Case Note & Summary
The appellants, Hausu Dhondba Uike and Ganba Dhondba Uike, owned agricultural field Survey No.110 at village Wai. Due to poor financial condition, they permitted respondent No.1, their cousin, to cultivate the land about 7-8 years before filing the suit in 1999. In 1999, the appellants learned that the respondents had received fertilizer bags from the government for the suit field and demanded half, but the respondents refused and claimed ownership. Upon enquiry, the appellants discovered that the respondents had mutated their names in revenue records based on an alleged sale deed dated 02/01/1991. The appellants denied executing any sale deed or receiving consideration. They filed Regular Civil Suit No.17 of 1999 for possession and declaration of title. The trial court decreed the suit in favor of the appellants on 22/04/2002, holding that the sale deed was not proved. The respondents appealed in Regular Civil Appeal No.217 of 2002, and the Second Additional District Judge, Nagpur reversed the decree on 03/05/2003, dismissing the suit. The appellants then filed the present second appeal. The High Court framed the substantial question of law: whether the lower appellate court erred in holding that the sale deed was proved. The court noted that the respondents failed to examine any attesting witness as required under Section 68 of the Evidence Act, 1872, and did not prove payment of consideration. The court also observed that the respondents' possession was initially permissive, and they failed to establish any change in title. The High Court allowed the appeal, set aside the lower appellate court's judgment, and restored the trial court's decree, directing the respondents to hand over possession within three months.
Headnote
A) Property Law - Sale Deed - Burden of Proof - Section 54 Transfer of Property Act, 1882 - The burden to prove a valid sale lies on the party asserting it; when the plaintiffs deny execution and consideration, the defendant must prove the sale deed was executed for consideration. Held that the respondents failed to discharge this burden as they did not examine the attesting witnesses or prove payment of consideration (Paras 8-12). B) Evidence Act - Attestation - Section 68 Evidence Act, 1872 - For a sale deed to be proved, at least one attesting witness must be examined if the execution is denied. Held that the respondents' failure to examine any attesting witness rendered the sale deed unproved (Para 10). C) Property Law - Possession - Permissive Possession - When possession is initially permissive, the burden shifts to the person claiming ownership to show a change in title. Held that the appellants permitted the respondents to cultivate the land, and the respondents' assertion of ownership based on an unproven sale deed did not defeat the appellants' title (Paras 5-7).
Issue of Consideration
Whether the sale deed dated 02/01/1991 was a genuine transaction supported by consideration, and whether the respondents acquired valid title to the suit property.
Final Decision
The High Court allowed the second appeal, set aside the judgment and decree of the lower appellate court, and restored the trial court's decree. The respondents were directed to hand over possession of the suit field to the appellants within three months.
Law Points
- burden of proof on defendant to prove sale
- sham transaction
- absence of consideration
- Section 54 Transfer of Property Act
- 1882
- Section 68 Evidence Act
- 1872
