IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA RSA No. 42 of 2007. Judgement reserved on: 7.3.2011. Date of decision: 4.4.2011. Smt. Parvati Devi ….. Appellant. Vs. Kirpa Ram Saini …. Respondent. Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting?1 For the Appellant : Mr. G.D.Verma, Senior Advocate with Mr. B.C.Verma, Advocate. For the Respondents : Mr. B.N.Mehta, Advocate. Kuldip Singh, Judge. The judgement and decree, dated 19.10.2006, in Civil Appeal No. 41-S/13 of 2006/04 affirming judgement, decree dated 29.7.2004 passed by learned Civil Judge Junior Division, Court No. 4, Shimla, in Civil Suit No. 386/1 of 1999/96, has been assailed by the appellant, who is plaintiff in the trial court. 2. The facts, in brief, are that appellant has filed a suit for declaration that sale deed, dated 1.4.1982, in respect of land and house comprised in khasra Nos. 476, 482, 1263, 515, 516, 1252, 531m 562, measuring 6 bighas 5 biswas, village Badhai, Pargana Jajhot, Tehsil and District Shimla is illegal, null and void and is a result of fraud and misrepresentation and as such the same be declared inoperative, in effective against the appellant. The relief of Whether the reporters of the local papers may be allowed to see the Judgment? …2… permanent prohibitory injunction against the respondent from interfering in the possession of appellant on the suit land was also prayed. 3. The further case of the appellant is that in March 1982, respondent approached her for purchasing some land. The appellant agreed to sell 5 biswas of land for a sum of Rs.5000/-. After completion of formalities of sale deed, the appellant was given a sum of Rs.5000/- in presence of Gian Chand Sharma, who was earlier impleaded as defendant No. 2, but later on deleted vide court order dated 4.9.2001. The appellant has projected the case that she had sold only 5 biswas of land, but respondent manipulated the sale deed of 6 bighas 5 biswas. The mutation of land measuring 6 bighas 5 biswas had also been entered and attested in favour of the respondent. The appellant claimed to be in possession of the suit land. However, in alternative, relief of possession has also been claimed in case respondent succeeds in dispossessing the appellant from the suit land. 4. The suit was contested by the respondent by filing written statement, in which he has taken preliminary objections of maintainability, suit is not competent, appellant has no cause of action, estoppel, limitation, proper verification and the appellant has not approached the court with clean hands. On merits, respondent alleged that he is owner in possession of the suit land, which he has purchased from the appellant in the year 1982. The sale deed was executed by the appellant in presence of her husband Moti Ram. The contents of the sale deed were read over and explained to appellant …3… and only thereafter she put her signatures. It is the stand of the respondent that he has purchased 6 bighas 5 biswas of land and he is in possession of the suit land. 5. Replication was filed and on the pleadings of the parties, the following issues were framed:- 1. Whether the sale deed dated 1.4.1982 is illegal, null and void, as alleged? OPP. 2. Whether the plaintiff is entitled to the declaration, as prayed for? OPP. 3. Whether the plaintiff is entitled to permanent prohibitory injunction, as prayed for? OPP. 3-A. Whether the plaintiff is entitled for the relief of possession, if found, dispossessed during the pendency of suit? OPP. 4. Whether the suit is not maintainable, as alleged? OPD. 5. Whether the suit is barred by limitation, as alleged? OPD. 6. Whether the suit is not properly valued for the purpose of court fee and jurisdiction, as alleged? OPD. 7. Whether the plaintiff is estopped to file the present suit, as alleged? OPD. 8. Whether the plaintiff has no legally enforceable cause of action, as alleged? OPD. 9. Relief. Issues No. 1, 2, 3 3-A and 5 were answered in negative, issues No. 4, 6, 7 and 8 in affirmative and the suit was dismissed on 19.7.2004. In appeal, on 19.10.2006 the judgement and decree dated 19.7.2004 …4… were upheld, hence, second appeal, which has been admitted on the following substantial questions of law:- 1. Whether the respondent manipulated preparation of sale-deed dated 1.4.1982 pertaining to land measuring 6 bighas 5 biswas at Mauja Badhai, for a meager amount of Rs.5000/-, though she had agreed to sell only 5 biswas of land for sale- consideration of Rs.5000/-. 