Chameli Bai vs Goverdhan Th.Lr'S And Ors
2021 Latest Caselaw 463 Chatt

                                   1

                                                                  NAFR
             HIGH COURT OF CHHATTISGARH, BILASPUR
                   Second Appeal No.176 of 2007
    Chemeli Bai, aged 38 years, wife of Ayodhya Prasad
    Soni, caste Soni, resident of village Lamna, P.S.
    Gaurela, tehsil Pendraroad, district Bilaspur (CG)
                                          ­­­­ Appellant/Defendant
                                Versus
  1. Goverdhan,aged 65 years, son of Shri Roopnath,
    Caste Kumhar, resident of village Lamna, P.S.
    Gaurela, tehsil Pendraroad, district Bilaspur (CG)
    (dead)                    ­­­­ Respondent/Plaintiff

Through the legal representatives:­ (1­A) Sita Bai (died and deleted) (1­B) Santoshi Bai, aged 18 years, Caste Kumhar, Resident of village Lamna, P.S. Guarela, tehsil Pendraroad, district Bilaspur (CG)

2. Ayodhya Prasad, aged 45 years, caste Soni, son of Shri Dayaram, resident of village Lamna, P.S. Gaurela, tehsil Pendraroad, district Bilaspur (CG)

3. Mohammad Fakhuruddin (deleted) ­­­­ Respondents

For Appellant/Defendant No.1: Mr.Somnath Verma, Advocate For Respondent No.1­B/LR's of the Plaintiff:

Mr.Rakesh Pandey, Advocate

Hon'ble Shri Justice Sanjay K. Agrawal

Judgment On Board

22/06/2021

1. This second appeal preferred by defendant No.1 was

admitted for hearing on 6.2.2020 by formulating the

following substantial question of law for

determination:­

"Whether the learned Lower Appellate Court was justified in reversing judgment and

decree of the trial Court, admitting evidence against the contents of the sale deed dated 15.03.1999 (Ex.D/1), in the absence of any proper pleading of fraud and evidence in that regard?"

[For the sake of convenience, the parties would be referred hereinafter as per their status shown and nomenclature in the suit before the trial Court].

2. The plaintiff (who died during the pendency of this

second appeal) filed a suit for cancellation of sale

deed dated 15.03.1999 (Ex.P­1/Ex.D­1) by which the

suit land bearing Khasra No.335/1 area 1 acre

situated at village Lamna, District­Pendra Gaurela

Marwahi alleging that though he has sold the land

bearing Khasra No.376/1 area 0.60 acre (60 decimal),

but fraudulently and by playing fraud, defendants

No.1 and 2 have got the suit land bearing Khasra

No.335/1 area 1 acre recorded in sale deed, as such,

the said land was never alienated and in fact, the

land bearing Khasra No.376/1 area 60 decimal has

been alienated, which has been done taking advantage

of his illiteracy and even he is not able to sign in

the papers, as such, sale of the suit land bearing

Khasra No.335/1 area 1 acre is totally fraudulent

act on the part of defendants No.1 & 2 and no title

has been passed in favour of defendant No.1.

Therefore, sale deed dated 15.03.1999 (Ex.P­1/Ex.D­

1) be declared void and decree for permanent

injunction be passed in favour of the plaintiff.

3. Resisting the suit, defendants No.1 and 2 filed

their joint written statement and denied the

averments made in the plaint stating inter­alia that

the plaintiff in open eyes sold the suit land

bearing Khasra No.335/1 area 1 acre on 15.3.1999,

which has duly been recorded in favour of defendant

No.1 and she is in possession of the suit land and

as such, the suit deserves to be dismissed.

4. The trial Court upon appreciation of oral and

documentary evidence available on record, by its

judgment and decree dated 2.8.2001, dismissed the

suit holding that the plaintiff has sold the suit

land bearing Khasra No.335/1 area 1 acre and it has

not been obtained by playing fraud. On appeal being

preferred by the plaintiff, the first appellate

Court reversed the judgment and decree of the trial

Court and granted decree in favour of the plaintiff

holding him to be title­holder of the suit land,

against which, defendant No.1 preferred this second

appeal under Section 100 of the CPC, in which one

substantial question of law has been formulated by

this Court, which has been set­out in opening

paragraph of this judgment for sake of completeness.

5. Mr.Somnath Verma, learned counsel for the appellant/

defendant No.1, would submit that there is

overwhelming evidence available on record to hold

that the suit land bearing Khasra No.335/1 area 1

acre was alienated in favour of defendant No.1 and

the plaintiff has failed to prove any fraud on the

part of defendant No.1 and sale deed (Ex.P­1/Ex.D­1)

has duly been proved in accordance with law, as

such, finding recorded by the first appellate Court

is absolutely perverse and contrary to record.

6. On the other hand, Mr.Rakesh Thakur, learned counsel

for respondent No.1­B/legal representatives of the

plaintiff, would support the impugned judgment and

decree and submit that finding recorded by the first

appellate Court is well reasoned and well merited

which requires no interference that too in appeal

under Section 100 of the CPC and as such, the

judgment and decree of the first appellate Court

deserved to be upheld.

