Rsa No.2010 of 2012 (Oandm) Vs. Buta Singh and anr. - Court Judgment

SooperKanoon Citationsooperkanoon.com/1091052
CourtPunjab and Haryana High Court
Decided OnSep-13-2013
AppellantRsa No.2010 of 2012 (Oandm)
RespondentButa Singh and anr.
Excerpt:
in the high court of punjab and haryana at chandigarh rs.no.2001 of 2012 (o&m) date of decision: 13.09.2013 joginder singh ......appellant(s) versus buta singh & anr......respondent(s) rs.no.2010 of 2012 (o&m) joginder singh ......appellant(s) versus satpal singh & ors......respondent(s) coram:- hon'ble mr.justice rakesh kumar garg * * * present: mr.l.s.sidhu, advocate for the appellant. rakesh kumar garg, j. this order shall dispose of two appeals i.e.rs.nos.2001 and 2010 of 2012 which have been filed on behalf of the appellant challenging two different sale deeds on similar facts and raising similar grounds. the facts are being taken from rs.no.2001 of 2012 for the sake of convenience. this is plaintiff's second appeal challenging the judgments and decrees of the courts below whereby his suit for declaration and permanent injunction against the defendant-respondents has been dismissed. the appellant filed the civil suit to the effect that he is owner in possession of 1/4th share in suit land measuring 85 kanals 8 marlas and saini pushpinder 2013.09.24 17:22 i attest to the accuracy and integrity of this document high court chandigarh sale deed dated 15.4.2008 regarding 1/6th share of the suit land measuring 85 kanals 8 marlas is wrong, illegal, null and void, result of fraud, without consideration and has no effect on his rights and the mutation no.4854 sanctioned thereupon in favour of the defendants is also wrong and has no effect on his rights and further the defendant-respondents be restrained from alienating the suit land in any manner or raise construction upon it and dispossessing the plaintiff from it forcibly and illegally on the basis of the aforesaid impugned sale deed and mutation. plaintiff-joginder singh has filed the present suit through his next friend malkiat kaur by alleging himself to be a person of unsound mind making further averments that the alleged sale deed dated 15.4.2008 is wrong, illegal and result of fraud as the plaintiff being a person of unsound mind could not have been executed the sale deed in favour of the defendant-respondents. upon notice, the respondents did not appear despite service and they were proceeded against ex parte vide order dated 16.10.2008 and 5.11.2008. in ex parte evidence, malkiat kaur next friend of the appellant- joginder singh stepped into witness box as pw-1 and further examined darshan singh as pw-2 and thereafter, closed the evidence by producing copy of sale deed dated 15.4.2008 ex.p1 and endorsement of the sub registrar of the sale deed ex.p-2, copy of jamabandi 2005-06 ex.p-3 and copy of order dated 20.8.2008 as ex.p4. on appreciation of evidence, both the courts below found that sale deed was executed by the plaintiff-appellant himself in the presence of witnesses teja singh, lambardar and gurjant singh. it is not the case of the appellant that proper procedure for registration was not followed at saini pushpinder 2013.09.24 17:22 i attest to the accuracy and integrity of this document high court chandigarh the time of execution of the sale deed by the sub registrar. the witnesses to the sale deed, who had identified the plaintiff before sub registrar, have not been examined to prove the fact that he was unable to execute any document at the time of execution being of unsound mind. while dismissing the suit, the trial court further found that plaintiff-joginder singh has failed to produce any medical evidence on the file to prove himself to be a person of unsound mind, so it cannot be said that the appellant was a person of unsound mind and was not competent to execute the sale deed in question. thus, the suit of the plaintiff-appellant was dismissed. the appeal filed by the appellant before the firs.appellate court was also dismissed and the findings of the trial court were affirmed. the relevant part of the judgment of the lower appellate court reads thus: “in the present case appellant is mainly aggrieved that learned trial court fell in error by not holding that present appellant is of un-sound mind and is not in sound deposing mind but i do not find any merit in the argument advanced by learned counsel for the appellant as in the present case suit has been filed before the learned trial court by appellant joginder singh through his next friend malkiat kaur, malkiat kaur is none else but daughter of present appellant joginder singh and in her plaint she has taken the stand that her father joginder singh is mentally upset and she has also reiterated her stand in her affidavit saini pushpinder 2013.09.24 17:22 i attest to the accuracy and integrity of this document high court chandigarh ex.pw1/a and she also claims that she has been taking care of her father and he is residing with her and she was providing him medicine but she has failed to produce even single document to support her contention and even if her affidavit is perused minutely then she has stated that her father remained mentally upset and learned trial court has rightly came to the conclusion that merely being mentally upset does not render person of un-sound mind and further in absence of any documentary proof or medical evidence, the learned trial court has rightly held that she has failed to prove that appellant was of un-sound mind.”