Attar Singh (deed) through L.Rs. vs Smt. Mayawati and Others

R.N. Ray, J.—The Plaintiff as Appellant has preferred this appeal against the judgment and decree passed in Civil Appeal No. 114 of 1978 dated 2.9.1982 reversing the judgment and decree of the learned trial court.

The Plaintiff filed the suit being numbered as 549 of 1975 which was filed in the court of Munsif, Haveli, Meerut. It is the Plaintiffs case that the Plaintiff is an illiterate, simple and old man aged about 60 years and he is hard of hearing and his eye-sight is also very weak. He is the owner and in possession of the disputed agricultural land. It was contended that an amount of Rs. 3,000 and Rs. 4,500 was due to Bank and Co operative Societies and some amount was also due which was taken from some other villagers. Therefore, he badly needed Rs. 10.000 to liquidate the said debts. The Plaintiff asked the husbands of the Defendants to advance a loan of Rs. 10,000 to him. The husbands, of the Defendants agreed to pay, on condition that the Plaintiff to execute mortgage deed with 1% per mensem interest after depositing 20 times annual rental in Tahsil. The Plaintiff agreed to the proposal and thereafter the Plaintiff and the husband of the Respondents executed the mortgage deed and Plaintiff deposited 20 times of rent for converting his right into bhumidhari right and after two days to that, he went to the office of Sub-Registrar with the husband of the Defendants with the witnesses, who were the persons of the husbands of the Defendants. The Plaintiff and the witnesses, when the sale deed was being written, had been asked to sit in some distant place on the pretext that there was crowd at the place of scribe and after the document was written, he was asked to put his thumb impressions. The Plaintiff, who had confidence in the husbands of the Defendants and was in need of money, put his thumb impressions at many places. As per instruction of the husband of the Defendant No. 1 he deposed that he had executed the document and he has to receive Rs. 10,000. The Sub-Registrar had inquired from him only these two things and he had answered in affirmative. Later on he was told that the document was a sale deed for his lands for Rs. 20,000 executed by him in favour of the Defendants. The Plaintiff took the copy of the sale deed and got the contents read over and then came to know that the Defendants and the witnesses managed to get the sale deed executed in respect of the disputed land in favour of the Defendants, though there was talk of a simple mortgage for a sum of Rs. 10,000 in respect of the disputed land.

It was further case of the Plaintiff that the contents of the deed were never read over and explained to the Plaintiff and he became the victim of fraud and collusion made by the Defendants'' husbands Bankey Lal and Anr. The land in question was a highly fertile agricultural land and the market price was not less than Rs. 90,000 at that time and as such there was no occasion for him to sell the land for Rs. 20,000 and he never received any amount more than Rs. 10,000.

The Defendants contested the suit. The entire allegations of the plaint were denied and it was contended that it was a simple sale deed. The Plaintiff actually received Rs. 10,000 earlier as earnest money and later on received Rs. 10,000 as a balance consideration money and executed the document. He knew the contents of the documents and the money was paid by the Plaintiff for and Rs. 3,562 had been paid to Ved Prakash. The receipts of payment were given by the Plaintiff to the Defendants. On 8.2.1974 the Plaintiff executed the sale deed of the disputed land in the presence of the witnesses of his choice and after getting the sale deed executed and after understanding its contents he received a sum of Rs. 10,000, before the Sub-Registrar, Meerut and the possession of the disputed land was delivered to the husbands of the Defendants. The Plaintiff himself moved an application for getting the names of the Defendants mutated over the disputed property and the names of the Defendants were recorded in the revenue papers. The Defendants strongly denied that the Plaintiff was hard of hearing and his eye-sight weak. The Defendants have denied that the disputed property was mortgaged by the Plaintiff and he had agreed to execute a mortgage deed only.

The parties led both oral and documentary evidences. After considering the materials on record, the trial court held that the Plaintiff wanted to make a simple mortgage deed against the advance of Rs. 10,000 only which he badly needed to square off his loan to the Bank and the Co-operative Society and some other persons and the Plaintiff never understood the contents of the deed and as such, he was pleased to decree the suit by cancelling the disputed deed. Against the judgment and decree which went in favour of the Plaintiff, the Defendants-Appellants preferred appeal. The learned court below reversed the judgment after holding that it was the sale deed simplicitor and the Plaintiff parted the possession in favour of the Defendants after execution of the sale deed and it was further held by the learned court below that the Plaintiff received Rs. 20,000 in two stages for the disputed land and executed the sale deed and the Plaintiffs allegations were all manufactured allegations. Against the judgment of reversal, the present appeal has been preferred.

