Pooran Ram vs Shankar Datt

Umesh Chandra Dhyani, J.—By means of present second appeal, the plaintiff/appellant seeks to set aside the judgment and order dated 18.6.2012 and decree dated 26.6.2012, passed by learned District Judge, Bageshwar in civil appeal No. 05 of 2010, Pooran Ram S/o. Bachi Ram v. Shankar Dutt S/o. Narayan Dutt and against the judgment and decree dated 23.3.2010, passed by learned Civil Judge (J.D.), Bageshwar in Original Suit No. 11 of 2007, titled as Pooran Ram v. Shankar Dutt. A suit No. 11 of 2007 for cancellation of sale-deed and possession over the suit property was filed by plaintiff Pooran Ram against the defendant Shankar Dutt in the Court of learned Civil Judge (J.D.), Bageshwar. The suit was dismissed vide judgment and decree dated 23.3.2010. Aggrieved against the said judgment and decree, plaintiff/appellant filed civil appeal No. 5 of 2010 before learned District Judge, Bageshwar. After hearing learned Counsel for the parties and having gone through the record of the case, the appeal was dismissed vide judgment and order dated 18.6.2012. The findings recorded by learned Trial Court on 23.3.2010 were affirmed vide judgment and order dated 18.6.2012 and decree dated 26.6.2012. Still aggrieved against the same, present second appeal has been preferred by the plaintiff/appellant.

Second appeal was admitted on the following substantial question of law:

"Whether the findings arrived at by the Trial Court as well as the Lower Appellate Court are based on a wrong appreciation of law?"

Before that, when stay application was pressed on behalf of the appellant for staying the operation of the order dated 18.6.2012, passed by Appellate Court (District Judge, Bageshwar) in suit No. 5 of 2010, and judgment and decree dated 23.3.2010, passed by the Trial Court [Civil Judge (J.D.), Bageshwar] in suit No. 11 of 2007, following order was passed:

"Brief facts, of the case, are that plaintiff has instituted a suit for cancellation of registered sale-deed dated 3.6.1974/10.7.1974, executed by the father of the plaintiff in favour of the father of the defendant. The suit has been instituted in the year 2007, i.e., after more than thirty years of execution of sale-deed. Admittedly, neither father of the plaintiff is alive nor father of the defendant is alive. The main ground in this appeal is that plaintiff is member of Scheduled Caste, and his land could not have been sold to a non-member of Scheduled Caste without permission of the Sub Divisional Magistrate, as the sale-deed is barred by section 157-A of U.P. Zamindari Abolition and Land Reforms Act, 1950. Attention of this Court is drawn by the plaintiff/appellant to sections 131-B, 157-A, and 157-AA of U.P. Zamindari Abolition and Land Reforms Act, 1950, and it is contended that the sale-deed executed by father of the plaintiff was void. However, on going through said provisions, this Court finds that section 131-B was inserted in the aforesaid Act vide U.P. Act No. 19 of 1995, section 157-A was inserted in the Act vide U.P. Act No. 20 of 1982 (w.e.f. 3.6.1981), and section 157-AA was inserted in the Act vide U.P. Act No. 9 of 1997 (w.e.f. 23.5.1997). As such, none of these provisions were in existence at the time of sale-deed in question was said to have been executed by the father of the plaintiff to the father of the defendant. The Lower Appellate Court has not only found that provision relied by the plaintiff are inapplicable to the present case but also found that the suit was barred by time.

In the above circumstances, this Court does not find any reason to grant stay order in favour of the appellant. Therefore, stay application No. 6071 of 2013 is dismissed."

Learned Counsel for the appellant submitted, among other things, that the findings given by two Courts below are totally perverse and are liable to be set aside. According to learned Counsel for the appellant, the defendant/respondent''s father gave an assurance to the plaintiff/appellant''s father that the land measuring 7 Nali 7 Mutthi will be returned to him after sometime Since father of the plaintiff (appellant) was an illiterate person, therefore the father of the defendant (respondent), namely, Sri Narayan Dutt took advantage of the same. Father of the respondent played fraud upon the father of appellant and, therefore, the sale-deed was liable to be cancelled.

