Hotam Singh Lahariya vs Ramcharan Singh and Another

M.K. Mudgal, J.—This first appeal u/s 96 of the CPC has been preferred by the appellant/plaintiff assailing the judgment and decree dated 24.12.2002 passed by the learned IX Additional District Judge Gwalior in Civil Suit No. 34-A of 2000 dismissing the suit for declaration of title, delivery of possession after locating the disputed land or refund of the amount of consideration paid to the tune of Rs. 57,000/- and the expenses of registering the sale deed amounting to Rs. 7340/- along with interest at the rate of 10% per annum i.e. 21.4.1995. In this appeal, the appellant is referred as ''plaintiff'' and respondent no. 1 as ''defendant''. The admitted facts are as follows:

Defendant Ramcharan Singh was Bhumiswami of agricultural land bearing Survey No. 4139, measuring 0.021 Hectare (2280 sq. ft). The defendant Ramcharan Singh gave Kailash Soni power of attorney who executed the sale deed dated 21.4.1995 Ex. P/1 in favour of the plaintiff for consideration of Rs. 57,000/-.

Facts, in brief, of the plaint are that defendant Ramcharan Singh was Bhumiswami of the land included in Survey No. 4139 situated in Patwari Halka No. 51 of village Morar, Tahsil and District Gwalior. A piece of land (plot) of the area of 2280 sq. ft in the said survey number was sold by the defendant/respondent no. 1 through his power of attorney, Kailash Narayan Soni to the plaintiff for consideration of Rs. 57,000/- vide registered sale deed dated 21.4.1995. The dimensions of the land have been mentioned in the sale deed. At the time of execution of the sale deed, a rough lay-out plan was shown by the holder of power of attorney to the plaintiff with an assurance that after it''s sanction, the land will be developed and the possession of the Plot No. 105 and 106 will be delivered to him. It was further disclosed that the delivery of possession is mentioned in the sale deed in a formal manner and the delivery of actual possession was promised to be effected only after sanction of the lay out plan. Accordingly, the plaintiff got the registered sale deed executed after making payment of the entire consideration to the tune of Rs. 57,000/-. Thereafter, the plaintiff got his name mutated in the revenue record vide order dated 30.6.1998 passed in Case No. 66/28.5.1998. The plaintiff has further alleged that the defendant did not handover sanctioned lay-out plan to the plaintiff in spite of his having demanded it several times and further, did not handover the possession of the plot purchased by him. On insistence, the defendant showed a piece of land as plot No. 105 and 106. Accordingly, when the plaintiff reached the spot on 12.3.1998 for excavating it for the purpose of foundation, he was opposed by one Mohan Singh on the ground that the piece of land was owned by latter. On inquiry, the plaintiff came to know that the piece of land shown to him was a part of survey no. 4140 and not in survey No. 4139. In view of this, the plaintiff issued a notice dated 17.3.2000 through his Advocate demanding thereby, the delivery of actual possession after duly locating the purchased plot of land. The defendant did not respond to it. So the plaintiff instituted a suit for declaration, handing over possession or refund of the consideration of sale.

The defendant no. 1 submitting his written statement has alleged that the possession of the land sold was given on 22.4.1995 and the plaintiff had received the actual possession on the same date. It is denied that the possession of the plot was not handed over to the plaintiff. The defendant has further alleged that the specific part of the Survey No. 4139 was sold to the plaintiff which is described at page No. 3 of the registered sale deed dated 21.4.1995. The objection regarding non joinder of the necessary parties was also pleaded in the written statement.

That, learned trial Court after framing nine issues and after recording evidence of both the parties and having discussed the recorded evidence in detail, has dismissed the suit vide impugned judgment dated 24.12.2002.

The following questions arise for consideration in this appeal:

(i). Whether or not, the defendant handed over possession of the sold plot to the plaintiff on the date of registration of the sale deed?

(ii). Whether, the findings of the lower Court are based on proper reasonings?

Heard the arguments of both the parties at length and perused the record.

According to the pleadings of the plaint, plaintiff Hotam Singh (PW1) deposing in his statement has stated that he had purchased from the defendant a piece of land bearing Survey No. 4139 vide sale deed Ex. P/1 which was executed by the defendant''s power of attorney Kailash Soni. The execution of sale deed Ex. P/1 has also been proved by the witnesses Mangaram (PW 2) and Suresh Lal Soni (PW 3) who are the attesting witnesses of Ex. P/1. There is no dispute regarding the execution of the sale deed. The defendant has not specifically denied the execution of the sale deed. Though the document of power of attorney executed by the defendant in favour of Kailash Soni has not been produced on record, yet the defendant has not denied in his statement the execution of the document of power of attorney in favour of Kailash Soni. Further, in para 4 of his statement, the defendant Ramcharan Singh (DW 1) has admitted that he made Kailash Soni his power of attorney holder to sell the Survey No. 4139 area a little more than one Bigha. Considering the said facts, it becomes clear that by executing the sale deed Ex. P/1 in favour of the plaintiff Hotam Singh, the defendant''s power of attorney holder Kailash Soni sold the said piece of land measuring approximately 2280 sq. ft. of Survey No. 4139.

