IN THE HIGH COURT OF JUDICATURE AT PATNA SA No.54 of 2010 1. Ram Chandra Prasad Laheri s/o Late Anti Prasad Laheri resident of Mohalla Bakapur, P.S. Kotwali, PO. & Dist. Munger Plaintiff-Appellant- Appellant versus 1. Kishore Kumar Keshari 2. Nawal Kishore Keshari Both sons of Subhit Narain Keshri 3. Kamesh Kumar Keshari minor son of Kishore Kumar Keshri 4. Nilesh Kumar Keshari minor son of Nawal Kishore Keshri 5. Smt. Lalwati Devi w/o Kishore Kumar Keshari All resident of Mohalla. Bekapur, P.S. Kotwali, PO & Dist. Munger Defendants - Respondents- Respondents --------- For the appellant: Mr Abbas Haider, Advocate For the respondents: Mr Raza Ahmad, Advocate Mr Harshwardhan Sahay, Advocate Mr Shahab Rizvi, Advocate ----------- 04/ 29.04.2010 Heard learned counsel for the appellant and learned counsel for the respondents. 2. This second appeal has been filed by the plaintiff- appellant-appellant challenging the judgments and decree of both the courts below. 3. The matter arises out of Title Suit no.3 of 2000 which was filed by the sole plaintiff-appellant for declaration that the sale deed dated 23.11.1998 (exhibit 3) executed by the plaintiff in favour of defendant nos. 1 and 5 with respect to the suit property detailed in Schedule I of the plaint was in fact a deed of exchange without any consideration amount and hence it be cancelled and also for declaration that the deed of agreement executed by the defendants before the Notary dated 23.11.1998 (exhibit D) with respect to shop Khatal bearing holding no.247 was a fraud played on the part of the defendants and for declaration that the defendants have not - 2 - acquired any title and possession over the suit land detailed in Schedule I of the plaint as well as for relief for injunction and other ancillary reliefs. 4. In the said suit a counter claim was filed by the defendants for declaration of their right, title and possession over the suit land on the basis of the aforesaid sale deed dated 23.11.1998 (exhibit 3) which was produced by defendant nos. 1 and 5 as exhibit A. The plaintiff contested the said counter claim raised by defendant nos. 1 and 5. After considering the pleadings and evidence of the parties and after hearing at length Munsif II, Munger dismissed the aforesaid title suit and decreed the counter claim of defendant nos. 1 and 5 vide his judgment and decree dated 13.12.2006. 5. Against the aforesaid judgment and decree of the trial court, plaintiff-appellant filed Title Appeal no.3 of 2007 which was finally dismissed on contest by District Judge, Munger, vide his judgment and decree dated 14.12.2009.Against the aforesaid judgment and decree of the trial court instant second appeal has been filed. 6. Mr Abbas Haider learned counsel for the appellant vehemently challenges the impugned judgments and decree very eruditely and emphatically claiming that the courts below did not consider the evidence adduced by the plaintiff properly committing a serious error which has to be taken into account in the instant second appeal as per decision of the Apex Court in the case of Ramlal & Another vs Phagua & Others reported in AIR 2006 SC 623 (Paragraph 18) . It is also claimed that there are three ingredients in the matter namely talk of exchange between the plaintiff and the defendants, fraud played by the defendants as well as - 3 - payment of consideration money and the said three ingredients were fully proved by the plaintiff vide his evidence but that aspect was not even considered by the court below. It is also stated that the lower appellate court did not at all appreciate the written statement filed by the plaintiff to the counter claim of defendant nos. 1 and 5 and decided the question of title in favour of defendant nos. 1 and 5 illegally. It is further argued by learned counsel for the appellant that the court of appeal below neither considered the exhibits nor had even referred to PW 4 adduced on behalf of the plaintiff. The said contentions of learned counsel for the appellant was contested by learned counsel for defendant nos. 1 to 5. 7. From the entire facts and circumstances of the case, it is quite apparent that there were four documents involved in the aforesaid suit, out of which exhibit 3 (exhibit A) is the sale deed dated 23.11.1998 executed by the plaintiff in favour of defendant nos. 1 and 5 with respect to schedule I property; Exhibit C is the sale deed dated 23.11.1998 executed by defendant nos. 1 and 5 in favour of the plaintiff with respect to the plot not involved in the suit; Exhibit D is the Sada agreement of lease dated 23.11.1998 executed by defendant nos. 1 and 2 in favour of the plaintiff with respect to shop Khatal bearing Holding No. 247 in plot nos. 57 and 58; and Exhibit l is the deed of cancellation dated 05.02.1999 executed by the plaintiff cancelling the sale deed dated 23.11.1998 (exhibit 3). 