Rsa No.3420 of 2014 (Oandm) Vs. Rsa No.3420 of 2014 (Oandm) - Court Judgment

SooperKanoon Citationsooperkanoon.com/1158137
CourtPunjab and Haryana High Court
Decided OnJul-07-2014
AppellantRsa No.3420 of 2014 (Oandm)
RespondentRsa No.3420 of 2014 (Oandm)
Excerpt:
rsa no.3420 of 2014 1 in the high court of punjab and haryana at chandigarh. rsa no.3420 of 2014 (o&m) date of decision:07. 07.2014 balwinder singh & another -----appellant(s) v. veer pal kaur & another -----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. nakul sharma, advocate for the appellants. --- rakesh kumar garg, j.defendants no.1 and 2 have filed the instant appeal challenging the judgment and decree dated 17.5.2014 of the first appellate court whereby suit of the plaintiff-respondent for declaration has been decreed. the facts which emerge out from the impugned judgment and decree of the lower appellate court are that defendant no.3/ performa respondent no.2 joginder singh was the owner of the suit land, as detailed in the head note of the plaint. the plaintiff/respondent no.1 being the only daughter of respondent no.2, is entitled to inherit the same. it has been further averred that respondent no.2 was an old, infirm and rustic person. the appellants are nephews of respondent no.2 and wanted to usurp the property of respondent no.2 and in fact, a panchayat was also kumar ashwani 2014.07.26 17:05 i attest to the accuracy and integrity of this document high court chandigarh rsa no.3420 of 2014 2 convened in the village in this regard. it has been averred by respondent no.1 that at the time of her marriage, respondent no.2 had promised to transfer two acres of land out of the suit land in favour of plaintiff-respondent no.1. since the appellants wanted to grab her land, she filed a suit on 4.8.2008 for permanent injunction restraining defendant no.3/ respondent no.2 from alienating the suit land. however, during the pendency of said suit, appellants fraudulently got transferred the suit land in their favour vide sale deed dated 27.8.2008 and thus, the said suit was withdrawn by the plaintiff-respondent no.1 with permission to file fresh suit vide order dated 20.1.2009. since the alleged sale deed dated 27.8.2008 in favour of the appellants was illegal, null and void and a sham transaction without consideration and result of fraud played upon respondent no.2 by the appellants in connivance with others, necessity arose to file the instant suit. upon notice, defendant-appellants and performa respondent appeared and filed joint written statement contesting the suit, raising various preliminary objections. however, it was admitted that the plaintiff-respondent no.1 was the daughter of respondent no.2, but she was married by him in accordance with the customs and sufficient dowry articles were given to her at the time of her marriage. after the marriage of plaintiff-respondent no.1, respondent no.2 was living with the appellants. they were also serving him. even otherwise, respondent no.2 had no intention to give his land to the plaintiff. the sale deed was legal kumar ashwani 2014.07.26 17:05 i attest to the accuracy and integrity of this document high court chandigarh rsa no.3420 of 2014 3 and valid and no fraud was committed by the appellants. it was further averred that the suit was filed by the plaintiff-respondent no.1 only to put pressure upon them in order to extract some money. all other averments were denied and dismissal of the suit was prayed. replication to the written statement was filed by the plaintiff-respondent, in which she reiterated the averments made in the plaint and denied those of the written statement. on the basis of pleadings of the parties, following issues were framed:-“1. whether the plaintiff is entitled to declaration as prayed for?. opp2 whether the plaintiff is entitled to permanent injunction as prayed for?. opp3 whether the present suit is not maintainable as prayed for?. opd4 whether the plaintiff has not come to the court with clean hands?. opd5 whether the plaintiff has got no locus standi to file the present suit?. opd6 relief.”