[Cites 15, Cited by 0]
Chattisgarh High Court
Shah Mohammad vs (Deleted) Khatija Bai (Died) on 11 March, 2026
Author: Parth Prateem Sahu
Bench: Parth Prateem Sahu
1
2026:CGHC:11764
NAFR
HIGH COURT OF CHHATTISGARH AT BILASPUR
Reserved for Judgment On : 14.10.2025
Judgment Delivered On : 11/03/2026
Judgment Uploaded On : 11/03/2026
SA No. 237 of 2008
1 - Shah Mohammad S/o Fatte Mohammand Aged About 68 Years
2 - Lal Mohammad S/o Fatte Mohammand Aged About 65 Years
3 - Mustaque Mohammad S/o Fatte Mohammand Aged About 62 Years
No.1 to 3 are Residents Of Bindra-Nawagarh, Tehsil Gariyaband, Distt.
Raipur
4 - Mohammad Abdahu Khan (Died) Through Lrs.-
4.-(A) Javed Khan S/o Late Shri Mohammad Abdahu Khan Aged About 56
Years R/o Civil Lines, Gariyabandh, District- Gariyabandh (C.G.)
4. (B) Jubaid Khan S/o Late Mohammad Abdahu Khan Aged About 54 Years
R/o Civil Lines, Gariyabandh, District- Gariyabandh (C.G.)
5 - Abdul Ahmed Khan (Died) Through Lrs.-
5.(A) Jabir Khan S/o Late Shri Abdul Ahmad Khan Aged About 45 Years R/o
Rampur Naddi, Pathanpura, Tehsil- Madhiyaun, District- Jaunpur (U.P.)
--- Appellants
versus
BALRAM
PRASAD
DEWANGAN
1 - (Deleted) Khatija Bai (Died) As Per Hon'ble Court Order Dated 21-10-024.
Digitally signed
by BALRAM
PRASAD
DEWANGAN
2 - Roshan Bai (Died) Through Lrs.-
2.- (A) Adil Faruki S/o Sadiq Faruki Aged About 35 Years R/o Behind Jail,
Aamdi, Tehsil And District- Gariyabandh (C.G.)
2
2.-(B) Anas Faruki S/o Sadiq Faruki Aged About 35 Years R/o Behind Jail,
Aamdi, Tehsil And District- Gariyabandh (C.G.)
3 - Jarina Bai W/o Hashim Khan Aged About 50 Years Resident Of Bindra-
Nawagarh, Tehsil Gariyaband, Distt. Raipur
4 - State Of Chhattisgarh Through The Collector, Raipur
5 - Habib Mohammed S/o Isha Gani, Resident Of Tarri Near Gobra
Nayapara, Raipur
6 - Julekha Widow Of Taiyab, Resident Of Bindra-Nawagarh, Tehsil
Gariyaband, Distt. Raipur
7 - Bilkis Bano Wife Of Wahab Khan, Resident Of Kostapara, Dhamtari
8 - Rukhsana Bano Wife Of Mohammad Ali, Resident Of Mova, Post Saddu,
Distt. Raipur
--- Respondents
(Cause title is taken from CIS)
For Appellants : Mr. B.P. Sharma, Advocate with
Mr. K.N. Singh and Mr. Pushpa
Kumar Gupta, Advocates
For Respondents No.2 & 3, 6, 7 : Mr. Vivek Tripathi, Advocate
&8
For Respondent No.4/State : Mr. Tarkeshwar Nandey, P.L.
Hon'ble Shri Justice Parth Prateem Sahu
CAV Judgment
1. This plaintiff's second appeal is filed against the judgment and decree
dated 03.05.2008, in Civil Appeal No.32-A/2006 (Shah Mohd. & Ors.
Vs. Smt. Khatija Bai & Ors), passed by Additional District Judge,
Gariyaband, District- Raipur (C.G.) affirming the judgment and decree
passed by learned Trial Court in Civil Suit No.28-A/1998 dated
29.08.2000, passed by the Civil Judge Class-I, Gariyaband, District -
Raipur.
