JUDGMENT
Chaudhary Sia Saran Sinha, J.
1. Defendant No. 1 Bharosi Sao is the appellant in this First Appeal which is directed against the judgment dated 22-3-1976 of the learned Subordinate Judge, Second Court, Gaya, passed in Title Suit No. 25 of 1973, by which he decreed the suit filed by the plaintiff for declaration of subsisting title, confirmation of possession and, in the alternative, for recovery of possession over plot No. 161 Khata No. 192 of mauza Bara Gandhar having an area of 1.61 acres.
2. Facts, relevant for disposal of the limited contentions raised before this Court, may be stated as follows : —
One Mosst. Ful Kuer, a widow, as a plaintiff, instituted Title Suit No. 25 of 1973 on 3-2-1973 against appellant Bharosi Sao for the declaration, abovementioned. The plaintiff, besides the plot in suit, abovementioned, also owned and possessed plot No. 144 of Khata No. 69 of the same mauza, bearing an area of 50 decimals. There was a negotiation at her instance for sale of plot No. 144 with the
appellant through the intervention of one Ramsaran Sao, the plaintiff Ful Kuer being a pardanasin lady. The negotiation materialised for sale of plot No. 144 for a consideration of Rs. 7000/- and the sale deed Exhibit-1, dated 24-6-1972, was executed by her. It is alleged that the plaintiff Ful Kuer came to know some time in 1973 that in spite of the agreement being only to sell plot No. 144, the appellant and Ramsaran, in collusion with one another, surreptitiously, fraudulently and illegally got plot No. 161 also inserted in the said sale deed. She, therefore, filed the instant suit. Ful Kuer again fell in necessity of money and by a registered sale deed dated 30-1-1974 (Exhibit-1/A also marked as Exhibit-X for identification), she sold the property of plot No. 161, abovementioned, to one Manik Chand Gupta for a consideration of Rs. 10,000/-. On 29-5-1974, Manik Chand Gupta filed a petition for being added as a co-plaintiff. This prayer was objected to by the defendant. By order No. 21 dated 15-7-1974 and for the reasons stated therein, the trial Court granted the permission for addition of Manik Chand Gupta as a co-plaintiff and he was so added. The initial valuation of the suit was Rs. 7000/- but the consideration of the sale deed Exhibit-1/A was Rs. 10,000/-. The trial Court, therefore, asked the plaintiff to pay an additional Court fee on the remaining amount of Rs. 3000A which was paid.
3. Although no paper has been brought on record to show what was the subject matter of Miscellaneous Appeal No. 61 of 1974 but it is undisputed that from some order passed in the instant Suit, Miscellaneous Appeal No. 61 of 1974 was preferred. Plaintiff Ful Kuer died during the pendency of the instant Miscellaneous Appeal, abovementioned, leaving behind Malti Devi and Rajmani Devi, both wives of Ramchandra Sao. The lower appellate Court, in seisin of Miscellaneous Appeal No. 61 of 1974, substituted the names of these two ladies in place of plaintiff Ful Kuer in the said appeal. It is not in dispute that this substitution was made in the Miscellaneous Appeal, abovementioned, within the time allowed by law. On 13-12-1975, Manik Chand Gupta, co-plaintiff, filed a petition in the instant Title Suit stating that the said two heirs of Ful Kuer, above named, did not appear in the suit nor did they care to figure as plaintiff and so they should be
‘transposed’ as pro forma defendants. By order dated 24-2-1976, this prayer of Manik Chand Gupta was allowed and these two ladies were ordered to be ‘transposed’ as pro forma defendants. The hearing of the suit then proceeded.
4. The trial Court held that Ful Kuer was a pardanasin lady. Issue No. 4, framed by the trial Court, ran as follows : —
“Is the kewala executed by Mosst. Phool Kuer in favour of Bharosi Sao in respect of the lands in suit vitiated by fraud?”
The finding of the trial Court was that the sale deed Exhibit-1, so far as it related to plot No. 161, was vitiated by fraud and it was void to that extent. On a further finding that Manik Chand Gupta came in possession of the suit land after purchase under Exhibit-1/A, the plaintiffs suit was decreed. The defendant has carried the matter to this Court in the instant First Appeal.
