# Shitla Prasad v. Banwari & Ors

- **Citation:** (2013) 3 ILRA 1415
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2013-10-30
- **Case number:** Second Appeal No. 111 of 2010
- **Bench:** Sudhir Agarwal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/shitla-prasad-v-banwari-ors-42718
- **Pages:** 13

## Headnote

C.P.C.-Section-100-Second Appeal-Suit for
cancellation of sale deed and injunctiondismissed by Trail Court-decreed by lower
appellate court-with specific finding of
fraud-as the serial number on stamp bears
different with different dates-defendant
failed to explain about this diversity instead
of 2 dismal in 24000/- 24 dismal written
with collusion of registry-old construction
and shop proved to constructed by plantiffland having much and more potential value
can not be for such nominal amount-over
writing in deed bears no initial finding of
fact recorded by LAC can not be without
evidence-appeal dismissed.

Held: Para-39
I may look this matter from another
angle and consider certain other facts.
The defendants knowing it well that the
land in question was not being used for
agricultural
purposes
and
already
construction was raised thereon, yet
claims that it is an agricultural land. He
also took a stand that construction was
raised by him though it has come on
record and proved by evidence that the
construction was old and could not have
been raised by defendants. All these facts
show that the conduct of defendant in the
entire case was neither straight nor honest.
It is true that in respect of market value of
the land, over which finding has been
recorded by LAC, it may be said that there
was no evidence, but the land in question at
the time of execution of sale deed was of
much higher value, as is evident from the
fact
that
it
was
transferred
for
a
consideration of Rs. 24,000/- but for the
purpose of stamp duty, much higher value
has been mentioned and that too when it
was taken as agricultural land. It is in these
facts, the finding recorded by LAC that
value of the land would have been much
more than Rs. 24,000/-, it cannot be said
that a prudent vender could have sold 24
dismal of land for just Rs. 24,000/-, when
almost 20 years back he has purchased the
land for a consideration of Rs. 5,000/-. In
entirety and the backdrop of all these facts,
it cannot be said to be without any evidence
or perverse.

Case Law discussed:
AIR 2006 SC 3672; AIR 2009 SC (Supp) 1218;
AIR 1951 SC 280; AIR 1941 PC 93; AIR 1965
SC 1738; (2006) 7 SCC 756; AIR 1977 SC 615;
AIR 1982 SC 84; JT 1996(7) SC 135; AIR 2005
SC 3110; JT 2011(9) SC 505; (1996) 5 SCC
550; (2005) 11 SCC 314; 2006(5) SCC 638;
AIR 2009 SC (Supp) 1218; AIR 1951 SC 280.

## Text

_Characters 0–39,993 of 44,694. This is a partial read: ask again with offset=39993 for what follows._

3 All] Shitla Prasad Vs. Banwari & Ors
1415
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 30.10.2013

BEFORE
THE HON'BLE SUDHIR AGARWAL, J.

Second Appeal No. 111 of 2010

Shitla Prasad
 ...Appellant
Versus
Banwari & Ors.

 ...Opp. Parties

Counsel for the Petitioner:
Sri T.N. Tiwari, Sri M.K. Gupta, Sri Manish
Goyal

Counsel for the Respondents:
Sri O.P. Shukla, Sri Rakesh Pande,
Sri Prashant Pande, Sri Akhilesh Kumar,
Sri Rajendra Singh, Sri Anil Sharma
Sri Chandrasen Pal

C.P.C.-Section-100-Second Appeal-Suit for
cancellation of sale deed and injunctiondismissed by Trail Court-decreed by lower
appellate court-with specific finding of
fraud-as the serial number on stamp bears
different with different dates-defendant
failed to explain about this diversity instead
of 2 dismal in 24000/- 24 dismal written
with collusion of registry-old construction
and shop proved to constructed by plantiffland having much and more potential value
can not be for such nominal amount-over
writing in deed bears no initial finding of
fact recorded by LAC can not be without
evidence-appeal dismissed.

Held: Para-39
I may look this matter from another
angle and consider certain other facts.
The defendants knowing it well that the
land in question was not being used for
agricultural
purposes
and
already
construction was raised thereon, yet
claims that it is an agricultural land. He
also took a stand that construction was
raised by him though it has come on
record and proved by evidence that the
construction was old and could not have
been raised by defendants. All these facts
show that the conduct of defendant in the
entire case was neither straight nor honest.
It is true that in respect of market value of
the land, over which finding has been
recorded by LAC, it may be said that there
was no evidence, but the land in question at
the time of execution of sale deed was of
much higher value, as is evident from the
fact
that
it
was
transferred
for
a
consideration of Rs. 24,000/- but for the
purpose of stamp duty, much higher value
has been mentioned and that too when it
was taken as agricultural land. It is in these
facts, the finding recorded by LAC that
value of the land would have been much
more than Rs. 24,000/-, it cannot be said
that a prudent vender could have sold 24
dismal of land for just Rs. 24,000/-, when
almost 20 years back he has purchased the
land for a consideration of Rs. 5,000/-. In
entirety and the backdrop of all these facts,
it cannot be said to be without any evidence
or perverse.

Case Law discussed:
AIR 2006 SC 3672; AIR 2009 SC (Supp) 1218;
AIR 1951 SC 280; AIR 1941 PC 93; AIR 1965
SC 1738; (2006) 7 SCC 756; AIR 1977 SC 615;
AIR 1982 SC 84; JT 1996(7) SC 135; AIR 2005
SC 3110; JT 2011(9) SC 505; (1996) 5 SCC
550; (2005) 11 SCC 314; 2006(5) SCC 638;
AIR 2009 SC (Supp) 1218; AIR 1951 SC 280.

