Jharkhand High Court
Sobha Devi vs (A) Santosh Poddar on 2 April, 2025
Author: Anubha Rawat Choudhary
Bench: Anubha Rawat Choudhary
2025:JHHC:10102
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Second Appeal No. 61 of 2017
Sobha Devi, W/o. Sri Srawan Kumar Gupta, r/o. village-Chitra, P.O. &
P.S. - Chitra, Dist.- Deoghar
... ... Principal defendant/Appellant/Appellant
Versus
1(a) Santosh Poddar,
1(b) Munna Poddar
(Substituted vide order dated 22.07.2024)
Both sons of late Smt. Anandi Devi & late Nem Chand Poddar,
both residents of village Hat Talla, Station Road, Jamtara, P.O. + P.S. & Dist.
Jamtara. ... Plaintiffs/ Respondent 1st Party/ Respondent
2. Maheshwar Mondal, S/o Late Rajamani Mondal.
3. Brahma Mondal, S/o Late Rajamani Mondal.
4. Bishnu Mondal, S/o Late Rajamani Mondal.
5. Krishna Mondal, S/o Late Rajamani Mondal.
6. Jamun Mondal, S/o Late Rajamani Mondal.
7. Surji Devi, W/o Late Rajamani Mondal.
all 2 to 7 r/o village - Tarabahal, P.O. - Pattajoria, P.S. - Karmatar, Dist-
Jamtara.
8. Sukumoni Devi, D/o Late Rajamani Mondal, W/o Shankar Mondal, r/o
Village & P.O.- Ghormara, P.S.- Mohanpur, Dist.- Deoghar.
... ... Proforma Defendants/ Respondent 2nd Party/ Proforma
Respondents
---
CORAM :HON’BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY
—
For the Appellant : Mr. Shashank Shekhar, Advocate
For Contesting Respondents : Mr. Rahul Kumar Gupta, Advocate
Mr. Ashutosh Prasad Joshi, Advocate
Mr. Rakesh Kumar Singh, Advocate
Ms. Swati Singh, Advocate
Mr. Surya Prakash, Advocate
—
Lastly heard on 05.02.2025 Pronounced on 02.04.2025
1. This Appeal has been filed against the Judgment dated 29.11.2016
(Decree signed on 13.12.2016) passed by learned Principal District Judge,
Jamtara in Title Appeal No. 20 of 2015 whereby the learned Court has
confirmed the Judgment dated 26.03.2015 (Decree dated 13.04.2015) passed
by learned Civil Judge (Senior Division)-III, Jamtara in Title Suit No. 71 of
2002 and dismissed the appeal preferred by the appellant-principal
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defendant. The defendant no. 1, who has lost in both the courts is the
appellant before this Court.
2. The original plaintiff (Anandi Devi) and the defendant no.1 (Shobha
Devi), both claimed title over the suit property by virtue of registered sale
deeds said to have been executed by the original defendant no.2 (Rajamoni
Mondal). There is no dispute that the suit property belonged to the original
defendant no.2. The suit was filed seeking, inter alia, a declaration that Sale
Deed No. 1137 of 2001 is void and also for declaration that Sale Deed No.
388 of 2001 is lawful.
3. This Second Appeal was Admitted for hearing on 04.12.2018, on the
following substantial questions of law:
(i) Whether the learned trial court as well as learned
lower Appellate Court had committed gross error
while deciding the main issue “whether the sale
deed no. 388 of 2001 executed by defendant no. 2,
the vendor Rajamani Mandal in favour of plaintiff
is lawful and valid” whereas the vendor Rajamani
Mandal denied the execution of Sale Deed No. 388
of 2001 in favour of plaintiff Anandi Devi nor the
vendor Rajamani Mandal have examined to prove
the said sale deed?
(ii) Whether the learned trial court as well as learned
lower Appellate court had committed gross error
while deciding another issue “whether the Sale
Deed No. 1137 of 2001 executed by the defendant
no. 2, the vendor Rajamani Mandal in favour of
defendant no. 1 is void, illegal and inoperative in
law” whereas the vendor Rajamani Mandal
himself admitted the execution of Sale Deed No.
1137 of 2001 in favour of defendant No. 1 Shova
Devi in his written statement?
(iii) Whether the learned trial court as well as learned
lower Appellate Court had committed gross error
and not considered the agreement executed by the
vendor Rajamani Mandal in favour of defendant
No. 1 Shova Devi on 30.10.2000 with regard to the
sale of the land in question?
(iv) Whether the learned trial court as well as learned
lower Appellate Court had committed gross error
and not verified the signature of the vendor
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2025:JHHC:10102Rajamani Mandal by a handwriting expert or by an
F.S.L. laboratory?
4. Title Suit No.71 of 2002 was filed seeking a declaration that the sale
deed bearing no.1137 of 2001 executed by the original defendant no.2 in
favour of the defendant no.1 is void, illegal, inoperative in law and not
binding on the plaintiff and for a further declaration that registered sale deed
no.388 of 2001 executed by original defendant no.2 in favour of the original
plaintiff is valid and lawful. A prayer was also made seeking cancellation of
the aforesaid sale deed no.1137 of 2001 and a relief was prayed seeking
injunction restraining the defendants from disturbing the possession of the
plaintiff.
5. After giving the details regarding the title with respect to the suit
property, it was the case of the plaintiff that the owner of the property,
namely, Hara Gopal Nandi Choudhary sold 4 decimals of land of plot
no.3233 to Mohanlal Burman by a registered sale deed and the said suit plot
was marked as 3233/A/15; Mohanlal Burman sold the said portion of land to
the original defendant no.2 Rajamoni Mondal by a registered deed of sale
no.1358 of 1984; the original defendant no.2 Rajamoni Mondal sold the said
property in favour of Smt. Anandi Devi, the original plaintiff vide registered
sale deed no.388 of 2001 upon payment of consideration . The vended
property was mutated in her name vide order dated 29.06.2002 in mutation
case no.51 of 2001-02 and the original plaintiff claimed that she has been
paying rent.
6. The case of the original plaintiff was that the original defendant no.2
Rajamoni Mondal resold the said property to Smt. Shobha Devi, the principal
defendant by executing another sale deed which was numbered as 1137 dated
11.10.2001 and this was done by practicing fraud and misrepresentation.
Further case of the plaintiff was that the original defendant no.2 Rajamoni
Mondal did not know Hindi and someone by practicing fraud and
misrepresentation had actually executed the second deed bearing no.1137 of
2001 in favour of the principal defendant with respect of the property which
was already purchased by the plaintiff.
7. In the month of October 2001, the husband of the principal defendant
tried to occupy the land by force for which the son of the plaintiff resisted
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and informed the police and consequently the proceedings were initiated and
during inquiry, the police found that the second deed dated 11.10.2001 as
executed by Rajamoni Mondal in favour of the principal defendant Shobha
Devi was spurious document. The proceeding under Section 144 Cr.P.C was
registered as Criminal Miscellaneous Case No.674 of 2001 which was
ultimately converted into a proceeding under Section 145 Cr.P.C in which
the husband of the principal defendant had taken a stand that the original
defendant no.2 Rajamoni Mondal, prior to execution of the sale deed in
favour of Shobha Devi – the defendant no.1 had entered into an agreement
for sale of the land with the principal defendant Shobha Devi and had put her
in possession during the agreement of sale. However, it was asserted that
such averment was not made by the original defendant no.2 Rajamoni
Mondal in the sale deed no.1137 of 2001 executed in favour of Shobha Devi.
It was alleged that the agreement of sale was an afterthought and prepared to
overcome the gross illegality of the second sale deed but the agreement was
not whispered either by the seller or the purchaser at the time of execution of
sale deed no.1137 of 2001 executed in favour of Shobha Devi. The cause of
action arose on and from 08.10.2001 when Rajamoni Mondal executed the
sale deed no.1137 of 2001 in favour of Shobha Devi for the same land for
which the sale deed was already executed in favour of the plaintiff vide sale
deed no. 388 of 2001 by the same vendor i.e., the original defendant no.2
Rajamoni Mondal.
