Judgment:
RSA No.149 of 1987 (O&M) 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.149 of 1987 (O&M) Date of Decision:
3. 7.2014. Gurbachan Singh and others ..... Appellants Versus Tara Singh and others .... Respondents CORAM: HON'BLE MR. JUSTICE K.C. PURI. Present: Mr. Sanjay Majithia, Sr. Advocate with Mr. Rajesh Kumar, Advocate, for the appellants. Mr. M.S. Rakkar, Sr. Advocate with Mr. J.S. Virk, Advocate, for the respondents. K.C. PURI.J This is an appeal directed by defendants against the judgment and decree dated 23.10.1986 passed by Sh. B. Rai, Additional District Judge, Hoshiarpur vide which the first appeal preferred by the appellants against the judgment dated 26.5.1984 passed by Sh. Lakhbir Singh, Sub Judge Ist Class, Dasuya was dismissed.
2. Briefly stated, Tara Singh and others filed suit for possession of land measuring 13 kanals 19 marlas being ½ share of land measuring 27 kanals 17 marlas as detailed in the head note of the plaint. The case of the plaintiffs is that Deva Singh son of Budh Singh was the owner of suit property. Said Deva Singh executed sale deeds dated 20.11.1978 and 24.1.1979 in favour of the plaintiffs for consideration in the presence of marginal witnesses in a sound disposing mind. The sale deed dated 20.11.1978 was executed in respect of land measuring 13 kanals 19 marlas out of 27 kanals 17 marlas but by omission the Deed Writer mentioned in it Sanjay 2014.07.25 14:00 I attest to the accuracy and integrity of this document chandigarh RSA No.149 of 1987 (O&M) 2 the situation of the property bearing Khewat No.517 Khatuni No.881 Khasra No.16181/447 village Munak Khurd whereas this property in fact is situated at Munak Kalan. Deva Singh executed another sale deed dated 24.1.1979 in their favour regarding the land mentioned above measuring 6 marlas out of land measuring 12 marlas. Deva Singh died on 13.12.1979. Mangal Singh son of Budh Singh brother of Deva Singh got mutation of inheritance of Deva Singh sanctioned in his favour even in respect of land sold to them. Mangal Singh forcibly took possession of the suit land. The mutation in favour of Mangal Singh is illegal. The plaintiffs filed appeal against the order of sanction of mutation passed by AC Ist Grade and that stands decided in favour of the plaintiffs and Mangal Singh preferred an appeal in the Court of Commissioner which is still sub-judice. Dasondha Singh was impleaded as proforma defendant.
3. Mangal Singh died and defendants No.1 to 9 have been brought on record as his legal heirs before the trial Court.
4. On put to notice, Sh. Madan Mohan, Advocate, Dasuya appeared on behalf of respondents No.6 to 9 but on 6.9.1982 he pleaded no instructions and consequently, they were proceeded exparte before the trial Court. Dasondha Singh did not file written statement inspite of opportunity given to him.
5. The suit was contested by defendants No.1 to 5 by filing written statement. There was objection regarding valuation of the plaint. The ownership of Deva Singh in respect of suit land was admitted but it was pleaded that Deva Singh had separate possession from Dasondha Singh. Execution of sale deeds in favour of the plaintiffs was denied. They pleaded Sanjay 2014.07.25 14:00 I attest to the accuracy and integrity of this document chandigarh RSA No.149 of 1987 (O&M) 3 that Deva Singh had lost his sense and discretion. He could not differentiate between good and bad and that he had no necessity to execute the sale deeds. They have further pleaded that even if the sale deeds are proved even then those were not executed by Deva Singh while in sound disposing mind and the same are result of fraud, misrepresentation and undue influence. The said sale deeds were without consideration. Deva Singh had no legal necessity to alienate the ancestral land.
6. The plaintiffs filed replication denying the contents of written statement and re-iterating the stand taken in the plaint.
7. From the pleadings of the parties, following issues were framed:- 1. Whether the plaint is liable to be rejected as per objections in para No.1 of the written statement ?. OPD2 Whether the suit has been properly valued for the purpose of Court fee and jurisdiction ?.OPP3 Whether the plaintiffs have purchased 13 kanals 19 marlas out of the suit land as per sale deed dated 20.11.78 and 24.1.79 from Deva Singh as per allegations in para No.3 and 4 of the plaint ?. If so, to what effect OPD3A If issue No.2 is proved, whether the sale deeds dated 20.11.78 and 24.1.79 are the result of fraud and misrepresentation?. If so, to what effect?. OPD4 Whether after the death of Deva Singh vendor on 13.12.79 defendant No.1 has got mutation effected Sanjay 2014.07.25 14:00 I attest to the accuracy and integrity of this document chandigarh RSA No.149 of 1987 (O&M) 4 wrongly and illegally in his favour?. If so, to what effect ?. OPP5 Whether defendant No.1 Mangal Singh has taken the forcible possession of the suit land?. If so, to what effect?. OPP6 Whether the plaintiffs are entitled to the joint possession of land measuring 13 kanals 19 marlas in the suit land ?.OPP7 Relief.
