Allahabad High Court
Smt. Urmila Gupta And Another vs Lakhu And Others on 5 February, 2013
Author: Sudhir Agarwal
Bench: Sudhir Agarwal
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Court No. - 34 (1) Case :- SECOND APPEAL No. - 891 of 2011 Appellants :- Smt. Urmila Gupta And Another Respondent :- Lakhu (since deceased and substituted by legal heirs) And Others Appellants' Counsel :- B.N. Agrawal, Ram Kishore Gupta, Sanjay Agrawal Respondent Counsel :- Arun K. Tiwari,Lakshman Singh, R.C. Singh And (2) Case :- SECOND APPEAL No. - 888 of 2011 Appellant :- Smt. Urmila Gupta Respondent :- Lakhu (since deceased and substituted by legal heir) And Others Appellant's Counsel :- B.N. Agrawal, Ram Kishore Gupta, Sanjay Agrawal Respondent Counsel :- Lakshman Singh, R.C. Singh Hon'ble Sudhir Agarwal,J.
1. Both the above appeals have common facts, involve common substantial questions of law, and, are in respect to the same property, therefore, have been heard together and are being decided by this common judgment.
2. Heard Sri B.N. Agrawal, Advocate, for appellants and Sri R.C. Singh, Advocate for respondents no. 1/1 and 1/ 2 in Second Appeal No. 891 of 2011 and for respondent no. 1/1 in Second Appeal No. 888 of 2011.
3. With the consent of learned counsels for parties, this Court proceeds to hear and decide the matter at the admission stage itself.
4. The substantial questions of law, in my view, which have arisen in the present appeals are:
(1) Whether a party can be allowed to lead evidence in respect to a fact which is not asserted in the pleadings?
(2) Whether a plaintiff can get absolved from onus to prove fraud alleged to have been committed in execution of a sale deed.
(3) Whether a plaintiff can be permitted to challenge an instrument of sale on the basis of defendant's evidence only and without discharging onus on his own by adducing evidence to sustain his challenge?
(4) Whether the suit in question was barred by time?
(5) Whether the land in question before transfer from plaintiff to defendant no. 1 would have required prior permission of competent authority under Section 157-AA of U.P. Zamindari Abolition and Land Reforms Act, 1950 (U.P. Act, No. 1 of 1951)?
Second Appeal No. 891 of 2011:
5. Lakhu (now deceased and substituted by legal heirs) instituted Original Suit No. 15 of 2008 in the Court of Civil Judge (Junior Division) Orai seeking a declaration that the sale-deeds dated 2.6.1980 executed in favour of defendant no. 1 and dated 22.10.1998 executed between defendant no. 1 and defendant no. 2 are void, based on forgery, breach of trust etc. He pleaded ownership of Arazi No. 686, situate at Mauza Gauran, Pergana Orai, District Jalaun. It is alleged that defendant no. 1 obtained signatures and thumb impression of plaintiff on blank papers, with an assurance that he will get bank loan sanctioned for a boring on the land of plaintiff but the plaintiff later came to know that defendant no. 1 manufactured a sale-deed dated 2.6.1998, allegedly executed by plaintiff in favour of defendant no. 1, and, after four months and odd, another sale-deed dated 22.10.1998 was executed between defendant no. 1 and defendant no. 2. It is said that plaintiff belong to scheduled caste and, therefore, without permission of competent authority, his agricultural property could not have been transferred by sale and sale-deeds, therefore are void ab-initio.
6. The Suit was contested by defendants alleging that sale-deed was actually executed by plaintiff in favour of defendant no. 1 on 2.6.1998 and suit filed after ten years thereof, is barred by time. The very conduct of plaintiff in making wrong statements was pointed out by showing that in the plaint, plaintiff has mentioned his age as 85 years in 2008 and that of defendant no. 1 as 62 years, though the plaintiff is about 60 years and defendant no. 1 is about 40 years in May, 2008 (written statement was filed in May, 2008). In the deposition of plaintiff himself, which was recorded on 31.7.2009, he mentioned age as 70 years.
