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2016 Supreme(All) 1507
ALLAHABAD HIGH COURT
BEFORE : SUDHIR AGARWAL AND ALOK KUMAR MUKHERJEE, JJ.
JAMUNA SAHAI AND OTHERS ....Appellants
Versus
SUSHREE NAYAN TARA AND ANOTHER ....Respondents
(First Appeal Nos. 642 and 489 of 1998, decided on 2nd November, 2016)
Counsel :
V. Sahai, Kamal Singh Yadav and B. Dayal for the Appellants; Paras Nath Singh and Ravi Kant for the Respondents.
Headnote:(A) Land Acquisition Act, 1894—Sections 14(1), 18—Transfer of Property Act, 1882—Section 6 (e)—Sale-deed—Validity—Vendors have collected entire compensation of disputed land—That such compensation may have been enhanced in litigation after that was transferred—Will bring deed in dispute as transferring ‘a mere right to sue’ and would be hit by Section 6 (e) of Act 1882. [Paras 8 and 18]
(B) Practice and Procedure—Sale-deed—Fraud and misrepresentation—No witnesses of document were examined as plaintiffs’ witnesses—Plaintiff-appellants when challenged document as a forged and fictitious one—They never admitted that any person was accepted by them as a witness to such document—Hence question of producing such witnesses by plaintiffs could not have arisen—Benefit of document was claimed by defendant-respondents—Hence onus to produce witnesses to prove document lay upon them—There is a distinction between “burden of proof” and ‘onus’—Court below erred in law by stretching burden of proof of factum of fraud and misrepresentation on plaintiff-appellants. [Paras 27, 28 and 31]
Result; Appeal Allowed.
By the Court.—These appeals under Section 54 of Land Acquisition Act, 1894 (hereinafter referred to as “Act 1894”) read with Section 96 of Code of Civil Procedure have arisen from judgement and decree dated 16.9.1998 and 29.9.1998 respectively passed by Sri Devendra Kumar Jain, XIIth Additional District Judge, Ghaziabad in Original Suit No. 48 of 1996 alongwith Land Acquisition Reference (hereinafter referred to as “LAR”) No. 2 of 1996 under Section 30 of Act 1894. Court below has dismissed suit and answered Reference holding that defendant-respondents are entitled for compensation of disputed acquired land.
2. Dispute relates to Gata No. 3 area 5-10-10 (pakka) situated at village Yakubpur, Pargana and Tehsil Dadari, District Ghaziabad. The disputed land initially belongs to plaintiffs-appellants. For acquisition of land in dispute and some other, a Notification dated 18.6.1991 under Section 4(1) of Act 1894 was published in U.P. Gazette dated 20.7.1991 by State Government and thereafter declaration dated 18.12.1991 under Section 6/17 of Act 1894 was published in U.P. Gazette dated 11.1.1992. Pursuant thereto, possession of disputed land was taken by Collector on 30.3.1992. While determination of compensation was pending before Special Land Acquisition Officer/Additional District Magistrate (Land Acquisition, Noida, Ghaziabad) (hereinafter referred to as “SLAO”), defendant-respondents claimed to have purchased right of compensation in respect of disputed land vide sale-deed dated 9.2.1994 for a consideration of Rs. 60,000/-. SLAO, vide award dated 13.11.1995, determined compensation at the rate of Rs. 63.26 per square yard besides 30% solatium, 12% additional compensation and interest as per provisions of Act 1894. The plaintiff-appellants and defendant-respondents both claimed compensation of disputed land. Defendant-respondents filed an application dated 25.3.1994 (Ext.A-4), claiming their right for compensation subject to objection for enhancement of market value, relying on sale-deed dated 9.2.1994. Plaintiff-appellants instituted Original Suit No. 48 of 1996 seeking declaration of sale-deed dated 9.2.1994 as void and illegal, contending that they have not executed any sale-deed, whatsoever, and said sale-deed is nothing but a forged, manufactured and fabricated document having got prepared by impersonation and presenting some other persons.
3. With respect to dispute of entitlement for compensation, Collector made a Reference under Section 30 and the same was registered with Court below as LAR No. 2 of 1996. Original Suit No. 48 of 1996 and LAR No. 2 of 1996, both, have been decided by a common judgement. Trial Court formulated following five issues in Original Suit No. 48 of 1996:
^^1- D;k fodz; i= fnukad 9-2-94 oknhx.k }kjk izfroknhx.k ds i{k esa fu"ikfnr fd;k x;k Fkk] ;fn gka rks izHkko\
2- D;k okn bl U;k;ky; ds {ks=kf/kdkj ls ckgj gS\
3- D;k okn dk ewY;kadu de fd;k x;k gS\
4- D;k U;k; 'kqYd vi;kZIr vnk fd;k x;k gS\
5- oknh fdl vuqrks"k dk vf/kdkjh gS\
(1) Whether the sale-deed dated 9.2.1994 was executed by plaintiffs in favour of defendants? If so, its effect?
(2) Whether the suit is beyond jurisdiction of this Court?
(3) Whether suit is undervalued?
(4) Whether Court fee paid is insufficient?
(5) To which relief, plaintiff is entitled? (English translation by Court)
In LAR No. 2 of 1996, Court below formulated following three issues:
^^1- D;k cSukek@lefiZr i= fnukad 9-2-94 oknhx.k }kjk fu"ikfnr ugha fd;k x;k] ;fn fd;k x;k rks izHkko\
2- ,0 Mh0 ,e0 ¼,y0 ,0½ uks,Mk ds vkns'k fnukad 6-6-94 dk izHkko\
3- eqvkotk ikus dk vf/kdkjh dkSu gS\
(1) Whether the sale-deed/tendered deed dated 9.2.1994 was not executed by the petitioners? In case of the same being executed, its effect?
(2) Effect of the order dated 6.6.1994 passed by the ADM (LA), Noida?
(3) Who is entitled to get compensation?” (English translation by Court)
4. Since issues in both the matters were common, both were clubbed and evidence was
