JUDGMENT
Vishnudeo Narayan, J.
1. This appeal at the instance of the plaintiff-appellant has been preferred against the impugned judgment of reversal and decree dated 9.1.1990 and 17.1.1990 respectively passed in Title Appeal No. 41 of 1988 by Shri Sheo Kumar Prasad Verma, 7th Additional District Judge, Dhanbad whereby and whereunder the judgment and decree of the trial Court passed in Title Suit No. 155 of 1980, 21 of 1987 was set aside and the suit of the plaintiff-appellant has been dismissed.
2. The original plaintiff had filed the said suit for declaration that the sale deed dated 13.6.1979 is a fraudulent document and it has never been executed by him and the same has not affected his title in any portion of the house premises described in the schedule of the plaint. The original plaintiff Budh Ram died during the pendency of the suit and his son stands substituted in his place.
3. The case of the original plaintiff in brief, is that his mother Dukhni Dasi has acquired by virtue of the registered sale deed dated 10.12.1957, a piece of homestead land bearing Plot No. 530, Holding No. 97, Ward No. 5 along with structure standing thereon situate in Mauza-Barmasia (Bishti Para) at Hirapur, Dhanbad morefully detailed in the schedule of the plaint from Dalu Ram Mahato and she came in possession over the same and she remodeled the structure changing the nature and character by converting a portion thereof as Pucca building and the remaining portion is Khapperpose and after her death the plaintiff inherited the same and he was mutated in respect thereof and paid rent and taxes to the State as well as to the municipality in respect thereof. He has also let out some portions of the building to the tenant. It is alleged that his wife seriously fell ill in the year 1979 and he required money for her treatment and for that he approached Chandrika Kumar @ Bachhu Ram, the husband of the defendant, to advance him loan for which the plaintiff agreed to pay interest at the rate of two percent per month and accordingly Chandrika Kumar aforesaid agreed to advance him a sum of Rs. 800/- as loan at the rate of interest aforesaid on condition that he would keep with him the original sale deed dated 10.12.1957 as security and further the plaintiff will have to put thumb, impression on some blank papers which shall be retuned on repayment of the loan, and finding no way out in the said situation, the plaintiff agreed to the said proposal on persuasion of one Ajit Kumar Dutta, a deed writer, and accordingly the plaintiff handed over the original sale deed to Chandrika Kumar and his left thumb impressions were also obtained by Chandrika Kumar on some blank papers and Chandrika Kumar, the husband of the defendant advanced him a sum of Rs. 800/- as loan. It is alleged that within a short time, the plaintiff re-paid Rs. 1200/-which includes principal and interest to Chandrika Kumar, the husband of the defendant in the month of June 1979, and requested him to return the original sale deed and the blank papers containing his left thumb impressions which was refused by Chandrika Kumar and he was threatened to vacate the suit premises otherwise he shall be kicked out along with his family members by force and on 4.7.1979 said Chandrika Kumar came to his house in the company of some persons and threatened the plaintiff to vacate the suit premises and he along with the defendant with the help of the aforesaid persons forcibly broke open the lock of one room and threw all the belongings of the plaintiff and kept therein their cot and other articles and this plaintiff filed a petition before the Sub-Divisional Magistrate, Dhanbad and a preceding under Section 107 of the Code of Criminal Procedure was initiated and in the show cause in the said proceeding, the defendant disclosed that a portion of the suit premises in question measuring 1 kattha 3 chatak and 7 sq. f. was purchased by the defendant by virtue of a registered sale deed executed by the plaintiff after obtaining necessary permission of the Deputy Commissioner, Dhanbad, The further case of the plaintiff is that he has never applied for permission before the Deputy Commissioner for the sale of the suit premises nor has appeared before him at any point of time nor he had any occasion for the same and the defendant and her husband had used the blank papers containing his LTI for taking permission of sale from the Deputy Commissioner. It is also alleged that he has never executed any sale deed nor presented the same before the registering authority and no consideration money was paid to him by the defendant and everything was done by the defendant by setting up a man to put thumb impression on all the documents including the registers of the Sub-Registrar Office and the plaintiff made a prayer in MP Case No. 1147 of 1979 for the examination of his alleged left thumb impressions appearing on the document by the expert which was allowed and the plaintiff deposited a sum of Rs. 200/- as cost of the expert and the necessary photographs of left thumb impressions were taken as per the order of the Court and the defendant preferred a revision against the said order which was dismissed directing the Court below to act in accordance with law and the examination of thumb impressions aforesaid has remained hanging and truth could not be brought to light in the said proceeding. Lastly, it has been alleged that the sale deed dated 13.6.1979 is a fraudulent document never executed by the plaintiff and it has not affected the title of the plaintiff in respect of the suit premises.