(Delivered by Hon'ble Sudhir Agarwal, J.)

1. This is defendant's appeal under
Section 100 C.P.C. This Court formulated
following substantial questions of law after
hearing under Order 41 Rule 11 C.P.C.:

"i. Whether the lower Appellate Court is
justified in reversing the findings of Trial
Court that plaintiff failed to prove fraud
warranting cancellation of sale deed and
reasoning given by lower Appellate court are
founded on legally admissible evidence?

ii. Whether the plaint disclose
requisite facts needed to be pleaded for
making a case of fraud?"
1416 INDIAN LAW REPORTS ALLAHABAD SERIES

2. Sri Manish Goyal, Advocate, has
made his indepth threadbare arguments
covering the entire aspects of the matter
relevant for adjudication of the aforesaid
questions of law with great ability, and,
Sri
Anil
Sharma,
learned
counsel
appearing for respondents, has met the
plaintiff's
case
by
advancing
his
arguments with a similar ability and that
is how both the sides have placed enough
material as also a number of precedential
authorities to make it convenient for this
Court to arrive at a just conclusion.

3. Now before proceeding further, I
find it appropriate to have a brief factual
matrix of the entire litigation, which
would be of much help for correct
appreciation of the legal issues.

Plaint case:

4. Banwari, son of Sukhdev, now
deceased and substituted by his legal
heirs, i.e., plaintiffs (respondents in this
appeal), held a land comprising plot no.
705 area 24 dismal, situate on the main
road leading from Varanasi to Baluwa,
falling in Gaura Bazar. He got ownership
rights pursuant to a sale-deed dated
23.9.1974, executed by earlier owner Smt.
Kumari Devi, wife of Lakhnu Sav. The
old Bandobast Arazi number of disputed
land was 299/2 area, 25 dismal. The land
had its commercial value. The plaintiff,
Banwari,
got
ten
permanent
shops
constructed on the road side, over
disputed land. The shops were let out to
various persons on rent. There was vacant
land on the back side of shops which was
surrounded by a boundary wall made of
bricks and on the western side of the wall,
an iron gate was installed. The land on the
back side of shops was not used for any
agricultural purpose. The defendantappellant had a shop on eastern corner,
north facing, to plot no. 705, appurtenant
to road. He, however, was facing problem
for
residential
accommodation.
He
requested for two dismal of land from
plaintiff Banwari for consideration of Rs.
24,000/- which was acceded to by
plaintiff and possession was given to him.
The defendant-appellant constructed a
Kothari and started enjoyment of land,
given in his possession, with the promise
that sale-deed shall be executed in August'
1995, by which time, he shall arrange
requisite funds. On 23.8.1995, both the
parties went to registry office, executed
sale deed for a consideration of Rs.
24,000/-, in respect of land measuring 2
dismal only. The actual handing over of
consideration amount did not take place
since defendant-appellant promised to pay
aforesaid amount at the residence, and,
plaintiff, believing on such promise,
executed sale deed.

5. Since then, neither any amount
was paid by defendant-appellant nor he
vacated
disputed
land.
Instead,
he
proceeded to extend possession over the
entire
land
measuring
24
dismal.
Consequently, Original Suit No. 360 of
1996 was instituted by Banwari, vide
plaint dated 9.4.1996, wherein he levelled
allegation of fraud in the registered sale
deed. He said that page mentioning area
of land under transaction, was replaced by
another
page,
wherein
area
was
mentioned as 24 dismal instead of 2
dismal. This fraud is sought to be proved
on the basis of application form and
affidavit submitted in registry department,
before execution of aforesaid sale-deed in
which area mentioned was 2 dismal.
Plaintiff claims himself an illiterate, aged,
old and sick man and hence had suffered
fraud committed by defendant.
3 All] Shitla Prasad Vs. Banwari & Ors
1417

6. The suit was filed seeking a
declaration of sale deed dated 23.8.1995
registered on 6.10.1995 as illegal and non
est, and for cancellation thereof. An
injunction
was
also
sought
against
defendant claiming any right on the basis
of aforesaid sale deed.

7. During pendency of aforesaid
suit, plaintiff Banwari died on 16.12.1998
and his legal heirs, thus, were substituted.

8. The suit was contested by
defendant-appellant filing a written statement
in which all allegations were denied. He
pleaded that sale deed was executed for 24
dismal area and there is no forgery etc. in the
sale deed, as averred by plaintiff.

9. The then 4th Addl. Civil Judge
(Senior Division) Varanasi, i.e., Trial
Court (hereinafter referred to as "TC"),
formulated 10 issues, and relevant issues
no. 1, 2, 5, 6, and 9 as under:

1- D;k oknh okn i= ds dFkukuqlkj fookfnr
nLrkost cSukek dks fujLr djok ikus dk vf/kdkjh
gS\

2- D;k oknh fookfnr Hkwfe dk ekfyd o
dkfct gksus ds dkj.k izfroknh }kjk fdlh gLr{ksi
dks jksdok ikus dk vf/kdkjh gS\

5- D;k nkok /kkjk 34 fof'k"V vuqrks"k
vf/kfu;e ls ckf/kr gS\

6- D;k oknh dks nkok izLrqr djus dk vf/kdkj
gS\

9- D;k nkSjku eqdnek izfroknhx.k }kjk
fookfnr Hkwfe ij dksbZ fuekZ.k djk;k x;k gS ;fn gka
rks izHkko\

English Translation by the Court:

"1. Whether the Plaintiff is entitled to
secure cancellation of the disputed saledeed as claimed in the plaint?