2. Facts relevant for disposal of this appeal are that Fatte Mohd. along
with Abdahu Khan and Abdul Ahmed Khan have filed civil suit for
declaration of title and permanent injunction with respect to the suit
property bearing Kh. No.1/2 measuring 3.237 hectare, Kh. No.122
measuring 0.0655 hectare, Kh. No.123 measuring 0.081 hectare, total
measuring 3.973 hectare of land situated at Village Bindra Nawagarh,
P.C. No.45, R.I.Circle Gariyaband pleading therein that it was
purchased by them vide registered sale deed dated 04.04.1972 from
Khato Bai and since then they are in peaceful possession of the suit
property. It was pleaded that at the time of execution of sale deed,
Khato Bai stated that on part of the land, canal is to be constructed
and she will take the compensation of land on which the canal is to be
constructed. At the time of execution of sale deed, Rs.3,500/- has
been paid before registration of sale deed and balance of Rs.500/- has
been paid subsequently of which endorsement is made by seller of
accepting money. After purchase of land, they have got the land
cultivable. Khato Bai seller of the land along with one Hasam in greed
have objected mutation proceedings and challenged the order of
mutation. Revision filed by plaintiff in mutation proceeding before the
Board of Revenue came to be dismissed and thereafter, Hasam Khan
filed an application for mutation which made the plaintiff to file suit for
declaration of title. In plaint alternate plea of adverse possession was
also raised pleading therein that land was sold by Khato Bai within
knowledge of defendant No.1. Seller received entire sale consideration
and since 1972, they are in possession of the suit property. Suit was
filed on 15.11.1991 after about 19 years of alleged sale deed. After
filing of suit by way of amendment, it was also pleaded that due to
proceedings pending before the revenue court, name of seller (Khato
Bai) continued in the revenue records and after her death, defendant
No.1 to 3 in collusion with Patwari have got the name of Jarina and
other others, mutated in revenue records.
3. Defendant No.1 submitted her written statement pleading that before
getting the sale deed executed in favour of plaintiff, Khato Bai had
obtained consent of defendant No.1 and had paid Rs.250/- to her in
front of other persons. She also admitted that on the land, subject
matter of the sale deed, plaintiffs are in possession. At the time of
death of Khato Bai, defendant No.1 was residing along with Khato Bai.
She claimed her title over other land bearing Kh. No.1/4 measuring
0.462 hectare.
4. Defendants No.2 and 3 submitted their separate written statement in
which it is pleaded that the land subject matter of sale deed/suit was
not sold to the plaintiffs, but was mortgaged because there was debt of
bank, over the land. Shah Mohammad, S/o. Fatte Mohammad
fraudulently got signature of seller in the sale deed stating that he is
getting her signature on power of attorney and have denied the
execution of sale deed. They have in-fact denied entire pleadings
made in the plaint. It is also pleaded that after death of Khato Bai, her
legal representative Hasam, S/o. Karim (grand son) has submitted an
application for mutation. Based on the sale deed, plaintiffs have also
filed an application for mutation in the year 1980-81 and obtained
order from Tahsildar. They have pleaded that they have become owner
of land, subject matter of suit, based on the mutation of their name in
the revenue records. Since the death of Khato Bai they are in
possession. It is also pleaded that Khato Bai has to pay the loan of
bank and bank officials were issuing notices for auction of the lands
and therefore, land subject matter of the sale deed has been
mortgaged. By playing fraud, plaintiffs have got sale deed executed by
Khato Bai in the name of persons resident of Uttar Pradesh. They
have also filed counter claim pleading therein that defendants No.2
and 3 being the child and widow of Hasam, are legal representative of
Khato Bai. They are in possession of the suit property. Plaintiffs be
restrained from interfering with their possession and if it is found that
plaintiffs are in possession, possession be given to them.
5. Counter claim filed by defendants No.2 and 3 was opposed by
defendant No.1. It was further pleaded that defendants No.2 and 3 did
not get any right or title over the property of Khato Bai and it is also
pleaded that land, subject matter of the sale deed was sold to
plaintiffs. Balance land or remaining land of Kh. No.1/4 measuring
0.0462 is of Habib Mohammad, S/o. Khato Bai.
6. Counter claim filed by defendant No.1 was replied by defendants No.2
and 3 and denied the pleading made therein. It was further pleaded
that after death of Khato Bai, name of plaintiffs got recorded of which
Hasam, S/o. Karim preferred appeal, which was allowed on
01.06.1984 stating that name of plaintiff would not be mutated. The
said order was challenged by the plaintiffs before the Board of
Revenue, which was dismissed and thereafter the suit was filed in
collusion with defendant No.1.
