2016 (11) TMI 1753

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....ngs to plaintiffs-appellants. For acquisition of land in dispute and some other, a Notification dated 18.6.1991 under Section 4(1) of Act 1894 was published in U.P. Gazette dated 20.7.1991 by State Government and thereafter declaration 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 enhan....

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....ed to pay compensation and other benefits to defendants-respondents. 6. Sri V. Sahai, learned counsel for appellants contended that land in question was already acquired and possession having been taken by Collector on 30.3.1992, it stood vested in State, hence there was nothing which could have been transferred by plaintiff- 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 c....

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.... land and 1/9 individually. They submitted an application dated 08.12.1995 before Additional District Magistrate (Land Acquisition), Noida Phase-II, Ghaziabad [hereinafter referred to as A.D.M. (L.A.)] requesting for payment of compensation as per award dated 13.11.1995. The defendant-respondents filed objection dated 01.02.1996, stating that defendants had already 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 b....

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....immovable property, a right of way, a fairy, a fishery, etc. 15. Section 6 of Act, 1882 specifically provides that property of any kind may be transferred, except as otherwise provided by Act 1882 or by any other law for the time being in force. The exceptions as above are nine and read as under:- "(a) The chance of an heir-apparent succeeding to an estate, the chance of a relation obtaining a legacy on the death of a kinsman, or any other mere possibility 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)....

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....ll purposes including compensation has no merit inasmuch as right to receive compensation is right to property assignable under Section 6 of Act, 1882. Hence, sale-deeds executed by erstwhile owners to subsequent purchasers may not create any encumbrance on acquired land but would be valid so as to transfer right to claim compensation from erstwhile land owners to subsequent purchasers." 18. In the light of the aforesaid exposition of law we have to examine from the document in question i.e. sale deed dated 08.02.1994, whether it transfers disputed land 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 me....

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....ming to the second question, we find that all the vendors i.e. plaintiff-appellants (except 4, 5 and 8) are said to have pressed their thumb impression on sale deed dated 08.02.1994. The witnesses are Pritam Singh s/o Kishan Lal and Chandrabhan Bhardwaj s/o Mela Ram, who are resident of Shahdara, Delhi. All the appellants, except appellants 4, 5 and 8 have put their thumb impression on the deed as per the version of defendant-respondents. The document was authored by Sri Harish Chand Bhati, Advocate. The said document was proved before Court below by Sri Harish Chand Bhati, Advocate, 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 misrepre....

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.... Amar Singh has in his statement clearly admitted that 80 percent amount of compensation was collected from the Office of The Land Acquisition Officer and he and other plaintiffs were identified by Advocate Harish Chand Bhati. We were taken to Sector-6, Noida for collection of 20 percent amount of compensation as well?" (English translation by Court) 23. Having said so, it has been observed that office of Sub-Registrar is also in Sector-VI, Noida and therefore, inference can be drawn that the plaintiff-appellants went to office of Sub-Registrar to collect amount of consideration towards 20% remaining compensation. No finding 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 e....

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.... proof" and 'onus' has been discussed by Court in para 19 of judgment in Anil Rishi V. Gurbaksh Singh, AIR 2006 SC 1971. The said paragraph reads as under: "There is another aspect of the matter which should be borne in mind. A distinction exists between a burden of proof and onus of proof. The right to begin follows onus probandi. It assumes importance in the early stage of a case. The question of onus of proof has greater force, where the question is which party is to begin. Burden of proof is used in three ways : (i)" to indicate the duty of bringing forward evidence in support of a proposition at the beginning or later; (ii) to make that of establishing a proposition 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 Viswesaraswam....

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....presumes everything against the transaction and the onus is cast upon the person holding the position of confidence or trust to show that the transaction is perfectly fair and reasonable, that no advantage has been taken of his position." 31. Thus burden to prove fraud was on plaintiffs. They discharged initial onus by producing two co-owners in witness box who deposed to support their stand. Then onus shifted upon the defendants who were beneficiary and ought to have proved that document is genuine. This distinction has been misappreciated by Court below. In other words Court below in our view, has committed a manifest error of law by failing to appreciate difference between 'onus' and 'burden 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 th....

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.... है ? Document 3 3. क्या वाद का मूल्यांकन कम किया गया है ? Document 4 4. क्या न्याय शुल्क अपर्याप्त अदा किया गया है ? Document 55. वादी किस अनुतोष का अधिकारी है ? Document 6 "1. क्या बैनामा/समर्पित पत्र दिनांक 09.02.94 वादीगण द्वारा निष्पादित नहीं किया गया, यदि किया गया तो प्रभाव ? Document 7 2. ए० ड....

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....‡ नाम से आपत्ति प्रस्तत करें तथा जिला जज गाजियाबाद के न्यायालय में तथा माननीय उच्च न्यायालय इलाहाबाद व उच्चतम न्यायालय नई दिल्ली भारत में कोई भी कार्यवाही करें और रेफरेन्स तैयार कराये और पैरवी करें तथा किसी भी आदेश की कोई अपीà....

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....¥à¤Ÿ रूप से किसी भी धोखा व साज के तथ्यों की जानकारी नहीं है और अपने सही तथ्यों को छिपाने का जानबूझकर प्रयत्न किया है। इस वाद में वादीगण ने बैनामें के किसी भी गवाह को साक्ष्य में प्रस्तुत नहीं किया है । " Document 12 "इस स्टेज पर यह तथ्य अत्यन्....