Kapil Chamar (dead) through L.Rs. and Another vs Bagharaj

V.K. Shrivastava, J.—This second appeal is directed against the judgment and decree dated 6-1-1988 passed by II Additional District Judge, Ambikapur, Camp: Surajpur in Civil Appeal No. 129-A/87 reversing judgment and decree dated 24-12-1980 in Civil Suit No. 26-A/76 passed by Civil Judge, Class II, Surajpur.

Respondent/plaintiff filed a suit for declaration and possession against the appellants/defendants alleging that the lands detailed in Schedule A to the plaint are his self-acquired property and on 23-6-1973 the appellants/defendants got two sale deeds executed in their name; of the property detailed in Schedules B and C to the plaint and got the same registered by through other person, personating them as respondent/plaintiff, and thereafter, got their names mutated in revenue record and entered possession forcibly. Appellants/defendants pleaded that the suit property belong to their father Chhotan Chamar and the plaintiff/respondent being the eldest son of Chhotan Chamar, became Karta of the family and after the death of Chhotan Chamar, who got the Patta prepared in his own name, but despite that appellants and respondent were remained in joint possession of the suit land. But, with intention to oust the defendants, plaintiff got two sale deeds executed and registered in the name of the defendants. The sale deeds were executed by the plaintiff with ulterior motive so as to deprive the appellants from their right over the suit property.

Learned Trial Court held that the alleged sale deeds were got executed by the plaintiff at his own accord, therefore, he is not entitled for relief as prayed for and accordingly dismissed the suit. However, learned First Appellate Court held that the suit lands were self-acquired property of the respondent/plaintiff and as appellants/defendants raising to claim that they had purchased the same for valuable consideration allowed the appeal and decreed the suit in favour of respondent/plaintiff.

Only question involved in this second appeal is "whether any right has been transferred by respondent to appellants vide the disputed sale deeds?"

Learned Counsel for both the parties are heard at length and records of Lower Court perused.

Plaintiff/respondent in his suit sought a relief for declaration to declare both the sale deeds illegal; ineffective and not binding on him on the ground that both the sale deeds were got executed by playing fraud. In both the sale deeds in place of plaintiff, defendant No. 1 Kapil Chamar (now dead) personating himself as plaintiff has signed and executed the sale deeds. Both the sale deeds have not been executed and signed by the plaintiff/respondent. On the contrary, appellants/defendants pleaded that all the lands are recorded in the name of plaintiff although defendants have equal share over the suit land as the property is ancestral property. They further pleaded that the plaintiff himself has executed both the sale deeds and got it registered and also mutated the names defendants in revenue records.

Section 54 of the Transfer of Property Act, 1882 reads as below:--

"54. "Sale" defined-- "Sale" is a transfer of ownership in exchange for a price paid or promised or part-paid and part-promised.

Sale how made-- "Such transfer, in the case of tangible immovable property of the value of one hundred rupees and upwards, or in the case of a reversion or other intangible thing, can be made only by a registered instrument.

In the case of tangible immovable property of a value less than one hundred rupees, such transfer may be made either by a registered instrument or by delivery of the property. Delivery of tangible immovable property takes place when the seller places the buyer, or such person as he directs, in possession of the property."

The sale deed transferring a right over immovable property of the value of Rs. 100/- and upwards can be made only by the registered document as per provision of Section 17 of the Registration Act.

Section 101 of the Evidence Act reads as below :--

"101. Burden of proof.-- Whoever desires any Court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist.

When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person."

When the plaintiff claims right over the property on the existence of fraud played on him and has unveiled the particulars, it is for him to prove his pleadings regarding fraud. He can not stand on the legs of defendants, although they have pleaded that the plaintiff has executed both the sale deeds voluntarily in their favour and transferred his right, as they did not say that, they have purchased the land.

Learned Trial Court in its judgment elaborately discussed the dispute and evaluated the evidence on record. Learned Trial Court held that the plaintiff to prove that; other person signed the sale deed in his place has neither adduced the witnesses who were present at the time of execution nor any employee of registration office has been called and examined. Even to establish that plaintiff has not signed the sale deeds, the signatures of sale deeds have not been got examined by handwriting expert. Therefore, the Trial Court held that the sale deeds having been executed and registered by plaintiff himself and the defendants have not obtained those sale deeds executed and registered by playing fraud on the plaintiff. Learned first Appellate Court was of the view that the defendants did not produce the original sale deeds and admittedly no agreement to sell has been entered between the parties nor any consideration against those sale deeds have been paid to the plaintiff. Neither plaintiff sold the land nor the defendants purchased it, therefore, the defendants did not acquire any title over the suit land by those sale deeds.

Plaintiff although pleaded and furnished the particulars of fraud, but to support and prove the fraud as burden lies on him, has examined only himself as P.W. 1. Bagharaj (P.W. 1) deposed that I did not sell the land to appellants/defendants. He further stated that the defendant No. 1 Kapil Chamar personating as Bagharaj got written the sale deeds and got registered one sale deed in his name and another in the name of Brijlal Chamar. He is not a witness who was present in the office of Registrar. He in his statement does not say that defendant No. 1 Kapil Chamar had signed the sale deeds in place of Bagharaj. The registrar and witnesses who were present during registration have not been examined by the plaintiff. Even signature has not been got examined by handwriting expert. Therefore, to support fraud or personation no evidence has been adduced by the plaintiff.

Section 60 of the Registration Act, 1908 reads as below:

"60. Certificate of Registration.-- (1) After such of the provisions of Sections 34, 35, 58 and 59 as apply to any document presented for registration have been complied with the registering officer shall endorse thereon a certificate containing the word "registered", together with the number and page of the book in which the document has been copied.

(2) Such certificate shall be signed and dated by the registering officer, and shall then be admissible for the purpose of proving that the document has been duly registered in manner provided by this Act, and that the facts mentioned in the endorsements referred to in Section 59 have occurred as therein mentioned."

When certification of registration has been done then the registration itself is admissible for the purpose of proof that the document has been duly registered in the manner provided by the Registration Act. In various provisions of the Act, it is also clear that registering officer has duty cast on him to satisfy himself that the person appearing before him is the right person.

From the aforesaid discussion, it is apparent that regarding suit land two registered sale deeds in favour of defendants were executed and according to those sale deeds Bagharaj the title holder of the land had executed both the sale deeds. As per the provision of Section 60 of the Registration Act, as well as other provisions, until contrary is proved, it will be presumed that plaintiff-Bagharaj himself appeared and validly sold out the disputed land in favour of defendants by executing two registered sale deeds.

So far as fraud is concerned, there is no iota of evidence to show that in obtaining the sale deeds any fraud has been played by the defendants or any one. Sale is established, hence the title of plaintiff stands transferred to the defendants who admittedly are in possession of the suit land.

From the evidence and material on record, it is found that both the sale deeds have been executed in conformity with Section 54 of the Transfer of Property Act, and Section 17 of the Registration Act and no fraud in execution of it, has been proved, therefore, rights of plaintiff over the land described in both the sale deeds have been transferred in favour of the appellants. Accordingly substantial question of law in answered.

The appeal succeeds, the judgment and decree dated 6-1-1988 passed by II Additional District Judge, Ambikapur, Camp: Surajpur in Civil Appeal No. 129-A/87 reversing judgment and decree dated 24-12-1980 in Civil Suit No. 26-A/76 passed by Civil Judge, Class II, Surajpur, is set aside. The judgment and decree dated 24-12-1980 passed by Civil Judge, Class II, Surajpur in Civil Suit No. 26-A/76 stands restored.

Parties to bear their own costs.