JUDGMENT
B. K. Rathi, J.
1. The suit was filed by the appellant for cancellation of the sale deed dated 15.2.1982 alleged to have been executed by the appellant in favour of respondent Nos. 1 and 2. The sole ground taken for the cancellation is that the sale deed is without consideration and obtained by fraud.
2. The respondents contested the suit and alleged payment of consideration and that no fraud was committed. They also raised other pleas and also pleaded that the suit is barred by Section 34 of Specific Relief Act and is not maintainable in the civil court and barred by Section 331 of U.P.Z.A. and L.R. Act. The trial court framed necessary issues and recorded finding in favour of the appellant on all the issues and decreed the suit. Aggrieved by the decree the respondents preferred appeal. In the appeal they further pleaded that their names have been mutated and possession have been delivered and, therefore, the suit for cancellation of the sale deed is not maintainable. The appellate court held that the relief for taking possession has not been sought, that the names of the respondents have been mutated and they are in possession of the land and, therefore, the suit is not maintainable. The appellate court also recorded the finding regarding the payment of consideration. The appellate court, therefore, allowed the appeal and dismissed the suit.
3. Aggrieved by it this second appeal has been preferred by the plaintiff. This second appeal was admitted on the following substantial question of law :
“Whether the plaintiff could be refused the relief of cancellation as he was (not) in possession over the disputed land?”
4. I have heard Shri Dhan Prakash, learned Sr. Advocate for the appellant and Shri H. N. Sharma for the respondents. However, I have carefully gone through the record of the case.
5. After considering the arguments of the learned counsel, I am of the opinion that the first appellate court has committed a gross error of law in recording a finding that the suit is not maintainable as the relief of possession has not been sought and that names of the defendant respondents have been mutated over the disputed land. The mutation is a summary proceeding and does not create any right of the parties in the land in dispute. It is mainly for collection of the land revenue. The order of mutation does not operate as res Judicata between the parties. Therefore, the relief of cancellation could not be refused as the plaintiff is not in possession of the disputed land.
6. Regarding possession, the property included in the sale deed is an agricultural land. There is no evidence to show that amicable possession was given by the appellant. On the other hand, the appellant alleged that the respondents cut the standing crop and on his objection, disclosed that this land has been purchased by him. Therefore, the possession of the disputed land included in the sale deed does not preclude the Court from granting the relief of cancellation of the sale deed. The first appellate court has also grossly erred in recording a finding that the relief of cancellation of sale deed cannot be given as the relief of recovery of possession has not been claimed. The finding that the relief of recovery of possession should also have been sought cannot be accepted and it can be sought afterwards.
7. The result, therefore, is that the findings of the appellate court are against law and perverse and the appellate court has erred in refusing the relief of cancellation of sale deed to the appellant for the reason that he was not in possession over the disputed land.
8. The appellate court has also expressed the view that the sale deed is not without consideration. This view has been expressed in consonance with other findings recorded by the appellate court as he made up his mind to allow the appeal. After considering the reasons recorded by the appellate court and the trial court, I am of the view that this finding of the appellate court is also perverse and against the evidence. The reason for the same in brief are as follows.
9. Admittedly, at the date of the execution of sale deed, the appellant was an old man of about 70 years of age. He is a retired army personnel and is getting pension. He is unmarried and has no issue. He was owning the land in dispute and the house. The land in dispute was transferred by the disputed sale deed in favour of the respondent Nos. 1 and 2 for Rs. 35,000 and on that very day, the house was transferred to respondent No. 3 for Rs. 7,000. The sale consideration of the house was Rs. 7,000 were paid before the Sub-Registrar. There are two different sale deeds. However, not a single penny regarding the disputed sale deed was given to the appellant before the Sub-Registrar, There is only, endorsement of the Sub-Registrar that the appellant has admitted that he had received a sum of Rs. 35,000 in advance. This endorsement has been relied on by the appellate court. It is argued that this endorsement coupled with the oral evidence show that the appellant already received the sale consideration of Rs. 35,000 in advance.
10. The question is whether there is any evidence to show the payment of Rs. 35,000 in advance to the appellant. If there is no evidence, the solitary endorsement of the Sub-Registrar which is made in the routine manner cannot prove the payment of Rs. 35,000 in advance.
11. Admittedly, the appellant has two real brothers who had sons and daughters. The father of the respondents Shri Ziley Singh is also of the family of the appellant and it is alleged that he was very close to the appellant. The case of the appellant is that he wanted to execute the Will of his property in favour of his some nephews. He was taken by the father of the respondents for the same to the office of the Sub-Registrar and the sale deed was got executed by fraud.
12. The case of the respondents is that the appellant was taking money from time to time from the father of the respondents which with interest came to Rs. 35,000. That this money was demanded by the father of respondents from the appellant. The appellant expressed his inability to pay and agreed to execute the sale deed of the land in consideration of the same. The question is whether there is any evidence to show that money was given by the father of respondents to appellant from time to time and a sum of Rs. 35,000 was due against the appellant.
13. There is no document or receipt regarding any loan given by the father of the respondents to the appellant. It is important to mention that the respondent Balwant entered into the witness box and stated that he has in his possession the documents to show that Rs. 35,000 was due against the appellant. That the documents are at his residence. These documents were not produced at any stage of the case. There is no reason as to why they were suppressed. It shows that there is no such document in existence. It cannot be accepted that a huge sum of Rs. 35,000 was paid by the respondent’s father from time to time to the appellant without any writing and Rs. 35,000 became due against him in the year 1982 when the sale deed was executed.
14. The most important circumstance regarding it is that money is alleged to have been paid to the appellant by the father of the respondents. However, father of respondents did not enter in the witness box to support the same, Balwant respondent who was examined in the Court has admitted that his father is alive and is in fit state of health to come to the Court. There was no reason as to why he did not come to Court to depose that a sum of Rs. 35,000 was due on the appellant. No money was paid to the appellant by the respondents. The respondents were minor at the time of the sale deed and the money is alleged to have been given during their minority. The father of the respondent should have stated on oath regarding the payment of the money and in the absence of his coming to the Court to depose regarding the same, I find that there is absolutely no evidence that any money was paid by the father of the respondents to the appellant and the sum of Rs. 35,000 was due.
15. It also appears that there was no question of taking loan by the appellant from the father of the respondents. The appellant had no liability. He was also getting pension. He was also having agricultural income and his own house to live. It is alleged by the respondents that the appellant required money for making gifts to different persons. It cannot be accepted that the appellant was giving gifts after taking money from the father of the respondents. In the circumstances, it cannot be accepted that there was any occasion for the appellant to take money from the father of the respondents.
16. The finding of the first appellate court that money was due against the appellant is only based on surmises and is without any evidence. The same, therefore, cannot be maintained.
17. In the circumstances, I find that the sale deed is totally without consideration and has been obtained by fraud. The suit is not barred by any provision of law. The trial court, therefore, rightly decreed the suit. Accordingly, this Second Appeal is allowed with costs and judgment and the decree of the First Appellate Court are quashed and that of the trial court is restored.