HIGH COURT OF MADHYA PRADESH PRINCIPAL SEAT AT JABALPUR Second Appeal No.1262/2020 Smt.Afroz Bi........................................................... Appellant Versus Mohd.Shamim and another..................................... Respondents For the appellant: Mr.Ghanshyam Sharma, Advocate For the respondent No.1: Mr.Janak Lal Soni, Advocate For the respondent/State: Mr.Himanshu Tiwari, Advocate ================================

Present: Hon'ble Mrs.Justice Anjuli Palo --------------------------------------------------------------------------------------

JUDGMENT

[15/02/2021]

The appellant is a plaintiff who has filed the suit before the trial Court claiming that she is the owner of the suit property bearing Khasra No.192/2/1 area 1.214 hectares, new Khasra No.731 area 0.350 hectares and Khasra No.745, area 0.810 hectares and prayed for relief of permanent injunction. She also claimed that she is in possession of the suit property and gave the same on 'Adhiya' for agricultural purposes to the respondent No.1/defendant No.1. The appellant/plaintiff also pleaded that by playing fraud, the respondent No.1 claimed his title over the suit property on the basis of registered sale deed dated

08.11.2000, which is ab initio null and void.

2. There are concurrent findings against the appellant. Both the courts below have found that the sale deed (Exhibit-D-1) is a duly registered document and the same is signed by the appellant, hence she is not entitled for any relief of declaration and permanent injunction.

3. The appellant has filed the instant second appeal alleging that both the courts below have failed to appreciate that there is lack of compliance of sections 67, 1010, 103 & 104 of the Indian Evidence Act. It is also averred that burden lies on the respondent/defendant to prove that sale deed dated 08.11.2000 was duly executed by the appellant. The courts below by ignoring the testimony of the plaintiff's witnesses have wrongly dismissed her suit. The appellant has proposed following substantial questions of law:-

"(i) Whether in view of facts and circumstances available on record the learned courts below have committed error of law in dismissing the suit of the plaintiff by ignoring the provision of section 67, 1010, 103 and 104 of the Evidence Act further shifting the heavy burden on proof on the plaintiff in respect of execution of alleged sale deed in favour of the defendant?

(ii) Whether in view of the facts and circumstances available on record the learned courts below have failed to observe that the disputed suit land was not purchased by the defendant it was purchased by the DW-2 and it was the Benami Transaction?"

4. Heard the learned counsel for the appellant and perused the record as also the findings given by the courts below. The courts below have found that the sale deed (Exhibit-D-1) is a registered document, which is executed in the presence of the husband of the appellant, namely, Umar Khan and also before Hafizullah. It is also appearing from the evidence that before execution of the sale deed the respondent No.1/defendant no.1 used to look after the suit land. Each and every page of the document (Exhibit-D-1) has been signed by the appellant herself. These signatures have been admitted by the appellant. There is no evidence available on record to establish that the said document has been executed by the appellant in ignorance or belief that the same is for the purpose of 'Batai'. Both the courts below have also found that the respondent No.1 was dispossessed from the suit property after execution of the document (Exhibit-D-1). The trial Court duly appreciated the evidence adduced by the parties and recorded proper findings as per law. Similarly, the lower appellate Court has also properly appreciated and evaluated the evidence available on record and gave findings in favour of the respondent No.1.

5. In view of aforesaid, this Court does not find any perversity or illegality in the findings recorded by the courts below.