. both the parties were given due opportunity to adduce evidence in support of their respective claims. after hearing both the sides and considering the evidence on record, the trial court dismissed the suit of the plaintiff-respondent no.1 vide judgment and decree dated 22.11.2012. kumar ashwani 2014.07.26 17:05 i attest to the accuracy and integrity of this document high court chandigarh rsa no.3420 of 2014 4 aggrieved from the aforesaid judgment and decree of the trial court, plaintiff-respondent no.1 preferred an appeal before the first appellate court which was accepted vide impugned judgment and decree dated 17.5.2014, whereby the judgment and decree of the trial court was set aside and suit of the plaintiff- respondent no.1 was decreed. aggrieved from the aforesaid judgment and decree of the lower appellate court, defendants no.1 and 2 have filed the instant appeal submitting that following substantial questions of law arise in this appeal for consideration of this court:- “(a) whether the court below has exceeded its jurisdiction while granting decree for owner in possession, when neither this was the prayer of plaintiff in plaint nor she claimed for?. (b) whether joginder singh can be declared unsound mind when plaintiff failed to examine any expert in order to prove insanity of joginder singh?. (c) whether the court can exceed its power and can decide joginder singh to be of unsound mind when neither this was the prayer of plaintiff in his plaint nor plaintiff mentioned in the suit that at the time of execution of sale deed, joginder singh was of unsound mind?. (d) whether execution of sale deed is illegal, null & void when the said sale deed is a registered document, and joginder singh appeared before the joint sub registrar?. (e) whether the registered sale deed, can be kumar ashwani 2014.07.26 17:05 i attest to the accuracy and integrity of this document high court chandigarh rsa no.3420 of 2014 5 challenged when joginder singh is still alive?. (f) whether the appellant is entitled for the relief claimed.?.”. in support of his case, learned counsel for the appellants has vehemently argued that the finding of the lower appellate court that respondent no.2 joginder singh was not of sound mind at the time of execution of the sale deed, is erroneous and in fact, beyond pleadings. further, according to learned counsel for the appellants, in the plaint, it is nowhere mentioned that defendant no.3-respondent no.2 was not in a sound disposing mind at the time the sale deed was executed. moreover, the plaintiff-respondent no.1 has not examined any expert witness in order to prove insanity of joginder singh. even plaintiff- respondent no.1 herself and pw-2 darbara singh in their cross- examination have stated that joginder singh was not in good health for the last three-four years, meaning thereby, that at the time of execution of the sale deed in question, he was in sound disposing mind and in a state of good health. it has been further argued on behalf of the appellants that the findings of the first appellate court that consideration was not paid, is contrary to the evidence on record, as it has been proved on record i.e. from ex.d2 to ex.d5 that the appellants had paid a consideration amount of rs.6,00,000/- and the remaining amount was paid after taking money from a commission agent. moreover, respondent no.1 was married long ago and sufficient dowry was given to her at kumar ashwani 2014.07.26 17:05 i attest to the accuracy and integrity of this document high court chandigarh rsa no.3420 of 2014 6 the time of her marriage and after her marriage, respondent no.2 was living with them and they were also serving him and in fact respondent no.2, during his lifetime, never challenged the sale deed, which shows that he never wanted to give any land to the plaintiff-respondent no.1 and thus, the plaintiff-respondent no.1 had no locus standi to challenge the sale deed during the lifetime of joginder singh. moreover, the lower appellate court has exceeded its power by decreeing the suit of the plaintiff-respondent and declaring her to be owner in possession of the suit land, as it was neither her case that she was in possession of the suit property, nor she had sought a declaration for being the owner of the property and the issue was only to the extent as to whether the sale deed in question was genuine or illegal and in view thereof, the substantial questions of law, as raised, do arise, in this appeal. i have heard learned counsel for the appellants and perused the impugned judgment and decree of the court below. at this stage, it is useful to refer to the relevant paragraphs of the judgment of lower appellate court, which read thus:-“8. on going through the evidence on the record coupled with the documents, with the assistance of learned counsel for the parties, this court finds that balwinder singh, defendant no.1 in his cross- examination has admitted that joginder singh, respondent no.3 is unable to speak and his mental condition is bad for the last four to five years. he was lying in bed. the above said respondent joginder kumar ashwani 2014.07.26 17:05 i attest to the accuracy and integrity of this document