M/s Navbharat Buildicon Pvt.Ltd vs State of M.P. and others

This appeal by the plaintiff under Section 96 CPC is directed against the judgment and decree dated 10/12/2002 passed in Civil suit No. 28-A/2001 by the Second Additional District Judge, Bhind.

Facts relevant and necessary for decision in the appeal are that the plaintiff is the owner of old survey Nos. 1258 and 1259 and the same is recorded in the revenue records. The appellant at the time of filing of the suit was aged about 90 years. His only son Rajaram Singh had expired. Rajaram

Singh left two widows alive. The first wife was issueless and the second wife has only one daughter named Girija Devi who is married to defendant No.2 Ramesh Singh. It is also undisputed that all the land except the suit land belonging to the plaintiff is in the ownership and possession of Girja Devi. Since the plaintiff was not keeping well, the defendant No.2 who is the son in law of the son of the plaintiff was called to village Sagara for the purpose of looking after the land belonging to the plaintiff. The plaintiff handed over the possession of the land to defendant No.2 on receiving Rs. 10,000/- as token amount. The defendant No.2 became the leaseholder of the land.

That, when the younger brother of Ramesh Singh, defendant No.2 fell ill he had gone to look after his brother. In the meantime, the appellant also fell ill. The father in law of respondent No.1 Ganga Singh took the appellant to the hospital at Bhind where it is said that he managed to get some thumb impression of the appellant on some blank papers which ultimately were used for preparing a forged sale deed in favour of the respondent No.1. The dispute arose since Smt. Kamlesh, respondent No.1 got the sale deed executed by Lakhan Singh taking advantage of the old age of the plaintiff. In this back drop a suit seeking declaration and permanent injunction came to be filed.

The defendants filed the written statement. Thereafter the following issues were framed by the trial Court :-

"VERNACULAR MATTER OMITTED"

Both the parties led evidence. The trial Court after proper evaluation of the evidence on record, rendered the judgment and decree dated 10/12/2002. The decree reads as under :-

"VERNACULAR MATTER OMITTED" 6. The present appellants have filed a suit for declaration and permanent injunction bearing civil suit No.28-A/2001, inter alia contending that the respondent No.1 had acquired title, right and interest over the suit land on the basis of a forged sale deed, hence, entitled for declaration and permanent injunction of the suit land, allegedly taken forcible possession by the respondents. On going through the sale deed, it is clear that there is neither any mention that the sale money has been received by the appellant either before the Registrar or prior to the registration of the sale deed at any particular place or there is any recital that the sale deed was read over to the appellant. It is contended that these two aspects are very important for appreciation of the evidence since the appellant is an old man incapacitated and uneducated aged about 91 years. The absence of these two things itself makes the sale deed null and void.

The appellant has challenged the order on the followings grounds :-

(i) The learned trial court completely omitted to consider that before executing the sale deed whether consideration stood passed to the appellant.

(ii) The learned trial Court did not care to read the documents Ex. P-2 and P-3 which shows the possession of Ramesh Singh or they have been omitted from consideration.

(iii) The trial court ought to have considered the fact that the respondents were called to look after the property which was in the shape of "Shikmi Kastkari" and that the rest of the property belong to Girja Devi, W/o Ramesh Singh.

(iv) In order to demonstrate the appellants possession, the appellant had along with this appeal an application under Order 41 Rule 27 CPC to the effect that Ramesh Singh was in possession of the suit land at a particular period of time but his possession has been scored out at the time of settlement. This has been completely ignored by the trial court.

(v) The trial Court did not consider the provisions of Section 53 and 55 of the Transfer of Property Act, 1882 in as much as the consideration was not paid before the Registrar. The appellant has placed reliance on the case of Padam Singh Vs M/s Nemichand Khemchand M.P. Weekly Note 1994 (2) SN 187 to contend that the consideration not paid before the Registrar creates suspicion.

(8) It is contended on behalf of the respondents/defendants that the plaintiff is neither the owner nor in possession. Consequent upon execution of the sale deed Ex.D-1, payment was made and as a result the possession of the suit land was handed over to the the respondents. The land was also mutated in the name of Ramesh. The sale deed was executed on 16/10/1998, therefore, the plaintiff has no right, title and interest in the property. As such, the plaintiffs are not entitled for declaration, permanent injunction, as claimed in the plaint.

(9) While deciding issue No. 1,2 & 3, the Trial Court came to the conclusion that the burden to prove issue No. 1 & 2 lies on the plaintiff whereas in respect of issue No.3 burden lies on the defendants. The trial court concluded that the possession is not with the plaintiff. On careful appreciation of the evidence on record and on the basis of the registered sale deed, it is clearly established that the possession of the suit land is with the defendants. Accordingly, issue Nos. 1 & 2 is answered in the negative whereas the remaining issues have been answered accordingly, and dismissed the suit.

(10) While answering Issue No. 1,2 & 3, the trial Court has relied on the registered sale-deed (exhibit D-1) which shows that the suit land has been sold to defendant No.1 Kamlesh for a consideration of Rs. 68,500/- and he has been handed over the possession. The sale deed also mentions the fact that the plaintiff Lakhan Singh has received the sale consideration of Rs. 68,500/- at his home. The trial court has relied on the judgment in the case of Chain Singh Vs Ramchandra & others (1992) 1 MPJR 299 and has come to the conclusion that the defendant No.1 is in possession of the suit land.

This fact is corroborated by the (D.W.1) Kamlesh, (D.W.2) Ramawtar and (D.W.3) Ganga Singh by deposing that the plaintiff Lakhan Singh had received the sale consideration of Rs. 68,500/- two days prior to executing the sale deed. The plaintiff has deposed in para No. 12, 15 & 17 of his cross examination that he did not receive Rs. 10,000/- towards advance in front of anyone and also does not remember how the amount was received by him. The plaintiff failed to prove that Rs. 10,000/- was accepted towards "Sikmi Kashta" and the plaintiff had put Ramesh Singh in possession to look after the suit land. Accordingly, the plaintiff has failed to prove that the sale deed was executed by playing fraud.

After hearing the learned counsel for the parties and perusal of the record, pleadings and evidence, oral & documentary, this Court has no hesitation to hold that the plaintiff has received the sale consideration and as such does not have any right, title and interest in the suit property. The trial Court has rightly come to the conclusion which is based on oral and documentary evidence available on record. Accordingly, the suit has been rightly dismissed. As a consequence, the appeal fails and is hereby dismissed.

No order as to costs.