Shitla Prasad vs Banwari (Since Dead) And Others
2013 Latest Caselaw 6734 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
Reserved on 31.05.2013
 
Delivered on 30.10.2013
 
Court No. - 34
 
Case :- SECOND APPEAL No. - 111 of 2010
 

 
Appellant :- Shitla Prasad
 
Respondent :- Banwari (Since Dead) And Others
 
Counsel for Appellant :- T.N. Tiwari, Manish Goyal
 
Counsel for Respondent :- O.P. Shukla,Akhilesh Kumar,Anil Sharma,Prashant Pandey,Rajendra Singh, Rakesh Pande
 

 
Hon'ble Sudhir Agarwal, J.

1. This is defendant's appeal under Section 100 C.P.C. This Court formulated following substantial questions of law after hearing under Order 41 Rule 11 C.P.C.:

"i. Whether the lower Appellate Court is justified in reversing the findings of Trial Court that plaintiff failed to prove fraud warranting cancellation of sale deed and reasoning given by lower Appellate court are founded on legally admissible evidence?

ii. Whether the plaint disclose requisite facts needed to be pleaded for making a case of fraud?"

2. Sri Manish Goyal, Advocate, has made his indepth threadbare arguments covering the entire aspects of the matter relevant for adjudication of the aforesaid questions of law with great ability, and, Sri Anil Sharma, learned counsel appearing for respondents, has met the plaintiff's case by advancing his arguments with a similar ability and that is how both the sides have placed enough material as also a number of precedential authorities to make it convenient for this Court to arrive at a just conclusion.

3. Now before proceeding further, I find it appropriate to have a brief factual matrix of the entire litigation, which would be of much help for correct appreciation of the legal issues.

Plaint case:

4. Banwari, son of Sukhdev, now deceased and substituted by his legal heirs, i.e., plaintiffs (respondents in this appeal), held a land comprising plot no. 705 area 24 dismal, situate on the main road leading from Varanasi to Baluwa, falling in Gaura Bazar. He got ownership rights pursuant to a sale-deed dated 23.9.1974, executed by earlier owner Smt. Kumari Devi, wife of Lakhnu Sav. The old Bandobast Arazi number of disputed land was 299/2 area, 25 dismal. The land had its commercial value. The plaintiff, Banwari, got ten permanent shops constructed on the road side, over disputed land. The shops were let out to various persons on rent. There was vacant land on the back side of shops which was surrounded by a boundary wall made of bricks and on the western side of the wall, an iron gate was installed. The land on the back side of shops was not used for any agricultural purpose. The defendant-appellant had a shop on eastern corner, north facing, to plot no. 705, appurtenant to road. He, however, was facing problem for residential accommodation. He requested for two dismal of land from plaintiff Banwari for consideration of Rs. 24,000/- which was acceded to by plaintiff and possession was given to him. The defendant-appellant constructed a Kothari and started enjoyment of land, given in his possession, with the promise that sale-deed shall be executed in August' 1995, by which time, he shall arrange requisite funds. On 23.8.1995, both the parties went to registry office, executed sale deed for a consideration of Rs. 24,000/-, in respect of land measuring 2 dismal only. The actual handing over of consideration amount did not take place since defendant-appellant promised to pay aforesaid amount at the residence, and, plaintiff, believing on such promise, executed sale deed.

5. Since then, neither any amount was paid by defendant-appellant nor he vacated disputed land. Instead, he proceeded to extend possession over the entire land measuring 24 dismal. Consequently, Original Suit No. 360 of 1996 was instituted by Banwari, vide plaint dated 9.4.1996, wherein he levelled allegation of fraud in the registered sale deed. He said that page mentioning area of land under transaction, was replaced by another page, wherein area was mentioned as 24 dismal instead of 2 dismal. This fraud is sought to be proved on the basis of application form and affidavit submitted in registry department, before execution of aforesaid sale-deed in which area mentioned was 2 dismal. Plaintiff claims himself an illiterate, aged, old and sick man and hence had suffered fraud committed by defendant.

6. The suit was filed seeking a declaration of sale deed dated 23.8.1995 registered on 6.10.1995 as illegal and non est, and for cancellation thereof. An injunction was also sought against defendant claiming any right on the basis of aforesaid sale deed.

7. During pendency of aforesaid suit, plaintiff Banwari died on 16.12.1998 and his legal heirs, thus, were substituted.

8. The suit was contested by defendant-appellant filing a written statement in which all allegations were denied. He pleaded that sale deed was executed for 24 dismal area and there is no forgery etc. in the sale deed, as averred by plaintiff.