8. The plaintiffs have examined PW-1 Sarup Singh, PW-2 Sarabjit Singh, PW-3 Bhupinder Singh Sub Registrar, PW-4 Karam Singh, PW-5 Khushal Singh, PW-6 Raghbir Singh, Pargan Singh plaintiff himself appeared as PW-7 and PW-8 Tara Singh and closed the evidence after tendering certain documents.
9. In rebuttal, the defendants examined DW-1 Prem Pal, DW-2 Resham Singh, DW-3 Hakam Singh, DW-4 Ram Narain, DW-5 Bhagat Ram, DW-6 Dev Raj Garg Tehsildar and Ranjit Singh defendant himself appeared as his own witness as DW-7 and closed the evidence after tendering certain documents.
10. The defendants before the trial Court made statement on 24.4.1984 regarding not pressing issue No.1 and the said issue was decided accordingly. Issues No.2,3,4 and 5 were decided in favour of the plaintiffs and against the defendants. Consequently, suit of the plaintiffs for joint possession was decreed. Sanjay 2014.07.25 14:00 I attest to the accuracy and integrity of this document chandigarh RSA No.149 of 1987 (O&M) 5 11. Feeling dis-satisfied with the above said judgment and decree dated 26.5.1984, the defendants preferred an appeal which was dismissed vide judgment and decree dated 23.10.1986 passed by Sh. B. Rai, Additional District Judge, Hoshiarpur.
12. Still feeling dis-satisfied with the judgments and decrees dated 26.5.1984 and 23.10.1986, the defendants appellants have filed the present regular second appeal.
13. Tara Singh died during the pendency of appeal and his legal heirs were brought on record by allowing CM No.421-C of 2014.
14. Legal heirs of Dasondha Singh were brought on record by allowing CM No.6901-C of 2004.
15. Legal heirs of Nirmal Singh respondent No.3 were brought on record by allowing CM No.6902-C of 2004 vide order dated 20.8.2004 passed by this Court.
16. The defendants appellants have placed on record the substantial questions of law mentioned below:- 1. Whether the sale deed being a bilateral document becomes ab-initio void without proof of payment of sale consideration?.
2. Whether the appellate Court committed grave factual and legal error in observing in para 13 that once it is established that the sale deeds were duly executed by Deva Singh, the inadequacy of sale consideration is of non consequence since on record there is no evidence of payment of any money towards sale consideration?. Sanjay 2014.07.25 14:00 I attest to the accuracy and integrity of this document chandigarh RSA No.149 of 1987 (O&M) 6 3. Whether the appellate Court can travel beyond the case pleaded and proved since it was never the case of respondents that appellants repudiated the sale made because of inadequacy of sale consideration ?.
4. Whether the statements recorded in judicial proceedings civil or criminal bind the party making the statement?.
5. Whether it is incumbent upon the vendee to tacitly prove the consideration and source of money if vendor denies its receipt ?.
17. The main stress of counsel for the appellants is in respect of passing of consideration through sale deeds dated 20.11.1978 and 24.1.1979. It is submitted that plaintiffs now respondents have failed to prove the passing of consideration. It is submitted that according to plaintiff Tara Singh, out of the total sale consideration, Rs.2000/- were paid when marriage of Mohinder Singh son of father's sister took place. According to him, Rs.3000/- were paid in the year 1976 when Deva Singh spent amount on Bhandara at Beas in Gurudwara of Radhaswami. It is further alleged that Rs.6000/- were obtained in the last month of 1977 when he went to Hazoor Sahib for langer and it is further alleged that Rs.1500/- were sent when he was ill before his death. It is submitted that in this manner, the total sale consideration is Rs.12,500/- whereas actual sale consideration as per the sale deeds is Rs.12,200/-. It is further submitted that the first appellate Court has upheld the judgment by observing that the sale deeds cannot be set aside Sanjay 2014.07.25 14:00 I attest to the accuracy and integrity of this document chandigarh RSA No.149 of 1987 (O&M) 7 being of less consideration. The case of the defendants appellants is not that the sale deed is for less consideration but the consistent case of the defendants is that sale deed is without consideration. It is submitted that in proceedings under Section 145 Cr.P.C, Tara Singh in the shape of PW1/D1 has stated that whole of the consideration was paid at the time of execution of sale deeds. So, the plaintiffs have failed to prove the consideration.
