AI Structured Summary
Not yet generated for this judgment
Judgment
Sharad Kumar Sharma, J
The appellant to the present second appeal is the defendant in a suit being Original Suit No. 177 of 2010, 'Krishna Pal & others Vs. Pratap and another', wherein the Court of Civil Judge (Junior Division), Laksar, District, Haridwar, has decreed the suit of the plaintiff/ respondent by the judgment dated 30.08.2018, and as a consequence thereto, the sale deed dated 24.02.1998, executed in favour of the defendant/appellant by the erstwhile alleged owner Baljit Singh, had been declared to be null and void.
Subsequent to the judgment and decree dated 30.08.2018, as passed by the Civil Judge (Junior Division), Laksar, District Haridwar decreeing the suit. The same was put to challenge by the defendant/appellant before the Court of Additional District Judge/ Presiding Officer, Laksar, District Haridwar by preferring a Civil Appeal No. 65 of 2018, 'Pratap Singh Vs. Krishanpal & others'. The First Appellate Court of Additional District Judge, Laksar, District Haridwar too had dismissed the Civil Appeal vide its judgment dated 20.08.2019and as a consequence thereto has affirmed the judgment of the learned trial Court, decreeing the suit of the plaintiff-respondent. It is being aggrieved against the aforesaid two impugned judgments of decreeing the suit concurrently of the plaintiff-respondents that the present second appeal has been preferred by defendant/appellant.
In order to precisely deal with the case as pleaded by the plaintiffs-respondents herein before the Courts below it was that they have contended that the properties lying in Khasra No.425 having an area of 0.2100 hectares; Khasra No. 1553 having an area of 0.0600 hectares and Khasra No. 1547 having an area of 0.2400 hectares respectively, i.e. totaling to an area of 0.5100 hectares in total was sold by its erstwhile predecessor owner Baljit Singh to the plaintiff/ respondent and defendant no. 2 by virtue of the two sale deeds being Sale Deed dated 12.01.1987 and 04.09.1987, which was registered as such, as per Section 17 of the Registration Act.
It is not in dispute that apart from the fact the plaintiff/ respondent, who are the beneficiaries of the sale deeds having purchased the property as referred above from its predecessor owner Baljit Singh, simultaneously by virtue of the same two sale deeds of 1987, even the defendant-appellant, herein was also a purchaser of the part of the property to the extent of 1/4th share of the said land on the basis of two sale deeds of 1987. It is also not in dispute rather admitted by parties to the suit, that in pursuance of the sale deed of 1987, the plaintiff/ respondent and the defendant no. 2 through the defendant no. 1, who is her husband, had been cultivating the land of her respective shares, which was vested with her by the aforesaid two sale deeds. The propriety of the sale deed of 1987, and the transfer of the land as mentioned above, the fact that the sale deed of 1987 has not been questioned stands proved on record. Consequently, in pursuance to the sale deeds of 1987, the plaintiff as well as the defendant no. 2 were recorded in the revenue record, which too is a fact which is not being disputed by any of the parties to the proceedings of Suit No. 177 of 2010, 'Krishna and others Vs. Pratap and another'.
Prior to the sale made in 1987, the village was brought under Bandobast in 1387 fasli and as a consequent to the culmination of Bandobast proceedings, the Khasra numbers of the property, which was conveyed had undergone a change and a new Khasra number was assigned to it as Khasra Nos. 587, 586 and 577, lying in Village Raghunathpur @ Balawali, Pargana Gordhanpur, Tehsil Laksar, District Haridwar.