9. The then 4th Addl. Civil Judge (Senior Division) Varanasi, i.e., Trial Court (hereinafter referred to as "TC"), formulated 10 issues, and relevant issues no. 1, 2, 5, 6, and 9 as under:

1- D;k oknh okn i= ds dFkukuqlkj fookfnr nLrkost cSukek dks fujLr djok ikus dk vf/kdkjh gS\

2- D;k oknh fookfnr Hkwfe dk ekfyd o dkfct gksus ds dkj.k izfroknh }kjk fdlh gLr{ksi dks jksdok ikus dk vf/kdkjh gS\

5- D;k nkok /kkjk 34 fof'k"V vuqrks"k vf/kfu;e ls ckf/kr gS\

6- D;k oknh dks nkok izLrqr djus dk vf/kdkj gS\

9- D;k nkSjku eqdnek izfroknhx.k }kjk fookfnr Hkwfe ij dksbZ fuekZ.k djk;k x;k gS ;fn gka rks izHkko\

English Translation by the Court:

"1. Whether the Plaintiff is entitled to secure cancellation of the disputed sale-deed as claimed in the plaint?

2. Whether the Plaintiff being owner and in possession of the disputed land is entitled to get any interference of the defendant restrained.

5. Whether the claim is barred by Section 34 of Specific Relief Act.

6. Whether the Plaintiff has a right to institute the claim.

9. Whether any construction on the disputed land has been carried out by the defendants during pendency of the case. If yes, its effect.

10. The Issues no. 3, 4 and 10 relating to jurisdiction, Court fee etc. were decided as preliminary issues in favour of plaintiff, vide orders dated 19.7.1997 and 16.7.2008, which subsequently formed part of judgment and decree dated 19.8.2009.

11. The real substantial issues no. 1 and 2, were returned in negative, i.e., against plaintiff. Consequently, vide judgment and decree dated 19.8.2009, the TC dismissed the suit. Aggrieved thereto, plaintiff preferred Civil Appeal No. 88 of 2009, which has been decided vide judgment and decree dated 11.12.2009, by Sri Umesh Chandra Sharma, Additional District Judge, Court No. 9, Varanasi, i.e., Lower Appellate Court (hereinafter referred to as "LAC").

12. LAC partly allowed appeal and sale-deed dated 23.8.1995, registered on 6.10.1995, has been held valid insofar as it transfers title in the property in dispute, to the extent of 2 dismal, but, in respect of 22 dismal of arazi no. 705, the sale deed has been held illegal and non est. The LAC has issued a permanent/mandatory injunction against defendant-appellant from interfering in the possession, etc., of arazi no. 705 area 22 dismal, and direction has also been issued to demolish construction raised thereon and handing over possession of that part of land to plaintiffs.

13. Sri Manish Goyal contended that the plaint lacks material particulars, in respect whereto the matter has been examined by LAC it has formed opinion in favour of plaintiff so as to reverse findings of TC. The degree of proof required in a case alleging fraud was neither discharged nor evidence adduced, yet LAC, has recorded a finding and thus committed manifest error. The finding recorded by LAC is not supported by evidence. A registered sale-deed carries a presumption in respect of various steps underwent by registry authorities. To unfold and rebut such presumption, requisite evidence and material is not on record. Hence, findings recorded by LAC is not founded on valid or admissible evidence, or any evidence whatsoever. In respect of attestation and inadequate consideration, relevant aspects have not been taken into consideration by LAC and, therefore also, its finding is vitiated in law. The same argument he advanced to contend about collusion with registry officials. Reliance is placed on Ramesh B. Desai Vs. Bipin Vadilal Mehta AIR 2006 SC 3672, Ranganayakamma & Anr. Vs. K.S. Prakash AIR 2009 SC (Supp) 1218, Bishundeo Narain Vs. Seogeni Rai AIR 1951 SC 280, Narayanan Chettyar Vs. Official Assignee, High Court Rangoon AIR 1941 PC 93, Kumar Harish Chandra Singh Deo Vs. Bansidhar Mohanty AIR 1965 SC 1738, Jai Narain Parasurampuria (Dead) & Ors Vs. Pushpa Devi Saraf and Ors.(2006) 7 SCC 756, Varanasaya Sanskrit Vishwavidyalaya Vs. Dr. Rajkishore Tripathi AIR 1977 SC 615.

14. Besides, he also cited Phipson on Evidence (Sixteen Edition), Chapter 6, Page 55 to show degree of proof required to sustain a plea of fraud. He contended that even if every thing goes in favour of plaintiff and it is held that there are certain pages in the sale-deed, which raise a serious doubt, and those pages are ignored, the rest of deed itself would show that transaction subjected thereto was for the entire piece of land and not for only 2 dismal, as pleaded by plaintiff.

