^l^VSf^^t'T^!^f^wiff'^. La.^?uitk%gia1yi? ®3iKiIi@(]OT^SE2CTWfflm!^^%ti'^^ s^^. ^Si^^©';^;;s^^:%ftrMSBtti"^ :||^|lJl:|l§T^^'^^|^^STp^ :tT^ WSfSSKltF%SKiil@i'®%^'tliBfII:l:jEt]eB®jS. )j^;|H3'^ij:g,|g'^,|^^^^^|;i)J'H3|iK Ktilsil®lliiiil8S:lii BiSN@^isi® ;l%BtifflliSl%3^iRlt^ls'[tlS%^S g?|j;|^^,%^|T|^OJ|E^ ^gr^-^^^ ^lili!wsliWftffi^iffiS8iW BM®^^^^ lj^:?'^^;^I.I^M^!iWs^ ||||l3|E^|Ts||^st.in|Is!^i;^^($g^|^^ llHll'^iffi^^l^im:j;i[^::;j:o|'';fj^^ |:^li|^||£igl |||Ri%B^^,is©i^gg|g|||||^B^^ aa K ^^ *.mv ^SM^I;'; ^iSsw^. ^®^^.:' ll^i^^y;;}^ BIK® laW^1!^ ^lSAi''&':v^:?IS^B.,SM31SSS^^ ;iil^f^i;g:ij^SS'2:>)ICTl s^igB|BgggBBg^^ l;l@;u@^|liis^^:;:g<a]|igg||^|i^ W:3|EJTj];^S}Tl|l:)jSS|jJ|§a^jg||^^ ^p9^||^iE|gn^|§j|l|B|^t||||8^||^^ ;:[;'ijml@rrei|^^^.ima|ri^'^|^||aa^l|%^^ •f:^UJ©^^!'i^l|pS|3^:[s^^K|^@|||i|^ ;;,i;l'''n'^:^^:.,'.;..^ ;|Bt:!;^;;|^|^9^S|(^^l^®'t|El^||^^ •||!tet[j^ttx|]^%.g|j|p.p^g:K)|]® cilNji^'®^^.^%ilfl8ji®:IS^^ y|MSs^@^BQ^:;|[H^;JQ^Xli!pIggi^A: ^ SiS:J®^.^(^j®E|^^%&:^:reT^H;B^ :.^r^';-^i;;l^:::® ws''^^ ^!»'^;^~': ^s^Wfnstsah f^txy^m^^ |[^i)aiE?iN|iui@i8^iii[a<aMiiE^®wBi ^^ :«fi l^j|(3|.|^^g'^;||>|@'^&, ^o;iiiECTi^ci^;iifiuiiRnii>aB@i HaiMt^ •fi!;Sil6ii; ;HE;:^h -i'IEI:li;l: :'i m ilSfif .Jil'i'MI m •fe S|!:hi •aa ^•W;S::::^"]|!S;:t:!!iEII'!1: ^•'?:^IBBIS!BI JSiBBiS g,::l^iiB;s3ilfll ^"SSiffSEil SMKBtMSE ^^'^••^ HIGH COURTOF CHHAmSGARH AT BILASPUR Singl^Bench: Hon'ble Shri Justice Prashant Kumar Mishra Second ApDealNo.232 of 2006 Deshraj versus Deepak Saraf and others ORDER Postfor 14-9-2010 Sd//- Prashant Kumar Mishra Judge HIGH COURT OF CHHATTJSGARH AT BILASPUR SinaleBench: Hon'ble Shri Justice Prashant KymarMishra Second Appeal No.232 of 2006 Appellant Respondents versus Deshraj Deepak Saraf anct others Present: Shri K.A.Ansari, Senior Advocate with Shri Badruddin Khan, counsel for the appellant. Second Appeal under Section 1 00 of the Code of Civil Procedure ORDER (Passed on j^ September, 2010) This is plaintiff's second appeal under Section 100 ofthe Code of Civil Procedure, 1908 challenging the judgment and decree passed by the first appellate Court by which the appeal preferred by the defendants/respondents No.1 and 3 herein have been allowed and the judgment and decree passed by the trial Court, allowing the plaintiffs suit, has been set aside. 2. The plaintiff preferred the suit for declaration of title and mandatory injunction with respect to the plaint schedule suit house on the pleadings inter alia that the said suit house was purchased by him vide registered sale-deed dated 18-2-1967 for Rs.20,000/- out of which Rs.10,000/- was paid on the date of registration and it was \ agreed that the remaining Rs.10,000/- shall be paid to defendant fNo.3 in 10 equal monthly installments of Rs.1,000/- each. m"ws^f^"Sa Possession was handed over to the plaintiff on the date of registration and since thereafter the plaintiff is in possession of the suit house as its owner. It was further stated in the plaint that the suit house was purchased by defendant No.3 on 18-9-1958 for Rs.18,000/- and his name Was duly recorded in the municipal records on the relevant date. Name of the plaintiff was recorded in the municipal records and he used to pay the property tax, however, in November, 1989, he received a notice sent by defendant No.1 though his counsel alleging that the plaintiff is a tenant, is in arrears of rent. After receipt of notice, the plaintiff verified the municipal records and came to know that defendant No.2/Municipal Corporation, Bilaspur has recorded the name of defendant No.1 as owner of the suit house. The plaintiff applied for and received the certified copy and thereafter notice under Section 401 of the Municipal Corporation Act was served upon the Municipal Corporation on 7-12-1989 for deleting the name of defendant No.1 and recording his name as owner. It was further stated that notice dated 7-12-1989 was also sent to the defendant No.1 to which he replied that the subject sale-deed was a sham transaction and was not an out and out sale in favour of the plaintiff. The suit was filed on 15-1-1990. 