Hari Saran Shankar Srivastava vs Vinod Behari Lal and Others

Prafulla C. Pant, J.—This is an appeal preferred u/s 100 of the Code of Civil Procedure, 1908, is directed against the judgment and decree dated August 20, 1977, passed by learned II Ird Additional District Judge, Nainital in Civil Appeal No. 46 of 1977, whereby the judgment and decree dated 5.4.1977, passed by the trial court (Munsif, Kashipur) in Original Suit No. 56 of 1972, dismissing the same, is affirmed and the appeal was dismissed with costs.

Heard learned Counsel for the parties and perused the record of the courts below and also the certified copies of the judgments filed during this appeal vide Application No. 55024 of 1998.

Brief facts of the case are that Plaintiff/Appellant instituted Suit No. 56 of 1972 before Munsif, Kashipur, district Nainital, (now within the limits of District Udham Singh Nagar) for cancellation of sale deed dated 28.12.1970 (Ext. B-1, paper No. 98A in the trial court''s record), purporting to have been executed by the Plaintiff. It is pleaded in the plaint that the parties are related to each other by the pedigree shown below :

Munshi Maharaj Lal Ram Niwas Laxmi Narain Shyam Narain Vikramaditya Dilip Gupta Vinod Pramod Paras Om Prakash Kanchan Resp. No. 1 Resp. No. 2 Resp. No. 3 Resp. No. 4 Resp. No. 5 Hari Sharan Simrakha (Plaintiff) (Widow)

Ram Niwas Lal, shown in the pedigree got his ancestral property partitioned from his brothers and he has no concern with the property in suit. Dilip Chand, shown in the pedigree died leaving his widow Simrakha, who succeeded the share of Dilip Chand, which is also not included in the property in suit. Laxmi Narain was used to manage affairs of the rest of family. After death of Vikramaditya (shown in the above pedigree), his son Hari Saran Shankar Srivastava (Plaintiff/Appellant) was looked after by Laxmi Narain. But the Defendant/Respondents and their father Shyam Narain (shown in the above pedigree) used to harbour grudge and enmity against the Plaintiff/Appellant. The reason for the enmity alleged in the plaint is that Laxmi Narain executed a Will dated 27.2.1970 in respect of the land owned by him, in favour of the Plaintiff/Appellant. It is also pleaded in the plaint that before his death through gift deed dated 7.8.1970, Laxmi Narain, transferred his property with possession to the Plaintiff/Appellant. Said property is the subject-matter of the suit. On coming to know of the gift deed the relations between the family of the Plaintiff and that of the Defendants got further worsened, and the Defendants got an agreement dated 8.10.1970 executed in their favour, by the Plaintiff. Thereafter, the Defendants (present Respondents) exercised undue influence over the Plaintiff and by playing fraud got executed the sale deed dated 28.12.1970, which has been sought to be cancelled in the suit. It is also pleaded in para 11 of the plaint that the Defendants administered some poisonous substance to the Plaintiff and got his mental equilibrium disturbed. It is further pleaded by the Plaintiff that without making any payment as consideration mentioned in the sale deed, the deed was got executed. It is alleged in the plaint that the document (sale deed in question) is a forged document and is liable to be cancelled. It is pertinent to mention here that the property in suit in respect of which the aforesaid sale deed is alleged to have been got fraudulently executed, is plot No. 148 of Village Prem Nagar (Alakh Devi), Tehsil Bazpur, district Nainital (now part of District Udham Singh Nagar) measuring area of 44 bighas, 16 biswas, (i.e., approximately seven acres).

The Defendants contested the suit and filed their written statement denying the contents of the plaint. In the additional pleas, it is pleaded by the Defendants (present Respondents) that no fraud is played against Laxmi Narain or the Plaintiff in execution of the sale deed in question. It is also pleaded that it is wrong to say that the Plaintiff executed the sale deed in his disturbed mental condition or that he was not paid consideration, rather the Plaintiff was paid Rs. 21,000 in cash by the Defendants before the sale deed was executed. It is alleged by the Defendants in their written statement that the sale deed 28.12.1970 was executed by the Plaintiff with his free Will.

The trial court framed following issues on the basis of the pleadings of the parties :

(i) Whether sale deed in question sought to be cancelled was obtained by fraud?

(ii) Whether the sale deed in suit is without consideration?

(iii) Whether the suit has not been properly valued and the court fee paid is insufficient?

(iv) Whether the Court has no jurisdiction to entertain this suit?

(v) To what relief, if any, the Plaintiff is entitled?

(vi) Whether sale deed in suit is the result of the duress exercised upon the Plaintiff? If so, its effect?

(vii) Whether the Plaintiff was not mentally sound at the time of the execution of the sale deed? If so, its effect?