2. Whether the Plaintiff being owner
and in possession of the disputed land is
entitled to get any interference of the
defendant restrained.

5. Whether the claim is barred by
Section 34 of Specific Relief Act.

6. Whether the Plaintiff has a right to
institute the claim.

9. Whether any construction on the
disputed land has been carried out by the
defendants during pendency of the case. If
yes, its effect.

10. The Issues no. 3, 4 and 10
relating to jurisdiction, Court fee etc. were
decided as preliminary issues in favour of
plaintiff, vide orders dated 19.7.1997 and
16.7.2008, which subsequently formed
part of judgment and decree dated
19.8.2009.

11. The real substantial issues no. 1
and 2, were returned in negative, i.e.,
against
plaintiff.
Consequently,
vide
judgment and decree dated 19.8.2009, the
TC dismissed the suit. Aggrieved thereto,
plaintiff preferred Civil Appeal No. 88 of
2009, which has been decided vide
judgment and decree dated 11.12.2009, by
Sri Umesh Chandra Sharma, Additional
District Judge, Court No. 9, Varanasi, i.e.,
Lower
Appellate
Court
(hereinafter
referred to as "LAC").

12. LAC partly allowed appeal and
sale-deed dated 23.8.1995, registered on
6.10.1995, has been held valid insofar as
it transfers title in the property in dispute,
to the extent of 2 dismal, but, in respect of
22 dismal of arazi no. 705, the sale deed
has been held illegal and non est. The
LAC has issued a permanent/mandatory
injunction
against
defendant-appellant
from interfering in the possession, etc., of
1418 INDIAN LAW REPORTS ALLAHABAD SERIES
arazi no. 705 area 22 dismal, and
direction has also been issued to demolish
construction raised thereon and handing
over possession of that part of land to
plaintiffs.

13. Sri Manish Goyal contended that
the plaint lacks material particulars, in
respect whereto the matter has been
examined by LAC it has formed opinion
in favour of plaintiff so as to reverse
findings of TC. The degree of proof
required in a case alleging fraud was
neither discharged nor evidence adduced,
yet LAC, has recorded a finding and thus
committed manifest error. The finding
recorded by LAC is not supported by
evidence. A registered sale-deed carries a
presumption in respect of various steps
underwent by registry authorities. To
unfold and rebut such presumption,
requisite evidence and material is not on
record. Hence, findings recorded by LAC
is not founded on valid or admissible
evidence, or any evidence whatsoever. In
respect of attestation and inadequate
consideration, relevant aspects have not
been taken into consideration by LAC
and, therefore also, its finding is vitiated
in law. The same argument he advanced
to contend about collusion with registry
officials. Reliance is placed on Ramesh B.
Desai Vs. Bipin Vadilal Mehta AIR 2006
SC 3672, Ranganayakamma & Anr. Vs.
K.S. Prakash AIR 2009 SC (Supp) 1218,
Bishundeo Narain Vs. Seogeni Rai AIR
1951 SC 280, Narayanan Chettyar Vs.
Official Assignee, High Court Rangoon
AIR 1941 PC 93, Kumar Harish Chandra
Singh Deo Vs. Bansidhar Mohanty AIR
1965 SC 1738, Jai Narain Parasurampuria
(Dead) & Ors Vs. Pushpa Devi Saraf and
Ors.(2006) 7 SCC 756, Varanasaya
Sanskrit
Vishwavidyalaya
Vs.
Dr.
Rajkishore Tripathi AIR 1977 SC 615.

14. Besides, he also cited Phipson
on Evidence (Sixteen Edition), Chapter 6,
Page 55 to show degree of proof required
to sustain a plea of fraud. He contended
that even if every thing goes in favour of
plaintiff and it is held that there are
certain pages in the sale-deed, which raise
a serious doubt, and those pages are
ignored, the rest of deed itself would
show that transaction subjected thereto
was for the entire piece of land and not
for only 2 dismal, as pleaded by plaintiff.

15. Sri Anil Sharma, learned counsel
for respondents (plaintiff), defending
judgment of LAC, referred to Order 6
Rule 2 stating, if certain facts are pleaded,
and, founded thereon, an issue is raised
and evidence adduced, it cannot be said
that the plaint suffers defect of lack of
material facts. He drew my attention to
Registration Rules, and in particular, Rule
87-A, 88, 200 and 328B and urged that a
perusal of registered document shows that
sale deed sought to be executed between
parties was only for 2 dismal of land, but,
subsequently, by committing forgery and
manipulation,
certain
papers
were
changed, and, instead of 2 dismal, it was
made for entire 24 dismal. Since fraud
vitiates everything, LAC has rightly
reversed finding of TC, after discussing
entire material on its own which is based
on valid piece of evidence and both
questions need be answered in favour of
plaintiff. He argued that a finding of fact
has been recorded by LAC which is
neither perverse nor based on no
evidence, therefore, no interference would
be justified in an appeal under Section
100 C.P.C. He placed reliance on Prasad
Vs. V. Govindaswami Mudaliar AIR
1982 SC 84, Indian Bank Vs. M/s.
Satyam Fibres (India) Pvt. Ltd. JT 1996
(7) SC 135, State of Andhra Pradesh Vs.
3 All] Shitla Prasad Vs. Banwari & Ors
1419
T. Suryachandra Rao AIR 2005 SC 3110,
Ramesh Kumar and Anr. Vs. Furu Ram
and Anr. JT 2011 (9) SC 505.