high court chandigarh rsa no.3420 of 2014 7 singh has not appeared anywhere in the proceedings before the court and the aforesaid admission on the part of defendant no.1 supports the case of the appellant-plaintiff that the sale deed executed on 27.8.2008 was not executed by a person of sound mind. it is clear that the said joginder singh was living with his nephews who are respondents-defendants no.1 and 2 and keeping in view the fact of his weak mental condition, were in a dominating position. the observations made by the learned trial court that the appellant-plaintiff did not produce any expert witness to prove that the said joginder singh is suffering from unsoundness of mind is not logical as it was for the respondents no.1 and 2 to bring him in the court and defeat the claim of the appellant-plaintiff who is none else but daughter of joginder singh. moreover, the said appellant is the only daughter and the only child of the said joginder singh and in such circumstances, giving his entire suit land measuring 23 kanals 2 marlas to his nephews and ignoring the appellant-plaintiff altogether is not acceptable as per the circumstances reflected and established from the evidence.9. as per the case of the respondents, they claim to have paid an amount of sale consideration of rs.14,44,000/- to the said joginder singh by raising amount of rs.3,00,000/- by pronote ex. d-2 and another amount of rs.3,00,000/- by pronote ex. d-4 and the remaining amount of rs.8,44,000/- by borrowing it from their commission agency. similar was the deposition of dw-2 darbara singh but in the cross-examination dw-2 darbara singh has admitted that he had never any talk with joginder singh after the marriage of appellant veerpal kaur. admittedly, she was married somewhere in the year 2001 and in kumar ashwani 2014.07.26 17:05 i attest to the accuracy and integrity of this document high court chandigarh rsa no.3420 of 2014 8 such circumstances, even looking after the said joginder singh by dw-2 is not established. moreover, the said joginder singh was residing with the respondents no.1 and 2 and the deposit of the amount in any account or at any place by the said joginder singh is not explained by the respondents no.1 and 2. no money was paid by respondents no.1 and 2 to joginder singh in the presence of dw-2, the attesting witness of the sale deed. it only reflects that there was no sale consideration paid against the sale deed, the copy of which is produced on the record by the appellant ex. p-2. admittedly, the said joginder singh was owner in possession of the suit land and also corroborated by the copy of the jamabandi ex. p-1. thus, this court is convinced that the learned trial court has ignored this aspect which was material as per the facts of the case.10. further, the observations of the learned trial court that the plaintiff has not stated in the plaint that the defendant no.3-joginder singh was of unsound mind at the time of execution of the sale deed, appears to have been mis-read as the material controversy in the suit was that joginder singh, the said defendant no.3 was of unsound mind and by playing fraud with him, the defendants no.1 and 2 have been able to get the aforesaid sale deed executed in his favour. it has resulted into mis-carriage of justice.11. thus, the aforesaid sale deed is nothing but a waste piece of paper and the same is hereby, set aside, being result of fraud played by the respondents no.1 and 2 with joginder singh, respondent-defendant no.3. the appellant-plaintiff is entitled to the relief of declaration coupled with the relief of permanent injunction restraining the respondents no.1 and 2 from kumar ashwani 2014.07.26 17:05 i attest to the accuracy and integrity of this document high court chandigarh rsa no.3420 of 2014 9 alienating the suit land in any manner coupled with the relief of possession. as such, the findings on issues no.1 and 2 given by the learned trial court are reversed and both the issues are decided in favour of the appellant-plaintiff.12. since, the aforesaid sale deed relied upon by the respondents no.1 and 2, allegedly executed by respondent no.3, is a void document, the appellant- plaintiff being daughter of the said respondent no.3 has the locus standi to file the aforesaid suit, which is legally maintainable and she came to the court with clean hands on refusal of the respondents to accept her claim. as such, the findings on issues no.3 to 5 given in favour of the appellant-plaintiff stands upheld.13. in view of the discussion made above, the present appeal is accepted with costs and the appellant-plaintiff- veerpal kaur is granted the