8. The principal defendant Shobha Devi appeared and contested the suit
by filing a written statement and asserted that the suit was barred by
limitation and was fit to be dismissed on this ground alone; there was no
valid cause of action; the learned court had no territorial or pecuniary
jurisdiction to proceed with the suit. It was also asserted that the suit was hit
by the principles of estoppel and acquiescence. The principal defendant
Shobha Devi admitted that the suit property belonged to the original
defendant no.2 Rajamoni Mondal vide registered sale deed bearing no.1358
of the year 1984 and he came in possession. It was asserted that the original
defendant no.2 Rajamoni Mondal by virtue of sale deed no.1137 dated
11.10.2001 on receipt of the consideration amount incorporated in the sale
deed, sold the land to the defendant no.1 Shobha Devi.
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9. It was their further case that prior to execution of the sale deed no.1137
of 2001 executed in favour the defendant no.1, an agreement of sale dated
30.10.2000 was entered into with respect to the suit property and the
principal defendant Shobha Devi came in possession. The specific case of
the principal defendant was that the agreement prior to registration of the
sale deed in favour of the defendant no.1 could not be mentioned in the sale
deed due to bonafide mistake of the scribe which could not be detected at the
time of registration of sale deed in favour of defendant no.1 and non-
mentioning about the existence of agreement deed was not material for the
suit.
10. It was further case of the principal defendant Shobha Devi that she was
in possession of the suit land from the date of execution of the agreement
which was confirmed by executing a sale deed in her favour. It was their
further case that the plaintiff played a fraud by getting the property by
execution of sale deed in spite of the fact that the defendant no.1 was in
possession of the property by virtue of the agreement of sale dated
30.10.2000. The plaintiff succeeded in practicing fraud in the matter of
execution of the sale deed but was not allowed to take possession of the suit
property by the original defendant no.2 Rajamoni Mondal. It was their
specific case that the sale deed standing in favour of the plaintiff remained
inoperative. With respect to the proceeding under Section 144 Cr.P.C., it was
stated by the principal defendant that it was the plaintiff who was disturbing
the possession of the principal defendant which led to the proceeding under
Section 144 Cr.P.C and then under Section 145 Cr.P.C. The learned District
and Sessions Judge, Jamtara ultimately decided the criminal revision in
favour of the defendant no.1 rejecting the plea of the plaintiff or her husband
which therefore had settled the issue in respect of the suit property. It was
asserted that so far as mutation case no.51 of 2001-2002 is concerned, it was
never initiated in respect of the suit property nor any order was passed in
favour of the plaintiff and that the sale deed standing in favour of the plaintiff
is a result of fraud by the plaintiff. It was the case of the defendant that they
acquired the property by way of legal document and were in possession of
the property.
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11. The principal defendant had also filed an additional written statement
on 09.02.2005 and stated that the allegation of plaintiff in paragraph 2 was
that the defendant no.2 Rajamoni Mondal had supported the case of the
defendant no.1 Shobha Devi but such statement was false and denied and
that there was no collusion between the defendant nos.1 and 2. It was asserted
that the real fact was that after execution of agreement for sale between the
defendant no.1 and defendant no.2 dated 30.10.2000, the principal defendant
was put in possession of the suit land and she continued to be in possession.
The sale deed no.388 of 2001 was not a lawful document. The original
defendant no.2 Rajamoni Mondal also filed a written statement and filed his
additional written statement and denied the allegation and asserted that the
plaintiff never entered into possession over the suit land with vested right
therein and the fact was that after the execution of agreement of sale with
principal defendant Shobha Devi dated 30.10.2000, she was put in
possession of the property by raising boundary wall. It was asserted that the
sale deed no. 388 of 2001 of the plaintiff was a fake document and not valid.
The principal defendant expired and consequently the newly added
defendants had also filed their written statement.
12. The learned trial Court framed the following issues for consideration:
"(i) Is there any cause of action for the suit?
(ii) Is the suit barred by limitation?
(iii) Has the Defendant No. 2 executed Sale deed No. 388/2001 in
favour of the plaintiff and is the said Deed Lawful and valid?
(iv) Is the Sale Deed No. 1137/2001 executed by Defendant No. 2 in
favour of Defendant No. 1 is void, illegal and inoperative in law?
(v) Is the said Sale Deed No. 1137/2001 liable to be canceled?
(vi) Is the plaintiff entitled to the relieves claimed?”
13. In support of their claim, the plaintiff examined altogether 10 witnesses.
P.W.1: Ram Kali Banerjee, P.W.2: Manik Chandra Sarkhel, P.W.3:
Chhotilal Mondal, P.W.4: Satinath Mondal, P.W.5: Arun Kumar
Lachhiramka, P.W.6: Fani Bhushan Mishra, P.W.7: Shankar Lal
Parshuramka, P.W.8: Paresh Bouri, P.W.9: Munna Kumar Poddar and
P.W.10: Sadanand Mahato. The plaintiff also exhibited some documents
which were marked exhibits as under:
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Ext.1: Signature of Typist on Sale Deed No. 388 of 2001
Ext. 2: The Whole Sale Deed No. 388 of 2001.
Ext. 2/A: Map prepared by Chhotilal Mandal part of Sale Deed No.
388 of 2001.
Ext. 3: W.S. of R.E. Case No. 26/88-89.
Ext.4: Vakalatnama of R.E. Case No. 26/88-89.
Ext. 4/a: Vakalatnama of R.M.A. Case No. 86/01-02.
Ext.5: Hazira in R.M.A. 86/01-02 dated 02.04.2004.
Ext. 6: Bail Bond of G.R. Case No. 178 of 92/ T.R. 213 of 1998/ T.R.
16/2003 dated 09.03.1998.
Ext.7: Letter No. 254 dated 02.04.2002 of D.C., Jamtara. Ext.8 and
8/1: Rent Receipts 1776336 and 3286061.
Ext. 9 to 9/K: Signature of Rajamuni Mandal on Sale deed dated
20.03.2001.
Ext. 10 to 10/a: Signature of witness Vishnu Pd. Mandal on Sale Deed
20.03.2001.
Ext. 11: Signature of witness Munna Kumar Poddar on Sale Deed No.
388 of 2001 dated 20.03.2001.
Ext. 12: Signature of witness Mahesh Mandal on Sale Deed No. 388
of 2001 dated 20.03.2001.
Ext. 13: Report of Rajendra Singh, A.S.I. U/s 144 Cr.P.C.”
14. The defendants examined altogether 14 witnesses. D.W.1: Byomkesh
Paraya, D.W.2: Janardan Sah, D.W.3: Jharo Pddar, D.W.4: Md. Yunus,
D.W.5: Gopal Rana, D.W.6: Shankar Singh, D.W.7: Mohan Lal Burman,
D.W.8: Sanjay Kumar Mahata, D.W.9: Shrawan Kumar Gupta, D.W.10:
Surji Devi, D.W.11: Kisan Mandal, D.W.12: Kisan Mandal, D.W.13:
Mahesh @ Maheshwar Mandal and D.W.14: Nunumani Pandey.
15. The defendants also exhibited some documents which were marked
exhibits as under:
“Ext. A to A/6: Signatures of Rajamoni Mandal on written
statements. Ext. B: Agreement for sale dated 30.10.2000.
Ext. B/1 to B/7: Signatures of (1) Jharo Poddar, (2) Shobha Devi, (3)
Rajamoni Mandal, (4) Mahesh Mandal, (5) Sanjib Kr. Mahata, (6)
Kishan Mandal and (7) Bhola Rana on the deed of Agreement for
Sale dated 30.10.2000.