15. Sri Anil Sharma, learned counsel for respondents (plaintiff), defending judgment of LAC, referred to Order 6 Rule 2 stating, if certain facts are pleaded, and, founded thereon, an issue is raised and evidence adduced, it cannot be said that the plaint suffers defect of lack of material facts. He drew my attention to Registration Rules, and in particular, Rule 87-A, 88, 200 and 328B and urged that a perusal of registered document shows that sale deed sought to be executed between parties was only for 2 dismal of land, but, subsequently, by committing forgery and manipulation, certain papers were changed, and, instead of 2 dismal, it was made for entire 24 dismal. Since fraud vitiates everything, LAC has rightly reversed finding of TC, after discussing entire material on its own which is based on valid piece of evidence and both questions need be answered in favour of plaintiff. He argued that a finding of fact has been recorded by LAC which is neither perverse nor based on no evidence, therefore, no interference would be justified in an appeal under Section 100 C.P.C. He placed reliance on Prasad Vs. V. Govindaswami Mudaliar AIR 1982 SC 84, Indian Bank Vs. M/s. Satyam Fibres (India) Pvt. Ltd. JT 1996 (7) SC 135, State of Andhra Pradesh Vs. T. Suryachandra Rao AIR 2005 SC 3110, Ramesh Kumar and Anr. Vs. Furu Ram and Anr. JT 2011 (9) SC 505.

16. First of all I would like to advert to a basic question raised by Sri Goyal, learned counsel for appellant, that the material particulars needed to be pleaded in a case founded on 'fraud' are lacking in the plaint, and, therefore, LAC was not justified in decreeing the suit by holding sale-deed in question, illegal in respect of the disputed land to the extent of area of 22 dismal.

17. The term "fraud" has been defined in Section 17 of Indian Contract Act, 1872 (hereinafter referred to as "Act, 1872") as under:

"17. Fraud" defined.- "Fraud" means and includes any of the following acts committed by a party to a contract, or with his connivance, or by his agent, with intent to deceive another party thereto or his agent, or to induce him to enter into the contract:- (1) the suggestion, as a fact, of that which is not true, by one who does not believe it to be true;

(2) the active concealment of a fact by one having knowledge or belief of the fact;

(3) a promise made without any intention of performing it;

(4) any other act fitted to deceive;

(5) any such act or omission as the law specially declares to be fraudulent.

Explanation - Mere silence as to facts likely to affect the willingness of a person to enter into a contract is not fraud, unless the circumstances of the case are such that, regard being had to them, it is the duty of the person keeping silence to speak, or unless his silence is, in itself, equivalent to speech."

18. In Derry Vs. Peek-(1986-90) All E.R. Reporter 1, what constitute fraud was described as under:

"Fraud is proved when it is shown that the a representation has been made (i) knowingly, or (ii) without belief in its truth, or (iii) recklessly, careless whether it be true or false".

19. It is stated when a document has been forged, it amounts to a fraud. In Webster's Comprehensive Dictionary, International Edn., ''forgery' is defined as:

"The act of falsely making or materially altering, with intent to defraud; any writing which, if genuine, might be of legal efficacy or the foundation of a legal liability."

20. Thus forgery is false making of any written document for the purpose of fraud or deceit. Its definition has been quoted with approval in Indian Bank Vs. Satyam Fibres (India) Pvt Ltd. (1996) 5 SCC 550 (Paras 26 and 27). The Apex Court in para 28 has said that fraud is an essential ingredient of forgery. It further held:

"since fraud affects the solemnity, regularity and orderliness of the proceedings of the court and also amounts to an abuse of the process of court, the courts have been held to have inherent power to set aside an order obtained by fraud practiced upon that court. Similarly, where the court is misled by a party or the court itself commits a mistake which prejudices a part, the court has the inherent power to recall its order."

21. In the action in law making out a case of fraud, special provisions have been made, taking care that a person who suffers fraud played upon him, if not provided special benefits in the matter of limitation etc, is bound to suffer for the reason that an allegation of fraud can come only when it becomes known to the person who suffers such fraud. I find that not only in the Act, 1872, separate provisions are there to deal with the issues pertaining to fraud, but in the Code of Civil Procedure (hereinafter referred to as "CPC") and also the Limitation Act, 1963 (hereinafter referred to as "Act, 1963") sufficient provisions have been made as to how one shall plead a case founded on fraud. Extension in the matter of limitation in such cases is also provided under Act, 1963.

22. Order 6 deals with pleadings in general. Rule 2 thereof requires that the pleading shall contain statement in concise form of the material fact on which the party, pleading fraud, relies for his claim. It need not to plead evidence by which the material facts needed to be pleaded are to be proved. Then in respect of cases involving grounds of fraud or misrepresentation, there is a specific provision, i.e. order 6 Rule 4, which reads as under:

"4. Particulars to be given where necessary.- In all cases in which the party pleading relies on any misrepresentation, fraud, breach of trust, wilful default, or undue influence, and in all other cases in which particulars may be necessary beyond such as are exemplified in the forms aforesaid, particulars (with date and items if necessary) shall be stated in the pleading."

23. Sri Goyal contended that the requirement of Rule 4 is that the plaintiff must have pleaded, how, on which date, when and who was instrumental and did commit fraud and the modus operandi thereof. He said, since all these pleadings are absent, therefore here is a case where there was no material pleading with respect to the facts constituting the allegation of fraud.