While the sale deed of 1987 stood affirmed vesting their rights in favour of the plaintiff/respondent as well as defendant no. 2, but in the meantime, the predecessor owner of the property Mr. Baljit Singh, is said to have yet again executed a sale deed on 24.02.1998 in favour of the defendant/appellant, which was sought to be challenged by the plaintiff by preferring a suit before the Court of Civil Judge (Junior Division), Laksar, Haridwar being Suit No. 177 of 2010, 'Smt. Krishna and others Vs. Pratap and another'. In the suit thus instituted on 20.12.2010, the plaintiffs have sought the following reliefs:-
"अ- यह कि डिक्री बाबत बैनामा मन्सुखी बहक वादीगण बरखिलाफ प्रति वादी सं0-1 इस आशय की सादिर फरमायी जाये कि विक्रय पत्र जिसकी रजिस्ट्री बी नं-1 जिल्द 127 के पृष्ठ 299 एडी बही नं0 1 जिल्द 150 के पृष्ठ 105/108 में न-323 पर आज दिनांक 24.02.1998 को सब रजिस्ट्रार कार्यालय लक्सर तहसील लक्सर जिला हरिद्वार में की गयी को निरस्त कर व शून्य घोषित की जाये व इस आशय का परवाना अमल दरामद सब रजिस्ट्रार कार्यालय लक्सर, तहसील लक्सर जिला हरिद्वार को भेजा जाये।
ब-यह कि वाद खर्चे वादीगण को प्रतिवादीगण से दिलाया जाये।
स- यह कि अन्य दीगर दादर्शी जो राय अदालत में वादीगण पाने के अधिकारी हैं प्रतिवादीगण को दिलायी जाये।"
The relief, which was sought was a simplicitor declaration of the sale deed dated 24.02.1998, as to be null and void in view of its previous sale already been made in favour of the plaintiff/respondent by its predecessor owner Baljit Singh and part of it in favour of defendant no. 2. In response to it, the defendants have filed their written statement paper number 18A on 13.07.2011, and made an attempt to deny the pleadings raised in the plaint with regards to the propriety of the sale deed dated 24.02.1998, on the ground that since the property, which was already sold and which stood recorded respectively in favour of the plaintiff/ respondent, as well as defendant no. 2, there was no sellable right left with Baljit Singh, who could have validly executed the sale deed dated 24.02.1998, in relation to the property, which already stood conveyed by him earlier by two sale deeds of 1987 to plaintiff/ respondent and defendant no. 2.
What is relevant to be pointed out at this stage its that in the written statement, the defendants' case is not that the sale deed of 1987 was not executed in favour of plaintiff/ respondent and defendant no. 2, even it was their admitted case in the written statement that in pursuance of the sale deed executed in 1987, the defendant no. 2 was also placed in possession, in relation to her respective share, and was cultivating it, who is the wife of defendant no. 1 and it was defendant no. 1 was cultivating the property on behalf of defendant no. 2. Meaning thereby, the factum of the sale and factum of being in a cultivating possession was admitted by the defendant-appellant herein. However, the distinction, which has been sought to be raised by the defendant/appellant in order to support the sale deed dated 24.02.1998, herein it was on the ground that the property, which was conveyed in 1987, subsequent to the Bandobast was in fact in relation to altogether a different property, which has undergone a change in the Bandobast of 1387 fasli and hence he wanted to carve out a case that the sale deed dated 24.02.1998, was in relation to the different property altogether, which was subsequently assigned a new number inthe Bandobast of 1387 fasli.
Based on the aforesaid pleadings, the learned trial Court has framed the issues on 26.09.2012 to the following effect:-
"1. क्या भूमि हाल खसरा नं0 425 रकबई 0.2100 है0 खसरा नं0 1553 रकबई 0.0600 है0 व खसरा नं0 1547 रकबई 0.2400 है0 कुल रकबई 0.5100 स्थित मौजा ग्राम रघुनाथपुर उर्फ बालावली, परगना गोरधनपुर, तहसील लक्सर, जिला हरिद्वार का व अन्य खसरा नम्बर 1387 फ0 के बन्दोबस्त से पूर्व खसरा नम्बर 586 व 587 व 577 थे? यदि हां तो प्रभाव?
वाद प्रश्नगत सम्पत्ति उसे पूर्व मालिक काबिज व स्वामी गैर फरीक वाद बलजीत द्वारा वादीगण व प्रतिवादी सं0 2 को उचित प्रतिफल के मध्य तहरीर व तकमील के हुई है, यदि हां तो प्रभाव?
क्या प्रश्नगत सम्पत्ति पर वादीगण व प्रतिवादी सं0 2 मालिक, काबिज काश्त चले आते हैं? यदि हां तो प्रभाव?
क्या आपत्तिजनक विक्रय पत्र दिनांकित 24.02.1998 छल, कपट व जालसाजशी व धोखाधड़ी का परिणाम है? यदि हां तो प्रभाव?
क्या प्रश्नगत सम्पत्ति खसरा नं0 425 रकबई 0.2100 है0 खसरा नं0 1553 रकबई 0.0600 है0 व खसरा नं0 1547 रकबई 0.2400 है0 स्थित मौजा रघनुनाथपुर उर्फ बालावाली, परगना गोरधनपुर, तहसील लक्सर, जिला हरिद्वार विक्रेता बलजीत सिंह ने वादीगण को विक्रय की है अथवा प्रतिवादी सं0 1 को विक्रय की है?
क्या प्रश्नगत सम्पत्ति विक्रेता बलजीत सिंह ने विधिक अधिकरों के प्रयोग करते हुए बन्दोबस्त के उपरान्त प्रतिवादी सं0 1 को विक्रय की है? यदि हां तो प्रभाव?