Ext. C: Deed of Agreement for Sale dated 20.12.2000.
Ext. C/1: Signature of Janardan Sah on the Deed of Agreement for
sale dated 20.12.2000.
Ext. C/2 to C/4: Signatures of Rajamoni Mandal, Mahesh Mandal
and Sanjib Kr. Mahata on the Deed of Agreement for Sale dated
20.12.2000.
Ext. D: Deed of Sale No. 1358 dated 19.12.1984.
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Ext. D/1: Map annexed with Deed of Sale No. 1358 dated
19.12.1984.
Ext. E : Deed of Sale No. 1137 dated 08.10.2001.
Ext. F: Deposition of Rajamoni Mandal in T.S. No. 22/1991.”
16. The learned trial court first decided the issue nos. (iii), (iv) and (v) and
held that it was clear that the plaintiff had brought the suit on the basis of
sale deed no.388 of 2001 and that the principal defendant had tried to disturb
her peaceful possession on the basis of another legal sale deed. The
defendants asserted that the vendor Rajamoni Mondal had not executed the
sale deed in favour of the plaintiff and their case was that Rajamoni Mondal
had taken advance of Rs.15,000/- and executed an agreement of sale and
handed over the possession to the defendants as part performance of the
contract of sale under Section 53A of the Transfer of Property Act and
therefore the possession was required to be protected.
17. The learned trial court observed that the witnesses examined from the
side of the plaintiff clearly told that Rajamoni Mondal had executed the sale
deed before the Registrar, and at the time of registration, the document was
identified by his own son Vishnu Prasad Mandal. The learned trial court held
that oral evidence brought in support of the Sale Deed No. 388 of 2001
(Exhibit 2) filed by the plaintiff to claim title appeared to be reliable. The
claim of the defendants that Rajamoni Mondal had not executed the sale deed
in favour of the plaintiff and that the sale deed was executed by some fake
person was held to be not supported by any reliable evidence.
18. The learned trial court recorded a finding that in the present case
Rajamoni Mondal by executing Sale Deed No. 388 of 2001 (Exhibit 2) on
28.02.2001 had transferred his right, title and interest in the suit property to
the plaintiff Anandi Devi after receiving consideration amount of
Rs.61,000/- and the sale was completed on that day and that the sale deed
was registered on 20.03.2001. The learned trial court further considered that
there was no documentary or oral evidence to believe that principal
defendant was in possession of the property by virtue of agreement dated
30.10.2000 and also observed that to take the benefit of Section 53-A of
Transfer of Property Act, it is essential that the transferee must be in part
performance of the contract, must have taken possession of the property and
must have done some act in furtherance of the contract. The learned court
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recorded that the principal defendant was not seeking any protection against
her transferor. The learned court also considered the plea of Rajamoni
Mondal that he was not in the habit of making signature in Bengali language
and that he used to make his signature in Hindi. In support of the contention,
the plaintiff had produced evidence – oral and documentary, wherein certain
certified copies of the part of the court records were produced to show that
Rajamoni Mondal used to mark his signature in Bengali language. Certain
documents were also placed on record from the side of the defendants
wherein signature of Rajmoni Mondal was shown in Hindi.
19. The detailed discussion with regard to the documentary evidences
produced by both the parties in connection with the signature of Rajamoni
Mondal, whether in Hindi or in English, have been made in paragraph 34 of
the trial court’s judgment. The learned court recorded that the documents
were not sufficient to convince that Rajamoni Mondal was in the habit of
making signature in Hindi language and the evidences of the plaintiff on the
point was strong as a number of documents were filed to show that Rajamoni
Mondal was in the habit of marking his signature in Bangla language.
20. There is further finding of fact recorded by considering the materials
on record in paragraph 35 wherein the defendant no.1 argued that the plaintiff
was required to take opinion of handwriting expert as to whether Rajamoni
Mondal had executed the Sale Deed No. 388 of 2001 (Exhibit 2) or not. The
said plea was rejected by learned trial court by observing that if the
defendants had taken plea that Sale Deed No. 388 of 2001 (Exhibit 2) was
not executed by Rajamoni Mondal and Rajamoni Mondal had also filed
written statement that he had not executed the sale deed in favour of plaintiff
-Anandi Devi, then it was for the defendants to take opinion of handwriting
expert on this point and the burden of proof on this point was with the
defendants and the plea was rejected.
21. Another plea was taken by the defendants that Rajamoni Mondal had
not handed over his original sale deed, which stood in his name, to the
plaintiff. Rather it was handed over to the contesting defendant. The original
sale deed executed by Mohan Lal Burman in favour of Rajamoni Mondal in
the year 1984-85 was proved as Exhibit – D in the case. The learned trial
court recorded that for a valid sale, handing over of earlier sale deed, is not
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a precondition, and no one can acquire a valid right, title and interest on the
basis of possession of prior transaction document and the plea was rejected.
22. The learned trial court further considered the agreement of sale deed
dated 30.10.2000 (Exhibit B) with another agreement of sale (Exhibit C)
which was executed by Rajamoni Mondal after taking advance of
Rs.15,000/- on 20.12.2000 which was followed by the final execution of the
sale deed on 08.10.2001 by Rajamoni Mondal vide registered sale deed
no.1137 of 2001 (Exhibit E) whereby the property was sold to the principal
defendant Shobha Devi. The learned court observed that no reason has been
given as to why second deed of agreement for sale was executed on
20.12.2000. It was also observed that the alleged fact of execution of deed of
agreement for sale dated 30.10.2000 (exhibit B) was not mentioned in the
second deed of agreement for sale dated 20.12.2000. Further in the final sale
deed no.1137 dated 08.10.2001 (Exhibit E) which was in favour of defendant
no.1, nothing was mentioned in connection with taking advance on
30.10.2000 and on 20.12.2000 and execution of two deeds of agreement for
sale was not mentioned in the sale deed. The learned court observed that
there was no visible link between the agreement for sale and final sale and
disbelieved the case of the defendants that the sale deed no.1137 dated
08.10.2001 (Exhibit E) was preceded by the agreement of sale dated
30.10.2000 (Exhibit B) and agreement of sale dated 20.12.2000 (Exhibit C).
The plea of part performance and the defence raised pursuant thereto was not
accepted by the learned trial court. The learned trial court ultimately recorded
a finding after detailed discussion that the Sale Deed No. 388 of 2001
(Exhibit 2), executed in favour of the plaintiff, was a lawful and valid
document and sale deed no.1137 of 2001 executed in favour of defendant
no.1 was void, illegal and inoperative in law and consequently, the issue nos.
(iii), (iv) and (v) were decided in favour of the plaintiff and against the
defendants.
23. With respect to issue no.(ii), it was observed that the defendants had
taken a plea that the suit was barred by limitation but no specific ground was
found to presume that the suit was barred by law of limitation. As per the
plaint, the cause of action for the suit arose on execution of the 2nd sale deed
in October 2001, and the suit was filed on 17.12.2002, within three years of
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the period of limitation. The court also observed that there was no plea and
no evidence in support of this ground and the suit was held to be not barred
by limitation. This was held in paragraph 38 of the trial court’s judgment.
24. With respect to issue no.(i) -the cause of action, the learned court
observed that as per the plaintiff the cause of action arose on 08.10.2001
when Rajamoni Mondal had executed the second sale deed no.1137 of 2001
and that the principal defendant was adamant to occupy the land by force.
The issue regarding cause of action was also decided in favour of the
plaintiff.
