Sumesar and others vs Mangla

Hari Nath Tilhari, J.—This is defendant''s Second Appeal which arises out of Judgment and decree dated 951985 delivered by Shri V.N. Pandey, I Additional District Judge, Gonda, in Regular Civil Appeal No. 172 of 1981, dismissing the defendant''s appeal from the judgment and decree dated 31881, passed by Shri Niwas Prasad, VIth Addl. Mundf, Gonda in Suit No. 316 of 1979 (Smt. Mangla v. Sumesar & others) decreeing the plaintiffrespondent''s suit for cancellation of the two sale deeds dated 211078 and registered on 211078 and 241078 respectively.

The facts of the case in the nutshell are that plaintiffrespondent Smt. Mangala had filed a suit for cancellation of two saledeeds, both dated 211078 registered on 211078 and on 241078, respectively with respect to properties described in the schedule to the plaint comprising of property mentioned in the list A and B.

The plaintiff case has been that she had neither executed the above mentioned saledeeds in favour of the defendant appellant nor had received any sale consideration from them. The plaintiff averred that she is an illiterate village lady hailing from backward classes and has been in small farmers. The plaintiff has further averred that defendant misrepresented to the plaintiff and gave her allurement that they would get the financial help for her from the Government which is being provided to the people backward classes and to small farmers and, as such, she should accompany them to Gonda Kachahari and brought the plaintiff to Gonda. The plaintiff further averred that the defendant asked the plaintiff to sign certain papers and represented that those papers will be used for pledging the land in order to obtain, secure and get the loan. The plaintiff believed the defendant and signed the documents but the defendant got the sale deeds prepared fraudulently on those papers. The documents and their contents were neither read over nor explained to the plaintiff.

The plaintiff has alleged in the plaint that she did not know of the fraud played and misrepresentation done to her that is, the plaintiff, nor did she know the nature of documents that the defendant got executed except that a mortgage deed was going to be written thereon in order to obtain financial help from the Government. The plaintiff has asserted that documents i.e. sale deeds were neither read over nor were explained to the plaintiff. It was also asserted that no permission requisite under Section 5 of the Consolidation of Holdings Act was obtained from Settlement Officer, Consolidation before the raid deeds were got fictitiously executed. The plaintiff has asserted in clear terms that she has not executed any saledeed in her knowledge, of the land in dispute in favour of the defendant and, as such, the plaintiffrespondent claimed the decree for cancellation, the aforesaid saledeeds which have been mentioned in detail in the schedule of the plaint.

The plaintiff has further alleged that when on the basis of the said documents, defendant interfered with the plaintiff''s possession over the land claiming themselves to be the owners then the plaintiff got the records of the Registrar Office inspected and then could know about the correct facts and position.

The defendant contested the plaint case and in their written statement asserted that the plaintiff had executed the sale deeds in question with sound mind, understanding, knowingly and willingly and had delivered possession of suit land for cash consideration of Rs. 16,000 on 21101978. The defendant asserted that on the date the saledeeds were executed permission was demanded which the plaintiff was not able to produce, so registration of Second saledeed was stopped and subsequently the permission was obtained on 231078 whereafter the second saledeed had been registered i.e. on 241078, as earlier thereto there had been no permission of the Settlement Officer of Consolidation for sale of the said property. The defendant had also taken plea that the plaintiff was not in possession of the land in dispute on the date of suit so the suit was not maintainable. The plea of jurisdiction was also raised to the effect that as the land is agriculture land as such the suit was not maintainable in the Civil Courts in view of provisions of Section 33 of the U.P.Z.A. and L.R. Act.

The trial court framed the following issues:

Whether in view of the allegations made in paragraphs 24 & 25 of the written statement, the present suit is not cognizable by Court i.e. Civil Court ?

Whether the disputed saledeeds are liable to be cancelled in view of the allegations contained in paragraph 7 of the plaint?

Whether the plaintiff is not in possession of the land in dispute as alleged in para 26 of the written statement?

To what relief, if any, is the plaintiff entitled?

The trial court after having considered the evidence produced by the parties held as follows:

(a) That the disputed saledeeds had been procured by the defendant after having played fraud on the plaintiff as well as by playing misrepresentation.

