SBCSA NO.269/2007 – SARDAR MAL V/S OM PRAKASH AND ORS. . : JUDGMENT DTD.25.9.2008 1/9 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR. S.B. CIVIL SECOND APPEAL NO.269/2007 1. Sardar Mal/ S/o Parasram 2. Smt. Kishan Kaur alias Bena W/O Sh. Suraj Narayan. Versus 1. Om Prakash Purohit S/O Sh. Jagdish Narayan 2. Shanti Prakash Purohit S/O Sh. Jagdish Narayan 3. Jagdish Narayan adopted S/O Shankar Lal PRESENT HON'BLE Dr.JUSTICE VINEET KOTHARI Mr.R.K.Thanvi, for the appellant Mr.Manoj Bhandari, for the respondents. DATE OF JUDGMENT : 25th September, 2008. JUDGMENT 1. Heard the learned counsel for the parties. 2. This second appeal has been filed by the defendant – appellant Sardarmal S/O Sh. Paras Ram being aggrieved by the judgment and decree of the first appellate Court dated 10.11.2006 reversing the judgment of the trial Court dismissing the suit of the plaintiffs – respondents by judgment and decree 29.11.2006 and allowing the appeal of the plaintiff Om Prakash Purohit & Ors. SBCSA NO.269/2007 – SARDAR MAL V/S OM PRAKASH AND ORS. . : JUDGMENT DTD.25.9.2008 2/9 3. The plaintiffs – respondents Om Prakash and ors. had approached the learned trial Court by Civil Suit No.420/1995 seeking relief of declaring the agreement between the plaintiffs and the defendants dtd.5.8.1985 as void and nonest and also seeking possession of the suit property marked as “A, B, C, D and C, D, E in red ink in the map filed along with the suit and also mesne profits. 4. The learned trial Court dismissed the suit holding that the plaintiffs had neither produced any patta showing his ownership right over the suit property nor they could establish that there was any misrepresentation on the part of the defendants who entered into agreement with the plaintiffs on 5.8.1985 on the basis of Ex.A/5, a patta setting map and under the said agreement the plaintiffs agreed to exchange his land if the defendants give up their right over the land shown in the map Ex.A/5 in favour of the plaintiff. 5 The learned First Appellate Court however allowed the appeal of the plaintiff by the judgment and decree dtd.10.11.2006 and held that there was nothing in Ex.A/5 patta setting map which could establish any semblance of right over the said property in favour of the defendants Sardar Mal or his father Paras Ram and therefore the said defendant had misrepresented to the plaintiff and under the threat of legal action against the plaintiff for removal of his possession over the Municipal land and over the land which the defendant claimed to be his, the plaintiff was misled to enter into SBCSA NO.269/2007 – SARDAR MAL V/S OM PRAKASH AND ORS. . : JUDGMENT DTD.25.9.2008 3/9 agreement dtd.5.8.1985 Ex.A-1 and it is only when subsequently in the year 1987 when during the enquiry made from the Municipal authorities, the plaintiff came to know that the defendant had no such right over the land in question situated on the north side of plaintiff's house, and therefore, the agreement dtd.5.8.1985 was entered into by the plaintiff upon misrepresentation of the defendant and therefore, the said agreement deserves to be declared to be void and unenforceable. 6. Mr. R.K. Thanvi, the learned Counsel appearing for the defendant – appellant Sardar Mal and Smt. Kisan Kaur vehemently submitted that the plaintiff entered into agreement dtd.5.8.1985 with the open eyes and there was no misrepresentation on the part of the defendants on the basis of Ex.A/5 patta setting map. The said agreement Ex. A-1 dated 5.8.1985 being reduced to writing and duly signed by both the parties, the plaintiffs could not turn back and say that the said agreement was void and the learned trial Court had rightly found that there was no misrepresentation on the part of the defendants, whereas the learned first appellate Court has erred in holding that the said agreement was void on account of misrepresentation of the defendants. 