HIGH COURT OF UTTARANKHAND AT NAINITAL SECOND APPEAL NO. 26 OF 2003 Mula …..Appellant Vs. Rampal and others ….Respondents 8.4.2008 Hon’ble Rajesh Tandon, J. Heard Shri Alok Singh, Sr. Advocate assisted by Shri D. Barthwal, counsel for the appellant and Shri Parikshit Saini, counsel for the respondents. 2. By the present second appeal filed under Section 100 of the Code of Civil Procedure, the appellant has prayed for setting aside the judgment and decree dated 10.3.2003 passed by the Additional District Judge, Haridwar in Civil Appeal No. 3 of 1999. 3. Second appeal was admitted on the following substantial question of law:- 1. Whether mere substitution of legal heirs makes them natural heir inheriting the property? 2. Whether in a suit for cancellation of sale deed on the ground of fraud, forgery and 2 impersonation burden of proof strictly lies on the plaintiffs?” 4. Briefly stated, a suit being suit no. 108/1991 was filed for cancellation of sale deed dated 17.6.1991. According to the plaintiff he is the owner in possession of the property shown in the plaint. The plaintiff is aged about 85 years and due to old age his eyesight and hearing capacity has weaken and, therefore, the plaintiff is dependant on others for his each and every work. The plaintiff is an illiterate person and he is a widower and issueless. It has been alleged that the defendant Mula Ram persuaded the plaintiff that if he executes a Will of his property, the defendant will get old age pension facility for the plaintiff. On 14.8.1991, the plaintiff went to Roorki Court and got executed registered Will in favour of the defendant. On 17.6.1991, the defendant went to the Roorki Court with the plaintiff and got the thumb impressions on some documents and photographs. It has been alleged that on 22.6.1991 the defendant tried to take possession over the property in dispute on the ground that registered sale deed has been executed in his favour. The plaintiff went to the Roorki Court and inquired about the matter. Then he came to know that on 17.6.1991 the defendant has got executed the sale deed registered in his favour. It has been alleged that the aforesaid sale deed is fake and forged one and the same has been got executed without paying any consideration. Hence, the suit has been filed for cancellation of sale deed dated 17.6.1991. 3 5. The defendant has filed a written statement denying the plaint averments. It has been submitted that the plaintiff is fully capable of hearing and he has sound mental health. When the plaintiff has executed the sale deed in favour of the defendant, the defendant was persuaded by Bijahari Singh and Bel and filed the present suit against the plaintiff. The defendant has executed the sale deed on his on free will. 6. The plaintiff has filed the replication reiterating the plaint averments and has denied the submission made in the written statement. It has also been stated that judgment passed in Criminal Case under Section 420 I.P.C. has no effect on the present suit. 7. On the pleadings of the parties, the trial court has framed the following issues:- “1- D;k okn Ik= dh /kkjk 8 esa fyf[kr dkj.kksa ls fookfnr fodz; Ik= fujLr gksus ;ksX; gS\ 2- vuqrks"k\ 3- D;k dfFkr olh;r fnukafdr 30-7-92 oknh cq)q us LosPNk ls fu"ikfnr dh Fkh\ ;fn gkWa rks izHkko\ 4- D;k dfFkr olh;r QthZ gS\ ;fn gkWa rks izHkko\ 5- D;k cq)q flag }kjk fookfnr fodz; Ik= dh /kks[ks ds vk/kkj ij izfroknh ds fo:) QkStnkjh okn fnukad 4-2- 95 dh U;k;ky; flfoy tt ¼ts-Mh-½ :M+dh ls gqvk\ 8. The plaintiff has examined P.W.1 Tolu, P.W.2 Ramesh (witnesses of Will), P.W.1 Buddhu, P.W.2 Tolu, P.W.3 Chandrabhal, P.W.4 Ramesh, P.W.5 Prem Pal and P.W.6 4 Mukul Kumar Garg. The defendant has examined D.W.1 Ram Singh, D.W.2 Mula, D.W.3 Pramil Kumar and D.W.4 Vinod Kumar Agrawal. 