Mishat Girdh irdhar v. Raj Kumari & Others
Case Details
Page 1 of 8 8 (cid:1) IN THE HI E HIGH COURT OF PUNJAB AND HA D HARYANA AT CHANDIGARH 102 RSA-1304-1989 (O&M) Date of decision: 10.01.2025 Asha Ram (de (deceased) represented by LRs Shera (deceas ceased) through his LRs Vs. CORAM: HON’BLE MS. JUSTICE NID NIDHI GUPTA Present:- Mr. Bikram Chaudhary, Adv for the appellant. Advocate ...Appellant(s) ...Respondent(s) ocate Mr. Akshay Jindal, Advocate vocate Mr. Vijayveer Singh, Advoca for the respondent. NIDHI GUPTA, PTA, J. *** The plaintiff is in appeal ag al against the concurrent findings returned by th y the learned Courts below. 2. Mr. Akshay Jindal, Advoc vocate puts in appearance on behalf of the r he respondent and files Vakalatnam nama, which is taken on record. 3. Learned counsel for the the appellant submits that the appellant/plai
Legal Reasoning
plaintiff had filed a suit for declarat laration with consequential relief of permanent ent injunction pleading that he is is the owner and in possession of the suit lan land as detailed in Para 1 of the pl e plaint. It was pleaded that the respondent/de t/defendant sought to encroach up h upon the land of the appellant on the basis o sis of fraudulent sale deed dated 24 d 24.3.1966; and the consequent Jamabandi fo i for the year 1979-80 and Khasr hasra Girdawari entries. It was contended tha that the appellant had never execu xecuted any such Sale Deed and SUNENA 2025.01.14 15:19 I attest to the accuracy and integrity of this document (cid:1) had in fact, ex t, executed a Mortgage Deed date ated 24.03.1966 for an amount of Rs.3,000/- - in favour of the respondent. 4. On d, the other hand, learned counsel for the Page 2 of 8 8 (cid:1) respondent/de t/defendant contends that the sub submissions made on behalf of the appellant lant are utterly false. The Sale Dee Deed dated 24.03.1966 (Ex.D1) was a registe istered document which was duly duly proven in accordance with law. It is argue rgued that a registered document ent can only be set aside on the ground of ‘frau fraud’; whereas in the present case case, no ingredients of fraud are made out as r as required under Order 6 Rule 4 CP 4 CPC. Even there is no pleading regarding frau fraud in the present plaint. It is is accordingly prayed that the present appea peal be dismissed. 5. In support of his contentio entions, the learned counsel for the responde ndent-defendant has relied upon pon judgment of this Court in “Mishat Girdh irdhar Vs. Raj Kumari & Others” La ” Law finder Doc ID # 2042888. 6. The aforesaid contention tion of the learned counsel for the responde ndent/defendant is countered b d by learned counsel for the appellant who who submits that the plea regardi arding fraud was duly taken by the appellant. lant. It is further submitted that the t the execution of the Mortgage Deed has bee been duly admitted by the defenda endant in the written statement filed by him be m before the learned trial Court. 7. 8. No other argument is raise aised on behalf of the parties. I have heard learned co counsel for the parties and perused the ca e case file in great detail. SUNENA 2025.01.14 15:19 I attest to the accuracy and integrity of this document (cid:1) 9. The short question to be o be decided by this Court is Page 3 of 8 8 (cid:1) whether the a he appellant had executed a Sale D le Deed or a Mortgage Deed. In this regard, th , the following issues were framed b ed by the learned trial court: - “1. Whether the plaintiff is owne wner and the possession of the land in question? OPP 2. Whether the plaintiff had sold sold the land in question to the defendant vide sale deed dated ted 29.03.66 and delivered the possession of the same. If not, its t, its effect? OPD. 3. Whether the suit is within time? time? OPP 4. Relief.” 10. As regards issue No.2, follo following findings were returned by the learned rned trial Court:-
Legal Reasoning
“8. The contention of the defenda endant is that he became owner and in possession of the suit land t land as a sequel to the sale of the suit land vide a sale deed eed dated 29-3-66 though the execution of the sale deed has has not been disputed by the plaintiff in the plaint as he has a as alleged that he executed the same under the impression that that he is executing a mortgage deed. I have observed while d ile discussing issue No.1 that plaintiff has failed to prove any f any fraud or cheating as to how fraudent sale deed was execute fra ecuted. Besides, defendant has independently proved the execu xecution of the sale deed. The defendant has examined D.W.3 P .3 Paras Ram, He is