25. While deciding issue no. (vi), the learned trial Court declared that
Registered Sale Deed No. 388 of 2001 in favour of the plaintiff Anandi Devi
was lawful and valid and would subsist. The learned trial Court further
declared that the sale deed no. 1137 of 2001 of Sub-Registration Office,
Jamtara was void, illegal and inoperative in law and not binding upon the
plaintiff. Sale Deed No. 1137 of 2001 was cancelled by the learned trial
Court by declaring the same illegal, void and inoperative in law. The learned
Court restrained the defendants from disturbing peaceful possession of the
plaintiff over the suit property. The learned trial court after recording the
findings ultimately decreed the suit.
26. After scrutinizing the various materials on record, the learned first
appellate court recorded concurrent findings in paragraph 16 to 20 of its
judgment, which is as under:
“16. Hon’ble Supreme Court in the case of Nanje Gauda and
another Vs. Gangama and others, reported in 2011,vol. 13 S.C.C
page 232 has held that “Non satisfaction of even one condition
would deny production of section 53A of Transfer of Property
Act.”
Now applying the principle laid down by the Hon’ble Supreme
Court to the facts of this case, I find agreement for sale dated
30.10.2000 was exhibited by the Defendant as Ext-B. In this case,
an agreement for sale dated 20.12.2000 was proved as Ext- C.
The original sale deed executed by Mohanlal Burman in favour of
Rajamoni Mondal bearing Deed No. 1358 dated 19.12.1985 as
Ext-D. The Defendant/Appellant tried to prove her claim of part
performance through two agreements for sale (Ext-B and C) but
surprisingly there is no whisper about existence of any agreement
for sale dated 20.12.2001 in the written statement. Thus, evidence
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of agreement for sale i.e Ext-C cannot be looked into as the same
is beyond pleadings.
17. I find that, perhaps, the Defendant was aware of her
weak points and therefore she fabricated two agreement papers
dated 30.10.2000 and 20.12.2000 to show that prior to purchase
land by the plaintiff on 20.03.2001 she acquire some sort of right
over the land through such Agreement. It may be mentioned here
that Defendant Sobha Devi is only a name lender and all
fabrications and fraud in this matter were perpetrated by her
husband Srawan Kr. Gupta D.W.9 which will be apparent from
the deposition of D.W.9. The main Defendant Sobha Devi did not
examine herself as witness and D.W.9 did everything allegedly on
her behalf. The fictitious nature of two Agreement and the sale
Deed Ext-A-1 to A-2/1 and B has been exposed from the evidence
of D.W.1, D.W.9 of the Defendant 1st party and D.W.10,D.W.11
and D.W.13.
18. D.W.1 Bomkesh Poddar was brought to prove the second Sale
Deed which was marked as Ext-B-1 with objection. He however
did not prove the Execution of the Deed but simply said in para 5
of his affidavit that he typed the Deed in which Rajamoni Mondal
signed and Sri Sanjeev Kr. Mahata, Advocate also signed since
Sanjeev Kumar Mahato has prepared the same. The fact is
however that the Deed was never drafted/prepared by Sanjeev
Kumar Mahata vide the signature of the Advocate in Ext-B-1 itself
and evidence of D.W.No.8 Sanjeev Kumar Mahata in para 6 of his
Affidavit shows that Ext-B was prepared by him. This D.W.8 has
further admitted in para 16 of his deposition that Sobha Devi and
Rajamoni Mondal both are his clients thus proving collusion
between them be the false nature of the document Ext- B hence
proved.
19. In so far as the two Agreements A-1 to A-2/1 and Ext-B/1 are
concerned Ext-A/1 shows that the stamp of Agreement paper was
purchased on 30.10.2000 at Deoghar and it was shown as signed
at Jamtara by the Executant on the same day i.e 30.10.2000.
However the Defendant’s husband D.W.9, the alleged Power of
Attorney holder has said in his Affidavit in para-5 that the
Agreement was executed on 31.10.2000. In cross- examination
also in para-27 and 28 he has admitted that Agreement was
executed on 31.10.2000 and payment was made of Rs. 15,000/- on
the same day but contents of Ext-A/1 to A-2/1 makes out a
different story. Sobha Devi’s L.T.I is not attested by any lawyer in
the said Agreement. Mahesh Mondal son of Rajamoni Mandal, the
co-executant of the said Agreement ( D.W.13) has admitted in
para-10 of his deposition that he was not a party to the Agreement
and in para 13 he has further admitted that this Agreement was
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never executed at Jamtara. The above contradictory evidence of
D.W.1,9 and 13 and the contents of the Agreement dated
30.10.2000 clearly proves the antedated and false nature of the
exhibits.
20. So far as second Agreement (Ext-C) dated 20.12.2000 is
concerned, the same is not admissible as beyond pleading. Thus,
it is clear that the defendant has created these agreement for sale,
in order to base her case of part performance of contract u/s 56A
of T P Act and as such she is not entitled for any relief under T P
Act.
On the other hand, the Plaintiff/Respondent have duly
proved sale deed bearing No. 388/2001 dated 20.03.2001 in
accordance with law. Learned lower court has elaborately
discussed the evidence oral as well as documentary and has
rightly decided in favour of the plaintiff/Respondent. It requires
no interference.”
27. Arguments on behalf of the appellant- principal defendant Shobha
Devi
A. Learned counsel for the appellant has submitted that though the
background in connection with the suit property has been narrated in
the pleadings, but it is not in dispute that the property stood in the
name of Rajamoni Mondal by virtue of registered sale-deed dated
19.12.1984 (Exhibit-D). Rajamoni Mondal was defendant no. 2 in
the suit. He submitted that as per the case of the plaintiff, defendant
no. 2 executed a sale-deed dated 28.03.2001 (Exhibit-2) and it was
their claim that they came in possession of the property and mutation
was also undertaken but no document of mutation has been produced
by the plaintiff.
B. The learned counsel further submitted that the same vendor i.e.
Rajamoni Mondal (original defendant no. 2) was said to have
executed another sale-deed dated 11.10.2001 in favour of the
defendant no. 1 and it was the case of the defendant no. 1 that there
was an agreement of sale dated 30.10.2000 (Exhibit-B) with original
defendant no. 2 and an amount of Rs.15,000/- was also paid to
original defendant no. 2 by way of earnest money AND it was
coupled with delivery of possession. He submitted that it was the case
of the defendant no. 1 as well as defendant no. 2 that no sale-deed
was executed in favour of the plaintiff being Exhibit- 2 and the sale-
13
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deed was executed through impersonation. He submitted that the
learned trial Court referred to the sale-deed in favour of the defendant
no. 1 which was marked as Exhibit- E and observed that the exhibit-
E did not refer to any agreement of sale much less agreement of sale
dated 30.10.2000 (Exhibit-B) and also held that the sale-deed of the
plaintiff was prior in point of time and accordingly, the learned trial
Court decreed the suit.
C. The learned counsel for the appellant has also submitted that the
original sale deed which was executed in favour of Rajamoni Mondal
was also exhibited by defendant No. 1 as Exhibit D. This itself is
sufficient to show that defendant No. 2 had executed the sale deed in
favour of defendant No. 1. For this he has relied upon the judgment
passed by the Hon’ble Delhi High Court reported in (2012) 188 DLT
525 (Shri O.P. Aggarwal and Another Vs. Shri Akshay Lal and
others). He has further submitted that the document of title as
claimed by the plaintiff was a void document and void ab initio
document need not be challenged. He has relied upon the judgment
passed by the Hon’ble Supreme Court reported in AIR 2006 SC 3608
(Prem Singh and others Vs. Birbal and others) and also judgment
passed by Hon’ble Orissa High Court reported in AIR 2006 Orissa
31 [Kiran Mohanty and others Vs. M/s. Woodburn Developers and
Builders (P) Ltd. and others]. He has further submitted that the 1st
Appellate Court was required to address all the issues and the 1 st
Appellate Court is final Court of facts and law. For this he has relied
upon the judgment passed by the Hon’ble Supreme Court reported in
(2022) 7 SCC 678 [Ramnath Exports (P) Ltd. vs. Vinita Mehta].
