In the Court of Civil Judge (Junior Division), FTC, Court No.

2, Aligarh
Present: Arijeet Singh, PCS (J)
ID No: UP3625

CNR No.: UPAL060002802017

O.S. No.: 183 of 2017
1. Shri Harprasad, age about 33 years
2. Shri Deviram, age about 44 years
3. Shri Harpal @ Sanjay Kumar, age about 30 years
All sons of Shri Natthi Singh, residents of Village Bhagwanghadi,
Tehsil Koil, Aligarh
……………….Plaintiffs
Versus

1. Smt. Munni Begum, age about 43 years

Wife of Shri Shezad Hussain, resident of Village Ganeshpur, Tehsil
Patiyali, Kasganj
……Defendant Ist Set
2. Shri Taufeeq Ahmad, age about 45 years
Son of Shri Shamshuddin, resident of Hamdard Nagar, Tehsil Koil,
Aligarh
3. Smt. Meena Begum, age about 40 years
Wife of Shri Taufeeq Ahmad, resident of Hamdard Nagar, Tehsil Koil,
Aligarh
……Defendants IInd Set

Ex parte Judgment
1. The above mentioned plaintiff has filed this suit for two reliefs, i.e., first
decree of cancellation of sale deed dated 21/11/2009 (disputed sale deed)
executed by defendant no. 2 set in favour of defendant no. 1 with respect to
200 square yards of gata no. 937,area 0.5280 hectares, situated at
Manzoorghadi, Koil, Aligarh (hereinafter also referred to as disputed property)
and registered at wahi no. 1, zild no. 3610, page no. 213 to 230, serial no.
10256 and cancellation of registered sale deed dated 30/6/2000 secondly,
decree of perpetual injunction restraining defendants from interfering in the
peaceful possession of the plaintiff.
2. The brief facts of the plaint are that plaintiffs are owners and in possession
of disputed property, which they received in inheritance after the death of their
father. Defendants have no right with respect to above property and without
any right or title, on the basis of power of attorney dated 30/6/2000 defendant
no. 2 fraudulently executed sale deed with respect to disputed property on
25/11/2009 in favour of defendant no. 1. Whereas power of attorney dated
30/6/2000 was revoked by notice dated 12/12/2003 which was received by
defendant no. 2 and replied on 16/1/2004. Sale deed dated 25/11/2009 is a
fraudulent document as, first, defendant no. 2 has executed disputed sale deed
without any right as it was already revoked by the plaintiff’s father. Secondly,
plaintiff never received any consideration with respect to disputed sale deed.
Therefore disputed sale deed is fraudulent document executed without any
right while agreement dated 30/6/2000 is a document barred by time. Cause
of action arose on 08/3/2017 when defendants along with some other persons
came to the disputed property and tried to dispossess the plaintiff on the basis
of disputed sale deed. Hence on the basis of facts plaintiff is entitled to decree
of cancellation of disputed sale deed & agreement and decree of perpetual
injunction with respect to disputed property.
3. Summonses were issued to the defendants; they did not appear and notice
was held sufficient by publication on 25/4/2018, and suit was proceeded with
ex parte on 25/4/2018.
4. Learned counsel for plaintiff in his arguments contended that on the basis
of facts already presented they are entitled to prayed relief on following
grounds, i.e., first, power of attorney dated 30/6/2000 was revoked by father of
plaintiff on 12/12/2003 and hence disputed sale deed was executed without
any right and hence is liable to be cancelled. Second, no consideration was ever
received by the plaintiff in lieu of disputed sale deed. Third, the plaintiff is in
the possession of the disputed property, hence he is entitled to decree of
perpetual injunction. In support of his contention he has relied on documents
filed by annexure to affidavit in support of application 7C2 i.e. 8C2/8
photocopy of notice of revocation dated 12/12/2003; 8C2/9 reply of notice
dated 16/1/2004. Documents filed by list of documents 9C i.e. khatauni for
fasli year 1419 to 1424 (corresponding to year 2012 to 2017) 10C1 for gata no.
937; 12C1 khasara for gata no. 937, 12C1 certified copy disputed sale deed.
Learned counsel for plaintiff has further relied on ex parte examination-in-chief
of PW1 Harprasad 18A2.
5. Burden of proof lies upon the plaintiff to prove his case. It is well settled that
even if the suit proceeds ex parte the necessity of proof by the plaintiff of his
case to the satisfaction of the Court cannot be dispensed with. In the absence
of denial of plaint averments the burden of proof on the plaintiff is not very
heavy. A prima facie proof of the relevant facts constituting the cause of action
would suffice and the Court would grant the plaintiff such relief as to which he
may in law be found entitled (Ramesh Chand Ardawatiya v. Anil Panjwani
AIR 2003 SC 2508). Learned counsel for plaintiff has relied on ex parte
examination in chief of PW1, which is on record present on affidavit as 18A1,
he has stated that plaintiffs are owners and in possession of disputed property,
which they received in inheritance after the death of their father. Defendants
have no right with respect to above property and without any right or title, on
the basis of power of attorney dated 30/6/2000 defendant no. 2 fraudulently
executed sale deed with respect to disputed property on 25/11/2009 in favour
of defendant no. 1. Whereas power of attorney dated 30/6/2000 was revoked
by notice dated 12/12/2003 which was received by defendant no. 2 and replied
on 16/1/2004. Sale deed dated 25/11/2009 is a fraudulent document as, first,
defendant no. 2 has executed disputed sale deed without any right as it was
already revoked by the plaintiff’s father. Secondly, plaintiff never received any
consideration with respect to disputed sale deed. Therefore disputed sale deed
is fraudulent document executed without any right while agreement dated
30/6/2000 is a document barred by time. Cause of action arose on 08/3/2017
when defendants along with some other persons came to the disputed property
and tried to dispossess the plaintiff on the basis of disputed sale deed.
6. The main ground on which cancellation of sale deed is that power of
attorney was already revoked by the plaintiff and defendant no. 2 fraudulently
executed disputed sale deed without any right. The evidence in support of this
the photocopy of notice of revocation, it well settled principle of law that
photocopies of documents are not admissible in evidence unless some reason
for non production of original is given. Hence in view this settled proposition
these documents cannot be accepted in evidence. Excluding this, what remains
to be seen is oral evidence of PW1. Law with respect to registered document is
well settled that there is a presumption that a registered document is validly
executed. A registered document, prima facie, would be valid in law. The onus
of proof would be on a person who leads evidence to rebut the presumption
(Prem Singh & Ors. vs. Birbal & Ors. 2006 (5) SCC 353). In view of the above
settled preposition this presumption cannot be said to be rebutted merely on
the basis of oral evidence. Hence on the basis of oral as well as documentary
evidence on record the plaintiff has not been able to rebut presumption for
cancellation of sale deed as well as registered agreement.
7. Other ground raised by the plaintiff is that no consideration was ever
received by the plaintiff. Hon’ble SC in Dahiben v. Arvinbhai Kalyanji
Bhanusali (Gajra) (D) thr. LRs. AIR 2020 SC 3310 has categorically held that:
“In view of the law laid down by this court, even if the averments of the plaintiff
are taken to be true, that the entire sale consideration had not in fact been
paid, it could not be a ground for cancellation of sale deed. The plaintiffs may
have other remedies in law for recovery of balance of consideration, but could
not be granted relief of cancellation of registered sale deed.” Therefore law laid
down by the court in Dahiben (supra) this contention of the plaintiff is liable to
be rejected.
8. Hence in view of above considerations plaintiff is not entitled to decree of
cancellation of sale deed as well as registered agreement.