3. Defendants No.1 and 3, in their written statement, denied the entireplaint allegations and stated that the property belongs to the \ joint Hindu family and Motilal was neither entitted nor there was any \ necessity to execute the sale-deed much-less any legal necessity. '"According to the defendants, the subject sate-deed was a sham or »';'.' ^ nominal sale-deed without intention of conferring any title on the plaintiff. It was stated that the plaintiff had received notice of the proceedings relating to assessment of property tax initiated by the Property Tax Officer of Municipal Corporation, Bilaspur and in the said proceedings, Deshraj had appeared and thereafter property tax assessment was finalised in the name of Motilal. It was denied that the plaintiff had ever paid property tax to the Municipal Corporation. It was also stated that in the reply filed by the plaintiff before the Property Tax Officer on 31-3-1972 and in his application dated 5-4- 1972 he has not claimed ownership of the suit property and that he has never challenged the said assessment in any Court of law. 4. The defendants further stated that the plaintiff was a tenant in the house and continued to be a tenant and that in the year 1967 the value of the house was much more than Rs.20,000/-, therefore, a sale-deed could not have been executed for Rs.20,000/-. It was specifically stated that defendant Motilal had obtained loan from the plaintiff and the sale-deed was executed as a security for repayment of loan and was a nominal sale-deed and that the entire loan amount has been repaid and due to this reason the plaintiff, in his submission before the Property Tax Officer in the year 1 972 had not claimed any ownership. It is the categorical stand of the defendants that because of his submission before the Property Tax Officer, the plaintiff is estopped from taking a different plea and the suit is based on false and ma/a fide plea; According to the defendants, the property tax was paid by the defendant Motilal all through out which 'was never objected by the plaintiff, It was also stated that the '->' recording of the name of plaintiff in the municipal records in the year 1970-71 was on account ofthe illegal and ma/a ffde act of the plaintiff, which was corrected on the application of the defendant Motilal, as soon as the illegal and mischievous act of the plaintiff came to the knowledge of the defendant Motilal. It was further stated that the defendant Deepak Saraf published one public notice in the 3 May, 1978 Edition of daily newspaper Bilaspur Times notifying that in view of the order passed by the 1 Civil Judge Class-t, Bilaspur on 4-7-1970 in M.J.C. No.8/69, the name of the plaintiff has been deleted, therefore, no person should contract for purchase of the house from Deshraj, however, in spite of this public notice the plaintiff did not initiate any iegal action, instead he was continuing to pay rent to the defendants which was also mentioned in the newspaper publieation. The cause of action for filing the suit was denied as artificial and not arising in favour of the plaintiff. Thus, the defendant prayed for dismissal of the suit with exemplary cost, not only on merits but also for being barred by limitation and on account of the same having been submitted without serving any notice to the Municipal Corporation, Bilaspur in accordance with law. 5. The trial Court decreed the suit after finding that the suit house was purchased by the plaintiff oh payment of consideration and that deletion of his name in the municipal records was illegal. 