Khateeza and Others vs Islam

Sanjay Karol, J—This is the plaintiff''s Regular Second Appeal under the provisions of Section 100 of the Code of Civil Procedure. Plaintiff''s Civil Suit No. 78/1 of 1998, titled as Kalu Khan through LRs Versus Shri Islam, stands decreed by learned Sub Judge, 1st Class, Court No. 2, Paonta Sahib, District Sirmaur, H.P., in terms of judgment and decree dated 19.08.2002. Aggrieved thereof, defendant filed an appeal which stands allowed in terms of judgment and decree dated 22.12.2003, passed by learned District Judge, Sirmaur District at Nahan, H.P., in Civil Appeal No. 62-CA/13 of 2002, titled as Sh. Islam Versus Smt. Kateeza & others.

The challenge is laid to the sale deed dated 12.06.1998 (Ex. DW.1/A), allegedly executed by plaintiff Kalu Khan (hereinafter referred to as the plaintiff) in favour of defendant Islam (hereinafter referred to as the defendant). In terms of the said sale deed, 1-17 bighas of land stands sold in favour of the defendant.

In the plaint, presented on 03.07.1998, plaintiff pleads that he has no son and as such made his son-in-law Wahid as ''Ghar Jamai'' not to the liking of the defendant, who had an evil eye on his property. One such attempt was made with the defendant making the plaintiff execute a registered Will dated 02.05.1995 (Mark-B), which was subsequently revoked and the property in question, bequeathed by the plaintiff in favour of his daughters. However, defendant pleaded with the plaintiff of gifting 3 biswas of land for the purpose of constructing a house, to which he agreed. For the purpose of registration of the gift deed, defendant made the plaintiff appear before the authorities on 12.06.1998, when by exercising fraud and misrepresentation he got the sale deed in question executed.

On the other hand, defendant pleads the transaction to be bonafide for a valid consideration of Rs. 40,000/-.

Based on respective pleadings of the parties, trial Court framed the following issues:

"1. Whether the plaintiff is owner in possession of the suit land as claimed? OPP.

Whether the defendant on 12.6.98 under the pretext of getting a gift deed of 3 biswas of land executed got procured as a sale deed of 1 bigha 17 biswas of land out of the suit land fraudulently in connivance with the marginal witnesses at Ponta Sahib as alleged? OPP.

Whether the aforesaid sale deed dt. 12.6.98 is without consideration as alleged? OPP.

Whether the sale deed is also an out come of misrepresentation about the nature as well as contents thereof as alleged, if so its effect? OPP.

If issues No. 2, 3 & 4 are proved in affirmative, whether the plaintiff is entitled for the relief of declaration and injunction and also in the alternative for possession as claimed? OPP.

Whether the plaintiff has no locus standi to file the suit as alleged? OPD.

Whether the impugned sale deed dated 12.6.98 has been validly executed on payment of consideration amount to the tune of Rs. 40,000/- to the plaintiff as alleged? OPD

Whether the defendant was put in possession of the suit land as owner since the date of sale deed executed by the plaintiff in favour of the defendant as claimed. If so its effect? OPD.

Relief."

Trial Court decreed the suit, holding the sale to be invalid as having been executed, taking undue advantage of illiteracy and old age of the plaintiff, more particularly in the light of previous transaction when Will was got executed. Trial Court also observed that an application with regard to carving out of 3 biswas of land presented before the Patwari, corroborated the plaintiff''s version.

However, lower Appellate Court, in the defendant''s appeal, reversed such findings, judgment and decree and dismissed the suit, holding the sale transaction to be bonafide and validly executed.

The present appeal stands admitted on the following substantial question of law:--

"Whether the judgment recorded by the learned District Judge is vitiated by misreading of evidence on record and is de hors the evidence?"

Having heard learned counsel for the parties as also perused the record, Court is of the considered view that the lower Appellate Court seriously erred in reversing the findings, judgment and decree, rendered by the trial Court.