7. Defendant No.5 Mohammad Habib also filed written statement
supporting the claim of defendant No.1.
8. Plaintiffs have also filed written statement to the counter claim/cross
suit filed by defendants No.2 and 3 and they have pleaded that Khato
Bai has executed sale deed for her domestic need and has handed
over the possession of the land, subject matter of sale deed. At the
time of execution of sale deed, there was mutual agreement between
the parties, compensation towards construction of canal over the part
of disputed land would be received by the seller of land i.e. Khato Bai.
It was also pleaded that defendants No.2 and 3 had made attempt to
obtain loan from Cooperative Bank, against which complaint was
made by Noor Mohammad to higher authorities. It is pleaded that after
getting the sale deed executed on payment of sale consideration,
application for mutation was filed in the name of Fatte Mohammad by
his son Shah Mohammad. Application dated 05.07.1979 was
dismissed on the ground that application was not filed in accordance
with law and he is having no authority to file such application. Appeal
against which was also dismissed on 15.07.80. To remove the
technical defect, power of attorney was executed in favour of Shah
Mohammad by Fatte Mohammad and thereafter application for
mutation was again filed, which was allowed on 31.08.1982 even after
objection raised by Khato Bai and Hasam that in the sale deed
signature was obtained stating that it was lease (Regh). Hasam has
made statement that Khato Bai did not present herself before the
Registrar. During the proceedings, Khato Bai died and defendants
No.2 and 3 got their name mutated and contested the case. Vide order
dtaed 31.08.1982 name of plaintiffs/purchasers were recorded. Appeal
preferred before the SDO was allowed and application for mutation
filed by purchaser was rejected on the ground of res judicata and have
further recorded by SDO that there is no proof of payment of balance
amount of Rs.500/-. The Board of Revenue also rejected the revision
filed by plaintiffs recording that second application before the Tahsildar
was hit by principles of res judicata. It is also pleaded that Hasam has
raised false objection before the revenue court in mutation
proceedings that sale deed was got executed fraudulently in the name
of Reghnama i.e. lease deed and subsequently they have taken a plea
that signature of Khato Bai was obtained stating it to be a mortgage
deed. They have denied the relationship of defendants No.2 and 3
with Usman and his widow Khato Bai. It is also pleaded that Hasam
have provoked Khato Bai to object the mutation proceedings and
contest the case and after her death, it is Hasam who continued the
revenue proceedings.
9. On the pleadings made by plaintiffs, learned trial Court has formulated
Issue No.1, whether plaintiffs are owner of the land bearing Kh.
No.1/2, 112/1, 123/1 total measuring 3.835 hectare. Upon appreciation
of the evidence brought on record by respective parties, learned trial
Court has concluded that payment of sale consideration of Rs.3,700/-
(Rs.3,500/- as pleaded in the plaint to Khato Bai) is not proved.
Learned trial Court have further recorded a finding that after execution
of the sale deed, Ex.P-2, Khato Bai received Rs.500/- from Shah
Mohammad but the said amount of Rs.500/- is received by her against
sale consideration is not proved. It is also recorded by learned trial
Court that sale deed was got executed fraudulently, therefore, plaintiffs
do not get any valid title. Sale deed (Ex.P-2) is not binding upon Khato
Bai or her legal representatives as it being void. It is also observed by
learned trial Court that plaintiffs themselves have not filed civil suit
within period of three years, and decide the issue No.1 against
plaintiffs.
10. With regard to Issue No.5 as to whether the suit property was
mortgaged by Khato Bai with Fatte Mohammad and Noor Mohammad
in security of loan to which learned trial Court upon appreciating the
evidence have recorded the finding in affirmative that the land was
mortgaged in security of loan. The aforementioned finding was
affirmed by learned First Appellate Court on appreciation of evidence.
11. Appellants herein preferred an appeal U/s. 96 of the Code of Civil
Procedure, before learned Additional District and Sessions Judge,
Gariyaband, which also came to be dismissed by the impugned
judgment and decree observing that sale deed was got executed by
fraud.