24. Considering Order 6 Rule 4 CPC in Sangramsing P. Gaekwad and others Vs. Shantadevi P. Gaekwad and others (2005) 11 SCC 314, the Court said that the plaintiff is bound to give particulars of the case where he relies on misrepresentation, fraud, breach of trust etc. The particulars of alleged fraud, which are required to be stated in the plaint, will depend upon the facts of each particular case and there cannot be a thumb rule.

25. In Ramesh B. Desai and others Vs. Bipin Vadilal Mehta and others 2006 (5) SCC 638, the Court in reference to Order 6 Rule 4 said that complete particulars of fraud shall be stated in the pleadings. The particulars of alleged fraud, which are required to be stated in the plaint, will depend upon the facts of each particular case and no abstract principle can be laid down in this regard.

26. In Ranganayakamma and another Vs. K.S. Pakash AIR 2009 SC (Supp) 1218, the execution of power of attorney was sought to be assailed on the ground that it was prepared fraudulently. It was pleaded that defendants therein used to take signatures of plaintiffs on the misrepresentation that the same were required for payment of tax and managing properties. Due to faith, the plaintiffs had in their brothers, they used to sign. The power of attorney was executed by playing a fraud and taking advantage of innocence and ignorance of the sisters. It was executed in the Office of an Advocate and on the basis of said fraudulent misrepresentation, defendants got a deed of partition executed subsequently. Considering the nature of allegations, Court found that the plea of fraud was general in nature and vague. It was alleged that signatures were obtained on several papers on one pretext or other and they have signed in good faith believing the representations made by respondents, which, in fact was a fraudulent representation. However, when such representations were made, what was the nature of representation, who made the representations and what type of representations were made are some of the material fact which were not stated. Similarly the document were signed either in the office of Advocate or before the Sub-Registrar, i.e., at public place and signatures were not obtained on blank papers. That being so, the onus was upon the plaintiffs to show, who had taken advantage and at what point of time, but all these facts were not pleaded. The Court found statement of plaintiffs farfetched and beyond ordinary human conduct. It is in these facts, Court said that in absence of any particulars, having been furnished with respect to fraud and misrepresentation, the documents in question would not be void.

27. In Bishundeo Narain and another Vs. Seogeni Rai and others AIR 1951 SC 280, the Court said that in case of fraud, undue influence and coercion, the party's pleadings must set forth full particulars. The case can only be decided on the particulars as laid. There can be no departure from them in evidence. General allegations are insufficient even if amount to an averment of fraud of which any Court ought not to take notice howsoever strong the language in which they are couched may be.

28. In Ramesh B. Desai (supra), the kind of pleadings for the purpose of order 6 Rule 4 has been highlighted and it would be useful to quote para 19 thereof as under:

"19. Undoubtedly, Order VI Rule 4 CPC requires that complete particulars of fraud shall be stated in the pleadings. The particulars of alleged fraud, which are required to be stated in the plaint, will depend upon the facts of each particular case and no abstract principle can be laid down in this regard. Where some transaction of money takes place to which 'A', 'B' and 'C' are parties and payment is made by cheques, in normal circumstances a third party 'X' may not get knowledge of the said transaction unless he is informed about it by someone who has knowledge of the transaction or he gets an opportunity to see the accounts of the concerned parties in the Bank. In such a case an assertion by 'X' that he got no knowledge of the transaction when it took place and that he came to know about it subsequently through some proceedings in court cannot be said to be insufficient pleading for the purpose of Order VI Rule 4 CPC. In such a case 'X' can only plead that he got no knowledge of the transaction and nothing more. Having regard to the circumstances of the case, we are of the opinion that the High Court was in error in holding that there was no proper pleading of fraud."

29. In the background of the above exposition of law, I would now look into plaint's averments to find out whether appropriate pleadings with regard to question of fraud have been made by the plaintiff or not. To my mind, the pleadings from para 5 to 17 contain facts alleging fraud in execution of sale deed making it for entire 24 dismal of the land instead of 2 dismal and the same read as under:

"5- ;g fd eqn~nbZ;ku ds Hkw[k.M la[;k 705 ds iwjch fdukjs ds mRrj tkfuc lM+d dh iVjh ls yxs eqn~nkysg dh futh nqdku gS] vkSj mls jgkb'k dh osgn fdYyr Fkh blfy, mlus vius ihNs fLFkr eqn~nbZ;ku dh -02 fM0 tehu dks vkt ls 3&4 lky igys jgkb'k ds fy, 24][email protected]& ewY; r; djds ekaxk vkSj eqn~nbZ;ku ls vuqu; fou; djds ml ij dCtk dj dksBjh cukdj vkckn gks x;k rFkk xjhch dh ckr dgdj cSukek rgjhj djkus gsrq vkilh O;ogkj o rkYyqd ds vk/kkj ij le; ysrk x;kA

6- ;g fd fdlh rjg fiNys o"kZ vxLr ekg ;kuh vxLr 1995 esa eqn~nbZ;ku ls eqn~nkysg cSukek rgjhj djus dh ckr dgk vkSj ijeh'ku gsrq dqN dkxtkr ij eqn~nbZ dk glrk{kj Hkh djk;kA