Learned counsel has submitted that the Exhibit F has not been
properly considered. He has also submitted that DW-11 was the
witness to the sale deed said to have been executed in favour of the
plaintiff and he has deposed before the Court and has denied the
execution of the sale deed by his father. Learned counsel submits that
the defendant No. 2 died during pendency of the suit and ultimately,
his son and wife deposed. The wife deposed as DW-10 and has
clearly stated that the original defendant No. 2 never used to sign in
14
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Bangla but he used to sign in Hindi. Learned counsel has submitted
that the fraud vitiates every solemn act and the deed in favour of the
plaintiff was a deed obtained by fraud and therefore, the same was
not required to be specifically challenged by the defendants. The
learned Courts have not considered the fact that the plaintiff failed to
prove her case.
D. Learned counsel has also submitted that the plaintiff was not
examined in the case and therefore, adverse inference has to be drawn
and the learned Courts have failed to consider this aspect of the
matter.
28. Arguments on behalf of the contesting respondents -plaintiff
I. With respect to substantial question no. (i), the learned counsel
for the respondents has submitted that the original defendant no.
2 had denied execution of the sale-deed by which the property
was transferred in favour of the plaintiff. The specific case was
that the original defendant no.2 never signed in Bangla and he
used to sign in Hindi. He submitted that for substantial question
of law no. (i), two points are required to be considered: –
(a) Denial of Rajamoni Mondal with respect to
execution of sale-deed no. 388 of 2001, and
(b) that he was not examined to prove the sale-deed.
II. The learned counsel has submitted that admittedly Rajamoni
Mondal (original defendant no. 2) expired during the pendency
of the case after filing the written statement and his wife and son
were examined as witness, therefore, there was sufficient
explanation for non-examination of Rajamoni Mondal. The
learned counsel has also submitted that Rajamoni Mondal was
impleaded as a defendant in the case and he denied the execution
of the deed. Mere denial was not conclusive and the matter was
to be determined as to whether he had executed the sale-deed or
not.
III. Learned counsel for the respondents has further submitted that
since the only defence was that original defendant no.2 never
used to sign in Bangla, numerous documents were exhibited in
15
2025:JHHC:10102
the Court which were signed by the original defendant no. 2 in
different court proceedings in which he had put his signature in
Bangla.
IV. The learned counsel has also referred to Exhibit-F which was
relied upon by the learned counsel for the appellant during the
course of hearing and has submitted that the title suit is of the
year 1991 and Exhibit-F is dated 28.04.2005. The learned
counsel has further submitted that the son of the defendant no. 2
was a witness in the sale-deed executed in favour of the plaintiff,
but during his examination as DW- 13 he has not denied his
signature as a witness in the sale-deed. He also submits that DW-
13 in his own deposition has stated that he was known as Mahesh
@ Maheshwar Mandal. The learned counsel also submits that
DW 13 had not stated that his father had not signed the sale-deed,
rather his specific case was that his father, original defendant no.
2, never used to sign in Bangla and his only defence was that his
father did not know how to write in Bangla.
V. Learned counsel for the respondents has also submitted that P.W.
4, who is an advocate, has been examined in the case and he has
been the advocate of original defendant no. 2 in various cases and
he had exhibited numerous documents including exhibit-4, 4/A,
5 and 6 which were signed by the original defendant no. 2 in
Bangla. The learned counsel has submitted that the very plea that
the original defendant no.2 never used to sign in Bangla stood
demolished on the basis of the documents which were exhibited
on behalf of the plaintiff and those documents were marked
without any objection.
VI. The learned counsel for the respondents has also submitted that
there was no occasion for the plaintiff to send any document for
verification of signature in view of the fact that the specific case
of the defendants was that original defendant no. 2 never used to
sign in Bangla and admitted signatures were placed on record
which were duly signed by original defendant no. 2 and there
16
2025:JHHC:10102
were sufficient materials on record to show that original
defendant no. 2 used to sign in Bangla also.
VII. The learned counsel for the respondents has further submitted
that the execution of sale-deed by the original defendant no. 2 in
favour of the plaintiff was duly proved on the basis of the
materials on record which were witnessed by none other than his
son i.e. D.W. 13 and in such circumstances, in view of section 48
of Transfer of Property Act any subsequent sale-deed executed
by original defendant no. 2 cannot confer title on the defendant
no.1.
VIII. With respect to substantial question no. (ii), the learned counsel
for the respondents has submitted that the sale-deed executed by
original defendant no. 2 in favour of defendant no. 1 was
subsequent in point of time and since the property was already
transferred in favour of the plaintiff by a prior sale-deed, the
subsequent sale-deed was certainly void, illegal and inoperative.
The original defendant no. 2 could not have transferred any title
of the property which he did not possess. Learned counsel for the
respondents has again referred to section 48 of the Transfer of
Property Act, 1882 to submit that if the same property is
transferred by the same vendor to two different persons, the
subsequent sale-deed has to give way to the prior sale-deed and
therefore, the execution of subsequent sale-deed by original
defendant no. 2 in favour of the defendant no. 1, is irrelevant.
IX. With respect to the substantial question No. (iii), the learned
counsel for the respondents has submitted that the question of law
is with regard to non-consideration of the agreement of sale dated
30.10.2000. He has submitted that both the learned Courts have
considered the agreement of sale dated 30.10.2000 and have
rejected the case of the defendants. Learned counsel has also
referred to the written statement filed by defendant Nos. 1 and 2
and has submitted that although in paragraphs 12 and 13, there is
a reference of agreement of sale dated 30.10.2000 and that the
original defendant No. 2 had put the defendant No. 1 in
17
2025:JHHC:10102
possession of the property, but there is no mention about any
payment received in terms of the agreement of sale dated
30.10.2000, rather, the case of defendant no. 1 was that in the
final sale deed there was a bonafide mistake and no reference was
made to the agreement of sale dated 30.10.2000. Learned counsel
has also submitted that original defendant no. 2 had also
mentioned about the agreement of sale dated 30.10.2000 and had
specifically mentioned in the written statement that he received
an advance amount of Rs.15,000/- and he further stated that he
received balance consideration amount and put the defendant No.
1 in possession of the property. Learned counsel has submitted
that there is no reference of payment of Rs.15,000/- in the written
statement filed by the defendant No. 1. Further, in the final sale
deed also neither there is any reference of agreement of sale dated
30.10.2000 nor there is any reference to payment of Rs.15,000/-
rather, the final sale deed reveals that entire consideration amount
was paid on the date of execution of the sale deed.
X. Learned counsel for the respondents has also submitted that there
was another agreement of sale which was exhibited from the side
of the defendants that was agreement dated 20.12.2000. The
same was apparently entered into in view of the fact that the
agreement of sale dated 30.10.2000 referred to payment of
Rs.15,000/- already made and there was a stipulation that further
Rs.15,000/- was to be paid on 20.12.2000. He submits that the
agreement of sale dated 20.12.2000 mentions about total
payment of Rs.15,000/- only out of the total consideration
amount of Rs.60,000/- and the agreement of sale dated
20.12.2000 does not find mention in the written statements filed
by defendant No. 1 or defendant No. 2 and only reference has
been made to the agreement of sale dated 30.10.2000.
XI. With respect to substantial question No. (iv), learned counsel for
the respondents – plaintiff has also submitted that there is no
compulsion on behalf of the Court or the either party to send the
handwriting for examination by expert and it would depend upon
18
2025:JHHC:10102
the facts and circumstance of each case. In the instant case there
was no such requirement. There was enough material on record
to prove the case of the plaintiff. He has also submitted that
signature in Bangla cannot be compared with signature in Hindi
and therefore, no purpose would have been served had the
signatures been sent for examination by the handwriting experts.
