The element of fraud must be pleaded and proved with cogent evidence, and a plaintiff must seek cancellation of a sale deed to challenge it effectively.

JUDGMENT :

ANUBHA RAWAT CHOUDHARY, J.

1. Heard the learned counsel appearing on behalf of the parties.

2. This appeal arises out of judgment dated 02.06.2017 passed by the learned District Judge, Simdega whereby Title Appeal No. 7 of 2016 has been dismissed and the judgment and decree dated 30.06.2016 passed by the learned Sub Judge-I (Civil Judge Senior Division-I) Simdega in Title Suit No. 09 of 2012 has been affirmed.

3. The learned counsel for the appellant submits that there are concurrent findings recorded by both the Courts and the defendant no. 1 of the suit is the appellant before this court. Defendant No. 2 was the Deputy Commissioner who did not participate in the proceedings and the suit was admitted ex-parte with respect to defendant no. 2. The defendant no. 2 did not appear before the appellate court and before this court also the defendant no. 2 who is respondent no. 2 in the present case is not appearing.

4. The appeal was admitted on 31.08.2018 on the following substantial question of law:-

“Whether element of fraud are required to be pleaded and proved by cogent evidence, the findings of the learned court below otherwise in this regard are wholly perverse and against the mandate of law.”

5. Further substantial question of law which has been framed vide order dated 06.01.2025 is as follows:-

“Whether the sale deed executed through impersonation of the vendor was at all required to be specifically challenged in order to hold the same as nullity/void-ab-initio.”

Argument of the appellant ( defendant no.1)

6. Learned counsel appearing on behalf of the appellant has submitted that in the plaint there was an allegation of impersonation of the plaintiffs while seeking permission from the Deputy Commissioner u/s 46 of the Chhotangpur Tenancy Act for sale of the property in favour of defendant no. 1 and the sale deed was also executed through impersonation but the impersonation cannot be said to have been proved through cogent evidence. He has further submitted that no relief was prayed for seeking declaration of the sale deed as null and void or void-ab-initio.

7. The learned counsel while referring Trial Court’s judgment has referred to the issue framed in paragraph no. 4 and has submitted that issue nos. 1,2,3,4 and 6 were dealt with together in paragraph 10. He has submitted that specimen thumb impression of the plaintiff was not taken in the court and the thumb impression of the vendor of the sale deed as per the sale deed was marked as Exhibit-A. The handwriting expert deposed that exhibit-A did not match with exhibit-X and exhibit-Y. He has submitted that handwriting expert’s report was marked as exhibit-2. The learned counsel has submitted that the report of handwriting expert is not conclusive proof and for this he has relied upon the judgement passed by Hon’ble Supreme Court reported in AIR 1963 SC 1728 paragraph 26. The learned counsel has submitted that the approach of the learned courts with respect to reliance on handwriting expert was misplaced and they have treated the report of the handwriting expert as conclusive proof.

8. The learned counsel has further submitted that even if finding with regard to impersonation is taken as correct for a moment, then also no relief could have been granted to the plaintiff as the plaintiff never challenged the sale deed in the suit, rather the plaintiff only sought a declaration of right, title, interest and possession, although as per the sale deed, the vendor was the plaintiff. The learned counsel has referred to Section 31 of t