Yashodha Devi, Naresh Kumar, minor through his mother Smt. Yashodha Devi and Others vs Smt. Bhagti and Others

Kuldip Singh, J.—The defendants No. 1 to 6 have filed the present appeal against judgment, decree dated 15.9.2000 passed by learned District Judge, Bilaspur in Civil Appeal No. 29 of 1994, reversing judgment, decree dated 22.12.1993 passed by learned Sub Judge Ist Class, Bilaspur camp at Ghumarwin in Case No. 238-1 of 1992/89. The facts in brief are that respondent No. 1 Bhagti has filed a suit for declaration against the appellants and proforma respondents that respondent No. 1 is owner in possession of suit land as per her share more specifically described in the plaint. The sale deed dated 9.2.1976 is wrong, forged and does not affect the rights of respondent No. 1, mutation No. 180 dated 17.4.1976 is wrong, illegal. The prayer for permanent prohibitory injunction and in alternative for possession has also been made.

The further pleaded case of respondent No. 1 is that respondent No. 1 and her mother Mathru succeeded to Ram Ditta who was father of respondent No. 1 and husband of Mathru. The mother of respondent No. 1 has also executed a Will in favour of respondent No. 1 of her movable and immovable properties on 8.6.1987. The mother of respondent No. 1 had died and respondent No. 1 has inherited her estate on the basis of Will.

It is also the case of respondent No. 1 that she and her mother had never executed any sale deed pertaining to suit land in favour of appellants on 9.2.1976. The sale deed dated 9.2.1976 is wrong, illegal and is based upon forgery and mis-representation. Santokha father of appellants had once obtained thumb impressions of respondent No. 1 and her mother on some papers pertaining to land of Gharat (water mill) but no consideration was paid to respondent No. 1 and her mother. The mutation No. 180 dated 17.4.1976 is wrong, illegal and in-operative over the rights of respondent No. 1. The revenue entries showing appellants in possession as owners of the suit land are wrong and illegal. The appellants have no right, title or interest over the suit land. The respondent No. 1 came to know about the wrong entries on 15.7.1988 when appellants threatened to dispossess respondent No. 1 from the suit land on the basis of false sale deed. It has been pleaded that cause of action has arisen to respondent No. 1 on 15.7.1988.

The suit was contested by appellants by filing written statement. They have taken preliminary objections of maintainability, cause of action, improper court fee, estoppel, limitation. On merits, it has been pleaded that appellants are owners in possession of the suit land on the basis of sale deed dated 9.2.1976. It has been pleaded that sale deed was executed by respondent No. 1 etc. The respondent No. 1 and her mother had sold the land to appellants. It has been denied that thumb impressions were obtained as alleged.

The respondent No. 1 and her mother had received the consideration. The mutation of sale is also correct. The revenue entries in favour of appellants are correct. On the pleadings of the parties, the following issues were framed:-

(i) Whether plaintiff and proforma defendants are entitled for declaration that they are owner over the suit land to the extent of their share? OPP.

(ii) Whether sale deed dated 9.2.1976 allegedly executed by plaintiff in favour of defendants No. 1 to 6 is void and illegal and consequently mutation No. 180 is also null and void? OPP

(iii) Whether the plaintiff is entitled for the relief of permanent injunction? OPP

(iv) Whether in alternative plaintiff is entitled for decree of possession? OPP

(v) Whether suit is not maintainable in the present form? OPD

(vi) Whether the plaintiff has no cause of action?OPD.

(vii) Whether the suit is not valued properly for the purpose of court fee and jurisdiction? OPD

(viii) Whether the plaintiff is estopped by his act and conduct? OPD

(ix) Whether the suit is barred by time? OPD

(x) Relief.

The issues No. 1 to 5 and 9, were answered in negative and issues No. 6,8 and 9 were held in affirmative. The learned Sub Judge dismissed the suit on 22.12.1993. The learned District Judge accepted the appeal and decreed the suit of respondent No. 1 for declaration and consequential relief of possession on 15.9.2000, hence second appeal which has been admitted on following substantial questions of law: -

Whether the District Judge has mis-read and misinterpreted the oral and documentary evidence on record to set aside well reasoned judgment of trial Court and to decree the suit of plaintiff-respondent No. 1 by holding that the transaction in question was result of misrepresentation and fraud and her suit was within limitation?

Heard and perused the records. It has been submitted on behalf of the appellants that learned District judge has mis-read, misinterpreted the oral and documentary evidence. It has been wrongly held that transaction in question was result of mis-representation and fraud. The suit has been wrongly held to be within limitation. The learned trial Court after due appreciation of evidence on record has rightly dismissed the suit. The learned District Judge has erred in decreeing the suit after setting aside judgment, decree of the learned trial Court.

The learned counsel for respondent No. 1 has supported the impugned judgment, decree. He has submitted that the respondent No. 1 was duped by Santokha father of the appellants. The thumb impressions of respondent No. 1 and her mother Mathru were obtained by Santokha and then sale deed was prepared without paying any sale consideration to respondent No. 1 and Mathru. It has been submitted that respondent No. 1 wanted to sell only land of Gharat and nothing else. He has submitted that no fault can be found with the impugned judgment, decree.

PW-1 Bhagti has stated that appellants are her cousins. The property owned by her father after his death came in her possession. She has stated that her mother has executed a Will in her favour. She has not sold the suit land to appellants. She had sold only gharat for Rs. 6000/- . They got so written in the sale deed but payment was not made to her. The sale deed was only for water mill. She has never sold the suit land through sale deed. She has denied that the suit land is in possession of appellants since 9.2.1976. She knows Sukh Ram Pardhan as well as Munshi Ram.

