Abdul Majid And Ors vs Rato (died) And Ors

@JUDGMENT-JUDGMENT

The substantial questions of law involved, formulated and to be answered in this second appeal preferred by the appellants/defendants are as

under:- ""1. Whether both the Courts below were justified in declaring the sale deed dated 09.11.1998 (Ex.D-8) executed by plaintiff- Rato Bai in

favour of defendants No.1 & 2 is null & void ignoring the admission made by her in paragraph 8 of her cross-examination before the trial Court ?

whether the suit as framed and filed was maintainable in view of the fact that though plaintiff Rato Bai is party to sale deed dated 09.11.1998

(Ex.D-8) but she did not seek cancellation of the said sale deed under Section 31 of the Specific Relief Act, 1963 ?

[For the sake of convenience, the parties would be referred hereinafter as per their status shown and ranking given in the suit before the trial Court].

The dispute relates to the suit land owned by Rato Bai (now deceased) and legal representatives have been brought on record. It is case of the

plaintiff that the plaintiff agreed to sale only 4 decimals of land out of total area 0.579 hectare of Khasra No.285 owned by her situated at village

Kewra, Ambikapur on cash consideration of ₹12000, but defendants No.1 and 2 taking advantage of her illiteracy got the sale deed executed for

entire land i.e. 0.579 hectare owned by her, but no consideration was paid and entire land is said to have been purchased by playing fraud with her, as

such, sale deed dated 09.11.1998 (Ex.D-8) is void and mutation made on 16.7.99 is also without authority of law and sale deed dated 09.11.1998

(Ex.D-8) be declared null and void and she be declared title-holder of the suit land.

Resisting the suit, the defendants filed their joint written statement and denied the averments made in the plaint stating inter-alia that sole plaintiff

has voluntarily executed sale deed in favour of defendants No.1 and 2 by obtaining cash consideration of ₹12000/- and they are in possession after

having recorded their names in revenue records, as such, the suit deserves to be dismissed with cost.

Before the trial Court, on behalf of the plaintiff, she examined herself (PW-1) in support of her case and on behalf of the defendants, defendants

No.1 & 2 namely Abdul Majid (DW-1)and Sabejan (DW-2) as well as defendant No.3-Mohd. Gulam (DW-3) were examined.

Upon appreciation of full consideration of oral and documentary evidence available on record, the trial Court by its judgment and decree dated

30.7.2005 decreed the suit subject to payment of ad-valorem court fee on the requisite court fee as per market value under Section 7(v)(c) of the

Court-fees Act, 1870 (hereinafter called as 'the Act of 1870'). Feeling aggrieved against the judgment and decree of the trial Court, defendants No.1

and 2 preferred first appeal before the first appellate Court. During pendency of first appeal, an application under Order 6 Rule 17 of the Code of Civil

Procedure was filed seeking amendment in the plaint and further seeking decree for possession over the suit land. That amendment was granted by

the first appellate Court by the impugned judgment.

The first appellate Court upon appreciation of oral and documentary evidence available on record concurred with the finding recorded by the trial

Court and dismissed the appeal and also granted decree for possession in favour of the plaintiff. Questioning the judgment and decree of the first

appellate Court, this second appeal under Section 100 of the CPC has been filed by the appellants/defendants, in which substantial questions of law

have been formulated by this Court, which have been set-out in the opening paragraph of this judgment.

Mr.Ashok Kumar Shukla, learned counsel for the appellants/defendants No.1 and 2, would submit that both the Courts below were absolutely

unjustified in granting decree in favour of the plaintiff. He would further submit that entire sale consideration has been paid to the plaintiff which she

has admitted in her statement before the Court and title has validly been passed in favour of defendants No.1 and 2. He would further submit that the

plaintiff has clearly admitted the due execution of the sale deed in their favour, therefore, exception could not have been taken by her before the Court

qua sale deed. He would also submit that the suit as framed and filed is not maintainable in view of fact that plaintiff-Rato Bai being party to sale deed

(Ex.D-8) did not seek cancellation of sale deed under Section 31 of the Specific Relief Act, 1963 (hereinafter called as 'the Act of 1963'). He relied

upon the judgment of the Supreme Court in the matter of Suhrid Singh alias Sardool Singh v. Randhir Singh and others (2010) 12 SCC 112, as such,

judgment and decree of both the Courts below deserve to be set aside and the suit be dismissed with cost.