क्या विक्रय पत्र दिनांकित 24.02.1998 विधिक कारिति से निष्पादित दस्तावेज है?
क्या वादीगण का वाद काल बाधित है?
क्या वादीगण का वाद विशिष्ट अनुतोष अधिनियम की धारा 34, 36 व 41 से बांधित है।
क्या वादीगण का वाद आदेश 7 नियम 11 सी0पी0सी0 से बांधित है?
क्या मौजा रघुनाथपुर उर्फ बालावाली, परगना गोरधनपुर, तहसील लक्सर, जिला हरिद्वार में साल 1387 फसली में बन्दोबस्त हुआ है और विक्रय पत्र दिनांकित 12.01.1987 व 04.09.1987 विक्रेता बलजीत सिंह द्वारा बन्दोबस्त के उपरांत निष्पादित किये गये हैं?
क्या विक्रय पत्र दिनांकित 12.01.1987 व 04.09.1987 में अंकित खसरा नं0 586 व 587 विक्रय पत्र की दिनांक को विक्रेता बलजीत सिंह के नाम कागजात माल में दर्ज थे, यदि हां तो प्रभाव?
क्या विक्रय पत्र दिनांकित 12.01.1987 व 04.09.1987 विधिक दृष्टि से त्रुटिपूर्ण एवं विक्रेता द्वारा बिना किसी विधिक अधिकार के निष्पादित किए दस्तावेज हैं? यदि हां तो प्रभाव?
अनुतोष?"
10 The prime concern of consideration before this Court would be the adjudication, which has been made by learned trial Court particularly by the findings and determination made on issue nos. 1 & 2, which in itself on its apt determination would be carving out a case that, on the conclusion arrived at by the learned trial Court on appreciation of the evidence led by the parties, the Court had rightly recorded a finding to the effect that as far as the property, which was a subject matter of the sale deed of 1987, in fact, even after the Bandobast it remained the same and there was no change, as such except that new Khasra number was assigned to it and a finding in that regard has been recorded by the learned trial Court in following manner:-
"इस प्रकार वादी साक्षी के साक्ष्य से यह तथ्य साबित होता है कि भूमि खसरा नं0 425 रकबई 0.2100 है0 खसरा नं0 1553 रकबई 0.0600 है0 व खसरा नं0 1547 रकबई 0.2400 है0 कुल रकबई 0.5100 स्थित मौजा रघुनाथपुर उर्फ बालावाली, परगना गोरधनपुर, तहसील लक्सर, जिला हरिद्वार का व अन्य खसरा नं0 1387 फ0 के बन्दोबस्त से पूर्व खसरा नं0 586 व 587 व 577 थे। यह वाद बिन्दु वादी के पक्ष में निस्तारित किया जाता है।"
Similarly, the other findings recorded also pertaining to the issue of being in an effective possession and conveying of title by the sale deed of 1987, as well as with regard to whether the sale deed dated 24.02.1998 was a consequence of fraudulent execution of the sale deed by the predecessor owner, as he at the time of sale in 1998, who was not holding the title on the date when the sale deed itself was executed, the said issue has been decided by the learned trial Court as against the defendant-appellant. And while doing so, the learned trial Court has taken into consideration apart from the oral statement recorded by the witnesses of the plaintiff/ respondent and defendant, the trial Court has also taken into consideration the document as produced by the plaintiff/ respondent by list 7A i.e. sale deed of 1987, i.e. Paper No. 8Ga/1 and Paper No. 9A/1 as well as the sale deed of 24.02.1998 i.e. the impugned sale deed as paper number 10A/1 which was sought to be declared as null and void in the suit itself. The trial Court has also taken into consideration the Khasra and Khatauni which was produced by the plaintiff alongwith the list paper no. 62(Ga) being paper no. 62Ga/2 and 62Ga/3 and also the subsequent Khatauni pertaining to a later fasli year, which was produced on record by list paper no. 57(Ga) i.e. khatauni paper no. 58Ga, 59Ga & 60Ga. On the other hand, defendant too has placed on record paper no. 53(Ga), which was nakal khatauni, as well as the kasras of the land in question apart from leading his sole oral testimony as DW1.
