Shamsher Singh v. Sarwan Singh

This is an appeal directed by plaintiff/appellant against the judgment dated 28.1.1999 passed by the Shri Rajinder Aggarwal, Additional District Judge, Sangrur vide which the appeal preferred by the plaintiff against the judgment dated 3.1.2007 passed by Shri K.C.Gupta, PCS, Additional Civil Judge (Senior Division), Dhuri was dismissed. Shamsher Singh plaintiff filed a suit for declaration declaring the plaintiff to be owner in possession of the suit land measuring 10 bighas fully described in the heading of the plaint. It is pleaded that defendant has no concern with the suit property. The registered sale deed No.262 dated

25.4.1988 alleged to be executed by plaintiff in favour of the plaintiff and mutation on the basis of the said sale deed is void, ineffective and in violative. RSA No. 2328 of 2009 2 The brief facts of the plaintiff's case as set forth in the plaint is that plaintiff is recorded as owner to the extent of 1/4th share in land measuring 41 bighas 11 biswas in the jamabandi for the year 1991-92, which comes to 10 bighas 8 biswas. The defendant is also owner to the extent of 1/4th share in the said land as per revenue record. It is submitted that plaintiff was formerly serving Border Security Force ( in short – BSF) and after his retirement he joined Punjab Home Guard. Defendant No.1 executed one sale deed No.262 dated 25.4.1988 regarding the suit property in his favour when he was serving in Punjab Home Guard by playing fraud and by way of impersonation despite the fact that plaintiff has never executed the sale in favour of the defendant. He did not purchase any stamp papers nor signed the same. It has further been alleged that he never appeared in the office of Sub Registrar for execution of the sale deed nor any consideration as mentioned in the sale deed was received by him. Plaintiff has challenged the sale deed being without consideration as well as the result of impersonation and plaintiff has also challenged mutation No.4054 passed on the basis of the said sale deed. Upon notice defendant filed written statement taking preliminary objection inter alia that the suit is not within limitation; that the suit has not been properly valued for the purposes of court fee and jurisdiction; that the suit of the plaintiff for declaration and injunction without claiming any consequently relief of possession is not maintainable. On merits, it was denied that the plaintiff is cosharer to the extent of 1/4th share in land measuring 41 bighas 11 biswas. It is pleaded that plaintiff has sold land measuring 10 bighas 8 biswas by sale deed dated RSA No. 2328 of 2009 3

25.4.1988 for a consideration of Rs.20,000/-. The defendant is owner in possession of the suit property and the plaintiff has no concern with the property. It was admitted that plaintiff was earlier in BSF and presently working in a Rice Sheller. Defendant has denied the sale deed is result of fraud. Replication was filed reiterating the stand taken up in the plaint and denying the contents of written statement. Following issues were framed :-

1. Whether the plaintiff is owner in possession of the land measuring 10 bighas 8 biswas ?OPP

2. Whether the registered sale deed No.262 dated 25.4.1988 alleged to have been executed by the plaintiff in favour of the defendant and mutation No.4054 is illegal, null and void and is liable to be set aside being result of fraud and misrepresentation ?OPP.