relief of declaration to the effect that the sale deed dated 27.8.2008 bearing wasika no.1357 registered in the office of joint sub registrar guruhar sahai, alleged to be executed by joginder singh (respondent-defendant no.3) in favour of balwinder singh and gurbhajan singh (respondents-defendants no.1 and 2) qua the land measuring 23 kanals 2 marlas being 1/4 share of the land measuring 92 kanals 7 marlas, comprised of khewat no.51/50, khatauni no.150, fully detailed in the head note of the plaint, situated in village guruhar sahai janubi, tehsil jalalabad, district ferozepur, vide jamabandi for the year 2003-04, is wrong illegal, null and void and a sham transaction without consideration and the result of fraud played upon the kumar ashwani 2014.07.26 17:05 i attest to the accuracy and integrity of this document high court chandigarh rsa no.3420 of 2014 10 respondent-defendant no.3 by the respondents- defendants no.1 and 2 and the same is hereby, set aside. the respondents-defendants no.1 and 2 are also restrained from alienating the suit land to anybody else on the basis of the aforesaid sale deed. it is further observed that the respondents no.1 and 2 shall not use the said sale deed in any manner. since, the said sale deed is void document, the appellant-plaintiff veerpal kaur is held to be owner in possession of the suit land mentioned above. the decree in appeal be prepared accordingly. the record of the trial court be returned and that of appeal be consigned to the record room, ferozepur.”. it is not in dispute that joginder singh, respondent no.2, was the owner of the suit land and the plaintiff-respondent no.1, being his only daughter, was entitled to inherit the suit property. the only question for consideration before this court is whether the sale deed dated 27.8.2008 was executed by a person of unsound mind and that whether the said sale deed, which was got executed by the appellants by playing fraud, was without consideration and was a void document?. a perusal of the impugned judgment of the lower appellate court, as noticed above, would show that balwinder singh, appellant, in his cross-examination, has admitted that joginder singh, respondent no.2 was unable to speak and his mental condition was bad for the last four to five years and was kumar ashwani 2014.07.26 17:05 i attest to the accuracy and integrity of this document high court chandigarh rsa no.3420 of 2014 11 lying on bed. moreover, the abovesaid respondent has not been produced in any proceedings before the court. admittedly, said joginder singh was living with appellants. the appellants could have produced him in court and defeat the claim of plaintiff- respondent no.1, who is none else but his daughter. all these facts, which have been proved on record, clearly establish that joginder singh was in a weak mental condition and not in good health and the appellants were in dominating position at the time of execution of the sale deed. moreover, no consideration had passed in the presence of any of the witnesses produced by the appellants. admittedly, no money was paid to joginder singh before the sub registrar. it is also an admitted fact that joginder singh was residing with the appellants and deposit of any amount in any account or at any place by him has not been explained by the appellants. admittedly, no money was paid in the presence of the attesting witnesses of the sale deed. all these facts clearly reflect that there was no sale consideration paid against the sale deed. in view of the facts established on record, as noticed, it cannot be said that the findings of the court below are incorrect and are liable to be set aside. it may further be noticed that once the court has held that the sale deed allegedly executed by respondent no.2 is a void document, there was nothing wrong in holding that the plaintiff-respondent no.1 was owner in possession of the suit land while setting aside the sale deed in question. kumar ashwani 2014.07.26 17:05 i attest to the accuracy and integrity of this document high court chandigarh rsa no.3420 of 2014 12 thus, no substantial question of law arises in this appeal. dismissed. july 07, 2014 [rakesh kumar garg]. ak judge kumar ashwani 2014.07.26 17:05 i attest to the accuracy and integrity of this document high court chandigarh
Judgment:

RSA No.3420 of 2014 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. RSA No.3420 of 2014 (O&M) Date of decision:

07. 07.2014 Balwinder Singh & another -----Appellant(s) v. Veer Pal Kaur & another -----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. Nakul Sharma, Advocate for the appellants. --- RAKESH KUMAR GARG, J.

