Judgment:
1 S.A No.779/1997 HIGH COURT OF MADHYA PRADESH AT JABALPUR SECOND APPEAL NO.779/1997 APPELLANTS : PARMA AND ANOTHER Vs. RESPONDENTS : JHAMA AND OTHERS. Present : Hon'ble Shri Justice R.S. Jha. For the appellants : Shri Umesh Trivedi, Advocate. For the respondents : Shri Abhishek Gulatee, Advocate. -------------------------------------------------------------------------------------- JUDGMENT
(14/03/2013) The appellants/defendants have filed this appeal being aggrieved by the judgment and decree dated 24.7.1997 passed by the First Additional Judge to the Court of District Judge, Tikamgarh in Civil Appeal No.9-A/88 whereby the judgment and decree dated 30.11.1983 passed by the Additional Civil Judge Class-II, Tikamgarh in Civil Suit No.26- A/83 has been reversed and the suit filed by the respondent/ plaintiffs has been decreed.
2. In brief, the case of the respondents/plaintiffs, in th suit was that they had agreed to sell 0.032 Hectares of land of Khasra No.1452 of village Doh for a consideration of Rs.1,000/- to the appellant/defendant no.1, who is their uncle, but the appellants/defendants taking advantage of the illiteracy of the respondents/plaintiffs got a sale deed 2 S.A No.779/1997 prepared for sale of not just the aforesaid land but also 0.372 Hectares of Khasra No.165 situated in village Baijan. It was also alleged that though the appellants/defendants had agreed to purchase the land for a sum of Rs.1,000/- and had told the respondents/plaintiffs to make such a statement before the Registrar to the effect that they had already received the amount but the said amount was never paid to them and, therefore, the respondents/plaintiffs had filed a suit for declaring the sale deed executed by them dated 23.10.1981 as null and void on account of fraud and on account of the fact that it was without consideration. The suit filed by the respondents/plaintiffs was opposed by the appellants/defendants and was ultimately dismissed. On an appeal being filed by the respondents/plaintiffs, the First Appellate Court by the impugned judgment and decree, has allowed the suit, hence this appeal.
3. This Second Appeal was admitted by this Court on the following substantial questions of law:-
“1. Whether the lower appellate Court rightly reversed the judgment and decree of the trial Court by misinterpreting Ex.P-1 ?.
2. Whether the lower appellate Court was right in considering the oral evidence for varying the terms of Ex.P-1 without an express pleading to the effect that what kind of fraud was played upon the respondents for obtaining Ex.P-1 ?. 3 S.A No.779/1997 3. Whether the finding recorded by the lower appellate Court that the appellant had paid Rs.1,000/- to respondent Jhama is vitiated and perverse on the ground that he has disbelieved the eye witness on the ground that the person who has advanced Rs.1,000/- has not been examined ?. ”.
4. The learned counsel for the appellants submits that the judgment and decree of the First Appellate Court suffers from perversity as there is no evidence to establish the claim of the respondents/plaintiffs specifically as there is no clear evidence regarding fraud not is there any evidence regarding non-payment of consideration. The learned counsel further submits that the scribe of the sale deed dated 23.10.1981, Bhagwandas, was examined as D.W-4 who has clearly stated that the document was read out to the respondents/plaintiffs and thereafter it was signed and executed by them. The learned counsel has also submitted that Hajju, D.W-3, has stated that an amount of Rs.1,000/- was paid to the respondents/plaintiffs in front of him by the appellants/defendants after borrowing the same from Kishan Das who is the owner of a shop, but the First Appellate Court has totally ignored the aforesaid cogent, reliable evidence and has decreed the suit inspite of the fact that there is no evidence in support of the claim made by the respondents/plaintiffs. 4 S.A No.779/1997 5. The learned counsel for the respondents/plaintiffs, per contra, submits that the witnesses to the sale, P.W-2 Udal and P.W-3 Biharilal have clearly stated that no amount was paid to the appellants/defendants and that the respondents/plaintiffs had only agreed to sell 0.032 Hectares of land of Khasra No.1452 of village Doh whereas the sale deed incorporated Khasra No.165 area 0.372 Hectares situated in village Baijan. It is further stated that the appellants/defendants have not denied the specific averment in the plaint regarding non-payment of consideration and, therefore, no evidence in this regard can be permitted to be led by them by placing reliance on the decision of the Supreme Court in the case of Gian Chand and Brothers and Another vs. Rattan Lal Alias Rattan Singh, (2013) SCC 606.
6. The learned counsel for the respondents also submits that the Appellate Court has rightly disbelieved the statement regarding payment of consideration on account of the fact that the appellants/defendants have failed to get Kishandas, the shop keeper, examined as he was the best person to state as to whether the amount was actually borrowed from him and paid to the respondents/plaintiffs.
7. I have heard the learned counsel for the parties at length. From a perusal of the record, the statement of P.W-2 5 S.A No.779/1997 Udal, P.W-3 Biharilal, P.W-4 Nathua and the statement of D.W-3 Hajju, D.W-4 Bhagwandas and the reasonings given by the Appellate Court decreeing the suit filed by the respondents/plaintiffs, I am of the considered opinion that there is no perversity or material irregularity in the finding recorded by the First Appellate Court.
8. Apparently, the witnesses to the sale, P.W-2 Udal and P.W-3 Biharilal, have clearly stated that no consideration was paid. These witnesses have also stated that the respondents/ plaintiffs had only agreed to sell 0.032 Hectares of land of Khasra No.1452 of village Doh and had not agreed to sell 0.372 Hectares of Khasra No.165 situated in village Baijan. There is no occasion or reason to disbelieve the said witnesses. It is also undisputed that Kishandas, the person from whom the amount was said to have been borrowed by the appellants/defendants, has not been examined to establish as to whether the amount was borrowed from him and paid to the respondents/plaintiffs. The best evidence has, therefore, not been brought before the Court by the appellants/defendants.
9. It is also clear from a perusal of the written statement that there is no denial about non-payment of the consideration and, therefore, the learned counsel for the respondents/plaintiffs has rightly relied upon the decision of 6 S.A No.779/1997 the Supreme Court in the case of Gian Chand (supra) to contend that the appellants/defendants cannot be permitted to lead any evidence or make any statement to the contrary specifically at the second appellate stage.
10. In view of the aforesaid facts and circumstances, the substantial questions of law framed by this Court are answered against the appellants/defendants. The appeal, filed by the appellants/defendants is accordingly dismissed and the judgment and decree dated 24.7.1997 passed by the First Additional Judge to the Court of District Judge, Tikamgarh in Civil Appeal No.9-A/88 is hereby affirmed. ( R. S. JHA ) JUDGE 14 03/2013 mms/-