Issues No. 3 and 4 were decided in negative by the trial court as preliminary issues on 18.9.1973 and its finding attained finality and the same were not question before the lower appellate court. Earlier, a Civil Revision No. 60 of 1973 appears to have been filed against the findings on issues No. 3 and 4, but said revision was dismissed as not pressed, on 12.10.1974, by I Ind Additional District Judge, Nainital. The trial court recorded the oral evidence of the parties and after considering the documentary evidence adduced by the parties, and after hearing them dismissed the suit with costs vide its judgment and order dated 5.4.1977. Aggrieved by said judgment and decree, the Plaintiff preferred Civil Appeal No. 46 of 1977 before District Judge, Nainital, which was transferred to the Court of II Ird Additional District Judge of the District. The said Court after hearing the parties, dismissed the appeal with costs on August 20, 1977. Hence, this appeal. This second appeal was filed before Allahabad High Court on 17.2.1978, where it is admitted. However, it appears that no substantial questions of law were framed by said High Court. This appeal is received by transfer to this Court u/s 35 of U. P. Reorganization Act, 2000, for its disposal. On the grounds mentioned in the memorandum of appeal and questions of law suggested in the memorandum of appeal and developments brought on record following substantial questions of law are involved in this appeal, on which the parties made their submissions before this Court:

(1) Whether the courts below have failed to exercise jurisdiction vested in them in not considering the letters dated 23rd August, 1961, 8th July, 1970, 1st September, 1970, 2nd October, 1969 and 23rd August, 1961 admissible u/s 32 of the Indian Evidence Act, as these documents are said to have been written by a person, who is dead? And whether the averments of fraud as pleaded in the plaint has been successfully proved by the Plaintiff/Appellants, in view of the circumstances shown by the first information report.

(2) What is the effect of the judgments dated 6.4.1988 and the one dated 5.12.1995 (filed during the pendency of second appeal), passed by Allahabad High Court in other proceedings between the parties, which allegedly attained finality in respect of possession of Plaintiff.

Answer to Substantial Question of Law (No. 1) :

On behalf of the Plaintiff/ Appellant, attention of this Court is drawn to the letters dated 23rd August, 1961, 8th July, 1970, 1st September, 1970, 2nd October, 1969 and 23rd August, 1969, filed before the trial court and it is argued that the courts below have erred in law in ignoring these letters while appreciating the evidence on record. This Court is conscious of the fact that it cannot enter into the findings of fact concurrently recorded by the courts below unless the same are perverse and totally against the record. If the letters referred above, if read, materially change findings recorded by the trial court, it can be said that by ignoring the letters, the courts below have committed illegality. However if such documents even if read, do not change the fate of the case, the same cannot be said to be material and it cannot be said that the courts below have committed error of law by not discussing each and every letter or document filed by the party. I have gone through the letters mentioned above, filed on behalf of the Plaintiff before the trial court. The letters do not directly throw any light on the question whether the fraud was played by the Defendants or their father on the Plaintiff, to get the disputed sale deed executed in their favour. Learned Counsel for the Plaintiff/Appellant referred particularly following contents in letter dated 8.7.1970, which is said to have been written by Shyam Narain (father of the Defendants) to Defendant No. 1 :

Had the property in suit been transferred to the Plaintiff before 8.7.1970. It could have been said that some of the contents in the letter indirectly throw light to play fraud against the Plaintiff. But as is clear from the plaint case itself on 8.7.1970, the property was still in the name of Laxmi Narain, who executed gift deed dated 7.8.1970, in favour of the Plaintiff. As such the property was transferred to the Plaintiff as per his admitted case by Laxmi Narain after one month of the letter dated 8.7.1970. The other letters referred above (except letter dated 1st September, 1970) also pertain to the period prior to the date when the property in question was transferred by Laxmi Narain to Plaintiff. The letter dated 1st September, 1970, also do not throw any light on the basis of which it can be said that the Defendants played fraud against the Plaintiff to get the disputed sale deed executed in their favour. As such the courts below have not committed any error of law in not discussing each and every letter in appreciating the evidence as the same has no material effect on the finding recorded by the courts below.

Section 32 of Indian Evidence Act, 1872, provides that the statement, written or verbal made by a person, who is dead can be said to be relevant fact, when such statement relates either to the cause of death of such person or when the statement is made in the ordinary course of business or against the interest of the maker or it gives opinion as to public right or custom or it relates to existence of relationship or is made in a Will or deed relating to family affairs or is made in a document relating to a transaction when some custom is in question or is made by several persons expressing feelings relating to matter in question. The letters referred on behalf of the Plaintiff/Appellant are the personal letters, which are not covered in either of the circumstances mentioned in Section 32. Therefore, this Court does not find force in the argument advanced on behalf of Plaintiff/Appellant.

