JUDGMENT
S.N. Srivastava, J.
1. This second appeal has been preferred by the appellants against concurrent findings of the two courts below contained in judgment and decree dated 29.5.1982 and 8.12.1982 respectively.
2. Facts beyond the pale of dispute are that Plaintiff and defendants are co-tenure holders of the plots in dispute i.e. plot Nos. 169 and 170 each to the extent of one half share and both the parties had a bunch of 64 trees each in their respective shares. According to the plaint allegations, the plaintiffs being in straitened circumstances, obtained some money as loan from defendants and mortgaged the grove in lieu of money. It is further alleged that they never sold off the land but defendants illegally and fraudulently manipulated the same to one of sale of grove land while the fact remains that no sale deed for sale of land was ever executed by plaintiffs. It is in this backdrop that the plaintiffs instituted suit for the reliefs of cancellation of sale deed and for permanent injunction in respect of plot no. 169 and 170 situated in village Bandi Patti Pargana Kewai district: Allahabad. The defendants in the written statement repudiated the plaint allegations and averred that the plaintiffs had executed sale deed in favour of defendants after taking sale consideration and there is no fraud in execution of sale deed which was executed by plaintiff in accordance with law and hence the suit is liable to be dismissed.
3. At the stage of admission of appeal, following substantial questions of law were framed for determination.
1. Whether the tower appellate court was justified in not considering the plea of Section 164 of the U.P.Z.A. & L.R. Act which makes the suit of the plaintiff not maintainable?
2. Whether the claim of the plaintiffs is barred by Section 49 of the U.P. Consolidation of Holdings Act?
3. Whether the finding of the lower appellate court on the question of fraud is vitiated on account of placing the burden on the defendants to demolish the theory of fraud set up by the plaintiffs?
4. Sri S.N. Singh, learned counsel appearing for defendant appellants fervently canvassed that even if allegations made in the plaint are accepted, the instrument executed by the plaintiff could be deemed to be a sale deed as according to the plaint allegations, the plaintiffs executed mortgage only and in the circumstance, proceeded the submission, the document shall be deemed to be sale deed under Section 164 of the U.P.Z.A. & L.R. Act. Per contra, learned counsel appearing for plaintiff respondents contended that no mortgage was ever executed against grove land but it related to grove alone and the plaintiffs have taken a specific plea in the plaint that it was grove consisting of 64 trees which was mortgaged for purposes of fruits and hence it was argued that the suit was rightly decreed and is apt to be affirmed in the second appeal.
5. The precise dispute between the parties according to the plaintiff’s case was that the document executed by the plaintiffs was mortgage deed and it was confined to grove alone while according to the defendants’ case, document executed by the plaintiffs was sale deed in relation to grove land. In connection with this, paragraphs 4 and 5 of the plaint may be abstracted below.
4- ;g fd vkjkth futkbZ dh ‘kDy ekSds ij ckx gS
vkSj oknhx.k ds fgLls esa djhc 64 isM+ vke vkSj egqvk ds gaS A tks ekStwn gS
vkSj brus gh isM izfroknhx.k ds fgLls esa gS A ftls vthZ ukfy’k ds layXu uD’ks
esa c] ;] n] y ls iznf’kZr fd;k x;k gSa A
6. It is amply clear from a reading of paragraphs 4 and 5 of the plaint that it was grove and not the Bhumidhari land or part thereof which had been mortgaged in exchange of money which the defendants had loaned to the plaintiffs and the Bhumidhari land or part thereof was not intended to be mortgaged by the mortgage deed.
7. It is now turn to scan the substantiality of submissions advanced across the bar by the learned counsel for the parties. Since the mainstay of arguments of learned counsel for the appellants advanced across the bar pivots on Section 164 of the U.P.Z.A. & L.R. Act, the same may usefully be excerpted below.
“164. Transfer with possession by a bhumidhar to be deemed a sale- Any transfer of any holding or part thereof made by a bhumidhar by which possession is transferred to the transferee for the purpose of securing any payment of money advanced or to be advanced by way of loan, and existing or future debt or the performance of an engagement which may give rise to a pecuniary liability, shall, notwithstanding anything contained in the document of transfer or any law for the time being in force, be deemed at all times and for all purposes to be a sale to the transferee and to every such sale the provisions of Sections 154 and 163 shall apply.”