5. Two contentions were raised by Sri Basudeo Prasad, learned senior counsel for the appellant. The first contention was that the trial Court acted illegally in allowing Manik Chand Gupta to be added as a co-plaintiff. The second contention was that the finding of the trial Court that the sale deed Exhibit-1 was void so far as it related to the lands of plot No. 161, was unsustainable in law. Learned Counsel for the respondents, Sri Binod Kumar Roy, disputed both these two contentions.
6. Coming to the first contention of Sri Basudeo Prasad, learned counsel for the appellant, I do not find any merit in the same. Ful Kuer challenged the transfer of plot No. 161, said to have been made under Exhibit-1. This very plot was the subject matter of the instant suit. It was transferred under Exhibit-1/A during the pendency of this suit. Order XXII Rule 9 of the Code of Civil Procedure (C.P.C.) deals with the effect of abatement or dismissal. Order XXII Rule 9(2) C.P.C. provides inter alia, that the plaintiff or the person claiming to be the legal representative of a deceased plaintiff or the assignee or the receiver in the case of an insolvent plaintiff may apply for an order to set aside the abatement or dismissal; and if it is proved that he was prevented by any sufficient cause from continuing the suit the Court shall set aside the abatement or dismissal. Order XXII Rule
10(1) C.P.C. provides that in other cases of an assignment, creation or devolution of any interest during the pendency of a suit, the suit may, by leave of the Court, be continued by or against the person to or upon whom such interest has come or devolved. The entire interest in the subject matter of the suit, namely, plot No. 161 was transferred to Manik Chand Gupta, co-plaintiff, under Exhibit-1/A. He applied for addition as a co-plaintiff. The trial Court allowed the prayer in spite of objection by the defendant. There is no material to show that the defendant challenged this order of the trial Court at any stage before any higher Court. It cannot be said in the facts and circumstances of this case, that the order of the trial Court allowing Manik Chand Gupta to be added as a co-plaintiff has affected the decision of the case so as to attract the operation of Section 105 C.P.C. Ful Kuer died Her heirs, as it appears, did not take any interest in prosecuting the suit. They had to be added as pro forma defendants. In such a situation, the addition of Manik Chand Gupta as a co-plaintiff, who subsequently became the sole plaintiff, had the effect of avoiding the multiplicity of suits. It was not the contention of Sri Prasad before this Court that this addition of Manik Chand Gupta as co-plaintiff adversely affected the defendant or caused any prejudice to him in his defence. The facts of the case reported in AIR 1948 Nag. 97 (Sakhubai v. Eknath Bellappa), relied upon by the learned counsel for the appellant, are different from the facts of the instant case and they cannot help the case of the appellant. In such a situation, the Court below did not act illegally in allowing Manik Chand Gupta to be added as a co-plaintiff in the facts and circumstances of this case. This contention, therefore, fails and is negatived.
7. Coming to the second contention of the learned counsel for the appellant, in paragraphs 1 and 4 of the plaint, plaintiff Ful Kuer described herself to be a pardanashin lady. In paragraph-7 of the written statement, filed on behalf of the defendant, it was stated, inter alia, that the allegations made in paragraph-1 of the plaint are ‘mischievous and concocted and false in material particulars’. As regards the allegations of paragraph-4 of the plaint, paragraph-16 of the written statement, inter alia, states as follows : —
“That the allegations made in para-4 of the plaint are entirely false and baseless and have already been traversed…..”
Submission of Sri Roy, learned counsel for the respondent, was that it has nowhere been stated specifically in the written statement that plaintiff Ful Kuer was not a pardanashin lady and as such it should be assumed that the factum of Ful Kuer being a pardanashin lady stood admitted and the plaintiff was not required to adduce any evidence regarding the same. On the pleadings of the parties one of the issues, being issue No. 3, framed in the suit was “Whether Most. Phool Kuer is a Pardanashin lady?” Evidence was adduced in this respect and the trial Court recorded a finding that she was a pardanashin lady. Order VIII Rule 5 C.P.C. deals with specific denial. Sub-rule (1) of Rule 5 of Order VIII C.P.C. runs as follows : —
“Every allegation of fact in the plaint, if not denied specifically or by necessary implication, or stated to be not admitted in the pleading of the defendant, shall be taken to be, admitted except as against a person under disability.