P.W. 2 Ram Kripal Pandey has proved the letters written by Shyam Narain (father of the Defendants), which are paper Nos. 94A, 42A and 48A in the trial court''s record. Having gone through the letters, it appears that deceased (Shyam Narain) before his death has written these letters mostly relating to the personal family affairs and it nowhere suggest that the Defendants committed any fraud as alleged by the Plaintiff to get the sale deed in question executed in respect of property in question. The courts below have rightly given weight to the fact that the disputed sale deed is a registered document executed before the Sub-Registrar and unless the fraud is proved like a criminal offence, the sale deed executed by the Plaintiff cannot be cancelled. Having gone through the judgments passed by the trial court and the lower appellate court, this Court is of the view that, even if the evidence adduced by P.W. 2 Ram Kripal Pandey is not discussed in detail, but in view of other evidence on record, discussed by the courts below, the same did not appear to be material and nor does it substantially affect the fate of the suit.

There is concurrent finding of the fact of the courts below, after discussing the evidence on record, that the fraud alleged by the Plaintiff is not proved on the record on the basis of which the sale deed dated 28.12.1970, executed by the Plaintiff in favour of the Defendants can be said to be liable to be cancelled. This Court cannot interfere into the concurrent findings of fact recorded by the courts below. Learned Counsel for the Plaintiff/Appellants drew attention to the copy of first information report, paper No. 59A filed before the trial court and stated that there was enmity between the parties and they were in criminal litigation as such the Plaintiff had no occasion to transfer the property in suit by executing a sale deed dated 28.12.1970. I have gone through the first information report, paper No. 59A in the trial court''s record, which is a copy of non-cognizable report dated 10.12.1970, lodged by Laxmi Narain against Shyam Narain and his son Vinod Behari (present Respondent No. 1), in which it is reported that the accused Shyam Narain and Vinod Behari had voluntarily caused hurt by danda and lathi to Hari Saran Shankar (Plaintiff). This document does reflect that the Plaintiff and the Defendants were fighting over the property of Laxmi Narain, which he had transferred to Plaintiff. Certainly, this document is relevant, but only on its basis it cannot be said that the registered sale deed, which was executed eighteen days after this alleged incident was a fraudulent one. Apart from this only on the basis of first information report, it cannot be said that actually the incident had taken place in the manner alleged in it. Merely on the basis of the suspicion that since Laxmi Narain and Plaintiff on one hand and the Defendants on the other hand were quarrelling over the disputed property, it cannot be said that the Plaintiff would have never executed the sale deed dated 28.12.1970, which is a registered document. As to the consideration passed to the Plaintiff, there is endorsement of the Sub-Registrar to this effect and the courts below have rightly believed the same as against the oral allegation of the Plaintiff is that he did not receive the consideration. (The amendment application moved during the second appeal was rejected on 20.4.2007 as the plea that the consideration did not pass was already taken in para 11 of the plaint by the Plaintiff).

Answer to Substantial Question of Law (No. 2) :

However, certified copies of the judgments, which are filed at the appellate stage on behalf of the Appellants vide Application No. 55024 of 1998 does show that the property in question was in possession of the Plaintiff, even after execution of the sale deed. These judgments relate to the proceedings during the pendency of this appeal. Certified copy of the judgment and order dated 24.4.1981, passed by Sub Divisional Magistrate, Kashipur in Criminal Case No. 2 of 1980-81, which relates to proceedings u/s 145 of Cr. P.C. shows that the Defendants were directed not to disturb possession of the Hari Saran Shankar Srivastava (present Appellant). Said order of the Magistrate was affirmed by the Allahabad High Court vide order dated 6.4.1983, passed in Criminal Revision No. 1987 of 1982. SLP also appears to have been dismissed by the Apex Court vide order dated 23.1.1984 (passed in SLP No. 1603 of 1983). Not only this, certified copy of the judgment and order dated 5.12.1995, passed by Allahabad High Court in Writ Petition No. 15996 of 1983 further goes to show that the Defendants sought mutation of their names in the Revenue Record, but failed. However, said judgment of the Allahabad High Court shows that the application for recording the Defendants name was rejected on the ground as the Plaintiff who is said to have executed the sale deed was himself not got his name mutated. As such this document is of no help to Plaintiff in the present case as the mutation proceedings are summary in nature. It is pertinent to mention here that the Apex Court rejected the SLP filed by the Defendants vide its order dated 26.8.1996 (passed in SLP No. 3857 of 1996). The question No. 4 is accordingly stands answered with observation that on the basis of the judgments referred above, this Court is of the view that the Plaintiff has not parted with the possession of the property in suit.

Learned Counsel for the Appellant referred to Sections 209 and 210 of U. P. Zamindari Abolition and Land Reforms Act and argued that the Defendants have matured their title by virtue of Section 210 of said Act as he has not been evicted within the period of limitation. Since this issue is not before this Court as such whether Plaintiffs title now stands matured u/s 210 of U. P. Zamindari Abolition and Land Reforms Act, 1950, or not is not required to be given by this Court.

For the reasons, as discussed, with the observations abovemade, the appeal is dismissed. Costs easy.