7. The Trial Court vide judgment dated 19.10.2010, held that plaintiff failed to prove that documents with his signatures and thumb impression were obtained fraudulently and also that he had knowledge of execution of sale-deed in 1998 and thus, dismissed suit. It decided Issues No. 1 and 5 against the plaintiff and also held that suit is neither barred by Section 331 of U.P. Zamindari Abolition and Land Reforms Act, 1950 (U.P. Act, No. 1 of 1951) (hereinafter referred to as "Act, 1950") nor by Section 34 of Specific Relief Act, 1963 (hereinafter referred to as "Act, 1963") nor under any other provision.
8. Thereagainst plaintiff preferred appeal which has been allowed by impugned judgment dated 26.8.2011. The lower Appellate Court has held that the sale-deed dated 2.6.1998 was result of fraud played by respondent no. 1 upon the plaintiff. In order to come to the aforesaid conclusion, lower Appellate Court gathered its view from what he has said in para 8 of the judgment. The background discussion by lower Appellate Court is that the plea of fraud in execution of sale-deed is to be considered in the light of social, mental and educational standard of uneducated rural witnesses and from similar other angles. In this regard, its has placed reliance on Bharwada Bhoginbhai Hirjibhai Vs. State of Gujarat AIR 1983 SC 753. It has held that a witness cannot be expected to recall accurately the sequence of events which take place in rapid succession or in a short time span. A witness is liable to get confused or mixed up when interrogated later on. Similarly, no one can be expected to make very precise or reliable estimate with regard to time etc. It then referred to the factum that plaintiff, when stood in witness box in 2009, appeared to be quite old and poor. The difference in age has been held irrelevant observing that it is not an issue to be decided. It is admitted that plaintiff is a scheduled caste person and, thereafter, it (Appellate Court) proceeded to discuss other aspects of the matter to find out whether plaintiff was subjected to any fraud or misrepresentation.
My findings:
9. It cannot be doubted, whether an act is preceded by or founded upon a fraud or misrepresentation is a mixed question of fact and law. First, evidence has to be led to discharge onus on the aforesaid issue by the party who alleged that a fraud has been played on him and to prove that there existed a fraud or misrepresentation which led the execution of the document in question. Then those proved facts whether constitute fraud or misrepresentation has to be seen by this Court.
10. In the present case, it is admitted that plaintiff and the defendant no. 1, both belong to the same caste, namely Scheduled Caste. By virtue of their social background etc., what has been applied by the lower Appellate Court to plaintiff, the same would apply to defendant no. 1 also. Thought the story of fraud and misrepresentation has been set up by plaintiff, but, basically, it is against the husband of defendant no. 2. It is said that defendant no. 1 acted to play fraud upon plaintiff at the instigation and instance of husband of defendant no. 2, who himself was impleaded as defendant no. 5. It is said that defendant no. 5, Ram Babu Gupta, a Manager in the Bank was posted in Branch of the Bank at village Timro, whereof defendant no. 1, Umesh Chandra, was a resident. This mere fact has been taken sufficient to draw inference that previous acquaintance and familiarity or relation between defendants no. 1 and 5 stands proved. The inference based on this mere fact, in my view, is conjectural, imaginary, perverse and based on no evidence. The only fact that defendant no. 5 was posted in Branch of Bank in village Timro of which Umesh Chandra was resident of, without anything further, cannot justify an inference that the two have any previous relation and contact to the extent that defendant no. 1 may agree to play fraud or misrepresentation upon a person of his own caste at the instance of defendant no. 5.
11. The further fact that social level of plaintiff is much inferior than Umesh Chandra, is also a finding without any evidence based on sheer conjectures and surmises. Plaintiff himself has said that defendant no. 1 and he, both are of same caste. Social status, thus, of two was equal. There may be a difference in financial or other status of which nothing has been discussed by lower Appellate Court. In order to draw inference in respect to a plea of fraud, even if a direct evidence is not available, the circumstantial or other evidence must be such so as to justify a reasonable inference on the part of a person of ordinary prudence that there is a preponderance of probability of fraud, and, such an inference can possibly be drawn by any person of ordinary prudence looking into bare facts and evidence, as available on record.