18. It is submitted that in authority Ajaib Singh vs. Smt. Tulsi Devi 2000(4) RCR(Civil) 239 the Hon'ble Apex Court has held that mere vague and contradictory averments regarding payments made cannot be believed.
19. The Allahabad High Court in authority Smt. Phuljhari Devi vs. Mithal Lal and others AIR1971Allahabad 494 held that a plea that a particular contract is void for uncertainty under Section 29 of Contract Act, the same being plea of pure law can be raised for the first time at the hearing of second appeal.
20. Deva Singh has contested the fact that he executed the sale-deeds in a mutation proceeding. The mutation of sale deeds was not attested on that account.
21. It is further submitted that in authority Ram Niwas and another vs. Rakesh Kumar 1982 PLR9Division Bench of this Court held that when the parties are alive to the points arising in the case, in that case, non framing of issue regarding consideration can be decided on the basis of evidence on the file.
22. It is submitted that the judgments of both the Courts below are result of misreading and misinterpreting the evidence on the file. Sanjay 2014.07.25 14:00 I attest to the accuracy and integrity of this document chandigarh RSA No.149 of 1987 (O&M) 8 The sale deeds being bilateral documents without consideration become void ab initio. The statement made by Tara Singh in proceeding under Section 145 Cr.P.C is binding. The onus to prove the consideration was upon the plaintiffs. More so, after repudiating the claim of plaintiffs in the mutation proceeding by Deva Singh, the plaintiffs are required to prove the source of money and and receipt thereof. The consideration pleaded by the plaintiffs in the Court cannot be said to be a consideration. Deva Singh was unmarried and without any issue. The plaintiffs have exploited him by forging the sale deeds.
23. Learned counsel for the respondents has supported the judgments of both the Courts below. It is submitted that the Hon'ble Apex Court in authority Kondiba Dagadu Kadam vs. Savitribai Sopan Gujar and others AIR1999SC2213held that concurrent findings of facts howsoever erroneous cannot be disturbed in exercise of powers under Section 100 CPC. The issue between the parties was regarding execution of sale deeds dated 20.11.1978 and 24.1.1979. There is a concurrent finding of fact that sale deeds have been executed by Deva Singh in favour of the plaintiffs. The detailed reasoning has been given. It is not proved that Deva Singh has not appeared before the Sub Registrar. Even DW-6 Dev Raj Garg has admitted that sale deed dated 20.11.1978 was executed by Deva Singh in his presence and he has admitted the factum of receiving the consideration. According to defendant, Deva Singh was present on 30.4.1979 when the mutation of sale deed in favour of the plaintiffs was dismissed which has been disputed by the plaintiff. However, assuming that he was present on 30.4.1979 at the time of effecting the mutation of sale Sanjay 2014.07.25 14:00 I attest to the accuracy and integrity of this document chandigarh RSA No.149 of 1987 (O&M) 9 deed in that case, he came to know about the execution of sale deeds at least on that day. Said Deva Singh has not filed any complaint before any competent authority about the non-passing of consideration or regarding committing fraud upon him. He remained alive for about 8 months thereafter. He has not filed suit challenging the said sale deeds. The marginal witnesses of the sale deeds in question and Sub Registrar of both the sale deeds and Scribe have been produced and they proved the sale deeds. The defendant himself has admitted the fact that deceased was residing with Dasondha Singh as he along with plaintiff was serving him so the concurrent finding of fact regarding execution of sale deeds cannot be agitated in the regular second appeal in view of Section 100 CPC and in view of authority Kondiba Dagadu Kadam's case (supra).