Defendants no.1 and 2 have filed the instant appeal challenging the judgment and decree dated 17.5.2014 of the first Appellate Court whereby suit of the plaintiff-respondent for declaration has been decreed. The facts which emerge out from the impugned judgment and decree of the lower Appellate Court are that defendant No.3/ performa respondent no.2 Joginder Singh was the owner of the suit land, as detailed in the head note of the plaint. The plaintiff/respondent no.1 being the only daughter of respondent No.2, is entitled to inherit the same. It has been further averred that respondent no.2 was an old, infirm and rustic person. The appellants are nephews of respondent no.2 and wanted to usurp the property of respondent no.2 and in fact, a panchayat was also Kumar Ashwani 2014.07.26 17:05 I attest to the accuracy and integrity of this document High Court Chandigarh RSA No.3420 of 2014 2 convened in the village in this regard. It has been averred by respondent no.1 that at the time of her marriage, respondent no.2 had promised to transfer two acres of land out of the suit land in favour of plaintiff-respondent no.1. Since the appellants wanted to grab her land, she filed a suit on 4.8.2008 for permanent injunction restraining defendant no.3/ respondent no.2 from alienating the suit land. However, during the pendency of said suit, appellants fraudulently got transferred the suit land in their favour vide sale deed dated 27.8.2008 and thus, the said suit was withdrawn by the plaintiff-respondent no.1 with permission to file fresh suit vide order dated 20.1.2009. Since the alleged sale deed dated 27.8.2008 in favour of the appellants was illegal, null and void and a sham transaction without consideration and result of fraud played upon respondent no.2 by the appellants in connivance with others, necessity arose to file the instant suit. Upon notice, defendant-appellants and performa respondent appeared and filed joint written statement contesting the suit, raising various preliminary objections. However, it was admitted that the plaintiff-respondent No.1 was the daughter of respondent no.2, but she was married by him in accordance with the customs and sufficient dowry articles were given to her at the time of her marriage. After the marriage of plaintiff-respondent no.1, respondent no.2 was living with the appellants. They were also serving him. Even otherwise, respondent no.2 had no intention to give his land to the plaintiff. The sale deed was legal Kumar Ashwani 2014.07.26 17:05 I attest to the accuracy and integrity of this document High Court Chandigarh RSA No.3420 of 2014 3 and valid and no fraud was committed by the appellants. It was further averred that the suit was filed by the plaintiff-respondent No.1 only to put pressure upon them in order to extract some money. All other averments were denied and dismissal of the suit was prayed. Replication to the written statement was filed by the plaintiff-respondent, in which she reiterated the averments made in the plaint and denied those of the written statement. On the basis of pleadings of the parties, following issues were framed:-

“1. Whether the plaintiff is entitled to declaration as prayed for?. OPP2 Whether the plaintiff is entitled to permanent injunction as prayed for?. OPP3 Whether the present suit is not maintainable as prayed for?. OPD4 Whether the plaintiff has not come to the Court with clean hands?. OPD5 Whether the plaintiff has got no locus standi to file the present suit?. OPD6 Relief.”

