Vijay Luxmi vs Shyamadhar Kaushik and Others

Rakesh Kumar Garg, J.—Appellant filed the instant suit claiming the following relief:

A decree for declaration declaring the plaintiff owner and in possession to the extent of her share in the suit land mentioned in the para No. 3 of the plaint and further the impugned release deed No. 3496 dated 05.07.2004 mutation sanctioned thereupon and subsequent revenue record are illegal, null and void, not binding on the rights of the plaintiff and does not confer any right or title in favour of the defendants and are liable to be set aside with costs may kindly be passed. It is further prayer that a decree of permanent injunction in favour of the plaintiff and against the defendants restraining the defendants from interfering into the joint possession of the plaintiff over the suit property to the extent of her share and alienating any part of the suit land to the extent of the share of the plaintiff in the suit land be passed.

The suit was contested by the defendant-respondents by denying the averments made in the plaint. It was stated that on 05.07.2004, the plaintiff-appellant and her another sister namely Vijay Kirti had executed a release deed in favour of the defendant-respondents out of their sweet will.

The trial Court, while dismissing the suit of the appellant, observed as under:

After considering the rival contention of the parties, this Court is of the considered view that the contentions put forth by the plaintiff are not tenable. The plaintiff took plea of fraud to the effect that she was fraudulently misrepresented to execute the documents on the pretext of general power of attorney and in fact release deed was got executed from her. However, the scribe, the attesting witness as well as co-executant i.e. sister of plaintiff, all stated that the impugned release deed was executed voluntarily by both executants and after understanding the contents of the same. Although, there are minor contradictions in the version of scribe, attesting witness and co-executant Vijay Kirti but much significance cannot be attached to the same, as such contradictions are bound to occur due to lapse of time and relative power of perception and remembrance. It is settled principle that the civil suit has to be decided on preponderance of probabilities and considering the version of the plaintiff, her sister Vijay Kirti and the scribe and attesting witness, this Court is of the considered view that the plea of fraud taken by the plaintiff has not been proved. Rather plaintiff miserably failed to show any kind of mis-representation or fraud on the part of the defendants. It is pertinent to note that the release deed challenged by the plaintiff is a registered document and bears the photographs of the executants as well as beneficiaries. Moreover, plaintiff has also failed to show that the suit land was ancestral land. Although, it is admitted by the defendant in his cross-examination that the suit land was ancestral property, but it is a settled law that the plaintiff is still required to prove by way of positive evidence that the land in dispute was ancestral in nature. Plaintiff evidently failed to file any intakhab. Moreover, nothing has been brought on record to show that no release deed can be executed qua ancestral property in a family settlement. As such, this Court is of the considered view that the plaintiff failed to prove that the impugned release deed is a result of any fraud. As such, issues No. 1 to 3 are decided against the plaintiff.

The appeal filed by the appellant against the aforesaid judgment and decree of the trial Court was also dismissed by the lower Appellate Court upholding the findings of the trial Court, taking note of the fact that the impugned release deed is a registered document, the execution of which has been duly proved by the scribe, attesting witness as well as the co-executant of the plaintiff-appellant and it has been established on record that the said release deed was executed by the appellant voluntarily and after understanding the contents of the same.

Even before this Court, while challenging the judgments and decrees of the courts below, learned counsel for the appellant could not refer to any evidence on record of the case to point out any irregularity in the findings of the courts below. The allegations of fraud, as levelled by the appellant, are general in nature. No particulars of fraud and misrepresentation have been provided by the appellant. The courts below, on appreciation of evidence, have recorded a concurrent finding that the allegations of fraud, which are general in nature, are not sufficient to prove the fact that fraud and misrepresentation have been committed by the respondents upon the appellant. Moreover, the due execution of the release deed has been proved on record. In view of the aforesaid findings recorded, this Court is of the opinion that no substantial question of law, as raised in the grounds of appeal, arises in this appeal.

Dismissed.