On the other hand, Mr.Sunil Tripathi, learned counsel appearing for legal representatives of the plaintiff, would submit that sale deed is void-ab-initio

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.

I have heard learned counsel for the parties and considered their rival submissions made herein-above and also went through the records with

utmost circumspection.

For sake of convenience, substantial question of law No.2 is taken first for consideration, which is based on Section 31 of the Act of 1963 as it is

contention of learned counsel for the appellants/defendants No.1 and 2 that Rato Bai being party to sale deed ought to have sought for cancellation of

sale deed under Section 31 of the Act of 1963 and reliance has been placed on the decision of the Supreme Court in the matter of Suhrid Singh

(supra).

In Suhrid Singh (supra), Their Lordships of the Supreme Court considered the issue and held as under:- ""6. The second proviso to Section 7(iv) of

the Act will apply in this case and the valuation shall not be less than the value of the property calculated in the manner provided for by clause (v) of

the said section. Clause (v) provides that where the relief is in regard to agricultural lands, court fee should be reckoned with reference to the revenue

payable under sub-clauses (a) to (d) thereof; and where the relief is in regard to the houses, court fee shall be on the market value of the houses,

under sub- clause (e) thereof.

Where the executant of a deed wants it to be annulled, he has to seek cancellation of the deed. But if a non-executant seeks annulment of a deed,

he has to seek a declaration that the deed is invalid, or non- est, or illegal or that it is not binding on him. The difference between a prayer for

cancellation and declaration in regard to a deed of transfer/conveyance, can be brought out by the following illustration relating to A and B, two

brothers. A executes a sale deed in favour of C. Subsequently A wants to avoid the sale. A has to sue for cancellation of the deed. On the other hand,

if B, who is not the executant of the deed, wants to avoid it, he has to sue for a declaration that the deed executed by A is invalid/void and non-est/

illegal and he is not bound by it. In essence both may be suing to have the deed set aside or declared as non-binding. But the form is different and

court fee is also different. If A, the executant of the deed, seeks cancellation of the deed, he has to pay ad- valorem court fee on the consideration

stated in the sale deed. If B, who is a non- executant, is in possession and sues for a declaration that the deed is null or void and does not bind him or

his share, he has to merely pay a fixed court fee of ₹ 19.50 under Article 17(iii) of Second Schedule of the Act. But if B, a non- executant, is not in

possession, and he seeks not only a declaration that the sale deed is invalid, but also the consequential relief of possession, he has to pay an ad-

valorem court fee as provided under Section 7(iv)(c) of the Act.

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.D-8) and the case of

the plaintiff is that sale deed is void-ab-initio, therefore, she need not seek cancellation of sale deed dated 09.11.1998 (Ex.D-8). 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.D-8) as null and

void, and in fact it has the effect of cancellation of sale deed, therefore, she has to pay ad-valorem 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 ad-valorem 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:-

It is the case of the plaintiff that sale deed is void-ab-initio. 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 examination-in- 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 para-8 that she has made her thumb impression on

the sale deed voluntarily and she has admitted the fact of visiting the office of Sub-Registrar 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. Para-16 of her statement states as under:-

16

,

5-7 ..

4

,

,

In last lines of para-16, she has admitted that she is making the statement of selling of only 4 decimals of land as per advise given by her counsel.

