JAB AND H D HARYANA AT CHANDIGARH ingh Gurdeep Singh Sansar Singh & gh v. M) RSA No
Case Details
RSA No. 2179 179 of 1994 IN THE H HE HIGH COURT OF PUNJAB AND H D HARYANA AT CHANDIGARH ingh Gurdeep Singh Sansar Singh & gh & Anr. Versus M) RSA No. 1999 of 2024 (O&M) 25 Reserved on: 27.08.2025 25 Pronounced on: 03.09.2025 nt …Appellant nts …Respondents CORAM: HON’ ON’BLE MR. JUSTICE DEEPAK GUPT UPTA Argued by:-Ms Ms. Sarika Gupta, Advocate for the appellant. *** DEEPAK GUPT UPTA, J. Suit for declaration regarding pr ith g property in dispute along with consequential ntial relief of permanent injunctio for ction, and in the alternative for joint possessi session of disputed property, file gh filed by plaintiff Sansar Singh (respondent he nt herein), was decreed by the lear Sr. learned Additional Civil Judge (Sr. Divn.), Balach lachaur on 12.08.2021; and the nt the appeal filed by defendant Gurdeep Sing Singh (appellant herein) was dism ate dismissed by the First Appellate Court on 15.0 15.01.2024, thus affirming the fin is findings of the trial Court. It is against these ese concurrent findings of the Cour o.1 Courts below that defendant No.1 of the case h e has approached this Court by w nd y way of present regular second appeal. 2. In order to avoid confusion, pa er , parties shall be referred as per their status be
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s before the trial Court. 3. Plaintiff Sansar Singh is the rea wo real paternal uncle of the two defendants, n ts, namely Gurdeep Singh & Santok his ntokh Singh, being the sons of his deceased bro brother Kashmir Singh. Plaintiff Sa nd ff Sansar Singh is unmarried and issue-less. Dis Dispute is regarding abadi prope CD roperty marked by letters ABCD shown in red red colour in the attached site plan 79, plan, bearing Khata no. 202/279, Khasra No.10 o.1022 (01-17) situated in village ur, lage Sahungra, Tehsil Balachaur, District SBS Na S Nagar, detailed and described in h er in head note of the plaint, as per Jamabandi fo i for the year 2006-07. As per p his er plaintiff, in order to help his JITEN SHARMA 2025.09.03 14:57 I attest to the accuracy and integrity of this document Page N: 1 of 7 Page ages RSA No. 2179 179 of 1994 brother Kashm ashmir Singh and his family, he had rty had purchased the suit property vide sale-dee deed dated 21.01.1982 from his of his own funds in the name of defendants to ts to the extent of 2/3 share, and in of d in his own name to the extent of 1/3 share. No Now, dispute is regarding 1/3 sha me share, which existed in the name of plaintiff San f Sansar Singh. 4. Plaintiff claims that after purcha ed rchasing the land, he had raised construction o on of the house in the suit propert ut perty except room mark N. About 5-6 years ago ago, defendants having not suffic ve, ufficient accommodation to live, were allowed ed to reside in the suit property. R ies rty. Relations between the parties were cordial a ial and on the allurement of the d en he defendants, plaintiff had even executed a re registered Will on 07.03.1989 o ge 89 of his land situated at village Chuck Gujjran jjran in favour of the defendants. T ed ts. Thereafter, defendants started alluring the pl e plaintiff to execute the Will rega uit regarding his 1/3 share in the suit property. Plain Plaintiff was having blind faith in the rey n the defendants, fell to their prey and agreed to d to execute the Will. Plaintiff was b ex, as brought to the Tehsil Complex, Balachaur by by the defendants about 7 years rks ars ago, where his thumb marks and finger im r impressions were obtained on m by n many papers and registers by disclosing the the said document to be Will of his he his share in the suit property. The contents of t of the document were never rea nd read over to the plaintiff and believing the r the representation made by the def b defendants to be true, he thumb marked over ver the same. However, about th nts t three months ago, defendants asked the plai plaintiff to vacate the suit propert ot perty by telling that they had got executed the t the transfer deed in their name and no and that plaintiff was left with no right or title in le in the same. Threat of the defend he fendants caused a cloud upon the title of the pla plaintiff. He immediately got cance 89 ancelled his Will dated 07.03.1989 executed in fa in favour of the defendants regard ide garding his agricultural land vide cancellation n deed dated 23.11.2012. How of However, on getting copy of Jamabandi for i for the year 2001-02 from Patwa to twari on 11.02.2013, he came to know that d t defendants had got his 1/3rd rd share in the suit property rty transferred in d in their names fraudulently an got and illegally and had also got sanctioned mu d mutation No. 3011. After getting c om ing copy of the transfer deed from the office of of Sub Registrar Balachaur, he ca ud e came to know about the fraud JITEN SHARMA 2025.09.03 14:57 I attest to the accuracy and integrity of this document Page N: 2 of 7 Page ages RSA No. 2179 179 of 1994 committed up d upon him by the defendants, whic in which revealed that defendants in connivance w e with the scribe and witnesses ed sses had got the transfer deed executed by s by showing the consideration of uit of ₹ 42,000/- regarding the suit property. Def Defendants were asked many tim he times to admit the claim of the plaintiff, but t ut they did not pay any heed, whic he hich necessitated him to file the suit. 5. Defendant No.2 Santokh Singh di as h did not contest the suit and was proceeded ex ex-parte. 