7. On the side opposite, Mr. Manoj Bhandari strongly opposed the submissions of the learned counsel for the appellant and submitted that as a matter of fact, no substantial question of law arises in the SBCSA NO.269/2007 – SARDAR MAL V/S OM PRAKASH AND ORS. . : JUDGMENT DTD.25.9.2008 4/9 present second appeal as it is finding of fact of the first appellate Court based on cogent material and evidence of misrepresentation by the defendants and the same cannot be interfered with in the present second appeal. Mr. Bhandari taking this Court through original record including Ex.A/5, so called patta setting map, submitted that the said map nowhere establishes any right in favour of the defendants over the suit property situated on the north side of the plaintiffs' house and admittedly showing this document and claiming the said north portion to be belonging to him, the defendant misled the plaintiff to enter into the agreement dtd.5.8.1985 giving threat of legal action for dispossession otherwise, and thus the said agreement was void on account of said misrepresentation and it is only when during the enquiry from the Municipal Authorities, the plaintiff found in the year 1987 about such misrepresentation of the defendant, he filed the suit in question, which was wrongly rejected by the learned trial Court on the ground that the plaintiff failed to produce any patta in respect of the suit property. He submitted that the learned appellate Court had clearly found at page 7 of the judgment while deciding issues No.1 and 2 that D.W.1 Sardar Mal stated before the Court that the said suit property was purchased by Paras Ram from the father of plaintiff No.3 in the year 1937 and after the said purchase, Patta setting was made in the year 1947, whereas the map Ex.A/5 pertains to the year 1941. He also stated that said map was given to him by the Municipal Council along with the letter and the decision of Municipal Council which were however, not produced before the SBCSA NO.269/2007 – SARDAR MAL V/S OM PRAKASH AND ORS. . : JUDGMENT DTD.25.9.2008 5/9 Courts below. Thus, the appellate Court held that Ex.A/5 could not create any right in favour of the defendants and the defendant knowing this fact, misled the plaintiff into believing that the suit property belonged to the defendant and thus upon such misrepresentation, misled the plaintiff for entering into agreement dtd.5.8.1985. Mr. Bhandari relied upon the decision of Hon'ble Supreme Court in the case of State of A.P. And another V/s T. Suryachandra Rao reported in (2005) 6 SCC 149 and Dularia Devi V/s Janardan Singh and ors. reported in 1990 (Supp.) SCC 216, wherein referring to Section 18 of the Contract Act, 1872 the Hon'ble Apex Court held that the contract upon misrepresentation vitiates the contract and such contracts are void and not merely voidable. Thus, he submitted that the defendant played a fraud upon the plaintiff and on account of his misrepresentation, the agreement dated 5.8.1985 was void and the present second appeal deserves to be dismissed. 8. Having heard the learned counsels for the parties at length and upon perusal of the record of the case and the judgments of two Courts below and judgments of Apex Court cited at the Bar, this Court is of the clear opinion that no substantial question of law arises from the judgment and decree of the first appellate Court dtd.10.11.2006. This Court has also perused Ex.A/5, so called Patta Setting map. The said map which also does not prima facie show that it is a Patta Setting Map, neither clearly delineates the suit property nor the said red portion has been marked as allotted or sold by the SBCSA NO.269/2007 – SARDAR MAL V/S OM PRAKASH AND ORS. . : JUDGMENT DTD.25.9.2008 6/9 Municipal Council to the defendant Sardarmal or his father Paras Ram nor the said map which is found laminated in the original record of the trial Court bears any seal or signature of the Municipal Authorities holding the said portion on the north side of the plaintiff's house as belonging to the defendant. Therefore, the very foundation of the agreement dtd.5.8.1985 between the plaintiff and the defendant, the said so called patta setting map on the basis of which the defendant claimed that the said suit property can be given to the plaintiff and in exchange the plaintiff should give his duly purchased property to the defendant, does not exist. The defendant was very well conscious and aware of this situation as the learned first appellate Court has found that he could neither produce any patta in his favour before the Courts below nor letter and decision of the Municipal Council with which Ex.A/5 was given to him, could be produced before the learned trial Court. As a matter of fact, under Ex.A/14, the Municipal Council vide notice dtd.7.6.1988 called upon the defendant Sardar Mal Harsh to produce patta of said property. This clearly shows that in the year 1941, no right vested in the defendant in respect of said suit property in