12. On the contrary, previous well acquaintance between plaintiff and defendant no. 1 is duly admitted by plaintiff himself. Defendant no. 1 belong to his own caste. Strong and cogent evidence would be required to show that he deceived plaintiff at the instance of a person with whom he has no otherwise connection or concern or acquaintance, except of the fact that the other person is a Branch Manager of a Bank, in the same village of which defendant no. 1 is a resident. Moreover, plaintiff has admitted that he signed certain papers and put thumb impression. He, however, added that it was at the instance of defendant no. 1 but the time factor, as per his statement, is of 2006-07 though the sale deed, challenged in the suit, is dated 2.6.1998. It is inconceivable that a person signs some documents, sometime in 2006-07, and on such paper, a registered instrument of sale can be got prepared retrospectively and, that too, of almost a decade earlier. Neither it is the case of plaintiff nor any finding has been recorded by lower Appellate Court that even Registration of sale-deed was forged and fictitious or manipulated to ante date. If the registration made in 1998 was genuine, then there is every reason to believe that the documents concerned were signed/put thumb impression, in 1998 itself when it was registered. If that is so, it cannot be expected from a person to have put in signatures and thumb impression in 1998 and to claim that he came to know about execution of sale-deed on those documents after almost ten years.
13. Moreover, in the plaint, both the things have been said. The lower Appellate Court has also found that signatures on the document, on the one hand, were denied by plaintiff but simultaneously on the other hand, he said that same were obtained on blank documents. It is evident from following:
^^eq>ls mes'k us esjs QksVks ys fy, Fks vkSj esjs gLrk{kkj dksjs dkxt ij djok, FksA dkxt la[;k 25d&1 dks ns[kdj dgk fd bl ij esjh QksVks yxh gSA --- ek= dksjs dkxt ij gLrk{kj djus ds izfri`PNk esa dFku ls ;g cSukes ds gLrk{kj Lohdkj gksdj fl) ugh gks tkrk gSA fo"k;xr gLrk{kj y[kw us ugha fd, gSa pwafd y[kw us viuh lk[; esa bu gLrk{kjksa dks QthZ gksuk Hkh vfHkdfFkr fd;k gS vkSj bl lk{; dk [k.Mu djus dk fof/kd Hkkj izfroknh@ izR;FkhZ ij gSA^^ "Umesh had collected my photographs from me and had taken my signatures on a blank paper. On seeing paper bearing no. 25A-1, he said, "It bears my photograph." Merely stating in the cross-examination that the signatures were taken on a blank paper does not go to prove them as valid signatures on the Sale Deed. The signatures in question are not made by Lakhu because Lakhu has in his evidence alleged these signatures even to be forged and the onus to rebut this evidence lies on the respondent/defendant."
(English Translation by the Court)
14. In my view, lower Appellate Court has completely misdirected itself in putting onus upon defendants by observing that signatures having been disputed by plaintiff, onus lies upon defendants to prove that signatures were genuine. It appears that lower Appellate Court got influenced from its own assumptions in respect to plaintiff's status etc. and that is how, despite mentioning in the judgement that signatures were admitted by plaintiff, though he claimed that same were obtained on a blank paper, yet it said that onus lies upon defendant to prove that signatures are genuine. Again the lower Appellate Court has said that plaintiff was illiterate as stated by him. In this regard, the interesting aspect is that entire plaint is conspicuously silent on the fact whether plaintiff is illiterate i.e. neither can read nor write at all. On the contrary, he has specifically stated in para 5 of the plaint that defendant no. 1 got signatures and thumb impressions on blank papers from him. Thus, it is an admitted case that he had signed documents besides putting on his thumb impression.