4. The case of the defendant-respondent, inter alia, is that the wife of the plaintiff was seriously ill and for her treatment he was in dire need of money which he could not procure from any other sources and as such the plaintiff wanted to sale the suit premises for Rs. 7000/-, and since this defendant had no house and her family members have increased so she wanted to purchase the suit premises for a sum of Rs. 7,000/- and the transaction of sale having been settled, the plaintiff applied before the Deputy Commissioner, Dhanbad under the provisions of Urban Ceiling Act for permission to transfer the suit premises to this defendant and on proper enquiry the permission was granted and after taking the certified copy of the aforesaid permission, the plaintiff transferred the suit premises to this defendant by executing and registering the sale deed on 13.6.1979 and the consideration money was paid to the plaintiff by this defendant before the Sub-Registrar at the time of registration of the said sale deed and this fact has been endorsed in the sale deed by the Sub-Registrar and it has also been acknowledged by the plaintiff in the sale deed itself and Ajit Kumar Dutta is the scribe of the said sale deed and the plaintiff himself gave delivery of the possession of one room to the defendant after execution of the sale deed and promised to give delivery of possession of the other rooms later on. It is further alleged that it is false to say that the husband of the defendant had paid a sum of Rs. 800/- to the plaintiff as loan on interest at the rate of two percent per month and had kept original sale deed dated 10.12.1957 as security and took the thumb impressions for the plaintiff on blank papers and Ajit Kumar Dutta has persuaded the plaintiff to hand over the original sale deed and pressed him to give his left thumb impressions on blank paper as well as the defendant undertook to return the same on repayment of the loan with interest. It is also false to say that Chandrika Kumar had ever taken left thumb impressions of the plaintiff on any blank paper and it is equally false to say that the plaintiff has paid a sum of Rs. 1200/- to the husband of the defendant towards the repayment of the loan and interest and the case of threat as made out by the plaintiff is equally false and has been deliberately introduced by the plaintiff. It is further alleged that no fraud was ever practised by Chandrika Kumar at any time on the plaintiff for execution of the sale deed. It is alleged that after execution of the sale deed the plaintiff has himself handed over the original sale deed dated 10.12.1957. It is also alleged that it is totally false to say that another man was set up as Budh Ram, to put his left thumb impression on the said sale deed. It is alleged that this defendant had no objection if the left thumb impression of the defendant appearing on the sale deed and other relevant registers is sent to finger print expert for examination and comparison. Further case of the defendant is that the sale deed dated 13.6.1979 is a genuine and valid document duly executed by the plaintiff whereby and whereunder this defendant has acquired valid right, title and interest in the premises and he came in possession thereon,
5. In view of the pleadings of the parties, the trial Court has framed the following issues for adjudication in this case :–
(i) Has the plaintiff any cause of action?
(ii) Is the suit maintainable?
(iii) Has the Court pecuniary jurisdiction to try the suit?
(iv) Has the plaintiff executed and registered a sale deed on 13.6.1979 in favour of the defendant or not?
(v) Has the plaintiff received the consideration money for the sale?
(vi) Is the plaintiff entitled to get any relief or reliefs as claimed for?
(vii) To what other relief or reliefs, if any, the plaintiff is entitled to get?