Provided that the Court may in its discretion require any fact so admitted to be proved otherwise than by such admission.”
In view of the statement, made in paragraphs 7 and 16 of the written statement, can it be said that the allegations, made in the plaint about Ful Kuer being pardanashin lady, was not denied specifically or by necessary implication or said to be not admitted in the pleadings of the defendant? The reply, in my opinion, would be in the negative. The decision of this Court reported in 1964 BLJR 19 : (AIR 1964 Pat 348) (Punit Rai v. Maulvi Syed Mohammad Majid) cannot help the case of the appellant. There the plaintiff stated in paragraph-3 of the plaint that it owned lands bearing certain municipal survey plots. Defendants 11 to 13 who mainly contested the suit did not deny in their written statement, the correctness of the averment made by the plaintiff in paragraph-3 of the plaint. Defendants 14 and 15, however, in paragraph-7 of their written statement, with reference to the averment made by the plaintiff about the ownership of the suit plots, only stated that they denied the allegations made in paragraphs 2, 3 and 4 of the plaint. This denial was held to be no denial of averments in law. The facts of
this case are different from the facts of the instant case. Pleadings in India have to be construed liberally. A pleading has to be read as a whole to ascertain its true import and the intention of the party concerned is to be gathered, primarily, from the tenor and terms of the pleading taken as a whole. It would appear from paragraph-7 of the judgment of the trial Court that the defendant attempted to file an additional written statement stating that Ful Kuer was not a pardanashin lady but the same was rejected on the ground that this matter was beyond the pleading. In the facts and circumstances of this case, it is not possible to accept the contention of Sri Roy, learned counsel for the respondents, that the pleading of the plaintiff in the plaint that plaintiff Ful Kuer was a pardanashin lady shall be deemed to have been admitted by the defendant.
8. This being the position, let us scrutinize the evidence adduced by the parties as to whether plaintiff Ful Kuer was a pardanashin lady. The suit was instituted in the early part of the year 1973. Ful Kuer died in the year 1975. It is not the case of the parties that she died all of a sudden. No step was taken by the plaintiff for examination of Ful Kuer as a special witness. Thus, the evidence of Ful Kuer as to the assertions made in the plaint is not available to us. As many as 14 witnesses were examined on behalf of the plaintiff and as conceded by Sri Roy, none of them stated about Ful Kuer being a pardanashin lady. On the other hand, Sarjun Prasad (D.W.3), scribe of the sale deed Exhibit-1 stated that Ful Kuer was not a pardanashin lady and this stands corroborated by the statement of D.W.11 Bharosi Sao (defendant) that she (Ful Kuer) was not a pardanashin lady and she used to look after her dukandari. The trial Court brushed aside the statement of the witnesses for the defendant regarding Ful Kuer being not a pardanashin lady on the ground that their evidence was afterthought ‘beyond the matters averred in the pleadings of the defendant’, which approach, for the reasons stated above, cannot be said to be a correct one. D.W.3 might have seen Ful Kuer for the first time on the date of execution of sale deed Exhibit-1, but she having appeared before him to give instructions for the execution of the sale deed, this witness (D.W.3) competently inferred that she was not a pardanashin lady. The trial Court was also not correct in rejecting
the evidence of D.W.11, the defendant, on this point by referring to paragraphs 21, 22 and 23 of his deposition. Beyond the evidence of D.W.3 (Surjun Prasad) and D.W.11 (Bharosi Sao), which is, more or less, ex parte on the point of plaintiff Ful Kuer being a pardanashin lady, there are other circumstances as well which support the case of the defendant on this point. Ful Kuer was a widow. Ram Saran Sao was her caste man and her next door neighbour. While Ful Kuer was a resident of mohalla Tel Bigha in the town of Gaya, defendant Bharosi Sao was a resident of village Baradih P. S. Gaya Muffasil. On her own showing, as disclosed in the plaint, she did not observe pardah either from Ram Saran Sao or from the defendant with whom she negotiated for the sale of plot No. 144 and entrusted the work for execution of the sale deed to them. As D.W.3 tells us, she appeared before the scribe (D.W.3) and went to the Registry Office to register the sale deed. D.W.4 stated in her cross-examination that she used to go upon her lands sometimes. These circumstances also support the evidence of D.W.3 and D.W.11 about plaintiff Ful Kuer being not a pardanashin lady, In disagreement with the trial Court, I hold and find that plaintiff Ful Kuer was not a pardanashin lady, as alleged in the plaint.