15. Judicial notice can be taken of the fact that a sale-deed, when executed, is not only signed, but even educated people have to put thumb impressions while submitting in Registration department for the purpose of registration. In absence of any pleading about his illiteracy in the plaint, the plaintiff was not entitled to lead evidence on this aspect of the matter by making deposition in his oral statement. He has modified his pleading by referring to only thumb impression, though at one stage, he said that thumb impression is not that of him, but, simultaneously and immediately thereafter, he said that defendant no. 1 got his thumb impression on blank papers. The contradictory statements are as under:
^^cSukes ij esjs fu'kkuh vaxwBs ugha gSaA --- mes'k us eq>ls dksjs dkxtksa esa fu'kkuh vaxwBk yxok fy;k FkkA^^ On the sale deed there is not my thumb impression. ... Umesh had obtained my thumb impression on blank papers." (English translation by the Court)
16. He further stated that blank papers were obtained by defendant no. 1 in 2006-07, though admitted that sale-deed is of 1998. It is nobody's case that on certain documents, obtained in 2006-07 a sale-deed with back date registered in 1998 could have been prepared. There is no such allegation so as to involve Registry department also in the matter of registration. Lower Appellate Court, therefore, has proceeded completely on its own assumptions and impressions which is not borne out from the pleadings of the plaintiff in the plaint, and, is improved case, which has been attempted by the plaintiff, though considered by lower Appellate Court but without looking into self contradictory, mutually destructive and inconsistent statements of plaintiff.
17. Further in the plaint, in para 6, it is averred that he got knowledge of execution of sale-deed on 23/25.1.2008, while, in his oral deposition, he has specifically stated that the forged documents were obtained 8 or 9 years back i.e. sometime in 1998 and when there was some rumour of forged document in the village in 1997-98, he enquired from defendant no. 1 who denied of any such execution of sale-deed whereafter in the same year he got an enquiry made and also submitted his application. His own admission made it clear that he had knowledge of sale-deed dated 2.6.1998 from 1998 itself and that being so, there was no occasion for lower Appellate Court to ignore this statement by simply observing that he is illiterate, old and poor and, therefore, may not give correct information about time and year. This finding is clearly perverse and based on surmises and conjectures. A case not pleaded in the plaint has been held proved by lower Appellate Court. It is a deliberate denial of an admitted fact.
18. Simultaneously, in respect to limitation, pleadings, are not supported by evidence, but, contradicted by oral evidence. The lower Appellate Court has completely believed on wholly conjectures and self assumed reasons. This is against the well established principle of law of evidence. When a plaintiff, standing in witness box, has categorically stated some facts, which go to demolish his entire case, set up in the plaint, such deposition can not be ignored on presumptions and assumptions. Rather in the nature of admission of plaintiff himself, it needs strong and cogent reasons to discard it. This Court is clearly of the view that lower Appellate Court has virtually made out a case which was contrary to evidence and beyond pleadings.
19. At this stage, Sri R.C. Singh, learned counsel for appellant submitted that an oral statement is considered to be explanatory and supplementary to the pleadings and placed reliance on Moshuq Ali and others Vs. Hurunissa and another AIR 1929 Oudh 204.
20. The proposition of law warrants no exception but the very proposition speaks that the pleading must contain a fact and if there is any doubt or ambiguity etc., such fact, pleaded in the plaint, may be explained or supplemented by oral deposition. But, when a fact is not at all pleaded, evidence to prove such a fact, not pleaded, is impermissible. The general principle applicable in Indian Evidence Act,1872 (hereinafter referred to as "Act, 1872") is that the facts, which are not disputed by parties, need not be proved. Section 58 of Act, 1982 provides that no fact need be proved in any proceeding which the parties thereto or their agents agree to admit at hearing or which before the hearing they agreed to admit by any writing under their hands or by any rule of pleading in force at the time they are deemed to have admitted by their pleadings. The facts, of which, Court can take judicial notice also need not be proved. A disputed fact will come into existence only when there is a statement of fact in the plaint and defendant had any occasion to admit or deny the same. When such a fact is denied by defendant, then that assumes nature of a disputed fact, which requires to be proved.
21. Another decision, cited on behalf of appellant, is a Division Bench decision in Messrs. Ganga Ram Sat Narain Vs. Gyan Singh and Co. AIR 1960 Pun. 209. The Court in para 12 said as under:
"(12) It seems to me, however, that there is a great deal of difference between a case in which a suit has been decided on a point not specifically raised in the plaint, but clearly present in the minds of the parties while they were leading their evidence and even, as in the 1st of the cases cited above based on an admission contained in the pleas of the defendant, and a case in which alternative grounds for granting the relief claimed are set up in the plaint and one of these grounds is specifically given up. The statements of parties or counsel recorded before the framing of issues for the purpose of clarifying the points in dispute are just as much part of the pleadings and the plaint as the written statement and there can be no doubt about the power of a counsel to given up a plea raised in the plaint in the course of such a statement."