6. In view of the oral and documentary evidence on the record, the learned trial Court while deciding issue Nos. (iv) and (v) has held that it is not safe to rely on the expert’s report and left thumb impression marked Exts. L to L/5 appearing the sale deed (Ext. A); and the left thumb impression market Ext. K on the permission petition are quite different and in no stretch of imagination it can be said that the left thumb impressions appearing on the sale deed as well as on the permission petition are similar and thus are of the same man. It has also been held that the left thumb impression found on Ext. C is much different from those of left thumb impressions found on Exts. L to L/5 and Exts. C to C/4. It has further been held that the sale deed is a forged and fabricated document and it was never executed by the plaintiff and no consideration money has ever passed to plaintiff. While deciding issue No. (vi) it has been held that the alleged sale deed is illegal and no title can pass to the defendant and the said sale deed is a void document. In view of the findings aforesaid, the trial Court has decreed the suit.
7. Being aggrieved and dissatisfied with the judgment and decree of the trial Court, the defendant preferred Title Appeal No. 41 of 1988 and the learned appellate Court below formulated a point for determination which is as to whether the sale deed dated 13.6.1979 (Ext. A) is vitiated on account of fraud practiced by the defendant and after re-appreciation and reappraisal of the evidence on the record, the learned appellate Court below relied upon the evidence of DW 6, the finger print expert read with his report Ext. 9 that the left thumb impression appearing on the sale deed as well as on the other documents are that of the plaintiff Budh Ran and held that there was no fraud in the execution of the sale deed and the ease of fraud as pleaded by the plaintiff in execution of the sale deed has not at all been proved by cogent evidence and he accordingly allowed the appeal and set aside the judgment and decree of the trial Court and the suit was accordingly dismissed.
8. The plaintiff preferred this appeal before this Court. While admitting the appeal for hearing this Court has formulated the following substantial question of law which runs thus :–
“Whether the First Appellate Court while reversing the judgment and decree passed by the trial Court misdirected itself in so far as it did not analyse oral evidence adduced on behalf of the plaintiff on proper perspective.”
At the time of hearing, another substantial question of law was also formulated which runs thus :–
“Whether the impugned judgment can be sustained in view of non-consideration of Exts. L to L/5 and C to C/4 as well as Ext. K/1 and the evidence of DW 1 and DW 2 by the learned appellate Court below.”
9. Assailing the impugned judgment, it has been submitted by the learned counsel for the plaintiff that the learned appellate Court below has completely misdirected itself in brushing aside the oral and documentary evidence brought on the record on behalf of the plaintiff without assigning any valid and cogent reasons when it was the consistent case of the original plaintiff that his left thumb impressions were obtained by the respondent by playing fraud and thus there was no reason for getting it examined by the expert and relying upon his evidence. It has further been submitted that the learned appellate Court below did not at all consider the evidence oral and documentary on the record specially Exts. L to L/5 and C to C/4 as well as Ext. K/1 and the oral evidence of the original plaintiff (PW 1) and of DW 1 and DW 2 in proper perspective and while reversing the judgment of the trial Court has not assigned any cogent reason for rejecting the reasonings accorded by the trial Court in respect thereof. Referring Section 103 of the Code of Civil Procedure, it has been submitted that the High Court has jurisdiction to determine an issue finally for final disposal of the appeal if the failure to determine or wrong determination of the issue occurred in lower appellate Court below itself and a finding of fact recorded by the appellate Court below is liable to the re-opened in the second appeal by the High Court under Section 103 of the Code of Civil Procedure when the lower appellate Court had decided a question of fact without considering material evidence on record and thus, the impugned judgment is unsustainable. In support of his contention reliance has been placed upon the ratio of the cases of Ishwar Dass Jain (dead) through LRs v. Sohan Lal (dead) by LRs, AIR 2000 SC 426, Santosh Hazari v. Purushottam Tiwari (dead) by LRs, AIR 2001 SC 965, and Madhukar and Ors. v. Sangram and Ors., AJR 2001 SC 2171.
