid down by Supreme Court in case of case Union of India Vs. K.V. Laxman and others (supra) will be of no assistance to the plaintiff respondents because it is admitted and trite law that appellate court has jurisdiction to reverse or affirm the findings of the trial court but equally settled that while reversing the findings of the trial court and especially the findings of fact, the appellate court must come into close quarters with the reasoning assigned by the trial court, and then assign its own reasons for arriving at different finding. But where, the first appellate Court fails to adhere to this dictum of the judgment of Supreme Court, then being a substantial question of law as framed in this regard as has been held in case of Santosh Hazari (supra), then in second appeal, High Court is well within its jurisdiction to examine such aspect and take a view on the same.
In view of the evidence, which has been discussed above and the facts and circumstances, which plaintiff has failed to explain prevented them from filing an objection in the hands of Ket Kunvar or on behalf of the Ket Kunvar under a duly constituted Authority of Ket Kunvar as to the mutation proceedings so also as to the validity of the sale deed, especially when, such facts were within the knowledge of the plaintiff during the life time of the vendor i.e. Ket Kunvar merely because such sale deed was executed by the Ket Kunvar in her advanced age, is not a sufficient circumstance especially when plaintiffs claiming themselves to be living in close association with the vendor, had failed to bring on record any documentary or other independent evidence to show, failed health of the vendor.
The findings of the first appellate court that there was no justification for Ket Kunvar to have executed such sale deed especially when she had received 96,000/- rupees while executing another sale deed in September, 1984 is nothing but based on surmises and conjectures.
No evidence was led by the plaintiffs to dispute the recitals made in the sale deed. Such findings being based on surmises and conjectures lead to the fact that appellant-defendant have been able to substantiate the second substantial question of law that the first appellate court erred in law in exceeding its jurisdiction by interfering in the assessment of the oral evidence as was made by the trial court merely on the basis of surmises and conjectures in the absence of any special circumstances and therefore, the judgement and decree passed by the first appellate court being solely based on surmises and conjectures and no cogent reason being assigned to discard one hand writing expert should in favour of another, deserves to be set aside and is set aside.
Second substantial question of law is answered in favour of the appellant, defendant-appellant in this Court and defendants before the trial court and it is held that the first appellate court erred in law in exceeding its jurisdiction merely on the basis of surmises of conjectures and, accordingly this appeal is allowed, impugned judgment and decree dated 05.05.2007 passed by first appellate court is set aside. Decree and judgment passed by the Trial Court in original case No.518 of 1986 dated 01.11.2006 is affirmed.
Parties to bear their own costs.
Order Date :- 08.01.2020 Ashutosh