NON­REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO(S). 7137 OF 2010

ALI HUSSAIN(D) THROUGH LRS ….APPELLANT(S)

VERSUS

RABIYA & ORS.      ….RESPONDENT(S)

J U D G M E N T

Rastogi, J.

1. This  appeal is  directed  against the judgment  and  decree

dated 18th  August, 2008 passed by the High Court of

Uttarakhand in Second Appeal No. 1341 of 2001.

2. The facts in brief are that the first respondent­plaintiff filed

a  suit against the  defendant­appellant for cancellation  of sale

deed  dated  10th  May,  1995 registered in  Sub­Registrar  Office,

Jagadari, Roorkee on 22nd  May, 1995.   According to the plaint,

the plaintiff­first respondent Smt. Rabiya inherited the property

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shown in the schedule of  property  indicated at the foot of  the

plaint, from her father late Sri Ahamad and is the owner and in

possession of the suit property in question.   It was further

averred that the impleaded  defendants in the suit (defendant

nos.1 and 3, Ali Hussain and Abdul Hassan) are the sons of her

great grandfather and impleaded defendant no. 2 Smt. Raquiba,

is the wife of Ali Hussain (impleaded defendant no. 1).   

3. It  was averred in the plaint that the impleaded defendant

no.1 (appellant) in order to grab the suit property of the   

plaintiff­respondent, got  prepared  a forged registered  power of

attorney, in the  name of the  plaintiff­first respondent on  25th

April, 1995 and  on the basis of the forged power of attorney, sold

the suit property by a registered sale deed for a consideration of  

Rs. 1,50,000/­ on 10th May, 1995 in favour of defendant nos. 2

and 3 (Smt. Raquiba and Abdul Hassan).   According to the

plaintiff­first respondent, the sale price of the suit property could

not be less than Rs. 3,00,000/­.   It is also alleged in the plaint

that there is no recital as to who had actually received the sale

consideration and she is in actual possession of the suit property

and the forged sale deed was never acted upon.  It was prayed for

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the decree for cancellation of power of attorney and the sale deed

obtained by playing fraud.

4. Before the trial Court, on the basis of pleadings of the

parties, following issues were framed:­

1. Whether the sale deed dated 10.05.1995 executed by defendant no. 1 in favour of defendant nos. 2 and 3 is liable to be cancelled on the grounds set in the plaint?

2. Whether the alleged power of attorney dated 25.04.1995 executed by plaintiff in favour of defendant no. 1 is forged document and the plaintiff did not execute the same? If so, its effect?

3. Whether the plaintiff received the sale consideration in respect of sale deed from defendant no. 1 in favour of defendant nos. 2 & 3.

4. Whether the plaintiff is owner and in possession of the property in dispute?

5. Whether the plaintiff is entitled for any relief?

6. Whether after selling the property in dispute to Mohammad Mateen by the plaintiff, the suit rendered infructuous?

7. Whether the suit is barred by principle of estoppel and acquiescence?

8. Whether the suit rendered infructuous in view of the contention raised in  para  no.  13­A  of the  written statement?

5. Both the parties adduced their oral as well as documentary

evidence in support of their defence.   The trial Judge, after

hearing the parties and considering the evidence on record,

dismissed the suit filed by the plaintiff­first respondent vide

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judgment and decree dated 19th January, 2001 which was further

assailed at the instance of the plaintiff­first respondent in first

appeal which was dismissed vide judgment and decree dated 27th

August, 2001, further assailed in second appeal before the High

Court of Uttarakhand.

6. It may be relevant to note that at the time of admission of

second appeal, the High Court admitted the appeal on the

following substantial questions of law:­

1. As to whether both the courts below were justified placing burden of proof on the plaintiff/appellant to prove negative fact that power of attorney is not executed by her?

2.Whether burden/onus of proof lies on the transferee when transferor totally denies execution of the deed by himself? If so, its effect?

7. The High Court after hearing the parties proceeded on the

premise that the plaintiff­first respondent was the pardanasheen

illiterate lady and taking note of the judgment of this Court in

Mst.  Kharbuja Kuer  Vs.  Jangbahadur Rai  and Others  AIR

1963  SC  1203, relying on the judgment  of the  Privy  Council

(Farid­Un­Nisa(Plaintiff) Vs. Mukhtar Ahmad and

Another(Defendants) AIR 1925 PC 204) held that burden of proof

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in such a case rest, not with those who attack, but with those

who found upon the deed, and the proof must go so far as to

show affirmatively and conclusively that the deed was not only

executed by, but was explained to, and was really understood by

the grantor.