The learned trial Court on considering the rival contentions pertaining to the propriety of the sale deed and particularly the validity of the execution of the sale deed dated 12.01.1987 and 04.09.1987, it has held that the said sale deed was rightly and admittedly, executed in favour of the plaintiff/ respondent and part of it was also sold in favour of defendant no.2 and since the veracity of the said sale deeds was not put to challenge and more particularly, when the defendant No. 2 herself was the beneficiary of 1/4th share of the property thus sold to her in 1987, he i.e. seller Baljit Singh could not have entered into the sale deed dated 24.02.1998, as the said sale deed was held by the learned trial Court while deciding the issue nos. 2 & 4, to the effect that the said sale deed was as a consequence of fraud and a collusion, which was entered into by the defendant-appellant alongwith Baljit Singh and that to when, the erstwhile owner and seller of the property in question at the time of sale was not holding a title over the property. Consequently, the suit of the plaintiff-respondent was decreed and the sale deed dated 24.02.1998, was declared to be null and void. Because defendant/ appellant could not have purchased a better title then his seller who himself was not having title, hence right of sale stood vested in him.
It is this judgment of 30.08.2018, which was subsequently challenged by defendant/ appellant in the appeal and the appellate Court too after considering the rival contentions and particularly the finding recorded, on which the reliance has been placed by defendant/appellant i.e. in para no. 22 of the said judgment both the Courts have concurrently recorded a finding that as a consequence of the conclusion of the Bandobasti proceedings, in fact, it will not effect the sale deed of 1987 or it will not make the property, which was a subject matter of sale deed of 1998, as to be a distinct property, which was subject matter of sale deed of 1987. Hence it has held that since a joint right was created in favour of plaintiff/ respondent and the defendant no. 2 as they were jointly recorded in revenue records over the property which was subject matter of sale deed dated 24.02.1998, the defendant-appellant could not have entered into a conveyance by virtue of the sale deed dated 24.02.1998.
The learned appellate Court, after exchange of pleadings and after hearing the rival contentions had complied with provisions contained under Order 41 Rule 31 CPC by formulating the point of determination as referred in para 12 of the appellate Court's judgment, it too was in relation to as to whether the subject matter of the sale deed of 1987 was the same as that of the subject matter of the property which was sold by the sale deed dated 24.02.1998. Consequently, the appeal after its due determination was dismissed by the judgment dated 20.08.2019, which is the subject matter of challenge in the present second appeal. Para 12 of the order dated 20.08.2019 reads as under:-
"12. अतः पक्षकारों द्वारा प्रस्तुत अपील के आधार, उनकी ओर से प्रस्तुत तर्को, आलोच्य निर्णय तथा पक्षकारों के मध्य विद्यमान विवाद को दृष्टिगत रखते हुऐ इस अपील में न्यायालय के समक्ष हेतु सुसंगत बिन्दु निम्नवतृ हैं-
i क्या भूमि खसरा संख्या 425 क्षेत्रफल 0.2100 है0 खसरा संख्या 1553 क्षेत्रफल 0.0600 है0 तथा खसरा संख्या 1547 क्षेत्रफल 0.2400 कुल क्षेत्रफल 0.5100 स्थित ग्राम रघुनाथपुर उर्फ बालावली परगना गोरधनपुर तहसील लक्सर, जिला हरिद्वार के उसके पूर्व स्वामी व अध्यासी बलजीत सिंह पुत्र श्री परीक्षत सिंह द्वारा क्रमशः विक्रय विलेख दिनांकित 12.01.1987 तथा 04.09.1987 के माघ्यम से वादीगण एवं प्रतिवादी संख्या 2 उषा पत्नी प्रताप को विक्रित नही किया गया था?
ii क्या अपीलार्थी/प्रतिवादीगण संख्या 1 प्रताप द्वारा विवादित विक्रय विलेख दिनांकित 24.02.1988 के माध्यम से कथित रूप से क्रय की गयी भूमी यह सूचना तथा ज्ञान रहते हुए क्रय की गयी थी कि उक्त भूमि पूर्व में ही वादीगण तथा स्वयं उसकी पत्नी प्रतिवादी संख्या 2 द्वारा वर्ष 1987 में दो पृथक विक्रय विलेखों के माध्यम से क्रय की गयी थी?"
In the present second appeal, the appellant in order to substantiate his stand including the challenge given to the concurrent judgment of the Courts below have framed the following substantial questions of law.
"a) Whether the findings recorded by lower courts are against the weight of evidence on records.
b) Whether the findings of appellate court below is based on misreading and misinterpretation of the evidence on record.
c) Whether the court below erred in granting relief beyond the pleadings and relief claimed by the plaintiffs whereby the entire sale deed has been cancelled although relief was to the extent of only three khasra numbers.
d) Whether the judgment of lower courts are vitiated by its failure to consider the entire evidence on record and apply the correct principle of law."
