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2024:CGHC:47830

AFR

HIGH COURT OF CHHATTISGARH AT BILASPUR

Order Reserved on 9.11.2024

Order delivered on 04/12/2024

FA No. 7 of 2022

1.Jairam S/o Late Shri Mayaram Gond Aged About 46 Years

R/o Village Salhebhat, Post Salhebhat, Tahsil Keshkal,

District Kanker Chhattisgarh.

2.Jablu Ram S/o Late Shri Mayaram Gond Aged About 39

Years R/o Village Salhebhat, Post Salhebhat, Tahsil Keshkal,

District Kanker Chhattisgarh.

3.Siyaram S/o Late Shri Mayaram Gond Aged About 29 Years

R/o Village Salhebhat, Post Salhebhat, Tahsil Keshkal,

District Kanker Chhattisgarh.

4.Jayawati D/o Late Shri Mayaram Gond Aged About 40 Years

R/o Village Salhebhat, Post Salhebhat, Tahsil Keshkal,

District Kanker Chhattisgarh.

5.Bharti Markam W/o Jairam Aged About 46 Years R/o Village

Salhebhat, Post Salhebhat, Tahsil Keshkal, District Kanker

Chhattisgarh.

... Appellants

versus

1.Durga Bai D/o Ganpat Gond Aged About 41 Years R/o Village

Maradev, Post Gangrel, Tahsil And District Dhamtari

Chhattisgarh.

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2.Dharmu Sahu S/o Jaggu Sahu Aged About 55 Years R/o

Nayapara, Gokulpur, Dabripara, Dhamtari Tahsil And District

Dhamtari Chhattisgarh.

3.State of Chhattisgarh Through Collector, Dhamtari District

Dhamtari Chhattisgarh.

... Respondents

For Appellants :Mr. Ravindra Sharma, Advocate

For Respondent No.1 :Mr. RS Patel & Mr. Palash Agrawal, Advocates

For Respondent No.2 :None though served.

For Respondent No.3 :Mr. Topilal Bareth, Panel Lawyer

SB: Hon’ble Mr. Justice Parth Prateem Sahu

C A V Order

1.Appellants have preferred this first appeal against the

judgment dated 30.11.2021 passed in Civil Suit No.1A/2019

whereby learned Additional District Judge Dhamtari has

decreed suit of plaintiff / respondent No.1 for declaration,

recovery of money and injunction.

2.During pendency of suit, original plaintiff No.2- Binjhwarin Bai,

mother of plaintiff No.1, and defendant No.1 Punai Bai, have

died. For the sake of convenience, the parties shall be

referred herein after as per their status before the trial Court.

3.Facts of the case, in brief, are that plaintiffs have filed a civil

suit for declaration, recovery of balance amount of sale

consideration along with interest and for grant of injunction.

Plaintiffs have averred that they are owners of the land

bearing Khasra No.1/6 area 1.25 acre situated at P.H.

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No.18/24 village Gokulpur, Tahsil and District Dhamtari, which

will be referred hereinafter as ‘the suit land’. Plaintiffs orally

agreed to sell the suit land to defendant No.1 and 2 at a

consideration of Rs.8,00,000/-. At the time of execution of

sale deed, it was orally agreed between the parties that entire

amount of sale consideration will be paid to plaintiffs within a

week from the execution of sale deed and the possession of

suit land will be delivered to defendant No.1 and 2 only after

full payment of sale consideration. Accordingly, on 4.3.2010

the plaintiffs registered sale deed in favour of defendant No.1

and 2 without consideration and in order to save stamp duty,

value of land in sale deed was shown to be Rs.4,00,000/-.

Plaintiffs were paid only Rs.5,05,000/- in installments and

thereafter despite many requests and demands, defendants

No.1 and 2 have not paid balance consideration amount of

Rs.2,95,000/- and therefore, plaintiffs through their advocate

have issued legal notices but even after service of notices,

defendants No.1 and 2 have neither replied to notice nor paid

balance amount.

