TMI Blog2016 (11) TMI 1753X X X X Extracts X X X X X X X X Extracts X X X X ..... ntly a mere 'right to sue' and not any interest in the disputed land - the question is answered against defendant-respondents and in favour of appellants. Whether Sale-deed dated 8.2.1994 is a forged and fictitious document, as claimed by plaintiff-appellants or Court below has rightly held it a genuine document? - HELD THAT:- When a document is registered in the office of Sub-Registrar, thumb impressions and signatures are obtained by Sub-Registrar on its own Register also. Defendant-respondents made no effort to get appropriate record summoned from the office of Sub-Registrar, particularly when document was challenged forged and fictitious, obtained by impersonation. It was also not signed by one of two witnesses as well as author - Court below has erred in law, firstly by stretching burden of proof of the factum of fraud and misrepresentation of aforesaid document on plaintiff-appellants on the ground that no witnesses of document were examined as plaintiffs' witnesses. plaintiff-appellants when challenged document as a forged and fictitious one, they never admitted that any person was accepted by them as a witness to such document. Hence, question of producing such ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation dated 18.12.1991 under Section 6/17 of Act 1894 was published in U.P. Gazette dated 11.1.1992. Pursuant thereto, possession of disputed land was taken by Collector on 30.3.1992. While determination of compensation was pending before Special Land Acquisition Officer/Additional District Magistrate (Land Acquisition, Noida, Ghaziabad) (hereinafter referred to as SLAO ), defendant-respondents claimed to have purchased right of compensation in respect of disputed land vide Sale-deed dated 8.2.1994 for a consideration of Rs. 60,000/-. SLAO, vide award dated 13.11.1995, determined compensation at the rate of Rs. 63.26 per square yard besides 30% solatium, 12% additional compensation and interest as per provisions of Act 1894. The plaintiff-appellants and defendant-respondents both claimed compensation of disputed land. defendant-respondents filed an application dated 25.3.1994 (Ext. A-4), claiming their right for compensation subject to objection for enhancement of market value, relying on Sale-deed dated 8.2.1994, plaintiff-appellants instituted Original Suit No. 47 of 1996 seeking declaration of Sale-deed dated 8.2.1994 as void and illegal, contending that they have not executed a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iff- appellants to defendant-respondents on 8.2.1994, hence sale-deed in question is void ab initio, in view of Section 6(e) of Transfer of Property Act, 1882 (hereinafter referred to as 'Act, 1882). He further contended that 80% of estimated compensation was already received by plaintiff-appellants and that being so, there was virtually nothing remained so as to claim right of compensation that could have transferred by means of alleged Sale-deed dated 8.2.1994. He also contended that evidence adduced, patently showed that alleged sale-deed was forged and fictitious, yet court below has erred in law in holding sale-deed as a genuine document and thereupon decreeing the suit. 7. Sri Ravi Kant, learned Senior Counsel assisted by Sri Paras Nath Singh, counsel for respondents, per contra, argued that sale-deed in question, in fact, transfers right to claim compensation which is a right to property, and therefore, it cannot be said that sale-deed is nullity in the eyes of law. He further contended that there was no relief in Original Suit praying for cancellation of sale-deed and that being so, plaintiff-appellants could not have sought relief for ignoring aforesaid Sale-deed dated ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... filed an application on 25.03.1994 before A.D.M. (L.A.), claiming compensation and therein appellants filed their no objection letter and only thereafter A.D.M. (L.A.) passed order on 06.06.1994 for payment of compensation to defendant-respondents. Admittedly, defendant-respondents claimed compensation, founded on sale deed dated 08.02.1994 which was registered on 17.02.1994 in the office of Sub-registrar, Noida. plaintiff-appellants however have disputed the very execution of said sale deed and claimed that same is forged and fictitious and has been got prepared by impersonation and misrepresentation. 11. Since land in dispute vested in State of U.P. when possession was taken by Collector under Section 17 of Act, 1894, the first question which we have to examine is, whether sale deed dated 08.02.1994 can be said to be a document executable so as to have effect of transfer of property to the defendant-respondents. The term transfer of property had been defined under Section 5 of Act 1882 and reads as under:- 5. Transfer of property defined.- In the following sections transfer of property means an act by which a living person conveys property, in present or in future, to one or more ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssibility of a like nature, cannot be transferred. (b) A mere right of re-entry for breach of a condition subsequent cannot be transferred to anyone except the owner of the property affected thereby. (c) An easement cannot be transferred apart from the dominant heritage. (d) An interest in property restricted in its enjoyment to the owner personally cannot be transferred by him. (dd) A right to future maintenance, in whatsoever manner arising, secured or determined, cannot be transferred. (e) A mere right to sue cannot be transferred. (f) A public office cannot be transferred, nor can the salary of a public officer, whether before or after it has become payable. (g) Stipends allowed to military, naval, air-force and civil pensioners of the Government and political pensions cannot be transferred. (h) No transfer can be made (1) in so far as it is opposed to the nature of the interest affected thereby, or (2) for an unlawful object or consideration within the meaning of section 23 of the Indian Contract Act, 1872 (9 of 1872), or (3) to a person legally disqualified to be transferee. (emphasis added) 16. For the case in hand we are concerned with Section 6(e) which says a mere right t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the