9. Other relief claimed by the plaintiff is of perpetual injunction. With respect

to grant of perpetual injunction, Hon’ble SC in Anathula Sudhakar v. P. Buchi
Reddy (Dead) By LRs AIR 2008 SC 2033 in paragraph 13 held: “In a suit for
permanent injunction to restrain the defendant from interfering with plaintiff's
possession, the plaintiff will have to establish that as on the date of the suit he
was in lawful possession of the suit property and defendant tried to interfere or
disturb such lawful possession.” What is required to be proved for grant of
perpetual injunction is possession. In this regard from the documents
produced by plaintiff himself it is clear that plaintiff’s power of attorney holder
has transferred some part of the property to defendant no. 1 by registered sale
deed which still stands. Hence in view of contradiction between sale deed and
oral evidence, it cannot be said that plaintiffs are in possession of disputed
property as it is well settled that mutation of the property in the revenue
records does not create or extinguish title nor it has any presumptive value of
title, it only enables the person in whose favour mutation is ordered to pay the
land revenue in question. (Sawarni v. Inder Kaur (1996) 6 SCC 223, H.
Lakshmaiah v. L. Venkatesh Reddy 2015 (3) A.L.R. 238 S.C.) Therefore in
view of the law laid down by Hon’ble SC this argument is not tenable and
liableto be rejected. Hence in view of the law laid down in Anathula Sudhakar
(supra) plaintiff is not entitled to decree of perpetual injunction.
10.In view of the above facts and law on the point suit is liable to be dismissed.
ORDER
The O.S. No. 183/2017 Harprasad and others v. Munni Begum and others is
dismissed ex parte. File be consigned to record room according to rule.

Date: 20/9/2021 (Arijeet Singh)

Civil Judge (Junior Division), FTC
Court No. 2, Aligarh
JO Code: UP3625
This ex parte judgment was signed, dated and pronounced by me in open court
today.

Date: 20/9/2021 (Arijeet Singh)

Civil Judge (Junior Division), FTC
Court No. 2, Aligarh
JO Code: UP3625