It was contended by the learned Counsel for the Appellant that nowhere in the deed, there has been any recital that the contents of the deed was read over and explained to the Plaintiff. The doctor who examined the Plaintiff, deposed on Oath that the Plaintiff was hard of hearing. He was wrong in discarding his evidence that the doctor did not opine whether the Plaintiff was hard of hearing at the relevant time. It was further contended that both the witnesses to the documents had stated on Oath that the documents were never read over and explained to the Plaintiff and they were also present and said that there was a talk of simple mortgage against payment of Rs. 10,000 as loan money, and they also deposed that the Plaintiff was in possession of the disputed land. The scribe of the document said that he wrote the document as per instruction of the Plaintiff and the document was read ove;r and explained to the Plaintiff. The Defendant also stated that it was simple sale deed and he paid Rs. 10,000 earlier as earnest money and later on he paid balance amount of Rs. 10,000 to the Plaintiff before the Sub-Registrar. It has been submitted that it was the Plaintiff who filed application for mutation of the names of the Defendants in respect of the disputed land and accordingly the names of the Defendants have been mutated in respect of the disputed land. The Plaintiff converted his right into bhumidhari right after depositing 20 times of rent before the Revenue Officer concerned and got receipt of the payment which was handed over to the Defendant. So the learned appellate court was perfectly justified in allowing the appeal and the findings of the learne:d trial court was result of misconception of facts and laws. In this way, the learned Counsel for the Defendants Respondents urged the court for dismissal of the appeal with costs.

Duly considered the submissions of both. The learned appellate court while reversing the judgment was required to record sufficient reasons for discarding the findings of the learned trial court and in this particular case in fact, it was not done in that way. In this regard, the decision of this Court, as reported in Allahabad Rent Cases 1992 (2) 479, was looked into.

The learned Counsel for the Appellant also referred another decision, as reported in Sarju Pershad Vs. Raja Jwaleshwari Pratap Narain Singh and Others, , wherein his lordship was pleased to hold as given below:

The appellate court has got to bear in mind that it has not the advantage which the trial Judge had in having the witnesses before him and of observing the manner to which they deposed in court. This certainly does not mean that when an appeal lies on facts, the appellate court is not competent to reverse a findings of fact arrived at by the trial Judge. The rule is and it is nothing more than a rule of practice--that when there is conflict or oral evidence of the parties on any matter in issue and the decision hinges upon the credibility of witnesses, then unless there is some special feature about the evidence of a particular witness which has escaped the trial Judge''s notice or there is a 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.

The similar view was also taken by the Hon''ble Supreme Court in Madhusudan Das Vs. Smt. Narayanibai (Deceased) by Lrs. and Others, . It is an established principle, as laid down by various decisions that illiterate persons are also to get the same protection as a pardanasin woman is to get. In this connection, the following decisions are (sic) as reported in Rankanidhi Sahu Vs. Nandakishore Sahu, ; Brundaban Misra Vs. Iswar Swain and Others, and Bhagabat Prasad Das Vs. Haimabati Devi and Others, . It is the positive case and assertions on oath by the Plaintiff that the impugned document were never read over and explained to him. There is no certificate to it that the document was read over and explained. The two attesting witnesses to the document fully corroborated the Plaintiffs statement that the documents were not explained and evidences were not taken into account by the learned appellate court below. Of course, the scribe and the D.W. 1 deposed that the document was read over and explained but their evidence is to be considered along with the evidences of the Plaintiff and the other attesting witnesses. It has to be noted that there was no certificate in the sale deed concerned that the deed was ever read over and explained to the Plaintiff. The simple mortgage against advancing the loan money was not a bar under the U.P. Zamindari Abolition and Land Reforms Act. There are ample evidences and also from the evidence of D.W. 1 himself it was abundantly clear "that the market price of the land at the relevant time was not less than Rs. 50,000 then why the Plaintiff would sell the land at a price of Rs. 20,000 only." These circumstances also supported the story of the Plaintiff, because in a mortgage deed, generally the consideration money remains lower than the market price of the land in question. The Plaintiff had the necessity of clearing the loan, which was abundantly clear from the evidences of the Plaintiff and Defendant and also from the documentary evidences. So considering all these materials before me, I do not find any justification to differ with the findings of the learned trial court below. In the circumstances, the judgment of the appellate court appears to be unreasonable and was not based on sound reasonings and liable to be set aside. Be noted that there was no document produced and proved regarding the agreement for sale and it was unbelievable that a person would advance Rs. 10,000 as earnest money without having a document executed in their favour for the same.

Hence I accordingly order. The appeal stands allowed. The judgment and decree of the trial court is hereby affirmed and the judgment and decree of the lower appellate court are hereby set aside.

The appeal stands allowed with costs.