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8. On the other hand, Mr.Sunil Tripathi, learned counsel appearing for legal representatives of the plaintiff, would submit that sale deed is void­ab­initio and 2.50 acres of land is said to have been purchased by defendant No.1 on petty sum of ₹12000/­ and it is void document and no title has been passed on the basis of said sale deed in favour of defendants No.1 and 2. He would further submit that court fee as per market value has been paid pursuant to the decree of the trial Court on 22.8.2005, as such, contention of learned counsel for defendants No.1 and 2 based on Section 31 of the Act of 1963 is not at all tenable and the second appeal deserves to be dismissed.

12. Reverting to the facts of the case, it is quite vivid that there was no prayer for cancellation of sale deed dated 09.11.1998 (Ex.D­8) and the case of the plaintiff is that sale deed is void­ab­initio, therefore, she need not seek cancellation of sale deed dated 09.11.1998 (Ex.D­8). The trial Court also considered the issue as issue No.3 and held that since prayer has been made seeking declaration of sale deed dated 09.11.1998 (Ex.D­8) as null and void, and in fact it has the effect of cancellation of sale deed, therefore, she has to pay ad­valorem court fee as per Section 7(v)(c) of the Act of 1870 and while granting decree in favour of the plaintiff it has been held that decree shall be operative only on the payment of court fee as per Section 7(v)(c) of the Act of 1870 and in compliance of the decree, the plaintiff has already paid court fee of ₹ 1200/­ on 22.8.2005 before the trial Court, as such, for the reasons that the plaintiff did not seek cancellation of sale deed and ad­valorem court fee on market value of suit land has already been paid before the trial Court, therefore, it cannot be held that the suit is bad for not seeking relief of cancellation of sale deed, as such, the substantial question of law No.2 is answered in favour of the plaintiff and against the defendants.

Answer to substantial question of law No.1:­

13. It is the case of the plaintiff that sale deed is void­ab­initio. She agreed for sale of only 4 decimals of land, whereas by sale deed 2.50 acres of land has been got registered by defendants No.1 and 2 in their favour taking advantage of her illiteracy, as such, there were no intention to sale the entire land in favour of defendants No.1 and 2, therefore, sale deed is void and market value of the land in question is much higher than what has been given by defendants No.1 and 2 to her. Same statement has been reiterated by the plaintiff in her examination­in­ chief under Order 18 Rule 4 of the CPC, but in the statement before the Court particularly in cross­ examination, she has clearly stated in para­8 that she has made her thumb impression on the sale deed voluntarily and she has admitted the fact of visiting the office of Sub­Registrar along with Rin Pustika and her son Heeralal though he is dumb and he was witness to sale deed. She has also stated that after registration of sale deed, defendants No.1 and 2 are in possession of the suit land. Upon further cross­ examination pursuant to the order dated 21.7.2005 she has clearly stated that she has received full consideration amount. She has also admitted that there was no manipulation in sale deed. Para­16 of her statement states as under:­ "16.;g dguk xyr gS fd eS dgh Fkh fd rqe yksx T;knk iSlk nksxsa rks eS jftLVªh jn~n djk nqaxhA ;g dguk xyr gS fd xkao dk gjhjke eq>s dgk Fkk fd rqe ckjg gtkj esa tehu csp fn, eS rqEgsa rhl gtkj :i;s ns fn;k gksrkA ;g lgh gS fd eS jftLVªkj vkQhl esa jftLVªkj ds lkeus vaxqBk fulku yxkbZ FkhA ;g dguk xyr gS fd jftLVªkj us eq>ls tehu fodz; djus ds fy, iwNk FkkA ;g dguk xyr gS fd eS fy[kk i<+h ds ckn vaxqBk yxkbZ FkhA ;g lgh gS fd fodzh ukek esa dksbZ xM+cM+h ugha gqbZ Fkh] lghlgh gqbZ Fkh eS fcdzh ukek ds i'pkr gh vaxqBk fulku yxkbZ FkhA gjhjke esjs i{k esa ugha FkkA ;g dguk xyr gS fd gjhjke tehu ysus dks rS;kj FkkA eS U;k;ky; esas bl rjg ls c;ku ugha nh gqvfd gekjs xkao esas tehu 5&7 gtkj :i;s ,dM+ fcdrk gSA ;g dguk lgh gS fd eS 'kiFk Ik= esa dksbZ c;ku ugha nh FkhA tks dkxt 'kiFk i= dk is'k gqvk gS tks iz- ih- 4 gS ij D;k fy[kk gS eq>s ugha ekyweA ;g dguk lgh gS fd eS lwjtiwj dksVZ esas c;ku nsus ugha xbZ gwaA ;g dguk xyr gS fd eS rglhynkj ds U;k;ky; esa gjhjke ds dgus ij vkifRr ntZ djkbZ Fkh] ,slk c;ku lwjtiqj dksVZ esa ugha nh FkhA eS ,slk c;ku ugha fy[kokbZ gwwa fd dsl ugha yM+uk pkgrh gwaA ;g dguk lgh gS fd jftLVªh esa fy[kk gS fd eS iwjk iSlk ik xbZ gwaA eS igys U;k;ky; esa ;g dFku ugha nh Fkh fd jftLVªh ij ew>s vkifRr ugha gSA ;g dguk lgh gS fd vkt eq>s esjs odhy lkgc dgWgs rc eS xokgh ns jgh gwaA ;g dguk lgh gS fd eq>s esjs odhy lkgc cksys Fks dh pkj fMlfey tehu csph gwa iwjs tehu dks ugha csph gwa cksys] mlh dks cksy jghs gwaA ;g dguk xyr gS fd eS vius eu ls c;ku ns jgh gwaA"

15. In order to prove the due execution of sale deed, defendant No.3­Mohd. Gulam has been examined who is witness to sale deed (Ex.D­8). He has clearly stated that in sale deed (Ex.D­8) he has signed "A"

to "A' and he has proved the contents of sale deed. Heeralal is other witness who is son of the plaintiff though he is dumb witness, but he could have been examined by the plaintiff as he can be competent witness in the light of provisions contained in Section 119 of the Indian Evidence Act, 1872 which the plaintiff has chosen not to examine though sale is branded to be void, but he was not examined, as such, the plaintiff withheld the important witness and that is her son while alleging that sale deed is void, therefore, adverse inference must be drawn against her.