22. Sometimes, the pleadings are there or at the initial stage a issue is raised by the parties whereupon the evidence is led, the factum whereof is well known to the parties. Such evidence can be relied. In the present case, the signature on the instrument of sale dated 2.6.1998 were made by the plaintiff, but he claims that when he signed and put on his thumb impression, the document was a blank paper, and, it has subsequently been converted in a instrument of sale and, therefore, it is a document obtained by fraud and misrepresentation. Thus signature or thumb impression is not denied. Once signature is there, any suggestion that incumbent is illiterate to the extent that he cannot put on his signature, can not be permitted. It is mutually destructive and inconsistent plea, impermissible to be raised by the plaintiff. In rural areas, it cannot be doubted that there are persons who are signature aware, namely, who may write their name only, instead of putting thumb impression, but not literate enough to read and write. In that way, they can be said to be illiterate, but that is a different case for the reason that here a case of fraud was set up by plaintiff alleging that signature was obtained on a blank paper and, thereafter sale deed was prepared. Here to suggest that plaintiff did not sign the document is mutually destructive and inconsistent plea. The lower Appellate Court in placing onus upon defendants to prove that the signature was that of plaintiff has clearly erred in law when the plaint itself says that plaintiff has signed. The two judgments relied by Sri Singh, therefore, do not help him in any manner.
23. There is another aspect of the matter. The instrument of sale must have been executed on stamp papers. The date of purchase of stamp also could have thrown light on the question of time of its execution. There is not even a whisper in the judgment of lower Appellate Court that the stamp was not purchased on or before 2.6.1998 i.e. the date of registration. It has also not mentioned in whose name stamps were purchased. In fact all these aspects have been completely ignored and omitted by lower Appellate Court. It appears that it was swayed in its own sentiments and emotions with the oration about social status of a person of scheduled caste, completely ignoring the fact that defendant no. 1, in whose favour disputed instrument of sale was executed, also belong to the same caste.
24. Here I am not unmindful of the principle that no hyper-technical view in respect to pleadings must be taken ignoring local conditions, particularly in our Country, where most of people residing in rural areas are not aware of technicalities of legal procedure and easily susceptible of fraud and fraudulent activities but then it can not be stretched too far.
25. A Constitution Bench of Apex Court, in Bhagwati Prasad Vs. Shri Chandramaul AIR 1966 SC 735, said:
"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."
26. In another decision in Ram Sarup Gupta (dead) by L.Rs. Vs. Bishum Narain Inter College and others AIR 1987 SC 1242, the Court said:
"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 state the essential material facts so that 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 strict interpretation of 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 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 issue by producing evidence, in that event it would not be open to a party to raise the question of absence of pleadings in appeal."
27. In Syed Dastagir Vs. T. R. Gopalakrishna Setty AIR 1999 SC 3029, the Court made observations about construing a plea in the pleadings and said:
"In construing a plea in any pleading, Courts must keep in mind that a plea is not an expression of art and science but an expression through words to place fact and law of one's case for a relief. Such an expression may be pointed, precise, some times vague but still could be gathered what he wants to convey through only by reading the whole pleading, depends on the person drafting a plea. In India most of the pleas are drafted by counsels hence aforesaid difference of pleas which inevitably differ from one to other. Thus, to gather true spirit behind a plea it should be read as a whole. This does not distract one from performing his obligations as required under a statute. But to test, whether he has performed his obligations one has to see the pith and substance of a plea. Where a statute requires any fact to be pleaded then that has to be pleaded may be in any form. Same plea may be stated by different persons through different words then how could it be constricted to be only in any particular nomenclature or word. Unless statute specifically require for a plea to be in any particular form, it can be in any form. No specific phraseology or language is required to take such a plea."
28. Sri R.C. Singh has placed reliance on Kedar Lal Seal and another Vs. Hari Lal Seal AIR 1952 SC 47 wherein the Court in para 51 of the judgment said:
"51. I would be slow to throw out a claim on a mere technicality of pleading when the substance of the thing is there and no prejudice is caused to the other side, however clumsily or inartistically the plaint may be worded. In any event, it is always open to a court to give a plaintiff such general or other relief as it deems just to the same extent as if it had been asked for, provided that occasions no prejudice to the other side beyond what can be compensated for in costs."
