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2011 Supreme(MP) 635
2012(1) JLJ 156
A.K. Shrivastava, J.
Shatrughan Prasad v. Ramprasad
Second Appeal No.624 of 1994 (Jabalpur); Decided on 18.8.2011.
R.P. Agarwal with Santosh Yadav for appellant;
M.L. Jaiswal with K.K. Gautam for respondent No.1;
Akhilesh Singh, Panel Lawyer for respondent No.2 State.
Headnote:(1) Transfer of Property Act, 1882 -- S.54 -- registered sale-deed -- obtaining of consideration accepted by seller before Sub-Registrar -- civil suit for declaration of sale-deed null and void on basis of playing fraud -- no such pleading that there was no free consent of seller -- it was held by trial Court that fraud was not played -- but suit decreed on basis that there was no free consent of seller -- such finding is contrary to section 14 of Contract Act -- out of pleadings new case cannot be made out by Court -- suit dismissed in second appeal. [Paras 17 & 18
(2) Contract Act, 1872 -- S.14 -- free consent -- means of -- registered sale-deed -- obtaining of consideration accepted by seller before Sub-Registrar -- civil suit for declaration of sale-deed null and void on basis of playing fraud -- no such pleading that there was no free consent of seller -- it was held by trial Court that fraud was not played -- but suit decreed on basis that there was no free consent of seller -- such finding is contrary to section 14 -- out of pleadings new case cannot be made out by Court -- suit dismissed in second appeal.
Held : It is not his case that without free consent he executed the sale-deed and therefore, learned trial Court erred in substantial error of law and by making out a new case for the plaintiff and thereby decreed his suit on the grounds which were not even pleaded by him. Specifically by deciding issue No.2 against the plaintiff it has been held by learned trial Court that fraud was not played by the defendant while executing the sale-deed.
Section 14 of the Indian Contract Act, 1872 has defined the term "free consent" and according to this section a consent is said to be free when it is not caused by --
"(1) coercion, as defined in section 15, or
(2) undue influence, as defined in section 16, or
(3) fraud, as defined in section 17, or
(4) misrepresentation, as defined in section 18, or
(5) mistake, subject to the provisions of sections 20,21 & 22."
The case of plaintiff is not of coercion or undue influence or misrepresentation as defined under sections 15, 16 and 18 of the Contract Act. His case is not even of mistake subject to the provisions of sections 20, 21 and 22 of the said Act. The learned trial Court in paras 21 and 26 has specifically held that fraud has not been played by the defendant upon plaintiff. Since the case of plaintiff is not of coercion, undue influence, misrepresentation and mistake and further because the fraud has not been played by defendant upon the plaintiff, therefore, it cannot be said that there was no free consent of plaintiff to execute the sale-deed in question. (2004)9 SCC 468 distinguished.
(3) Civil P.C., 1908 -- S.100 -- scope of -- perverse findings of Courts below -- interference called for in second appeal -- appeal allowed and suit dismissed.
Held : So far as the finding of learned first appellate Court holding that fraud played by the defendant upon plaintiff is proved is concerned, indeed, the issue No.2 which is in respect to fraud was decided against the plaintiff and he did not file any cross-objections in first appeal. According to me, in absence of filing any cross-objections by the plaintiff, the judgment of learned trial Court deciding this issue against him, the finding of learned first appellate Court holding that the sale-deed (Ex.P-2) was executed by playing fraud upon plaintiff is not only perverse but is ex facie contrary to the law.
The substantial question of law is, thus, answered that the defendant obtained sale-deed by playing fraud upon plaintiff, is not proved and the findings of the learned two Courts below in that regard are perverse.