9. As plaintiff Ful Kuer has been found to be not a pardanashin lady, the burden of proof cannot be said to lay on the defendant-appellant to establish that she knew the contents of Exhibit-1 and executed it with her full knowledge of its effects and consequences and that she had no independent advice in the matter. However, the question of burden of proof at the end of the case, when both parties have adduced their evidence is not of great importance and the Court has to come to a decision on a consideration of all materials, Let us now scrutinize the evidence on record as to whether any fraud was perpetrated in connection with the insertion of plot No. 161 in the sale deed Exhibit-1. The legality and validity of Exhibit-1, so far as it concerns the transfer of plot No. 144 is not under challenge and it is not the case of the plaintiff that any fraud was practised on Ful Kuer as regards the sale of plot No. 144. Let us now see whether plot No. 161 was inserted in the sale deed (Exhibit-1) surreptitiously and illegally, as alleged in the plaint.
Fraud means and includes any of the following acts committed by a party to a contract, or with his connivance or by his agent, with intent to deceive another party thereto or his agent or to induce him to enter into the contract : —
(1) the suggestion, as a fact, of that which is not true, by one who does not believe it to be true;
(2) the active concealment of a fact by one having of knowledge or belief of the fact;
(3) a promise made without any intention of performing it;
(4) any other act fitted to deceive;
(5) any such act or omission as the law specially declares to be fraudulent.
Order VI rule 4 C.P.C. lays down that in all cases in which the party pleading relies on any misrepresentation, fraud, breach of trust, wilful default or undue influence, and in all other cases in which particulars may be necessary beyond such as are exemplified in the forms aforesaid, particulars (with dates and items if necessary) shall be stated in the pleading. Fraud, like any other charge of a criminal offence, whether made in civil or criminal proceedings, must be established beyond reasonable doubts and a finding as to the fraud cannot be based on suspicion and conjecture. None of the elements of fraud within the meaning of these terms, as it is understood, is specifically disclosed in the plaint. Submission of Sri Roy, learned counsel for the respondents, was that the five circumstances referred to in paragraph 14 of the trial Court judgment should be treated as details of the fraud. I shall deal with these circumstances shortly hereinafter.
10. At present, I shall proceed to discuss the oral evidence adduced on behalf of the parties in this respect. P.W.I Kakkan Prasad is a formal witness. P.W.2 Bhagawat Prasad, who is an attesting witness to Exhibit-1, merely came to say that there was a talk with Ful Kuer for transfer of only 50 decimals of land meaning thereby plot No. 144. He did not state about the contents of the sale deed (Exhibit-1) being not read over and explained to Ful Kuer but merely stated that the contents of the sale deed were not read over and explained to him. It was Bharosi who told him about the transfer of 50 decimals of land but
he could not say the date or month of the said information given to him by Bharosi. He could not say the Khata number, plot number or boundary either of the 50 decimals of the land or of plot No. 161. The suggestion thrown to P. W.2 is that he works as a Karpardaz and has deposed falsely on taking money though he denied it. P.W.3 is Ramchandra Gupta who undisputedly, acted as her (Ful Kuer’s) identifier before the Sub Registrar and had signed for her. He came to say that the contents of the sale deed (Exhibit-1) were not read over or explained either to him or to Ful Kuer or to any of the attesting witnesses. This witness is related to Ful Kuer as her Natindamad, that is to say, he is husband of the daughter’s daughter of Ful Kuer and obviously he must be interested in her. He appears to be a liar. His statement in examination-in-chief about the contents of Exhibit-1 being not read over to anyone stands falsified by his endorsement made in Exhibit-1 which states about the contents being read over as he admitted in paragraph-23 of his cross-examination that whatever he had written in the sale deed was correct. To crown all, although, undisputedly, he acted as an identifier of Ful Kuer but in his cross-examination, his statement was that he did not remember if he identified Ful Kuer before the Sub Registrar. He further stated that he did not tell the scribe to read the contents of the sale deed to him. According to him, plaintiff Ful Kuer and Ram Saran also did not tell the scribe to do so. This does not look probable. He did not enquire from anybody as to how much lands were transferred through Exhibit-1. The evidence of this witness fails to inspire confidence. P.W.13 is Manik Chand Gupta who, being the plaintiff, is an interested witness. He did not state about the contents of Exhibit-1 being not read over and explained to Ful Kuer. Learned Counsel Sri Roy did not rely on the evidence of any other witness for the plaintiff on this point.
