2013(7) ALL MR 51
IN THE HIGH COURT OF JUDICATURE AT BOMBAY(AURANGABAD BENCH)

S.S. SHINDE, J.

Kashinath S/O. Bala Bakale Vs. Budha S/O. Fakirchand Bakale

Second Appeal No. 479 of 2011,Civil Application No. 11170 of 2011

19th March, 2012

Petitioner Counsel: Mr. P.F. Patni
Respondent Counsel: Mr. A.D. Kasliwal

Civil P.C. (1908), S.100 - Second appeal - Scope - Execution of sale deed - Onus to prove genuineness of execution of sale deed lies on respondent as appellant was blind - Oral as well as documentary evidence appreciated and concurrent findings of facts recorded - That stamp papers purchased by appellant and sale deed bears the signature of son of the appellant - Respondent not in position to dominate the appellant's will since son of appellant accompanied him at the time of execution and son was attesting witness of sale deed - Execution proved by another witness - As per sale deed consideration amount already paid to appellant - Concurrent findings recorded by the Courts below are in consonance with the material on record and not perverse in any manner - Second appeal liable to be dismissed. (Paras 9, 11, 12, 13, 14)

Cases Cited:
Mst. Sethani Vs. Bhana, AIR 1993 SC 956 [Para 2]
Maruti Balwant Pawar and others Vs. Mahatma Phule Agricultural University, Ahmednagar, 2009 (3) Mh.L.J. 846 [Para 6]
Bellachi (dead) by LRs. Vs. Pakreeran, 2009 ALL SCR 1285 [Para 6,9]


JUDGMENT

JUDGMENT :- Heard learned Counsel appearing for the parties at length. The second appeal was heard for admission on 15-12-2011, when this Court was pleased to issue notice to the respondent. Ad interim relief was granted in terms of prayer clause (B) of the civil application. When this matter was taken up for hearing on 08-02-2012, this Court observed that, looking to the nature of controversy involved in the matter,it is appropriate to dispose of the matter finally at admission stage and accordingly, the matter is finally heard.

2. Learned Counsel appearing for the appellant submits that, both the Courts below have proceeded on the footing that burden lies on the present appellant in respect of proving fraud, when it is an admitted position that the present appellant is blind person, and therefore, the burden lies on the respondent to prove that the sale deed is genuine one. In support of this contention that, since the appellant is blind, and therefore, burden lies on the respondent to prove the sale deed is genuine one, learned Counsel for the appellant placed reliance upon the reported judgment of the Supreme Court in the case of Mst. Sethani vs. Bhana [AIR 1993 SC 956].

3. It is further submitted that, for proving genuineness of the execution of the sale deed, the defendant has to prove that the consideration was paid to the present appellant. It is submitted that, in respect of the consideration, the defendant has relied upon the recitals in the sale deed and the statement of one of the attesting witness D.W. No. 2 at Exhibit-32, who has stated in his examination in chief itself that the consideration amount of sale Rs.58,500/- was paid at the time of execution of the sale deed, whereas in the sale deed at Exhibit-37, it is recited that the amount of consideration was paid prior to execution of the sale deed. No time and date was mentioned in the sale deed regarding the payment of consideration amount. It is submitted that, the defendant in his cross examination at Exhibit-31 specifically admits that he has no document to show that he has amount on the date of execution of sale deed and thus, there is no evidence to show that consideration was paid to the plaintiff against the alleged sale deed. It is submitted that, both the Courts below have relied upon the recitals of the sale deed when the genuineness of the sale deed itself is in dispute.

4. It is further submitted that, possession of the said property was not handed over to the defendant. During the pendency of the suit and appeal, there was order of the Court in respect of maintaining the status quo. Therefore, there is nothing on record to show that the present respondent is in possession of the suit property. It is submitted that, both the Courts below have relied upon the revenue entries, when the base of taking the revenue entries is sale deed itself, thus no weightage should be given to the said revenue entries. It is further submitted that, the appellant is blind person is an admitted position. The Budha Bakale (Exhibit-31) and the attesting witness D.W. No. 2 Yunus Dadamiya at Exhibit-32, nowhere stated that, the contents of the sale deed were read over to the present appellant. Merely, that the son of the present appellant was attesting witness to the said sale deed does not prove the genuineness of the execution of the sale deed. Attestation of the document is entirely different than that of the due execution.

5. It is further submitted that, one more circumstances which could be taken into consideration is that, it has come in evidence that the alleged sale deed was executed on 25-05-2001 and the same was alleged to have been registered on 28-05-2001, there is absolutely no evidence to indicate that on the day of registration of the alleged sale deed present appellant or his son were present. None of the witness of the respondent made a positive statement that the present appellant or his son were present on the day of registration of the said sale deed. It is submitted that, the respondent has tried to give the explanation that the alleged sale deed was executed in late hours on 25-05-2001 and 26 and 27 being the holidays, the sale deed was not registered on next day. It is to be noted that there is no holiday on 26-05-2001 and thus, the explanation sought to be given is false. Therefore, it is submitted that, the second appeal deserves to be allowed by setting aside the judgment and decree of both the Courts below.

