Rsa No.4602 of 2011 (Oandm) Vs. Rsa No.4602 of 2011 (Oandm) - Court Judgment

RSA No.4602 of 2011 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. RSA No.4602 of 2011 (O&M) Date of decision:

01. 07.2014 Vipin & another -----Appellant(s) v. Smt. Roshni Devi & others -----Respondent(s) CORAM:- HON'BLE MR. JUSTICE RAKESH KUMAR GARG1 Whether reporters of local newspapers may be allowed to see judgment?.

2. To be referred to reporters or not?.

3. Whether the judgment should be reported in the Digest?. Present: Mr. D.K. Jangra, Advocate for the appellants. --- RAKESH KUMAR GARG, J.

This is plaintiffs’ second appeal challenging the judgments and decrees of the Courts below whereby their suit for declaration to the effect that they are owners in possession of the suit property was dismissed by both the Courts below. As per the appellants, they had purchased the suit property vide sale deed dated 30.3.1971 from its earlier owners, namely, Ram Sarup and Jage Ram and were in possession through their predecessor-in-interest. According to the appellants, they had come to know that the suit property has been recorded in the names of defendant no.1 on the basis of decree dated 28.4.1976 passed in Civil Suit No.275 titled as Rajender Vs. Ram Sarup etc. Even the mutation has been sanctioned. Since the defendants failed to get the revenue record corrected and admit Kumar Ashwani 2014.07.05 11:49 I attest to the accuracy and integrity of this document High Court Chandigarh RSA No.4602 of 2011 2 the claim of the plaintiff-appellants, necessity arose to file the instant suit. The suit was contested by defendant no.1 stating that the suit property was rightly recorded in their favour by the revenue authorities on the basis of Civil Court decree. Execution of the sale deed, as set up by the plaintiffs, was denied. On the basis of pleadings of the parties, following issues were framed:-

“1. Whether the family settlement has taken place between the parties ?. OPP.

2. If issue No.1 is proved, whether the plaintiffs have become the owner of the suit land by way of family settlement and entitled for decree of declaration ?. OPP.

3. Whether the suit of the plaintiffs is not maintainable in the present form ?. OPD.

4. Whether the plaintiffs have no cause of action to file the present suit ?. OPD.

5. Whether the suit is bad for mis-joinder and non- joinder of necessary parties?. OPD.

6. Whether the suit of the plaintiffs is time-barred?. OPD.

7. Relief.”

. After hearing counsel for the parties and considering the evidence on record, the trial Court dismissed the suit vide judgment and decree dated 10.3.2010, observing as under:- “The claim of the plaintiffs is based on the sale deed dated 30.3.1971 Ex. P-2 which are allegedly executed by Jage Ram and Ram Sarup in favour of Kumar Ashwani 2014.07.05 11:49 I attest to the accuracy and integrity of this document High Court Chandigarh RSA No.4602 of 2011 3 Sultan Singh predecessor-in-interest of the plaintiffs regarding the disputed property. It is clear at the outset that the sale deed Ex. P-2 is an unregistered document and the sale consideration reflected in the sale deed is Rs. 99/- only and no attesting witness has been produced to prove the sale deed. PW-6 Ramesh Arya Petition Writer has been examined to prove the same, who has not written this document. He has claimed that the document was written by his father. This witness has not produced any register maintained by his father showing the corresponding entries of this sale deed, so as to show the authenticity of the same. The hand writing and finger print expert Sh. V.B. Kashyap has also compared the thumb impressions on this sale deed with the thumb impressions of Ram Sarup and Jage Ram on the records of a civil suit titled as Rajender Vs. Ram Sarup, but merely on the basis of such comparison, it could not be proved that the sale deed was executed by said Ram Sarup and Jage Ram in favour of Sultan Singh, in the absence of any direct evidence to prove the executing said deed (Ex. D-2). Further vide sale deed dated 30.3.1971 Ex. P-1, Sultan Singh transferred his share in the same plots to Ram Sarup and Jage Ram on the day of sale deed Ex. P-2, which nullifies the effect, if any, of the alleged sale. More so, above said Ram Sarup and Jage Ram had suffered a civil court decree dated 28.4.1976 in favour of the defendant No.1 and mutation of the same was entered and sanctioned on 28.11.1978, which was also implemented in the records of rights and as such, the defendant No.1 is continuing the owner in possession of the disputed property to the extent of 2/3rd share. Judgment and decree passed in favour of the defendant No.1 or the entries in the records of rights Kumar Ashwani 2014.07.05 11:49 I attest to the accuracy and integrity of this document High Court Chandigarh RSA No.4602 of 2011 4 were never challenged by the plaintiffs despite having the knowledge of the same and as such, they are estopped from challenging the same in the present suit. The contention of the learned counsel for the plaintiffs that the consent decree suffered in favour of the defendant No.1 was the result of fraud and misrepresentation is devoid of any force because a civil court decree passed on the consent of the parties is as good as a decree passed after consent and the same could not be ignored unless and until the same is set aside by the competent court of law. The fact that the plaintiffs have been filing different applications for partition of the disputed property and withdrawing the same before the same were finally adjudicated upon by the revenue authorities is sufficient to show that the plaintiffs not only admitted the defendant No.1 as co- sharers in the disputed property but also they were in the knowledge of the factum of ownership and possession of the defendant No.1 over 2/3rd share of the disputed property recorded in the revenue records.”