(b) That the saledeeds in question are barred by S. 5(c) of the Consolidation of Holdings Act as no prior permission to execute the saledeeds have been obtained by the Competent Authorities and so saledeeds are invalid and, as such, the impugned saledeeds are liable to be cancelled.

(c) That the plaintiff is in possession of the land in dispute.

(d) That the suit is cognizable by the Civil Court vide order dated 22180,

With these findings the learned trial court i.e. Additional Munsif, i.e. VIth Addl. Munsif, Gonda, decreed the plaintiff''s claim for cancellation of the two above noted sale deeds.

Feeling aggrieved therefrom the defendantappellant preferred the Regular Civil Appeal No. 172 of 1981 (Sumeshwar & others v. Smt. Mangold). That by judgment and decree dated 9585, the learned District Judge held that defendant had failed to prove that due and proper execution of the saledeeds as defendant failed to produce the attesting witnesses of deed to prove the execution thereof. The Court held that the plaintiff has been a village illiterate woman and she was entitled to protection Of law. The Court relied on her statement that deeds were not read over to her and the said deeds the result of the misrepresentation as pleaded. The Court further held that deeds to be illegal and cancelled them on the ground that no prior permission was taken before the execution of those deeds, apart from the fact the due execution of the deed was not proved and instead the said saledeeds were result of the misrepresentation. With these findings, the lower appellate court has dismissed the defendant''s appeal and has affirmed the trial court decree.

Feeling aggrieved from the Judgment and decree of the First Appellate Court, the defendant has preferred the Second Appeal.

I have heard the learned Counsel for the appellant Shri Hari Shanker Sahai as well as Shri I.B. Singh, learned Counsel for the respondent at some length.

The learned Counsel for the appellant has argued before me that the suit was not maintainable in the Civil Court and was barred by S. 331 of U.P.Z.A. & L.R. Act. I find there is no substance in this contention of the learned Counsel for the appellant.

In the present case as per plaint allegation, the plaintiff''s case is that the impugned saledeeds have been obtained by misrepresentation and fraud and, as such, it is a case of a saledeed which may be said to be voidable and even if the sale deed is void, the plaintiff has right to file the suit for cancellation of the saledeed in view of the provisions of Section 31 of the Specific Relief Act.

Under Section 31 of the Specific Relief Act it is provided that

�any person against whom a written instrument is void or voidable, and who has reasonable apprehension that such instrument, if left Outstanding may cause him serious injury, may sue to have it adjudged void or voidable and the court may, in its discretion, so adjudge it and order it to be delivered up and cancelled.

Sub section 2 further provides that if the instrument has been registered under the Indian Registration Act, the Court shall also send a copy of its decree to the Officer in whose office the instrument has been so registered and such officer shall rote on the copy of the instrument contained in his books the fact of its cancellation.�

Considering the provisions of Section 31 Specific Relief Act and Section 331 of U.P. Z. A. & L. R. Act, this Court, in the cases of Indra Deva v. Ram Pyari, reported in (1982 ALJ 1308) and the case of Ram Padarath v. II Addl. District Judge (1988(6) LCD 565) has laid down the law to the effect that the suit for cancellation of saledeed whether void or voidable is maintainable in the Civil Court. Their Lordships in Ram Padarath (Supra) have laid down the law to the following effect.:

�We are of the view that the case of Indra Deva v. Smt. Ram Pyari, 1982 ALJ 1308 has been correctly decided and said decision requires no consideration, while Division Bench Case in Dr. Ayodhya Prasad v. Gangotri is regarding the jurisdiction of consolidation authorities but so far as it holds that suit in respect of void documents will lie in Revenue Court it does not lay down a good law. Suit and action for cancellation of void documents will generally lie in Civil Court and a party cannot be deprived of his right getting this relief permissible under law except when a declaration of right of status is necessarily needed in which even relief for cancellation will be surplusage and redundant. A recorded tenure holder having primafacie title in his favour can hardly be directed to approach the Revenue Court in seeking relief for cancellation of void document which made him to approach the Court of law and in such case he can also claim ancillary relief even though the same can be granted by the Revenue Court.�

In the case of Bismiliah v. Janeshwar Prasad reported in [1990 (II) LCD 536 (SC)] the Supreme Court has followed with affirmance the view and law laid down in Ram Padarath''s case.