2. Whether sale-deed exhibit PW 5/A, on behalf of appellant in favour of respondent has been prepared without the knowledge and her consent and that this transaction is vitiated having been manipulated by mis-representation of facts and by playing fraud and since plaintiff is an illiterate lady, therefore, this transaction cannot be held to be legal and valid? 3. Whether the presumption of truth as attached to the entries in revenue record is rebutted on the basis of the evidence as brought on record by the appellant and since these entries have been incorporated in revenue record, on the basis of order of mutation No. 404, which was attested on 16.1.1983, at the back of appellant. 4. Whether sale-deed exhibit PW 5/A is not a genuine and valid document on account of meager amount of sale-consideration of Rs.5000/- whereby area measuring 6 bighas 5 biswas has been sold though plaintiff intended to sell only 5 biswas of land against this amount? 6. I have heard learned counsel for the parties and have also gone through the record. On behalf of the appellant, it has been submitted that respondent manipulated preparation of sale deed …5… dated 1.4.1982 of land measuring 6 bighas 5 biswas for a paltry sum of Rs.5000/-. The appellant had agreed to sell only 5 biswas of land for Rs.5000/-. The sale deed Ex. PW 5/A has been manipulated by the respondent by misrepresentation and playing fraud with appellant, who is an illiterate woman. The presumption of truth attached to revenue record has been rebutted by the evidence which has come on record. 7. The learned counsel for the respondent has supported the impugned judgement, decree and has submitted that two courts below have concurrently rejected the case of the appellant of manipulation of sale deed Ex. PW 5/A by the respondent. It has been submitted that no substantial question of law is involved in the appeal. No case has been made out by the appellant for setting-aside the findings of facts recorded by two courts below. 8. The appellant filed an application for amendment of plaint, which was dismissed on 29.11.2010. On 1.3.2011 the learned counsel for the appellant informed that SLP filed by the appellant against the order dated 29.11.2010 had been dismissed. 9. The substantial questions of law No. 1 to 4 are interconnected, therefore, all of them are taken up together for determination. The learned counsel for the appellant has submitted that appellant is a poor, illiterate, rustic woman and, therefore, it is for the respondent to prove the legality of sale deed dated 1.4.1982 Ex.PW 5/A. The burden is on the respondent to prove that appellant had executed the sale deed voluntarily and after understanding its contents. The respondent has miserably failed to discharge this …6… burden. The market value of the suit land in the year 1982 was much more than the sale consideration shown in the sale deed. There is no reason why the appellant should sell the suit land to respondent at the rate much below the market price of suit land. This creates suspicion and proves the case of the appellant. The appellant is in possession of the suit and. The possession of the respondent has been shown in the revenue record on the basis of mutation, and, therefore, presumption attached to revenue record has been rebutted. The learned counsel for the appellant has relied on Smt. Takri Devi vs. Smt. Rama Dogra and others AIR 1984 H.P. 11, Ajmer Singh and others vs. Atma Singh AIR 1985 Punjab & Haryana 315, Smt. Niko Devi vs. Kirpa AIR 1989 H.P. 51 on the point that in the facts and circumstances of the present case, it is for the respondent to prove due and valid execution of sale deed Ex. PW 5/A and it is not vitiated by misrepresentation and fraud. 10. The appellant in the suit initially impleaded Gian Chand Sharma, the then Tehsildar (Rural), Shimla as defendant No. 2. In the plaint dated 18.11.1996, it has been pleaded that appellant had signed the papers in presence of defendant No. 2 Gian Chand Sharma and was told that 5 biswas of land has been sold to respondent for Rs.5000/-. The appellant was given Rs.5000/- in presence of defendant No.2. The respondent No. 1 has constructed a house on the specific area, which was sold by appellant to respondent No. 1. The respondent and defendant No. 2 in connivance with each other played fraud on her and got the sale deed signed, registered and mutation was attested in