. Both the parties were given due opportunity to adduce evidence in support of their respective claims. After hearing both the sides and considering the evidence on record, the trial Court dismissed the suit of the plaintiff-respondent no.1 vide judgment and decree dated 22.11.2012. Kumar Ashwani 2014.07.26 17:05 I attest to the accuracy and integrity of this document High Court Chandigarh RSA No.3420 of 2014 4 Aggrieved from the aforesaid judgment and decree of the trial Court, plaintiff-respondent no.1 preferred an appeal before the first Appellate Court which was accepted vide impugned judgment and decree dated 17.5.2014, whereby the judgment and decree of the trial Court was set aside and suit of the plaintiff- respondent No.1 was decreed. Aggrieved from the aforesaid judgment and decree of the lower Appellate Court, defendants No.1 and 2 have filed the instant appeal submitting that following substantial questions of law arise in this appeal for consideration of this Court:- “(a) Whether the Court below has exceeded its jurisdiction while granting decree for owner in possession, when neither this was the prayer of Plaintiff in plaint nor she claimed for?. (b) Whether Joginder Singh can be declared unsound mind when plaintiff failed to examine any expert in order to prove insanity of Joginder Singh?. (c) Whether the Court can exceed its power and can decide Joginder Singh to be of unsound mind when neither this was the prayer of Plaintiff in his plaint nor Plaintiff mentioned in the suit that at the time of execution of sale deed, Joginder Singh was of unsound mind?. (d) Whether execution of sale deed is illegal, null & void when the said sale deed is a registered document, and Joginder Singh appeared before the Joint Sub Registrar?. (e) Whether the registered sale deed, can be Kumar Ashwani 2014.07.26 17:05 I attest to the accuracy and integrity of this document High Court Chandigarh RSA No.3420 of 2014 5 challenged when Joginder Singh is still alive?. (f) Whether the Appellant is entitled for the relief claimed.?.”. In support of his case, learned counsel for the appellants has vehemently argued that the finding of the lower Appellate Court that respondent no.2 Joginder Singh was not of sound mind at the time of execution of the sale deed, is erroneous and in fact, beyond pleadings. Further, according to learned counsel for the appellants, in the plaint, it is nowhere mentioned that defendant no.3-respondent no.2 was not in a sound disposing mind at the time the sale deed was executed. Moreover, the plaintiff-respondent No.1 has not examined any expert witness in order to prove insanity of Joginder Singh. Even plaintiff- respondent no.1 herself and PW-2 Darbara Singh in their cross- examination have stated that Joginder Singh was not in good health for the last three-four years, meaning thereby, that at the time of execution of the sale deed in question, he was in sound disposing mind and in a state of good health. It has been further argued on behalf of the appellants that the findings of the first Appellate Court that consideration was not paid, is contrary to the evidence on record, as it has been proved on record i.e. from Ex.D2 to Ex.D5 that the appellants had paid a consideration amount of Rs.6,00,000/- and the remaining amount was paid after taking money from a Commission Agent. Moreover, respondent no.1 was married long ago and sufficient dowry was given to her at Kumar Ashwani 2014.07.26 17:05 I attest to the accuracy and integrity of this document High Court Chandigarh RSA No.3420 of 2014 6 the time of her marriage and after her marriage, respondent no.2 was living with them and they were also serving him and in fact respondent no.2, during his lifetime, never challenged the sale deed, which shows that he never wanted to give any land to the plaintiff-respondent no.1 and thus, the plaintiff-respondent no.1 had no locus standi to challenge the sale deed during the lifetime of Joginder Singh. Moreover, the lower Appellate Court has exceeded its power by decreeing the suit of the plaintiff-respondent and declaring her to be owner in possession of the suit land, as it was neither her case that she was in possession of the suit property, nor she had sought a declaration for being the owner of the property and the issue was only to the extent as to whether the sale deed in question was genuine or illegal and in view thereof, the substantial questions of law, as raised, do arise, in this appeal. I have heard learned counsel for the appellants and perused the impugned judgment and decree of the Court below. At this stage, it is useful to refer to the relevant paragraphs of the judgment of lower Appellate Court, which read thus:-

“8. On going through the evidence on the record coupled with the documents, with the assistance of learned counsel for the parties, this court finds that Balwinder Singh, defendant no.1 in his cross- examination has admitted that Joginder Singh, respondent No.3 is unable to speak and his mental condition is bad for the last four to five years. He was lying in bed. The above said respondent Joginder Kumar Ashwani 2014.07.26 17:05 I attest to the accuracy and integrity of this document High Court Chandigarh RSA No.3420 of 2014 7 Singh has not appeared anywhere in the proceedings before the court and the aforesaid admission on the part of defendant No.1 supports the case of the appellant-plaintiff that the sale deed executed on 27.8.2008 was not executed by a person of sound mind. It is clear that the said Joginder Singh was living with his nephews who are respondents-defendants No.1 and 2 and keeping in view the fact of his weak mental condition, were in a dominating position. The observations made by the Learned Trial Court that the appellant-plaintiff did not produce any expert witness to prove that the said Joginder Singh is suffering from unsoundness of mind is not logical as it was for the respondents No.1 and 2 to bring him in the court and defeat the claim of the appellant-plaintiff who is none else but daughter of Joginder Singh. Moreover, the said appellant is the only daughter and the only child of the said Joginder Singh and in such circumstances, giving his entire suit land measuring 23 kanals 2 marlas to his nephews and ignoring the appellant-plaintiff altogether is not acceptable as per the circumstances reflected and established from the evidence.