Plaintiff/appellant instituted a civil suit against the defendant/respondent enumerating the averments contained therein that the plaintiff was recorded as bhumidhar in respect of the suit property in revenue records. Plaintiff belongs to a poor family and is a member of Scheduled Caste community. Plaintiff''s father took Rs. 1,750/- from the father of the defendant, but could not repay the same during his lifetime and, therefore, defendant continued to remain in possession of the plaintiff''s land. Fathers of both the plaintiff and defendant have since died. Defendant handed over the possession of a part of the suit land to one Harish Chandra. When Harish Chandra started using the said land, plaintiff enquired about his locus. Plaintiff went to the defendant with the money which his father had taken from defendant''s father and requested the defendant to release the said land in his favour, but to no avail. Plaintiff sent a registered notice to the defendant. Defendant gave a reply to the said notice saying that plaintiff''s father had executed a registered sale-deed in favour of defendant''s father, as a consequence of which, defendant''s name has now been recorded in the revenue records. Plaintiff made an inspection of revenue records only to find that 7 Nali 7 Mutthi of land belonging to plaintiff''s father was recorded in the name of defendant''s father in the revenue records. Plaintiff''s father never discussed to any of his family members that he had executed the sale-deed in favour of defendant''s father. Plaintiff''s father had only discussed this fact that he borrowed Rs. 1,750/- from defendant''s father and mortgaged such piece of land in his favour. Plaintiff''s father was an illiterate person and was a member of Scheduled Caste community. Defendant''s father played fraud upon plaintiff''s father to get a sale-deed executed in his name. Hence the suit for cancellation of registered sale-deed dated 3.6.1974.

Defendant filed his written statement pleading that the disputed land was purchased by defendant''s father through registered sale-deed on 3.6.1974. It was also averred in the written statement that the defendant continues to remain in possession over the said land after the death of his father. The same is also mutated in his name. Defendant sold a part of the same to one Harish Chandra, who constructed a residential house over the same and is living in it. Plaintiff''s father executed a sale-deed in favour of defendant''s father on 3.6.1974, which was duly registered in Sub Registrar''s Office, Almora, and is in the knowledge of all and sundry.

On the basis of pleadings of the parties, the following issues were framed by the Trial Court:

(i) Whether defendant''s father practiced fraud upon defendant''s father while getting the sale-deed dated 3.6.1974 executed? Whether plaintiff''s father borrowed Rs. 1,750/- from defendant''s father and handed over the possession of the suit land only for his use? If so, its effect?

(ii) Whether the suit was bad for non-joinder of necessary parties?

(iii) Whether suit is under valued and court-fee paid is insufficient?

(iv) Whether the (said) Court has no pecuniary jurisdiction to try the suit?

(v) Whether the suit was barred, by limitation? If so, its effect?

Plaintiff examined himself as P.W. 1. P.W. 2 Lacham Ram was also examined on his behalf. Certain documents were also filed on behalf of the plaintiff. Plaintiff and his witness P.W. 2 narrated and tried to prove the plaint story in their testimony. D.W. 1 Shankar Dutt and D.W. 2 Shankar Lal Shah were examined on behalf of the defendant. D.W. 3 Bansi Dhar Upreti was the Sub Registrar, Almora, who entered into the witness box alongwith register of Registration Department and stated that the sale-deed executed by the plaintiff''s father in favour of defendant''s father was entered in the said register. A true copy of the same was proved as Ext. Kha-1.

Learned Trial Court while discussing issue No. (i) referred to section 46 and 114 of the Indian Evidence Act, and came to the conclusion that no inference can be drawn, on the basis of evidence on record, that the sale-deed executed by plaintiff''s father in favour of defendant''s father was a forged document. The suit was being filed after 35 years. The contentions raised by learned Counsel for the parties before the Trial Court were also taken care of while rendering the judgment.

As regards issue No. (ii), the Trial Court held that the suit was not bad for non-joinder of necessary parties. Issue Nos. (iii) and (iv) were decided as preliminary issues, which findings were made part of the judgment. The Trial Court also decided issue No. (v) in favour of the plaintiff and against the defendant. As a result thereof, the suit was dismissed vide judgment and decree dated 23.3.2010.

The Lower Appellate Court, in its judgment, reproduced the summary of the pleadings of the parties and discussed the arguments of learned Counsel for the parties. The same story of plaintiff''s father taking the money from defendant''s father was repeated that when the plaintiff went to the defendant to return the money and get his land released, defendant declined his request. It was again reiterated on behalf of the plaintiff that plaintiff''s father never discussed, during his lifetime, to any of the family members that he had executed a sale-deed in favour of the defendant''s father in respect of the said land. A plea was also taken during the pendency of appeal, that defendant''s father had no right to purchase the said land from the plaintiff''s father, in as much as plaintiff''s father was a member of Scheduled Caste community. A land belonging to a member of Scheduled Caste community could not be sold to a non-member of Scheduled Caste community.