favour of respondent …7… by misrepresentation and mis-stating facts. They have played a calculated fraud with her. The sale deed is null and void. It has been pleaded that on the basis of average sale price of five years, the value of the suit land comes to Rs.73,465/-. The plaint was amended wherein it has been pleaded that she never allowed the respondent to possess the suit land. In alternative, she prayed possession. Gian Chand Sharma defendant No.2 filed written statement and denied the case of the plaintiff. He has asserted that appellant had executed the sale deed with full knowledge and awareness about the contents and consequence thereof. He has denied sale for 5 biswas of land. He denied fraud or misrepresentation in execution of sale deed, as alleged by the appellant. 11. The appellant had filed application dated 15.7.2000 through her counsel for deletion of name of defendant No. 2 Gian Chand Sharma. In the application, it was pleaded that defendant No.2 had acted in his official capacity at the time of registration of the sale deed. The appellant does not want to pursue the case against defendant No. 2, and as such, his name may be deleted. The name of defendant No. 2 Gian Chand was deleted by the trial court on 4.9.2001. 12. The sale deed Ex. PW 5/A has been denied by the appellant to the extent that she agreed to sell only 5 biswas of land for a sale consideration of Rs.5000/-and not land measuring 6 bighas 5 biswas for consideration of Rs.5000/-. The appellant has appeared as PW 1. She has not stated which particular 5 biswas of land she …8… agreed to sell to respondent. In her statement appellant has stated that respondent had paid an advance of Rs.4000/- and he agreed to pay balance Rs.1000/- at the time of registration of the sale deed. The sale deed was registered two months thereafter. The appellant had leveled allegations against Gian Chand, Tehsildar for registration of the sale deed, but later on she filed an application for deletion of his name, which was allowed. This indicates that appellant had no grievance against Gian Chand, Tehsildar and role played by him as Sub-Registrar at the time of registration of the sale deed. The endorsement of Sub Registrar on the sale deed to which presumption of truth is attached has not been rebutted by the appellant, rather by deleting the name of Gian Chand, Tehsildar from the array of defendants, appellant impliedly admitted the endorsement made by Sub Registrar on the sale deed to the effect that contents of the sale deed were read over and accepted by her to be correct. 13. The appellant was paid Rs.5000/- in cash at the time of registration of the sale deed. This also contradicts the stand of the appellant that initially respondent had paid Rs.4000/- to her and the balance amount of Rs.1000/- was to be paid by respondent at the time of registration of sale deed. The stand of the appellant is falsified when she accepted Rs.5000/- at the time of registration of the sale deed instead of Rs.1000/- balance sale consideration as per her case. This creates suspicion regarding the stand of the appellant that she agreed to sell only 5 biswas of land for Rs.5000/- and not 6 bighas 5 biswas as recorded in the sale deed Ex. PW 5/A. The attesting witnesses of the sale deed are Moti Ram husband of the …9… appellant and S.C. Guleria, Advocate. In the plaint, there is no allegation against Moti Ram and S.C. Guleria, Advocate that even these persons colluded with respondent for preparation of sale deed Ex.PW 5/A. 14. The learned counsel for the appellant has referred the statement of PW 4 Keshav Pal on the point that in December 1993, his family had purchased land measuring 1 bigha 8 biswas in Pargana Jajhot for a sale consideration of Rs.9500/-. It has been submitted that the land, in question, is also situated in Pargana Jajhot. In cross-examination, he has stated that Pargana Jajhot is a big Pargana and he cannot tell the name of villages of that Pargana. PW 4 Keshav Pal has not stated that suit land and the land purchased by his family were similar having same potentiality, market value and were comparable. Therefore, appellant cannot take any benefit from the statement of PW 4 Keshav Pal regarding the value of the suit land at the time of execution of sale deed Ex.PW 5/A. Moreover, insufficiency of the sale consideration is no ground for setting aside the sale deed. DW 3 Kangru Ram, petition-writer has stated that on 1.4.1982 