IDI BAI Vs. BANDIYA

JUDGEMENT

(1.) BEING aggrieved by judgment dated 23.3.10, passed by II Additional Distt. Judge (Fast Track) Jobat, in Civil Suit No. 14-A/09 whereby judgment and decree dated 1.09.09 passed by Civil Judge Class II in Civil Suit No. 50- A/08, whereby the suit filed by respondent No. 1 for declaration and possession was dismissed, was decreed, present appeal has been filed. This appeal was admitted on the following substantial questions of law :- (1) Whether in the facts and circumstances of the case learned Appellate Court committed an error in allowing the appeal and setting aside the judgment and decree passed by the learned trial Court?

(2.) WHETHER learned appellant Court committed an error in holding that burden of proof that fraud was played over respondent No. 1 on the appellants? 2. Short facts of the case are that respondent No. 1 filed a suit for declaration, possession and for cancellation of the sale deed dated 21.9.05, alleging that respondent No. 1 is owner of land bearing survey Nos. 37,730, 150 and 308 measuring 3.15 hectares, situated at village Pahadwa, Tehsil Jobat, Distt. Alirajpur. It was alleged that respondent No. 1 is an old man and is handicapped. It was alleged that Kamaria, who is son of respondent No. 1, and is looking after agricultural land owned by respondent No. 1. It was alleged that respondent No. 1 sustained fracture in his leg at that time Kamaria son of respondent No. 1 took loan of Rs. 2000/- from appellant No. 2 for his treatment and land of survey No. 150 was kept with appellant No. 2 for cultivation in security and it was agreed that no interest shall be payable by respondent No. 1. Further case of respondent No. 1 was that at the relevant time appellant No. 2 was the Sarpanch of the village and was influential person, therefore, respondent No. 1 trusted on appellant No. 2. Further case of respondent No. 1 was that in the year 2005, appellant No. 2 got the sale deed executed in favour of appellant No. 1 of the land bearing survey No. 150 measuring 0.43 hectares fraudulently, taking advantage of his position as Sarpanch. It was alleged that the fact that sale deed has been executed was not known either to respondent No. 2 or to Kamaria. Further case of respondent No. 1 was that Kamaria son of respondent No. 1 went to appellant No. 2 in year 2008 for refund of Rs. 2000/- at that time appellant No. 2 refused to take back the amount and informed that he has got suit property transferred in the name of appellate No. 1 and appellants shall not return the field. It was alleged that upon enquiry with Patwari and upon collection of revenue record respondent No. 1 came to know that the land of respondent No. 1 has been reduced and the name of appellant No. 1 has been recorded on the basis of illegal sale deed dated 21.9.05 as respondent No. 1 has executed the sale deed in favour of appellant No. 1. It was alleged that in fact piece of land of Survey No. 150 was given to the appellant No. 2 for cultivation in security of loan amount of Rs. 2000/-. It was alleged that in the facts and circumstances of the case, the sale deed dated 21.9.05 is not valid sale deed and is illegal and deserves to be declared as void. It was prayed that suit filed by the respondent No. 1 be decreed and it be declared that respondent No. 1 is the owner of land bearing survey No. 150 and the sale deed be declared as null and void as it has been got executed by fraud. It was also prayed that decree of possession be passed in favour of respondent No. 1 and against the appellants.

(3.) LEARNED counsel for the appellants argued at length and submit that impugned judgment passed by the learned Appeallate Court is illegal, incorrect and deserves to be set aside. It is submitted that the findings of the appellate Court are based on due appreciation of evidence, therefore, there was no justification on the part of the appellate Court to set aside the findings recorded by the learned trial Court. LEARNED counsel submits that since the case of respondent No. 1 is that appellant No. 2 has got the sale deed executed from respondent No. 1 by fraud, therefore, burden to prove the fraud was on respondent No. 1. It is submitted that since the respondent No. 1 failed to prove that fraud was played, therefore, the learned appellate Court committed . error in decreeing the suit. For this contention reliance is placed on a decision of this Court in the matter Kishandas Ram Kumar Agrawal v. Sharwan Kumar Parmanand Bhai Patel reported in 1975 MPLJ 556 wherein this Court has held that fraud has to be established beyond reasonable doubt. It was also alleged that the burden of proof to prove fraud lies on the party who alleges it. It is submitted that since respondent No. 1 failed to prove the fraud, therefore, there was no justification on the part of learned appellate Court to decree the suit in favour of respondent No. 1. It is submitted that appeal be dismissed.