6. It is only defendant No.1 Gurde he urdeep Singh, who contested the suit and in his n his written statement contended ot ded that plaintiff himself had got executed the the transfer deed dated 06.01.200 nts 2006 in favour of the defendants and that there hereafter they had raised constructi hs ruction of house by spending lakhs of rupees from from their own resources. He furth he further denied to have allured the plaintiff to ex execute the Will in his favour an his r and claimed that plaintiff at his own had execu xecuted the transfer deed in their n ns, eir name. With these submissions, prayer was ma s made for dismissal of the suit. 7. Necessary issues were framed. he ed. Evidence produced by the parties was ta s taken on record. The trial Court tiff decreed the suit of the plaintiff on 12.08.2021 2021 by holding the transfer deed he eed dated 06.01.2006 to be the result of fraud raud played by the defendants up ce s upon the plaintiff in connivance with the scrib scribe and the witnesses and furth fer urther declared the said transfer deed to be w e wrong, illegal and void and not he not binding qua the rights of the plaintiff in the the suit property. The plaintiff wa in f was declared to be co-sharer in joint possessio ession of the suit property to the ex nts e extent of 1/3 share. Defendants were further her restrained from dispossessing uit sing the plaintiff out of the suit property by d y denying his right or title in the sa by he same. The findings returned by the trial Court ourt were affirmed by the First App Appellate Court on 15.01.2024. 8.1 Assailing the aforesaid concurr by current findings, it is argued by learned couns ounsel for the appellant-defendant fer ant No.1 that impugned transfer deed dated 06 d 06.01.2006 is a registered docum by cument and that its execution by plaintiff Sansa ansar Singh has been duly proved b i.e. ed by the testimony of scribe i.e. JITEN SHARMA 2025.09.03 14:57 I attest to the accuracy and integrity of this document Page N: 3 of 7 Page ages RSA No. 2179 179 of 1994 DW-1 Swaran ran Singh. Learned counsel conten no ntends further that there was no requirement nt to examine any of the attes he attesting witnesses because the executant i.e. i.e. plaintiff had admitted the execu at xecution thereof. It is argued that transfer deed eed was executed by plaintiff at his nd t his own volition and free will and it was not the the result of any allurement or mi ed r misrepresentation as contended by him and th d that the oral evidence produced rd ced by the plaintiff in this regard was absolutel utely not reliable but Courts below at elow fell in error in believing that evidence. 8.2 Still further it is argued by learn - earned counsel for the appellant- defendant No t No.1 that a simplicitor suit for de le. r declaration is not maintainable. Learned coun ounsel relied upon Gian Kaur Vs. SC Vs. Raghubir Singh, 2011 AIR SC (Civil) 855. 8.3 With these submissions, prayer he yer is made for setting aside the impugned jud judgments passed by the Courts be of ts below and to dismiss the suit of the plaintiff-re respondent. 9. This court has considered subm for bmissions of learned counsel for the appellant ant and has appraised the paper bo r book carefully. 10. Transfer deed dated 06.01.2006 s a 006 assailed by the plaintiff, is a registered doc document and has been assailed b be ed by the executant thereof to be the result of t of fraud and misrepresentation. is tion. How the said document is required to b to be proved is provided under Se ct r Section 68 of the Evidence Act which reads as ds as under:- “68. Proo . Proof of execution of document requi If a required by law to be attested.––If a documen ment is required by law to be attested ce sted, it shall not be used as evidence until one l one attesting witness at least has of has been called for the purpose of proving i ing its execution, if there be an attest to ttesting witness alive, and subject to the proce process of the Court and capable of givi f giving evidence: Provided that it shall not be necessa in cessary to call an attesting witness in proof of f of the execution of any document, n en nt, not being a will, which has been registere stered in accordance with the provision ct, isions of the Indian Registration Act, JITEN SHARMA 2025.09.03 14:57 I attest to the accuracy and integrity of this document Page N: 4 of 7 Page ages RSA No. 2179 179 of 1994 1908 (16 8 (16 of 1908), unless its execution by rts n by the person by whom it purports to have b ave been executed is specifically denied enied.” 11. A perusal of the aforesaid provisi se ovision would reveal that in a case of Will, it is t is necessary to call at least an ve t an attesting witness to prove execution ther thereof. However, in case a docum me cument is not a Will and the same has been reg registered in accordance with t ian th the provisions of the Indian Registration A n Act, then it is not necessary to in y to call any attesting witness in proof of its e its execution, unless its execution he tion is specifically denied by the person to who whom it purports to have been exec executed. 12. In the present case, it is the p is he plaintiff Sansar Singh, who is executant of of the transfer deed dated 06.01 lly 6.01.2006 and as he specifically denied the exe e execution thereof and alleged the ud the same to be the result of fraud and misrepre epresentation, so, it was incumb i.e. cumbent on the defendant i.e. transferee of t of the property in dispute to call a to all at least an attesting witness to prove the exec execution thereof. 