Parwati Devi had executed the sale deed in favour of respondent of land measuring 6 biaghas 5 biswas for sale consideration of Rs.5000/-. The registry was entered by him in his register and copy of relevant entry is Ex. DW 1/A. The appellant has failed to prove that respondent has misrepresented or played fraud for execution of the sale deed. 15. The sale deed was executed on 1.5.1982, the suit was filed on 22.11.1996. The statement of PW 1 Parwati was recorded …10… on 13.6.2002 and she has stated that six years ago she came to know from one kabari (scrap dealer) that she had sold the suit land to respondent, which she denied. On inquiry, Patwari told her that there is a sale deed of land measuring 6 bighas 5 biswas in favour of respondent. She collected the papers. This stand of the appellant appears to be an afterthought. It is the stand of the appellant that she sold 5 biswas of land to respondent over which he constructed the house. It is not believable that respondent for about 14 years would not do any act on the suit land which will not be sufficient indication to the appellant regarding the rights of the respondent on the suit land. The silence of the appellant for about 14 years for challenging the sale deed indicates that in fact she sold the suit land to the respondent. Later on, the prices of the land increased, and therefore, on one ground or the other, she wants to take back the suit land from the respondent. 16. In `Smt. Takri Devi’, it has been held that donee Shri Charan Dass (deceased) obtained the benefit at a time when he was in a position to dominate the will of the plaintiff. As the transaction, prima facie is unconscionable, the donee has to satisfy the court that gift deed Ex. D-1 was the outcome of the free will of the plaintiff. In `Ajmer Singh’, it has been held that Charan Singh father of the defendants donees was not related to the plaintiff, he was not rendering any service to him, then it was for the defendants to prove that the gift deeds were voluntarily executed by the plaintiff, who was an old man with feeble health and weak eye sight. …11… 17. In `Niko Devi' case (supra), which is a case of undue influence where plaintiff was admittedly forced to live with the defendant as her father died when she was just a child of two years and mother died when she was still aged about eight or ten years. She is illiterate rustic girl. The defendant by virtue of the impugned gift has got her divested of her entire moveable and immoveable property which she had inherited from her parents. The defendant was not only in a position to dominate the will of the plaintiff by virtue of his being loco-parentis to her but the impugned transaction was apparently an unconscionable one as she stands divested of her entire property by virtue of this gift deed. In these circumstances, the burden lay squarely on the shoulder of the defendant to prove that at the time of the impugned transaction the plaintiff had an independent advice available to her and the impugned gift deed was a voluntary act on her part when she understood the nature of the transaction in question. 18. No doubt, in view of law laid down in the judgements noticed above, the burden is on the respondent to prove that there is nothing wrong in the execution of the sale deed Ex. PW 5/A by appellant, who is an illiterate woman. This burden has been fully discharged by the respondent by leading his own evidence and by the evidence led by the appellant. It has been proved that appellant had voluntarily sold 6 bighas 5 biswas land to respondent vide sale deed dated 1.4.1982 Ex. PW 5/A and has put him in possession of the suit land. The mutation on the basis of sale deed has also been attested in favour of the respondent. …12… 19. The appellant has miserably failed to prove that sale deed was got executed by the respondent from her by misrepresentation or playing fraud. No fault can be found with the sale deed Ex. PW 5/A executed by the appellant in favour of the respondent. The two courts below have rightly appreciated the material on record. The view taken by them cannot be said to be not inconsonance with the evidence, which has been led by the parties. There is no merit in the appeal. The substantial questions of law No. 1 to 4 are decided against the appellant. 20. The result of above discussion, the appeal fails and is accordingly dismissed. No costs. April 4, 2011. ( Kuldip Singh ), (Hem) Judge.