12. This second appeal was admitted on the following substantial question
of law :-
"Whether in absence of a specific plea for setting aside
the sale deed dated 04.04.1972 executed by Khato Bai
in favour of Fatte Mohammad and Noor Mohammad,
both the Courts below have under Section 31 of the
Specific Relief Act erred in allowing the counter claim
of defendants No.2?"
13. Learned counsel for appellants would submit that finding recorded by
learned Courts below is contrary to the evidence available on record.
Learned trial Court while deciding the Issue No.5 had erroneously held
that Khato Bai has executed the deed (Ex.P-2) for security of loan
overlooking the fact that that there is no evidence of loan advanced by
original plaintiffs, therefore, there is no question of taking steps for its
security. The contents of sale deed would show that it was recorded as
sale deed registered in the office of Sub-Registrar, Gariyaband on
04.04.1992 in presence of vendor Khato Bai and the witnesses.
Mutation order passed by Tahsildar has not been affirmed by the
Appellate Court on the ground that Rs.500/- has not been paid at the
time of sale deed as such there was non-payment of entire sale
consideration. It is not necessary that entire sale consideration has to
be paid at the time of registration of the sale deed but in the sale deed
there is mention that part payment of Rs.3,500/- out of total sale
consideration of Rs.4,000/- has been paid at the time of execution of
sale deed. Learned Courts below erred in not only non-suiting the
plaintiffs but decreeing the counter claim filed by defendants No.2 and
3. Finding recorded by learned trial Court about the sale deed to be
void is based on the evidence of P.W.-2, who is hearsay witness.
14. Learned counsel for respondents No.2 and 3 would oppose the
submission of learned counsel for appellants and submits that learned
trial Court as also the First Appellate Court have passed the decree
upon proper appreciation of the documentary and oral evidence
brought on record by the respective parties. He contended that against
the order dated 28.06.1976, passed by Tahsildar, Gariyaband in
mutation entry No.17 observing that Khato Bai to receive balance
amount of Rs.500/-, was put to challenge in an appeal before the
S.D.O., wherein SDO, Gariyaband allowed the appeal and dismissed
the mutation order passed by the Tahsildar, Gariyaband vide order
dated 15.07.1980. It is contention of learned counsel for respondents
No.2 and 3 that there is admission on the part of the (P.W.-1) Shah
Mohammad, S/o. Fatte Mohammad (Fatte Mohammad is one of the
purchaser in sale deed Ex.P-2) that Khato Bai has taken loan from
Cooperative Bank, which was not paid and at that time he was
President of Cooperative Bank. He also admitted that on the advice of
Tahsildar, he deposited the loan amount of Khato Bai. It is also an
admission of P.W.-1 that some portion of the land was acquired by the
State Government and the compensation was paid to Khato Bai, but
this fact is not mentioned in the registered sale deed (Ex.P-2) and
there is no answer to the question as to the payment of Rs.3,700/-.
Referring to the decision in case of Ratnagiri Nagar Parishad Vs.
Gangaram Narayan Ambekar and Ors., reported in (2020) 7 SCC
275, it is submitted that burden of proof is always upon plaintiffs to
substantiate his case with adequate pleadings and evidence.
Weakness in defence cannot be basis for grant of relief to plaintiff. He
also contended that relief of seeking cancellation is not obligatory. Void
instrument which is a nullity does not necessarily required for relief of
its cancellation.
15. I have heard learned counsel for parties and perused the documents
placed on record.
16. Plaintiffs in support of their claim have exhibited power of attorney
executed in name of Shah Mohammad by his father Fatte Mohammad
for the purpose of representing him in the court contesting the case
and others as mentioned therein, which is dated 04.11.1980 as Ex.P-1.
Registered sale deed dated 04.04.1972 executed by the Khato Bai,
Wd/o. Usman Memon in favour of Noor Mohammad, S/o. Amjat Khan
and Fateh Mohammad, S/o. Abdul Khan, resident of Bindra Nawagarh,
District Raipur is marked as Ex.P-2. Copy of cash receipt issued under
the signature of Naib Tahsildar as Ex.P-3 to Ex.P-6 in name of Shah
Mohammad. Copy of account No.176 of Smt. Khato Bai, under
Krishak Rin Adhiniyam as Ex.P-7. Certificate issued in piece of paper
mentioning that Shah Mohammad, Plaintiff No.1 has deposited a sum
of Rs.1258/- in the institution as Ex.P-8 and examined Shah
Mohammad as (P.W.-1), Karamat Beg as (P.W.-2) and Hargovind as
(P.W.-3).