7- ;g fd 23 vxLr lu~ 95 dks eqn~nkysg eqn~nbZ;ku ls cSukek rgjhj djkus gsrq mls dpgjh ys x;k rFkk vius vf/koDrk o igys ls cqyk, x, dqN vknfe;ksa dh jk; ls LVSEi vkfn [kjhndj elfonk cuok;k rFkk ml ij eqn~nbZ;ku ds gLrk{kj o vius xokgku ds gLrk{kj djkus ds okn jftLV~h nQ~rj esa izLrqr fd;k rFkk dgk fd iSlk [email protected]& ge yk, gSa ;gka ysdj vki dSls lHkkaysaxs jftLV~kj lkgc ds le{k iSlk feyuk dcwy dj yhft,xk vkSj iSlk ?kj ij xkSjk dyka cktkj esa ys yhft,xkA pwafd nks lky igys gh eqn~nbZ ds nkfgus vax esa Qkfyt dk vlj gks pqdk Fkk vkSj og nkfgus gkFk ls fy[kuk ;k vU; dksbZ dk;Z Hkh ugha dj ldrk Fkk blfy, vkSj vius lkFk vU; dksbZ ?kj dk u gksus dh otg ls eqn~nkysg dh ckr ij ;dhu djds jftLV~kj ds le{k -02 fM0 tehu 24][email protected]& esa cspuk o iSlk ik tkuk ccwy dj fy;k] vkSj jftLV~h dj fy;k x;kA ysfdu ckn esa ckotwn rdknk eqn~nkysg us vkt rd ,d Hkh iSlk tj oSukek dk ugha fn;k Vky eVksy djrk pyk vk;kA

8- ;g fd cSukek fnukad 23-8-95 ds ckn -02 fM0 tehu ij igys ls dkfct eqn~nkysg us iwjh -02 nks fM0 tehu dks bZV dh dPph okm.Mjh ls ?ksj fy;k vkSj eqn~nbZ us iwjc ls -02 nks fM0 tehu eqn~nkysg dks nsdj lhek ij viuh Hkh okm.Mjh v{kj ;] j uD'kk eqUlfydk vthZukfy'k ds LFkku ij cuk fy;k rFkk 'ks"k -22 fM0 jdos o rkehj ij eqn~nbZ;ku dk rugk osjksd Vksd dCtk ekfydkuk iwoZor pyk vk jgk gSA

8v- ;g fd nkSjku eqdnek oknh ouokjh iq= lq[knso fnukad 16-12-1998 bZ0 dks ekSr dj x;s gSaA e`rd cuokjh ds mRrjkf/kdkjh izkFkhZx.k nsojkt o jk/ks';ke iq=x.k Lo0 cuokjh o pUnzkorh nsoh mQZ pujk nsoh iRuh Lo0 cuokjh gSa vU; dksbZ ifjokj l[t mRrjkf/kdkjh ugha gSA

9- ;g fd ;dk;d fnukad 18-3-96 bZ0 dks eqn~nkysg us jkr dks eqn~nbZ;ku dh pgkj nhokjh ;] j rksM+ fn;k mlds bZV dks [kqn vius lgu esa j[k fy;k vkSj lqcg iwNus ij dgus yxk fd dSlh nhoky dSlh okm.Mjh iwjh tehu esjh gS] vkSj eSus iwjs jdos & 24 fM0 dk oSukek djk fy;k gs] Hkkx tkvksa ugha rks gkFk ikao rksM+ nsxsaA ;g lqudj eqn~nbZ ds iSjks ds uhps dh tehu gh f[kld xbZ vksj mls ?kksj vk'p;Z gqvkA

10- ;g fd mlh fnu eqn~nbZ vius cM+s csVs ds lkFk dpgjh vk;k rFkk jftLV~h nQ~rj esa cSukes dk Jh t;Ur dq'kokgk ,MoksdsV ds tfj;s irk yxk;k rks vkSj Hkh vk'p;Z gqvk rFkk eqn~nkysg ds okLrfod Qjsc o tky lkth dk irk pyk fd mlus jftLV~h nQ~rj esa ckcqvksa dks feykdj vFkok mUgsa Hkh /kks[kk nsdj 02 fM0 okys nLrkost ds i`"B fudky dj mlds LFkku ij nwljk i`"B vly o QksVks LVsV yxk fn;k gs] ysfdu vkuu Qkuu esa eqn~nkysg jftLV~h gsrq izLrqr gksus okys vkosnu ,oa ,d izLrqr 'ki'k i= esa gsjk Qsjh djuk Hkwy x;k ftlesa fodz; lEifRr -02 fM0 gh vafdr gSA

11- ;g fd eqn~nbZ;ku us fnukad 20-3-96 bZ0 dks QthZ cSukesa dh lR; izfrfyfi gsrq vkosnu fd;k rFkk ckn esa vkosnu izLrqr dj lacaf/kr izkFkZuk i= o 'kiFk i= lhy djk fn;k rkfd mls eqn~nkysg u"V u dj lds vFkok dkV ihV u ldsA

