IN THE HIGH COURT OF JUDICATURE AT PATNA SA No.42 of 2009 SUBHADRA DEVI, Wife of Ram Lakhan Prasad, Resident of village Bandh Rasalpur, P.S. Islampur, District Nalanda at present Rajgir Panchrukiya, P.O. and P.s. Rajgir, District Nalanda ….. Plaintiff … Appellant … Appellant Versus DHARMBIR UPADHAYA, Son of Hari Kishore Upadhaya resident of village Sabalpur, P.O. and P.S. Rajgir, District Nalanda …. Defendant …… Respondent . …. Respondent ----------- For the Appellant : M/s Sukumar Sinha, Sr. Advocate Abinash Kumar, Advocate ------ 5 09.11.2010 This appeal has been preferred against the judgment and decree dated 11.12.2008 passed by the District Judge Nalanda at Biharsharif in Title Appeal No. 27 of 2007, whereby he has dismissed the appeal and affirmed the judgment and decree dated 31.8.2007 passed by Sub Judge, 1st Nalanda at Biharsharif in Title Suit No. 132/2002. The plaintiff – appellant has filed Title Suit No. 132/2002 for declaration that the two sale-deeds dated 10.4.2002 are forged, fabricated and not binding upon the plaintiff with a further relief to restrain the defendant from interfering in peaceful possession of the plaintiff. Plaintiff has challenged the aforesaid two sale-deeds executed by herself in favour of the 2 defendant on the ground that her signature has been obtained by playing fraud on blank papers and stamp papers on the pretext of swearing affidavit for getting loan. It has also been stated that on that pretext she was taken to the office of the Registrar and her signature and thumb impression was taken in the register concerned. It is also alleged that defendant also got the signature of her sister Shyama Devi as a witness upon the document. However, she came to know on 12.7.2001 that the defendant had got a sale- deed executed and upon enquiry and after getting the certified copy of the deed she could know about fraud played by the defendant. The case of the defendant is that the plaintiff executed two sale-deeds on 19.4.2002 in his favour after receiving full consideration money and the name of the defendant was mutated in Rajgir Notified Area having holding no. 174A/1, of Ward No. 1. The allegation of fraud had been denied by the defendant . The trial court upon consideration of the pleadings of the parties framed six issues in all and held, after appreciation of materials on record, that 3 the plaintiff could not prove forgery and the sale-deeds are genuine documents having been executed after receiving entire consideration money. Thus, the trial court has dismissed the said suit with cost on contest. The judgment and decree of the trial court was challenged in Title Appeal No. 27/2007. However, the lower appellate court has also dismissed the appeal after affirming the finings recorded by the trial court. I have heard learned counsel for the appellant. It has been canvassed on behalf of the appellant that both the courts have erred in recording the finding that the sale-deeds concerned are genuine documents as the plaintiff had sufficiently proved that she was a pardanaseen illiterate lady and her signatures or thumb impressions were taken on blank stamp papers without any consideration money having been paid to her. Learned counsel submitted that the courts below have given unnecessary emphasis on the recital of the sale-deeds regarding the payment of consideration amount inasmuch as it is well settled 4 that even if there is recital in the sale deeds regarding payment of consideration money, the concerned party would have a right to prove otherwise and in that event if the same is challenged such recital would not be proved of payment of consideration amount in itself. In this regard learned counsel has placed reliance upon a decision of Division Bench of this Court rendered in Baldeo Sigh v. Dwarika Singh [1978 P.L.J.R. 255]. It has been contended that in the aforesaid case it has been held that even though the sale-deed may recite that the consideration money has been paid, but that would not prevent the parties to challenge the same. Learned counsel pointed out that there is variation in the oral evidence adduced on behalf of the defendant regarding receiving the amount paid as consideration for sale. Thus, it has been urged that courts below have committed serious error in dismissing the suit filed by the plaintiff. However, this Court does not find any substance in the submissions made on behalf of the appellant. 5 The trial court has considered the point raised regarding plaintiff being illiterate lady. The trial court has opined that regarding the endorsement accepting receipt of consideration money in writing before the Registrar at the time of execution onus lies upon the plaintiff to prove that she has not written such endorsement as she was illiterate. Both the courts below have taken notice that a sale-deed executed by the plaintiff in favour of Manju Devi, has been brought on record as Ext. C/4 by the defendant. In that sale deed also there is endorsement made on behalf of the Subhadra Devi, i.e., the plaintiff, regarding receiving payment. This sale could not be denied by the plaintiff, as such, the claim of plaintiff being illiterate lady falls flat. Similarly it has been noticed by the trial court that P.W. 2 Sanjeev Kumar has stated in paragraph no. 5 of his evidence that his Mausi, the plaintiff Subhadra Devi, is literate lady. The trial court has also noticed that the plea of plaintiff of being pardanasin lady apart from other fact is also absurd inasmuch as the plaintiff herself has admitted that she was a “Dai” (village labour worker 6 in hospital), i.e., a working lady. Learned counsel for the appellant could not point out any material to indicate that these findings are erroneous. Similarly, the lower appellate court has also noticed that the sister of the plaintiff, namely, Shyama Devi is a witness of the sale-deed and as such she was the best person to say as to whether the said endorsement regarding receiving the consideration money was made by the plaintiff or not or even the sale deed had actually been executed or not. But to the utter surprise, though she was alive, has not been examined in the suit. The lower appellate court has also noticed that the deed of sale executed by the sister of the plaintiff, namely, Shyama Devi, in (Ext C/3) and also the original deed of sale executed by Shyama Devi in favour of Subhadra Devi (plaintiff), which is Ext. C/2, have been brought on record by the defendant. Now the question arises how could the defendant get those original sale-deeds which should have been in the possession of the plaintiff herself. The appellate court has answered that obviously the aforesaid sale-deeds might have 7 been handed over to the defendant by the plaintiff at the time of sale. In Baldeo Singh & ors (supra), the plaintiff had brought a suit for declaration that they have acquired title of the land described in schedule A of the plaint, by virtue of sale-deed executed by the defendant first set and also to direct the defendant to accept the consideration amount of Rs. 1500/- Thus, in the aforesaid case it was admitted that consideration money was not paid by the vendee to the vendor. That apart it has been held by the Court in the aforesaid case that if there is a recital in the sale-deed concerned regarding payment of consideration that would not in itself prevent the parties from adducing evidence to show that such recital is not correct. However, in the present case though the plaintiff denies receiving of the consideration money but the same is not admitted rather the defendant denies the allegation and there is endorsement made by the plaintiff at the time of registration before the authorities that she has received the consideration money. Both the courts below have held that the 8 plaintiff could not prove by leading evidence that such endorsements were obtained by forgery or consideration was actually not paid. Thus, in my opinion , the decision in Baldeo Singh and ors. (supra) would not come in help of the appellant. In view of the aforesaid facts and circumstances, this Court is of the opinion that the appellant could not point out any error in the findings recorded by the courts below. Accordingly, this appeal is dismissed. Spd/- ( Dr. Ravi Ranjan, J.)