¼1½ laifRr varj.k vf/kfu;e] 1882 && /kkjk 54 && jftLVªhd`r fodz;&foys[k & fodzsrk us izfrQy izkIr djuk mi&jftLVªkj ds le{k Lohdkj fd;k && diV fd;k tkus ds vk/kkj ij fodz;&foys[k dks vd`r vkSj ‘kwU; ?kksf"kr djus ds fy, flfoy okn && ,slk dksbZ vfHkopu ugha fd fodzsrk dh Lora= lgefr ugha Fkh && fopkj.k U;k;ky; }kjk vfHkfu/kkZfjr fd;k x;k fd diV ugha fd;k x;k && fdarq okn bl vk/kkj ij fMdzh fd;k fd fodzsrk dh Lora= lgefr ugha Fkh && ,slk fu"d"kZ lafonk vf/kfu;e dh /kkjk 14 ds izfrdwy gS && U;k;ky; vfHkopuksa ds ckgj u;k ekeyk ugha cuk ldrk && f}rh; vihy esa okn [kkfjt fd;k x;kA ¼iSjk 17 ,oa 18
¼2½ lafonk vf/kfu;e] 1872 && /kkjk 14 && Lora= lgefr && ls vfHkiszr && jftLVªhd`r fodz; && foys[k && fodszrk us izfrQy izkIr djuk mi&jftLVªkj ds le{k Lohdkj fd;k && diV fd, tkus ds vk/kkj ij fodz;&foys[k dks vd`r vkSj ‘kwU; ?kksf"kr djus ds fy;s flfoy okn && ,slk dksbZ vfHkopu ugha fd fodzsrk dh Lora= lgefr ugha Fkh && fopkj.k U;k;ky; }kjk vfHkfu/kkZfjr fd;k x;k fd diV ugha fd;k x;k && fdarq okn bl vk/kkj ij fMdzh fd;k fd fodzsrk dh Lora= lgefr ugha Fkh && ,slk fu"d"kZ /kkjk 14 ds izfrdwy gS && U;k;ky; vfHkopuksa ds ckgj u;k ekeyk ugha cuk ldrk && f}rh; vihy esa okn [kkfjt fd;k x;kA
vfHkfu/kkZfjr % mldk ;g ekeyk ugha gS fd mlus fcuk Lora= lgefr ds fodz;&foys[k fu"ikfnr fd;k Fkk vkSj blfy,] fopkj.k U;k;ky; us oknh ds fy, u;k ekeyk cukrs gq, rFkk ftlds }kjk mldk okn tks mlus vfHkopu ugha fd, Fks mu ij fMdzh djus esa fof/k dh lkjoku =qfV dh gSA fofufnZ"Vr% tcfd fook|d dz- 2 dk oknh ds fo#) fofu‘p;u djrs gq, fo}ku fopkj.k U;k;ky; }kjk ;g vfHkfu/kkZfjr fd;k x;k gS fd izfroknh }kjk fodz;&foys[k ds fu"iknu esa diV ugha fd;k x;k FkkA
lafonk vf/kfu;e dh /kkjk 14 esa ifjHkkf"kd in ^^Lora- lgefr** ifjHkkf"kr gS rFkk bl /kkjk ds vuqlkj lgefr Lora= dgh tkrh gS tc ;g fuEu }kjk izHkkfor ugha gS &&
^^¼1½ izihM+u] tSlk fd /kkjk 15 esa ifjHkkf"kr gS] ;k
¼2½ vuqfpr izHkko] tSlk fd /kkjk 16 esa ifjHkkf"kr gS] ;k
¼3½ diV] tSlk fd /kkjk 17 esa ifjHkkf"kr gS] ;k
¼4½ nqO;Zins‘ku] tSlk fd /kkjk 18 esa ifjHkkf"kr gS] ;k
¼5½ Hkwy] /kkjk 20] 21 rFkk 22 ds mica/kksa ds v/;/khuA**
oknh dk ekeyk izihM+u ;k vuqfpr izHkko ;k nqO;Zins‘ku dk ugh gS tSlk fd lafonk vf/kfu;e dh /kkjk 15] 16 rFkk 18 esa ifjHkkf"kr gSA mldk ekeyk mi;qDr vf/kfu;e dh /kkjk 20] 21 rFkk 22 ds mica/kksa ds v/;/khu Hkwy dk Hkh ugha gSA fo}ku fopkj.k U;k;ky; us iSjk 21 rFkk 26 esa fofufnZ"Vr% vfHkfu/kkZfjr fd;k gS fd izfroknh }kjk oknh ij diV ugha fd;k x;k gSA tc oknh dk ekeyk izihM+u] vuqfpr izHkko] nqO;Zins‘ku vkSj Hkwy dk ugha gS rFkk vkxs oknh ij izfroknh }kjk diV ugha fd;k x;k gS] blfy, ;g ugha dgk tk ldrk fd iz‘uxr fodz;&foys[k ds fu"iknu djus esa oknh dh Lora= lgefr ugha FkhA ¼2004½ 9 ,l lh lh 468 izHksfnrA
¼3½ flfoy izfdz;k lafgrk] 1908 && /kkjk 100 && O;kfIr && fupys U;k;ky;ksa ds fu"d"kZ rdZ fo#) && f}rh; vihy esa gLr{ksi visf{kr gS && vihy eatwj dh xbZ rFkk okn [kkfjt fd;k x;kA
vfHkfu/kkZfjr % tgk¡ rd fo}ku izFke vihy U;k;ky; ds fu"d"kZ dk laca/k ;g Bgjkus dk gS fd oknh ds mij izfroknh }kjk diV fd;k x;k Fkk] okLro esa] fook|d dz- 2 tks diV ds fo"k; esa gS oknh ds fo#) fofu‘pr fd;k x;k gS rFkk mlus izFke vihy esa dksbZ izR;k{ksi izLrqr ugha fd;k gSA esjs vuqlkj] oknh }kjk dksbZ izR;k{ksi izLrqr djus ds vHkko esa] fo}ku fopkj.k U;k;ky; ds fu.kZ; esa bl fook|d dk mlds fo#) fofu‘p;u fd;k gS] fo}ku izFke vihy U;k;ky; }kjk ;g vfHkfu/kkZfjr djuk fd izfroknh }kjk oknh ij diV fd;k x;k Fkk u dsoy rdZ ds fo#) gS cfYd dkuwu ds izfrdwy gSA
fof/k ds lkjoku iz‘u dk] bl izdkj] mRrj fn;k tkrk gS fd izfroknh }kjk fodz;&foys[k oknh ij diV djds izkIr fd;k gS] lkfcr ugha gS rFkk bl laca/k esa nksuksa fupys U;k;ky;ksa ds fu"d"kZ foi;ZLr gSA
1. This is defendant’s second appeal against the judgment and decree passed by learned two Courts below decreeing the suit of plaintiff.