12- ;g fd lacaf/kr lc jftLV~kj Jh iVsy us Hkh eqn~nbZ;ku ,oa mlds vf/koDrk ls lacaf/kr tkylkth ,oa Qjsc ij ?kksj vk'p;Z O;Dr fd;k rFkk dkxtkr lhy djds lqjf{kr ykd esa j[k fn;kA

13- ;g fd okLro esa eqn~nbZ;ku us ek= -02 fM0 tehu dh okor gh nLrkost rgjhj fd;k Fkk vkSj jftLV~kj lkgc us Hkh -02 nks fM0 tehu ds fodz; o 24][email protected]& ewY; dh ckr eqn~nbZ ls iwNk Fkk ysfdu eqn~nkysg us jftLV~h gks tkus ds ckn esa nLrkost ,oa mlds QksVks LVsV ist tks fd mlus eqn~nbZ ds yxHkx nks lkS gLrk{kj djkrs le; djk fy;k gksxk] dks -24 fM0 dh okor yxk fn;k vkSj okLrfod -02 okys ist dks fudky fy;kA

14- ;g fd eqn~nbZ }kjk rgjhj fd;k x;k -02 fM0 dh okor cSukek ;|fi fd vkfLrRo esa ugha jg x;k gS] fQj Hkh ;fn cjk; vnkyr -02 fM0 dh okor cSukek ekuk Hkh tk; rks Hkh 'ks"k jdos -22 fM0 dh okor eqn~nbZ;ku dk gd nkok egQwt gSA

15- ;g fd cSukek rgjhj ds le; ijfe'ku izkIr u gksus dh otg ls nLrkost LFkfxr j[kk x;k Fkk blfy, Hkh eqn~nkysg dks tky lkth vkSj Qjsc djus dk t;knk volj feykA

16- ;g fd eqn~nbZ ,d vui<+] o`)] chekj o lh/kk lknk O;fDr gS] blfy, mlus eqn~nkysg ij fo'okl djds mlds }kjk rgjhj o ek= -02 fM0 dh okor cSukek i<+dj lqukus ds dkj.k mlus eqn~nkysg }kjk rS;kj yxHkx 200 i`"Bksa ij viuk gLrk{kj cuk fn;k FkkA

17- ;g fd eqn~nkysg eqn~nbZ;ku dk iM+kslh gS rFkk mlds vfr fo'okl fnykus ds dkj.k eqn~nbZ;ku ml ij fo'okl fd;k ysfdu eqn~nkysg us /kks[kk o Qjsc fd;kA^^

English translation by the Court:

"5. That the defendant has a shop of his own along the roadside to the north of eastern corner of the plaintiffs' plot no. 705. Since he had utter scarcity of residence 3-4 years back, for residential purposes he demanded plaintiffs'.02 Dismal land situated at the back of his own land at the settled rate of Rs. 24,000; and after making entities to the plaintiffs, he settled there by taking possession thereof and raising a 'Kothri' thereon; and on the pretext of his poverty continued to take buy for execution of sale deed on the basis of mutual terms ad relations.

6. That in the month of August last year i.e. August 1995 the Defendant somehow spoke to the Plaintiffs for execution of the sale-deed and also obtained signature of the Plaintiff on some papers for securing permission.

7. That on 23rd August 1995, Defendant took the Plaintiffs to court premises to get the sale-deed executed by them and he, at the instance of his counsel and some other people, already called there, got a draft prepared after purchasing Stamps etc and obtained plaintiffs' signatures and that of the witnesses from his side on it and submitted the same to the Registry Office and said, "We have come with Rs. 24,000/- with us. How will you handle the money if it is paid here in the office? You please admit receipt of money before the Registrar and collect money from us at home in Gaura Kalan Bazaar. Since the Plaintiff had suffered paralysis of the right side, two years ago and was unable to write or even do any other work with his right hand, hence for the said reason and also due to not being accompanied by any person from his home, he by trusting the version of the Defendant admitted to have sold .02 D. land for a consideration of Rs. 24,000/- and to have received the said amount before the Registrar; which led to the registration. But later on, despite requests the Defendant did not make any payment so far towards the sale-deed and has kept on making excuses.

8. That after the execution of the sale deed dated 23.08.1995, the defendant, being already in possession of the .02 land, bounded the whole of the said land by erecting a brick boundary with the help of mud mixture. After giving .02 Di land from the east to the defendant, the plaintiff erected his boundary marked as 'Ya' 'Ra' at the place shown in the enclosed application and the plaintiffs have as usual been enjoying the sole unhindered ownership of the remaining .22 D. area of the land and construction thereon.

8A. That during pendency of the case, the Plaintiff Banwari S/o Sukhdev expired on 16.12.1998. The successors of the deceased Banwari are the applicants Devraj and Radhey Shyam Sons of Late Banwari; and Chanadrawati Devi alias Chanra Devi W/o Late Banwari and that no other family is his successor.