purchasers or only right to receive compensation was transferred. This document is Paper No. 5A (Ex. A3). At the very initial part of the document, it says the first party is absolute owner of Gata No. 3, Area 5 Bigha 10 Bishwa 10 Biswansi, situated at Village Yakubpur, District Ghaziabad. This statement in the sale deed dated 08.02.1994 is patently incorrect or false in as much as aforesaid land had already vested in State of U.P. on 30.03.1992 when Collector took possession thereof, pursuant to acquisition notifications and State of U.P. got title thereof vested in it without any encumbrance. Subsequently, Ex. A3 also mentions about two notifications dated 18.06.1991 and 18.12.1991 issued under Sections 4 and 6 of Act, 1982 and also the factum that possession thereof has been taken by Collector on 30.03.1992. It also says that in Revenue record, mutation has already taken place and name of New Okla Industrial Development Authority has been entered as owner of the disputed property. Having said so, it further says that first party i.e. vendors, have obtained complete estimated compensation of aforesaid land and now they have no title, or relation with the aforesaid land. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... te, DW4 and Chandra Bhan Bhardwaj, DW2. Interestingly, judgement of Court below shows that though Pritam Singh was also a witness of execution of document, but Exhibit A3 did not have his signature. This was admitted by DW4 and is evident from following extract of the findings of Trial Court. I knew Peetam Singh for the past one year. Exhibit A-3 does not bear his signature. He has by mistake omitted to put his signature. (English translation by Court) 21. Trial Court has held that plaintiff-appellants did not adduce any evidence to show that the document was executed by fraud and misrepresentation since they did not examine any witness to the sale deed. Following findings of Court below in this regard are worthy to be reproduced herein it: In this suit, it is material that the fact of fraud and conspiracy has not been mentioned by the plaintiff in his statement. In this way, from the evidence produced by the plaintiff, it is clear that the plaintiffs do not have specific knowledge of any fraud and conspiracy and they have tried to wilfully conceal the correct facts. In this suit, the plaintiffs have not produced in evidence any witness to the sale-deed. (English translation by Cou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has been recorded by Court below as to what compensation remained which was to be received by plaintiff-appellants and transferred to defendant-respondents. Findings with regard to transfer of right of 20% compensation to defendant-respondents vide sale-deed in question is nothing but perverse, incorrect and based on no material on record. There is nothing to show that plaintiffs went to collect 20% compensation but was not paid or could not receive. 24. With regard to the expert opinion, Court below has found that both sides have adduced evidence of experts in support of respective case of two sides. Experts were examined as PW 3 and DW1. Court below has not recorded its own finding as to which report was credible or reliable and has proceeded to hold that in view of its otherwise findings, it is justified to infer that document in question was executed by plaintiff-appellants. 25. We may notice at this stage that even author of document, Harish Chand Bhati, who had not signed the same and this fact was admitted by him in his deposition but says that he may have forgotten to sign the document. Relevant findings in this regard read as under. The sale-deed being Exhibit A-3 has the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... roposition as against all counter evidence; and (iii) an indiscriminate use in which it may mean either or both of the others. The elementary rule is Section 101 is inflexible. In terms of Section 102 the initial onus is always on the plaintiff and if he discharges that onus and makes out a case which entitles him to a relief, the onus shifts to the defendant to prove those circumstances, if any, which would disentitle the plaintiff to the same. 29. In R.V.E. Venkatachala Gounder v. Arulmigu Viswesaraswami and V.P. Temple and another (2004) 6 JT (SC) 442, Court said in para 29, as under: In a suit for recovery of possession based on title it is for the plaintiff to prove his title and satisfy the court that he, in law, is entitled to dispossess the defendant from his possession over the suit property and for the possession to be restored to him. However, as held in A. Raghavamma v. A. Chenchamma there is an essential distinction between burden of proof and onus of proof: burden of proof lies upon a person who has to prove the fact and which never shifts. Onus of proof shifts. Such a shifting of onus is a continuous process in the evaluation of evidence. In our opinion, in a suit fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of proof' at the stages at which onus shifts upon other side. 32. Considering the entire facts, particularly that 80% compensation was already received by plaintiff-appellants and Trial Court has also recorded finding that they also went to receive remaining 20% compensation. They filed objection before Collector after receiving notice of Collector under Section 9 of Act, 1894 and claimed compensation @ Rs. 400/- per square yard. All these facts, in our view, justify that plaintiff-appellants themselves were contesting for higher compensation after receiving estimated one. These all circumstances were very relevant to throw light on the case set up by plaintiffs. There is neither any evidence on record nor otherwise, from which it can safely be inferred that there was any interest or right to receive compensation available on 8.2.1994 which could have been transferred by plaintiff-appellants to defendant-respondents. Moreover when they themselves claimed compensation @ Rs. 400/- per square yard, would have agreed to give up such contest on meager consideration of Rs. 60,000/- is highly improbable unless there is some reason. Second question in the entirety in discussion, we fi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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