29. I, however, do not find any application of above dictum to the case in hand.
30. What I have discussed above and in the context of caution, observations and law laid down by the Apex Court, looking to the law of evidence, as discussed above, I find that findings of lower Appellate Court on the question of fraud cannot be said to be based on any legal evidence. It not only misread evidence of plaintiff but has wrongly placed onus or burden upon defendants and lastly has recorded finding and drawn inference, based on no evidence at all, but on sheer conjectures and surmises and, therefore, the same cannot sustain.
31. Questions 1, 2 and 3, framed above, therefore have to be answered against plaintiff-respondents and in favour of defendant-appellants.
32. Now I come to the question no. 4, that is about limitation. As already discussed above, plaintiff himself has admitted, firstly, that he signed certain papers and, that too, about eight or nine years back. It takes the period of signature and thumb impression put on by the plaintiff on papers, to 1998-99. The sale-deed was executed on 2.6.1998. His statement, therefore, is in quite proximity of time when instrument was executed. A suit for cancellation of a sale-deed can be filed within three years i.e. the period of limitation, under Article 59, Schedule to the Limitation Act, 1963 (hereinafter referred to as "Limitation Act, 1963"). If the plaintiff knew eight or nine years back, i.e., in 1998-99, that the sale-deed has been got prepared by defendant no. 1, after obtaining his signatures/thumb impression, allegedly on blank papers, the suit having been filed after eight or nine years from the date of such knowledge, is apparently barred by time, which comes from his own statement made before the Courts below. The lower Appellate Court, in simply ignoring this admission on the part of plaintiff and observing that he is an illiterate and poor person, has tried to ignore the relevant and clinching evidence available on record, without giving any cogent reason for its discredit, particularly, when such an evidence constitutes an admission of plaintiff himself. The suit, therefore, was apparently barred by time.
33. This question no. 4, thus, is also answered in favour of defendant-appellants.
34. Now, I come to the last question which, as such, was not raised before the Courts below, but has been argued at length before this Court i.e. bar of Section 157-AA of Act, 1950.
35. In support of above submission, Sri R.C. Singh placed reliance on decisions of this Court in Duli Chand Vs. State of U.P. And others 2011 (114) RD 399, Chaman Lal Vs. Additional Commissioner, Meerut Division, Meerut 2011 (7) ADJ 522 and a Division Bench decision of Uttarakhand High Court in Smt. Ramwati Vs. Chandra Gopal and others 2011 (113) RD 526.
36. In my view, this issue has been raised bereft of pleadings. In fact, no issue has been framed on this aspect, meaning thereby in view of the pleadings, plaintiff or his counsel did not find any necessity for requesting the Court below for framing of an issue on this aspect so as to require parties to lead evidence thereupon.
37. The plaintiff though, in para 6 (ya) raised plea of lack of permission under Act, 1950 and said as under:
^^¼;½ ;g fd oknh tkfr dk gfjtu pekj gS tehankjh foukl vf/kfu;e esa fn;s x;s izkfo/kku ds vuqlkj iz'uxr cSukes ijeh'ku ysdj ugha djok;s x;s gSa blfy;s voS/k gSA^^ "(Ya) That the plaintiff is Harijan Chamar by caste. The sale deed has not been executed with such permission as mandated under the provisions of Zamindari Abolition Act and as such it is illegal."
(English translation by the Court)
38. Defendants no. 1 to 5 in the written statement denied all the averments made in paragraph 6 and its all sub-paragraphs. In para 23, they specifically pleaded that instrument of sale was executed after permission from the District Magistrate. Para 23 of written statement reads as under:
^^23-& ;g fd izfroknh la0 1 us tks fodz; i= izfroknh la02 dks LoLFk fpRr ,oa LosPNk ls vafdr fd;k] mlesa ftykf/kdkjh dh vuqefr ysdj cSukek fd;k x;k vkSj bl izdkj izfroknh la01 ds }kjk izfroknh la02 ds gd esa vafdr fodz;i= esa dksbZ voS/kkfudrk ugha gS tks iw.kZ:is.k oS/k ,oa fu;e vuwdqy gSA^^ "23. That after obtaining permission from the District Magistrate the sale deed was executed in favour of Defendant No. 2 by Defendant No. 1 with his sound mind and of his own volition and as such there is no illegality in the sale deed executed by Defendant No. 1 in favour of Defendant No. 2 and it is absolutely valid and in conformity with the rules."