4.Defendant No.1 to 3 jointly filed written statement denying the

averments made in plaint. They pleaded that entire amount of

sale consideration has been paid to plaintiffs and nothing

remains to be paid. Since the date of execution of registered

sale deed, defendants are in possession of the disputed land.

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Contents of sale deed were read and explained by Sub-

Registrar to the seller. Sale deed has been executed with the

consent of both the parties. Suit has been filed with intent to

grab money from defendant No.2, who is a government

servant.

5.Defendant No.4 was proceeded ex-parte and therefore written

statement has not been filed on behalf of defendant No.4.

6.On the basis of pleadings of parties, learned trial Court

framed as many as six issues, afforded opportunity to the

respective parties to adduce evidence in support of their

respective cases. In order to prove his case, the plaintiff got

himself examined as PW-1, Shiv Patoditi as PW-2, Ganpat

Gond as PW-3 and got marked documents from Ex.P-1 to

Ex.P-9. Defendant No.1 got himself examined as DW-1,

Dharmu Sahu as DW-2 one Krishna Kumar Chandel as DW-3

and got marked documents from Ex.D-1 to Ex.D-6.

7.After hearing the respective parties, the trial Court by the

impugned judgment decreed the suit of plaintiffs and granted

decree of declaration that plaintiff is in possession of suit land,

she is entitled to recover balance consideration amount of

Rs.2,95,000/- with interest @ 6% p.a. from the date of

institution of suit till recovery and restrained the defendants

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from interfering with possession of plaintiff over land in

question till payment of balance amount of consideration.

8.Learned counsel for defendants No.1 and 2 /appellants herein

submits that the learned trial Court decreed the suit of

plaintiffs on conjecture, surmises and presuming the facts

which were required to be proved by adducing evidence.

Plaintiffs have claimed non-payment of balance amount of

sale consideration but not pleaded in the plaint that total value

of land in question was Rs.8,00,000/- nor adduced any

evidence in support thereof. If the consideration amount

mentioned in the sale deed was not the actual consideration

amount and the actual consideration amount is something

else, then the plaintiffs ought to have proved the same by

leading cogent evidence. Nothing has been brought on

record by plaintiff to substantiate that Rs.8,00,000/- was

agreed payable sale consideration for the land in question.

Therefore, in view of clear admission on the part of plaintiff in

the sale deed, Ex.P-1, which expressly recorded that the

entire consideration of Rs.4,00,000/- has been received by

sellers (plaintiffs) in presence of witnesses and nothing

remains to be received, learned trial Court erred in relying

upon the version of plaintiff that sale price fixed between the

parties was Rs.8,00,000/- and the entire sale consideration

has not been paid. It is well settled preposition of law that

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credence must be given to the documentary evidence in

preference to oral deposition.

9.He further contended that the learned trial Court erred in

relying upon oral evidence of plaintiffs that in order to avoid

stamp duty the value of land is mentioned less in sale deed.

Perusal of sale deed will reveal that land was valued at

Rs.7,98,000/- and accordingly the stamp duty was paid,

hence there was no question of undervaluing the sale deed. If

the market value of land mentioned in sale deed was less

than the minimum market value fixed under relevant rules, the

Registering Officer would have not registered the sale deed

and would have referred the same to the Collector for proper

valuation. He further submitted that after registration of sale

deed on 4.3.2010, name of appellants have been mutated in

land records but no objection whatsoever has been raised by

plaintiffs regarding non-payment of any kind. However, after

lapse of about 21 months, based on false and concocted

story, sent legal notice to petitioner and thereafter filed civil

suit only to get additional amount from the appellants. Thus,

it is clear that whole approach of the trial Court in appreciating

both oral and documentary evidence is totally erroneous and

therefore, the impugned judgment and decree are liable to be

set aside.

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10.Learned counsel for plaintiff/respondent No.1 herein

supporting the judgment and decree of the trial Court, would

argue that the land in question belongs to plaintiff /

respondents No.1, an illiterate poor lady. It is absolutely false

that defendants No.1 and 2 have purchased the property for

valuable consideration of Rs.4,00,000/-. Sale price was fixed

between the parties was Rs.8,00,000/-, for the purpose of

registration the sale deed is registered for Rs.4,00,000/- and

agreed consideration was Rs.8,00,000/-, which was to be

paid within a week after registration of sale deed. Payments

were made in installments, as mentioned in Ex.P-9A, but

defendants No.1 & 2 did not pay full sale consideration.

