Teja Singh & Ors. v. RAKESH KUMAR JAIN, J. (ORAL)

alleged to have been obtained by the plaintiff against the defendants on the basis of a mutual exchange of land of the plaintiff situated at village Chak Bans Sham Singh Wala Fatehgarh, Tehsil and District Hanumangarh (Rajasthan) with the land of the RSA No.3725 of 2008 (O&M) -2- ****** defendants situated at village Bandi, Tehsil and District Bathinda on account of impersonation. Plaintiff has alleged that he did not appear in the Civil Suit No.101 of 24.02.1995 to suffer the decree dated 02.08.1995. It is alleged to be an act of impersonation on the part of the defendants who had brought some impostor. The suit filed by the plaintiff was dismissed, however, the learned First Appellate Court decreed the suit on two grounds, viz, i) the thumb impression on the written statement and the statement suffered by the plaintiff in the earlier suit did not tally with the specimen thumb impressions appearing in the present suit and ii) there was no truth found in the earlier suit because with regard to the land which is alleged to have been exchanged by the defendants of village Chak Sham Singh Wala Bans Fatehgarh it has been admitted by DW5 that whole of the land of that village belonging to their father and his brother, had already been sold by them for a sale consideration of Rs.24,000/- to one Kartar Kaur in the year 1972.

The findings of the learned First Appellate Court in this regard are as under: - “31. After going through judgment Ex.P2 and copy of the plaint of that suit Ex.P5 it is made out as if appellant as well as respondents exchanged lands of Chak Sham Singh Wala with the land of village Bandi on ground that appellant residing in Rajasthan and that is why land of Chak Sham Singh Wala though inherited by respondents given RSA No.3725 of 2008 (O&M) -3- ****** to appellant in lieu of the land of village Bandi left by appellant in favour of respondents. This plaint Ex.P5 was presented on 14.02.1995 and as such question of such exchange to arise only if really respondents of this case would have been owner of any part of land of Chak Sham Singh Wala. No record of land of Chak Sham Singh Wala produced by respondents for showing that they or their father Jang Singh ever remained owner in possession of any part of land of that village i.e.

Chak Sham Singh Wala. One of the respondents of this case namely DW5 Baldev Singh admitted in cross examination that he cannot produce any record for proving exchange of land of Chank Sham Singh Wala with that of land of village Bandi. Had really exchange of such land taken place, then entries in revenue records would have been got incorporated but that record has neither been produced and nor attempted to be procured and as such best evidence available withheld by respondents. DW5 further claimed in his cross – examination as if his father disclosed about payment of money to Chhota Singh qua excess land got in village Bandi. If really such amount RSA No.3725 of 2008 (O&M) -4- ****** would have been paid, then mention of the amount paid must have been made to DW5, but DW5 claims as if his father did not disclose as to how much amount was paid to appellant. Thus these versions leads to the inference as if excess land was not purchased from appellant Chhota Singh by payment of any money.

If at all the money would have been paid for purchase of excess land, then a registered instrument was required to be executed because provisions of Section 17 of Indian Registration Act lays that as and when there is sale of immovable property of worth of more than Rs.100/-, then the same can be by registered instrument alone. No such regitered instrument produced and as such version of DW5 unbelievable that actually any amount was paid to appellant by his father Jang Singh for purchase of the excessive portion from appellant Chhota Singh.

DW5 claimed that Chhota Singh appellant came in court only once for suffering statement, but he is unable to disclose as to whether his statement as well as of appellant Chhota Singh recorded on that day or not. Had really statement RSA No.3725 of 2008 (O&M) -5- ****** of Chhota Singh actually been recorded by the court in 1995 in presence of DW5, then DW5 would have known this fact as to whose statements were recorded. However, DW5 do not know about that and as such the same also casts doubt as to whether appellant Chhota Singh actually was produced on 01.06.1995 for his statement in the court or not. Even DW5 not aware of the names of the counsels engaged. Such a version can be expected from that person alone who is suppressing truth and as such statement of this DW5 unbelievable that actually appellant himself came present in the court for suffering statement on basis of which judgment Ex.P2 and decree Ex.P3 was passed. Therefore, opinion of PW2 has to be given precedence for finding that PW1 telling truth as if he did not appear in the proceedings of the suit in which judgment Ex.P2 and decree sheet Ex.P3 was passed.

DW5 Baldev Singh one of the respondents of this case expressed ignorance qua fact as to whether the whole of the land of village Chak Sham Singh Wala was sold by his father Jang RSA No.3725 of 2008 (O&M) -6- ****** Singh along with his uncle Gurbachan Singh in favour of Kartar Kaur. However, that sale deed Ex.P10 has been produced on the record to establish as if father of respondents namely Jang Singh along with his brother Gurbachan Singh sold the whole of land of village Chak Sham Singh Wala in favour of Kartar Kaur for consideration of Rs.24,000/-. Though DW5 Baldev Singh expressed ignorance regarding sale of this land in the first instance, but in the further lines of his cross-examination dated 18.1.2005 he admitted as if after sale of land by his father of village Chak Sham Singh Wala in 1972, he was left with not even a single Marla of land in that village. This admission of respondent Baldev Singh as DW5 enough to establish as if after 1972 no land was left by respondents or their father in village Chak Sham Singh Wala.