9. That all of a sudden on the night of 18.3.96, the Defendant demolished the boundary-walls 'Ya' & 'R' of the Plaintiffs and himself took its bricks away to his courtyard and on being asked in the morning, he started saying, "Which wall, which boundary are you talking about? The entire land is mine and I have got sale-deed executed of the entire area 24 Di. Go off or else I will break your limbs." On hearing this, the Plaintiff got stunned and utterly surprised.

10. That on the same day the Plaintiff alongwith his elder son came to district court and he was further surprised when he inquired about the sale-deed in the Registry Office through Mr. Jayant Kushwaha, Advocate and he came to know about actual cheating, fraud & forgery committed by the Defendant that he has, with the help of clerks of Registry Office or by cheating even them, removed the pages of 02 Di. document and in its place annexed another page in original with photocopy but the Defendant being in a hurry forgot to tamper with the application and affidavit that were submitted requesting for Registry; and in both these documents sale property .02 Di only is recorded.

11. That on 20.03.96, the Plaintiffs had applied for certified copy of the forged sale-deed and later they on an application got the relevant application and affidavit sealed so that the Defendant may not destroy or alter them.

12. That the concerned Sub-Registrar Mr. Patel also expressed utter surprise to the Plaintiff and his counsel over the fraud, cheating & forgery in question and sealed the papers and put them safely under the lock.

13. That actually the Plaintiff had executed document only for .02 Di land and even the Registrar had also asked the Plaintiff about the sale of .02 Di land and about Rs. 24,000/- only in consideration thereof; but after execution of registry the Defendant had placed a document and its photostat page for 24 Di that he might have got signed by the Plaintiff while getting around 200 signatures and removed the actual page for .02.

14. That the sale-deed for .02 Di executed by the Plaintiff has not remained to be in actual existence; however, if the sale-deed for .02 Di is considered valid by the court even then the claim of the Plaintiffs for the remaining portion .22 Di remains intact.

15. That at the time of execution of the sale-deed, document was kept in abeyance for lack of permission and for this reason as well the Defendant got ample opportunity to commit cheating, fraud and forgery.

16. That the Plaintiff is an illiterate, aged, sick and innocent person. Hence, he placed trust on the Defendant and put his signatures on around 200 pages prepared by the Defendant when the sale-deed only for .02 Di. was prepared by him and the contents thereof were read over to the Plaintiff.

17. That the Defendant is the neighbour of the Plaintiffs; and on his assurances the Plaintiffs placed trust on him. However, he committed cheating & fraud."

30. Thus, the case set up by plaintiff is that the document actually executed was for 2 dismal but subsequent manipulation in the record has changed it to 24 dismal. The modus operandi of above change obviously cannot be expected to be known to plaintiff and therefore, whatever fact he was expected to know or he could have known, are pleaded and rest are to be seen by this Court. It is for this reason and as pleaded also, the record of office of Sub-Registrar and Ceiling Authorities was summoned and sealed. The case set up by plaintiff is that as per his knowledge and understanding, the sale-deed was executed for transfer of 2 dismal of the land in dispute, to the defendant-appellant, but later on, he came to know that the sale-deed actually registered mentions 24 dismal. How it happened, is not very sure but it appears that some manipulation has been done in collusion with registry officials. These facts, considering the kind of fraud pleaded in this case, in my view, would constitute sufficient material facts so as to make a case of fraud and it cannot be said that the material facts are not pleaded. The arguments, advanced otherwise, by Sri Goyal, consequently, are negatived. The question no. 2 is returned in favour of the plaintiff-respondents by holding that though it cannot be doubted that a plaint must disclose requisite facts for making a case of fraud but, in the present case, those facts have been pleaded and hence the requirement of Order 6 Rule 4 is well satisfied. On that account the plaintiff cannot be non-suited.

31. Now I straightway come to question no. 1, which is real and substantial issue in this case. This Court would like to first discuss the evidence, available on record.

32. PW-2 and 4 have admitted that they are in possession of shops as tenants and the plaintiff is the landlord. The Commissioner's report (Paper No. 14C and 15C) prove existence of ten shops, let out to various persons, except one, which is in possession of the plaintiff. Advocate Commissioner has recorded that during his inspection, all the shop keepers/ tenants stated that those shops were constructed by plaintiff and that they are tenants of plaintiff.

33. The sale-deed in question was executed on 23.8.1995 and registered on 6.10.1995. Suit in question has been instituted vide plaint dated 9.4.1996. The earliest Commissioner report and site map are dated 16.4.1996 and 12.4.1996. The Commissioner's report was accepted by the Trial Court and became part of evidence pursuant to Trial Court's order dated 3.2.2003.

34. The sale-deed in question is a registered document. In order to prove forgery therein, sale deed itself along with record of Registry office as also Ceiling Authorities were summoned. The same has also been looked into at this stage so as to find out whether it can be inferred therefrom that the sale-deed in question was actually for two dismal or 24 dismal.