XII. With respect to the arguments of the appellant on the point of
non-examination of the original plaintiff, learned counsel for the
respondents has submitted that even the defendant No. 1 was not
examined. He has also submitted that there was explanation for
not producing the plaintiff for examination by the Court. He has
submitted that there is presumption with respect of execution of
a registered sale deed and what was under dispute was as to
whether the sale deed was executed by the original defendant No.
2. Learned counsel has submitted that the witnesses to the sale
deed executed in favour of the plaintiff were duly examined
before the learned Court and there were two witnesses; one was
the son of original defendant No. 2 and other was son of the
plaintiff. He has submitted that son of plaintiff was duly
examined and supported the case of the plaintiff.
XIII. With respect to the arguments of the appellant that the deed in
favour of the plaintiff was itself void, the learned counsel for the
respondents has referred to the judgment passed by the Hon’ble
Supreme Court in case of “Prem Singh Vs. Birbal” reported in
(2006) 5 SCC 353, which has also been relied upon by the learned
counsel for the appellant, to submit that it has been held that there
is presumption that the registered document is validly executed.
A registered document therefore prima facie would be valid in
law. The onus of proof thus would be on a person who leads
evidence to rebut the submission. Learned counsel submits that
the deed of plaintiff being a registered document, onus was
heavy on the defendants to prove that it was executed through
fraud, etc. and for this the defendants ought to have challenged
the sale deed of the plaintiff by filing a separate suit but no such
19
2025:JHHC:10102
step was taken and in a case where the fraud is alleged and fraud
is required to be proved, the same has to be challenged and it
cannot be said to be void ab initio unless the fraud is established
in any court of law.
XIV. Learned counsel has also relied upon the judgment passed by the
Hon’ble Supreme Court in the case of “Md. Noorul Hoda Vs.
Bibi Raifunnisa and Others” reported in (1996) 7 SCC 767 to
submit that it has been held in the said case that when the plaintiff
seeks to establish his title which cannot be established without
avoiding the decree or an instrument that stands as an
insurmountable obstacle in his way which otherwise binds him,
though not a party, the plaintiff necessarily has to seek a
declaration and have that decree, instrument or contract cancelled
or set aside or rescinded. Learned counsel submits that in the
present case the defendants were alleging that the sale deed
executed in favour of the plaintiff was obtained by fraud and the
sale deed of the plaintiff was certainly standing in the way of the
title of defendant No. 1 and therefore, it was obligatory on the
part of the defendants to challenge the sale deed of the plaintiff
by instituting an appropriate suit, which was never done by the
defendants.
XV. The learned counsel for the respondents has further relied upon
the judgment passed by the Hon’ble Supreme Court in the case
of “Dhurandhar Prasad Singh Vs. Jai Prakash University“
reported in (2001) 6 SCC 534 and has submitted that it has been
held that in cases where the legal effect of the document cannot
be taken away without setting aside the same, it cannot be treated
to be void but would be obviously voidable. The learned counsel
has submitted that in the present case, the property was
transferred in favour of the plaintiff through a registered
document which had a presumptive value.
XVI. With respect to the burden of proof, learned counsel for the
respondents has referred to Section 101 of the Indian Evidence
Act and has submitted that it was the defendants who were20
2025:JHHC:10102alleging fraud in connection with the execution of the first sale
deed in favour of the plaintiff and therefore, the burden was on
the defendants to prove the same.
29. Rejoinder arguments of the appellant
In response, the learned counsel for the appellant has submitted that
Exhibit 12 was the signature of Mahesh @ Maheshwar Mandal (DW-
13) and his signature was marked with objection. He has also submitted
that the signature of defendant No. 2 on the sale deed in favour of the
plaintiff was marked with objection as Exhibit 9/A. The signature of
Vishnu Prasad Mandal was marked Exhibit 10(a) and signature of
Munna Kumar Poddar was marked Exhibit 11. The learned counsel for
the appellant has referred to the judgment passed by the Hon’ble
Supreme Court reported in AIR 2023 SC 379 (Smriti Debbarma
through Lrs. Vs. Prabha Ranjan Debbarma and others) and has
referred to paragraph 31 of the said judgment to submit that the burden
of proof is on the plaintiff to establish their case and that the burden
shifts in terms of Section 101 and 102 of the Indian Evidence Act. He
has also submitted that the witness of defence cannot give justification
to the decree of a suit. Learned counsel submits that the original plaintiff
did not depose and therefore, the original plaintiff did not discharge the
burden of proof.
Findings of this Court.
30. The registered sale deed no. 388 of 2001 (exhibit-2) was for
consideration of Rs. 61,000/- which was prior in point of time as
compared to registered sale-deed no. 1137 of 2001 executed in favour
of the defendant no. 1. Both the sale deeds were executed by original
defendant no. 2 with respect to the same property.
31. The specific case of the defendants was that the sale deed no. 388
of 2001 (exhibit-2) was never executed by the original defendant no.2.
However, this sale deed was never challenged by the defendants by
filing a suit or cross objection, although the point regarding validity of
its execution and registration by the defendant no.2 was duly raised by
the defendants in their written statement and evidences were led by both
the parties. Their further case was, otherwise also, the sale-deed no.
21
2025:JHHC:10102
1137 of 2001 executed by the original defendant no.2 in their favour
was preceded by two agreements of sale after payment of part
consideration amount of Rs.15,000/- and the defendant no.1 was put in
possession of the property as a part performance of contract and their
possession was protected under section 53-A of the Transfer of Property
Act, 1882 which was followed by sale-deed no. 1137 of 2001.
Substantial question of law no. (i) and (iv)
32. These two questions are co-related and are taken up together. The
records of the case reveal that Rajmoni Mondal (original defendant
no.2) denied execution of sale deed no.388 of 2001 dated 20.03.2001 in
favour of the plaintiff Anandi Devi. After having gone through the
written statements and additional written statements filed by Rajmoni
Mondal and upon going through the impugned judgements, this Court
finds that the specific case of Rajmoni Mondal was that he had never
been to the Registration office for the purposes of execution of the sale
deed no.388 of 2001 dated 20.03.2001 and he had sold the property to
the defendant no.1 vide sale deed no.1137 of 2001 dated 08.10.2001.
However, in his written statement, Rajmoni Mondal (original defendant
no.2) had not taken the plea that he never used to sign in ‘Bangla’.
33. Upon perusal of sale deed no.388 of 2001 dated 20.03.2001 and
the materials placed on record, it is not in dispute that Munna Kumar
Poddar, son of the plaintiff was a witness of the sale deed and his
signature was marked Exhibit 11 and he was examined as P.W. 9.
34. Another witness of sale deed no.388 of 2001 dated 20.03.2001 is
Mahesh Mandal, son of Rajmoni Mondal, who was examined as D.W.
13 and his signature on the aforesaid sale deed has been exhibited as
Exhibit 12 [with objection]. D.W. 13 has supported the execution of the
sale deed no.1137 of 2001 dated 08.10.2001 by Rajmoni Mondal
(defendant no.2) in favour of the defendant no.1 and has simply stated
in Paragraph 7 of the evidence in chief that his father Rajmoni Mondal
only knew Hindi and he did not know how to write Bangla. This witness
has nowhere stated that he or his father did not go to the Registry office
for the purposes of execution of sale deed no.388 of 2001 dated
20.03.2001 in favour of the plaintiff. In his cross-examination, he has
22
2025:JHHC:10102
stated that his father used to fight cases in Jamtara court and his
Advocates were Sudhir Babu, Bilas Babu and Khotwan Babu.
35. P.W. 4 Satinath Mandal had clearly stated that Rajmoni Mondal
was the client of his father Sudhir Kumar Mandal and this witness has
exhibited various documents wherein Rajmoni Mondal (original
defendant no.2) had signed in Bangla and this witness has been fully
cross-examined. The various documents which were exhibited having
Bangla signature of Rajmoni Mondal (original defendant no.2) and the
evidence of P.W. 4 has been fully discussed in paragraph 20 of the trial
court’s judgment and has also been discussed and considered in the
appellate court’s judgment.