17. Defendants in support of their claim have submitted one documents
Ex.D-1, which is a certificate issued in plain paper by Headmaster of
Primary School, Nawagarh, Block - Gariyaband of Habib Mohammad,
mentioning his date of birth and the year of school leaving. Defendants
have examined Khatija Bai as D.W.-1, Tejraj Singh as D.W.-2, Rabiya
Bai as D.W.-3, Roshan Memon as D.W.-4, Mohammad Habib as D.W.-
5.
18. According to the pleadings made in the plaint and the written
statement it is apparent that plaintiffs had claimed their right and title
over the suit property based on the sale deed (Ex.P-2) executed by
Khato Bai, widow of Usman in favour of plaintiff No.2 and father of
plaintiff N.2 and 3.
19. To prove the execution of sale deed (Ex.P-2), plaintiffs have examined
one Karamat Beg as (P.W.-2). This witness in his evidence has stated
that when he went to Gariyaband for recovery of money from Hasam,
he was made witness to the sale deed. In his evidence, he
categorically stated that in front of him, there was no discussion with
regard to subject land. He also shown his unawareness about any
discussion between the parties. He also shown unawareness that deal
between the parties is with regard to sale or for taking land on lease.
He categorically stated before the learned trial Court that no amount
has been paid to Khato Bai in front of him nor there is any transfer of
fund in his presence. He also stated that he was not read over the
contents of sale deed nor sale deed was read over to Khato Bai in
front of him. From the evidence of independent witness, who is also
the witness of sale deed, it is apparent that he was not read over the
sale deed, there was no payment of sale consideration to Khato Bai in
front of him nor Khato Bai was read over the contents of sale deed.
The other witness Hargovind (P.W.-3) though was present in
Registrar's office at the time of execution of sale deed (as stated by
witnesses), but he was not made witness to the sale deed. He has
been examined to prove about payment of Rs.500/- to Khato Bai after
execution of sale deed. He did not mention exact date. In his
evidence, he stated that he did not saw payment made to Khato Bai,
counting of money was inside. He saw counting of amount. Though
this witness has stated that he asked whether Khato Bai received
Rs.500/- or not to which she stated that she received but in the
evidence it has not come that he was informed by Khato Bai and other
person that payment of Rs.500/- is towards balance of sale
consideration.
20. Ex.P-2 which is a sale deed produced by plaintiffs in support of their
case. Perusal of the contents of the sale deed would show that it
clearly mentions that vendor in need of domestic expenses, has sold
the property, subject matter of sale deed, after mutual payment and
acceptance of Rs.4,000/-. This documents does not mention that out
of total consideration Rs.3,500/- has been paid on so and so date and
after execution of sale deed in handwriting, it mentions received
Rs.500/- and thumb impression in the name of Khato Bai. In backside
of it mentions that Shah Mohammad name is mentioned to be witness
of sale deed along with Kamat Beg. Aforementioned entries in the
document, Ex.P-2 creates suspicion on valid execution of sale deed.
From the entries made in the backside of the sale deed, further
reveals that it mentions that initially it is recorded that entire sale
consideration of Rs.4,000/- is received and therefore, in printed portion
of seal affixed on sale deed, column of sale consideration in part has
been crossed. From which it is appearing that rest of the handwritten
portion is subsequently written.
21. Defendants witness Tejraj Singh (D.W.-2), who is one of the
agriculturist of village Bindra Nawagarh had stated that during lifetime
of Khato Bai (vendor), her bank loan was increased to which she could
not able to pay. He also categorically stated that for repayment of bank
loan, she had given her agricultural land to Shah Mohammad on lease
(Regh). He also categorically stated that at that time, Shah
Mohammad (son of Fatte Mohammad one of the purchaser) was
President of Bank Sabha. He also stated that from the some portion of
the land recorded in the name of Khato Bai, canal was constructed, for
which compensation of Rs.800 -900 was paid to Khato Bai after
execution of documents. In cross-examination, this witness had stated
that house of Khato Bai and Shah Mohammad is adjacent. Khato Bai
informed him that plaintiff stated that documents is to be executed
against sum and have got sale deed registered fraudulently.
