Mukesh Kumar and Others vs Vijay Singh and Others

Dr. Vineet Kothari, J.—The present Misc. Appeals have been filed by the appellants, who were the applicants-plaintiffs in Civil Misc. Case (T.I.) No. 63/2014 (Mukesh Kumar and Anr. v. Jagtar Singh) and 64/2010 (Mukesh Kumar and Anr. v. Vijay Singh) against the order dated 11.09.2014 passed by the learned Additional District Judge, Raisinghnagar, District Sriganganagar by which, the learned Additional District Judge had dismissed application of the appellants-applicants filed under Order 39 Rule 1 and 2 of the Code of Civil Procedure in a suit for cancellation of the sale deeds in respect of the agricultural land admeasuring 1.949 hectares situated at Chak 7 PTD B, Stone No. 247/359 and Murabba No. 17.

The plaintiffs-appellants Mukesh Kumar and Shyar Singh, both sons of Bansi Lal Jat, have filed the present CMAs under Order 43 Rule 1(r) of the Code of Civil Procedure aggrieved by the order dated 11.09.2014 passed by the learned Additional District Judge, Raisinghnagar, District Sriganganagar rejecting the T.I. Application filed by the appellants-applicants in a suit for cancellation of sale deeds filed by them seeking cancellation of the registered sale deeds dated 24.06.2014. By the two registered sale deeds, the father of the present appellants namely, Bansi Lal, transferred the land admeasuring 1.949 hectares at Chak 7 PTD B, Stone No. 247/359, Murabba No. 17; one part of the land was transferred in favour of the defendant Vijay Singh S/o. Amar Singh Rajput and another part of the land was transferred in favour of Jagtar Singh S/o. Pratap Singh Jat.

The learned Trial Court has rejected the T.I. Application filed by the present appellants with the following findings, prima facie, against the appellants-plaintiffs in the following manner:--

The learned counsel Mr. Sanjeet Purohit appearing for the appellants-plaintiffs upon a decision of the Hon''ble Bombay High Court in the case of Shri Yeshwant Laxman Pai Raikar and his wife Smt. Pushpa Yeshwant Pai Raikar Vs. Shri Laxman V. Singbal, Dr. Uday Laxman Singbal and Shri Sanjay Laxman Singbal, (2010) 1 MhLj 903 urged that the agricultural land in question was an ancestral land and the father Bansi Lal being karta of HUF (Hindu Undivided Family) could not have transferred the land in question in favour of the defendants without taking consent of the other co-parceners including the present appellants-plaintiffs, the sons, and he submitted that the entire consideration for sale is said to have been paid in cash to the seller Banshi Lal, who was an alcoholic addict, which was not a plausible probability and the other part of the agricultural land which was transferred in favour of Jagtar Singh is also doubtful as he alleged that he had paid in cash a sum of Rs. 24,00,000/- on the spot to the seller at the time of registration of the land in his favour whereas consideration shown in the registered sale deed is far less. Therefore, questioning the right of the transferor father namely, Banshi Lal and as far as for the sale deeds in question, they had filed separate suits for cancellation of sale deeds, in which, this T.I. Application has been filed which has been rejected by the learned Trial Court. The learned counsel further submitted that after hearing the parties, a co-ordinate Bench of this Court has granted an interim order in the present appeals on 10.12.2014 directing the parties to maintain status-quo regarding land in question which order deserves to be maintained during the pendency of the suit and the learned Trial Court may be directed to expedite the trial of the suit. 5. Vehemently opposing these submissions, the learned counsel Mr. R.K. Thanvi, Senior Advocate with Mr. Narendra Thanvi appearing on a caveat for the respondents-defendants urged that the presumption of consideration having been passed to the seller is there, as stipulated in the sale deeds which could not be executed without taking the consideration and these sale deeds are the registered document/s and he submitted that even if a part of the consideration is not paid, the sale could not be questioned on that ground but in the present case, in fact, the entire consideration stands paid to the seller Banshi Lal and the father Banshi Lal himself in his statement has stated that he was not an alcoholic addict and has not disputed the fact of receiving the entire consideration for the sale of agricultural land in question. The learned counsel also relied upon a decision of the Hon''ble Supreme Court in the case of Vidhyadhar Vs. Manikrao and Another, AIR 1999 SC 1441 : (1999) 2 JT 183 : (1999) 2 SCALE 93 : (1999) 3 SCC 573 : (1999) 1 SCR 1168 : (1999) 1 UJ 665 : (1999) AIRSCW 1129 : (1999) 3 Supreme 102 and the later decision in the case of Kaliaperumal Vs. Rajagopal and Another, AIR 2009 SC 2122 : (2009) 6 CTC 741 : (2009) 7 JT 124 : (2009) 4 SCALE 60 : (2009) 4 SCC 193 : (2009) 2 SCR 814 : (2009) AIRSCW 3475 : (2009) 4 Supreme 205 . The learned Senior Advocate Mr. R.K. Thanvi submitted that the entire consideration for sale of the agricultural land in question was received by the seller Banshi Lal, father of the plaintiffs. Bashi Lal got the said agricultural land in question through the gift deed from his own father long back, therefore, the said land is not even a joint family property and, therefore, the right to transfer the said agricultural land in question cannot be questioned by the sons, the present plaintiffs. The learned counsel submitted that in such circumstances, such blanket interim status quo order granted by this Court on 10.12.2014 does not deserve to be continued and the buyer/s should be allowed to use the land in question as per their needs. It is also submitted that the land in question was given for contractual farming to the seller Banshi Lal himself and the possession of the land in question is with the defendants de facto and de jure.