24. I have given my thoughtful consideration to the submissions made by both the sides and have gone through the case.
25. It is settled law that the High Court can interfere only if there is misreading or misinterpretation of the evidence on the file or that conclusions drawn by lower appellate Court are erroneous being contrary to the mandatory provisions of law applicable or its settled position on the basis of pronouncements made by the Apex Court. There is nothing on the file that the concurrent finding recorded by both the Courts below regarding execution of sale deeds is contrary to mandatory provisions of law or its settled position on the basis of pronouncements made by the Apex Court. There is nothing on the file that the same is based on inadmissible evidence. Both the Courts below have appreciated the evidence on the file threadbare and reached to the conclusion that Deva Singh has executed certain sale Sanjay 2014.07.25 14:00 I attest to the accuracy and integrity of this document chandigarh RSA No.149 of 1987 (O&M) 10 deeds in favour of the plaintiffs. Deva Singh has not challenged these sale deeds during his life time although he remained alive for 8 months from the rejection of mutation in favour of plaintiffs. In appeal, the mutation was attested in favour of the plaintiffs and the matter has been challenged by the defendants before the Commissioner which was stated to be pending at the time of filing the suit. Deva Singh is not a stranger for the plaintiffs. From the evidence on the file, it is revealed that Dasondha Singh father of the plaintiffs was residing with Deva Singh as the latter was unmarried and without any child. Regarding consideration, according to plaintiffs, different amounts were paid to Deva Singh on different occasions and in lieu of those payments, Deva Singh has executed sale deeds in their favour. The execution of both the sale deeds has even been proved by evidence produced by the defendants themselves as DW-6 Dev Raj Garg has categorically stated that the main sale deed dated 20.11.1978 was executed by Deva Singh in his presence and Deva Singh has admitted the factum of receiving the consideration. Once the sale deed was executed in his presence, in that case, he should not have rejected the mutation of the said sale deed on 30.4.1979. The Assistant Collector has set aside the order of rejecting the mutation. The sale deed dated 20.11.1978 contained the major portion of land i.e. 13 Kanals 19 Marlas. The sale deed dated 24.1.1979 is in respect of 6 marlas of land which is stated to be correction in respect of earlier sale deed dated 20.11.1978. The Sub Registrar in respect of latter sale deed has also been produced. The registered document proved on the file could not be discarded in such a light manner. More so, the executant of the documents has not challenged the validity of said sale deeds during his Sanjay 2014.07.25 14:00 I attest to the accuracy and integrity of this document chandigarh RSA No.149 of 1987 (O&M) 11 life time. He has not raised any little finger regarding the execution of these sale deeds although he remained alive for sufficient long period. It does not lie in the mouth of defendants appellants that sale deeds are without any consideration. There is recital in the sale deeds that the same are for consideration. Tara Singh in his statement unambiguously stated that amount was paid. It is mentioned in the said statement that consideration was paid within time i..e before execution of sale deeds. The details have been given by the plaintiffs during the course of statement made by Tara Singh.
26. At the time of rejection of mutation Ex. D1 and Ex. D2, plaintiff Pargan Singh is stated to be present but there is evidence on the file that at the relevant time, he was at Dubai so, there is no guarantee that even Deva Sngh appeared on 30.4.1979. The Lambardar of Moonak Kalan was stated to be present whereas the land belonged to village Moonak Khurd. No explanation has been given for non presence of Lambardar of village Moonak Khurd at the time of attestation of mutation in respect of land of village Moonak Kalan. Hakam Singh PW-3 produced in the Court has stated that he was present as the mutation of his village were to be attested on 30.4.1979. He has admitted that there were five Lambardars of village Moonak Kalan and four Lambardars of village Moonak Khurd. The presence of Pragan Singh is totally ruled out as Hakam Singh in his cross examination has stated that he cannot identify any other son of Dasondha Singh except Tara Singh so, the presence of Pragan Singh on 30.4.1979 is ruled out even from his cross examination and the document Ex. PW-7/A.
27. So far as the authority Ajaib Singh's case (supra) is Sanjay 2014.07.25 14:00 I attest to the accuracy and integrity of this document chandigarh RSA No.149 of 1987 (O&M) 12 concerned, that authority is distinguishable as the said case relates to specific performance of contract and the mere vague and contradictory averments regarding the payment were not proved.
28. The authority Smt. Phuljhari Devi's case (supra) is also distinguishable as the said case also relates to specific performance and the contract which was relied upon was uncertain so, under those circumstances the contract was not interfered.
29. So, critically analyzing the facts, I have no hesitation in holding that no question of law much less a substantial question of law has arisen in the present case. The dispute in the present case is in respect of factual position of execution of sale deeds. There is concurrent finding of fact recorded by both the Courts below that sale deeds were duly executed and were for consideration so, that finding of fact cannot be interfered in view of Section 100 CPC. So, in these circumstances, the appeal is without any merit and the same stands dismissed. 3.7.2014 (K.C. PURI) SN JUDGE Sanjay 2014.07.25 14:00 I attest to the accuracy and integrity of this document chandigarh