10. In contra, it has been submitted by the learned counsel for the defendant-respondent that the sale deed dated 13.6.1979 (Ext. A) in respect of the suit premises has been duly executed by the original plaintiff on receipt of consideration of Rs. 7000/- and an endorsement of the receipt of the consideration stands mentioned per pen of the Registering Authority and the defendant by cogent and legal evidence has proved the due execution of the said sale deed by the original plaintiff and the plaintiff has totally failed to substantiate the fact that the said sale deed is tainted with fraud practiced by the defendant or her husband in its execution and it was for the plaintiff to prove fraud in the execution of the said sale deed which he did not discharge as per the evidence on the record and the learned appellate Court below in para-9 of the impugned judgment has assigned cogent reasons for coming to his finding that the said sale deed is not tainted with fraud. It has further been submitted that the provision of Section 68 of the Indian Evidence Act has been fully complied with in proving of the execution of the said sale deed as per the DW 1 Baleshwar Prasad Sahu out of three attesting witnesses, namely, Ajit Narain Singh and Md. Halim Loni and further DW 2, the scribe has also proved in his evidence regarding the due execution of the said sale deed. In support of his contention reliance has been placed upon the ratio of the case of Paras Nath Thakur v. Smt. Mohani Dasi (deceased) and Ors., AIR 1959 SC 1204. Lastly, it has been contended that there is no substantial question of law at all involved in this case which has been wrongly formulated in this case at the time of the admission and the High Court in second appeal cannot go into the question of fact, however, erroneous the finding of fact recorded by the first appellate Court which is a final Court of facts and in this view of the matter, there is no infirmity in the impugned judgment requiring an interference therein.
11. It is an admitted fact that the mother of the original plaintiff has acquired Plot No. 530 Bearing Holding No. 97 within Ward No. 5 in Mauza-Barmasia (Bishti Para) at Hirapur, Dhanbad by virtue of the registered sale deed dated 10.12.1957 and there was a structure standing on the said plot. The total area of the said plot is 2 kattha 4 chatak having building thereon and two of the rooms are tiled and the remaining four rooms are Khapperpose. The suit premises in this case is 1 kattha 3 chatak and 7 Sq. f. which the defendant claims to have acquired by virtue of the alleged sale deed dated 13.6.1979 executed by the original plaintiff in her favour. The said sale deed is Ext. A in this case. The case of the plaintiff is that the said sale deed is a fraudulent document never executed by him and no consideration money was passed in respect thereof and he has not applied for seeking permission of the competent authority for the sale of the suit premises and the defendant and her husband Chandrika Kumar has set up a man for the execution of the said sale deed. His case further is that at the time of taking loan of Rs. 800/- for the treatment of his wife in the year 1979 from Chandrika Kumar he had put his left thumb impression on several blank papers under pressure and coercion and also handed over the original sale deed dated 10.12.1957 on condition that on re-payment of the loan along with interest at the rate of two percent per month, the aforesaid document and the blank papers containing his thumb impressions shall be returned to him by Chandrika Kumar and on the basis of the said blank papers containing his left thumb impressions, the permission for the sale of the suit premises was fraudulently obtained by Chandrika Kumar and the fraudulent sale deed has been brought into existence. The defendant in his written statement has denied the case of fraud as alleged as well as of handing over the original sale deed dated 1012.1957 and obtaining the left thumb impressions of the plaintiff on several blank papers as well as of advancing a loan of Rs. 800/- to the plaintiff. The specific case of the defendant is that the wife of the original plaintiff was seriously ill and when he could not manage money for her treatment the plaintiff intended to sell the suit premises to raise money for the treatment of his wife and as a result of that the defendant agreed to purchase the suit premises and the sale deed (Ext. A) had been executed by the original plaintiff after obtaining permission of the competent authority. Before adverting to the evidence of PW 1, it is pertinent to mention at the very outset that the plaintiff has not disclosed either in the plaint or in his evidence on that as to when and on what date he had taken loan of Rs. 800/- from the defendant or her husband Chandrika Kurnar. In para-21 of his evidence, PW 1, the original plaintiff, has deposed that he cannot say the month and year when his wife had fallen seriously ill. He has further deposed that he also cannot say about the date, month