6. The defendants preferred the appeal challenging the judgment and decree of the trial Court, which has been allowed by the first appellate Court. The appellate Court has re-appreciated the evidence and has recorded the finding that thetransaction dated 18- 2-1967 was in fact executed by the defendant Motilai as security for obtaining the loan and that it was never intended or agreed between the parties to transfer the title. The first appellate Court has pointed out the following evidence to record the finding against the plaintiff/appetlant while allowing the first appeal and dismissing the suit: (a) The electric connection continued to remain in the name of Motilal and thereafter in the name of the defendant Deepak Saraf even after the subject transaction and the plaintiff never took steps or pursue the matter for transfemng the electric meter in his name. (b) The plaintiff has never paid the property tax to the Municipal Corporation after the year 1970. The suit was filedintheyear1990. (c) The plaintiffsays that he became aware of the correction in the municipal records in November, 1989 after receiving the legal notice, whereas the defendant Deepak Saraf had issued a public notice in the daily newspaper Bilaspur Times dated 3-5-1978 that he is the owner and the plaintiff js thetenant and that nobody should contract to purchase the suit house from the plaintiff. It was also mentioned in the public notice that in pursuance to the order passed by the 1st Civil Judge Class-l, Bilaspur on 4-7-1970 the name of the plaintiff has been deleted/removed from the municipat records. ) As per the plaintiff, his .acquaintance with the defendant Motilal was pnly for a period of 15 days before the subject transaction, therefore, it is contrary to natural human conduct and behaviour that during the short period the parties developed such intimacy that the ptaintiff agreed to 's'-s" J ^ purchase the house for Rs.20,000/- and that too paid only Rs.10,000/- at the time of execution of the sale-deed and remaining amount was to be paid in installments. It is beyond comprehension as to when the defendant Motilal was in need of money and agreed to sell the house for Rs.20,000/- then why he would receive only Rs.10,000/- at the time of execu'tion of the sale-deed and agreed for obtaining the remaining amountin installments. (e) If the plaintiff was not having the amount of Rs.20,000/- lump sum at the time of purchase, how did he agree to purchase the propertyfor Rs.20,000/-. (f) In Ex.D-1 and D-2, which are the submission made by the plaintiff before the Municipal Corporation, Bilaspur on 31-3- 1972 and 5-4-1972 respectively the plaintiff has admitted that the owner of the house is the defendant Motilal and that he is not the owner. (g) Ex.D-3 and D-4 are the memo of appearance submitted by the ptaintiffs counsel Shri Mirza Hasan Baig and the notice issued by the Municipal Corporation, Bilaspur to the plaintiff on the application made by Motilal for correction of records. (h) On plaintiff's denial of his signature on Ex.D-1 to D-4, it was got examined by handwriting expert and thereafter DW-3 Sunanda Dhenge (handwriting expert) has proved that the signature available on Ex.D-1 to D-4 is the signature ofthe plaintiff. 1) On the basis of these evidence, the first appellate Court found that it was the plaintiff who had admitted the ownership of Motilal before the Municipal Corporation, Bilaspur in his submission/application dated 31-3-1972 and 5-4-1972, Ex.D-1 and D-2 respectively. T!i'!'fl!