11. Coming to the witnesses for the defendant on this point D.W.3 Sarjun Prasad, as abovementioned, is scribe of the sale deed Exhibit-1. He deposed that he scribed this document on the direction of Ful Kuer and he read it over to her and Ful Kuer put her thumb impression on Exhibit-1 and P.W.3 Ramchandra Gupta had signed for her. He (D.W.3) also signed for her. According to him, in addition to one sale deed, on the basis
of which he scribed Exhibit-1, certain instructions had also been given to him for execution of the sale deed. He further stated that he noted those instructions in his copy and he could file that copy in the Court. Submission was that he did not file that copy but it is not the case of the plaintiff that he filed any petition for a direction to this witness to file that copy in the Court below. Further submission was that this scribe saw this lady (plaintiff Ful Kuer) for the first time on the date when she sent to him for getting the sale deed scribed and that he did not know her from before. This is of no consequence as the genuineness of Exhibit-1 is not in dispute so far as it relates to transfer of plot No. 144. Nothing has been elicited in his cross-examination for which his evidence should be discredited. He had repudiated the suggestion given to him that he has inserted more land than what he was asked to scribe in collusion with the defendant. There is no material to show why D.W.3 would have been in collusion with the defendant.
D.W.5 Sohrai Beldar is an attesting witness to Exhibit-1. He came to say that this deed was scribed in his presence. He tells us that Ful Kuer had told the scribe to execute the sale deed in respect of two plots and further that the scribe read over the contents of the sale deed to Ful Kuer. His evidence was criticised on the ground that he was unable to say as to who signed for Ful Kuer in the sale deed. This may be on account of lapse of memory. He has substantially supported the scribe (D.W.3) about one kebala and a written instruction being made over to scribe by Ful Kuer.
D.W. 11 Bharosi Sao is the defendant himself. He stated that Ful Kuer had agreed to sell 2 acres and 11 decimals of land for a consideration of Rs. 7000/- and that it was on her instruction that Exhibit-1 was scribed and further that the scribe had read over and explained the contents of the sale deed (Exhibit-1) to her and P.W.3 had signed for her. It is true that D.W.11 stated that at the time of negotiation, he could not know as to for what necessity Ful Kuer sold the lands. This does not, however, take us anywhere in view of the unchallenged position that Ful Kuer required the amount of Rs. 7000/- for which she transferred plot No. 144 under Exhibit-1. D.W.11 is no doubt an interested witness but I do not see any reason to reject
his evidence when it stands substantially corroborated by other competent witnesses referred to above.
12. Ful Kuer reposed confidence in Ram Saran Sao who was her next door neighbour. It is not quite understood why Ram Saran Sao would have played false with her in collusion with the defendant in getting more lands inserted in the sale deed (Exhibit-1) particularly when Ram Chandra Gupta, the own relation of Ful Kuer, a literate person though young in age, was by her side at the relevant time.
13. I have looked into the sale deed (Exhibit-1). It clearly mentions transfer of 2 acres and 11 decimals of land. No expert has been examined to show that the words “Do Acre 11 Decimal” is a subsequent interpolation in the sale deed. A line has been drawn in respect of plot Nos. 144 and 161 against which the boundaries have been mentioned. It suggests that the boundaries of the two plots are the same. There is no evidence to show that the boundaries of the two plots are different. Even assuming that the boundaries of the two plots are different, boundary of plot No. 161 might not have been mentioned on account of Ful Kuer or D.W.11 not supplying the boundary to the scribe (vide paragraph-14 of the deposition of D.W.11). Another circumstance that has weighed with the trial Court is the rental of Rs. 11/- only including the cess for both the two plots, referred to by him in paragraph-11 of the judgment. Rupees 12 and 3 annas might have been the rental of plot No. 161 for the year 1956 but we are not unaware that sometimes rent is reduced under the provisions of law.