and year when he had taken loan of Rs. 800/- from the defendant. In para-26 of his evidence he has deposed that he demanded the loan of Rs. 800/- from the defendant in the morning and the said loan was paid to him in the evening and it was a summer season and no other person was present there except the defendant and her husband. His evidence is further to the effect that he has delivered the original sale deed of the suit premises to the defendant besides two blank papers containing his left thumb impressions to them besides two stamped papers also containing his left thumb impression. In para-30 of his evidence he has deposed that he re-paid the loan of Rs. 800/- after one year of taking the said loan and he used to re-pay the loan by making payment of Rs, 50/- in one month, Rs. 60/- in the other month and some times Rs. 50/- as well as Rs. 25/-and when the entire amount of loan along with the interest amounting to Rs. 1200/-was re-paid he stopped making payment. The evidence of PW 1 appearing in para-30 regarding re-payment of the loan as averred in the plaint stands totally falsified. The learned appellate Court below in para-10 of his judgment has stated to have gone through the evidence of PW 1 and PW 2 very carefully and found that their evidence does not inspire confidence and they have given false evidence in respect of false claim made out in the plaint. DW 7 Chandrika Kumar, the husband of the defendant has deposed that there had been a talk of the sale of the suit premises for the first time in the month of December, 1978 and thereafter in pursuance of the said talk, the original plaintiff filed a petition before the Deputy Commissioner, Dhanbad for seeking permission to sell the said house and the said petition for permission is Ext. K/1 and it is dated 5.1.1979. DW 7 has further deposed that there was proper investigation into the matter by a Deputy Magistrate and an Amin and there was also measurement made by the Amin and permission was granted on 1.5.1979. He has further deposed that on the said permission petition, the original plaintiff as well as the defendant had put their left thumb impressions. PW 4 Ramanuj Singh is the Amin employed in the office of Deputy Commissioner who has proved the fact that there was an enquiry in the matter by Urban Ceiling Officer and in his presence he has measured the suit house. It is relevant to mention here that at that point of time i.e. on 5.1.1979 as per the case of the plaintiff, there was no loan advanced to him as well as his left thumb impressions were also not obtained on any blank paper. January is a winter month. According to the evidence of PW 1, the loan has been advanced to him in the summer season. Furthermore, the permission petition is in a printed from whereas as per the case of the original plaintiff read with his evidence his left thumb impression was obtained on stamped paper and blank papers.
Therefore, it cannot be said that the petition for seeking permission for sale of the suit premises is a fraudulent document. After obtaining the permission, the sale deed (Ext. A) purported to have been executed by the original plaintiff has seen the light of the day on 13.6.1979. DW 7 has further deposed that the sale deed was scribed by DW 2 Ajit Narain Dutta, the deed writer and he had explained and read over the contents of the sale deed to the original plaintiff and finding it correct the original plaintiff executed the sale deed in presence of the attesting witnesses including DW 1 and DW 2, the scribe has deposed to have scribed the sale deed at the instance of the original plaintiff. He has further deposed to have read over the contents of the sale deed to the original plaintiff and thereafter the original plaintiff had executed a sale deed and it was placed for registration and the original plaintiff accepted the execution of the said sale deed before the Sub-Registrar and he also received the consideration amount of Rs. 7000/- before the Sub-Registrar and the said consideration money was paid by the defendant. He has also deposed that the original plaintiff has put his left thumb impression in his presence on all the pages of the sale deed in presence of the attesting witnesses and thereafter on the relevant registers before the Sub-Registrar and his left thumb impression was identified by DW 1, who is also an attesting witnesses on the said sale deed. DW 1 in his evidence on oath has deposed about the due execution of the sale deed in his presence by the original plaintiff in favour of the defendant. The said sale deed consists of four stamped papers besides two unstamped papers, which bear the left thumb impression said to be of original plaintiff Budh Ram. I have already stated above that PW 1, the original plaintiff has deposed to have put his left thumb impression on two blank papers and two stamped papers. Therefore, the evidence of PW 1 that he did not execute the sale deed consisting of six pages having his left thumb impression thereon is totally false which cannot be accepted. The disputed