. still not satisfied, the appellant has filed the instant appeal. along with the appeal, two applications have been placed on record as annexures a-1 and a-2. annexure a-1 is an application for leading additional evidence to prove the fact that joginder singh-appellant is of unsound mind and annexure a-2 is an application under order 32 rule 15 read with section 151 cpc for directing the chief medical officer, mansa to medically examine joginder singh for declaring him a person of unsound mind. at this stage, it may be noticed that these applications for additional evidence and issuing directions to the cmo, mansa to medically examine appellant for declaring him a person of unsound mind were also filed in the firs.appellate court. it is the contention of the appellant that no order was passed on the applications. however, in the grounds of appeal, saini pushpinder 2013.09.24 17:22 i attest to the accuracy and integrity of this document high court chandigarh no such allegation has been levelled by the counsel for the appellant that despite there pressing the aforesaid applications, the lower appellate court refused to pass any order on the said applications. in fact, counsel for the appellant was not sure about passing of any of the orders on the file in this regard. be that as it may, since no such ground has been raised before the lower appellate court, this court is not inclined to take notice of the aforesaid applications as placed on record before this court. it may further be noticed that the appellant has also filed an application before this court i.e.cm no.9406-c of 2013 with a prayer to conduct an enquiry regarding the mental state of appellant so that he could be declared as a person of unsound mind. it may further be noticed that in view of the findings of the courts below to the effect that the appellant has failed to place on record any medical evidence to prove him a person of unsound mind, the application filed in this court for conducting an enquiry regarding the mental state of appellant, is not maintainable. even counsel for the appellant could not satisfy this court as to how this appeal filed on behalf of the appellant-joginder singh was competent/maintainable which has been filed through malkiat kaur as joginder singh-appellant himself has not been declared a person of unsound mind. in any case even on merits of the appeal, in the absence of any evidence to declare the appellant as a person of unsound mind, counsel for the appellant was at a loss to challenge the execution of the sale deed in favour of the respondents and subsequent proceedings thereon. no other argument has been raised. in view of the aforesaid discussion, this court finds that no substantial question of law arises in these appeals. saini pushpinder 2013.09.24 17:22 i attest to the accuracy and integrity of this document high court chandigarh thus, both the appeals are dismissed. since both these appeals have been dismissed on merits, the applications viz. cm nos.5560 & 5570-c of 2012 for condonation of delay of 263 days have become redundant. september 13, 2013 (rakesh kumar garg) ps judge saini pushpinder 2013.09.24 17:22 i attest to the accuracy and integrity of this document high court chandigarh in the high court of punjab and haryana at chandigarh rs.no.2010 of 2012 (o&m) date of decision: 13.09.2013 joginder singh ......appellant(s) versus satpal singh & ors......respondent(s) coram:- hon'ble mr.justice rakesh kumar garg * * * present: mr.l.s.sidhu, advocate for the appellant. rakesh kumar garg, j. for orders.see rs.no.2001 of 2012 titled as “joginder singh versus buta singh and another”.september 13, 2013 (rakesh kumar garg) ps judge saini pushpinder 2013.09.24 17:22 i attest to the accuracy and integrity of this document high court chandigarh
Judgment:

IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Rs.No.2001 of 2012 (O&M) Date of decision: 13.09.2013 Joginder Singh ......Appellant(s) Versus Buta Singh & anr......Respondent(s) Rs.No.2010 of 2012 (O&M) Joginder Singh ......Appellant(s) Versus Satpal Singh & ors......Respondent(s) CORAM:- HON'BLE MR.JUSTICE RAKESH KUMAR GARG * * * Present: Mr.L.S.Sidhu, Advocate for the appellant.