exchange of which he demanded portion of duly purchased property of the plaintiff. This was nothing less than a fraud and misrepresentation on the part of the defendant. Section 18 of the Contract Act defines misrepresentation as under: “18. Misrepresentation defined” “Misrepresentation” means and/includes SBCSA NO.269/2007 – SARDAR MAL V/S OM PRAKASH AND ORS. . : JUDGMENT DTD.25.9.2008 7/9 (1) the positive assertion, in a manner not warranted by the information of the person making it, of that which is not true, though he believes it to be true; (2) any breach of duly which,without an intent to deceive, gains and advantage to the person committing it, or any one claiming under him, by misleading another to his prejudice, or to the prejudice of any one claiming under him; (3) causing, however, innocently a party to an agreement, to make a mistake as to the substance of the thing which is the subject of the agreement.” 9. The Hon'ble Supreme Court in the case of Dularia Devi (supra) has held as under: “In the present case, the plaintiff – appellant was totally ignorant of the mischief played upon her. She honestly believed that the instrument which she executed and got registered was a gift deed in favour of her daughter. She believed that the thumb impressions taken from her were in respect of that single document. She did not know that she executed two documents, one of which along was a gift deed, but the other was a sale of the property in favour of all the defendants. This was, therefore, a case of fraudulent misrepresentation as to the character of the document executed by her and not merely as to its contents or as to its legal effect. The plaintiff – appellant never intended to sign what she did sign. She never SBCSA NO.269/2007 – SARDAR MAL V/S OM PRAKASH AND ORS. . : JUDGMENT DTD.25.9.2008 8/9 intended to enter into the contract to which she unknowingly became a party. Her mind did not accompany her thumb impressions. It was, therefore, a totally void transaction.” 10. In the case of State of A.P. V/s T. Suryachandra Rao (supra), the Hon'ble Supreme Court in para 10 held as under: “10. “Fraud” as is well known vitiates every solemn act. Fraud and justice never dwell together. Fraud is a conduct either by letter or words, which includes the other person or authority to take a definite determinative stand as a response to the conduct of the former either by words or letter. It is also well settled that misrepresentation itself amounts to fraud. Indeed, innocent misrepresentation may also give reason to claim relief against fraud. A fraudulent misrepresentation is called deceit and consists in leading a man into damage by willfully and recklessly causing him to believe and act on falsehood. It is a fraud in law if a party makes representations, which he knows to be false and injury enures therefrom although the motive from which the representations proceeded may not have been bad. An act of fraud on Court is always viewed seriously. A collusion or conspiracy with a view to deprive the rights SBCSA NO.269/2007 – SARDAR MAL V/S OM PRAKASH AND ORS. . : JUDGMENT DTD.25.9.2008 9/9 of others in relation to a property would render the transaction void ab initio. Fraud and deception are synonymous. Although in a given case a deception may not amount to fraud, fraud is anathema to all equitable principles and any affair tainted with fraud cannot be perpetuated or saved by the application of any equitable doctrine including resjudicata.” 11. In view of the aforesaid legal position and record of the case and after hearing the learned counsel for the parties, this Court is satisfied that no substantial question of law arises in the present second appeal requiring determination by this Court under Section 100 C.P.C. The first appellate Court cannot be said to have erred in any manner in reversing the finding of the learned trial Court and holding that the agreement dtd.5.8.1985 was entered into upon misrepresentation of the defendant and therefore, the said agreement was void and could not be enforced. The said finding of facts cannot be said to be perverse in any manner or resulting out of misreading of any evidence. Therefore, this Court is not inclined to interfere with said finding of the learned First appellate Court and the second appeal is thus found to be devoid of merit and the same is accordingly dismissed. No order as to costs. (Dr.VINEET KOTHARI)J. Item No.10 Ss/-