The main controversy in this suit is that whether, the actual possession of the said land was not given to the plaintiff. In this regard, the plaintiff Hotam Singh has deposed in para 2 and 3 in his statement that at the time of registration of sale deed Ex. P/1, the power of attorney holder Kailash Soni had shown him a lay-out describing Plot No. 105 and 106 which was to be sanctioned by the concerned authority and thereafter, possession of the sold land was to be given to him. The witness Hotam Singh (PW 1) has further stated that before executing the sale deed, Kailash Soni showed him an open land nearby some houses were already in existence. Mangaram (PW 2) has also deposed in para 2 that actual possession was not given to the plaintiff. The lower Court having analyzed the evidence has held in para 12 to 16 that the possession of the sold land was given to the plaintiff vide sale deed Ex. P/1 and it has already been mentioned in the sale deed. The findings of learned trial Court do not appear to be correct and sound as the defendant Ramcharan Singh has not stated in his statement having given the possession to the plaintiff of the said disputed plot. On the contrary, in para 4 to 6 of the defendant''s statement, it has been deposed that the defendant has expressed complete ignorance regarding the transaction of sale. The defendant''s statement does not rebut the plaintiff''s version about not having been given possession to him of the land sold to him by the holder of power of attorney. To substantiate this fact, the evidence of power of attorney Kailash Soni was necessary in this case, but his statement was not got recorded by the defendant. It could have been made explicitly clear by the holder of power of attorney, Kailash Soni only. By not producing the holder of power of attorney, Kailash Soni as a witness, the presumption goes against the defendant that the actual possession was not handed over to the plaintiff as alleged by him. It is pertinent to mention here that the statement of defendant is totally at variance with the pleadings in the written statement. Since in para 5 and 8 of the written statement, the defendant has pleaded that a specific part of the land of Survey No. 4139 was sold to the plaintiff vide registered sale deed dated 21.4.1995. On the contrary, the defendant Ramcharan Singh in para 1,5,6 and 7 denying having sold the alleged disputed land, has shown his complete ignorance about giving it''s possession to the plaintiff. In view of the facts, the defendant''s statement does not have credence.

It is true that in the sale deed Ex. P/1, it has been mentioned that the possession was given to the plaintiff of the alleged disputed land. It is also correct that as per section 91 of the Evidence Act, the oral evidence is not permissible against the contents of the document but there are some exceptions in Section 92 of the said Act. If a fraud is played, oral evidence can be tendered against the contents of the document. In this case, as per pleadings of the plaint and the statement of the plaintiff, a site plan which was to be approved by the concerned department was shown by the defendant''s holder of power of attorney and it was assured that after approval and sanction of it, the possession of the plot no. 105 and 106 would be given to the plaintiff. The pleadings and the evidence produced by the plaintiff seem to be convincing. The said piece of agriculture land area 2280 sq. ft of Survey No. 4139 describing boundaries was sold by the sale deed Ex. P/1. However, no map of the land was attached with the sale deed. Neither demarcation was carried out by any revenue officer for giving possession of the land nor was it identified by anyone on the spot. It is not a case of the defendant that the plaintiff is in possession of the alleged disputed land on the spot. Besides, it has not been pleaded by the defendant that the alleged disputed land was in existence and was encroached upon by some one else. Besides, the defendant has not claimed to have identified the disputed land. The trial Court has not considered the pleadings and evidence of both the parties in proper perspective. Thus, findings of the learned trial Court are not sustainable.

Considering the said facts and recorded evidence, it is concluded that actual possession of the alleged disputed land was not given by the defendant at the time of execution of the sale deed Ex. P/1. The plaintiff was deceived by the holder of power of attorney by showing a lay-out which was to be approved. The plaintiff has further asserted in his evidence that the land shown by the defendant''s holder of power of attorney is not a part of Survey No. 4139. On the other hand, the said land being a part of Survey No. 4140 belonged to Mohan Singh who has fenced it. In such circumstances, the possession of the alleged disputed land could not have been given to the plaintiff as the said land is not in existence on the spot at all.

In the presence of the aforesaid facts, it would be apt to direct the defendant to return the consideration for sale of Rs. 57,000/- paid to him by the plaintiff as also expenses of the registry Rs. 7340/- and the interest at the rate of 10% per annum, since the possession of the disputed land was not handed over to the plaintiff and the amount of consideration Rs. 57,000/- was taken from the plaintiff on behalf of the defendant by playing fraud on him. Moreover, it is found that the plaintiff has been deprived not only of the land but also the amount of sale consideration. However, the defendant has been using the amount of consideration since execution of the sale deed. The interest would be paid from the notice dated 17.3.2000 Ex. P/2 issued by the plaintiff for demanding the possession and identifying the disputed land. The rate of interest at 10% per annum is not excessive since it is a commercial transaction.

Taking into account the whole facts and recorded evidence, allowing the appeal and setting aside the impugned judgment and decree of the learned trial Court, the suit is partly decreed for payment of Rs. 57,000/-, expenses of registry Rs. 7340 along with the interest at the rate of 10% per annum from the date 17.3.2000 till realization of the entire money. The defendant is directed to pay the said amount to the plaintiff. It is also ordered that the plaintiff would not claim any title or interest in the disputed land on the basis of sale deed Ex. P/1 after receiving the said amount and the sale deed Ex. P/1 would be deemed to be non-existence. The cost of the suit and the appeal of the plaintiff/appellant shall be borne by the defendant no. 1. Decree be drawn up accordingly.