9. As per the case of the respondents, they claim to have paid an amount of sale consideration of Rs.14,44,000/- to the said Joginder Singh by raising amount of Rs.3,00,000/- by pronote Ex. D-2 and another amount of Rs.3,00,000/- by pronote Ex. D-4 and the remaining amount of Rs.8,44,000/- by borrowing it from their commission agency. Similar was the deposition of DW-2 Darbara Singh but in the cross-examination DW-2 Darbara Singh has admitted that he had never any talk with Joginder Singh after the marriage of appellant Veerpal Kaur. Admittedly, she was married somewhere in the year 2001 and in Kumar Ashwani 2014.07.26 17:05 I attest to the accuracy and integrity of this document High Court Chandigarh RSA No.3420 of 2014 8 such circumstances, even looking after the said Joginder Singh by DW-2 is not established. Moreover, the said Joginder Singh was residing with the respondents no.1 and 2 and the deposit of the amount in any account or at any place by the said Joginder Singh is not explained by the respondents no.1 and 2. No money was paid by respondents no.1 and 2 to Joginder Singh in the presence of DW-2, the attesting witness of the sale deed. It only reflects that there was no sale consideration paid against the sale deed, the copy of which is produced on the record by the appellant Ex. P-2. Admittedly, the said Joginder Singh was owner in possession of the suit land and also corroborated by the copy of the jamabandi Ex. P-1. Thus, this court is convinced that the Learned Trial Court has ignored this aspect which was material as per the facts of the case.

10. Further, the observations of the Learned Trial Court that the plaintiff has not stated in the plaint that the defendant no.3-Joginder Singh was of unsound mind at the time of execution of the sale deed, appears to have been mis-read as the material controversy in the suit was that Joginder Singh, the said defendant no.3 was of unsound mind and by playing fraud with him, the defendants No.1 and 2 have been able to get the aforesaid sale deed executed in his favour. It has resulted into mis-carriage of justice.

11. Thus, the aforesaid sale deed is nothing but a waste piece of paper and the same is hereby, set aside, being result of fraud played by the respondents No.1 and 2 with Joginder Singh, respondent-defendant No.3. The appellant-plaintiff is entitled to the relief of declaration coupled with the relief of permanent injunction restraining the respondents no.1 and 2 from Kumar Ashwani 2014.07.26 17:05 I attest to the accuracy and integrity of this document High Court Chandigarh RSA No.3420 of 2014 9 alienating the suit land in any manner coupled with the relief of possession. As such, the findings on issues No.1 and 2 given by the Learned Trial Court are reversed and both the issues are decided in favour of the appellant-plaintiff.

12. Since, the aforesaid sale deed relied upon by the respondents No.1 and 2, allegedly executed by respondent No.3, is a void document, the appellant- plaintiff being daughter of the said respondent No.3 has the locus standi to file the aforesaid suit, which is legally maintainable and she came to the court with clean hands on refusal of the respondents to accept her claim. As such, the findings on issues No.3 to 5 given in favour of the appellant-plaintiff stands upheld.