left thumb impression of the original plaintiff are Exts. X to L/5 which were examined and compared by the Government Finger Print Expert with his admitted specimen left thumb impression. The report of the expert is Ext. 9 which shows that the disputed left thumb impression and the admitted specimen left thumb impression is of the same person. PW 6 Mahendra Nath Sinha, the finger print expert of the Government of Bihar, who had scientifically examined and compared the disputed signature with the admitted specimen signature of the plaintiff, has deposed in his evidence on oath that the disputed signature and the specimen signature are of the same person. In this view of the matter, it cannot be said that the sale deed (Ext. A) is a fraudulent document having not been executed by the original plaintiff. It is the settled principle of law that a party alleging fraud must both plead and prove it and he can succeed upon proof of fraud as alleged. Here in this case, the plaintiff has not at all succeeded in proving fraud in the due execution of the sale deed (Ext. A). The learned appellate Court below has meticulously considered this aspect of the matter in para-9 of the impugned judgment and has assigned cogent reasons for that. The learned appellate Court below has stated in the impugned judgment that prior to the execution of the sale deed the plaintiff had applied for permission to sell the suit premises before the competent authority on 5.1.1979 and it bears his thumb impressions thereon and the permission was granted vide Ext. D and thereafter the sale deed was executed by the original plaintiff after due diligence on receipt of payment of Rs. 7000/- before the Sub-Registrar and thus it cannot be said that the said sale deed is without consideration. The learned appellate Court has further stated that all the pages of the sale deed bears the left thumb impressions of the plaintiff which were duly compared by the expert and the left thumb impression is found to be that of the plaintiff and thus the assertion of the plaintiff that the fraud was practiced on him by the appellant in execution of the sale deed by setting up a different person has not at all been proved by any cogent evidence. The subsequent conduct of the original plaintiff by virtue of Ext. C series further lends support for the due execution of the sale deed. Normally in the second appeal the facts and the evidence are not looked into by the High Court but in view of the substantial question of law formulated above read with provision of Section 103 of the Code of Civil Procedure a brief discussion regarding the evidence has been made above. The absence of any threadbare discussion of the evidence of PW 1 and the exhibits specially Ext. L, series and C series by the learned appellate Court below does not in any way vitiate his finding when specifically it has been stated therein that he has carefully perused the evidence on record for coming to the finding in reversing the trial Court judgment. The learned appellate Court below has assigned cogent reasons for setting aside the judgment of the trial Court. In the case of Paras Nath Thakur (supra) it has been observed that a High Court on second appeal cannot go into the question of fact however erroneous the finding of fact recorded by the Court of fact may by. It has further been observed that burden of proof is heavy on a plaintiff who sues for a declaration of a document solemnly executed and registered as a fictitious transaction. The ratio of the said case supports the case of the defendant. The ratio of the case of Ishwar Dass Jain (dead) through LRs (supra), Santosh Hazari (supra) and Madhukar and others (supra) relied upon by the plaintiff are of no help to him in the facts and circumstances of this case. It cannot be said that the finding of the learned appellate Court below has been arrived at by placing reliance upon inadmissible evidence or arrived at without evidence or due to non-consideration of the evidence on the record. It can also not be said that the impugned judgment under appeal is so cryptic that none of the relevant aspects in controversy have been noticed. The learned appellate Court below considering the appeal as a valuable right of the parties and after hearing the parties both on question of law and facts had addressed itself to the core issue in controversy and had decided it by giving cogent reasons in support of his finding. Therefore, I see no substance in the contention of the learned counsel of the plaintiff-appellant. The learned appellate Court below has rightly held that the sale deed (Ext. A) is a genuine document duly executed by the plaintiff and the defendant has never practiced any fraud upon the plaintiff in execution of the said sale deed. I see no illegality in the impugned judgment requiring an interference therein.
12. There is no merit in this appeal and it fails. The appeals hereby dismissed. The impugned judgment is affirmed. There shall be no order as to cost in the facts and circumstances of this case.