2. On 23.7.1983 (more than 28 years ago) the plaintiff filed suit for declaration and cancellation of the sale-deed dated 23.7.1980 to be null and void and in effective against the plaintiff and further that the same was obtained by playing fraud upon him by the defendant and by the said sale-deed the plaintiff’s Bhumiswami right are not affected. In para 1 the plaintiff has pleaded the details of the disputed land and according to him, he is the Bhumiswami of these lands and his name is also recorded in the revenue record as Bhumiswami. Further it has been pleaded by him that he obtained a loan (amount not disclosed) from one Sheetal Prasad (not examined) and to repay the loan he was in need of Rs.500/- but nobody was giving this amount of credit, as a result of which he agreed to sell his one survey No.345 to the defendant for a consideration of Rs.500/- in the presence of two reputed persons (not named in the plaint) of the village. According to the plaintiff, a sum of Rs.500/- was paid at the residence of defendant on 23.7.1980 and thereafter both of them went to Satna to get the sale-deed executed. They were accompanied by Bhola Prasad, who is the Chela of defendant and his brother Shyamsunder. After arriving at the Sub-Registrar Office, the defendant purchased the stamp paper and by asking one Chandrashekhar (not examined) to sit little far away he carried the plaintiff to a document-writer (not examined) and interacted with him, but, the said document-writer refused to prepare the document of sale-deed. Eventually, the defendant went to another document-writer Devisingh (not examined) and interacted with him and he got the sale-deed prepared. On the said sale-deed the plaintiff put his thumb impression and the attesting witnesses also signed the said sale-deed. Thereafter, the document-writer Devisingh along with the attesting witnesses, plaintiff and defendant went to the office of the Sub-Registrar. The plaintiff was under impression that only one survey number is being sold for Rs.500/- The Sub-Registrar called the plaintiff and asked him whether he had obtained the money (consideration)? In reply, he (plaintiff) told that he had already received the money in the village. Thereafter, in the presence of Sub-Registrar he put the thumb impression and came out from his office. The plaintiff and defendant thereafter went to the village.
3. Further it has been pleaded by the plaintiff that when defendant did not return the Bhu-Adhikar Pustika (statutory document given to a Bhumiswami) certain doubts carved out in his mind and when in the village also the defendant did not return the said Bhu-Adhikar Pustika, the plaintiff made complaint to some reputed persons of the village and they called the defendant from his home and asked him why he is not returning the said Bhu-Adhikar Pustika to plaintiff. At this juncture, the defendant returned the said Bhu-Adhikar Pustika to him. The inhabitants of the village after going through the said Pustika asked the plaintiff whether he has sold his entire land to defendant? On this, plaintiff replied that he sold only one survey number but those villagers told that in the Bhu-Adhikar Pustika there is an endorsement of selling the entire suit property. On knowing this fact the plaintiff became astonished and complained to other villagers and a Panchayat was assembled in which the defendant was summoned and he was interacted by the Panchas that how much money he has paid to the plaintiff and how much the land the plaintiff has sold to him because the plaintiff is saying that only Rs.500/- has been paid to him and he has sold only one survey number. On this, the defendant admitted that he has paid only Rs.500/- to the plaintiff and the sale-deed has been executed for the entire suit property. On this act of defendant, the Panchayat persons scolded on
