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2009 Supreme(MP) 942
2010 (3) MPWN 88
A.M. Naik, J.
Shivnarain (dead) through L.Rs.
v.
Thakura and another
Second Appeal No. 378 of 2000 (G);
Decided on : 4.9.2009.
C.R. Roman for appellants;
S.K. Jain for respondent No.1
V.S. Chaturvedi for respondent No.2.
Headnote:Transfer of Property Act, 1882 -- S. 54 -- Evidence Act, 1872 -- S. 67 -- alleged sale of suit-land -- defendant illiterate person -- merely knew to put his signature -- burden was on plaintiff to prove that defendant was well apprised of contents of documents -- neither attesting witness nor scribe of documents was examined to establish it -- mere proof of signature does not amount to execution of document. 1992 RN 367 and 1981 (II) MPWN 184 relied on. AIR 1966 SC 735 followed. 1995 (I) MPWN 236 and 1992 JLJ 714 distinguished. [Paras 10 & 11
laifRr varj.k vf/kfu;e] 1882 & /kkjk 54 & lk{; vf/kfu;e] 1872 & /kkjk 67 & okn&Hkwfe dk vfHkdfFkr fodz; & izfroknh fuj{kj O;fDr & dsoy vius gLrk{kj djuk tkurk Fkk& ;g lkfcr djus dk Hkkj oknh ij gS fd nLrkostksa dh varoZLrq ls izfroknh dks vPNh rjg ls voxr djk fn;k Fkk & bls fl) djus ds fy, u rks vuqizek.kd lk{kh vkSj u nLrkostksa ds ys[kd dk ijh{k.k fd;k x;k & dsoy gLrk{kj lkfcr djuk nLrkost fu"ikfnr djus dh dksfV esa ugha vkrkA 1992 jk fu 367 rFkk 1981 ¼2½ e-iz- ohDyh uksV~l 184 voyafcrA , vkb vkj 1966 ,l lh 735 vuqlfjrA 1995 ¼1½ e-iz- ohDyh uksV~l 236 rFkk 1992 ts ,y ts 714 izHksfnrA
¼iSjk 10 ,oa 11½
1. This appeal has been preferred against the dismissal of the suit of the plaintiff for restoration of possession by the Court below in a concurrent manner.
2. Case of the plaintiff is that he entered into an agreement of purchase with defendants/respondent No.1 on 3.7.1974 (Ex. P/2) for a consideration of Rs.5,000/-. A sum of Rs. 3,500/- was paid out of the consideration as advance and possession was obtained. Later on, registered sale deed was .executed on 22.7.1975 (Ex. P/1).His name was mutated as revealed in Ex. P/3. He was dispossessed on 16.8.1977. Hence the suit for restoration of possession.
3. Defendant/respondent No.1 submitted his written statement refuting thereby the allegations contained in the plaint regarding receipt of consideration, execution of agreement of sale and registered sale deed. Suit stood dismissed by the Courts below in concurrent manner with a finding that the defendant/ respondent No.1 was an illiterate villager and knew only to put his signature. Both the documents are not proved to have been executed by him after he was duly apprised of the contents. Similarly, possession was never found to have been delivered to the plaintiff pursuant to the sale agreement and sale deed and plaintiff is not found to have been dispossessed by the defendant No.1. Consequently, it was found that the title was not conveyed to the plaintiff and the plaintiff is not entitled to the recovery of possession.
4. The present appeal has been admitted and heard on the following substantial question of law :
"Whether in spite of admission of the respondent No.1 that he has signed the registered sale deed (Ex. P/1) dated 22.7.1994 and also executed an agreement on 3.7.1994 vide Ex. P/2, can it be said that the due execution of the sale deed has not been proved and the Courts below have committed an error in declaring the sale deed as null and void?"
5. Shri C.R. Roman and Shri S.K. Jain; learned counsel appearing for the respective parties made their submissions.
6. It is contended by Shri Roman, learned counsel that the signature of the defendant No.1 is found proved by the learned lower appellate Court in paragraph 22 of the impugned judgment. Therefore, title of the plaintiff shall be held proved and the relief of restoration of possession ought to have been granted. Reliance has been placed on 1997 RN 186 (State of M. P. v. Gulab Bai) 1999 (1) MPLJ 436 (Manorama Devi v. Suresh), 1992 JLJ 714 (Indira Gangole v. Shailendra Kumar Gangole) and 1995 (1) MPWN 236 (Sarnam Singh v. Ram Swarup).
7. On the other hand, Shri S.K. Jain, learned counsel has supported the impugned judgment. He placed reliance on AIR 1966 SC 735 (Bhagwati v. Chandramaul), 1992 RN 367 = AIR 1992 MP 22 (Ramjan Khan v. Baba Raghunath Dass) and 1981 (II) MPWN SN 184 (Narendra Nath Thakur v. Mukutram).
8. It is argued by Shri Roman that the defendant No. 1 has merely denied the execution of the agreement as well as sale deed. He has not taken any specific defence. Therefore, both the documents having been proved, the suit ought to have been decreed. Case of the defendant cannot be considered in the light of any defence, which has not been specifically pleaded in view of the law laid down in the Manorama's case (supra) and Guddibai's case (supra).
9. It is true that the defendant No. 1 in specific has not pleaded that the documents were got executed without apprising him of the contents. However, he has categorically pleaded in the written statement that it is denied that he had sold the suit land after receiving consideration of Rs. 5,000/- and had handed it over to the plaintiff. Similarly, receipt of consideration was also denied and the execution of agreement and sale deed was also denied.
10. It is trite law that execution of a document without making the executant aware of the contents is of no meaning. Learned lower appellate Judge has clearly found in para 24 that on appreciation of the evidence on record, it is found that the respondent No.1 merel