14. Holding that the recital of the sale deed is clearly susceptible of uncertainty, which observation is not correct, the trial Court has referred to certain surrounding circumstances in paragraph-14 of its judgment. The first circumstance is the valuation of the suit land. The trial Court has held that the valuation of the suit land together with 50 decimals of land would not have been less than Rs. 30,000/-. Exhibit-1 was executed in June, 1972. No issue regarding valuation of the suit land was framed by the trial Court. The sale deed Exhibit-1 states about the consideration money of the property to be sold which includes plot Nos. 144 and 161 as Rs. 7000/-. D.W.11 has satisfactorily stated that the consideration
money for the two plots of land was settled at Rs. 7000/-. Nothing material has been elicited in his cross-examination for which his evidence on this point should be discredited. The evidence of Ful Kuer has not been made available to the Court. There is no evidence on behalf of the plaintiff, worth the name, to show that Rs. 7000/- was fixed as the consideration money only for plot No. 144. Even P.W.3 or P.W.13 has not stated a word in this respect. The evidence of Ram Saran Sao is also not available to us. In such circumstances, the evidence of D.W.11 that the consideration money for both the two plots was fixed at Rs. 7000/- appears to be acceptable. As regards the sale deed filed on behalf of the plaintiff, referred to in paragraph-16 of the trial Court judgment, the defendant also filed sale deeds Exhibits B and B/1. While the trial Court has been impressed with the valuation of the lands as appearing from Exhibit-1 series without there being any satisfactory evidence of similarity of those lands with the lands in suit, it has wrongly discredited the documentary evidence filed on behalf of the defendant on the ground that no oral evidence has been adduced on behalf of the defendant regarding the similar character of the lands. The evidence of P.W.6 that the lands of mauza Baradih were sold at the rate of Rs. 700-800 per katha in the year 1972-73 cannot be accepted in the absence of the sale deed referred to by him in his evidence. He was unable to say the date and month of that sale deed. He has no lands or house in mauza Baradih. The evidence of P.W.13, an interested witness, about the price of the land transferred under Exhibit-1/A being Rs. 25-26 thousand cannot also be regarded as a competent. Except lands of plot No. 161, he has not purchased any other land nor has anyone purchased or sold any land in his presence. D.W.6 has stated that the land is Ek fasla.
15. Exhibit-1 was executed in June, 1972, The plaintiff (Manik Chand Gupta) purchased the lands of plot No. 161 on 30-1-1974 for a consideration of Rs. 10,000/- only. The court fee, that was paid when plaintiff Manik Chand Gupta was added as co-plaintiff, was for the amount of Rs. 10,000/- for both the plots. In such a situation, it must be found that there is no satisfactory material on the record to show that the valuation of Rs. 7000/- for both the
plots transferred under Exhibit-1 was grossly inadequate so as to give rise to any suspicion for fraud.
16. The second circumstance considered by the trial Court is the necessity for the sale of the suit land and the finding recorded by it is that Ful Kuer had no necessity to sell the suit land in favour of Bharosi Sao. Sale deed Exhibit-1 stated the necessity that the executant required money for legal necessity (Khargh Jaruri Jayaj) and further that it was impossible for Phul Kuer (Mahaj Dushwar) to arrange for money without sale of the property. The fact that plaintiff Ful Kuer did require Rs. 7000/-, the consideration money of the sale deed (Exhibit-1), is not under challenge. According to the case of the defendant, which appears to be correct, the consideration money for the two plots, abovementioned, was Rs. 7000/-. This amount of Rs. 7000/- was, undisputedly, required by Ful Kuer. The ignorance of D.W.11 as to the necessity for the sale cannot be of any consequence in view of the admitted position that Ful Kuer had necessity for Rs. 7000/-. Once, therefore, the defendant succeeded in establishing, as he has done, that the consideration money for the two plots was Rs. 7000/-, the necessity of Ful Kuer for Rs. 7000/- being not in dispute, it cannot be said that she had necessity for selling plot No. 144 only and not for plot No. 161. It was the plaintiff who set up a case of fraud. Therefore, it was for him to establish the same and not for the defendant to disprove it. As a matter of fact, we find Ful Kuer again selling plot No. 161 to plaintiff Manik Chand Gupta for a sum of Rs. 10,000/- only on 30-1-1974. In these circumstances, the finding of the trial Court that she (Ful Kuer) had no necessity to sell the suit land in favour of Bharosi is based on surmises and conjecture and is unsupportable in law.
