HIGH COURT OF MADHYA PRADESH
Click here to view full judgement.
(1.) Defendant No 2 in the suit from which this appeal arises is the appellant before this Court. The plaintiffs sued for the possession of the suit properties on the basis of their title. Their case was that defendant No 1 dagaduba, who was the owner of the suit properties sold the same to the plaintiffs on January 12, 1952 ; but some of the defendants had trespassed on those properties and hence they were constrained to file the. suit. The suit was filed on February 14, 1953.
(2.) The first defendant in his written statement pleaded that the suit properties originally belonged to his family ; there was a division in the family between himself and his brother, the second defendant; in that division the suit properties fell to his share; thereafter he became the,absolute owner of the same and he mortgaged the same to the plaintiffs. But later he changed that version and admitted that he sold, the suit properties to the plaintiffs. The second defendant admitted that the suit properties originally belonged to his family He also admitted that there was a partition in his family but his case was that as a result of that partition, the suit,properties fell to his share and that he was in possession of the same. He denied that, his brother had any right to alienate the suit properties or in fact he had alienated the same.
The two primary questions that arose for decision before the trial court were (1) whether in the partition in the family of defendants 1 and 2, the suit properties fell to the share of the first defendant or the second defendant and (2) whether the first defendant had sold the suit properties to the plaintiffs. The trial Court decided both these questions in favour of the plaintiffs and decreed the plaintiffs' suit. In appeal the learned District Judge held that the suit properties belonged to the joint family of defendants 1 and 2 and that it had never been partitioned. He further came to the conclusion that the sale put for word by the plaintiffs has not been established. The High Court reversed the decree of the first appellate Court and restore] that of the trial Court. Thereafter this appeal has been brought after obtaining special leave.
As seen earlier both the first defendant as well as the second defendant had pleaded that there was a partition in the family. Therefore, the only question that fell for decision was whether the suit properties fell to the share of the first defendant or the second defendant. There was no basis in the pleadings for the finding of the learned District Judge that the suit properties were the joint family properties of the first and the second defendants. This was entirely a new case made out by the District Judge. The pleadings in the case did not permit the learned District Judge to come to such a conclusion. Hence in our opinion the High Court was justified in reversing that finding of the first appellate Court. An attempt was made before us to justify the finding of the first appellate Court that the suit properties were joint family properties of defendants I and 2 by referring to the evidence in the case. We are not satisfied that there is any evidence to support that case. Further a case not pleaded cannot be made out by evidence.
(3.) Now coming to the question whether the suit properties fell to the share of the first defendant or the second defendant, it was pleaded in the plaint that the second defendant had specifically admitted in a document executed by him on January 12, 1952 that the suit properties were of the exclusive ownership of his brother and that he had no right to the same. In his written statement, the second defendant had pleaded that the deed in question is a forgery and that he had not executed it. The trial Court came to the conclusion that the said deed was executed by the second defendant. The first appellate court also did not accept the contention of the second defendant that he did not execute that dead. On the other hand, the first appellate court held that the same was obtained in misrepresentation. No plea of misrepresentation was taken in the written statement No issue as to whether the said deed was obtained by misrepresentation was raised. Therefore it was not open to the first appellate Court to consider whether the deed in question was invalid on the ground that it was obtained by misrepresentation. The only plea put forward by the second defendant was that the deed was a forgery. Both the trial court as well as the first appellate Court have rejected that plea. Mr. Sanghi, the learned Counsel for the appellant contended that when the execution of a document is denied, the party seeking to prove that document must not only prove that the alleged executant has signed that deed, but he must also prove that the executant had signed the same with the knowledge of its contents. What facts and circumstances have to be established to prove the execution of a document depend on the pleas put forward. If the only plea taken is that the executant has not signed the document and that the document is a forgery, party seeking to prove the execution of a document need not adduce evidence to show that the party who signed the document knew the contents of the document. Ordinarily no one is expected to sign a document without knowing its contents but if it is pleaded that the party who signed the document did not know the contents of the document then it may in certain circumstances be necessary for the party seeking to prove the document to place material before the Court to satisfy it that the party who signed the document had the knowledge of its contents.
Now we come to the question whether the sale deed put forward by the plaintiffs is true and genuine. As mentioned earlier, the first defendant, the alleged executant of the document has admitted its execution. It is said that the sale deed was a registered sale deed. The plaintiffs' case is that they produced that sale deed in a civil Court in a suit filed by them but the civil court's records were burnt during the police action in Hyderabad. Their further case is that most of the records of the registration office in which the sale deed was registered were also burnt at that time and one of the books that were burnt was that in which the sale deed in question was copied. In support of that case he examined his lawyer who produced the sale deed into civil court on his behalf. His evidence has been accepted both by the trial Court as well as by the first appellate Court. In order to prove the destruction of the book maintained in the registration office, wherein copies of the registered deeds were maintained, the plaintiffs examined P. W. 7, Syed Ahmedulla to support that case. He was the Kabala Navis of the registration office in which the sale deed executed by the first defendant in favour of the plaintiff is said to have been registered. The said sale deed is said to have been executed in the year 1335 F. He deposed that the Bahi of 1335 F. had been destroyed in the police action. That evidence of his was not challenged in cross-examination. On the other hand in his cross-examination, it was brought out that many other bahis pertaining to the other sale deeds were also destroyed.;
Copyright © Regent Computronics Pvt.Ltd.