|PRIffr1Ff^E?iiT!::^!'Si •iiS'i:^&<:'!ti81^»B] ^fl/ CajKTO^CHHATTIS6ARH AT 81 Second Appeal No. NandlaS Vs. lers Sin9le Bench: Hon'ble Shri bilip Raosaheb Oeshmukh, J. Post for Order: 2-^ .01.2007 Sd/- Dilip Raosaheb Deshmukh Judge 3 SeconaARpealNQ. 309/2( ARpeSjanroefendant ResDondents/pIaintiffs Nandlal S/o Late Jagmohan, R/o Village : Manipur, P.S. & Tahsil Ambikapur, Distt. Sarguja (C.G.) Vs. 1. Mohan Sai, S/o Somaru Aged 45 years. Caste : Uraon. 2. Gharbharan S/o Bandhan, Aged 42 Years. Caste : Uraon. 3. Shiv Prasad S/o Etava, Aged 30 Years Caste : Uraon. 4. Ramdeo S/o Etava Aged 25 Years Caste Uraon Ai! are R/o Manipur, P.S. and Tah. Ambikapur, Distt. Sarguja Shri Manoj Paranjape, counsei for the appeliant/defendant. Shri A.K. Prasad, coynsel for the respondents/piaintiffs. r>? !ia ^ aa (Dellvered oniii .01.2007) ser Diiip Raosaheb Deshrnukh, J. Aggrieved by the judgment and decree passed by Third Additional District Judge, Ambikapur in Civil Appeai No. 39-A/2002 dated 8.4.2005 whereby the judgment and decree passed on 21.1.1997 by the Court of Civii.Judge, Ciass-11, Ambikapur in Civil Suit No. 74-A,'1991 decreeing the plaintiffs' suit was affirmed, the defendani/appeilant has preferred this second appeal. •mii c,$ titie on the appellant/defendant. On thess premises, it granted a decree in favour of the respondents/plaintiffs for a deciaration of title and possession of the suit land while declaring the saie deed dated 21.8.1968 as a void document. in Civil Appeal No. 39-A/2002, the iearned Third Additionai District Judge afrirmed the findings recorded by the learned lower Court. ./// 5. Shri Manoj Paranjape, learned counsei for the appeliant/defendant argued that the learned Lower Court erred in placing the burden of proof of execution of document Ex. D-1 on the defendant. !t was aiso contended that the admission made by Kariya Ram PW-3 in para-5 that Duii had pre-deceased Nohri demolished the piaintiff case in toto. it was also contended that the inference drawn by the iov,'er court that if Nohri was aiive at the time of settiement, the suit land would have been settled in his name was erroneous. Mereiy on the basis ofsuch an inferenca, the !ov/er court ought not to have brushed aside the admission made by Kariya Ram PW-3 and t'ne evidence adduced by the defendant. No other point was urged. 6. I have considered the arguments advanced by the iearned counsei for the appeiiant/defendant. It is incorrect to say that the learned Lower Court had placed the burden of proof on the defendants since para- 10 of the judgment clearly shows otherwise. Etfva, attesting witness of the sa!e deed couid not be examined since dead. The executor, Nohri was aiso dead. The oniy attesting witness Gharbaran was examined by the respqndents/piamtiffs as PW-2 who deposed that Nohri had pre- deceased Duii. Duli was in possession ofthe suit lands til! her death. He aiso deposed that he dld not witness'the sa!e transaction. According to him, the suit land was settied in the name of Duii at the time of Bandobast. This testimony remained whoily unrebutted in cross-examination. Jeevan ;,!:^^ 4 c. Ram PW-4 also testified that Nohri had died during time of the erstwhile ruier and Duli was thus recorded as owner of the suit land and was in possession thereof till her life time. He aiso deposed that the iast rites of Duii were performed by the respondents/plaintifls. This testimony aiso remained unrebutted in cross-examination. The plaintiff also examined a witness Kariya Ram (PW/3) who deposed in' para-1 that Nohri had died ;during settlement and the suit land was settled in the nams of Duli. However, in cross-examination he also stated that he couid not say when Duli died. His statement that Nohri was in possession of the suit iands after death of Duli thus beiied his own testimony and had to be brushed aslde from consideratlon. Mohar Sai (PW/1), the plaintiff deposed that at the time of the execution of the registered safe deed, Nohri was not alive who had died before the settiement and the name of Duli was therefore recorded over the suit lands. In cross-examination the evidence of this witness aiso stood unrebutted. 7. As against this, the defendant examined document writer Abdu! Aziz (DW/6). The saie deed Ex. P-1 bears the thumb impression of the executor and aiso of both the attesting witnesses. An endorsement as to who had identified the executor as Nohri is absent in the document. A pertinent fact which emerges in para 5 of his testimony is that at the time of the execution of the sale deed the vendor had produced a documerit showing that the suit land was recorded in the name of Nohri. This is nothing but a complete faisehood being contrary to the pleadings of the parties that at no point of time Nohri was recorded as owner of the suit lands. The defendants admitted that Duli was the recorded owner of the suit lands since the time of settlement and pleaded that on her death Nohri became the owner. The fact that the suit lands were settied in the name of Duli is also indicative of the fact that her husband Nohri pre-deceased ^is! ^ hsr. Had Nohri executed the sale deed vlde Ex. D-1 the appeliant/defendant woutd not have waited for a number of years i.e. till 1986 for getting his name recorded over the suit lands. This also goes to show that Nohri had died prior to the settlement and the defendant waited till death of Duli for getting his name mutated over the suit lands. Defendant Jagmohan DW-2 also admitted the fact that the suit land was recorded in the name of Duli at the time of execution of the sale deed. He has aiso admitted in para-1 6 that his application for mutation was rejected upon an objection filed by the respondents/piaintiffs. No reason has been assigned by the defendants as to why his application for mutation was rejected? The document Ex. D-1 is a highiy suspicious document since it does not bear an endorsement that the attesting witness had identified the executor as No'nri. Another witness Darbari Lal (DW-5) aiso admitted in para-3 that Nohri had expired at the time of settlement which fuliy supports the evidence led by the plaintiffs. Pujeri (DW-4) aiso admitted in para-8 that at the time of settlement Nohri had died and therefore, he would not say if the defendant had by making some other person impersonate Nohar had got t'ne sale deed executed or not? Awadhesh (DW/3) has a!so admitted in para-11 that the suit land was recorded in the name of Duli. 8. The evidence ied by the plaintiff ciearly goes to prove that had died before the settlement and the suit land was recorded in the narne of Duli thereafter. 1 am of the considered that the piaintiffs had discharged the burden of proof that Nohri had died prior to the settiement and was not alive on 21.8.1968 and therefore, the sale deed Ex. D-1 dated 21.8.1968 is a forged document and void ab- initio. ; y 9. Having thus considered the evidence led by the parties on record, 1 am of the considered opinion that the concurrent finding of fact recorded by both the Courts beiow is based on a proper appreciation of evidence and there is nothing on record to show that the finding recorded by both the Courts below is contrary to law or perverse. Since a concurrent finding of fact has been recorded by both the Courts below in favour of the respondents/plaintiffs, 1 am of the considered opinion that no substantial question of iaw is involved in this appeal. Kvr 10. As a result, this appeal is dismissed a1 admission. No order as to costs. ' Sd/- Dilip Raosaheb Deshmukh Judge