Rakesh Kumar Garg, J.

This order shall dispose of two appeals i.e.Rs.Nos.2001 and 2010 of 2012 which have been filed on behalf of the appellant challenging two different sale deeds on similar facts and raising similar grounds.

The facts are being taken from Rs.No.2001 of 2012 for the sake of convenience.

This is plaintiff's second appeal challenging the judgments and decrees of the Courts below whereby his suit for declaration and permanent injunction against the defendant-respondents has been dismissed.

The appellant filed the civil suit to the effect that he is owner in possession of 1/4th share in suit land measuring 85 kanals 8 marlas and Saini Pushpinder 2013.09.24 17:22 I attest to the accuracy and integrity of this document High Court Chandigarh sale deed dated 15.4.2008 regarding 1/6th share of the suit land measuring 85 kanals 8 marlas is wrong, illegal, null and void, result of fraud, without consideration and has no effect on his rights and the mutation No.4854 sanctioned thereupon in favour of the defendants is also wrong and has no effect on his rights and further the defendant-respondents be restrained from alienating the suit land in any manner or raise construction upon it and dispossessing the plaintiff from it forcibly and illegally on the basis of the aforesaid impugned sale deed and mutation.

Plaintiff-Joginder Singh has filed the present suit through his next friend Malkiat Kaur by alleging himself to be a person of unsound mind making further averments that the alleged sale deed dated 15.4.2008 is wrong, illegal and result of fraud as the plaintiff being a person of unsound mind could not have been executed the sale deed in favour of the defendant-respondents.

Upon notice, the respondents did not appear despite service and they were proceeded against ex parte vide order dated 16.10.2008 and 5.11.2008.

In ex parte evidence, Malkiat Kaur next friend of the appellant- Joginder Singh stepped into witness box as PW-1 and further examined Darshan Singh as PW-2 and thereafter, closed the evidence by producing copy of sale deed dated 15.4.2008 Ex.P1 and endorsement of the Sub Registrar of the sale deed Ex.P-2, copy of Jamabandi 2005-06 Ex.P-3 and copy of order dated 20.8.2008 as Ex.P4.

On appreciation of evidence, both the Courts below found that sale deed was executed by the plaintiff-appellant himself in the presence of witnesses Teja Singh, Lambardar and Gurjant Singh.

It is not the case of the appellant that proper procedure for registration was not followed at Saini Pushpinder 2013.09.24 17:22 I attest to the accuracy and integrity of this document High Court Chandigarh the time of execution of the sale deed by the Sub Registrar.

The witnesses to the sale deed, who had identified the plaintiff before Sub Registrar, have not been examined to prove the fact that he was unable to execute any document at the time of execution being of unsound mind.

While dismissing the suit, the trial Court further found that plaintiff-Joginder Singh has failed to produce any medical evidence on the file to prove himself to be a person of unsound mind, so it cannot be said that the appellant was a person of unsound mind and was not competent to execute the sale deed in question.

Thus, the suit of the plaintiff-appellant was dismissed.

The appeal filed by the appellant before the FiRs.Appellate Court was also dismissed and the findings of the trial Court were affirmed.

