Bhanwar Singh and Another vs Manoj Rana and Another

Rakesh Tiwari, J.—This second appeal has been filed challenging the validity and correctness of the judgment and decree dated 11.1.2010, passed by Additional District Judge (Special) Baghpat in Civil Appeal No. 13 of 2008, arising out of judgment and decree dated 19.4.2008, passed by Civil Judge (J.D.), IInd, Baghpat in Suit No. 5 of 2006.

Heard Sri Santosh Kumar Srivastava, counsel for the appellant, Sri Amit Kumar Singh appearing for defendant respondents and perused the record.

The facts in brief culled out from this appeal are that father of the plaintiff appellants and grand father of defendant-respondents namely Sukkhan was the recorded owner and tenure holder of land in question. After demise of Sukkhan, the plaintiff-appellants and the father of the defendant-respondents Sri Charan Singh as well as their mother Smt., Chhoti, became the owners and co-sharers of the land of khasra No. 16 area 1.9450 hectare, khasra No. 1823/1 area 1.6412 hectare, khasra No. 1823/3 area 0.1400 hectare, khasra No. 1829/1 area 0.400 hectare, khasra No. 1829/3 area 0.1567 hectare, khasra No. 1812 are 0.917 hectare and khasra No. 1043 area 0.1265 hectare of khata No. 575 total measuring area 1.0355 hectare left by Sukkhan to the extent of 1/4th share each.

Case of the plaintiff-appellants is that Smt. Chhoti was normally residing with them and she also used to go with the defendant respondents from time to time for living with them. She was being given medical treatment by the parties as she was an old lady of 85 years of age and was suffering from paralysis in her left hand. Her eye sight had also gone weak and that she was also not mentally fit state of mind.

Contention of the counsel for appellants is that taking advantage of the infirmities of Smt. Chhoti, a registered sale deed was got executed by the defendant-respondents by Smt. Chhoti in their favour on 18.5.2005 allegedly for a sale consideration of rupees three lacs, before the Registrar; that Smt. Chhoti after two days had told the plaintiff-appellants that she had put her thumb impression on some documents and thereafter they filed Suit No. 5 of 2006 for cancellation of the aforesaid sale deed dated 18.5.2005.

Case of the defendant-respondents before the trial court was that though Smt. Chhoti was an aged lady but was not of unsound mind; that as her left hand only was affected by paralysis and was not working as such she had to put right thumb impression upon the sale deed executed by her and this fact is also endorsed by the Registrar on the deed as well as the fact that her eye sight is also weak.

The parties adduced their oral and documentary evidence before the trial court and after appreciating the evidence, the trial court vide its judgment and decree dated 19.4.2008 decreed the suit declaring the sale deed null and void.

Aggrieved by the aforesaid judgment and decree, the defendant-respondents preferred Civil Appeal No. 13 of 2008, Manoj Rana and Anr. v. Bhanwar Singh and Anr. before the Additional District Judge (Special) Baghpat. The first appellate court after considering the arguments of the counsel for the parties and appreciating the evidence, recorded a finding that Smt. Chhoti had executed the registered sale deed for a consideration of rupees three lacs in favour of the defendant- respondents. A categorical finding was also recorded that the trial court had not properly appreciated the evidence that no document regarding mental sickness of Smt. Chhoti was filed before it which was the basis for seeking relief of cancellation of the registered document and that though the plaintiff-appellants had utterly failed to prove their case, yet the trial court has decreed the suit in their favour. The first appellate court also took note of the fact that documents filed before it were in respect of medical treatment of paralysis in her left hand and other ailments and as they were not for any treatment for mental sickness from which Smt. Chhoti is alleged to have been suffering, the first appellate court in the circumstances set aside the judgment and decree passed by the trial court giving a specific finding that Smt. Chhoti had received sale consideration of rupees the three lacs and had executed the registered document before the witnesses, hence presumption would be in favour of the registered document rather on unproven facts on the basis of which sale deed was being challenged by the plaintiff-appellants.

Counsel for appellants submits that the fact that eye sight of Smt. Chhoti was weak, is proved from the registered document and that the defendant-respondents had denied the same incorrectly, is proved from the record, hence the sale deed executed by Smt. Chhoti is null and void having been executed by an infirm lady.

It may be that Smt. Chhoti was suffering from the effect of paralysis in her left hand and her eye sight was weak but it was the plaintiff-appellants who had come out with the case that she was mentally not sound. In the circumstances, burden of proof lay heavily on them to prove their case before the trial court and discharge their onus. The first appellate court found that neither the burden was discharged nor proved by them, hence set aside the order of the trial court.

After hearing the counsel for the parties and on perusal of record appended with this second appeal, it is apparent that the sale deed had admittedly been executed before the Registrar who had verified payment of sale consideration of rupees three lacs to Smt. Chhoti. The fact that she had put her thumb impression on the document on 18.5.2005 had also been informed by her to the plaintiff appellants immediately after two days but they did nothing in the matter. They had knowledge of this fact at the most by 20.5.2005 but they did not take any action for cancellation of the aforesaid sale deed. It was only much after the death of Smt. Chhoti, who expired on 4.1.2006, that the plaintiff-appellants filed the aforesaid suit for cancellation of the sale deed on the ground of mental sickness being suffered by Smt. Chhoti and the sale deed having been got executed by the defendant-respondents by playing fraud upon her. The sale deed was also sought to be cancelled on the ground that no sale consideration was paid by the defendant-respondents for the land in dispute to Smt. Chhoti.

It appears from the record that there is a categorical endorsement on the sale deed made by the Registrar that Smt. Chhoti had been paid sale consideration of rupees three lacs. The sale deed had been executed in presence of the witnesses which had also not been disproved by the plaintiff-appellants. The witnesses of sale deed had also not been got summoned by the plaintiff appellants in evidence before the trial court to establish that sale deed dated 18.5.2005 said to have been executed by Smt. Chhoti was got executed on misrepresentation by playing fraud upon her or that the sale consideration was not paid by the defendant respondents to her before the Registrar in presence of the witnesses.

After considering the submissions made by learned Counsel for the parties, I do not find any infirmity or illegality in the impugned judgment passed by the first appellate court and in my considered view no substantial question of law arises for consideration in this appeal.

The appeal is accordingly dismissed.