Reference has been made to the statement of Krishna Kumar

Chandar (PW-3) to submit that deal was finalized with

defendant Bharti Markam at Rs.8,00,000/-, value of land

mentioned in the sale deed is only for the purpose of stamp

duty. He further contended that defendant No.1 Jairam

(DW-1) admitted in his cross-examination that the entries of

Ex.P-9A are in his handwriting and related to payment made

in respect of land. Plaintiffs executed sale deed (Ex.P-1)

without consideration on the assurance that entire amount of

sale consideration will be paid within a week. However,

plaintiffs have been paid Rs.5,05,000/- only and not paid the

full amount of consideration, therefore, plaintiffs issued legal

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notices (Ex.P-2 and Ex.P-5) but neither said notices were

replied nor amount is paid by the purchaser.

11.Considering the submissions of both sides and material

available in record, the question that arises for consideration

is as follows:-

•Whether the trial Court was justified in holding that an

agreement came to be arrived between the parties for the

sale of land bearing Khasra No.1/6 area 1.25 acre at

Rs.8,00,000/-?

12.Admittedly, the land in question was sold by plaintiff to

defendants No.2 by way of registered sale deed dated

4.3.2010. Claim of plaintiff was that she agreed to sell the

land in question for Rs.8,00,000/- and only for lowering the

value of stamp duty, at the instance of defendant No.1 and 2,

the value of land is mentioned as Rs.4,00,000/- in the sale

deed and further that, out of total sale consideration,

defendants have only paid Rs.5,05,000/- in installments and

thereafter not paid balance sale consideration. According to

defendants No.1 and 2, the entire amount of consideration

was Rs.4,00,000/- and under the sale deed the plaintiff has

admitted receipt of the entire sale consideration.

13.Under sale deed Ex.P-1, plaintiff and her deceased mother,

had admitted that they have received the entire sale

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consideration and nothing left to be received. However,

perusal of the record would show that on 14.12.2011 plaintiff

through her advocate sent a registered notice to original

defendant (since deceased) calling upon her to make balance

amount of consideration of Rs.2,95,000/- together with

interest of Rs.1,28,900/-. It is clearly mentioned in this notice

that at the time of execution of sale deed, it was agreed that

total consideration of Rs.8 Lakh will be paid within a week in

presence of witnesses of sale deed, but only Rs.5,05,000/- is

paid in installments towards consideration and balance

consideration is not paid despite repeated demands. On

16.1.2015 (Ex.P-5) plaintiffs again sent notice to original

defendant demanding balance sale consideration and when

defendant did not pay any heed to the notice, a complaint was

also made in the office of Superintendent of Police, Dhamtari

on 23.4.2012. Thereafter, on 30.4.2012 a civil suit was filed.

14.Plaintiff was examined as PW-1 and she has stated in her

statement that defendant Bharti Markam purchased the land

in question in the name of her mother-in-law Puniabai. She

has put her thumb impression on the sale deed. Price of land

in question was fixed at Rs.8,00,000/-, however, defendant

No.1 got lesser amount mentioned in the sale deed in order to

save stamp duty. Receipt of payment made by defendant

No.1 is Ex.P-9A. Upon non-payment of full sale consideration,

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she sent registered notice on 14.12.2011 and 16.01.2012 as

also made complaint to police authority.