16. First of all I would like to advert
to a basic question raised by Sri Goyal,
learned counsel for appellant, that the
material particulars needed to be pleaded
in a case founded on 'fraud' are lacking in
the plaint, and, therefore, LAC was not
justified in decreeing the suit by holding
sale-deed in question, illegal in respect of
the disputed land to the extent of area of
22 dismal.

17. The term "fraud" has been
defined in Section 17 of Indian Contract
Act, 1872 (hereinafter referred to as "Act,
1872") as under:

"17. Fraud" defined.- "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 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.

Explanation - Mere silence as to facts
likely to affect the willingness of a person
to enter into a contract is not fraud, unless
the circumstances of the case are such
that, regard being had to them, it is the
duty of the person keeping silence to
speak, or unless his silence is, in itself,
equivalent to speech."

18. In Derry Vs. Peek-(1986-90) All
E.R. Reporter 1, what constitute fraud
was described as under:

"Fraud is proved when it is shown
that the a representation has been made (i)
knowingly, or (ii) without belief in its
truth, or (iii) recklessly, careless whether
it be true or false".

19. It is stated when a document has
been forged, it amounts to a fraud. In
Webster's
Comprehensive
Dictionary,
International Edn., ''forgery' is defined as:

"The act of falsely making or
materially altering, with intent to defraud;
any writing which, if genuine, might be of
legal efficacy or the foundation of a legal
liability."

20. Thus forgery is false making of
any written document for the purpose of
fraud or deceit. Its definition has been
quoted with approval in Indian Bank Vs.
Satyam Fibres (India) Pvt Ltd. (1996) 5
SCC 550 (Paras 26 and 27). The Apex
Court in para 28 has said that fraud is an
essential ingredient of forgery. It further
held:

"since fraud affects the solemnity,
regularity
and
orderliness
of
the
proceedings of the court and also amounts
to an abuse of the process of court, the
courts have been held to have inherent
power to set aside an order obtained by
fraud practiced upon that court. Similarly,
where the court is misled by a party or the
court itself commits a mistake which
1420 INDIAN LAW REPORTS ALLAHABAD SERIES
prejudices a part, the court has the
inherent power to recall its order."

21. In the action in law making out a
case of fraud, special provisions have
been made, taking care that a person who
suffers fraud played upon him, if not
provided special benefits in the matter of
limitation etc, is bound to suffer for the
reason that an allegation of fraud can
come only when it becomes known to the
person who suffers such fraud. I find that
not only in the Act, 1872, separate
provisions are there to deal with the issues
pertaining to fraud, but in the Code of
Civil Procedure (hereinafter referred to as
"CPC") and also the Limitation Act, 1963
(hereinafter referred to as "Act, 1963")
sufficient provisions have been made as to
how one shall plead a case founded on
fraud.
Extension
in
the
matter
of
limitation in such cases is also provided
under Act, 1963.

22. Order 6 deals with pleadings in
general. Rule 2 thereof requires that the
pleading shall contain statement in concise
form of the material fact on which the party,
pleading fraud, relies for his claim. It need
not to plead evidence by which the material
facts needed to be pleaded are to be proved.
Then in respect of cases involving grounds of
fraud or misrepresentation, there is a specific
provision, i.e. order 6 Rule 4, which reads as
under:

"4. Particulars to be given where
necessary.- 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 date and items if necessary)
shall be stated in the pleading."

23. Sri Goyal contended that the
requirement of Rule 4 is that the plaintiff
must have pleaded, how, on which date,
when and who was instrumental and did
commit fraud and the modus operandi
thereof. He said, since all these pleadings
are absent, therefore here is a case where
there was no material pleading with
respect to the facts constituting the
allegation of fraud.

24. Considering Order 6 Rule 4 CPC
in Sangramsing P. Gaekwad and others
Vs. Shantadevi P. Gaekwad and others
(2005) 11 SCC 314, the Court said that
the plaintiff is bound to give particulars of
the
case
where
he
relies
on
misrepresentation, fraud, breach of trust
etc. The particulars of alleged fraud,
which are required to be stated in the
plaint, will depend upon the facts of each
particular case and there cannot be a
thumb rule.

25. In Ramesh B. Desai and others
Vs. Bipin Vadilal Mehta and others 2006
(5) SCC 638, the Court in reference to
Order 6 Rule 4 said that complete
particulars of fraud shall be stated in the
pleadings. The particulars of alleged
fraud, which are required to be stated in
the plaint, will depend upon the facts of
each particular case and no abstract
principle can be laid down in this regard.

26. In Ranganayakamma and
another Vs. K.S. Pakash AIR 2009 SC
(Supp) 1218, the execution of power of
attorney was sought to be assailed on the
ground that it was prepared fraudulently.
It was pleaded that defendants therein
used to take signatures of plaintiffs on the
misrepresentation that the same were
required for payment of tax and managing
properties. Due to faith, the plaintiffs had
3 All] Shitla Prasad Vs. Banwari & Ors
1421
in their brothers, they used to sign. The
power of attorney was executed by
playing a fraud and taking advantage of
innocence and ignorance of the sisters. It
was executed in the Office of an
Advocate and on the basis of said
fraudulent misrepresentation, defendants
got
a
deed
of
partition
executed
subsequently. Considering the nature of
allegations, Court found that the plea of
fraud was general in nature and vague. It
was alleged that signatures were obtained
on several papers on one pretext or other
and they have signed in good faith
believing the representations made by
respondents, which, in fact was a
fraudulent representation. However, when
such representations were made, what was
the nature of representation, who made
the representations and what type of
representations were made are some of
the material fact which were not stated.
Similarly the document were signed either
in the office of Advocate or before the
Sub-Registrar, i.e., at public place and
signatures were not obtained on blank
papers. That being so, the onus was upon
the plaintiffs to show, who had taken
advantage and at what point of time, but
all these facts were not pleaded. The
Court found statement of plaintiffs
farfetched and beyond ordinary human
conduct. It is in these facts, Court said
that in absence of any particulars, having
been furnished with respect to fraud and
misrepresentation,
the
documents
in
question would not be void.