13. However, despite there being tw ses g two attesting marginal witnesses namely Jaspal spal Singh Nambardar, and Mohind gh, hinder Singh son of Kartar Singh, to the docum cument, none of them have been e to en examined by the defendant to support his ca is case. It is not the case of the d ing e defendant that these attesting witnesses had had expired. Defendant only exam nt xamined scribe to the document namely DW1 W1 Swaran Singh but even his te to is testimony is not of no use to support the ca e case of the defendant because in aid se in his examination-in-chief, said witness only s nly stated after going through the fer e certified copy of the transfer deed that it w it was scribed by him. Nowhere he ver e he stated that he had read over the contents nts of the said document to the nd the executant Sansar Singh and thereafter the the plaintiff had executed the s he he same in the presence of the witnesses. 14. Not only above, appellant-defend ied fendant's stand is further falsified by the testim stimony of PW2 Santokh Singh. Th an . This witness is none else than defendant No t No.2 i.e. own brother of appell ep pellant-defendant No.1 Gurdeep Singh. Though ugh said defendant was proceeded he eded ex-parte, but he entered the JITEN SHARMA 2025.09.03 14:57 I attest to the accuracy and integrity of this document Page N: 5 of 7 Page ages RSA No. 2179 179 of 1994 witness box i ox in support of the plaintiff's ca tiff s case and testified that plaintiff Sansar Singh h gh had not transferred his share in me e in the suit property in the name of defendants ants i.e. Santokh Singh and his broth rother Gurdeep Singh. 15. Matter does not stop here. D ep e. Defendant-appellant Gurdeep Singh did not not enter the witness box himself. ife self. Rather, he examined his wife
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Smt. Avtar Ka r Kaur as his attorney as DW2. T ess 2. The testimony of this witness would reveal t eal that she had absolutely no know ion nowledge regarding the execution of the docum cument in question and most of he ing f her replies indicate this. During her cross-exam examination, she categorically state sar stated that on 06.01.2006, Sansar Singh had han handed over the original document ing ent (brought by her)to her saying that he had ad executed a Will in favour of aid r of her husband etc. The said statement ma made by DW2, the attorney/ nt ey/ wife of defendant-appellant clinches the m he matter and prove that plaintif to intiff Sansar Singh was made to understand on d on 06.01.2006 that he had execut he ecuted the Will of his share in the suit property i rty in favour of his nephews and no not the transfer deed. 16. In view of aforesaid evidence o he ce on record, it is held that the Courts below low did not commit any error in c at in coming to the conclusion that impugned tra transfer deed dated 06.01.2006 nd 06 was the result of fraud and misrepresenta entation and that the said docum he cument was not binding on the rights of the p he plaintiff. 17. As far as the contention of learn nt learned counsel for the appellant that the suit o uit of the plaintiff simplicitor for dec is r declaration is not maintainable is concerned, it , it has no merit. It is no doubt for oubt true that a simple suit for declaration is n is not maintainable. However, in ot , in the present case, plaintiff not only sought th ht the decree of declaration as to d fer to declare the impugned transfer deed to be wr e wrong, illegal, void and ineffective ult tive qua his rights being the result of fraud play played upon him, he also sough of ought a consequential relief of permanent inj t injunction to restrain the defenda lly endants from forcibly and illegally dispossessing sing him from the suit property. N er ty. Not only this, plaintiff further prayed in the the alternative to decree the suit f uit uit for joint possession of the suit property. JITEN SHARMA 2025.09.03 14:57 I attest to the accuracy and integrity of this document Page N: 6 of 7 Page ages RSA No. 2179 179 of 1994 18. In Gian Kaur Vs. Raghubir Singh Ld. Singh’s case (supra), relied by Ld. counsel for th r the appellant, Hon’ble Supreme ely me Court held that a suit merely for declaratio ration without seeking possessio ession of the property ot is not maintainable u ble under Section 34 of this Specific , in cific Relief Act, 1963. However, in the case bef before Hon’ble Supreme Court, as urt, it was held that suit was maintainable ble as there was an alternative of ative prayer for the decree of possession als n also. 19. In the present case also, as p he as plaintiff also prayed for the alternative rel e relief of joint possession of prope ht operty in dispute and also sought consequential ntial relief of permanent injunctio nts ction to restrain the defendants from disposs possessing him, therefore, t it uly is held that suit was duly is maintainable. ble. As such, the contention raised nt ised by counsel for the appellant regarding mai maintainability of the suit is held to d to be devoid of any merit. 20. On account of the entire discus at scussion as above, it is held that there is no re o reason to interfere in the well rea as ll reasoned concurrent findings as recorded by th by the Courts below, in the absence ity. ence of any illegality or perversity. As such, hold holding the appeal to be devoid o by id of any merit, same is hereby dismissed. 03.09.2025 Jiten (DEEPAK GUPTA) JUDGE Whether speaking/reasoned : : Whether reportable Yes/No Yes/No JITEN SHARMA 2025.09.03 14:57 I attest to the accuracy and integrity of this document Page N: 7 of 7 Page ages