PW-1 further stated that she went to the Tehsildar alongwith sale deed. The sale deed was not read over to her. Mathru her mother was also with her when she appeared before Sub Registrar. She has stated that before Sub Registrar also thumb impressions were taken. Mark-A on Ex. PW-2/A is her thumb impression and mark-B is thumb impression of Mathru. She denied that sale deed was read over by Sub Registrar and only thereafter the sale deed was registered. She has shown her ignorance that her husband was also with her. She however, admitted that name of her husband was Munshi Ram son of Govind. The respondent No. 1 has not examined any other witness.

Munshi Ram son of Govind Ram and Sukh Ram are the witnesses of sale deed Ex. PW-1/A. DW-4 Sukh Ram has stated that the suit land was sold by Bhagti and Mathru to Ram Lal etc. vide sale deed Ex. PW-1/A which bears his signature. The sale deed was written on the instructions of Bhagti. It was read over. About money, they told that they had received the money at their home. The suit land is in possession of appellants. The respondent No. 1 was in sound disposing mind at the time of execution of sale deed.

DW-4 in cross-examination has stated that sale deed was scribed in his presence. Mathru and Bhagti had instructed to prepare the sale deed. He denied that the sale deed was only for gharat but it was for land. DW-1 Ram Kirpal has stated that the suit land was sold by Mathru and Bhagti to them (six brothers) on 9.2.1976 vide sale deed Ex. PW-1/A for Rs. 6000/- and since then they are coming in possession as owners of the suit land. The amount was paid in advance. The mutation was also attested. He has been cross-examined generally but not on sale consideration. DW-2 Balbir Singh is the grand son of petition writer Bakshi Ram. He has stated that sale deed Ex. PW-1/A was scribed by his grand father and he identified his signature. He has stated that his grand father had died. DW-3 Ram Singh has stated that suit land is in possession of appellants.

The respondent No. 1 has stated that she went to the Sub Registrar alongwith sale deed, her mother was also with her. DW-4 Sukh Ram is a witness of the sale deed Ex. PW-1/A. PW-1 Bhagti has admitted her thumb mark as well as thumb mark of her mother Mathru on the sale deed. The respondent No. 1 has also stated that she agreed to sell Gharat land for Rs. 6000/- but Rs. 6000/- was not paid to her but so got written in the sale deed. It indicates that respondent No. 1 knew that in the sale deed it has been written that vendors have received Rs. 6000/- . The sale deed is dated 9.2.1976.

In the plaint there is no averment that mother of respondent No. 1 Mathru was also duped. The respondent No. 1 has projected the case that sale deed has been got prepared by misrepresentation and fraud but it has been proved on record that her husband Munshi Ram is a witness to the sale deed. There is no allegation against Munshi Ram that he also participated in the fraud and mis-representation for preparation of the sale deed. In fact there is no allegation against Munshi Ram. The respondent No. 1 in her statement has not denied the presence of Munshi Ram at the time of execution of sale deed. In absence of any allegation of fraud, misrepresentation against her own husband it is not believable that even husband of respondent No. 1 participated in the fraud, misrepresentation for preparing fake sale deed. In the impugned judgment the learned District Judge has not considered the participation of husband of respondent No. 1 for execution of sale deed Ex. PW-1/A.

The respondent No. 1 has admitted that she and her mother appeared before Sub Registrar and their thumb impressions were also taken before him. There is no allegation against Sub Registrar why he would also participate in the alleged fraud. It is not believable that when respondent No. 1 and her mother appeared before Sub Registrar why he would not read over the sale deed to the vendors and register the document which was the duty of the Sub Registrar. The respondent No. 1 has not examined any other witness in support of her case. No doubt respondent No. 1 is an illiterate woman but there is evidence on record that sale deed was executed by her and her mother which was witnessed by DW-4 Sukh Ram and Munshi Ram husband of respondent No. 1. In the sale deed it has been stated that Rs. 6000/- have already been received by the vendors. DW-1 Ram Kirpal has stated that sale deed was executed for consideration of Rs. 6000/- but this witness has not been crossexamined at all on the point of consideration.

15 The learned counsel for respondent No. 1 has relied Smt. Kartari Vs. Kewal Krishan and Others, and has submitted that Rule of Pardanashin woman applies to illiterate and ignorant woman also. There is no dispute to this proposition. There is no rule of law that illiterate woman cannot execute sale deed. In the present case it has been proved by independent witness that respondent No. 1 and her mother Mathru had executed sale deed Ex. PW-1/A in favour of appellants for consideration of Rs. 6000/- .

The learned District Judge has misconstrued, misinterpreted the evidence. The view taken by learned District Judge is not in consonance with the material on record. The sale deed was executed on 9.2.1976, the mutation was attested on 17.4.1976. The fraud and misrepresentation in executi on of sale deed has not been proved. The suit was filed on 13.2.1989 after more than 13 years. The possession is with the vendees. There is no explanation of inaction of respondent No. 1 against sale deed dated 9.2.1976 for so long when vendees came in possession of land in dispute on the basis of sale deed. The above substantial question of law is decided in favour of appellants. The impugned Judgment, decree are not sustainable.

No other point was urged. In view of above discussion, the appeal is allowed, the impugned judgment, decree are set aside. The suit of the respondent No. 1 is dismissed with no order as to costs.