22. Shah Mohammad (P.W.-1) in his evidence had admitted that Khato Bai
in her lifetime objected the sale transaction. He also admitted that
before registry, Khato Bai had obtained loan from Cooperative Bank
against disputed land. He also admitted that at that time, he was
President of Cooperative Bank. This witness is son of one of the
purchaser Fatte Mohammad. His evidence to this extent that balance
amount of Rs.500/- is paid next day is contrary to his evidence in
Para-3 as also of para-9.
23. So far as substantial question of law formulated on 30.07.2008 as to
whether in absence of specific plea for setting aside the sale deed
(Ex.P-2) have erred U/s. 31 of the Specific Relief Act in allowing the
counter claim is concerned, learned trial Court as well as the First
Appellate Court have found the transaction (Ex.P-2) to be fraudulent,
therefore, it is void transaction. If transaction is held to be void,
defendants would not be required to seek its cancellation. More so
when it is a counter claim filed by defendants in the suit for declaration
of title filed by plaintiffs based on the sale deed.
24. Section 54 of the Transfer of Property Act, 1882 defines sale which
reads as under :-
"54. "Sale" defined.-- "Sale" is a transfer of
ownership in exchange for a price paid or promised or
part-paid and part-promised.
Sale how made.--Such transfer, in the case of
tangible immoveable property of the value of one
hundred rupees and upwards, or in the case of a
reversion or other intangible thing, can be made only
by a registered instrument.
In the case of tangible immoveable property of a
value less than one hundred rupees, such transfer may
be made either by a registered instrument or by
delivery of the property.
Delivery of tangible immoveable property takes
place when the seller places the buyer, or such person
as he directs, in possession of the property.
Contract for sale.--A contract for the sale of
immoveable property is a contract that a sale of such
property shall take place on terms settled between the
parties.
It does not, of itself, create any interest in or
charge on such property."
25. From the definition of sale it is apparent that sale of immovable
property has to be for consideration. Payment of sale consideration is
essential part of sale U/s. 54 of the Transfer of Property Act. If the sale
deed is executed without payment of sale consideration, at the time of
execution of the sale or in future, it is not a sale at all in the eyes of
law. It is having no legal effect, therefore, such a sale will be void.
26. Hon'ble Supreme Court in case of Shanti Devi (Since deceased)
Through LRS. Goran Vs. Jagan Devi & Ors., 2025 INSC 1105 has
observed thus :-
"38. Concurrent findings of both the First Appellate Court
and the High Court indicated that the husband of the
defendant i.e., one Bagdawat, who had allegedly given
the remaining sale consideration of Rs. 6,000/- during the
time of execution of the sale deed, had not stepped into
the witness box. Furthermore, one of the attesting
witnesses to the execution of the sale deed i.e., the
Sarpanch had also died before his deposition could be
recorded. One Budhu, who was the second attesting
witness, was the brother of the defendant and both the
Courts had doubted his testimony as being partial to the
defendant. All in all, there was no witness who could
substantiate the case of the defendant that there was
part-payment of the sale consideration, i.e., Rs. 6,000/-
during the time of execution of the sale deed.
Furthermore, no evidence was adduced by the defendant
to prove that even the initial amount of Rs. 9,000/- which
was purportedly paid before the execution of the sale
deed was actually received by the plaintiff. Therefore, the
averment of the plaintiff in the plaint, that she had not
received the sale consideration, had not been otherwise
proven as false. In such circumstances as well, i.e., in the
absence of the sale consideration being tendered, the
sale deed would be void and the plaintiff would not be
required to seek its cancellation. Therefore, Article 59 of
the Limitation Act, 1963 could not be said to be applicable
to the present facts."
27. In the case at hand also, the plaintiffs could not able to prove payment
of sale consideration to vendor. The evidence of part payment before
execution and remaining later is also contrary to the contents of sale
deed Ex.P-2. On contrary from the evidence of plaintiff it has come
that the vendor is facing difficulty in repayment of loan of Cooperative
Bank of which son of one of purchaser was President.