27. In Bishundeo Narain and another
Vs. Seogeni Rai and others AIR 1951 SC
280, the Court said that in case of fraud,
undue influence and coercion, the party's
pleadings must set forth full particulars.
The case can only be decided on the
particulars as laid. There can be no
departure from them in evidence. General
allegations are insufficient even if amount
to an averment of fraud of which any
Court ought not to take notice howsoever
strong the language in which they are
couched may be.

28. In Ramesh B. Desai (supra), the
kind of pleadings for the purpose of order
6 Rule 4 has been highlighted and it
would be useful to quote para 19 thereof
as under:

"19. Undoubtedly, Order VI Rule 4
CPC requires that complete particulars of
fraud shall be stated in the pleadings. The
particulars of alleged fraud, which are
required to be stated in the plaint, will
depend upon the facts of each particular
case and no abstract principle can be laid
down
in
this
regard.
Where
some
transaction of money takes place to which
'A', 'B' and 'C' are parties and payment is
made by cheques, in normal circumstances
a third party 'X' may not get knowledge of
the said transaction unless he is informed
about it by someone who has knowledge of
the transaction or he gets an opportunity to
see the accounts of the concerned parties in
the Bank. In such a case an assertion by 'X'
that he got no knowledge of the transaction
when it took place and that he came to
know about it subsequently through some
proceedings in court cannot be said to be
insufficient pleading for the purpose of
Order VI Rule 4 CPC. In such a case 'X' can
only plead that he got no knowledge of the
transaction and nothing more. Having
regard to the circumstances of the case, we
are of the opinion that the High Court was
in error in holding that there was no proper
pleading of fraud."

29. In the background of the above
exposition of law, I would now look into
plaint's averments to find out whether
appropriate pleadings with regard to
1422 INDIAN LAW REPORTS ALLAHABAD SERIES
question of fraud have been made by the
plaintiff or not. To my mind, the
pleadings from para 5 to 17 contain facts
alleging fraud in execution of sale deed
making it for entire 24 dismal of the land
instead of 2 dismal and the same read as
under:

"5- ;g fd eqn~nbZ;ku ds Hkw[k.M la[;k 705 ds
iwjch fdukjs ds mRrj tkfuc lM+d dh iVjh ls yxs
eqn~nkysg dh futh nqdku gS] vkSj mls jgkb'k dh
osgn fdYyr Fkh blfy, mlus vius ihNs fLFkr
eqn~nbZ;ku dh -02 fM0 tehu dks vkt ls 3&4 lky
igys jgkb'k ds fy, 24]000@& ewY; r; djds
ekaxk vkSj eqn~nbZ;ku ls vuqu; fou; djds ml ij
dCtk dj dksBjh cukdj vkckn gks x;k rFkk xjhch
dh ckr dgdj cSukek rgjhj djkus gsrq vkilh
O;ogkj o rkYyqd ds vk/kkj ij le; ysrk x;kA

6- ;g fd fdlh rjg fiNys o"kZ vxLr ekg
;kuh vxLr 1995 esa eqn~nbZ;ku ls eqn~nkysg cSukek
rgjhj djus dh ckr dgk vkSj ijeh'ku gsrq dqN
dkxtkr ij eqn~nbZ dk glrk{kj Hkh djk;kA

7- ;g fd 23 vxLr lu~ 95 dks eqn~nkysg
eqn~nbZ;ku ls cSukek rgjhj djkus gsrq mls dpgjh
ys x;k rFkk vius vf/koDrk o igys ls cqyk, x,
dqN vknfe;ksa dh jk; ls LVSEi vkfn [kjhndj
elfonk cuok;k rFkk ml ij eqn~nbZ;ku ds gLrk{kj
o vius xokgku ds gLrk{kj djkus ds okn jftLV~h
nQ~rj esa izLrqr fd;k rFkk dgk fd iSlk 24000@&
ge yk, gSa ;gka ysdj vki dSls lHkkaysaxs jftLV~kj
lkgc ds le{k iSlk feyuk dcwy dj yhft,xk vkSj
iSlk ?kj ij xkSjk dyka cktkj esa ys yhft,xkA pwafd
nks lky igys gh eqn~nbZ ds nkfgus vax esa Qkfyt
dk vlj gks pqdk Fkk vkSj og nkfgus gkFk ls fy[kuk
;k vU; dksbZ dk;Z Hkh ugha dj ldrk Fkk blfy,
vkSj vius lkFk vU; dksbZ ?kj dk u gksus dh otg
ls eqn~nkysg dh ckr ij ;dhu djds jftLV~kj ds
le{k -02 fM0 tehu 24]000@& esa cspuk o iSlk ik
tkuk ccwy dj fy;k] vkSj jftLV~h dj fy;k x;kA
ysfdu ckn esa ckotwn rdknk eqn~nkysg us vkt rd
,d Hkh iSlk tj oSukek dk ugha fn;k Vky eVksy
djrk pyk vk;kA