35. Plaintiff filed an affidavit before Sub-Registrar, Varanasi dated 23.8.1995 and in para 2 thereof has stated that he is Bhumidhar and owner of Arazi No. 705 (Old No.299/2) area 2 situated at Gaura Kalan, Pergana Jalhupur, District Varanasi. The aforesaid land was is agricultural and registered as such in the revenue record. Aforesaid land sought to be sold to Shitla Prasad son of Lakhan Sav, who would perform agricultural work therein. An application seeking permission from the Competent Authority, Urban Land Ceiling, Varanasi was also submitted but no permission was received and it was said that as soon as permission is received, the same shall be submitted to the office of Sub-Registrar for transferring the land.

36. The competent authority's letter no. 4484 dated 28.8.1995 is also available for perusal which mentions details of entire property i.e. land no. 705 area 24 dismal. It does not throw any light on the question, whether transfer was contemplated or permission was granted for 2 dismal or 24 dismal. At the bottom, separately words "2 dismal/5.10.95" are mentioned but it does not appear to have been made by the competent authority for the reason that the date on which the competent authority signed the aforesaid document is 26.8.1995 and it was issued on 28.8.1995, therefore mention of above words on 5.10.1995 did not explain any reason and it is also not clear as to who has done it.

37. Now straightway I come to the original sale-deed. It has been written on 91 stamp papers of following denominations:

 
	Value of Stamp Paper		Number of Papers 
 

 
		Rs. 50/-					    89
 

 

38. All the stamp papers have been purchased by appellant Shitla Prasad in his name. The stamp paper worth Rs. 5000/- has been issued from Treasury itself on 22.8.1995. Rest of Stamp Papers have been purchased through Ram Gopal Stamp Vikreta, Diwani Nyayalaya, Varanasi. It is interesting to note that the stamp papers which form part of sale-deed from pages no. 2 to 85 bear sl. No. 4692 to 4775 and the date of purchase mentioned twice, one against the name of purchaser i.e. Shitala Prasad and another under the signature of Stamp Vender and everywhere it is mentioned as 22.8.1995. Then the stamp papers which form part of the sale deed at pages 86, 87, 88 and 89 are from different lot bearing similar number 3495, 3494, 3493 and 3492. The date of purchase mentioned is 19.8.1995. The stamp vender is the same. Then again the stamp paper forming part of the sale deed at page no. 90 went back to original series of 22.8.1995 bearing Sl. No. 4776 which is in continuation of the stamp at page 85 of sale deed. It is also dated 22.8.1995. The last stamp paper of. 5/- rupees denomination bearing sl. No. 4777 is dated 22.8.1995. It is, thus, evident that the entire set of stamp papers were purchased on 22.8.1995 in a running serial but 4 pages, which are now part of original sale deed, i.e. pages 86, 87, 88 and 89, have disturbed the chain and come from a different lot, having been purchased on 19.8.1995, bearing different serial number. I could not find any reason or explanation for this change in the date and serial number of these stamp papers of just four pages which had to be explained by defendants. It is also true that on all these four stamp papers, the date 19 has overwriting. On a careful perusal it appears to be 28.8.1995. Only these 4 pages have overwriting and none else. The area of plot sought to be transferred vide the aforesaid sale-deed is mentioned on page 88 which is one of these four pages. The overwriting also has no initials. Since the documents were purchased by defendant-appellant, he had to explain reason of this change/overwriting etc. and also distinct date and serial number from the otherwise uniform stream of the documents coming in a row.

39. I may look this matter from another angle and consider certain other facts. The defendants knowing it well that the land in question was not being used for agricultural purposes and already construction was raised thereon, yet claims that it is an agricultural land. He also took a stand that construction was raised by him though it has come on record and proved by evidence that the construction was old and could not have been raised by defendants. All these facts show that the conduct of defendant in the entire case was neither straight nor honest. It is true that in respect of market value of the land, over which finding has been recorded by LAC, it may be said that there was no evidence, but the land in question at the time of execution of sale deed was of much higher value, as is evident from the fact that it was transferred for a consideration of Rs. 24,000/- but for the purpose of stamp duty, much higher value has been mentioned and that too when it was taken as agricultural land. It is in these facts, the finding recorded by LAC that value of the land would have been much more than Rs. 24,000/-, it cannot be said that a prudent vender could have sold 24 dismal of land for just Rs. 24,000/-, when almost 20 years back he has purchased the land for a consideration of Rs. 5,000/-. In entirety and the backdrop of all these facts, it cannot be said to be without any evidence or perverse.

40. In view thereof, I do not find that LAC erred in law or otherwise by reversing the finding of the Trial Court. The question no. 1, in my view, deserves to be answered in affirmative and returned accordingly in favour of plaintiff-respondents.

41. In view of above, the appeal, as a consequence, has to fail. It is, accordingly, dismissed.

42. No costs.

Dt. 30.10.2013

PS