Specific plea of fraud and misrepresentation was taken by the plaintiff, as is evident from the perusal of the plaint. From the unrebutted testimony of the plaintiff (PW.1), it is evident that prior to the transaction in question, Will dated 02.05.1995 (Mark-B) was executed in favour of the defendant, which, not only did he revoke, but by way of subsequent act, got registered a Will dated 30.06.1995 (Mark-A), bequeathed his entire property in favour of his daughters.

It is a matter of record, emanating out of the testimonies of the witnesses, that plaintiff has no son and his son-in-law Wahid (PW.2) is residing with him as his ''Ghar Jamai''. He had someone to look after himself. Necessity of selling the land is also not borne out from the record. It is nobody''s case that plaintiff was having strained relations with his daughters or sons-in-law or was having special love and affection for the defendant or his family members so as to totally deprive himself of his land. There was no legal necessity for the plaintiff to have sold the land in question.

On the other hand, plaintiff''s plea of having acceded to the defendant''s request of gifting 3 biswas of land stands fortified not only from his testimony, testimony of Wahid (PW-2) but also from the revenue record which clearly establishes that the total land holding of the plaintiff was divided. Tatima with regard to 17 biswas was carved out as khasra No. 561/426/2 and another Tatima of 3 biswas was carved out as Khasra No. 561/426/1. Had the plaintiff desired of selling the entire land, there was no requirement for carving out a separate Khasra number only of an area which he in fact wanted to gift.

Plaintiff is an agriculturist. He is a rustic villager and illiterate. In Court, he has thumb marked his statement. It is in this backdrop, testimonies of the witnesses stand correctly appreciated by the trial Court. The initial burden of fraud and misrepresentation stands proved by the plaintiff. On the other hand, defendant has not been able to discharge the onus, which stood shifted upon him.

The amount of Rs. 40,000/- towards sale transaction was paid in cash. Why so? Remains unexplained. Though plaintiff denies having received any such amount, but however, defendant seeks reliance upon his testimony as also testimonies of Devender Singh (DW.1), Jai Singh (DW-3) and Randhir Singh (DW-4). Conjoint reading of the same only reveals the testimonies to be not inspiring in confidence and the factum of payment of Rs. 40,000/- as sale consideration not to have been proven on record. These witnesses want the Court to believe that possession of the suit land stood handed over to the defendant, which has not been so found by the Courts below. Witnesses admit that plaintiff is an old and illiterate man. Davender Singh (DW.1) states that Rs. 40,000/- stood paid to the defendant. However, according to Mohammad Islam (DW.2), such payment was made on 02.06.1998 at about 3.00 PM, in the presence of Jai Singh and Gulsher, who do not corroborate such fact. What business does Mohammad Islam do? Whether he is a moneyed man? He does not state. Also why money was not paid through cheque, has not been explained. Mohammad Islam wants the Court to believe that the amount in question was actually borrowed, but then by what mode, remains unexplained. He does not name the relatives from whom he borrowed the same. Witness admits that plaintiff is an agriculturist and with the sale of land in question, would be rendered landless. He admits that Gulsher and Jai Singh from whom some of the money towards sale consideration was borrowed were not examined. He also does not have any proximity and intimacy with them. As such, why would someone lend money remains unexplained. What is crucial is the admission made by Jai Singh to the effect that no receipt towards payment of either the loan or the sale consideration was obtained by the parties. Why so? remains unexplained. Under these circumstances, burden of execution of transaction being bonafide and valid, laid heavily upon the defendant, cannot be said to have been discharged. The self-serving statement of the witnesses of the defendant in no manner proves or discharges the burden so imposed upon the defendant in terms of the issues, so framed by the trial Court.

The lower Appellate Court erred in not correctly and fully appreciating the testimonies of the witnesses and presumed the defendant to have established factum of having paid the sale consideration.

For all the aforesaid reasons, appeal is allowed and findings, judgment and decree passed by the trial Court are affirmed and that of the lower Appellate Court are reversed. Question of law is answered accordingly. Pending applications, if any, also stand disposed of accordingly.