8- ;g fd cSukek fnukad 23-8-95 ds ckn -02
fM0 tehu ij igys ls dkfct eqn~nkysg us iwjh -02
nks fM0 tehu dks bZV dh dPph okm.Mjh ls ?ksj
fy;k vkSj eqn~nbZ us iwjc ls -02 nks fM0 tehu
eqn~nkysg dks nsdj lhek ij viuh Hkh okm.Mjh
v{kj ;] j uD'kk eqUlfydk vthZukfy'k ds LFkku ij
cuk fy;k rFkk 'ks"k -22 fM0 jdos o rkehj ij
eqn~nbZ;ku dk rugk osjksd Vksd dCtk ekfydkuk
iwoZor pyk vk jgk gSA

8v- ;g fd nkSjku eqdnek oknh ouokjh iq=
lq[knso fnukad 16-12-1998 bZ0 dks ekSr dj x;s gSaA
e`rd cuokjh ds mRrjkf/kdkjh izkFkhZx.k nsojkt o
jk/ks';ke iq=x.k Lo0 cuokjh o pUnzkorh nsoh mQZ
pujk nsoh iRuh Lo0 cuokjh gSa vU; dksbZ ifjokj
l[t mRrjkf/kdkjh ugha gSA

9- ;g fd ;dk;d fnukad 18-3-96 bZ0 dks
eqn~nkysg us jkr dks eqn~nbZ;ku dh pgkj nhokjh ;]
j rksM+ fn;k mlds bZV dks [kqn vius lgu esa j[k
fy;k vkSj lqcg iwNus ij dgus yxk fd dSlh
nhoky dSlh okm.Mjh iwjh tehu esjh gS] vkSj eSus
iwjs jdos & 24 fM0 dk oSukek djk fy;k gs] Hkkx
tkvksa ugha rks gkFk ikao rksM+ nsxsaA ;g lqudj eqn~nbZ
ds iSjks ds uhps dh tehu gh f[kld xbZ vksj mls
?kksj vk'p;Z gqvkA

10- ;g fd mlh fnu eqn~nbZ vius cM+s csVs ds
lkFk dpgjh vk;k rFkk jftLV~h nQ~rj esa cSukes dk
Jh t;Ur dq'kokgk ,MoksdsV ds tfj;s irk yxk;k
rks vkSj Hkh vk'p;Z gqvk rFkk eqn~nkysg ds okLrfod
Qjsc o tky lkth dk irk pyk fd mlus jftLV~h
nQ~rj esa ckcqvksa dks feykdj vFkok mUgsa Hkh /kks[kk
nsdj 02 fM0 okys nLrkost ds i`"B fudky dj
mlds LFkku ij nwljk i`"B vly o QksVks LVsV yxk
fn;k gs] ysfdu vkuu Qkuu esa eqn~nkysg jftLV~h
gsrq izLrqr gksus okys vkosnu ,oa ,d izLrqr 'ki'k
i= esa gsjk Qsjh djuk Hkwy x;k ftlesa fodz;
lEifRr -02 fM0 gh vafdr gSA

11- ;g fd eqn~nbZ;ku us fnukad 20-3-96 bZ0
dks QthZ cSukesa dh lR; izfrfyfi gsrq vkosnu fd;k
rFkk ckn esa vkosnu izLrqr dj lacaf/kr izkFkZuk i= o
'kiFk i= lhy djk fn;k rkfd mls eqn~nkysg u"V
u dj lds vFkok dkV ihV u ldsA

12- ;g fd lacaf/kr lc jftLV~kj Jh iVsy us
Hkh eqn~nbZ;ku ,oa mlds vf/koDrk ls lacaf/kr
tkylkth ,oa Qjsc ij ?kksj vk'p;Z O;Dr fd;k
rFkk dkxtkr lhy djds lqjf{kr ykd esa j[k
fn;kA

13- ;g fd okLro esa eqn~nbZ;ku us ek= -02
fM0 tehu dh okor gh nLrkost rgjhj fd;k Fkk
vkSj jftLV~kj lkgc us Hkh -02 nks fM0 tehu ds
fodz; o 24]000@& ewY; dh ckr eqn~nbZ ls iwNk Fkk
ysfdu eqn~nkysg us jftLV~h gks tkus ds ckn esa
nLrkost ,oa mlds QksVks LVsV ist tks fd mlus
eqn~nbZ ds yxHkx nks lkS gLrk{kj djkrs le; djk
fy;k gksxk] dks -24 fM0 dh okor yxk fn;k vkSj
okLrfod -02 okys ist dks fudky fy;kA
3 All] Shitla Prasad Vs. Banwari & Ors
1423

14- ;g fd eqn~nbZ }kjk rgjhj fd;k x;k -02
fM0 dh okor cSukek ;|fi fd vkfLrRo esa ugha jg
x;k gS] fQj Hkh ;fn cjk; vnkyr -02 fM0 dh
okor cSukek ekuk Hkh tk; rks Hkh 'ks"k jdos -22 fM0
dh okor eqn~nbZ;ku dk gd nkok egQwt gSA

15- ;g fd cSukek rgjhj ds le; ijfe'ku
izkIr u gksus dh otg ls nLrkost LFkfxr j[kk x;k
Fkk blfy, Hkh eqn~nkysg dks tky lkth vkSj Qjsc
djus dk t;knk volj feykA

16- ;g fd eqn~nbZ ,d vui<+] o`)] chekj o
lh/kk lknk O;fDr gS] blfy, mlus eqn~nkysg ij
fo'okl djds mlds }kjk rgjhj o ek= -02 fM0 dh
okor cSukek i<+dj lqukus ds dkj.k mlus eqn~nkysg
}kjk rS;kj yxHkx 200 i`"Bksa ij viuk gLrk{kj cuk
fn;k FkkA

