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Judgment
Rajesh Tandon, J.—Heard Shri Jagdish Prasad, counsel for the appellant and Shri Ram Ji Srivastava, counsel for the defendant-respondent.
By the present second appeal filed u/s 100 of Code of Civil Procedure, the appellant has prayed for setting aside the judgment and decree dated 4.2.2006 passed by the Additional District Judge, Udham Singh Nagar in civil appeal No. 37 of 2005 by which the suit of the plaintiff for cancellation of sale deed dated 22.2.1986 has been dismissed.
Second appeal was admitted on following substantial question of law:
Whether subsequent sale deed if it pertains to the same land in favour of the respondent No. 1 is void and no rights have been passed to him in view of the earlier sale deed dated 23.1.1981 made by Ram Swaroop in favour of the applicant.
Briefly stated, a suit was filed by the plaintiff for cancellation of sale deed dated 22.2.1986 which was registered on 28.2.1986. According to the plaintiff, he has purchased the land khasra No. 50 area o-16 acre situate at Mauja Jaspur Khurd which is in the boundary of Nagar Palika Parishad, Kashipur. The plaintiff has purchased the said land from 23.1.1981 from Shri Ram Swaroop on a sum of Rs. 12,000/- by registered sale deed and since then he is in possession of the said land. Out of the said land, the plaintiff has sold a plot measuring 83 ft. towards East-West and 40 ft. towards North and 49''9" towards South to Anil Kumar Sharma by registered sale deed dated i6.7.i987.The plaintiffs house is towards the West of the land which has been sold to Anil Kumar Sharma and towards the West of the house of the plaintiff, there is a land in triangular shape having an area of 265 sq. ft. which has been shown as letters ka, kha, ga in the plaint map. The defendant has fraudulently got executed the registered sale deed of 265 sq. ft. land on 22.2.1986 in favour of his mother. The plaintiff is the owner in possession of the property in dispute since 23.1.1981 on the basis of registered sale deed. Ram Swaroop had no right to execute the sale deed with regard to the property in dispute in favour of the defendant''s mother. The defendant concealed the fact with regard to the sale deed dated 22.2.1986. On October, 2003, the defendant has disclosed that he has purchased the property in dispute from Ram Swaroop by registered sale deed dated 22.2.1986. The plaintiff then enquired into the office of the Registrar, Kashipur where he came to know that the defendant has get executed a sale deed in favour of his mother with regard to 265 sq. ft. land on 22.2.1986. The plaintiff has stated that the said sale deed is invalid and has prayed that the same may be cancelled.
The defendant has filed a written statement and has submitted that the land in dispute is not the part of the plaintiff s land. The plaintiff has not shown the paimaish of his house on the property ka, ga, ta, tha malafidely. The defendant has submitted that the land of the plaintiff is confined to the area da, sa, ba, ka. The plaintiff has wrongly mentioned the area of his land. It has been submitted that the land in dispute is in triangular shape and the same has been sold to his mother by way of registered sale deed dated 22.2.1986. She has got recorded her name in the Nagar Palika record and has got passed the map of the house. The groundwork has also been made and the plaintiff has never made any objection. The plaintiff has knowledge that the land in dispute is in the possession of Smt. Sashi Rani and the defendant. It has also been submitted that the suit is barred by time and the plaintiff has no concern with the land in dispute. It has been prayed that the suit of the plaintiff may be dismissed.
On behalf of the plaintiff, the plaintiff himself as P.W. 1, Brijesh as P.W. 2 and Hariya as P.W.3 have been examined. The plaintiff has submitted paper No. 10 ga i.e. copy of the sale deed dated 22.2.1986, paper No. 11 ga i.e. copy of half yearly khatauni of 1408 fasli to 1413 fasli, paper No. 12 ga i.e. certified copy of 1410 fasli, paper No. i3ga i.e. sale deed dated 23.1.1981, paper No. 14 ga i.e. certified copy of sale deed dated 9.8.1987.
On behalf of the defendant, D.W. 1 Anup Sharma and D.W. 2 Ghasiram have been examined. The defendant has filed paper No. 23ga/2 i.e. certified copy of demand collection register 1986-87, paper No. 23ga/4 map certificate, 23ga/5 i.e. certified copy of the map for construction of the house passed by Nagar Palika, paper No. 23ga/7 to 23ga/8 i.e. certified copy of tax assessment register of the year 1993-94 and copy of khatauni of year 1408 fasli to 1413 fasli.
On the pleadings of both the parties, the trial court has framed the following issues:
1& D;k oknh okn i= es of.kZr vkjkth ds ekfyd ,oa dkfct gS\\ ;fn gkW rks izHkko\\
2& D;k oknh okn i= es of.kZr vk/kkj ij cSukek fnukad 22-2-86 dks ealw[k djkus dk vf/kdkjh gS \\
3& D;k oknh dk okn fuca/ku ,ao ,Dohft''ku ds fl)kUr ls ckf/kr gS \\
4& D;k oknh dk okn dkyckf/kr gS \\
5& D;k izfrokn Ik= es mYysf[kr vk/kkj ij oknh dk okn isk"k.kh; ugh gSS\\
6& D;k oknh fdlh vU; vuqrks"k dks izkIr djus dk vf/kdkjh gS\\
While deciding issue Nos. 1 and 2, the trial court has recorded the finding that the plaintiff had purchased the land khasra No. 50 area 0-16 acre from the earlier owner of the land by registered sale deed dated 23.1.1981 which has been shown by the letters da, sa, kha, ba in the plaint map and on the basis of that sale deed the plaintiff is the owner of the land in dispute. The trial court has also recorded the finding that the earlier owner of the land has again executed the sale deed of the triangular land shown by the letters ka, kha, ga having an area of 265 sq. ft. in favour of. the defendant and the plaintiff is entitled to get the same cancelled.
