Gulba vs Isna

Ravi Shankar Jha, J—Heard on the question of admission.

This appeal has been filed by the appellants being aggrieved by the judgment and decree passed on 12.07.2007 passed by the Additional District Judge, Pichhore District Shivpuri in Civil Appeal No. 16-A/2007 whereby the judgment and decree dated 20.12.2005 passed by the Civil Judge Class-II, Khaniyadhana District Shivpuri in C.S. No. 33-A/2003 has been confirmed and affirmed and the suit filed by the appellants for declaration and permanent injunction and for declaring the sale deed dated 06.05.1972 as null and void has been dismissed by both the courts below.

It is submitted by the learned counsel for the appellant that the only substantial question of law that arises for adjudication in the present appeal is that both the courts below have misconstrued the sale deed dated 06.05.1972. It is stated that a bare perusal of the sale deed itself indicates that the appellants/plaintiffs had sold only 9 Bigha 16 Biswa of land situated in Village Khaniadhana District Shivpuri, details of which have been mentioned in the plaint. However, on account of a mistake in calculation, the total area of land sold was mentioned as 13 Bigha 15 Biswas in the sale deed. It is stated that this mistake was apparent on a bare perusal of the sale deed but in spite of that the courts below have not considered the same and overlooked it and dismissed the suit giving rise to a substantial question of law for adjudication in this second appeal.

It is stated that the sale deed in question was in possession of the respondents/defendants and therefore a certified copy of the sale deed could be produced by the appellants only after the evidence of the plaintiffs was over and though the trial court had rejected the appellants application under Order 7 Rule 14 CPC., it has considered the same but the first appellate court has committed a gross illegality in upholding the order of rejection and has refused to take the documents into consideration, contrary to the law laid down by the Supreme Court in Billa Jagan Mohan Reddy and Another Vs. Billa Sanjeeva Reddy and Others, (1994) 3 JT 339 : (1994) 2 SCALE 487 : (1994) 4 SCC 659 : (1994) 1 SCR 429 . It is stated that the Supreme Court in the aforesaid decision has stated that the document could be taken on record at any point of time provided it is relevant and went to the root of the matter, therefore the appellate court has committed illegality in affirming the rejection of the appellants'' application for taking the documents on record by the trial court.

The learned counsel for the appellants submits that the courts below were required to take into consideration the nature of the document while deciding the suit as well as the appeal in view of the law laid down by the Supreme Court in the the case of Bishwanath Prasad Singh Vs. Rajendra Prasad and Another, AIR 2006 SC 2965 : (2006) 3 JT 221 : (2006) 2 SCALE 699 : (2006) 4 SCC 432 : (2006) AIRSCW 4235 : (2006) 2 Supreme 561 and Gurnam Singh and Others Vs. Surjit Singh and Others, AIR 1974 SC 2367 : (1975) 4 SCC 404 . It is further submitted that misconstruing of the documents by the courts below gives rise to a substantial question of law as has been held by the High Court in the case of Amar Bahadur Singh Vs. Devendra Singh and Sheetala Prasad Singh, AIR 2007 MP 262 : (2008) 2 JLJ 327 : (2007) 2 MPJR 389 : (2008) 2 MPLJ 70 Amar Bahadur Singh Vs. Devendra Singh and another. On the basis of the aforesaid decisions, the learned counsel for the appellants submits that the judgment and decree of the Trial Court and the Appellate Court deserve to be set aside as they have not taken into consideration the apparent discrepancy in the sale-deed.

Having heard the learned counsel for the appellants and on perusing the plaint filed by the appellant, it is observed that the appellants had filed a civil suit alleging that the respondents had got the sale deed executed by playing fraud and by cheating the appellants. On the basis of aforesaid averments, the appellants had prayed for declaring the entire sale deed as null and void and for declaring the plaintiffs/appellants as the owner of the land. It is pertinent to note that the arguments of the learned counsel for the appellants before this Court are directly in conflict and in contravention of the written averments in the plaint as the arguments raised by the appellants before this Court is that he proposes to challenge the sale deed on the limited ground of mistake in mentioning of the total area sold in the bottom of the sale deed and for declaring the sale deed void to that limited extent whereas the appellants in the plaint has challenged the entire sale deed and has prayed for declaring it null and void as a whole on various other grounds which have been negatived by both the courts below. In the backdrop of the aforesaid prayer of the appellants in the plaint, it is observed that the Trial Court in paragraph 15, 16 and 18 of the judgment has taken into consideration the sale deed as well as the averments in that regard and the evidence produced by the parties. The Trial Court has categorically recorded a finding to the effect that the sale deed is an admitted document and that the appellants have not denied that the sale deed had not been signed and executed by the original plaintiff i.e. the father of the present appellants, namely, Gulba.

The courts below have taken into consideration the specific statement of the appellants and their witnesses to the effect that after execution of the sale deed the plaintiffs were and became aware of the mistake committed therein and had thereafter gone alongwith the respondents and corrected the same and also signed the correction inspite of which the total area of the land sold continued to be mentioned as 13 Bigha 15 Biswas.

