Unknown vs Shabbir
2022 Latest Caselaw 660 UK

                      Office Notes,
                   reports, orders or
SL.                 proceedings or
         Date                                      COURT'S OR JUDGES'S ORDERS
No                   directions and
                   Registrar's order
                    with Signatures
      09.03.2022                        SA No. 111 of 2021
                                        Hon'ble Alok Kumar Verma, J.

This Second Appeal has been filed against the judgment and decree dated 24.09.2021, passed by the learned Ist Additional District Judge, Haridwar in Civil Appeal No.20 of 2015, "Yameen vs. Mohammad Iliyas and Others", whereby, the First Appeal, filed by the appellant, has been dismissed. The First Appeal was filed against the judgment and decree of the learned trial court, by which, the original suit was allowed.

Heard Mr. Arvind Vasistha, the learned Senior Advocate assisted by Mr. Ajay Joshi, the learned counsel holding brief of Mr. Vivek Pathak, the learned counsel for the appellant and perused the record.

The learned Senior Advocate appearing for the appellant submitted that the appellant is a owner of the property-in-question through the sale deed, executed on 28.03.2008 by Mohd. Shabbir, real brother of the present appellant, and, at the time of execution of the registered sale deed, the executor was mentally fit. He further submitted that the sale deed was executed with full consideration, which was paid by the present appellant to the seller. However, the learned courts below have shifted the burden on the appellant - defendant to prove that the impugned sale deed was executed by playing fraud. The learned Senior Advocate further submitted that oral evidence is not admissible against the written document, under Section 92 of the Indian Evidence Act, 1872. He argued that even medical report of the seller, filed by the plaintiffs, has not been proved.

This Second Appeal is admitted on the following substantial questions of law:-

(i)Whether oral evidence, relied by the courts below, is inadmissible and is barred by Section 92 of the Indian Evidence Act?

(ii)Whether a medical report , which was not proved, can be relied upon for the purpose of recording a finding about mental condition of the executor of the sale deed?

(iii)Whether both the courts below committed error in recording a conjectural finding about fraud and ignoring the noting of Sub- Registrar on the impugned sale deed?

Issue notice to the respondents.

Steps to be taken by normal mode as well as by dasti within 03 days.

List this case on 01.04.2022.

(Alok Kumar Verma, J.) 09.03.2022

Pant/