The fact remains that a sale-deed was executed by plaintiff''s father in favour of defendant''s father. Defendant''s father, and after his death, the defendant continues to remain in possession of the suit land. The land has been mutated as such in his name. A part of the land was thereafter transferred to one Harish Chand. Sale deed, and not the mortgage deed, was executed by plaintiff''s father in favour of defendant''s father. The sale-deed was executed 30 years ago and, therefore, the Lower Appellant Court was right in holding that the plaintiff/appellant failed to prove, as was pleaded by him in his plaint, that defendant''s father practiced fraud upon plaintiff''s father while executing the sale-deed in respect of suit land. The issue relating to limitation was also decided in favour of the defendant/respondent and against the plaintiff/appellant. Learned Lower Appellate Court has also rightly discussed and held that when the sale-deed was executed in favour of the defendant''s father, relevant provisions of law were not incorporated in the U.P. Zamindari Abolition and Land Reforms Act, 1950. Learned lower Appellate Court has rightly held that the decision of Man Singh v. Commissioner, Bareilly Division, Bareilly and others 2008 (104) RD 598 (All), was not applicable to the facts of the present case, inasmuch as, sections 131-B, 157-A and 157-AA of U.P. Zamindari Abolition and Land Reforms Act were not in existence in the year 1974, when the said sale-deed was executed. Learned Lower Appellate Court has, therefore, rightly held that the appeal had no force and the same was, accordingly, dismissed.

Lower Appellate Court framed points of determination and discussed the evidence led by the parties before the Trial Court. On the basis of such evidence, the Lower Appellate Court was of the opinion that no interference was called for in the impugned judgment and decree passed by the Trial Court and, therefore, dismissed the appeal vide judgment and order dated 18.6.2012. The judgment and decree passed by the Trial Court was affirmed. This Court has also considered the evidence led by the parties before the Trial Court on the issues framed, and the decisions thereon, only to reach to the conclusion that the same are non-interferable. Neither any perversity in the judgments of the two Courts below was successfully pointed out, nor could this Court find any such infirmity or perversity in the judgments of the Courts below.

Only one point is worth noticeable and, that is, the plaintiff is a member of Scheduled Caste community and his land could not have been sold to any non-member of Scheduled Caste community without permission of the District Magistrate. It was contended on behalf of the plaintiff/appellant that the sale-deed executed by the father of the plaintiff was void in view of sections 131-B, 157-A and section 157-AA of U.P. Zamindari Abolition and Land Reforms Act, 1950. At the first blush, the said contention of learned Counsel for the appellant seems attractive, but on a second thought, this Court finds that none of these provisions were in existence at the time when the sale-deed in question was executed by the father of plaintiff in favour of father of the defendant. Section 131-B was inserted in U.P. Zamindari Abolition and Land Reforms Act, 1950 vide U.P. Act No. 19 of 1995, section 157-A was inserted in the Act vide U.P. Act No. 20 of 1982 (w.e.f. 3.6.1981), and section 157-AA was inserted in the Act vide U.P. Act No. 9 of 1997 (w.e.f. 23.5.1997). The registered sale-deed was executed in the year 1974, as such, there was no application of any of the aforesaid sections, namely, sections 131-B, 157-A and 157-AA of U.P. Zamindari Abolition and Land Reforms Act, 1950, to the facts of the instant case. That could have been the only ground in the instant Second Appeal to prompt this Court to reverse the findings of the two Courts below, but, unfortunately, that was not the case, inasmuch as, the amendments in the U.P. Zamindari Abolition and Land Reforms Act, 1950, were carried out at a subsequent point of time and have no retrospective effect. In other words, a registered sale-deed of the year 1974, could be cancelled on the sole ground that the land of the plaintiff''s father, who being a member of Scheduled Caste community, could not have been transferred to a non-member of Scheduled Caste community, but for the reason that, new sections amending the law were introduced at a subsequent point of time. Moreover, the suit for cancellation of sale-deed was filed after a gap of 30 years. Both the Courts below gave concurrent findings, and on the basis of evidence on record, there is no occasion for this Court to give a categorical finding that the findings arrived at by the Trial Court as well as the Lower Appellate Court are based on wrong appreciation of law.

Substantial question of law is thus answered in the negative. No interference is thus called for in the decisions of the Courts below. And, as a consequence thereof, second appeal fails and is dismissed. No order as to costs. Lower Court record be sent back to the Court concerned.