(English translation by the Court)
39. Before the Trial Court, Issue No. 8 was framed with reference to Section 154 of Act, 1950 in the context of sale deed dated 22.10.1998, but no issue was framed before it with reference to Section 157-AA. If plaintiff had any serious intention to press his plea with respect to non compliance of Section 157-AA of Act, 1950, he could have requested the Court to frame an issue on this aspect whereupon the parties would have been entitled to lead evidence, thereafter the alleged permission, pleaded in Para 23 of written statement, could have been required to be placed on record by the defendants. Since no such an issue was framed, it means the plaintiff or his counsel did not find any grievance on account of non framing of such issue. Even before lower Appellate Court, the plaintiff-respondents did not make any request to frame an additional issue and permit parties to lead additional evidence. There also the sale-deed dated 22.10.1998, with reference to Section 154 of Act, 1950, was examined. Rather lower Appellate Court has confirmed Trial Court's finding that suit is not barred by Section 154 of Act, 1950. Here the lower Appellate Court at one stage referred to Section 154 of Act, 1950 and simultaneously Section 154 of Transfer of Property Act, 1882 (hereinafter referred to as "Act, 1882") but giving benefit of typing error, this Court still finds that there was no issue raised on the question of 157-AA. In these circumstances and at this stage, this Court will have to proceed on the basis of pleading of the defendant-appellants, which was not sought to be disputed, so as to result in framing of an issue, that permission was obtained before execution of sale-deed by plaintiff in favour of defendant no. 1. That being so, the very issue raised at this stage is without any foundation and has no legs to stand.
40. In view of above, this Court has no hesitation in observing that the judgment of lower Appellate Court, impugned in this appeal, is clearly erroneous, illegal and unsustainable. The judgement of lower Appellate Court dated 26.8.2011 passed by Addl. District Judge/Special Judge (E.C. Act), Jalaun at Orai in Civil Appeal No. 115 of 2008 is, accordingly, set aside and Trial Court's judgment in Original Suit No. 15 of 2008, decreeing the suit, is hereby confirmed.
41. The appeal is allowed with costs throughout.
Second Appeal No. 888 of 2011:
42. The Second Appeal No. 888 of 2011 has arisen from a suit instituted by plaintiff, Smt. Urmila Gupta, seeking an injunction against Sri Lakhu and others restraining them from interfering in the possession and agricultural functions on Arazi No. 686, area 1.526 hectares situate at village Gauran, Pergana Orai, District Jalaun. She has claimed her right of ownership on the basis of sale-deed dated 22.10.1998 executed by Umesh Chand after transfer of aforesaid property vide sale-deed dated 2.6.1998 executed between defendant no. 1 and Sri Umesh Chand. The suit was decreed by Trial Court vide judgment dated 25.10.2010 holding plaintiff, owner of the property in dispute. The aforesaid judgment and decree has been reversed by lower Appellate Court vide judgment dated 26.8.2011 and it has dismissed Original Suit No. 71 of 2008 of plaintiff-appellant Urmila Gupta.
43. Since the validity of sale-deed in question, whereupon plaintiff-appellant, Smt. Urmila, rests her claim, is subject matter of Second Appeal No. 891 of 2011 and the same has been allowed, this appeal, for the reasons stated above also deserves to be allowed. It is, accordingly, allowed with costs throughout.
44. Judgment dated 26.8.2011 passed by Addl. District Judge/Special Judge (E.C. Act), Jalaun at Orai in Civil Appeal No. 114 of 2008 is hereby set aside. The judgment of Trial Court dated 25.10.2010 in Original Suit No. 71 of 2008 is hereby restored and confirmed.
Dt. 05.02.2013 PS