17. The third circumstance relied on by the trial Court was whether Ful Kuer was a pardanashin lady. I have already recorded a finding that plaintiff Ful Kuer was not a pardanashin lady. In such a situation, the trial Court wrongly threw onus to prove the genuineness of the transaction evidenced by Exhibit-1 on the defendant. It was the plaintiff who alleged fraud and that too not in respect of the entire property transferred under Exhibit-1 but only in respect of a part of it,
namely, transfer of plot No. 161. From what has been discussed above, I have no hesitation in coming to the conclusion that the contents of the sale deed Exhibit-1 were read over and explained to Ful Kuer and the finding of the trial Court to the contrary is wrong.
18. The fourth circumstance considered by the trial Court was that the persons, who were selected for the purpose of execution of the sale deed, were acting in collusion. The finding of the trial Court is that plot No. 161 was included in the suit land by the scribe in collusion with Ram Saran Sao and Bharosi Sao and Ramchandra Gupta was not at all capable of understanding the transaction evidenced by Exhibit-1 and that he was only a creature of the defendant. On the own showing of the plaintiff (Ful Kuer), she used to repose confidence in Ram Saran Sao and according to P.W.3 he (Ram Saran Sao) was her close neighbour and friend, besides being the sister’s son of Phul Kuer (vide deposition of D.W. 11 paragraph-4), there being none in her family, not even a son or daughter. It was plaintiff Ful Kuer who selected Ram Saran Sao for sale of her lands. There is no material on the record to show why Ram Saran Sao, in whom Ful Kuer reposed confidence and who was her relation, would betray her without any rhyme or reason. It is not the case of the plaintiff in the plaint that defendant Bharosi Sao was a friend of Ram Saran Sao as deposed to by P.W.3. Defendant Bharosi Sao was also her own selection for sale of the lands of Exhibit-1, as it was stated in paragraph-4 of the plaint that it was Ful Kuer herself who entrusted the work of getting the sale deed prepared to the said Ram Saran Sao and defendant Bharosi Sao. P.W.3 Ram Chandra Gupta while deposing for the plaintiff, does not state that Ram Saran Sao and the defendant brought him in collusion. He is none else than the full brother of plaintiff Manik Chand Gupta. He appears to be a literate man as he has signed his deposition. It is not quite understood why Ram Chandra Gupta, who was related to Ful Kuer and was the full brother of plaintiff Manik Chand Gupta, would have come in collusion with Ram Saran Saoor the defendant without any rhyme or reason. Without P.W.3 stating that he was incapable of understanding the transaction, the trial Court committed an error by assuming that he was not in a position to understand the transaction. The scribe D.W.3
is a resident of a different village Tikha. He is a deed writer. There is no material on the record to show why this deed writer would have come in collusion either with Ram Saran Sao or with Bharosi Sao, the defendant. It cannot, therefore, be said that the persons selected for negotiation of the sale, for signing for Ful Kuer and identifying her before the Sub-Registrar as also for scribing the deed were all acting in collusion and they had been selected by Ram Saran Sao in collusion with defendant Bharosi Sao. The finding of the trial Court, therefore, that inclusion of plot No. 161 in the sale deed (Exhibit-1) was made by the scribe in collusion with Ram Saran Sao and defendant Bharosi Sao is unsupportable in law and is based on surmises and conjecture.