8. Section 164 of the U.P. Z.A. & L.R. Act as aforesaid clearly postulates that any transfer of any holding or part thereof by which possession is transferred by a bhumidhar as security for money advanced or to be advanced, shall be treated as sale and the bhumidhar shall lose all his rights and interest in the land. It is not intended for application to a situation where only grove and not the Bhumidhari land or part thereof was mortgaged as security of money advanced.
9. Coming to the findings recorded by the two courts below, it would appear that the courts below appraised the evidence on record and converged to the conclusion that the sale deed was obtained by fraud. In drawing conclusion to the above effect, the trial courts appraised the evidence on record and reasoned that deed had been executed before the commencement of consolidation and if the deed had been executed in respect of old plots 18 and 19, claim to land must have been staked immediately on publication of records by preferring an objection under Section 9 of the U.P. Consolidation of Holdings Act and orders disposing of the objection under Section 9 A of the Act would have been passed. It was further reasoned that after finalisation of the scheme of consolidation plots 169 and 170 were carved out and hence there was no occasion for the appellants to move application for mutation under Section 12 of the U.P. C.H. Act inasmuch as it is well enunciated that the consolidation authorities have to deal with the title of the parties which came before them and they cannot deal with the title of such claimants who did not file any objection in respect of old plot numbers. The trial court also frowned upon the order of mutation relied upon by the defendant as not being genuine on the varied grounds also taking into reckoning that despite the alleged order of mutation, the name of plaintiff still subsists in Khasra and Khatauni. The trial court also disbelieved that the plaintiffs would part with the valuable property on a meagre amount of Rs. 2000/-, which the defendants had advanced to the plaintiff as loan. The trial court also disbelieved the statements of D.W. 1 examined by the defendants on the reasoning that they were not signatory to the instrument. In the above perspective, I am of the view that it is amply borne out from the facts and evidence on record that the plaintiff had not intended to execute sale deed in respect of grove land and being unlettered and unsophisticated with village background, he was misled into executing the sale deed and both the courts below rightly converged to the conclusion holding the sale deed as an outcome of fraud played upon the plaintiffs. In this backdrop, the argument of the learned counsel for the defendant-appellants that the document shall be deemed to be sale deed under Section 164 of the U.P.Z.A. & LR. Act according to the plaint allegations, falls to the ground and cannot be sustained. Since in view of the fact that it has been found by the courts below that the provisions of Section 164 of the U.P.Z.A. & L.R. Act were inapplicable and the lower appellate court rightly held that “the effect of Section 164 is not to be considered in this case. ” In the above perspective, question No. 1 is answered accordingly.
10. The second question relates to limitation and it has been argued that the suit was barred by Section 49 of the U.P. Consolidation of Holdings Act having been instituted beyond the period of three years. In this connection, the finding of the courts below are sound and convincing. The courts below rightly held that the plaintiffs gained knowledge of the nature of sale deed when dispute arose about cutting of trees further holding that there was nothing on record to show that the plaintiffs were aware and slept over the matter to bide limitation prescribed in the statute. I have also scanned the entire record and am in agreement with the findings that the claim of the plaintiff was not barred by Section 49 of the U.P. Consolidation of Holdings Act. The second question framed by the Court is also answered accordingly.
11. Coming to third question, I am of the view that the lower appellate court rightly re-appraised the evidence and converged to the conclusion that the sale deed was the outcome of fraud and in this connection, it was rightly observed that Bismilla and Karamat were material witnesses and being alive, they were the best witnesses and defendants did not care to examine them to prove that the respondents intended and actually executed sale deed. The plaintiff’s case throughout was that document executed was mortgage deed pertaining to grove and evidence adduced by the plaintiff in this regard was found to be cogent and convincing and conclusion was reached after discussing every item of evidence bearing on the subject. The conclusion of the courts below is persuasively correct and consistent with the weight of evidence and nothing was pointed out to take a different view. In my considered view, the failure on the part of defendants to produce the material witnesses is bound to weaken the case of the defendants and the courts below rightly converged to the conclusion in this regard. The requirement of law and approach of the courts below in this regard cannot be said to be tantamount to shifting of burden of proof on the defendants Therefore, the third question is also answered in the light of the above.
12. The learned counsel has not raised any other ground of substance, which may go to the roots, and hence no ground is made out for interference in this second appeal.
13. As a result of foregoing discussion, the appeal fails is dismissed accordingly, No order as to costs.