^SS\f';Si:St-Si ••SiS'.riSK.'ifStS.tsWS's- » .; (j) As per the plaintifFs own statement, he paid property tax only for 2-3 years, however, he never bothered to verify the record of the Municipal Corporation for these long years and did not pay the property tax. (k) In the public notice issued at the instance of the defendant Deepak Saraf on 3-5-1978 in daily newspaper Bilaspur Times, the plaintiff's ownership and title was challenged yet the suit for declaration was filed in the year 1990 which is clearly barred by limitation as the limitation for filing a suit for declaration is 3 years from the date when the plaintiff's title is challenged by the defendant. 7. Learned counsel for the appellant/plaintiff has argued that the registered sale-deed is a sacrosanct document and there is presumption of its correctness. He would submit that the findings recorded by the first appellate Court are perverse because if the defendant Motilal had taken loan why would he agree for loan in installments. Learned counsel has relied upon Durga Prasad and another vs. Deep Chand and others, AIR 1954 SC 75, Ishwari Dev/ (Smt) vs. Sar/a Devi (Smt) and others, 1995 Supp (2) SCC 86, Bishundeo Narain Rai (dead) by L.Rs. and others vs. Anmol Devi and others, AIR 1998 SC 3006 and Surendra Kumar vs. Nathulal, AIR 2001 SC 2040. This Court has gone through the record of the case to examine whether the findings recorded by the first appellate Court are in any manner perverse. ^ 8. In Ex. D-1, the plaintiff states that he has been sent a notice regarding property tax, whereas the property belongs to Motilal, son of Natthulal. Ex.D-3 is the memo of appearance signed by the Wsf:^li^ 8 . plaintiff and his counsel Shri Mirza Hasan Baig. In Ex.D-2, the plaintiff has again stated that the notice for recovery of property tax be sent to the recorded owner, namely, Motilal.son of Natthulal and the proceedings for recovery of property tax against him be dropped. Ex.D-6 is the copy of the order passed by the 1 Civil Judge Class-l, Bilaspuron 4-7-1970 in M.J.C. No.8/69, which was a proceeding in appeal under Section 139 of the Municipalities Act. In this order, the civil Court has directed that the change of name in the records are illegal and that Motilal should be heard before effecting any change in the record and after holding due enquiry. In this order, it is also mentioned that the notice was served on the respondent to show cause and one Mr. Sinha, Advocate for the respondent appeared but did not file any reply. Ex.D-21 is an order by the Property Tax Officer, Bilaspur passed on 1-6-1974 mentioning that since Deshraj has informed that Motilal is the owner of the house, notice for recovery of property tax be issued to him. Ex.D-39 is the newspaper publication dated 3-5-1978. Another newspaper publication dated 26-5-1990 is Ex.D-40. The report ofthe handwriting expert is Ex.D- 41. 9. Both the parties have tried to prove their respective cases by leading oral evidence. The first appellate Court, after referring to the oral as well as to the documentary evidence, has recorded the finding of fact that the subject document was in fact a loan transaction and title was never intended to be conveyed and that it was a sham or nominal transaction. Gopal SSIBISISBillSBIiilBiB^KiB^BSII^^BIUI^^B^^BSJS '(^^l@S^.1ffi^i^|SB||%§l g/i||i^ record, this Cburt finds tHat the fihdings recoFded ^Stft^ appellate Court are not perverse. The judgments relied by learned counsel for the appellant are about presumption attached tothe recital in thesale-deed, however, in viewof the finding of fact recorded by the first appellate Court, the presumption stands rebutted. The judgments are, thus, distinguishable on facts and are not applicable in the present case. 11. In view of the above, no substantial question of law arises for determination in this second appeal, which fails and is hereby dismissed. Sd//- Prashant Kumar Mishra Judge 1