8. The High  Court held that the burden to prove that the

alleged power of attorney is not a result of fraud and

misrepresentation lie on the shoulder of the appellant­defendant

because they are the beneficiaries and the trial Court and the

first Appellate Court has committed a manifest error in shifting

the burden on the shoulders of the plaintiff­first respondent and

accordingly set aside the judgment and  decree of the  Courts

below and remitted the matter back to the trial Judge to decide

the suit afresh in view of the evidence available on record taking

note of the observations made by the High Court in the impugned

judgment dated 18th  August, 2008 which is a subject matter of

challenge at the instance of the appellant­defendant no. 1 before

us.

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9. This  Court,  while issuing  notice  on 14th  November,  2008

stayed the operation of the impugned judgment dated 18th

August, 2008.

10. Learned counsel for the appellants submits that  the very

foundation on which the High  Court has proceeded that the

plaintiff­first respondent was a pardanasheen illiterate lady and

shifting the burden of proof on the shoulder of the appellant­first

defendant to establish that the document was explained to the

plaintiff­first respondent  and she  understood it  and thereafter

transaction was entered into, is against the pleadings on record.

From  the  perusal of the copy of the  plaint annexure  P/1  on

record filed by the plaintiff­first respondent, it is nowhere pleaded

that she was a pardanasheen illiterate lady and in absence

whereof, the very proposition which has been examined by the

High Court under the impugned judgment is unsustainable and

so far as the issues which are framed by the trial Judge on the

basis of the pleadings on record, all have been negated against

the plaintiff­first respondent and in the given circumstances, the

finding recorded by the High Court in remitting the matter to the

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trial  Judge to revisit the  same on  the  basis  of  principles laid

down deserves to be interfered by this Court.

11. Per contra, learned counsel for the respondents, while

supporting the finding recorded  by the  High  Court  under the

impugned judgment, submits that it is indisputed fact that the

plaintiff­first respondent is a  pardanasheen illiterate lady  and

still the  case  was  proceeded with the  burden of  proof  on her

shoulders to establish that the power of attorney executed by the

plaintiff in favour of defendant­appellant was a forged document

was a patent error of law.   In the given circumstances, the

burden of proof was upon the defendant no.1­appellant to

establish that the registered power of attorney executed on 25th

April,  1995 was  a  genuine  document  and only thereupon  the

onus could have been shifted to the plaintiff­first respondent and

this is an apparent manifest error which was committed by the

trial Judge but noticed by the High Court in the impugned

judgment and it needs no further interference by this Court.  

12. We  have  heard learned  counsel for the  parties  and  with

their assistance perused the material available on record.

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13. The plaintiff­first respondent filed a Suit No. 155 of 1996

before the Civil Judge (J.D.), Roorkee.   A copy of the plaint has

been placed on record (Annexure P/1).  On perusal of the plaint,

it reveals that it has nowhere been pleaded that the plaintiff­first

respondent is  a  pardanasheen  illiterate lady.   In the  ordinary

course the burden of proof rest, on who attack.  On the contrary,

it was pleaded in the plaint that defendant nos.1 and 3 are the

sons  of  her  uncle  Mangta  and defendant  no.  2 is the  wife  of

defendant no. 1 and they hatched a conspiracy to grab the land

of the plaintiff­first respondent and with connivance, the power of

attorney was prepared & registered on 25th  April,  1995  in  the

registry office, in the name of the plaintiff and pursuant thereto,

suit  land was sold by a registered sale deed.   On the basis of

pleadings on record, the above­mentioned eight issues were

framed on which both the parties have adduced oral and

documentary evidence and the trial Judge, after considering the

evidence, dismissed the suit vide judgment and decree dated 19th

January, 2001 and that came to be affirmed on dismissal of the

appeal filed at the instance of the plaintiff­first respondent dated

27th August, 2001.  It reveals from the record that without there

being any factual foundation, the High Court, while admitting the

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appeal, framed two substantial questions of law in reference to

which there was no supporting pleadings on record.   

14. We still, for our satisfaction have gone through the plaint

placed on record at Annexure P/1 and we are unable to find the

pleadings in support that she was a pardanasheen illiterate lady

and was entitled for protection of law and the burden was on the

defendant­appellant to prove that the alleged power of attorney

was the result of fraud.

15. After we have heard the parties, we are of the view that the

High Court has committed a manifest apparent error in reversing

the concurrent finding of the two Courts below and on this score

the impugned judgment is not sustainable.  

16. Consequently, the appeal succeeds and accordingly allowed.

The judgment of the  High  Court in second  appeal  dated  18th

August, 2008 is hereby set aside.  No costs.

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17. Pending application(s), if any, stand disposed of.

..………………………………………J. (N.V. RAMANA)

..………………………………………J. (MOHAN M. SHANTANAGOUDAR)

.……………………………………….J. (AJAY RASTOGI)

NEW DELHI SEPTEMBER 17, 2019

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