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2013 Supreme(All) 407
ALLAHABAD HIGH COURT
BEFORE : SUDHIR AGARWAL, J.
Smt. URMILA GUPTA AND ANOTHER ...Appellants
Versus
LAKHU (SINCE DECEASED AND SUBSTITUTED BY LEGAL HEIRS) AND OTHERS ....Respondents
(Second Appeal Nos. 891 and 888 of 2011, decided on 5th February, 2013)
B.N. Agrawal, Ram Kishore Gupta and Sanjay Agrawal for the Appellants; Arun K. Tiwari, Lakshman Singh and R.C. Singh for the Respondents.
Headnote:U.P. Zamindari Abolition and Land Reforms Act, 1950—Sections 157-AA—Specific Relief Act, 1963—Section 34—Indian Evidence Act, 1872—Section 58—Limitation Act, 1963—Article 59—Sale-deed—Suit for cancellation of—Proof of fraud committed—Scope—Plaintiff-respondents instituted original suit seeking a declaration that the sale-deeds as executed in favour of defendant No. 1 were void, being based on forgery—Proof of alleged fraud committed in execution of sale-deed—Admittedly, plaintiff had signed documents besides putting on his thumb-impression—Court below misdirected itself in putting onus upon defendants by observing that signatures having been disputed by plaintiff, onus lies upon defendants to prove that signatures were genune—But, when a fact is not at all pleaded, evidence to prove such a fact, not pleaded is impermissible—Lower Appellate Court is placing onus upon defendants to prove that signature was that of plaintiff-respondent has erred in law when the plaint itself says that plaintiff has signed—Impugned findings of lower Appellate Court based on no evidence—Plaintiff if knew that sale-deed was prepared by defendant No. 1 after obtaining his signature on blank papers, the suit filed after eight or nine years of such knowledge is barred by time—Issue of prior permission under Section 157-AA not entertained—Impugned judgment set aside—Order accordingly. [Paras 9 to 44]
Hon’ble Sudhir Agarwal, J.—Both the above appeals have common facts, involve common substantial questions of law, and, are in respect to the same property, therefore, have been heard together and are being decided by this common judgment.
2. Heard Sri B.N. Agrawal, Advocate, for appellants and Sri R.C. Singh, Advocate for respondent Nos. 1/1 and 1/2 in Second Appeal No. 891 of 2011 and for respondent No. 1/1 in Second Appeal No. 888 of 2011.
3. With the consent of learned counsels for parties, this Court proceeds to hear and decide the matter at the admission stage itself.
4. The substantial questions of law, in my view, which have arisen in the present appeals are:
(1) Whether a party can be allowed to lead evidence in respect to a fact which is not asserted in the pleadings?
(2) Whether a plaintiff can get absolved from onus to prove fraud alleged to have been committed in execution of a sale-deed.
(3) Whether a plaintiff can be permitted to challenge an instrument of sale on the basis of defendant’s evidence only and without discharging onus on his own by adducing evidence to sustain his challenge?
(4) Whether the suit in question was barred by time?
(5) Whether the land in question before transfer from plaintiff to defendant No. 1 would have required prior permission of competent authority under Section 157-AA of U.P. Zamindari Abolition and Land Reforms Act, 1950 (U.P. Act, No. 1 of 1951)?
Second Appeal No. 891 of 2011:
5. Lakhu (now deceased and substituted by legal heirs) instituted Original Suit No. 15 of 2008 in the Court of Civil Judge (Junior Division) Orai seeking a declaration that the sale-deeds dated 2.6.1980 executed in favour of defendant No. 1 and dated 22.10.1998 executed between defendant No. 1 and defendant No. 2 are void, based on forgery, breach of trust etc. He pleaded ownership of Arazi No. 686, situate at Mauza Gauran, Pergana Orai, District Jalaun. It is alleged that defendant No. 1 obtained signatures and thumb impression of plaintiff on blank papers, with an assurance that he will get bank loan sanctioned for a boring on the land of plaintiff but the plaintiff later came to know that defendant No. 1 manufactured a sale-deed dated 2.6.1998, allegedly executed by plaintiff in favour of defendant No. 1, and, after four months and odd, another sale-deed dated 22.10.1998 was executed between defendant No. 1 and defendant No. 2. It is said that plaintiff belong to scheduled caste and, therefore, without permission of competent authority, his agricultural property could not have been transferred by sale and sale-deeds, therefore are void ab-initio.
6. The Suit was contested by defendants alleging that sale-deed was actually executed by plaintiff in favour of defendant No. 1 on 2.6.1998 and suit filed after ten years thereof, is barred by time. The very conduct of plaintiff in making wrong statements was pointed out by showing that in the plaint, plaintiff has mentioned his age as 85 years in 2008 and that of defendant No. 1 as 62 years, though the plaintiff is about 60 years and defendant No. 1 is about 40 years in May, 2008 (written statement was filed in May, 2008). In the deposition of plaintiff himself, which was recorded on 31.7.2009, he mentioned age as 70 years.
7. The Trial Court vide judgment dated 19.10.2010, held that plaintiff failed to prove that documents with his signatures and thumb impression were obtained fraudulently and also that he had knowledge of execution of sale-deed in 1998 and thus, dismissed suit. It decided Issues No. 1 and 5 against the plaintiff and also held that suit is neither barred by Section 331 of U.P. Zamindari Abolition and Land Reforms Act, 1950 (U.P. Act No. 1 of 1951) (hereinafter referred to as “Act, 1950”) nor by Section 34 of Specific Relief Act, 1963 (hereinafter referred to as “Act, 1963”) nor under any other provision.
8. Thereagainst plaintiff preferred appeal which has been allowed by impugned judgment dated 26.8.2011. The lower Appellate Court ha