Having heard the learned counsels for both the parties and upon perusal of the material placed on record including the impugned order dated 11.09.2014 and the judgments cited at Bar, this Court is of the opinion that the rejection of the T.I. Application by the learned Court below cannot be validly assailed, as a strong presumption is attached with the registered documents of sale in the present case. The plaint averments and the averments made in the written statements in the present case where the evidence is yet to be led in the present suit for cancellation of the sale deeds, the sale consideration, as stipulated in the sale deeds should be deemed to have passed on between the parties even though in cash. This payment in cash may raise some doubt but the genuineness of the entire transaction could not be questioned on this ground alone. On the other hand, as discussed by the learned Trial Court, in the quoted portion above, huge withdrawals of money appear to have been made from the bank account of the purchaser Vijay Singh on various dates from the year 2011 to the year 2013 when initially an agreement to sell was executed by Banshi Lal, the father of the present appellants-plaintiffs and later on, two registered sale deeds came to be executed by him in favour of the defendants-Vijay Singh and Jagtar Singh.

Though the learned Trial Court has recorded in para-11 that the said payments were received by the seller by cheque but this fact was seriously disputed by the learned counsel Mr. Sanjeet Purohit that the alleged payments were made by cheques to the seller Banshi Lal. The payment, by cash or cheque, is at the discretion of the parties and the genuineness of the transaction can only be seen prima facie at this stage when the suit is at the initial stage of trial before the learned Trial Court. This Court is of the view that since the cash payment is not prohibited by any specific law per se and the payment of consideration is yet to be proved by leading evidence, the transaction itself cannot be said to have fallen within the realm of doubt. The capacity to contract of the father Banshi Lal, the defendant is also, prima facie, not doubtful, therefore, the burden obviously lies upon the plaintiffs to prove that the land in question is an ancestral joint family property and the same has not been gifted to Banshi Lal by his father in his own right and, therefore, he has not acquired the property through the gift and was only the sole owner of the land in question and, therefore, had no right to sell the land in question. These are facts yet to be proved on the basis of cogent evidence but as of now, the learned Trial Court cannot be said to have erred in believing the registered sale deeds as sufficient proof of the transfer of property in question and, therefore, rejecting the T.I. Application filed by the appellants-plaintiffs sons.

However, this Court is further of the opinion that during the pendency of the present suit, the further alienation of the suit property should remain subject to the final decision of the present suit in accordance with Section 52 of the Transfer of Property Act and with this embargo only on the defendants and the suit property, the learned Trial Court may proceed with the trial of the suit expeditiously.

Accordingly and in view of the above, the instant Misc. Appeals filed by the appellants-plaintiffs-Mukesh Kumar and Anr. are disposed of. No costs. A copy of this order be sent to the learned Trial Court and to both the parties concerned forthwith.