17- ;g fd eqn~nkysg eqn~nbZ;ku dk iM+kslh gS
rFkk mlds vfr fo'okl fnykus ds dkj.k eqn~nbZ;ku
ml ij fo'okl fd;k ysfdu eqn~nkysg us /kks[kk o
Qjsc fd;kA^^

English translation by the Court:

"5. That the defendant has a shop of
his own along the roadside to the north of
eastern corner of the plaintiffs' plot no.
705. Since he had utter scarcity of
residence 3-4 years back, for residential
purposes
he
demanded
plaintiffs'.02
Dismal land situated at the back of his
own land at the settled rate of Rs. 24,000;
and after making entities to the plaintiffs,
he settled there by taking possession
thereof and raising a 'Kothri' thereon; and
on the pretext of his poverty continued to
take buy for execution of sale deed on the
basis of mutual terms ad relations.

6. That in the month of August last
year i.e. August 1995 the Defendant
somehow spoke to the Plaintiffs for
execution of the sale-deed and also
obtained signature of the Plaintiff on
some papers for securing permission.

7. That on 23rd August 1995,
Defendant took the Plaintiffs to court
premises to get the sale-deed executed by
them and he, at the instance of his counsel
and some other people, already called
there,
got
a
draft
prepared
after
purchasing Stamps etc and obtained
plaintiffs' signatures and that of the
witnesses from his side on it and
submitted the same to the Registry Office
and said, "We have come with Rs.
24,000/- with us. How will you handle the
money if it is paid here in the office? You
please admit receipt of money before the
Registrar and collect money from us at
home in Gaura Kalan Bazaar. Since the
Plaintiff had suffered paralysis of the right
side, two years ago and was unable to
write or even do any other work with his
right hand, hence for the said reason and
also due to not being accompanied by any
person from his home, he by trusting the
version of the Defendant admitted to have
sold .02 D. land for a consideration of Rs.
24,000/- and to have received the said
amount before the Registrar; which led to
the registration. But later on, despite
requests the Defendant did not make any
payment so far towards the sale-deed and
has kept on making excuses.

8. That after the execution of the sale
deed dated 23.08.1995, the defendant,
being already in possession of the .02
land, bounded the whole of the said land
by erecting a brick boundary with the help
of mud mixture. After giving .02 Di land
from the east to the defendant, the
plaintiff erected his boundary marked as
'Ya' 'Ra' at the place shown in the
enclosed application and the plaintiffs
have as usual been enjoying the sole
unhindered ownership of the remaining
.22 D. area of the land and construction
thereon.

8A. That during pendency of the
case, the Plaintiff Banwari S/o Sukhdev
expired on 16.12.1998. The successors of
1424 INDIAN LAW REPORTS ALLAHABAD SERIES
the deceased Banwari are the applicants
Devraj and Radhey Shyam Sons of Late
Banwari; and Chanadrawati Devi alias
Chanra Devi W/o Late Banwari and that
no other family is his successor.

9. That all of a sudden on the night of
18.3.96, the Defendant demolished the
boundary-walls 'Ya' & 'R' of the Plaintiffs
and himself took its bricks away to his
courtyard and on being asked in the
morning, he started saying, "Which wall,
which boundary are you talking about?
The entire land is mine and I have got
sale-deed executed of the entire area 24
Di. Go off or else I will break your
limbs." On hearing this, the Plaintiff got
stunned and utterly surprised.

10. That on the same day the Plaintiff
alongwith his elder son came to district court
and he was further surprised when he
inquired about the sale-deed in the Registry
Office through Mr. Jayant Kushwaha,
Advocate and he came to know about actual
cheating, fraud & forgery committed by the
Defendant that he has, with the help of clerks
of Registry Office or by cheating even them,
removed the pages of 02 Di. document and
in its place annexed another page in original
with photocopy but the Defendant being in a
hurry forgot to tamper with the application
and affidavit that were submitted requesting
for Registry; and in both these documents
sale property .02 Di only is recorded.

11. That on 20.03.96, the Plaintiffs
had applied for certified copy of the
forged sale-deed and later they on an
application got the relevant application
and affidavit sealed so that the Defendant
may not destroy or alter them.

12. That the concerned Sub-Registrar
Mr. Patel also expressed utter surprise to
the Plaintiff and his counsel over the
fraud, cheating & forgery in question and
sealed the papers and put them safely
under the lock.

13. That actually the Plaintiff had
executed document only for .02 Di land
and even the Registrar had also asked the
Plaintiff about the sale of .02 Di land and
about Rs. 24,000/- only in consideration
thereof; but after execution of registry the
Defendant had placed a document and its
photostat page for 24 Di that he might
have got signed by the Plaintiff while
getting
around
200
signatures
and
removed the actual page for .02.

14. That the sale-deed for .02 Di
executed by the Plaintiff has not remained
to be in actual existence; however, if the
sale-deed for .02 Di is considered valid by
the court even then the claim of the
Plaintiffs for the remaining portion .22 Di
remains intact.

15. That at the time of execution of
the sale-deed, document was kept in
abeyance for lack of permission and for
this reason as well the Defendant got
ample opportunity to commit cheating,
fraud and forgery.

16. That the Plaintiff is an illiterate,
aged, sick and innocent person. Hence, he
placed trust on the Defendant and put his
signatures on around 200 pages prepared by
the Defendant when the sale-deed only for
.02 Di. was prepared by him and the
contents thereof were read over to the
Plaintiff.