36. P.W.9- son of the plaintiff, is also a witness to the sale deed
no.388 of 2001 dated 20.03.2001 and his signature on the sale deed has
been exhibited as exhibit-11. He has deposed that the sale deed was
prepared in his presence and two sons of Rajmoni Mondal namely
Vishnu Prasad Mandal and Mahesh Mandal had put their signature in
his presence and they were identified in the Registry office and the sale
deed was for a consideration amount of Rs.61,000/-. P.W.9 exhibited
the signature of Rajmoni Mondal and Vishnu Prasad Mandal which
were marked as Exhibit 9 and 9/1 and 10 and 10/a , all with objection,
and also stated that pursuant to the sale deed, they came in possession
of the property.
37. This Court finds that Rajmoni Mondal had expired during the
pendency of the case after filing the written statements, and his wife and
son were examined as witness and accordingly, there was sufficient
explanation for non-examination of Rajmoni Mondal. Other witness
namely Vishnu Prasad Mandal, who was also a signatory as a witness
in the sale deed and was son of Rajmoni Mondal, has not been examined
before the court by the defendants.
38. The plea taken by the defendants during their evidence that
Rajmoni Mondal (defendant no.2) did not know Bangla language and
never used to sign in Bangla language was rejected by both the learned
courts after scrutinizing the materials on record.
23
2025:JHHC:10102
39. So far as Exhibit-F which was relied upon by the learned counsel
for the appellant during the course of hearing is concerned, the same is
dated 28.04.2005 and the present title suit is of the year 2002, and this
court finds that there is enough material on record to show that Rajmoni
Mondal (defendant no.2) used to sign in Bangla language and had
executed the sale deed no.388 of 2001 dated 20.03.2001 in favour of
the original plaintiff for consideration.
40. Under the provisions of Registration Act, when a deed is
registered in the registry office, there is a presumption of validity with
regard to its execution and further the sale deed contained the signature
of the persons who had executed the sale deed and not the signature of
the person buying the property namely Anandi Devi therefore, non-
examination of the original plaintiff Anandi Devi and also Rajmoni
Mondal who had expired during the pendency of the trial, is not fatal to
the findings recorded by both the learned courts that the sale deed
no.388 of 2001 executed by Rajmoni Mondal defendant no.2 in favour
of the original plaintiff was a lawful and valid document. Further, the
original plaintiff as well as the defendant no.1 were not examined before
the court and the plaintiffs had given explanation for non-examination
of the original plaintiff namely, Anandi Devi by stating that she was
suffering from Filaria.
41. So far as substantial question of law no.(iv) with regard to not
verifying the signature of vendor by handwriting expert or by FSL
laboratory is concerned, this Court finds that it was the defendants who
alleged that the original defendant no.2 had not put his signature on the
sale deed said to have been registered and executed by original
defendant no.2 in favour of the plaintiff. In view of Section 48 of the
Indian Registration Act, there is a presumption in connection with the
execution of the sale deed. The defendants made out a case that
Rajamoni Mondal never used to sign in Bangla and the plaintiff had put
in enough material on record to show that he had been putting his
signature in Bangla in various documents which were filed before
different court proceedings. Consequently, the very basis of the claim
of the defendants that he never used to sign in Bangla stood demolished.
24
2025:JHHC:10102
42. This Court also finds that the learned courts have meticulously
considered the materials placed on record and have given concurrent
findings. The learned counsel for the appellant has not been able to
point out any perversity in the matter of appreciation of evidence by
both the learned courts to the aforesaid finding.
43. The plea of fraudulent execution of sale deed was raised by the
defendants, and therefore, it was for the defendants to take appropriate
steps to get the admitted signature of Rajmoni Mondal compared with
that of the disputed signature. Moreover, the sale deed in favour of the
plaintiff was a registered document, the presumption of its due
execution was in favour of the plaintiff but the defendants failed to rebut
this presumption. The plea that Rajmoni Mondal never used to sign in
Bangla and did not know Bangla was rejected by both the courts by
referring to the materials placed on record.
44. In view of the aforesaid facts and circumstances, this Court is of
the view that the learned trial court as well as the learned first appellate
court had not committed any error in law in not getting the signature of
Rajmoni Mondal verified through a handwriting expert or by FSL
laboratory.
45. In view of the aforesaid findings and discussions, the
substantial questions of law no. (i) and (iv) are answered in favour of
the contesting respondents (plaintiffs) and against the appellant. It is
held that-
a. the learned trial court as well as learned 1 st Appellate Court
have not committed any error while deciding the main issue
“whether the sale deed no. 388 of 2001 executed by defendant
no. 2, the vendor Rajamoni Mondal in favour of plaintiff is
lawful and valid” in favour of the plaintiff in spite of the fact
that the vendor Rajamoni Mondal denied the execution of Sale
Deed No. 388 of 2001 in favour of plaintiff Anandi Devi.
b. The vendor Rajamoni Mondal could not be examined as he
expired after filing of the written statement and additional
written statement and therefore his non-examination is not
25
2025:JHHC:10102
fatal to the findings recorded by the courts based on the
materials produced on record.
c. The learned trial court as well as learned 1 st Appellate Court
have not committed any error in not getting the signature of
the vendor Rajamoni Mondal verified by a handwriting expert
or by an F.S.L. laboratory and such non-examination is not
fatal to the findings recorded by both the courts.
Substantial question no. (ii) and (iii)
46. Before proceedings to decide these questions of law, it is
important to point out that the learned courts have also considered the
fact that the original sale deed which was in favour of Rajmoni Mondal
was produced by the defendants and not by the plaintiff and learned
courts were rightly of the view that merely because the original sale-
deed was produced by the defendants and not by the plaintiff, the same
would not be fatal to the legality and validity of the sale deed executed
by the original defendant no.2 in favour of the plaintiff.
47. So far as the judgment relied upon by the contesting respondents
which has been passed by Hon’ble Delhi High Court in the case
reported in 2012 188 DLT 795 (Shri O.P. Aggarwal and Another vs.
Shri Akshay Lad and Other) is concerned, the same does not apply to
the facts and circumstances of this case. The said judgment was passed
in 1st appellate jurisdiction and the suit was filed for possession and
mesne profits. In the said case, the plaintiffs were having agreement of
sale, registered power of attorney, registered Will etc. all dated
11.02.2002 and the defendants produced Jamabandi showing the name
of the original owner, but the title deed of the original owner was
produced and exhibited by the plaintiff. In such circumstances, the
learned 1st appellate court held that possession of the original sale deed
with the appellants-plaintiffs was a very strong proof ownership and
allowed the suit seeking possession. In the present case, both the parties
are claiming title on the basis of registered sale deeds executed by the
same vendor and the subsequent sale deed by original defendant no.2 in
favour of defendant no.1 is under challenge. This Court finds that both
the learned courts, after appreciating the materials on record, have
26
2025:JHHC:10102
rightly returned a finding that production of title deed of original
defendant no.2 by defendant no.1 was of no consequence and also held
that the registered deed in favour of plaintiff was duly proved and
defendant no.1 failed to prove that they were in occupation of the
property by virtue of part performance of agreement between defendant
no.1 and defendant no.2. The sale deed by original defendant no.2 in
favour of defendant no.1 was held to be void and illegal being in
subsequent point of time.
