Jagram vs D.D.C.& Others
2021 Latest Caselaw 4235 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

									AFR
 
Court No.18/Reserved                                                       
 
Case :- CONSOLIDATION No. - 56 of 1994
 
Petitioner :- Jagram
 
Respondent :- D.D.C.& Others
 
Counsel for Petitioner :- M.Afzal,Mohiuddin Khan,Nagendra B.Singh,Nagendra Srivastava
 
Counsel for Respondent :- C.S.C.,Prabhakar Vardhan Chaudha
 

 
Hon'ble Rajnish Kumar,J.

1. Heard, Shri Mohiuddin Khan, learned counsel for the petitioner and Shri P.V. Chaudhary, learned counsel for the opposite party no.2. The opposite party no.1 is the court concerned.

2. This writ petition has been filed challenging the order dated 19.10.1993 passed by the opposite party no.1 by means of which the revision filed by the opposite party no.2 has been allowed.

3. The brief facts of the case are that the petitioner was a Sirdar of the land in dispute i.e. Gata No.25 having area of 70 Biswa. The petitioner applied for Bhumidari rights. On the basis of bhumidhari rights, the petitioner executed the sale deed in favour of the opposite party no.2 on 21.04.1976. On the basis of the said sale deed the opposite party no.2 applied for mutation before the Consolidation Officer. The objection on behalf of the petitioner was filed by his mother Smt. Indra Devi on the ground that her son i.e. the petitioner was minor at the time of execution of sale deed and the sale deed was got executed by fraud and no consideration was paid. The Consolidation Officer rejected the objection of the opposite party no.2 vide order dated 29.01.1978 / 30.01.1978. The opposite party no.2 preferred an appeal before the Settlement Officer Consolidation, which too was rejected vide order dated 17.02.1979. Thereafter the revision was preferred by the opposite party no.2 which has been allowed by the Deputy Director of Consolidation i.e. opposite party no.1 on 19.10.1993, hence the present writ petition.

4. Submission of learned counsel for the petitioner was that the petitioner was minor at the time of execution of sale deed and it should have been recorded by the Sub-Registrar but it was not recorded. He further submitted that the petitioner has been shown as minor and Sirdar in 1376 Fasli but the revisional court has failed to consider it. He had also submitted that the evidence of the mother of the petitioner is of great evidentiary value, who had stated that the petitioner was minor at the time of execution of sale deed but it has not been considered. It is a settled proposition of law that the sale deed executed by a minor is void-ab-initio. The concurrent finding recorded by the Consolidation Officer and the Appellate Authority could not have been interfered by the Revisional Authority. Accordingly learned counsel for the petitioner submitted that the impugned order is not sustainable and is liable to be quashed and the writ petition is liable to be allowed.

5. Learned counsel for the petitioner has relied on Mohori Bibee and Another vs. Dharmodas Ghose; (1903) ILR 30P.C.539, Vishwambhar and Others Vs. Laxminarayan (Dead); Appeal (Civil) 554 of 1998 (judgment and order dated 20.07.2001) and Rangammal Vs. Kuppuswami and Another; Civil Appeal No.562 of 2003 ( judgment and order dated 13.05.2019).

6. Per contra, learned counsel for the opposite party no.2 had submitted that the new number of plot in question is plot no.80 / 0-17-0. The petitioner was major and he was twenty years of age on 21.04.1976 i.e. the date of execution of sale deed. There is no provision for recording minority or majority of the executant by the Sub-Registrar. The Revisional Court has rightly considered the case on the basis of material available on record and the evidence. He had also submitted that there was no concurrent finding by the Consolidation Officer and the Settlement Officer of Consolidation. The Consolidation Officer had also found that the petitioner was eighteen years of age at the time of execution of sale deed but the application was rejected on the ground that the application for mutation can not be allowed unless the total amount of consideration is paid and Rs.2,000/- is remained to be paid, whereas non-payment of total sale consideration, though it was paid, cannot be a ground for rejection of mutation application. This point was also neither specifically raised before the Consolidation Officer nor argued but the learned Consolidation Officer had rejected the application on the ground that total sale consideration has not been paid. However, he also submitted that inadequacy of sale consideration does not make the sale itself invalid and it has rightly been considered by the revisional court.