Particularly, a reference which if all could be read to be involved for consideration by the second appellate Court would be to the substantial questions of law as contained in Clause no. "c", wherein he has contended that the decree granted by the learned trial Court and later affirmed by the appellate Court by the impugned judgment happens to be beyond the relief claimed for and beyond the pleading as raised by the plaintiff/ respondent.
In view of the reasoning, which has already been assigned above and also on considering the relief clause of the suit and the nature decree, which has been granted by the trial Court and later on affirmed by the appellate Court, this Court is of the view that both the judgments impugned in the present second appeal are well within the ambit and in paralance to the relief sought for by the plaintiff/respondent in the suit itself and hence this substantial question of law does not fall for any consideration by this Court in exercise of its powers under Section 100 CPC. Apart from it the other substantial question of law with regards to the misreading of the evidence by the Court below while drawing the conclusion as against the sale deed dated 24.02.1998, too cannot be sustained for the reason being that both the Courts below have considered the revenue records and conferment of title to plaintiff/ respondent by sale deed of 1987 and in particular entries made in the Khasra and Khatauni, which has been filed by the plaintiff/ respondent as well as defendant-appellant and on its comparative critical judicial study, the Court has recorded the finding that even as per the record of the Bandobast the contentions raised by the defendant-appellant cannot be sustained, as there was no material change in the area of the property, which was the subject matter of the sale deed of 1987, which was later on conveyed by the impugned sale deed dated 24.02.1998, which was sought to be declared to be null and void.
Even otherwise also as per Section 58 of the Indian Evidence Act, the admitted case of the parties is not required to be proved by adducing evidence, as it has been settled in the authority of Hon'ble Apex Court, reported in 2007 UAD 713, M.Venkataramana Hebbar (D) by L.R.s vs M. Rajagopal Hebbar & Ors.
"12. The contract between the parties, moreover was a contingent contract. It was to have its effect only on payment of the said sum of Rs. 15,000/ - by the plaintiff and other respondents by the defendant Nos. 1 to 3. It has been noticed hereinbefore by us that as of fact, it was found that no such payment had been made. Even there had been no denial of the assertions made by the appellant in their written statement in that behalf. The said averments would, therefore, be deemed to be admitted. Order VIII Rule 3 and Order VIII Rule 5 of the Civil Procedure Code read thus:-
"3. Denial to be specific. - It shall not be sufficient for a defendant in his written statement to deny generally the grounds alleged by the plaintiff, but the defendant must deal specifically with each allegation of fact of which he does not admit the truth, except damages.
* * *
Specific denial. - (1) Every allegation of fact in the plaint, if not denied specifically or by necessary implication, or stated to be not admitted in the pleading of the defendant, shall be taken to be admitted except as against person under disability.
Provided that the Court may in its discretion require any fact so admitted to be proved otherwise than by such admission.
(2) Where the defendant has not filed a pleading, it shall be lawful for the Court to pronounce judgment on the basis of the facts contained in the plaint, except as against a person under a disability, but the Court may, in its discretion, require any such fact to be proved.
(3) In exercising its discretion under the proviso to sub- rule (1) or under sub-rule (2), the Court shall have due regard to the fact whether the defendant could have, or has, engaged a pleader.
(4) Whenever a judgment is pronounced under this rule, a decree shall be drawn up in accordance with such judgment and such decree shall bear the date on which the judgment was pronounced.]"
Thus, if a plea which was relevant for the purpose of maintaining a suit had not been specifically traversed, the Court was entitled to draw an inference that the same had been admitted. A fact admitted in terms of Section 58 of the Evidence Act need not be proved."
Hence both the Courts have recorded the finding that the property sold by Baljit Singh in favour of defendant/appellant by sale deed dated 24.02.2008, it was well within the knowledge of the seller as well as the purchaser, that the property already stood conveyed by seller way back in 1987 to plaintiff/ respondent and defendant no. 2 by registered sale deed. Besides this in the plea raised by defendant/appellant denying the sale deeds of 1987, there was no specific denial as per provisions of Order 8 of CPC. Because defendant/ appellant has not specifically denied the fact of knowledge of the sale deeds of 1987. Rightly so defendant/appellant could have denied the knowledge of sale deed of 1987, because his wife i.e. defendant no. 2, who herself has purchased a part of the property in 1987, jointly with plaintiff/respondent.
In view of the aforesaid reasoning and the findings which have been recorded by the learned trial Court as well as by the learned appellate Court, this Court is of the view that the present second appeal does not involve any substantial question of law, which is required to be answered by this Court in exercise of its power under Section 100 CPC.
Consequently, this Court is of the view that the present second appeal lacks merit and the same is accordingly dismissed.