48. This Court is of the considered view that the allegation of fraud
in execution and registration of sale deed which is alleged to be
executed by the true owner of the property is voidable and cannot be
said to be void and fraud is required to be established by cogent
evidence. Certainly, the sale deed executed by original defendant no.2
in favour of the plaintiff casts a cloud with respect to the title of the
property pursuant to registered sale deed executed by defendant no.2 in
favour of the defendant no.1 but the deed in favour of the plaintiff was
never challenged by the defendants by filing any cross objection or
cross suit. However, the learned courts have gone into the legality and
validity of both the sale deeds and have rejected the plea of the
defendants with regard to the execution of registered sale deed by the
original defendant no.2 in favour of the plaintiff and by referring to
Section 48 of the Transfer of Property Act, 1882, the learned Courts
have held that the subsequent sale deed in favour of defendant no.1 was
void and illegal as prayed for in the suit and accordingly, the suit was
decreed.
49. In the judgment passed in the case of “Prem Singh Vs. Birbal“
reported in (2006) 5 SCC 353, it has been inter alia held that Article 59
of the Limitation Act will be attracted when the plaintiff asserts fraud
and where a document is prima facie valid. It has also been held that
there is presumption that a registered document is validly executed and
therefore a registered document would be prima facie valid in law and
further the onus of proof would be on a person who leads evidence to
rebut the presumption. In the present case, the sale deed in favour of the
plaintiff being admittedly a registered document, there is presumption27
2025:JHHC:10102that it was validly executed and it was for the defendants to lead
evidence and dislodge the presumption but the defendants could neither
rebut the presumption nor they had challenged the sale deed of the
plaintiff except by questioning its execution and validity through
written statement and the plea raised has been fully considered and
rejected by concurrent findings.
50. Now coming to the substantial questions of law no. (ii) and (iii) ,
this court finds that both the learned courts have recorded that the
defendants had exhibited two agreements for sale between the
defendant no.1 and original defendant no.2 in connection with the sale
of the same property; first one is unregistered agreement dated
30.10.2000 which reveals that the agreement was for a consideration
amount of Rs.60,000/- and a sum of Rs.15,000/- was already paid in
advance and the registry was to be done within a year upon payment of
the remaining consideration amount of Rs.45,000/-. The 2nd one is also
unregistered agreement of sale dated 20.12.2000 which again
mentioned that the consideration amount of the sale is Rs.60,000/- and
Rs.15,000/- was already paid and the registry was to be done within a
period of one year upon payment of the remaining consideration
amount.
51. However, the sale deed executed in favour of the defendant no.1
by Rajmoni Mondal (original defendant no.2) which was registered as
sale deed no.1137 of 2001 was the sale deed subsequent in point of time
when compared to the sale deed executed by original defendant no.2 in
favour of the plaintiff which was numbered as sale deed no.388 of 2001.
The sale deed no.1137 of 2001 was for a consideration amount of
Rs.60,500/- which is accordingly not matching with the sale
consideration figure mentioned in the two agreements of sale and
further the sale deed no.1137 of 2001 neither refers to any of the earlier
agreement of sale nor it refers deduction of any amount which was said
to be paid at the time of agreement of sale and the entire consideration
amount of Rs.60,500/- was shown to have been paid at the time of
execution of the sale deed. Consequently, both the learned courts have
discarded the story put forward by the defendants with regard to the two
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agreements of sale dated 30.10.2000 and 20.12.2000 after discussing
the materials placed on record. No perversity in connection with the
appreciation of evidence with respect to the aforesaid two agreement of
sale has been pointed out by the learned counsel appearing on behalf of
the appellant.
52. It is important to note that both the defendants in their written
statement have only referred to the agreement of sale dated 30.10.2000
and have stated that upon receipt of Rs.15,000/-, the original defendant
no.2 put the defendant no.1 in possession. There is no reference of the
subsequent agreement to sale dated 20.12.2000 but the defendants
produced both the agreements which were duly considered by the
learned courts and the story with regard to the agreement of sale , part
performance of agreement and arguments based on section 53-A of the
Transfer of Property Act has been discarded after considering that in
the sale deed no.1137 of 2001 in favour of defendant no.1, neither any
reference was made to the agreement of sale nor any reference was
made with regard to the advance payment of Rs.15,000/- nor any such
amount was deducted. This Court also finds that the consideration
amount mentioned in the agreement of sale is Rs.60,000/- and
consideration amount mentioned in their sale deed is Rs.60,500/- and
accordingly the consideration amount did not match.
53. Section 48 of the Transfer of Property Act, 1882 is quoted as
under:
“48. Priority of rights created by transfer.–
Where a person purports to create by transfer at different times
rights in or over the same immoveable property, and such rights
cannot all exist or be exercised to their full extent together, each
later created right shall, in the absence of a special contract or
reservation binding the earlier transferees, be subject to the
rights previously created.”
54. Section 48 of the Transfer of Property Act establishes the
doctrine of priority and it provides that when multiple rights are created
over the same immovable property at different point of time, the later
created right to property is subordinate to the earlier one unless there is
a special contract or reservation binding the earlier transferee. In the
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2025:JHHC:10102
present case, there is no case of the defendants about existence of any
special contract or reservation vis-à-vis the prior sale-deed of the
plaintiff.
55. The defendants have claimed that the previous sale deed in
favour of the plaintiff was never executed by Rajmoni Mondal (original
defendant no.2) which plea has been rejected by the learned courts.
Their further claim was, otherwise also, though sale deed no. 1137 of
2001 dated 08.10.2001 (Exhibit-E) was subsequent in time to sale-deed
of the plaintiff, but was preceded by the agreements of sale dated
30.10.2000 (Exhibit-B) and dated 20.12.2000 (Exhibit-C) and they
were entitled to protection under section 53A of the Transfer of
Property Act, 1882. Both the learned courts have rejected the aforesaid
plea by citing reasons as the sale deed no. 1137 of 2001 dated
08.10.2001 (Exhibit-E) has no link with the agreements of sale and such
finding has been upheld by this Court as discussed above.
56. This court finds that the execution of sale deed no.1137 of 2001
by the original defendant no.2 in favour of the defendant no.1 was not
in dispute but the same has been held to be void, illegal and inoperative
in view of section 48 of the Transfer of Property Act as the same
property was sold twice by the same vendor to two persons, the original
plaintiff and also the defendant no.1 and the sale deed in favour of the
plaintiff was prior in point of time. Merely because Rajmoni Mondal
(original defendant no.2) stated that he had executed the sale deed
no.1137 of 2001 is of no consequence when the learned courts after
scrutiny of the materials on recorded held that the previous sale deed
no. 388 of the year 2001 was also executed by Rajmoni Mondal
(original defendant no.2).
57. As a cumulative effect of the aforesaid findings, the substantial
question of law nos. (ii) and (iii) are also decided in favour of the
contesting respondents (plaintiffs) and against the appellant. It is held
that-
a. The learned trial court as well as learned 1st Appellate court
had committed no error while deciding the issue “whether the
Sale Deed No. 1137 of 2001 executed by the defendant no. 2,
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the vendor Rajamoni Mondal in favour of defendant no. 1 is
void, illegal and inoperative in law”. The finding has been
rightly arrived in spite of the fact that the vendor Rajamoni
Mondal himself admitted the execution of Sale Deed No. 1137
of 2001 in favour of defendant No. 1 Shobha Devi in his written
statement.
b. The learned trial court as well as learned 1st Appellate Court
have committed no error and have fully considered the
agreement executed by the vendor Rajamoni Mondal in favour
of defendant No. 1 Shobha Devi on 30.10.2000 with regard to
the sale of the land in question and have rejected the plea of
part performance of agreement of sale as claimed by the
defendants after appreciating all the materials placed on
record. This Court also finds that the agreements of sale dated
30.10.2000 and 20.12.2000 as relied upon by the defendants
have been duly considered by both the courts and the story with
regard to the both the agreements have been discarded by well-
reasoned judgments.
58. This Second Appeal is accordingly dismissed.
59. Pending interlocutory application, if any, is dismissed as not
pressed.
(Anubha Rawat Choudhary, J.)
Pankaj/Kunal/AFR
31
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