the son of the author, Raghbir singh, of the the impugned sale deed. He has stated that his father has since die ce died and he is acquainted with the handwriting of his father. He r. He has stated that the record maintained by his father is in h in his custody and as per the record at serial No. 78 dated 2 d 24-3-66 Asa Ram plaintiff had SUNENA 2025.01.14 15:19 I attest to the accuracy and integrity of this document (cid:1) Page 4 of 8 8 (cid:1) executed a sale deed for a con consideration of Rs. 6000/- in favour of the defendant and the fa the Brahama (D.W.2) and Har Sarup (D.W.4) are the attesting sting witness of the same who have, also stated that Ex. D.1 was written in their presence and they had attested the sam same in the presence of the parties. Thus, execution of the s the sale deed Ex. D.1 has been proved by the defendant. Mere fa fact that plaintiff was entered as owner and in possession of t of the suit land in the revenue record after the execution of the f the sale deed cannot disprove the execution of the sale deed deed. This issue is accordingly decided in favour of the defendan ndant and against the plaintiff.” 11. Therefore, the sole con contention of the appellant- plaintiff that t at the sale deed dated 24.3.1966 66 was a fraudulent document, was not prove roven by him before the learned t ed trial court. Accordingly, vide judgment an and decree dated 08.06.1987, 87, the Sub-Judge, 1st Class, Bahadurgarh d arh dismissed the suit of the appella ellant/plaintiff. 12. The appellant went in a in appeal before the learned Additional Dis l District Judge-III, Rohtak by way o ay of Civil Appeal No.116/13 of 1987/1988. . Relevant findings returned by t by the learned lower Appellate Court vide jud judgment dated 11.01.1989, are as e as under: - “11. I do not see any force in the the contentions of the learned counsel for the appellant. The The sale deed is Ex.D1, the execution of which is impliedly iedly admitted by the plaintiff himself. The version of the plainti laintiff is that he had executed a mortgage deed on 24-3-1966. Th 6. The plaintiff-appellant cannot be allowed to say that the sale de le deed is not binding upon him SUNENA 2025.01.14 15:19 I attest to the accuracy and integrity of this document (cid:1) Page 5 of 8 8 (cid:1) unless he proves that it was the s the result of fraud etc In the plaint the plaintiff has not given a iven any particulars of the fraud. The oral evidence led by him is als is also not sufficient to prove any fraud having been practised by fra d by the defendant upon the plaintiff.” 13. Thus, even before the l e lower Appellate Court, the appellant was was unable to prove any fraud in re in respect of the sale deed dated 24.3.1966. 14. As regards the plea of the the appellant that the mortgage deed has bee been admitted by the defendant in nt in his written statement, the same is also lso borne out to be false as per per the record. In this regard, learned couns unsel for the appellant has relied lied upon the written statement filed by the de e defendant wherein the said mort mortgage deed is stated to have been admitte itted. The said written statement ent filed by the defendant is available from from pages 15 to 18 of the LCR. T . The relevant Para 4A of the same reads as s as follows: - “4A. That para No.4_A is wrong a ng and denied. The plaintiff had executed the sale deed in favo favour of the defendant and produced the same before the the Sub Registrar. Actually the alleged mortgage deed was exec executed 3 years earlier before the executing of the sale deed. It d. It is correct that the sale deed was executed in the year of 1966 966 of the 11 kanal 1 marla land mentioned in para No.1 of the p the plaint and the possession of that land was handed over to the o the defendant. No redemption took place even in 1968 the lan land of which was mortgaged SUNENA 2025.01.14 15:19 I attest to the accuracy and integrity of this document (cid:1) was sold to the defendant. The en he entries was got transferred by the plaintiff by fraudulent means. ans.” Page 6 of 8 8 (cid:1) 15. Even otherwise, the said p id plea of the appellant that the sale deed/ Ex. / Ex. D1 was procured by the defend fendant by fraudulent means, is not tenable in le in view of the clear legal positio sition in this regard. Reference may be made ade to therelied upon judgment of of this Court rendered in case of Mishat Gird Girdhar (supra) wherein it has been een held as under:- “Using the word fraud or fraud raudulent without any material particulars would not tantamount ount to pleading of fraud. Registered