15. Krishna Chandel (DW-2) is an independent witness as also a

witness to sale deed. This witness has stated in his

examination-in-chief in the shape of affidavit under Order 18

Rule 4 CPC that defendant Bharti Markam agreed to

purchase the land measuring 1.25 acre belonging to Durgabai

and her mother Binjhwarin and value of this land was fixed at

Rs.8,00,000/-. He has further stated that in order to save

stamp duty, at the instance of defendant Bharti Markam, the

value of land was shown as Rs.4,00,000/- in the sale deed,

however, any amount towards sale consideration was not

paid to Durga Bai and her mother at the time of execution of

sale deed and Bharti Markam said that she will pay the entire

sale consideration in installments and till then Durgabai and

her mother will continue to be in possession of the land in

question. Cross-examination conducted on this witness also

suggests that he stuck to his statement which he made in his

examination-in-chief. In the cross-examination, he denied that

deal of purchase of land was finalized at Rs.4,00,000/- and

reiterated that deal was finalized at Rs.8,00,000/-.

16.Jailal Markam (DW-1) has clearly admitted in his cross-

examination that ‘D to D’ part of diary of Ex.P-9A, which

relates to total payment of Rs.4,55,000/- was in his

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handwriting and it relates to payment with respect to

transaction of land. Though this witness has stated that this

money entries are not in connection with disputed land, but at

the same time he admitted that apart from disputed land, he

has not purchased any other land from Shiv Padaoti. This

witness has also stated that he does not remember that a

sum of Rs.50,000/- was given to husband of plaintiff through

his wife in Mahasamund in 2011.

17.True it is that there is acknowledgment by plaintiff in the sale

deed Ex.P-1 that the value of land has been received and

nothing remains to be received, but the admission of

defendant No.1 Jayaram that entries of Ex.P-9A relates to

transaction of land and the same are in his handwriting,

coupled with statement of Krishna Chandel (PW-3),

independent witness to sale deed Ex.P-1 and not supported

the recitals in the deed related to consideration, and the fact

of issuance of legal notices, filing of complaint before superior

authority of defendant No.1 & 2 immediately after registration

of sale deed, proves the factum of non-payment of sale

consideration at the time of registration of sale deed by

defendants to the plaintiff and this Court is in agreement with

the view taken by trial Court that sale deed was executed

without consideration. If the entire sale consideration was

paid to plaintiffs at the time of execution of sale deed, then it

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has not been explained by defendants as to for what purpose

the amount mentioned in Ex.P-9A, which according to

plaintiffs was towards sale consideration of disputed land,

was paid to plaintiffs by defendants on subsequent dates. It is

true that defendant has taken a stand that entries in Ex.P-9A

though related to land transaction but not in respect of the

disputed land, however, he did not disclose identity of

opposite party with necessary details as also the particulars of

the property and total sale consideration, which makes the

stand of defendant faulty and unreliable.

18.Most importantly, relevant entries in Ex.P-9A mentions name

of ‘Shiv’ as person to whom amount is paid, who is none else

but the husband of plaintiff Durgabai and defendant himself

has admitted that the entire transaction was done with

husband of plaintiff i.e. Shiv Padoti and he has not purchased

any other land from plaintiff. Most importantly, the trial Court

after elaborately discussing the evidence led by the parties on

the issue of possession, has recorded a categorical finding

that plaintiffs are in possession of the land in question, which

also shows that entire sale consideration was not paid to the

plaintiff because it is specific plea of plaintiff that possession

was to be delivered after payment of entire consideration.

Thus, it is obvious from the evidence on record that the

consideration amount was not paid at the time of execution of

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sale deed and only some amount in installments was paid

towards consideration after execution of sale deed.

19.So far as payment of consideration is concerned, according to

the recitals in sale deed, Ex.P-1, the consideration amount is

Rs.4,00,000/- and market value of land, as on that date, was

shown as Rs.7,98,000/-. The recitals in sale deed are

admissible in evidence, but their value vary according to the

circumstances in which the transaction was entered into.

Unless the relevant recitals in the sale-deed including passing

of consideration is admitted, mere marking of the document

does not amount to proof that consideration recited under that

document is the actual consideration paid thereunder.

"Substantive Evidence” as to price paid would be the

testimony of the persons who had actual personal knowledge

of the matter viz., the buyer and the seller or the person

present at the time of settlement of bargain or payment.

