Document Fragment View
Fragment Information
Showing contexts for: misrepresentation and fraud in Rohtash Singh vs Sanwal Ram Etc on 22 March, 2018Matching Fragments
This is appeal against the concurrent judgments of the Courts below, whereby suit of the plaintiff-respondent No.1 was decreed as follows:-
"The suit of the plaintiff is hereby decreed with costs to the effect that the suit land was purchased by the plaintiff from defendants No.1 and 2 vide the agreement dated 09.06.1972 and since then he is owner-in-possession thereof. The impugned sale deed bearing No.336 dated 06.06.1988 in favour of defendant No.3 is the result of fraud, misrepresentation, concealment of facts and same is hereby set aside."
(ii) Defendants No.1 and 2 have admitted that suit land was sold by them in favour of plaintiff vide agreement dated 09.06.1972 for sale consideration of `800/-. The entry of this transaction is incorporated in the revenue record. Even at the time of sanctioning mutation in favour of defendant No.3 on the basis of sale deed dated 06.06.1988, it was specifically recorded that possession has not been transferred in favour of defendant No.3.
(iii) In view of above facts, sale deed dated 06.06.1988 is a result of fraud, misrepresentation and concealment of facts, as such, is set aside.
(vii) Leela Ram and Ratni were not competent to execute the sale deed of the disputed plot in favour of defendant No.3 as they have already sold this land to plaintiff vide agreement dated 09.06.1972.
10. Learned counsel for the appellant has argued that finding of the Courts below are not only against the settled propositions of law but are perverse and liable to be set aside. Section 53-A of T.P.Act protects possession of a transferee under agreement only if he proves that he has done some act in furtherance of the contract and willing to perform his part of the contract. Secondly, it bars the transferor or any person claiming under him from enforcing against the transferee and the person claiming under him any right in respect of the property of which the transferee has taken or continued in possession. This shows that protection of Section 53- A T.P. Act is available only as defence when the transferee or any other person claiming under him enforces their right against the transferee in possession of the immovable property under an agreement. The suit of the plaintiff claiming protection of Section 53-A T.P. Act is not maintainable. The Courts below have taken note of the fact that the sale deed in favour of 5 of 26 RSA-2473-1994 -6- appellant Rohtash is bad in view of the suit filed by Asharfi wife of plaintiff in which some injunction order has been passed. Asharfi had no right, title or interest in the suit property and she had withdrawn the suit filed by her, as such, provisions of Section 52 T.P. Act are not at all attracted to the sale deed executed by defendants No.1 and 2 in favour of appellant. At the time of execution of the sale deed, defendants No.1 and 2 were recorded owners of the suit land. The plaintiff has not become owner of the same, as such, findings of the courts below declaring the plaintiff to be owner in possession of the suit land is not sustainable in the eyes of law. The courts below have set aside the sale deed dated 06.06.1988 on the ground that it is result of fraud, misrepresentation and concealment of facts without evidence on record to this effect. Defendants No.1 and 2 though have taken a plea in the written statement that they intended to sell some other plot and instead of suit plot and present sale deed was got executed with regard to plot in dispute, but have not produced any evidence in support of their contention. Even the details of the plot which they intended to sell, has not been disclosed. The sale deed in favour of appellant is valid for all intent and purposes. Findings of the Courts below that plot in question was sold to the plaintiff, on the basis of writing dated 09.06.1972 are erroneous as title of the immovable property worth more than `100/- cannot be transferred except through a registered document.
18. Firstly, this fact is to be seen as to whether plaintiff or defendants No.1 and 2 have been able to prove that sale deed dated 06.06.1988 is the result of fraud, misrepresentation or concealment of facts. Though defendants No.1 and 2 have taken the plea that they had agreed to sell some other plot within 'Lal Dora' but appellant-defendant No.3 got executed the sale deed with regard to the disputed plot but they have not produced any evidence to prove their plea. Even defendants No.1 and 2 have not stepped into witness box to make statement in support of their plea. In the absence of any evidence that sale deed dated 06.06.1988 were got executed by defendant No.3-appellant by way of fraud, misrepresentation and concealment of facts, the findings recorded to this effect by the Courts below are not sustainable and even the first Appellate Court has not looked into this aspect while dismissing the appeal.