On the basis of findings recorded above, the trial court has decreed the suit. Aggrieved by the judgment and decree passed by the trial court, the defendant went in appeal. The appellate court has allowed the appeal and has recorded the finding that it is admitted fact on the record that the plaintiff has purchased khasra No. 50 area 0-16 by registered sale deed dated 31.1.1981 and it is also admitted that the mother of the defendant has purchased the disputed land having an area of 265 sq. ft. from its previous owner i.e. Ramswaroop and the court has to consider as to whether the land purchased by the mother of the defendant is the part of the land that has been purchased by the plaintiff. The appellate court has further recorded the findings as under:
oknh ds c;ku ds vuqlkj jkeLo:i dh vkjkth ds if''pe rFkk vfuy dqekj dh vkjkth ds iwjc es ,d jkLrk 6&7 QhV pkSM+k gS Abl jkLrs dh eki Hkh oknh vius Hkwfe iSekb''k es lfEefyr ugh fd;k gSA vfuy dqekj dh vkjkth iwjc okyh lhek dh eki 83 QqV gS vkSj 6 QqV pkSM+k jkLrk ekus rks vfuy dqekj dh tehu ds iwjc okys jkLrs dh eki 498 oxZ QqV cSBrh gS Abl rjg ls oknh ds vkjkth ds iwjc es fLFkr jkLrk] nf{k.k es fLFkr jkLrk vkSj mRrj es fLFkr jkLrk dh ekiks dks lfEefyr djus es fuEuor ,fj;k cSBrk gS %&
1- oknh ds fufeZr edku dk ,fj;k 1888-65 oxZ QqV 2- oknh ds [kkyh vkjkth dk {ks=Qy 1346-85 oxZ QqV 3- vfuy okyh vkjkth dk dqt {ks=Qy 3392-21 oxZ QqV 4- mRrj okys pcwrjs o lSfIVd VSd dk {ks=Qy 172-40 oxZ QqV i=koyh ij oknh ds c;kuks ls ;g lkfcr gks tkrk gS fd oknh us vius fufeZr edku v{kj d&x&Fk&r dh tks iSekb''k 1865 oxZ QhV crkbZ gS bles mRrj dh nhokj r&d ds vkxs 4 QhV pcwrjs ,oa lSfIVd Vsad dh tehu lfEefyr ugh gS A
The appellate court has also recorded the finding that on the basis of the statement the land of the plaintiff comes to a total area of 7533.11 sq. ft. when in point of fact he himself has admitted that he has purchased an area of 0-16 decimal i.e. 6969-60 sq. ft. and he has more land than 0.16 decimal and, as such, the property in dispute does not prove to be the land of the plaintiff.
The appellate court has further recorded the finding that the suit of the plaintiff is liable to be dismissed and has held that the trial court has erred in analysing and considering the evidence available on the record. The appellate court, thus, has allowed the appeal and has set aside the judgment and decree dated 4.4.2005 passed by the trial court.
Counsel for the respondent has referred the judgment of Sheodhyan Singh and Ors. v. Mst. Sanichara Kuer and Ors. reported in . Paragraph 7 is relevant and the same is quoted below:
We are of the opinion that the present case is analogous to a case of misdescription. As already pointed out the area, the khata number and the boundaries all refer to plot No. 1060 and what has happened is that in writing the plot number, one zero has been missed and 1060 has become 160. It is also Sheodhyan Singh and Others Vs. Musammat Sanichara Kuer and Others, important to remember that there is no plot bearing No. 160 in khata No. 97. In these circumstances we are of the opinion that the High Court was right in holding that this is a case of misdescription only and that the identity of the property sold is well established,, namely, that it is plot No. 1060. The matter may have been different if no boundaries had been given in the final decree for sale as well as in the sale certificate and only the plot number was mentioned. But where we have both the boundaries and the plot number and the circumstances are as in this case, the mistake must be treated as a mere misdescription which does not affect the identity of the property sold.
In Bhandari Construction Company Vs. Narayan Gopal Upadhye, , it has been held that it is impossible to lead evidence to contradict its terms in view of Section 91 of the Evidence Act if the terms of the transaction are reduced to writing. The observation of the Apex Court is quoted below:
When the terms of the transaction are reduced to writing, it is impossible to lead evidence to contradict its terms in view of Section 91 of the Evidence Act.
In view of the above, substantial question of law involved in the second appeal is decided against the appellant. As such, Second appeal lacks merit and is dismissed with costs.