3. Whether the plaintiff is entitled to decree of declaration? OPP

4. Whether the plaintiff is entitled to decree of permanent injunction ?OPP

5. Whether the suit of the plaintiff is within limitation ?OPP

6. Whether the suit is not properly valued for the purpose of Court fee and jurisdiction, if so its effect ?OPD.

7. Whether the present suit is not maintainable ?OPD.

8. Relief. In support of the aforesaid issues, plaintiff himself appeared as PW-1 and also examined PW-2 Pritam Singh, V.B.Bhatnagar PW-3, and Gurmail Singh PW-4 and closed the evidence. In rebuttal, defendant examined Satnam Singh DW-1, Mohinder Pal Jindal (DW-2), Kamaljit Singh (DW-3), Navdeep Gupta RSA No. 2328 of 2009 4 Document Expert, (DW-4), Satinder Kumar (DW-5) and he himself appeared as DW-6 and examined Sukhwinder Singh (DW-7) and closed the evidence. The learned trial Court decided issue Nos.1 to 4 together and returned the finding on all these issues against the plaintiff. Issue No.5 regarding limitation was also decided against the plaintiff. The plaintiff affixed the court fee and as such issue No.6 was decided accordingly. Issue No.7 was decided in favour of the defendant and against the plaintiff. In view of the finding on all the issues, the suit of the plaintiff was dismissed. Feeling dis-satisfied with the above said judgment, the plaintiff preferred the First Appeal, which was heard and dismissed by Shri Rajinder Aggarwal, learned District Judge, Sangrur and vide judgment and decree dated 28.1.2009. Still feeling dissatisfied with both aforesaid judgments passed by the Courts below, the plaintiff-appellant has preferred the present regular second appeal. The appellant in paragraph No.9 of the grounds of appeal has mentioned that following substantial questions of law have arisen in this appeal :- a) Whether the impugned judgments/decrees passed by both the courts below are manifest illegal, perverse and deserves to be set aside ? b) Whether the documentary evidence is to be given weightage over the oral evidence ? c) Whether misreading of evidence by the Ld. Courts below is by itself a substantial question of law ? RSA No. 2328 of 2009 5 Learned counsel for the appellant has submitted that both the Courts below have misinterpreted and misread the evidence on the file. The sale deed in question is the result of fraud committed by the defendant, who happened to be the brother of plaintiff-appellant. The report of Shri V.B.Bhatnagar clearly shows that signatures of the appellant does not figure on the sale deed in question. There are two witnesses of the sale deed, one is reported to have died and another has not identified the plaintiff. So, the sale deed in question is not proved on the file. The report of Shri Navdeep Gupta, Document Expert produced by the defendant, is wrong on the face of it. No sale consideration has been passed through the sale deed in question. The other ground for dismissing the suit of the plaintiff is limitation. It is submitted that although the sale deed was alleged to be executed in the year 1988 but since the same has not been executed by the plaintiff and as such the same could be challenged by him from the date of his knowledge. The suit is, therefore, within limitation. Both the Courts below have committed error in this regard while deciding the issue of limitation against the plaintiff. It is further submitted that judgments and decrees of both the Courts below are illegal and deserve to be set aside in as much as the documentary evidence has not been given due weightage and oral evidence has been discarded on flimsy grounds. It is further submitted that judgments and decrees of both the Courts below are the result of misreading of the evidence. So, the prayer has been made for acceptance of the appeal. Learned counsel for the respondent has supported the RSA No. 2328 of 2009 6 judgments and decrees passed by both the Courts below. I have given my thoughtful consideration to the rival submissions made by both the sides and have gone through the records of the case. The controversy in the present lis is regarding the execution of the sale deed No.262 dated 25.4.1988 executed by the plaintiff in favour of defendant for a consideration of Rs.20,000/-. Both the Courts below have duly appreciated and re-appreciated the evidence and returned a finding that the sale deed in question was duly executed by the plaintiff in favour of defendant and on the basis of the sale deed, the defendant has become owner and in possession of the suit property. That being a finding of fact cannot be interferred in the second appeal. The report of document expert V.B.Bhatnagar has duly been considered and the same has been rightly rejected by both the Courts below. The defendant has also produced the Expert, who is duly qualified whereas the Expert produced by the plaintiff is simply a Graduate and does not possess any technical qualification regarding handwriting and finger prints. Moreover, the science of handwriting is not perfect science. The sale deed was executed in the year 1988 and the same has been challenged in the year 2002 i.e. after a period of 14 years. It cannot be said that plaintiff was not in the knowledge of the sale deed. The plaintiff was residing in the same village where the land is situated. Mutation on the basis of sale deed has also been attested in favour of the defendant. There is nothing on the file that judgments and decrees passed by both the Courts below, are the result of misreading and misinterpreting the evidence on the file. Due weightage has been given by RSA No. 2328 of 2009 7 both the Courts below to the documentary as well as oral evidence. So, in view of the above discussion, substantial questions of law raised by the appellant stand answered against the plaintiff/appellant. Consequently, the appeal is without any merit and the same stands dismissed. However, keeping in view the fact that both the parties are real brothers, the parties are left to bear their own costs so far as regular second appeal is concerned. A copy of this judgment be sent to the trial Court for strict compliance. August 24th, 2010 ( K.C.PURI ) JUDGE