7. He had further submitted that before the Appellate Authority also neither the doubt regarding the thumb impression of the petitioner was raised nor any expert evidence was called but the Appellate Authority on his own, after comparing the thumb impression dismissed the appeal which could not have been done. He had submitted that in fact a compromise was also made between the parties before the Deputy Director of Consolidation in terms of which the petitioner had accepted the execution of sale deed on which the revision was allowed. But subsequently a recall application was moved. The petitioner denied his signature on recall application, the affidavit and 'Vakalatnama'. Accordingly learned counsel for the opposite party no.2 submitted that the revision has rightly been decided by the opposite party no.2 in accordance with law after considering the pleadings and records therefore the writ petition is misconceived and is liable to be dismissed.

8. Learned counsel for the opposite party has relied on Smt. Kilhati Vs. Deputy Director of Consolidation (II) Basti and Another; 1975 RD 280, Thiruvendgada Pillai Vs. Navaneethammal; AIR 2008 SC 1541 and Ram Shakal and Another Vs. State of U.P. and Others; 1987 (5) LCD 261.

9. I have considered the submissions of learned counsel for the parties and perused the record.

10. The petitioner had executed a sale deed of the land in dispute in favour of the opposite party no.2 on 21.04.1976. Thereafter the opposite party no.2 moved an application for mutation on the basis of sale deed on 22.04.1976. It appears that the petitioner gave an affidavit, in which he admitted the execution of sale-deed as per his requirement and it was identified by an advocate on 28.06.1976. This compromise was entered into on 28.05.1976. However an objection was filed by the mother of the petitioner Smt. Indra Devi on 05.07.1976, on the ground that the petitioner was minor at the time of execution of sale deed and the opposite party no.2 has got executed the sale deed in his favour forcibly giving him allurement. Since there was an objection therefore the Assistant Consolidation Officer directed to adduce the evidence. The evidence of the mother of the petitioner was recorded in which she supported her objection. The petitioner was examined by Assistant Consolidation Officer in which he stated his age 21 years. After considering the evidence and material on record the Consolidation Officer rejected the application of the opposite party no.2 on the ground that the sale consideration has been shown as Rs.4,000/- in the sale deed and the opposite party no.2 has accepted that he had purchased the land in Rs.4,000/- but payment of Rs.2,000/- has only been shown in the sale deed and the remaining Rs.2,000/- has not been paid and rejected the application on this ground. However after considering the evidence the learned Consolidation Officer has recorded a finding that the age of the petitioner has been shown as thirteen years in Khatauni of 1376 Fasli to 1378 Fasli and the sale deed was executed on 21.04.1976 i.e. 1383 Fasli as such at the time of execution of sale deed he was twenty years of age and was not minor.

11. The mother of the petitioner had submitted in her statement that the petitioner was two years elder than Mahadev and the age of Mahadev has been shown twenty years in the objection. In this way also the age of the petitioner comes to eighteen years therefore the sale deed can not be said to be illegal or void on this ground. The application of opposite party no.2 could not have been rejected on the ground that total sale consideration was not paid because firstly it was not the case of the petitioner and secondly if it was not paid the same could have been claimed by the petitioner in accordance with law. This Court in the case of Smt. Kilhati Vs. Deputy Director of Consolidation (II) Basti and Another (supra) has held that the sale deed can not be treated as invalid only on the plea that it was for inadequate consideration.

12. The opposite party no.2 had filed the appeal against the order passed by the Consolidation Officer rejecting his application on 30.01.1978. The Settlement Officer Consolidation had rejected the appeal by means of the order dated 17.02.1979 on the ground that the thumb impression of the petitioner does not tally with the thumb impression of the petitioner at the time of registration rather it tallies more or less with the thumb impression of the opposite party no.2 and also considered the ground on which the Consolidation Officer had rejected the application. It has been recorded that some other person was presented at the time of registration and thumb impression was obtained without any evidence or expert opinion in regard to the thumb impression. It could not have been done by the Court itself on his own without any expert opinion or assistance of any evidence. It was also not required because there was no dispute that the sale deed has not been executed by the petitioner. The mother of the petitioner has also admitted that the sale deed has been got executed from the petitioner. The dispute was only regarding age of petitioner at the time of execution of sale deed.