6. On the other hand, learned Counsel appearing for the respondent submitted that, there are concurrent findings of fact recorded by the Courts below. The Courts below have appreciated oral as well as documentary evidence in its proper perceptive and thereby recorded concurrent findings of fact. In second appeal, when the Courts below have recorded concurrent findings of fact, second appeal cannot be decided on merely equitable grounds and for that purpose, the Counsel for the respondent placed reliance upon the reported judgment of this Court in the case of Maruti Balwant Pawar and others vs. Mahatma Phule Agricultural University, Ahmednagar [2009 (3) Mh.L.J. 846]. It is further submitted that, the Supreme Court had an occasion to consider undue influence and fraud in case of Bellachi (dead) by LRs. Vs. Pakreeran reported in 2009 ALL SCR 1285. It is submitted that,in the instant case, specific pleadings about fraud and misrepresentation is absent and it has also come in cross examination of the plaintiff that, after understanding the contents of the document he used to sign the documents and further more when the plaintiff himself has purchased the stamp papers for the sale deed and the said sale deed bears the signature of the son of the plaintiff who has not been examined for the reason best known to the plaintiff. Relying upon the concurrent findings recorded by the Courts below, learned Counsel for the respondent submits that, the second appeal deserves to be dismissed.

7. Upon hearing the Counsel for the parties, following substantial questions of law would fall for consideration in the second appeal.

(1) When the allegations of fraud has been mentioned by the appellant, in that event on whom burden lies to prove that the document is not tempted with fraud or otherwise?

(2) When the appellant is blind whether it is incumbent on the part of the respondent to lead the evidence to that effect that the document of sale was read over to the executants and after understanding the contents therein he has put his signature?

(3) Whether the defendant i.e. respondent herein has proved the genuineness of the sale deed?

8. On the aforesaid substantial questions of law, 'Admit'. On admission, learned Counsel waives service of notice for respondent sole. With the consent of the parties, the matter is taken up for final hearing forthwith.

9. It is the contention of the appellant that, he is blind person and fraud has been played by the defendant and therefore, burden lies on the respondent to prove that, the sale deed is genuine one. Firstly, it is to be noted that, there are no specific pleadings whether the defendant nephew of the appellant was in a dominating position and by exerting pressure or by undue influence, he got sale deed executed from the appellant. Whether the respondent was in a dominating position is essentially a question of fact. Per se it does not give rise to a substantial question of law, as held by the Supreme Court in the case of Bellachi (Dead) by LRs. (supra). On careful perusal of concurrent findings recorded by the Courts below, would clearly shows that, the respondent was not in a position to dominate the plaintiff's will since son of the plaintiff accompanied him everywhere. The son of the plaintiff accompanied him at the time to execution of sale deed and also he was attesting witness to the sale deed. Therefore, both the Courts held that, son of the plaintiff was present everywhere and was also attesting witness to the execution of the sale deed. It is not in dispute that, the plaintiff did not examine his son. It is also not the case of the plaintiff that, alongwith the plaintiff, even there was undue influence exerted on his son and by misrepresentation sale deed got executed by the respondent i.e. original defendant.

10. Since both the Courts below upon appreciation of evidence on record concurrently held that, the defendant examined one of the witness to the sale deed namely Yunus Dadamiya and execution of the said sale deed has been proved. The contention of the Counsel for the appellant that, no consideration amount was paid is required to be rejected in view of the recitals of the sale deed which mentions that the consideration amount was already paid to the plaintiff. Both the Courts below have held that, such consideration amount was paid to the plaintiff.

11. Both the Courts have also discussed about purchase of stamp paper by the plaintiff himself. The plaintiff has purchased requisite stamp paper for execution of the sale deed dated 25-05-2001 and same bears signature of the plaintiff as purchaser of the said stamp. The signatures of the plaintiff on all stamp papers and signatures appearing on the sale deed tallies with the admitted signature in affidavit of examination in chief. The trial Court has also recorded the finding that, son of the plaintiff who has signed sale deed at Exhibit-37 as attesting witness has not been examined by the plaintiff. The trial Court has also recorded finding that, son of the plaintiff who is attesting witness to the sale deed, used to attend the Court on every date. The trial Court has also considered the judgments and orders passed by the revenue authorities and reached to the conclusion that, there was due execution of the sale deed and consideration amount was paid and possession of the suit land was handed over to the defendant.

It is not in dispute that, though the sale deed is executed in the month of May 2001, suit is instituted by the plaintiff on 30-04-2003.

12. The lower appellate Court in para-24 of the judgment has considered revenue entries and who is in possession of the suit property. The lower appellate Court has also taken into consideration the stamp papers required for execution of the sale deed were purchased by the plaintiff and same bears signatures of the plaintiff and also recorded finding that, son of the plaintiff namely Bhausing is not examined by the plaintiff. It appears that, the lower appellate Court has also considered the date of execution of the sale deed, knowledge of alleged fraud and date of institution of suit and filing of criminal complaint by the plaintiff and upon appreciation of entire material on record, confirmed the findings recorded by the trial Court.

13. It is also relevant to mention that, the appellant i.e. plaintiff in the cross examination at Exhibit-24 stated that "after understanding the contents of the document I used to sign". It has also come in the cross examination that, the plaintiff got knowledge about the sale deed in the month of June 2001, however, suit was instituted in the year 2003. Therefore, taking into consideration the concurrent findings recorded by the Courts below which are in consonance with the material placed on record and not perverse in any manner, in my considered opinion, the second appeal is devoid of any merits. Both the Courts below have recorded their findings in detail which are in consonance with the evidence brought on record and there is no perversity as such and therefore, there is no point in burdening this judgment by reproducing said findings.

14. For the reasons aforesaid, the second appeal is devoid of any merits, same stands dismissed. In view of the dismissal of the second appeal, civil application stands rejected. Interim relief stands vacated.

Record and Proceedings be sent back to the concerned Court, forthwith.

Appeal dismissed.