. Aggrieved from the aforesaid judgment and decree of the trial Court, the plaintiffs preferred an appeal before the first Appellate Court which was also dismissed vide impugned judgment and decree dated 28.5.2001. While dismissing the appeal, the lower Appellate Court observed as under:-

“13. As noted above sale deed dated 30.03.1971 - Ex. P-2 is an unregistered document. It is also not in dispute that Ram Sarup and Jage Ram had suffered a civil Court decree on 28.04.1976 in favour of defendant No.1 and mutation of the same was sanctioned on Kumar Ashwani 2014.07.05 11:49 I attest to the accuracy and integrity of this document High Court Chandigarh RSA No.4602 of 2011 5 28.11.1978 in favour of defendant/respondent No.1. To prove execution of sale deed dated 30.03.1971 appellants / plaintiffs have relied upon evidence of PW- 6 Sh. Ramesh Arya, Petition Writer and PW-7 Handwriting Expert. PW-6 petition writer stated that sale deed dated 30.03.1971 was scribed by his father, who was also a petition writer. In cross-examination, PW-6 has duly admitted that record regarding sale deed was being maintained by his father in register. PW-7 had compared the signatures of Ram Sarup and Jage Ram on sale deed dated 30.03.1971 with admitted thumb impression of Ram Sarup and Jage Ram on case file of judgment and decree dated 28.04.1976. In present case, plaintiffs/ appellants have succeeded in proving that thumb impression of Jage Ram as well as Ram Sarup are genuine. However, register of scribe showing entry regarding sale deed dated 20.03.1971 was not produced on the record. On the basis of evidence of PW-6 and PW-7 ld. counsel for appellants has argued that sale deed being a document which is 30 years old coupled with evidence of PW-6 and PW-7 stands duly established.

14. However, perusal of evidence produced by defendant/ respondent No.1 in fact creates serious doubt as regards to execution of sale deed dated 30.03.1971. Sale deed is unregistered document wherein value of property is shown to be Rs. 99/-. Admittedly on the same day, another sale deed Ex. P-1 was executed by Sultan Singh from whom present appellants have claimed their rights in suit property and said sale deed pertains to 50 square yards out of land sold by Ram Sarup and Jage Ram. Fact that 50 square yards was sold by Sultan Singh to Ram Sarup and Jage Ram for Rs.99/- on 30.03.1971 itself after Kumar Ashwani 2014.07.05 11:49 I attest to the accuracy and integrity of this document High Court Chandigarh RSA No.4602 of 2011 6 purchasing entire share for Rs. 99/- in fac creates suspicion and creates doubt over execution of sale deed. This fact if appreciated along with fact that appellants had on two occasions had withdrawn their partition application before revenue authorities wherein they had claimed 1/3rd right over the suit property instead of 2/3rd as being claimed in present suit. Perusal of Ex. D-4 partition application filed by appellants clearly shows that appellants had specifically sought partition of even plot Nos. 431 and 432 upon which they claimed to be cosharers. Appellants had sought 1/3rd share in the said plots. In para No.1 of Ex. D-4 appellants had claimed 1/3rd and admitted that 2 /3rd share is owned by second party i.e. Rama Nand and others Ex. D-4 was filed on 15.12.1999 and said partition proceeding was dismissed as withdrawn vide Ex. D-1 order dated 03.11.2000 passed by Court of Assistant Collector Ist Grade. Similarly, another application Ex. D-5 for partition was moved by appellants wherein again they have claimed 1 /3rd share in the joint property including plot Nos 431 and 432. Again no claim to the extent of 2/3rd share and reference of sale deed dated 30.03.1971 was made. Application of partition Ex D-5 was made on 21.11.2000. The said application was also withdrawn vide order dated 06.01.2003 passed by Assistant Collector Ist Grade. Vide Ex. D-9 an application was moved by LRs of Ram Sarup before Assistant Collector Ist Grade, it was submitted that the decree dated 28.04.1976 in favour of respondent No.1 has been set aside vide judgment and decree dated 18.04.1980 passed by the Court of Sh. R.C. Kathuria, ld. Sub Judge, Sonepat and therefore, the said property has reverted back to Ram Sarup and after his death same Kumar Ashwani 2014.07.05 11:49 I attest to the accuracy and integrity of this document High Court Chandigarh RSA No.4602 of 2011 7 has been inherited by Smt. Bhartu and after death of Smt. Bhartu same has been inherited by Jai Narain and others LRs of Smt. Bhartu. However, even said claim was not contested by appellants by claiming their rights in property of Ram Sarup and Jage Ram on the basis of sale deed dated 30.03.1971. From Ex. P-4 and Ex. P-5 is clearly made out that as late as 06.01.2003 appellants had not claimed any right over the share of Ram Sarup and Jage Ram on the basis of sale deed dated 30.03.1971. This fact clearly raises serious questions as regards to production of sale deed Ex. P-2 from proper custody. No explanation has come forward as to why sale deed dated 30.03.1971 has been light only after expiry of more than 30 years for the first time. Neither predecessor of appellants nor appellants had ever asserted any right over the suit property on the basis of sale deed dated 30.03.1971 before filing of the present suit. If all these facts are taken collectively the very existence of sale deed dated 30.03.1971 is surrounded by serious suspicion and is totally unreliable. The presumption attached to the documents more than 30 year therefore, cannot be raised in the present case.