8. So far first and fourth point raised by leaned counsel for the appellant are concerned, it is quite apparent from the judgment of the court of appeal below that while considering the points by the court of appeal below with regard to the allegation of fraud upon the plaintiff in - 4 - bringing exhibit A and Exhibit C into existence, the documents produced by the plaintiff as well as deposition of PWs 1, 2 and 3 were discussed at length. Furthermore, while considering point no.3 formulated by the appellate court with regard to the alleged agreement between the plaintiff and the defendants for exchange also the court of appeal below considered all the aforesaid evidence before arriving at its specific finding. 9. In this regard learned counsel for the appellant has relied upon a decision of the Supreme Court in the case of Ramlal (Supra) but that was a case in which the court below had not considered the evidence adduced properly and hence it was held that the High Court had jurisdiction to interfere with the same, but in the instant case, this court finds that both the courts below have considered the evidence properly and hence the said case law is not applicable to the facts and circumstances of this case. 10. It may be stated in this connection that PW 4 is the plaintiff himself and he had merely reiterated his statement made in the plaint and was the most interested person. Hence unless his pleadings were fully supported by other evidence, his deposition could not have been legally relied upon. In the said circumstances, it is quite apparent that while dealing with the points formulated by the lower appellate court the documents produced by the plaintiff namely, exhibit 1, exhibit 3, PW 1, PW 2 and PW 3 were fully considered by the courts below. 11. So far the second point for consideration raised by leaned counsel for the appellant regarding talk of exchange between the plaintiff and the defendants, fraud played by the defendants and payment of - 5 - consideration amount are concerned, the courts below had very carefully considered the said aspects of the matter also and had come to the conclusion that the sale deed exhibit 3 was executed for a consideration of rupees eighteen thousand which the plaintiff had admitted in writing to have received and the said writing had been duly attested by the witnesses and hence when the said sale deed was complete on all aspects there was no occasion for cancellation of the sale deed as right, title and interest has been duly transferred and hence no importance can legally be placed upon deed of cancellation dated 05.02.1999 (Exhibit I) executed by the plaintiff. In the said circumstances, talk of exchange having not been proved and payment of consideration amount having been admitted by the plaintiff, there was no question of any fraud being played by the defendants. 12. So far reliance of learned counsel for the appellant upon a decision of this court in the case of Ganesh Prasad vs Deo Nandan Raut & others reported in AIR 1985 Patna 94 is concerned, it is true that the statement made in a deed is not conclusive proof of payment of consideration money but the payment of consideration money having been admitted by the plaintiff himself which has been witnessed by plaintiff’s witnesses and there being no valid and reliable evidence to contradict the same in the instant case, the law settled by the said decision can not be made applicable to the facts and circumstances of this case. 13. So far third question raised by the appellant is concerned, it is quite apparent from paragraphs 5 and 6 as well as issue no.8 and its discussion in paragraph 11 of the trial court judgment that the trial court had fully considered the cross-objection raised by defendants and the - 6 - written statement filed against it by plaintiff and only thereafter it had decided the said issue in favour of defendant nos. 1 and 5. Furthermore, the said issue has also been decided by the lower appellate court as point no.6 in paragraph 15 of its judgment in which he had fully considered the deposition of PWs 1, 2 and 3 as well as exhibits 1 and exhibit A. Hence the said point also does not find favour of this court. 14. It further transpires from the aforesaid facts and circumstances that the question of fraud is a question of fact and the courts below have given concurrent findings with respect thereto after proper appreciation of the pleadings and evidence of the parties and hence in the said circumstances, this court cannot interfere in the instant second appeal under the provision of section 100 of the Code of Civil Procedure. 15. In view of the aforesaid consideration, this Court does not find any illegality in the impugned judgments and decree of the courts below nor does it find any substantial question of law involved in the instant second appeal, which is accordingly dismissed at this stage of hearing under Order XLI Rule 11 of the Code of Civil Procedure. (S.N.Hussain,J) shahid