JUDGEMENT
VALMIKI J.MEHTA, J. -
(1.)THIS regular second appeal is filed impugning the concurrent judgments of the courts below; of the trial court dated 7.8.2004 and the first
appellate court dated 5.11.2005; by which the suit of the appellants -plaintiffs
for declaration and injunction for cancelling of the registered sale deed dated
4.9.1989 executed by the appellants -plaintiffs in favour of defendant no.3 has been dismissed.
(2.)APPELLANTS -plaintiffs filed the subject suit stating that they alongwith the defendant nos. 1 and 2 (who are also brothers of the plaintiffs) agreed to
sell the suit property to the defendant no.3, however, the intention of
defendant nos. 1 and 2 became malafide and they colluded with defendant
no.3 unlawfully and fraudulently by paying lesser consideration got the sale
deed executed and registered with respect to the suit property admeasuring
19 bighas and 4 biswas forming part of Khasra no. 28/14 to 17, Village Deramandi, Delhi in favour of defendant no.3. It was contended that the
sale deed not only was fraudulently got executed, but, the sale was in
violation of Section 33 of the Delhi Land Reforms Act, 1954 (in short DLR
Act) as per which no sale deed can be executed of an agricultural land, if
after the sale, the sellers would be left with land less than 8 standard acres in
the village.
Defendant no.3 contested the suit and pleaded that the suit was an exercise to extract money from the defendant no.3. It was pleaded that there
was no fraud in getting the sale deed executed and registered. It was further
pleaded that there was no fraud inasmuch as entire agreed consideration,
and as stated in the sale deed, stood paid to the appellants -plaintiffs. It was
also pleaded that the case set up on the basis of Section 33 of the DLR Act
was misconceived because alongwith the sale deed executed in favour of
defendant no.3, the appellants -plaintiffs had also executed sale deeds of their
remaining landed property in favour of their wives and mother to avoid the
bar of Section 33 of the DLR Act.
(3.)THE trial court has held that there was no fraud in execution of the sale deeds and that the entire consideration as stated in the sale deeds, and which
was the agreed price, was paid. Trial court held that there does not arise any
question of fraud because as many as 6 persons appeared before the sub -
Registrar and they signed/executed the sale deed and registered the sale
deed. These aspects were deposed to on behalf of defendant no.3 by DW -2
Sh. Ram Singh who was the Deputy Pradhan of the village. Similar
deposition was made by DW -1 Sh. Suresh Kumar with respect to the
execution and registration of the sale deed. Both these DWs also deposed
that the plaintiffs and defendant nos. 1 and 2 transferred their remaining land
on the same date as the sale deed, an area of two acres, to their wives and
mother to avoid the contravention of Section 33 of the DLR Act. Trial court
has also held that in fact the suit is a collusive suit between the plaintiffs and
defendant nos. 1 and 2 and as referred to the fact that the plaintiffs and
defendant nos. 1 and 2 had jointly written a letter to the sub -Registrar where
it was stated that the plaintiffs and defendant nos. 1 and 2 have been cheated
and they were fraudulently induced to sign the sale deed, and which stand is
different than the stand taken up in the written statement in the suit that the
plaintiffs did not sign the sale deed. The relevant observations in this regard
which have been made by the trial court are in paras 25 to 31 of the
impugned judgment of the trial court and which read as under: -
"25. From the above evidence, it emerges that DW2 Ram Singh, attesting witness to the sale deed under challenge has testified that the plaintiffs had signed the sale deed in his presence. He also deposed that he knows the plaintiffs and defendants No. 1 and 2 personally. He further proved his signatures at point E on sale deed EX.PW1/4. No question or suggestion was put to him to the effect that signatures on the sale deed were not of plaintiffs or that they were not oppended in his presence. In this regard I find that the testimony of the DW 2 who is attesting witness has proved the execution of sale deed under challenge and the signatures of plaintiffs thereon as per Section 68 of Indian Evidence Act.
26. Now as the sale deed is duly registered document and as proved by the testimony of DW 5 and duly executed document, the
onus to prove that the sale deed does not bear their signature or is
not a duty executed and registered document, shifts on the
plaintiffs.
27. On the other hand, it is to be seen that both the witnesses examined by the plaintiffs have denied even the factum of entering into an agreement with the defendant whereas in their plaint they have clearly mentioned that they had entered into an agreement to sell with the defendant no. 3. It is further interesting to note that on the day on which sale deed under challenge was purported to be executed, another sale deed was executed by the plaintiffs and the defendants no. 1 and 2 in favour of their wives and mother the execution of which the plaintiffs have again denied.
28. PW1 deposed that he did not file any criminal complaint against his wife or his brother's wife as they have not committed
any offence by having the sale deed of remaining land executed in
their own name, although they allege that their signature on the
same were forged. Neither any criminal complaint has been filed
by the plaintiffs against the defendants for the alleged forgery and
fraud committed by them.
29. From the above it emerges that in fact the sale deed was executed in the name of the plaintiffs wife and wife of defendants No. 1 and 2 and mother of plaintiffs and defendants No. 1 and 2, the plaintiffs have denied the execution or knowledge of any such sale deed. I find it highly improbable that the wife of a person who had and still has cordial relation and is living with him, would cheat him in the manner as alleged by the plaintiffs. This is again highly improbable that the plaintiffs wives would have the sale deed executed in their name without the knowledge of their husbands to the extent that PW 1 stated that they had not committed any offence, it is again highly improbable that a person on being cheated in the manner in which the plaintiffs allege that they have been cheated, would not file a criminal complaint against the defendants.
30. On the other hand, it is highly probable that the sale deed was executed by the plaintiffs and defendants No. 1 and 2 in favour
of their wives and mother to circumvent the provisions of Section
33 of Delhi Land Reforms Act as after executing the sale deed in favour of defendant No. 3 they would have been left with less than
8 standard acres of land and the transaction would have been void u/S 42 of Delhi Land Reforms Act. With these observations, I find
that both the witnesses produced by the plaintiffs are not very
credible witnesses and it is also to be seen that defendants no. 1 and
2 who are the real brothers never appeared and contested the suit.
31. During the course of arguments on being asked by my Ld. Predecessor, the plaintiffs filed the complete set of Hon'ble High Court petition wherein a document is annexed as annexure P4. The same is a letter written by the plaintiffs and defendant no. 1 and 2 to the Sub -Registrar (Properties), Asaf Ali Road, New Delhi wherein in Para No. 4, the plaintiffs have submitted that the sale deed was not executed by them freely and in Para No. 5, they have stated that the execution was obtained fraudulently. More importantly the Para No. 7 of the said document they have stated that they have been cheated and fraudulently induced to sign, although some of them did not sign the same but does not mention who are the ones whose signatures does not bear. The sold letter bears the signature of plaintiff No. 1 Karan Singh and is dated 21.9.89. In the light of circumstances it is a high probability that the plaintiffs and defendants No. 1 and 2 are in collusion with each other." (underlining added)
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