Ramkishan vs Jagannath

J.K. Maheshwari, J.—Heard on the question of admission.

Being aggrieved by the judgment and decree dated 29.06.2006, passed by Additional District Judge, Karera, District - Shivpuri in Civil Regular Appeal No. 28-A/2005 confirming the findings recorded by the Civil Judge, Class I, Karera in Civil Suit No. 98-A/2000 on 24.03.2005 this appeal u/s 100 of C.P.C. has been preferred by the plaintiff by which the suit filed by the appellant/plaintiff for declaration of title and permanent injunction has been dismissed.

The plaintiff''s case in brief was that he filed a suit on 28.10.2004 seeking declaration of title inter alia contending that the land of Survey No. 120/1 and 129 was renumbered after Bandobast as Survey Nos. 61, 62, 63, 64, 65, 84, 85 and 86 (in total eight survey numbers) area 2.15 Hectares situated in Village - Deedawali, Tehsil - Karera, District - Shivpuri. The land of old Survey No. 494 was renumbered after Bandobast as 150 area 3.18 Hectares situated in Village - Silanagar, Tehsil - Karera is of the ownership of the plaintiff, which is recorded in his name. It is said that presently he is cultivating the same. In para 8 it is said that the plaintiff has not executed any sale deed or alienated the same during his life time. However he be declared as title holder of the said property restraining the defendants to not interfere in his possession.

Defendant by filing the written statement on 04.10.2000 contested the claim of the plaintiff restating that the plaintiff was the owner of the land but he executed a registered sale deed on 01.09.1975 in favour of defendants No. 1 to 5 and the possession has also been delivered on the land specified in the sale deed and are cultivating the same. It is further said that with respect to land specified in para 5 and 6 the plaintiff executed a sale deed to the extent of one half share in favour of defendants No. 1 to 3 and to defendants No. 4 and 5 1/4th share. It is further stated that after purchasing the land, defendants have spent more than 40,000/- to make such land productive for cultivation. However they are taking the crops therefrom. It is said that defendant No. 4, who is the son of the plaintiff, joined hands with the plaintiff filed the present suit which deserves to be dismissed. It is further said that the land in question has been mutated in the year 1998 i.e. in the knowledge of the plaintiff however the suit deserves to be dismissed. In special plea objection regarding filing of the suit within the period of limitation has also been raised.

Learned trial court vide judgment dated 08.04.2003 decreed the suit. However an appeal was preferred by the defendants, which was allowed and the matter was remanded back to the trial court to compare the certified copy of the sale deed dated 01.09.1975 produced before the Court by summoning the original record from the office of Deputy Registrar, Karera, District - Shivpuri and record a finding on the point of execution of sale deed. Thereafter the trial court vide judgment dated 24.03.2005 dismissed the suit filed by the plaintiff holding that the sale deed dated 01.09.1975 executed by original plaintiff in favour of the defendant found prove. It has further been held that the defendants are in possession and after execution of the sale deed their names have been mutated in the revenue record, however injunction has also been refused. On filing an appeal, it was dismissed affirming the finding of the trial court in toto. However, this appeal has been preferred.

Shri D.D. Bansal, learned counsel appearing on behalf of the appellant has strenuously urged that in the present case, the plaintiff is an illiterate person who filed the suit seeking declaration of title and permanent injunction and said that he has not executed any sale deed. In such circumstances, the sale deed executed by him in favour of the defendants No. 1 to 5 ought to be proved by attesting witnesses and at the time of execution of such document the contents thereof were readover to the executor. In the present case no such evidence has been brought by the plaintiff even then finding has been recorded to found prove such document in favour of the defendants. The said finding of fact is unsustainable in law in view of the judgment of Sumer v. Akloo reported in 1985 MPWN 327. It is further his contention that if the execution of the document has been disputed by the executer then as per section 45 of the Evidence Act to prove the execution of the said document, the thumb impression ought to be proved examining the expert on asking by the parties. In absence thereto, it is the duty of the Court to call for such a report to reach upto the root of the case. In support of the said contention, reliance has further been placed on the judgment in the cases of Kawal Singh and another Vs. Sembai and another, and Asharam and Another Vs. Suraj Singh Baghel and Others, . It is submitted by him that the recourse of section 45 of the Evidence Act can be taken even at the stage of final hearing. At last, it is his contention that after remand by the lower appellate court vide judgment dated 26.10.2004, an application seeking amendment was filed on 02.12.2004 pleading that the sale deed produced by the defendant dated 01.09.1975 is forged one, but the same was rejected by order dated 25.01.2005. However, the rejection of the amendment application while passing the impugned judgment is not in accordance to law. It is his contention that the suit was filed in the year 2000 prior to the commencement of the CPC Amendment Act, 2002 in such a case the old provisions of the amendment would be attracted. However, the application can be allowed at any stage. In view of foregoing, substantial question of law arises for determination however the appeal may be admitted formulating substantial question of law.

