IMPORTANT POINT
The court annulled a sale deed executed under fraudulent circumstances, affirming that a seller lacking exclusive rights cannot validly transfer property.

JUDGMENT :

Goutam Bhaduri, J

Heard.

1. Since both the appeals are arising out of common judgment and decree dated 30-11-2018 passed by the 7th Additional District Judge, Bilaspur, C.G as also common facts and issue involved in these appeals, they are being heard together and decided by this common judgment.

2. By order dated 5-10-2018 civil suit Nos.325-A/2012 and 74-A/2018 were consolidated and decided by the trial Court vide common impugned judgment and decree as stated supra.

3. Civil Suit No.325A/2012 filed by the plaintiffs (Budheshwar Nayak & Ors.)/respondents herein was allowed and against which FA No.660 of 2018 has been filed by the appellant/defendant No.1 whereas civil suit No.74A/2018 filed by the plaintiff (Tularam Patel)/appellant herein was dismissed and against the same FA No.6 of 2019 was filed by the appellant/plaintiff.

4. The brief facts of the case are that:-

(A). Tularam Patel had filed a suit (civil suit No.74-A/2018) for permanent injunction and Budheshwar Nayak & others filed a suit (civil suit No.325-A/2012) for declaration and cancellation of sale deed and possession. Since the property inter se was one and the same, therefore, by a common judgment and decree both the suits were decided.

(B) Budheshwar Nayak & others filed a suit, which was bearing Civil Suit No.325A/2012 before the Additional District Judge, Bilaspur with the averments that a sale deed which is executed by Meharchand Nayak (father of Budheshwar) in favour of Tularam Patel, is null and void and is out come of fraud and Meharchand Nayak did not have exclusive right to execute the sale deed. Whereas Tularam Patel, who was the purchaser of the suit land filed the suit No.74-A/2018 for injunction that by a registered sale deed he purchased the suit land, therefore, the seller or their heirs be injuncted to interfere with the peaceful possession. To prove their respective case both the parties apart from their pleadings in counter adduced evidence and examined all the witnesses.

(C). Budheshwar Nayak & Ors. stated that Tularam Patel, who was the counsel of Meharchand Nayak, who was septuagenarian at the relevant time, on a promise that certain bail bond to be furnished took him to the Registrar Office and committed fraud in lieu of furnishing the bail bond got the sale deed executed without any payment of amount. On the contrary, Tularam Patel, the counsel denied the same.

(D) After both the civil suits were consolidated by order dated 5-10-2018, the learned Additional District Judge decreed the suit in favour of Budheshwar Nayak, who was claiming through Meharchand and others. No cross-objection has been filed. Simultaneously, the suit filed by Tularam Patel was dismissed claiming injunction. Hence, Tularam Patel, the purchaser of the suit property, has filed both these appeals.

5. For the sake of convenience, Tularam Patel & Budheshwar Nayak & Others would be hereinafter referred to as “the appellant & the respondents”, respectively.

6. (a) Learned counsel for the appellant would submit that in order to prove a registered sale deed to be an out come of fraud, the respondents failed to adduce evidence and it is only on the basis of certain copy of the sale deed, the expert opinion was obtained, which was produced before the Court. He would further submit that Meharchand Nayak, the seller of the suit property, was not examined and original sale deed though which was filed by the appellant was never sent for examination. He would further submit that the property, in fact, was got divided in between Meharchand Nayak and his legal heirs, which is evident from the Ex. D/22, wherein the part of the suit property was subject of sale by the respondents and that too was during the life time of Meharchand Nayak.

(b) Learned counsel would further submit that the complaint was made in name of Meharchand Nayak and Budheshwar Nayak and in his cross-examination at para 17 he admitted that he made those complaints that raises a doubt about his conduct. He would fur