Unless there is corroborative oral evidence regarding the

price mentioned in the deeds, the recitals by themselves

cannot be relied upon. If the seller despite registration of sale

deed is able to prove by adducing cogent evidence that sale

has taken place without consideration, then mere production

of the document or recitals therein are not sufficient in the

absence of cogent evidence regarding passing of

consideration and its source.

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20.From the sale deed it is clear that no payment was ever been

made before the Registrar at the time of execution of sale

deed. Plaintiff Durga Bai, in her examination-in-chief, has

categorically deposed that sale deed was executed without

consideration, total consideration of land was Rs.8,00,000/-,

she was informed by defendant that in order to save the

stamp duty, value of land was shown as Rs.4,00,000/- and at

the time of registration it was agreed between them that entire

sale consideration will be paid by purchaser within a week

and only thereafter possession will be delivered. She has

further stated that she is an illiterate person and defendants

No.1 & 2 are government employees. Krishna Chandel (PW-

3), witness of sale deed, has deposed that consideration fixed

for land in question was Rs.8,00,000/-, however,

Rs.4,00,000/- was mentioned in the sale deed only for the

purpose of stamp payable for the sale deed on the basis of

market valuation of the land. There is material in record i.e.

Ex.P-9A, which shows that consideration paid to plaintiff on

different dates is more than what is reflected in the sale deed.

If the sale price of land in question was fixed at Rs.4,00,000/-

then as to for what reason amount more than agreed

consideration was made to plaintiff. Explanation offered by

defendant in his statement that amount mentioned in Ex.P-9A

is in respect of some other land does not inspire confidence

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because not a single document has been filed and exhibited

by defendants to show that amount mentioned in Ex.P-9A

was paid in respect of some other transaction of land owned

by plaintiff or her husband Shiv Padoti.

21.In case of Narayan Ganesh Dastane vs Sucheta Narayan

Dastane, reported in AIR 1975 SC 1534, Hon’ble Supreme

Court has observed thus:-

“…….The normal rule which governs civil

proceedings is that a fact is said to be established

if it is proved by preponderance of probabilities.

Under S.3 of the Evidence Act, a act is said to be

proved when the court either believes it to exist or if

conspires its existence so probable that a prudent

man ought in the circumstances, to act upon the

supposition that it exists. The first step in this

process to fix the probabilities, the second to weigh

them. The impossible is weeded out in the first

stage, the improbable in the second. Within the

wide range, of probabilities the Court has often a

difficult choice to make but it is this choice which

ultimately determines where the preponderance of

probabilities lies….”

22.In the case of Vishnu Dutt Sharma vs. Daya Sapra ,

reported in (2009) 13 SCC 729, the Hon'ble Supreme Court

was pleased to observe as under:

“8. There cannot be any doubt or dispute that a

creditor can maintain a civil and criminal proceedings

at the same time. Both the proceedings, thus, can

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run parallel. The fact required to be proved for

obtaining a decree in the civil suit and a judgment of

conviction in the criminal proceedings may be

overlapping but the standard of proof in a criminal

case vis-a-vis civil suit, indisputably is different.

Whereas in a criminal case the prosecution is bound

to prove the commission of the offence on the part of

the accused beyond any reasonable doubt, in a civil

suit " preponderance of probability" would serve the

purpose for obtaining a decree".

(emphasis supplied)

23.In the case of M. Siddiq (Dead) Through Legal

Representatives (Ram Janambhumi Temple Case) vs.

Mahant Suresh Das and others, reported in (2020) 1 SCC

1, Hon'ble Supreme Court elaborated the standard of proof in

civil cases and held that it is governed by the preponderance

of probabilities standard. Hon'ble Court held as hereunder:-

“720. The court in a civil trial applies a standard of

proof governed by a preponderance of probabilities.

This standard is also described sometimes as a

balance of probability or the preponderance of the

evidence. Phipson on Evidence formulates the

standard succinctly: If therefore, the evidence is

such that the court can say "we think it more

probable than not", the burden is discharged, but if

the probabilities are equal, it is not. In Miller v.