The learned counsel for the appellants submits that though the correction in the preceding paragraphs of the sale deed was made showing sale of only 9 Bighas 16 Biswas of land, however, no correction in the last paragraph, where the total area was mentioned was made, and on account of this discrepancy, the substantial question of law arises for adjudication on account of the fact that the courts below have not taken into consideration this apparent mistake.

From a perusal of the facts of the case it is clear that the plaintiffs/appellants have not disputed the execution of the sale deed or the signing of the sale deed. He has not disputed that he has signed the contents of the same as well as the correction made therein. It is also observed that once it is admitted that the sale deed was executed and was signed by the appellants and that mistake was discovered and correction was also made in the sale deed, inspite of which the total land sold was mentioned as 13 Bighas 15 Biswas them in such circumstances, when the fact of execution of sale deed and averments made therein are admitted, then no fault can be found with the finding recorded by the courts below. The trial court in paragraph 18 of the judgment has recorded a finding to the effect that as the aforesaid aspects were within the knowledge of the appellants and the execution of the sale deed is admitted therefore the appellant cannot be permitted to challenge the sale deed subsequently on the ground of discrepancies therein or on the ground that he did not intend to sell the land to the respondent/defendant.

It is also observed that the appellate court has also considered this aspect in paragraph 19 & 20 of the judgment. It is observed that the appellate court while affirming the rejection of the application of the appellants preferred under Order VII Rule 14 of the CPC by the Trial Court, has also taken into consideration the fact that the execution of the sale deed was admitted by the appellants and therefore, in such circumstances, the appellants cannot be permitted to turn around and challenge the same in the absence of any allegation regarding fraud or misrepresentation.

It is also apparent that the plaintiffs appellants have not filed a suit for declaring the sale deed null and void only to the extent of 4 Bigha land which according to him is the extent of the calculation mistake committed in the sale deed but has prayed for declaring the entire sale deed as null and void by contending that the same has been executed by respondents by misleading and committing fraud. It is also apparent that the fact of execution of the sale deed, signing etc have all been found to have been established in the concurrent finding of facts recorded by the courts below on the basis of the analysis of the evidence of the plaintiffs'' witnesses Bulwa (PW-1), Rajaram (PW-2), Hazarilal (PW-3) as well as statement of Kishan lal (DW-1), Heera Pratap (DW-5) and Kamla Kachi (DW-6).

It is also clear from a perusal of the record and from the argument of the learned counsel for the appellants that the appellants have accepted and admitted the sale deed and have challenged the same before this Court in this Second Appeal on the limited ground that the mistake in the calculation of the total area mentioned at the bottom of the sale deed is incorrect which is a glaring and apparent mistake which ought to have been looked into by the courts below, however, though this fact was within the knowledge of the appellants, they have not taken any steps for correction of the said mistake in the sale deed in accordance with the procedure prescribed by law before the competent authority and when confronted with this fact, the learned counsel for the appellants submits that the appellants shall take up separate proceedings in that regard.

In view of the aforesaid facts and circumstances of the case which are not only undisputed but have also been concurrently recorded as finding of facts by the courts below. I am of the considered opinion that the question of interpreting the nature of the document executed by the appellants does not arise in the present case, therefore, the decision relied upon by the learned counsel for the appellants rendered by the Supreme Court in the case of Bishwanath Prasad Singh (supra) has no applicability to the present case. The reliance placed by the appellants on the decisions of the Supreme Court in the case of Billa Jagan Mohan Reddy and Another Vs. Billa Sanjeeva Reddy and Others, (1994) 3 JT 339 : (1994) 2 SCALE 487 : (1994) 4 SCC 659 : (1994) 1 SCR 429 and Gurnam Singh and Others Vs. Surjit Singh and Others, AIR 1974 SC 2367 : (1975) 4 SCC 404 is also totally misconceived as the law laid down by the Supreme Court in the aforesaid cases has no applicability to the facts of the present case. I am of the considered opinion that the present case is not one of misconstruing the document in question as the courts below have held the document to be a sale deed which is admittedly executed by the appellants and the contents thereof are admitted and are within the knowledge of the appellants, therefore no substantial question of law arises for adjudication in the present appeal on account of misconstruing the document as submitted by the learned counsel appellants by relying upon the the decision of this Court in the case of Amar Bahadur Singh Vs. Devendra Singh and Sheetala Prasad Singh, AIR 2007 MP 262 : (2008) 2 JLJ 327 : (2007) 2 MPJR 389 : (2008) 2 MPLJ 70 .

In view of the aforesaid facts and circumstances of the case, I am of the considered opinion that the courts below have not committed any perversity or illegality in dismissing the suit filed by the appellants. I am also of the considered opinion that the alleged substantial question of law sought to be raised by the learned counsel for the appellants regarding miscalculation of the area in the sale deed does not arise for adjudication in this case. The appeal being meritless is accordingly dismissed.