15. In view of above discussion none of the authorities cited by ld. counsel for appellants is applicable in the facts and circumstances of the present case. Appellants/plaintiffs have failed to establish execution of sale deed dated 30.03.1971. Furthermore appellants have failed to show that decree dated 28.04.1976 in favour of defendant No.1 is bad in law. Same has attained finality. The only claim over suit property was on the basis of sale deed dated 30.03.1971 which appellants have failed to establish Kumar Ashwani 2014.07.05 11:49 I attest to the accuracy and integrity of this document High Court Chandigarh RSA No.4602 of 2011 8 and therefore, no fault with conclusion drawn by ld. lower Court can be found.”

. Still not satisfied, the plaintiffs have filed the instant appeal submitting that following substantial questions of law arise in this appeal for consideration of this Court:-

“1. Whether continuing possession over the property in dispute can be ignored which is based on the sale deed?.

2. Whether less consideration or the unregistration of document could be a ground to discard the same?.

3. Whether judgment/decree passed the Civil Court could be binding upon the rights of the parties in which appellants are not party to the suit?.

4. Whether once a property sold out by way of sale deed could be transfer later on by way of decree?.

5. Whether presumption attached to the 30 year old document could be rebutted on the basis of less consideration?.

6. Whether act and conduct of the respondents as well as revenue official is against the established law of partition and caused injustice to the appellant?.”. In support of his case, learned counsel for the appellants has vehemently argued that the Courts below have failed to appreciate that execution of the sale deed in question was duly proved. Moreover, the aforesaid document was more than 30 years old and therefore, a presumption of genuineness of the said document was attached to it and the Courts below have failed to raise such a presumption in favour of the appellants. Kumar Ashwani 2014.07.05 11:49 I attest to the accuracy and integrity of this document High Court Chandigarh RSA No.4602 of 2011 9 Counsel for the appellants has also argued that as per the report of Hand Writing Expert, the thumb impressions of Ram Sarup and Jage Ram on the sale deed have been proved and it has been stated by the Hand Writing Expert in his report that the thumb impressions in question are the similar to the admitted thumb impressions of Ram Sarup and Jage Ram in Civil Suit No.275 of 1976. Thus, the substantial questions of law, as raised, do arise in this appeal for consideration of this Court and the judgments and decrees of the Courts below are liable to be set aside. However, a perusal of the impugned judgments and decrees would show that both the Courts below, on appreciation of evidence, have recorded a finding against the appellants to the effect that they have failed to prove execution of the sale deed in question. Moreover, it is also an admitted fact that the sale deed in question is unregistered. No doubt, an immovable property less than Rs.100/- can be transferred by way of unregistered sale deed, however, execution of such a sale deed has to be proved on record. The appellants have miserably failed to prove the same. Admittedly, the witnesses of the sale deed have not been produced. Even no record of the Document Writer, who allegedly wrote the sale deed, has been produced. In view thereof, no fault can be found with the findings recorded by the Courts below against the appellants. It is well Kumar Ashwani 2014.07.05 11:49 I attest to the accuracy and integrity of this document High Court Chandigarh RSA No.4602 of 2011 10 settled that this Court while exercising its jurisdiction under Section 100 CPC would not substitute its view with the findings of the Courts below, even if on re-appreciation of evidence, another view is possible. Thus, no substantial question of law arises in this appeal. Dismissed. July 01, 2014 [RAKESH KUMAR GARG]. ak JUDGE Kumar Ashwani 2014.07.05 11:49 I attest to the accuracy and integrity of this document High Court Chandigarh