17. That the Defendant is the neighbour
of the Plaintiffs; and on his assurances the
Plaintiffs placed trust on him. However, he
committed cheating & fraud."
3 All] Shitla Prasad Vs. Banwari & Ors
1425

30. Thus, the case set up by plaintiff is
that the document actually executed was for
2 dismal but subsequent manipulation in the
record has changed it to 24 dismal. The
modus operandi of above change obviously
cannot be expected to be known to plaintiff
and therefore, whatever fact he was expected
to know or he could have known, are pleaded
and rest are to be seen by this Court. It is for
this reason and as pleaded also, the record of
office
of
Sub-Registrar
and
Ceiling
Authorities was summoned and sealed. The
case set up by plaintiff is that as per his
knowledge and understanding, the sale-deed
was executed for transfer of 2 dismal of the
land in dispute, to the defendant-appellant,
but later on, he came to know that the saledeed actually registered mentions 24 dismal.
How it happened, is not very sure but it
appears that some manipulation has been
done in collusion with registry officials.
These facts, considering the kind of fraud
pleaded in this case, in my view, would
constitute sufficient material facts so as to
make a case of fraud and it cannot be said
that the material facts are not pleaded. The
arguments, advanced otherwise, by Sri
Goyal, consequently, are negatived. The
question no. 2 is returned in favour of the
plaintiff-respondents by holding that though
it cannot be doubted that a plaint must
disclose requisite facts for making a case of
fraud but, in the present case, those facts
have
been
pleaded
and
hence
the
requirement of Order 6 Rule 4 is well
satisfied. On that account the plaintiff cannot
be non-suited.

31. Now I straightway come to
question no. 1, which is real and
substantial issue in this case. This Court
would like to first discuss the evidence,
available on record.

32. PW-2 and 4 have admitted that
they are in possession of shops as tenants
and the plaintiff is the landlord. The
Commissioner's report (Paper No. 14C
and 15C) prove existence of ten shops, let
out to various persons, except one, which
is in possession of the plaintiff. Advocate
Commissioner has recorded that during
his inspection, all the shop keepers/
tenants stated that those shops were
constructed by plaintiff and that they are
tenants of plaintiff.

33. The sale-deed in question was
executed on 23.8.1995 and registered on
6.10.1995. Suit in question has been
instituted vide plaint dated 9.4.1996. The
earliest Commissioner report and site map
are dated 16.4.1996 and 12.4.1996. The
Commissioner's report was accepted by the
Trial Court and became part of evidence
pursuant to Trial Court's order dated
3.2.2003.

34. The sale-deed in question is a
registered document. In order to prove
forgery therein, sale deed itself along with
record of Registry office as also Ceiling
Authorities were summoned. The same
has also been looked into at this stage so
as to find out whether it can be inferred
therefrom that the sale-deed in question
was actually for two dismal or 24 dismal.

35. Plaintiff filed an affidavit before
Sub-Registrar, Varanasi dated 23.8.1995
and in para 2 thereof has stated that he is
Bhumidhar and owner of Arazi No. 705
(Old No.299/2) area 2 situated at Gaura
Kalan,
Pergana
Jalhupur,
District
Varanasi. The aforesaid land was is
agricultural and registered as such in the
revenue record. Aforesaid land sought to
be sold to Shitla Prasad son of Lakhan
Sav, who would perform agricultural
work therein. An application seeking
permission
from
the
Competent
1426 INDIAN LAW REPORTS ALLAHABAD SERIES
Authority, Urban Land Ceiling, Varanasi
was also submitted but no permission was
received and it was said that as soon as
permission is received, the same shall be
submitted to the office of Sub-Registrar
for transferring the land.

36. The competent authority's letter no.
4484 dated 28.8.1995 is also available for
perusal which mentions details of entire
property i.e. land no. 705 area 24 dismal. It
does not throw any light on the question,
whether transfer was contemplated or
permission was granted for 2 dismal or 24
dismal. At the bottom, separately words "2
dismal/5.10.95" are mentioned but it does not
appear to have been made by the competent
authority for the reason that the date on
which the competent authority signed the
aforesaid document is 26.8.1995 and it was
issued on 28.8.1995, therefore mention of
above words on 5.10.1995 did not explain
any reason and it is also not clear as to who
has done it.

37. Now straightway I come to the
original sale-deed. It has been written on
91
stamp
papers
of
following
denominations:

Value of Stamp Paper Number of Papers

Rs.5000/- 1

Rs.50/- 89

Rs.5/- 1

38. All the stamp papers have been
purchased by appellant Shitla Prasad in his
name. The stamp paper worth Rs. 5000/- has
been issued from Treasury itself on 22.8.1995.
Rest of Stamp Papers have been purchased
through Ram Gopal Stamp Vikreta, Diwani
Nyayalaya, Varanasi. It is interesting to note
that the stamp papers which form part of saledeed from pages no. 2 to 85 bear sl. No. 4692
to 4775 and the date of purchase mentioned
twice, one against the name of purchaser i.e.
Shitala Prasad and another under the signature
of Stamp Vender and everywhere it is
mentioned as 22.8.1995. Then the stamp
papers which form part of the sale deed at
pages 86, 87, 88 and 89 are from different lot
bearing similar number 3495, 3494, 3493 and
3492. The date of purchase mentioned is
19.8.1995. The stamp vender is the same.
Then again the stamp paper forming part of
the sale deed at page no. 90 went back to
original series of 22.8.1995 bearing Sl. No.
4776 which is in continuation of the stamp at
page 85 of sale deed.