9. Towards the documentary evidence, the plaintiff has produced the document as per list 5 ga, 25 ga, 45 ga and 4 documents as per list 64 ga. The defendant has produced documents per list 96 ga, 21 ga and 112 ga. 10. While deciding as to whether the sale deed in question is liable to be cancelled, the trial court has come to the conclusion that the plaintiff has failed to prove that the sale deed in dispute i.e. paper no. 17 ka has been executed by persuading the plaintiff and, therefore, sale deed in question is not liable to be cancelled. 11. While deciding as to whether the Will dated 30.7.1991 was executed by the plaintiff on his own will and further, as to whether the said Will is fake one, the trial court has come to the conclusion that the said Will was not executed by the plaintiff and the same was a fake one being executed by playing fraud on the plaintiff. The trial court has recorded the finding to the following effect:- “;gkWa ij eSa ;g mYys[k djuk vfr egRoiw.kZ le>rk gWwa fd oknh cq)q us tc fnukad 17-6-91 dks viuh fookfnr lEifRr dk cSukek izfroknh ewyk ds Ik{k esa fu"ikfnr dj fn;k gS rks mlh lEifRr dh tks cSukek ds }kjk oknh izfroknh dks fcdz; dj pqdk gS iqu% mlh lEifRr dh olh;r oknhx.k tks oknh cq)qa ds ejus ds ckn okfjlku ds :Ik esa bl okn esa dk;e gqbZ gS muds Ik{k esa fd;s tkus 5 dk dksbZ u rks vkSfpR; jg tkrk gS vkSj u gh ;g ekuk tk ldrk gS fd mlh fookfnr lEifRr tks oknh ds gd esa ,d ckj fodz; dh tk pqdh gS iqu% fdlh vkSj ds olh;r dj nh A blfy;s ;g olh;r tks lEifRr oknh us 17-6- 1991 dks cSukek ds }kjk fodz; dj nh Fkh mlds vykok vkSj 'ks"k lEifRr oknh c q)q ds uke 'ks"k cph Fkh ysfdu tc fookfnr lEifRr tks 17-6-91 dks olh;r dh gS ;g ckr rks Lohdkj fd;s tkus ;ksX; gS vkSj u gh fo’okl djus ;ksX; gS cfYd ,slk izrhr gksrk gS fd tc orZokn oknhx.k dks fnukad 17-6-91 ds cSukek ds ckjs esa tkudkjh izkIr gqbZ rc ;g orZeku olh;r ml lEifRr dh gS tks fnukad 17-6-91 dks oknh cq)q ds }kjk csph tk pqdh Fkh mlus vius Ik{k esa ,d "kM+;a= ds vUrxZr vius Ik{k esa fu"ikfnr djk;h gS ftls oknh cq)q ds }kjk LosPNk ls dh tkus okyh olh;r ugha ekuk tk ldrk A” 12. While deciding with regard to criminal case against the defendant Mula, the trial court has recorded the finding that the judgment passed in the criminal case under Section 420 I.P.C. has no effect over the present suit. The trial court has recorded the finding to the following effect:- ßfnukad 17-6-91 ds fodz; Ik= dks oknh dh vksj ls 420 vkbZ-ih-lh- dk ekeyk izfroknh ds fo:) fd;k Fkk A mlesa oknh cq)q izfroknh ewyk ds fo:) 420 vkbZ-ih- lh- dk vkjksi dks fl) djus esa fuf’pr gh vlQy jgk ysfdu mDr fu.kZ; dk dksbZ ykHk bl dFku ds vfrfjDr esa ;g ij ij izfroknh dks i{k djuk Hkh mijksDrkuqlkj U;k; laxr ugha ikrk gWwa A” 6 13. On the basis of the aforesaid, the trial court has dismissed the suit of the plaintiff. 