13. The Hon'ble Supreme Court in the case of Thiruvendgada Pillai Vs. Navaneethammal (Supra) has held that where the court finds that the disputed finger impression and admitted thumb impression are clear and where the court is in position to identify the characteristic of finger prints, the court may record a finding on comparison, even in absence of an expert opinion. But where the disputed thumb impression is smuggy, vague or very light the court should not hazard a guess by casual perusal. But no such finding has also been recorded while comparing the thumb impression. The relevant paragraph-15 is extracted below:-

"15. While there is no doubt that court can compare the disputed handwriting/signature/finger impression with the admitted handwriting/ signature/finger impression, such comparison by court without the assistance of any expert, has always been considered to be hazardous and risky. When it is said that there is no bar to a court to compare the disputed finger impression with the admitted finger impression, it goes without saying that it can record an opinion or finding on such comparison, only after an analysis of the characteristics of the admitted finger impression and after verifying whether the same characteristics are found in the disputed finger impression. The comparison of the two thumb impressions cannot be casual or by a mere glance. Further, a finding in the judgment that there appeared to be no marked differences between the admitted thumb impression and disputed thumb impression, without anything more, cannot be accepted as a valid finding that the disputed signature is of the person who has put the admitted thumb impression. Where the Court finds that the disputed finger impression and admitted thumb impression are clear and where the court is in a position to identify the characteristics of finger prints, the court may record a finding on comparison, even in the absence of an expert's opinion. But where the disputed thumb impression is smudgy, vague or very light, the court should not hazard a guess by a casual perusal. The decision in Muralilal (supra) and Lalit Popli (supra) should not be construed as laying a proposition that the court is bound to compare the disputed and admitted finger impressions and record a finding thereon, irrespective of the condition of the disputed finger impression. When there is a positive denial by the person who is said to have affixed his finger impression and where the finger impression in the disputed document is vague or smudgy or not clear, making it difficult for comparison, the court should hesitate to venture a decision based on its own comparison of the disputed and admitted finger impressions. Further even in cases where the court is constrained to take up such comparison, it should make a thorough study, if necessary with the assistance of counsel, to ascertain the characteristics, similarities and dissimilarities. Necessarily, the judgment should contain the reasons for any conclusion based on comparison of the thumb impression, if it chooses to record a finding thereon. The court should avoid reaching conclusions based on a mere casual or routine glance or perusal."

14. This Court in the case of Ram Shakal and Another Vs. State of U.P. and Others (Supra) has held that the court should not take upon himself the task of comparing signatures in order to find out whether the two signatures or writings agree with each other or not. The relevant paragraph-9 is extracted below:-

"9. Thus, where an expert opinion is given, the court must see for itself and with the assistance of the expert's opinion come to its own conclusion whether it can safely be held that the two writings are by the same person, or the signatures appearing on record are of the same person for whom it is said that they put the signatures on the document in question. This would not amount to the court playing role of an expert. The court may accept or reject the expert opinion on the point and record his finding taking into consideration all facts and circumstances of the case. The court would, however, not resort to play role of an expert. The court should not take upon himself the task of comparing signatures in order to find out whether the two signatures or writings agree with each other or not. The prudent course as observed by the Hon'ble Supreme Court in State (Delhi Administration) Vs. Pali Ram (Supra), is to obtain opinion and assistance of an expert."

15. The Hon'ble Supreme Court in the case of Vishwambhar and Others Vs. Laxminarayan (Dead); Appeal (Civil) 554 of 1998 vide judgment and order dated 20.07.2001 has considered the period of limitation in filing a suit for cancellation of sale deed in the case of a minor after attaining the age of majority therefore this case is of no assistance to the case of petitioner.

16. The Hon'ble Apex Court in the case of Rangammal Vs. Kuppuswami and Another; Civil Appeal No.562 of 2003 has considered the question of law "whether the sale deed executed by defacto guardian on behalf of the minor without the permission of the Court could be held to be valid ?" and as to whether the Court can shift the burden of proof on the defendant-appellant regarding the validity of the sale deed which was executed when the appellant was minor contrary to the pleadings of the plaint filed in a suit for partition and the question of limitation therefore this case is also of no assistance to the case of the petitioner.

