Sibghat Ullah Khan, J. - (1.) This Second appeal was initially allowed by me on2.11.2011 without hearing anyone on behalf of respondent as no one had appeared on their behalf.Thereafter, rehearing application was filed which was allowed on 28.2.2012 and argument on merit were also heard on the said date and judgment was reserved. Few paragraphs of my judgment dated 2.11.2011 are quoted below: This appeal was admitted on 18.4.1994 without framing substantial question of law.The appeal is proposed to be heard on the following substantial questions of law: 1. Whether, civil court has got jurisdiction to hear and decide the suit filed by the plaintiff respondent? 2. Whether the registered sale deed could beheld to have not been executed by the executant shown therein on the ground mentioned by the lower appellate court? This is defendant's second appeal arising out of Original suit no.208 of 1982 filed by the plaintiff-respondent for cancellation of registered sale deed dated 10.2.1982. Munsif,Jaunpur through judgment and decree dated 10.5.1991 dismissed the suit. Against the said judgment and decree plaintiff-respondent filed civil appeal no. 74 of 1991 which was allowed by Civil Judge, Jaunpur through judgment and decree dated 28.2.1994 hence this second appeal. The sale deed in question was executed by Shri Ram and his wife Sursatti. The suit was instituted by both the executants. After the death of both the plaintiffs, Smt. Champa Devi,respondent in this appeal was substituted as plaintiff who is daughter of Shri Ram and Sursatti. She also claimed that her parents had executed a Will deed on 26.4.1980 in her favour. Ram Lakhan, husband of defendant appellant, was real brother of Shri Ram. There a in which agricultural land in dispute was situate. Shri Ram was also suffering from leprosy. The case of the plaintiffs was that Shri Ram was told that for grant of financial aid of Rs. 100/- for his treatment he would be required to sign certain documents. The case of the defendant-appellant was that due to his long illness Shri Ram was inconstant need of money and had borrowed money from her (or her husband) at intervals hence sale deed was executed by him and his wife in lieu of the debt. Suit was filed within two months of execution of the sale deed. Original plaintiffs denied within a month of filing of the suit without examining themselves. Sale deed of 1.12 acre agricultural land was executed for Rs. 20,000/-. Plaintiffs did not question the signatures of Shri Ram and Sursatti on the sale deed. Their case was that the sale deed was obtained through fraud and misrepresentation. In the sale deed it was shown that Rs. 19,900/- had already been paid and only Rs. 100/- were paid before the Sub-Registrar. Lower appellate court mentioned that Ram Lakhan, husband of the defendant-appellant stated that the amount of Rs. 19,900/- was paid 20 years before(statement was given on 23.4.1991). Ram Lakhan refused to recognise Champa Devi. On this basis Lower appellate court held that he was a liar. Lower appellate court also held that in case in or around 1972 loan had been take,there was no need to execute Will deed in favour of their daughter by Shri Ram and Sursatti on 26.4.1980. Lower appellate court also held that on the date of execution of Sale deed both Shri Ram and Sursatti were ill. The Lower appellate court has held that the sale deed was executed without any consideration and on the basis of fraud on the following grounds: 1. The executant Shri Ram and Sursatti died immediately after filing of the suit hence they could not give evidence. 2. Husband of defendant-appellant stated that the amount had been paid by him more than ten years before the execution of the sale deed. 3. Ram Lakhan refused to recognise Champa Devi. 4. Shri Ram and Sursatti were suffering from different ailments including leprosy.
(2.) As far as first substantial question of law is concerned it is decided against the appellant as in view of Full Bench authority of this Court reported in Ram Padarath v. Additional District Judge 1989 A.W.C.290 (F.B.) suit was perfectly maintainable before civil court.
(3.) Learned counsel for the appellant has cited two authorities one of the Privy Council and other of the Supreme Court. The Privy Council authority reported in Narayanan v. Official Assignee, Rangoon AIR 1941 Privy Council 93 has held as follows: Fraud like any other charge of a criminal offence whether made in civil or criminal proceedings must be established beyond reasonable doubt. A finding as to fraud cannot be based on suspicion and conjecture. ;