From the aforesaid statement of the plaintiff, it is quite vivid that the plaintiff has clearly admitted the passing of consideration in her favour. She

has also stated that she has signed the sale deed voluntarily and there is no manipulation in execution of sale deed, rather she has admitted the fact of

passing of consideration in her favour. It is her case in the plaint that sale deed is void. The burden was on her to prove that sale is void and no such

transaction has ever been taken place between the parties, whereas she has clearly admitted the execution of sale deed, passing of consideration and

registration of sale deed in favour of defendants No.1 and 2 and thereafter defendants No.1 and 2 are in possession of the suit land.

In order to prove the due execution of sale deed, defendant No.3-Mohd. Gulam has been examined who is witness to sale deed (Ex.D-8). He has

clearly stated that in sale deed (Ex.D-8) 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.

Sale deed is registered one and apparently containing stipulations of transfer of right, title and interest by the plaintiff in favour of defendants No.1

and 2. Onus of proof was on the plaintiff to prove that sale deed was in fact not executed and it was void transaction which the plaintiff did not

demonstrate by withholding the important witness Heeralal, her son by not examining her.

The Supreme Court in the matter of Vimal Chand Ghevarchand Jain v. Ramakant Eknath Jadoo2 has held that a registered sale deed carries

presumption that the transaction was a genuine one and heavy burden of proof lay upon other person to show that transaction was sham one which

the plaintiff failed to demonstrate.

Similarly, in the matter of Jamila Begum (dead) through legal representatives v. Shami Mohd. (Dead) through legal representatives and Another 3

has held that registration of sale deed reinforces valid execution of sale deed. It was held as under:- ""16. Sale deed dated 21-12-1970 in favour of

Jamila Begum is a registered document and the registration of the sale deed reinforces valid execution of the sale deed. A registered document carries

with it a presumption that it was validly executed. It 2 (2009) 5 SCC 713 3 (2019) 2 SCC 727 is for the party challenging the genuineness of the

transaction to show that the transaction is not valid in law. In Prem Singh and Others v. Birbal and Others4, it was held as under:- ""27. There is a

presumption that a registered document is validly executed. A registered document, therefore, prima facie would be valid in law. The onus of proof,

thus, would be on a person who leads evidence to rebut the presumption. In the instant case, Respondent 1 has not been able to rebut the said

presumption.

Reverting to the facts of the present case in light of the principles of law culled out from the above-stated judgments (supra), it is quite vivid that

registered sale deed executed by Rato Bai in favour of defendants No.1 and 2 has a presumption of being valid in law and onus of proof was on the

plaintiff to show that said transaction was not valid in law, but the plaintiff has failed to rebut the said presumption and she did not bring any legal

evidence for that purpose except her self-serving statement. Both the Courts below were absolutely unjustified in holding that registered sale deed

(Ex.D-8) executed by Rato Bai in favour of defendants No.1 and 2 is void document ignoring the fact that it is registered one with a presumption to be

valid. The plaintiff herself 4 (2006) 5 SCC 353 has admitted the execution of sale deed in favour of defendants No.1 and 2, passing of consideration in

her favour and even in mutation proceedings the plaintiff on being noticed did not make any objection, which is duly recorded vide Ex.D-2 i.e. order of

Naib-Tahsildar, Pratappur dated 16.7.99, as such, both the Courts below were absolutely unjustified in holding that sale deed dated 09.11.1998 (Ex.D-

8) executed by the plaintiff in favour of defendants No.1 and 2 is void document. Accordingly, the judgment and decree of both the Courts below are

hereby set aside and the plaintiff suit would stand dismissed by answering the substantial question of law No.1 in favour of defendants No.1 and 2 and

against the plaintiff.

The various judgments cited and vehemently relied upon by learned counsel for the respondents/legal representatives of the plaintiff, based on

fraud is clearly distinguishable as plea of fraud is neither elaborately pleaded nor proved by appropriate legal evidence, as such, those judgments are

not helpful to the plaintiff/its legal representatives.

The second appeal is allowed to the extent indicated hereinabove leaving the parties to bear their own cost(s).

A decree be drawn-up accordingly.