28. Both the Courts have recorded concurrent finding of fact about the
fraudulent sale deed after appreciation of oral and documentary
evidence. High Court in second appeal filed under Section 100 of the
CPC will not re-appreciate the evidence.
29. In case of Kewal Krishan v. Rajesh Kumar, reported in (2022) 18
SCC 489, Hon'ble Supreme Court has observed that sale deeds were
void if executed without consideration.
30. Hon'ble Supreme Court in case of Navaneethammal vs. Arjuna
Chetty reported in AIR 1996 SC 3521, has held that interference with
the concurrent findings of the Courts below by the High Court under
Section 100 of CPC must be avoided unless warranted by compelling
reasons. In any case, the High Court is not expected to re-appreciate
the evidence just to replace the findings of the Lower Court. Even
assuming that another view is possible on re-appreciation of the same
evidence that should not have been done by the High Court, as it
cannot be said that the view taken by the First Appellate Court was
based on no material.
31. In case of Gurdev Kaur & Ors v. Kaki & Ors, reported in (2007) 1
SCC 546, the Hon'ble Supreme Court has observed in para Nos. 54,
which is as under:-
"54. In the same case, this Court observed that in a
case where special leave petition was filed against a
judgment of the High Court interfering with findings of
fact of the lower appellate court. This Court observed
that to say the least the approach of the High Court
was not proper. It is the obligation of the courts of law
to further the clear intendment of the legislature and
not frustrate it by excluding the same. This Court
further observed that the High Court in second appeal
cannot substitute its own findings on reappreciation of
evidence merely on the ground that another view was
possible."
32. In the case of State of Rajasthan and Others vs. Shiv Dayal and
Another, Reported in (2019) 8 SCC 637, the Hon'ble Supreme Court
has observed in para Nos. 14, 15 & 16 as under:-
"14. True it is as has been laid down by this Court in
several decisions that "concurrent finding of fact" is usually
binding on the High Court while hearing the second appeal
under Section 100 of the Code of Civil Procedure, 1908
(hereinafter referred to as "the Code"). However, this rule
of law is subject to certain well-known exceptions
mentioned infra.
15. It is a trite law that in order to record any finding on the
facts, the trial court is required to appreciate the entire
evidence (oral and documentary) in the light of the
pleadings of the parties. Similarly, it is also a trite law that
the appellate court also has the jurisdiction to appreciate
the evidence de novo while hearing the first appeal and
either affirm the finding of the trial court or reverse it. If the
appellate court affirms the finding, it is called "concurrent
finding of fact" whereas if the finding is reversed, it is called
"reversing finding". These expressions are well known in
the legal parlance.
16. When any concurrent finding of fact is assailed in
second appeal, the appellant is entitled to point out that it
is bad in law because it was recorded dehors the pleadings
or it was based on no evidence or it was based on
misreading of material documentary evidence or it was
recorded against any provision of law and lastly, the
decision is one which no Judge acting judicially could
reasonably have reached. (See observation made by
learned Judge, Vivian Bose, J., as his Lordship then was a
Judge of the Nagpur High Court in Rajeshwar Vishwanath
Mamidwar v. Dashrath Narayan Chilwelkar [Rajeshwar
Vishwanath Mamidwar v. Dashrath Narayan Chilwelkar,
1942 SCC OnLine MP 26 : AIR 1943 Nag 117] para 43.)"
33. The Hon'ble Supreme Court in the case of Sukhbiri Devi and Others
vs. Union of India and Others reported in 2022 SCC OnLine SC
1322 while reiterating the view taken by the Apex Court in the case of
Shiv Dayal and Another (supra), has held that interference with the
concurrent findings in second appeal can be made if it is pointed out
that it has been passed dehors the pleadings or based on no evidence
or based on misreading of material evidence or against the provision
of law etc. No such case is made out by appellants.
34. In the aforementioned facts of the case and the decisions of Hon'ble
Supreme Court when there is concurrent finding of fact that sale deed
is void, in the opinion of this Court, there is no requirement of
defendants No.2 and 3 to seek relief of cancellation/setting aside of
sale deed. Substantial question of law framed is answered accordingly.
35. For the foregoing discussions, I do not find any merit in this appeal.
Accordingly the appeal is dismissed.
36. Decree be drawn accordingly. No order as to costs.
Sd/-
(Parth Prateem Sahu)
Judge
Balram