19. The fifth and the last circumstance relied upon by the trial Court is the suspicious nature of the transaction. According to the trial Court, the whole transaction presumably evidenced by Exhibit-1 was suspicious. This finding is again based on surmises and conjecture having no basis. D.W.3 stated that instructions had been given to him for scribing the deed which he (D.W.3) had noted in his copy. Possibility is that those instructions might have been made over on one sheet (Ek Dhdhdha Kagaj) of paper as stated by D.W.5 Sohrai Beldar. The evidence of D.W.11 (defendant) in paragraph-13 of his deposition cannot also reasonably lead to any suspicion.
20. In the facts and circumstances of this case, the question of possession is not very material nor was any issue framed in this respect. The plaint, as amended, contained a prayer for confirmation of possession or in the alternative for recovery of possession. The trial Court has, however, found that Manik Chand Gupta came in possession over plot No. 161 after he purchased it under Exhibit-1/A. While no document was produced by the plaintiff in respect of his possession, rent receipt Exhibit-A, granted by the State of Bihar, which has a reference, amongst others, to the two khatas of the lands transferred under Exhibit-1 and which stands in the name of the defendant, has been produced and marked Exhibit-A on the statement of the Advocate’s clerk Gauri Shanker Singh (D.W.I). While no question was put either to D.W. 1 or to D.W. 11 about mutation, the trial Court attached no
importance to this rent receipt on the ground that the defendant did not produce mutation order and that it was without prejudice. The late filing of Ext. A vide order No. 10 dt. 13-3-81 is of no consequence. A large number of witnesses were examined on behalf of the defendant on the point of possession, namely, D.W.2, D.W.4, D.W.5, D.W.6, D.W.8, D.W.10 and D.W. 11. The witnesses examined on behalf of the plaintiff are P.Ws.8, 9 and 10. As rightly contended by Sri Basudeo Prasad, learned counsel for the appellant, the trial Court has adopted two standards in judging their evidence. While it has ignored the minor discrepancies in the evidence of the witnesses for the plaintiff, it has not accepted the evidence of the witnesses for the defendant on the ground of minor discrepancies and the bald statement made by them that they had no concern with the cultivation.
21. P.W.8 Kauleshwar Ram came to depose on being called by plaintiff Manik Chand. He could not say the names of the labourers of Manik Chand Gupta. He could not say Khata number or plot number of the suit land. Like P.W.8, P.W.9 Jitan Rai was also called by plaintiff Manik Chand Gupta. He could not say as to who ploughed the lands, on behalf of Manik Chand. He could not say the boundary of the suit lands. Similarly, P.W.10 Mahavir Prasad could not say plot number and Khata number of the suit land. As his cross-examination reveals, he came to depose without summons. He cannot be regarded as an independent witness.
22. I have scrutinized the evidence of the witnesses for both the parties on the point of possession and 1 am of the opinion that the evidence adduced on behalf of the defendant is superior to the evidence adduced on behalf of the plaintiff. I have, therefore, no hesitation in coming to the conclusion that it is defendant Bharosi Sao who is coming in possession of the two plots transferred under Exhibit-1 since the time of execution of the sale deed Exhibit-1 and that the story of possession as set up by the plaintiff Manik Chand Gupta is not convincing or reliable.
23. In view of what has been said and discussed above, I have no hesitation in holding that plaintiff Ful Kuer transferred not only plot No. 144 but also plot No. 161 under the sale deed Exhibit-1 after fully understanding
the contents of the sale deed (Exhibit-1) and that there was nothing surreptitious or fraudulent or illegal about the execution of Exhibit-1. The plaintiff has miserably failed to establish the story of fraud. Plot No. 161 having been already transferred under Exhibit-1 plaintiff Manik Chand Gupta cannot but be said to have purchased only a bag of wind under the sale deed Exhibit-1/A and as such he is not entitled to any relief claimed by him.
24. The result is that the appeal is allowed and the judgment and decree of the trial Court, declaring the title of plaintiff Manik Chand Gupta over the suit land and confirming his possession thereon are set aside and the plaintiffs suit is dismissed. In the facts and circumstances of this case, however, there shall be no order for costs and the parties are directed to hear their own costs both of this First Appeal as also of the trial Court.