The relevant part of the judgment of the Lower Appellate Court reads thus: “In the present case appellant is mainly aggrieved that learned trial Court fell in error by not holding that present appellant is of un-sound mind and is not in sound deposing mind but I do not find any merit in the argument advanced by learned counsel for the appellant as in the present case suit has been filed before the learned trial Court by appellant Joginder Singh through his next friend Malkiat Kaur, Malkiat Kaur is none else but daughter of present appellant Joginder Singh and in her plaint she has taken the stand that her father Joginder Singh is mentally upset and she has also reiterated her stand in her affidavit Saini Pushpinder 2013.09.24 17:22 I attest to the accuracy and integrity of this document High Court Chandigarh Ex.PW1/A and she also claims that she has been taking care of her father and he is residing with her and she was providing him medicine but she has failed to produce even single document to support her contention and even if her affidavit is perused minutely then she has stated that her father remained mentally upset and learned trial Court has rightly came to the conclusion that merely being mentally upset does not render person of un-sound mind and further in absence of any documentary proof or medical evidence, the learned trial Court has rightly held that she has failed to prove that appellant was of un-sound mind.”

.

Still not satisfied, the appellant has filed the instant appeal.

Along with the appeal, two applications have been placed on record as Annexures A-1 and A-2.

Annexure A-1 is an application for leading additional evidence to prove the fact that Joginder Singh-appellant is of unsound mind and Annexure A-2 is an application under Order 32 Rule 15 read with Section 151 CPC for directing the Chief Medical Officer, Mansa to medically examine Joginder Singh for declaring him a person of unsound mind.

At this stage, it may be noticed that these applications for additional evidence and issuing directions to the CMO, Mansa to medically examine appellant for declaring him a person of unsound mind were also filed in the FiRs.Appellate Court.

It is the contention of the appellant that no order was passed on the applications.

However, in the grounds of appeal, Saini Pushpinder 2013.09.24 17:22 I attest to the accuracy and integrity of this document High Court Chandigarh no such allegation has been levelled by the counsel for the appellant that despite there pressing the aforesaid applications, the Lower Appellate Court refused to pass any order on the said applications.

In fact, counsel for the appellant was not sure about passing of any of the orders on the file in this regard.

Be that as it may, since no such ground has been raised before the Lower Appellate Court, this Court is not inclined to take notice of the aforesaid applications as placed on record before this Court.

It may further be noticed that the appellant has also filed an application before this Court i.e.CM No.9406-C of 2013 with a prayer to conduct an enquiry regarding the mental state of appellant so that he could be declared as a person of unsound mind.

It may further be noticed that in view of the findings of the Courts below to the effect that the appellant has failed to place on record any medical evidence to prove him a person of unsound mind, the application filed in this Court for conducting an enquiry regarding the mental state of appellant, is not maintainable.

Even counsel for the appellant could not satisfy this Court as to how this appeal filed on behalf of the appellant-Joginder Singh was competent/maintainable which has been filed through Malkiat Kaur as Joginder Singh-appellant himself has not been declared a person of unsound mind.

In any case even on merits of the appeal, in the absence of any evidence to declare the appellant as a person of unsound mind, counsel for the appellant was at a loss to challenge the execution of the sale deed in favour of the respondents and subsequent proceedings thereon.

No other argument has been raised.

In view of the aforesaid discussion, this Court finds that no substantial question of law arises in these appeals.

Saini Pushpinder 2013.09.24 17:22 I attest to the accuracy and integrity of this document High Court Chandigarh Thus, both the appeals are dismissed.

Since both these appeals have been dismissed on merits, the applications viz.

CM Nos.5560 & 5570-C of 2012 for condonation of delay of 263 days have become redundant.

September 13, 2013 (RAKESH KUMAR GARG) ps JUDGE Saini Pushpinder 2013.09.24 17:22 I attest to the accuracy and integrity of this document High Court Chandigarh IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Rs.No.2010 of 2012 (O&M) Date of decision: 13.09.2013 Joginder Singh ......Appellant(s) Versus Satpal Singh & ors......Respondent(s) CORAM:- HON'BLE MR.JUSTICE RAKESH KUMAR GARG * * * Present: Mr.L.S.Sidhu, Advocate for the appellant.

Rakesh Kumar Garg, J.

For ordeRs.see Rs.No.2001 of 2012 titled as “Joginder Singh versus Buta Singh and another”.September 13, 2013 (RAKESH KUMAR GARG) ps JUDGE Saini Pushpinder 2013.09.24 17:22 I attest to the accuracy and integrity of this document High Court Chandigarh