7. I have heard learned counsel for the parties and

considered their rival submissions made hereinabove

and also went through the records with utmost

circumspection.

8. Admittedly and undisputedly, sale deed (Ex.P­1/Ex.D­

1) was executed by the plaintiff in favour of

defendant No.1 on 15.03.1999, in which Khasra

No.335/1 area 1 acre is said to have been alienated

in favour of defendant No.1, but thereafter on

28.10.99 the plaintiff filed the suit that he has

not alienated the suit land bearing Khasra No.335/1

area 1 acre, but he has alienated the land bearing

Khasra No.376/1 area 60 decimal, which the trial

Court did not accept, but the first appellate Court

reversed that finding and decreed the suit of the

plaintiff.

9. It is the stand of defendant No.1 that the plaintiff

did not own the land bearing Khasra No.376/1 area 60

decimal. The plaintiff in para­20 of his cross­

examination has clearly admitted that he only own

the land bearing Khasra No.376/2 area 40 decimal and

the land bearing Khasra No. 376/1 area 40 decimal is

owned by his brother Ramdhan as on own admission of

the plaintiff that on the date of transfer i.e.

15.3.1999 or on the date of suit i.e. on 28.10.99,

the plaintiff was not owner of the land bearing

Khasra No.376/1 area 60 decimal and as such, his

foundation of the suit that he has sold the land

bearing Khasra No.376/1 area 60 decimal has no basis

or his case as projected is not true. Apart from

that, the plaintiff has also admitted the execution

of sale deed in the office of Registrar and also

admitted his sign in the sale deed.

10. Now, the question is whether there is any fraud

played in execution of sale deed dated 15.03.1999

(Ex.P­1/Ex.D­1), which was said to have been

executed by the plaintiff in favour of defendant

No.1 ?

11. In order to prove the execution of sale deed by

the plaintiff in favour of defendant No.1, defendant

No.1 has examined as many as 5 witnesses, two are

official witnesses. Prahlad Dwivedi (DW­1) is

In­charge Sub­Registrar on the date of registration

of sale deed. In para­2, he has clearly stated that

on the date of sale, the contents of sale deed

(Ex.P­1) was explained to the seller and

consideration amount was also informed to him and it

has been admitted by seller and sale deed was

registered in favour of defendant No.1, though he

has been subjected to cross­examine, but nothing has

been extracted to disbelieve his statement in chief.

Similarly, Ayodhya Prasad (DW­2) has stated that the

suit land was also measured by Patwari and Patwari

has also issued the revenue documents showing the

title of the land, which was at that very time suit

land bearing Khasra No.335/1 in favour of the

plaintiff. Similarly, Man Singh (PW­3) is also

villager. He has also stated about the measurement

and revenue documents having been given by patwari

to the plaintiff. Fakhruddin (DW­4) is document

writer. He has clearly stated that at the

instructions of plaintiff­Goverdhan he has drafted

sale deed as per revenue documents (vikri chat) as

well as rin pustika, which the plaintiff has

accepted and thereafter sale deed was executed.

Luklata Prasad (PW­5) is patwari. He has clearly

stated about measurement of suit land, issuance of

revenue documents (vikri chat). He has also stated

that the plaintiff has also shown the land to be

sold in favour of defendant No.1. He has been

subjected to cross­examination, but nothing has been

brought against defendant No.1.

12. Thus, a careful perusal of statements of the

plaintiff and defendant's witnesses would show that

the plaintiff was admittedly not owner of the land

bearing Khasra No.376/1 area 60 decimal on the date

of alienation of sale deed and he was owner and

title­holder of the land bearing Khasra No.335/1

area 1 acre, of which he has obtained revenue

documents from patwari Luklata Prasad (PW­5) before

alienating the suit land and also got the land

measured by defendant No.5 in presence of defendants

witnesses No.2 and 3 and thereafter presented the

document for registration in the office of Sub­

Registrar to which Prahlad Dwivedi (DW­1) has

explained the contents of sale to the plaintiff and

after having been accepted he proceeded to register

sale deed in favour of defendant No.1, as such,

there is overwhelming evidence available on record

to hold that the plaintiff has openly and with all

alertness executed sale deed in favour of defendant

No.1 of suit land bearing Khasra No.335/1 area 1

acre, which he was owning at that time and valid

title has been transferred in favour of defendant

No.1, as such, the first appellate Court is

absolutely unjustified in holding that the plaintiff

has not transferred the suit land bearing Khasra

No.335/1 area 1 acre in favour of defendant No.1.

13. On the basis of aforesaid discussion, I am

unable to sustain the judgment and decree of the

first appellate Court and accordingly, it is set­

aside and that of the trial Court is hereby restored

meaning thereby the suit filed by the plaintiff

would stand dismissed.

14. The second appeal is allowed to the extent

indicated hereinabove leaving the parties to bear

their own cost(s).

15. Appellate decree be drawn­up accordingly.

Sd/-

(Sanjay K.Agrawal) Judge B/­