17. The revision was filed by the opposite party no.2. It appears that the revision was decided on the basis of compromise through advocates entered into between the petitioner and the opposite party no.2 on 16.10.1979. Subsequently an application was moved by the petitioner alleging that the petitioner and his mother had not entered into any compromise. Considering the same the order dated 16.10.1979 was recalled. The said order was challenged in Writ Petition No.474 of 1985 which was decided on 05.09.1990 and thereafter the revision was decided. The revisional court considered the evidence and record and found that the mother of the petitioner had accepted in her objection that the sale deed was executed by the petitioner but since the petitioner was minor at the time of execution of sale deed, therefore the opposite party no.2 had got the sale deed executed forcibly by giving allurement to the petitioner. The age of the petitioner was recorded thirteen years in Khatauni of 1376 Fasli to 1378 Fasli therefore the petitioner was major on the date of execution of sale deed on 21.04.1976 i.e. in 1383 Fasli. It has been recorded that the petitioner had not appeared before Consolidation Officer for his evidence and cross-examination, whereas the statement of petitioner was recorded by the Assistant Consolidation Officer in which he had admitted his age as twenty one years. He never gave any evidence that the sale deed was executed by giving any allurement or forcefully. The petitioner has also not shown his age while filing objection in the revisional court. The revisional court also recorded that there is contradiction in the evidence of the mother of the petitioner and his only other witness Anant Ram. The revisional court after considering the evidence given by the mother of the petitioner in regard to his marriage and the birth of his elder brother Mahadev and difference of age between his elder brother and the petitioner and death of husband of the mother of the petitioner the revisional court came to the conclusion that the petitioner was definitely major at the time of execution of sale deed, which was also accepted by the Consolidation Officer and not interfered by the Settlement Officer Consolidation. Therefore the evidence of the mother of the petitioner is not trust worthy and there is no provision that the Sub-registrar is obliged to record the majority or minority of the executant. This Court is in agreement with the findings recorded by the revisional court and does not find any illegality or error in it. As such the sale deed was not void and the mutation can not be denied. So far as the remaining amount Rs.2,000/- is concerned which is being said not to have been paid to the petitioner, though it does not seem to be the case of the petitioner, the learned revisional court has rightly provided that the petitioner can claim the same by filing a suit.

18. So far as the question of alleged concurrent finding recorded by the Consolidation Officer and the Settlement Officer Consolidation is concerned this court is of the view that there is no concurrent finding because the Consolidation Officer had accepted that the petitioner was major at the time of execution of sale deed but rejected the application merely on the ground that the total sale consideration has not been paid whereas the Settlement Officer Consolidation, without dealing the issue of the age of the petitioner at the time of execution of sale deed, recorded a finding of execution of sale deed by presenting some other person on the basis of tallying the thumb impression taken before him without any expert opinion and also considering the ground of mentioning of lesser cost of property, while it was not the case of petitioner. The mother of the petitioner had also not taken this objection. On the the other hand this Court finds that none of the Court's below has recorded any finding that the petitioner was not major at the time of execution of sale deed. Therefore in fact the concurrent view of the Court's below is that the petitoner was major at the time of executon of sale deed. This court is also in agreement with this view. Therefore the case of Mohori Bibee and Another vs. Dharmodas Ghose; (1903) ILR 30P.C.539, relied by learned counsel for the petitioner is of no assistance to him because it has been held that the contract made by a minor would be void whereas the petitioner was major on the date of execution of sale deed.

19. In view of above this court is of the considered opinion that the learned Revisional court has rightly considered and passed the impugned order dated 19.10.1993 in accordance with law by a reasoned and speaking order. There is no illegality or error in it. Hence this writ petition is misconceived and devoid of any merit and liable to be dismissed.

20. The writ petition is, accordingly, dismissed. No order as to costs.

................................      ....(Rajnish Kumar,J.)
 
Order Date :-22.03.2021
 
Haseen U.