13. In view of the discussion made above, the present appeal is accepted with costs and the appellant-plaintiff- Veerpal Kaur is granted the relief of declaration to the effect that the sale deed dated 27.8.2008 bearing Wasika No.1357 registered in the office of Joint Sub Registrar Guruhar Sahai, alleged to be executed by Joginder Singh (respondent-defendant no.3) in favour of Balwinder Singh and Gurbhajan Singh (respondents-defendants No.1 and 2) qua the land measuring 23 kanals 2 marlas being 1/4 share of the land measuring 92 kanals 7 marlas, comprised of khewat No.51/50, khatauni No.150, fully detailed in the head note of the plaint, situated in Village Guruhar Sahai Janubi, Tehsil Jalalabad, District Ferozepur, vide jamabandi for the year 2003-04, is wrong illegal, null and void and a sham transaction without consideration and the result of fraud played upon the Kumar Ashwani 2014.07.26 17:05 I attest to the accuracy and integrity of this document High Court Chandigarh RSA No.3420 of 2014 10 respondent-defendant No.3 by the respondents- defendants No.1 and 2 and the same is hereby, set aside. The respondents-defendants no.1 and 2 are also restrained from alienating the suit land to anybody else on the basis of the aforesaid sale deed. It is further observed that the respondents No.1 and 2 shall not use the said sale deed in any manner. Since, the said sale deed is void document, the appellant-plaintiff Veerpal Kaur is held to be owner in possession of the suit land mentioned above. The decree in appeal be prepared accordingly. The record of the trial court be returned and that of appeal be consigned to the Record Room, Ferozepur.”

. It is not in dispute that Joginder Singh, respondent no.2, was the owner of the suit land and the plaintiff-respondent no.1, being his only daughter, was entitled to inherit the suit property. The only question for consideration before this Court is whether the sale deed dated 27.8.2008 was executed by a person of unsound mind and that whether the said sale deed, which was got executed by the appellants by playing fraud, was without consideration and was a void document?. A perusal of the impugned judgment of the lower Appellate Court, as noticed above, would show that Balwinder Singh, appellant, in his cross-examination, has admitted that Joginder Singh, respondent no.2 was unable to speak and his mental condition was bad for the last four to five years and was Kumar Ashwani 2014.07.26 17:05 I attest to the accuracy and integrity of this document High Court Chandigarh RSA No.3420 of 2014 11 lying on bed. Moreover, the abovesaid respondent has not been produced in any proceedings before the Court. Admittedly, said Joginder Singh was living with appellants. The appellants could have produced him in Court and defeat the claim of plaintiff- respondent no.1, who is none else but his daughter. All these facts, which have been proved on record, clearly establish that Joginder Singh was in a weak mental condition and not in good health and the appellants were in dominating position at the time of execution of the sale deed. Moreover, no consideration had passed in the presence of any of the witnesses produced by the appellants. Admittedly, no money was paid to Joginder Singh before the Sub Registrar. It is also an admitted fact that Joginder Singh was residing with the appellants and deposit of any amount in any account or at any place by him has not been explained by the appellants. Admittedly, no money was paid in the presence of the attesting witnesses of the sale deed. All these facts clearly reflect that there was no sale consideration paid against the sale deed. In view of the facts established on record, as noticed, it cannot be said that the findings of the Court below are incorrect and are liable to be set aside. It may further be noticed that once the Court has held that the sale deed allegedly executed by respondent no.2 is a void document, there was nothing wrong in holding that the plaintiff-respondent no.1 was owner in possession of the suit land while setting aside the sale deed in question. Kumar Ashwani 2014.07.26 17:05 I attest to the accuracy and integrity of this document High Court Chandigarh RSA No.3420 of 2014 12 Thus, no substantial question of law arises in this appeal. Dismissed. July 07, 2014 [RAKESH KUMAR GARG]. ak JUDGE Kumar Ashwani 2014.07.26 17:05 I attest to the accuracy and integrity of this document High Court Chandigarh