In this view of the matter there is no substance in this contention of the learned Counsel for the appellant, and I hold that the suit for cancellation of sale deed did lay in Civil Court and that section 331 of U.P.Z.A. & L.R. Act did not bar it. Learned Counsel further contended that the finding of the court below that the deed has been obtained by misrepresentation and fraud and that the plaintiff did not execute the saledeed with full understanding is incorrect and is liable to be set aside and that learned court below wrongly held that the saledeeds were without consideration and further that they were not real over aid explained to the plaintiff vendor. This is a question of appreciation of evidence.

The learned courts below have taken into consideration the evidence on record and after detailed consideration of the evidence on record the court below arrived at the conclusion that the saledeed had been obtained by fraud & that it has not been proved that the deed was read over and explained to the plaintiffrespondent who was an illiterate village lady, and as the attesting witnesses of the deed have not been produced. The court below relied on the statement of the plaintiff and her witnesses as well as the circumstantial evidence emerging from the record. This is a finding based on appreciation of evidence on record and the concurrent finding of fact recorded by the two court below is binding on the parties in Second Appeal. It has not been shown that the said finding suffered from any error of law. A finding of fact howsoever erroneous it may be if it is based on consideration, appreciation of the evidence on record it cannot be interfered with in Second Appeal and, as such, the appeal is concluded by finding of fact.

The last submission of the learned Counsel for the appellant has been that no prior permission has been a requisite under Section 5(a) of the Consolidation of Holdings Act for executing the saledeed and that finding of court below to that effect saledeed was illegal for want of prior permission suffered from error of law is without substance in view of Clause c of sub section (1) of Section 5 of the Act. Section 5 of the Consolidation of Holdings Act reads as under:

(a) �������.

(b) �������.

(c) notwithstanding anything contained in the U.P. Zamindari Abolition and Land Reforms Act 1950, no tenureholder except with the permission in writing of the Settlement Officer, Consolidation, Previously obtained shall

(i) use his holdings or any part thereof for purposes not connected with agriculture, horticulture or animal husbandry including pisciculture and poultry farming; or

(ii) transfer by way of sale, gift or exchange his holding or any part thereof the consolidation area.

PROVIDED that a tenureholder may continue to use his holding, or any part thereof, for any purpose for which it was in use prior to the date specified in the notification issued (under sub section (2) of section 4).

A perusal of Clause c of sub section (1) of section 5 of Consolidation of Holdings Act per se show that it uses the expression �except that the permission in writing of Settlement Officer of Consolidation, previously obtained.�

It is a golden rule of interpretation of statutes that the intention of the legislature is to be gathered from the expressions and language used in the Section. The use of expression �previously obtained� clearly indicates in accordance with the scheme of that section there is a bar against transfer by sale, gift or exchange of the holding, or any part thereof by a tenure holder and no tenure holder can make the transfer during the operation of notification of Section 4(2) of the Act except after having previously obtained the permission in writing of Settlement Officer of Consolidation. The use of expression �previously obtained� per se shows that permission of the Settlement Officer of Consolidation has to be obtained before executing the saledeed or before making the transfer either by sale or gift, and registration is not very material so far as the question of obtaining permission previously is concerned because in case where the transfer is for less than the sum of Rs. 100 there may be no need for registration, as such if transfer is to be made by sale, gift or exchange of the holding or any part thereof whether by registered documents or otherwise before executing or making the same, the person making transfer i.e. tenure holder has to obtain the previous permission of Settlement Officer of Consolidation and any transfer is made in breach of the provision i.e. without previously obtaining the permission of the Settlement Officer of Consolidation will be invalid & unauthorised one being barred by the provisions of the Consolidation of Holdings Act. A saledeed made without permission under Section 5(c) of the Consolidation of Holdings Act in view of Section 45A(2) of that Act is illegal and would be void. Thus considered I am of the opinion that the learned court below rightly held that a saledeed executed without previously obtaining permission is illegal and void. No other point has been pressed. .

Having thus considered, I find the Second Appeal has got no force and so it is hereby dismissed. Costs of the Second Appeal are made easy.

(Appeal dismissed.)