Raje & Anr. v. Kela & Ors.

Present : Mr. Chanakya Pandit, Advocate for the appellants. K.C.PURI, J. This is an appeal directed by defendants against the judgment dated 29.1.2010 passed by learned Additional District Judge, Sonepat vide which the appeal against the judgment passed by Civil Judge (Junior Division), Sonepat dated 31.10.2009 was dismissed. The legal heirs of Bhagirath son of Tanu filed a suit for declaration and possession challenging the sale deed bearing No.1343 dated 14.5.2004 and mutation No.3800 alleged to be executed by Bhagirath in favour of Raje and Rajender defendants, nephew of Bhagirath. It is alleged that Bagirath predecessor-in-interest of plaintiff was the owner of RSA No.1754 of 2010 2 land 5 kanals 16 marlas fully described in the head note of the plaint. Bhagirath fell ill and defendant Nos.1 and 2, real nephews, took him to Memorial Hospital, Sonepat for the purposes of treatment. Plaintiff No.1 Kela Devi, being a lady used to visit the hospital in day time. On

12.5.2004 defendant got Bhagirath discharged from the hospital on the pretext of shifting Bhagirath to another hospital for better treatment but by committing fraud got executed a registered sale deed dated 14.5.2005 in their favour. Mutation in this regard has also been attested. The sale deed is the result of fraud committed by defendants upon Bhagirath and the plaintiffs. On put to notice, defendant filed written statement claiming that Bhagirath has sold the suit property on 14.5.2004 for a consideration of Rs.1,45,000/-, mutation has also been sanctioned and possession has also been delivered to them. Bhagirath and Bhagwat were the real brothers and Joint Hindu family was got partitioned about 50 years back and since then they are residing separately. It is admitted that Bhagirath was in ailing condition and remained under treatment in Memorial Hospital, Sonepat. However, the factum of committing fraud has been denied. Bhagirath was suffering from asthmatic problem and he was discharged as his health was improved. He was in a fit mental estate and executed the sale deed in favour of the defendants. Rs.45,000/- were paid as cash and the land was redeemed in respect of the remaining amount of Rs.1,00,000/-. The sale deed was executed by Bhagirath out of the free will and consent and there is no foul play. From the pleadings of the parties, following issues were RSA No.1754 of 2010 3 framed :-

1. Whether the sale deed dated 14.5.2004 qua suit property mentioned in para No.1 of the plaint is null, unlawful, forged and fabricated, if so to what effect?OPP.

2. Whether the mutation bearing No.3800 is null and void ? OPP.

3. Whether the plaintiffs are entitled for possession of the suit property ?OPD.

4. Whether the suit of the plaintiffs is not maintainable in the present form ?OPD.

5. Whether the plaintiffs have concealed true and material facts from the Court, if so to what effect? OPD.

6. Relief. The plaintiff has examined herself as PW-1 and also examined Dr.Ramesh Mehta (PW-2) and Hari Singh as (PW-3) and tendered certain documents. On the other hand defendants examined Rajender as (DW-1), Rambhaj as (DW-2), Rajender Singh Vasika Nawis as DW-3, Raghunath as DW-4 and Passe as DW-5 and closed the evidence. The learned trial Court has taken up issue Nos.1 and 2 together and returned finding on these issues in favour of the plaintiff and against the defendants. Regarding Issue Nos.3, 4 and 5, it was held that plaintiffs are liable to pay the ad-valorem Court fee. Consequently, the suit of the plaintiff for declaration and possession was decreed. Feeling dissatisfied with the above said judgment, the defendants-appellants preferred the first appeal. The said appeal was heard and dismissed by Shri K.C.Sharma, learned Additional District Judge, Sonepat. RSA No.1754 of 2010 4 Still feeling dissatisfied with both the judgments dated

31.10.2009 and 29.1.2010, the present regular second appeal has been preferred. Learned counsel for the appellant has mentioned in paragraph No.4 of the grounds of appeal that following substantial questions of law has arisen :- a) Whether the finding of the sale deed being executed by fraud is perverse and against the pleadings and evidence on record ? b) Whether while adjudicating upon the validity of a contract the trial Court wrongly ignored a discussion on the basic principles of offer, acceptance and consideration coupled with free will and arrived at a conclusion in a most conjectural manner ? The real controversy involved in the present lis is in respect of sale deed dated 14.5.2004 alleged to be executed by Bhagirath Singh in favour of the present appellants. Both the Courts below, after appraisal of the evidence on the file, reached to the conclusion that said sale deed is the result of fraud committed by the appellant on Bhagirath Singh. That being a concurrent finding of fact by both the Courts below, does not call for any interference. Bhagirath Singh remained in the hospital till 12.5.2004 and was got discharged by the appellants from the hospital and thereafter got executed the sale deed. From the testimony of the doctor, it is revealed that even the bill of medical treatment has not been paid. Both the Courts below have stated that the appellants have contradicted themselves regarding payment of the sale consideration. Had any consideration been paid to deceased Bhagirath Singh, then the hospital authorities would not have made any complaint regarding the payment of the medical bill. Bhagirath Singh died due to lack of funds. There is nothing on the file that any RSA No.1754 of 2010 5 amount was paid by the appellants to Bhagirath Singh. Bhagirath Singh was old man and was not in a position to execute the sale deed. So, in these circumstances, both the Courts below have rightly held that sale deed in favour of appellant is not proved. The recital in the sale deed is that Rs.1,00,000/- has been paid earlier whereas the evidence is that no amount was paid but according to the appellants the amount of Rs.1,00,000/- was used for redemption of land. DW-4 Raghunath Lamberdar has given a different story and has stated that Rs.1,25,000/- was given to Bhagirath Singh at the house and the remaining amount of Rs.20,000/- was given to Passe on the date of registration in lieu of mortgage. The appellants were in a dominating position, so far as Bhagirath Singh is concerned, no amount of sale consideration has passed to him. So, both the Courts below have rightly held that appellants have failed to prove the sale deed and passing of any consideration. It cannot be said that the finding of both the Courts below is perverse regarding committing fraud upon Bhagirath Singh. There is no legal and valid contract between the appellants and deceased Bhagirath Singh. There is nothing on the file that Bhagirath Singh with his free Will executed the sale deed or any contract with the appellants. So, in view of the above discussion, both the substantial questions of law raised by the appellants stand determined against the appellants. Consequently, the appeal is without any merit and the same stands dismissed. RSA No.1754 of 2010 6 A copy of this judgment be sent to the trial Court for strict compliance. July 2nd, 2010 (K.C. PURI) JUDGE