Minister of Pensions, [Miller v Minister of Pensions

(1947) 2 All ER 372), Lord Denning, J.(as the

Master of Rolls then was) defined the doctrine of the

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balance or preponderance of probabilities in the

following terms: (All ER p. 373 H)

"(1) ... It need not reach certainty, but it must

carry a high degree of probability. Proof

beyond reasonable doubt does not mean proof

beyond the shadow of doubt. The law would

fail to protect the community if it admitted

fanciful possibilities to deflect the course of

justice. If the evidence is so strong against a

man as to leave only a remote possibility in his

favour which can be dismissed with the

sentence, "of course it is possible, but not in

the least probable" the case is proved beyond

reasonable doubt, but nothing short of that will

suffice."

(emphasis supplied)

721. The law recognises that within the

standard of preponderance of probabilities,

there could be different degrees of probability.

This was succinctly summarised by Denning,

L.J. in Bater v. Bater, 1951 P. 35 (CA) where

he formulated the principle thus: (p. 37)

"... So also in civil cases, the case must be

proved by a preponderance of probability,

but there may be degrees of probability

within that standard. The degree depends

on the subject-matter." (emphasis

supplied)

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725. The Court recognised that within the

standard of preponderance of probabilities, the

degree of probability is based on the subject-

matter involved.

726. In State of U.P. v. Krishna Gopal, [State of

U.P. v. Krishna Gopal, (1988) 4 SCC 302 : 1988

SCC (Cri) 928], this Court observed: (SCC p.

314, para 26)

"26. The concepts of probability, and the

degrees of it, cannot obviously be

expressed in terms of units to be

mathematically enumerated as to how

many of such units constitute proof

beyond reasonable doubt. There is an

unmistakable subjective element in the

evaluation of the degrees of probability

and the quantum of proof. Forensic

probability must, in the last analysis, rest

on a robust common sense and,

ultimately, on the trained intuitions of the

Judge."

24.In case of Rajaram vs. Maruthachalam, reported in 2023

Live Law (SC) 46, it was observed as under:-

“29. A distinguishing fact between the criminal

proceedings and the civil proceedings in the

present case is that, while in the criminal

proceedings the complainant had failed to produce

the promissory notes, in the civil proceedings, the

complainant had proved the promissory notes. The

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High Court found that the Civil Appeals were

required to be decided on the basis of the

preponderance of probabilities. The High Court

found that the complainant had established that he

was working as a LIC Agent, that his father was

owning extensive agricultural properties and that he

was deriving agricultural income. The High Court,

on the basis of the evidence placed on record,

relying on the preponderance of probability, came to

a conclusion that the plaintiff had the financial ability

to lend the sum of Rs.3 lakh as on 20th October

1998…….”

25.From the above decisions it is apparent that the civil cases

are to be decided on the basis of probability and

preponderance. Inference of preponderance of probabilities

can be drawn not only from the materials on record but also

by reference to the circumstances upon which he relies. In

this case, evidence on record shows that plaintiff is an

illiterate ignorant and inexperienced lady, and was not well

versed with the procedure of execution of sale deed. Whereas

defendant No.1 is a government employee working as

Assistant Commander and thus had sufficient knowledge and

understanding of the commercial transaction. It is a known

fact in our country that sale consideration mentioned in the

sale deeds are not the true reflection of the value of land and

the market rate of the property is always higher than which is

shown, at the lesser rate, in the registered document, not only

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to save stamp duty payable to the government but also to

include payment of cash amount which cannot be accounted

for in the sale deed. Hence, there is no reason to doubt the

reason explained by plaintiff for mentioning lesser sale price

in sale deed Ex.P-1. Thus, it could be inferred on the basis of

preponderance of probability that the land in question was

sought to be sold for Rs.8,00,000/-.

26.In view of detailed discussion made herein above, this Court

sees no valid reason to interfere with judgment and decree

passed by learned trial Court, which otherwise appear to be

based upon correct appreciation of evidence adduced on

record by the respective parties.

27.In the result, this Court finds no merit in the appeal, which is

accordingly dismissed. Judgment and decree passed by the

learned trial Court is upheld.

28.Decree be drawn up accordingly.

Sd/-

(Parth Prateem Sahu)

Judge

roshan/-