sale deed - Stand taken taken by the defendants that the said sale deed was forged and and fabricated - Ingredients of fraud neither pleaded nor proved fra oved - A person raising the plea of fraud needs to plead and pr d prove its ingredients - Mere mentioning and using the wor word fraud/fraudulent is not sufficient to satisfy the test o st of fraud - Using the word fraud/fraudulent without any ma fra y material particulars would not tantamount to pleading of fraud. aud.” 16. Reference may be made t de to another judgment of this Court in “Surj Surjeet Singh VS. Kuljeet Kaur” La r” Law finder Doc ID # 779720, wherein it is h is held that: - “Plea of fraud has to be proved lik ed like the criminal charge - Sole serving statement carries not subs substance. A. Specific Relief Act, 1963 Sectio ection 15 Specific performance - Plaintiff was ready and willing to g to perform her part of contract - She went to the office of Sub ub-Registrar along with balance SUNENA 2025.01.14 15:19 I attest to the accuracy and integrity of this document (cid:1) Page 7 of 8 8 (cid:1) sale consideration on the appoint pointed date for registration and execution of the sale deed - But, d ut, defendant did not turned up - Once the execution of the agreem reement to sell is established, he was certainly entitled for the relie relief of specific performance of the agreement to sell.” 17. In case of “Abhimanu & An & Another Vs. Hoshiyar Singh & Others” Law f aw finder Doc ID # 611671, this Cou Court held that: - ‘Civil Procedure Code, 1908, Sec , Section 100 - Second appeal - Fraud - Plaintiff challenged the the consent decree passed in favour of defendants on the gro fa e ground that said decree was obtained by fraud or misrepre epresentation - The impugned decree was passed not only on the n the basis of admission made in the written statement in the pre e previous suit, but also on the basis of statement recorded in the in the Court in the previous suit - Statement made in the Court has t has authenticity and sanctity - Averments with regard to fraud raud have remained unproved - Decree in question has been cha challenged after a period of 13 years and no explanation is fo is forthcoming as to why the plaintiff has not challenged the d the judgment and decree in question earlier - The plaintiff intiff-appellants have miserably failed to prove the fraud - Suit righ fa it rightly dismissed - Held :- Fraud is to be pleaded and prove roved beyond reasonable doubt like a criminal case.” 18. It would be apposite to als o also refer to a judgment of the Hon’ble Supre upreme Court in “Lehna Singh (D) B (D) By Lrs. Vs. Gurnam Singh (D) By Lrs. & Ors.” Ors.” Law finder Doc ID # 2580521, 21, wherein it has been held: - SUNENA 2025.01.14 15:19 I attest to the accuracy and integrity of this document (cid:1) “Second Appeal - Can be enter entertained by the Punjab and Haryana High Court even with without framing a substantial Page 8 of 8 8 (cid:1) question of law. IMPORTANT Second Appeal - Supreme Court Court recalls its own judgment holding that High Court as trave travelled beyond the jurisdiction under Section 100 CPC by interfe terfering with the finding of fact recorded by the First Appellate llate Court without framing a substantial question of law. Punjab Courts Act, 1918, Section 1908, Section 100 - Second App mandate framing of a substa entertaining the second appeal Section 41 of Punjab Act can be and Haryana High Court even wi question of law - Held that the J Gurnam Singh v. Lehna Singh holding that the Punjab and Harya beyond the jurisdiction under Sec with the finding of fact recorded without framing a substantial q Gurnam Singh v. Lehna Singh merits.” ction 41 - Civil Procedure Code, Appeal - Section 41 does not bstantial question of law for peal - A second appeal under n be entertained by the Punjab n without framing a substantial the Judgment of Supreme Court gh has been wrongly decided Haryana High Court has travelled r Section 100 CPC by interfering rded by the First Appellate Court ial question of law - Judgment gh recalled to be decided on 19. Ld. Counsel for the appel ppellant is unable to controvert the above not noted factual and legal position, as as also the concurrent findings of the learned ned Courts below. Accordingly, the the present appeal is dismissed. 20. Pending application(s) if an
Decision
if any also stand(s) disposed of. 10.01.2025 Sunena (Nidhi Gupta) Judge Whether spea Whether repo peaking/reasoned: eportable: Yes/No Yes/No SUNENA 2025.01.14 15:19 I attest to the accuracy and integrity of this document (cid:1)