14. Aggrieved by the judgment and decree passed by the trial court, the plaintiff went in appeal. The appellate court has reversed the findings of the trial court and allowed the appeal. The appellate court has observed as under:- “xokg rsywjke dks nks ckj ijhf{kr djk;k x;k gS] ,d ckj olh;r dh dk;Zokgh esa vkSj nwljh ckj xq.knks"k ds vk/kkj ij mHk;Ik{kksa }kjk lk{; izLrqr djrs le; lk{kh la[;k 2 ds :Ik esa is’k fd;k x;k gS A gkf’k;k xokg jes’k us Hkh rFkk olh;rukes ds rS;kj djus okys Jh pUnzHkku flag ,MoksdsV us Hkh blds fu"iknu dks fl) fd;k gS blfy, mDr fopkj ls fu"d"kZ ;g fudyrk gS fd fookfnr cSukek izfrQy fodzsrk dks ugha feyus rFkk isa’ku ds dkxtkr crkdj fodzsrk dk vaxwBk izkIr djus ds dkj.k voS/k] 'kwU; ,oa fu"izHkkoh gSa vkSj [kafMr gkus ;ksX; gS A fo}ku flfoy tt lhfu;j fMohtu dk blls vU;Fkk fu.kZ; =qfViw.kZ gS A bl vFkZ esa vihy Lohdkj gksus ;ksX; gS A” 15. A perusal of the judgment and decree passed by the appellate court reveals that the appellate court has failed to examine the sale deed dated 17.6.1991 besides the witnesses as well as the statement of D.W.1 Pramil Kumar, who has drafted the aforesaid sale deed. Therefore, the findings recorded by the appellate court are based on conjectures and surmises and cannot be said to be without having any infirmity. On the other hand, the trial court has recorded 7 the findings of fact on the basis of the evidence available on record, which are liable to be confirmed. 16. So far as sale deed in favour of the defendants- respondents are concerned, Section 91 of the Indian Evidence Act, 1872 reads as under:- “91. Evidence of terms of contract, grants and other dispositions of property reduced to form of document.- When the terms of a contract, or of a grant, or of any other disposition of property, have been reduced to the form of a document, and in all cases, in which any matter is required by law to be reduced to the form of a document, no evidence shall be given in proof of the terms of such contract, grant or other disposition of property, or of such matter, which secondary evidence is admissible under the provisions hereinbefore contained.” 17. Section 92 of the Indian Evidence Act, 1872 reads as under:- “92. Exclusion of evidence of oral agreement. – When the terms of any such contract, grant or other disposition of property, or any matter required by law to be reduced to the form of a document have been proved according to the last section, no evidence of any oral agreement or statement shall be admitted, as between the parties to any such instrument or their representatives in interest, for purpose of contradicting, varying, adding to, or subtracting from, its terms:” 8 18. In Bhandari Construction Co. v. Narayan Gopal Upadhye reported in (2007) 3 SCC 163, 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 Apex Court has also held that prospective buyer not alleging the applicability of any of the provisos to section 92 of the Indian Evidence Act, 1872, the burden to prove the claim lay on the said prospective buyer. The observation of the Apex Court is quoted below:- “15. 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. ” 19. In Sona Bala Bora and Ors. v. Jytirindra Bhatacharjee reported in 2005 (4) SBR 577, it has been observed as under:- “22. The assessment of evidence is inevitably subjective because “we see the evidence with nobody’s eyes but our own”. If the assessment of the lower courts is such that it cannot be reasonably sustained, the decision can and should be set aside on appeal. But where this is not so, the Appellate Court should be slow to interfere with a concurrent factual interference merely because the eyes of the Appellate Court are different.” 20. In view of the aforesaid, substantial questions of law are decided in favour of the appellant. Second appeal, 9 therefore, is liable to be allowed. Judgment and decree passed by the trial court is affirmed and the judgment and decree passed by the lower appellate court is set aside. No order as to costs. (Rajesh Tandon, J. ) 8.4.2008 Avneet