Per contra, Shri T.C. Narvariya, learned counsel representing respondents submits that in the present case plaintiff filed a suit seeking declaration of title taking negative plea of non execution of the sale deed. On 20.02.2000 after service of the summons, the defendants have tendered their appearance and filed the written statement on 04.10.2000 specifically pleading that they are owner of the property in question by registered sale deed executed by the plaintiff on 01.09.1975 in his favour. It is contended by him that the original plaintiff, who is the executor of the sale deed survived upto 13.05.2002 even after more than 1 year and seven months but he has not taken recourse to get cancelled the sale deed by denying its execution. After his death his L.Rs. were brought on record and they have also not taken any recourse to make any amendment in the pleadings till remand by the appellate court which was limited to the extent of considering the validity of the sale deed dated 01.09.1975. However, thereafter the application for amendment filed by the legal heirs has rightly rejected on 25.01.2005. Against the order of the rejection of amendment application, no revision has been filed taking recourse of law. However, merely challenging at appellate stage it is not of any consequence. It is further his contention that it is not a case wherein the plaintiff itself is an illiterate, but the defendants are also illiterate persons and put their thumb impression. However in such a case, it cannot be accepted that playing fraud with plaintiff the sale deed got executed by them. It is a case wherein 25 years prior to date of filing of the suit a registered sale deed was executed in favour of the defendants whereupon they are claiming their title which was found prove by the two courts recording finding in their favour after comparing the certified copy produced before the court with the original record of the Registrar and the evidence of the Record Keeper of the government Office. In the said case interference in the finding of fact is not warranted.

On the point of proving a document calling an expert as per section 45 of the Evidence Act, it is contended by him that the original plaintiff, who was the executant of the document has never denied its execution after coming to know of execution of sale deed. In said sequel of fact, the judgments relied upon by the appellant, having no application on the present case. Therefore, finding of fact recorded by the court below in that behalf does not call for any interference.

After hearing learned counsel for the parties and on perusal of the pleadings of the plaint, it is seen that the suit was filed seeking declaration of title by Mannu on 22.08.2000. In the suit he has merely sought declaration of title against defendants and permanent injunction with respect to the suit land. It is pleaded by him that he has neither executed any sale deed, nor alienate or transferred the suit land during life time. The plaint filed by the plaintiff was resisted by the defendant filing the written statement by defendant No. 1, 2, 3 and 5 on 04.10.2000 wherein it was specifically said by them that the suit land has been sold by the plaintiff and purchased by them vide registered sale deed dated 01.09.1975. In the said sale deed, defendant No. 4, who is the son of the plaintiff were also a purchaser.

It is further said that in furtherance to the execution of sale deed they got mutated their names in the knowledge of the plaintiff, however without challenging such sale deed filing of a suit for declaration of title is not maintainable. Defendant No. 4 has filed his written statement accepting the plaint averments because he is the son of the plaintiff. It is seen that the plaintiff Mannu had died on 13.05.2002. After filing the written statement by the defendants No. 1, 2, 3 and 5 he has not taken any step to challenge the sale deed whereupon the defendants have relied upon otherwise he was having an occasion to deny the execution of the sale deed and his thumb impression. On his death and after remand the suit was decreed merely because the original sale deed was not produced and certified copy was produced which was not proved calling a person from the Registrar office, however it was remanded by the lower appellate court as per judgment dated 26.10.2004 thereafter legal heirs moved an application for amendment assailing the said sale deed which was rejected as per order dated 25.01.2005. It is to be noted here that plaintiff has merely filed a suit for declaration though he himself executed the sale deed on 01.09.1975 in favour of the defendants. When the defendants have taken a plea that they are the owner of the suit land by virtue of a sale deed in their written statement during his life time, he has not challenged the execution, and not denied his thumb impression on the same. In such circumstances, it is not understandable how a suit taking a negative plea for declaration of his title can be helpful to the plaintiff assailing concurrent finding recorded against him by two courts.

Here it is further relevant to observe that the original plaintiff has not assailed the sale deed and after joining of the legal representatives they have also not filed any application for amendment. On remand the said application was filed which was rejected but order of rejection was not challenged and it was accepted by them. Therefore, challenging first time in appeal, the benefit is sought for, but I am not impressed by such submission because it is afterthought sanctity and the interference on the said point is not warranted.

So far as the execution of the document and to prove thumb impression of the executor while executing the said document, courts below appreciating the evidence brought on record found that the original plaintiff executed the sale deed in favour of the defendant Nos. 1 to 5, which is a valid document. As stated herein above, the original plaintiff has never stated that he has not put his thumb impression on the document though he was having opportunity to do so. In absence of the same, in my considered opinion, the judgments as relied upon by the learned counsel in the cases of Kawal Singh and another Vs. Sembai and another, and Asharam and Another Vs. Suraj Singh Baghel and Others, are of no help.

In view of foregoing discussion and looking to the fact that the document of defendants i.e. registered sale deed dated 01.09.1975 executed by the original plaintiff in favour of the defendants is a 25 years'' old, on the date of filing of the suit however it cannot be doubted. The plea taken by the plaintiff that he is an illiterate person is also of no help to him because the defendant is also on the similar footing being illiterate. No iota of evidence is available in the case to show that any fraud has been played by the defendants in execution of the sale deed by the original plaintiff.

In such circumstances, the finding of fact recorded by the courts below is neither perverse nor illegal warranting interference in this appeal. No substantial question of law arises for determination in this appeal however, it is hereby dismissed at admission stage.

Certified copy as pr rules.