Raja Ram v. Rekha Jangra

Hon'ble Mr. Justice L.N. Mittal Present : Mr. Ashok Singla, Advocate and Mr. Ravish Bansal, Advocate, for the appellant L.N. Mittal, J. (Oral) Raja Ram plaintiff has filed instant second appeal after having remained unsuccessful in both the courts below. Appellant Raja Ram filed suit against respondent Rekha Jangra alleging that the plaintiff after the death of his first wife Omwati on

16.3.1993 contracted second marriage with defendant – respondent Rekha Jangra and started residing with him in the suit property along with his three sons from his first wife. In August, 2003, the defendant wanted to start business of furniture and intended to raise loan for the same. Since the defendant had no landed property in her name for raising loan, on her request the plaintiff agreed to transfer the suit property to the defendant to enable her to raise loan for her business. The plaintiff accordingly Regular Second Appeal No. 1930 of 2010 -2- executed sale deed on 22.8.2003 of the suit property in favour of the defendant. However, the defendant did not start any business. The aforesaid sale was without consideration. Even after execution of sale deed, the plaintiff along with his three sons continued to reside in the suit property. On plaintiff's request, the defendant did not transfer back the suit property in favour of the plaintiff. On the other hand, about six months before filing of suit, the defendant deserted the plaintiff. Taking benefit of the aforesaid sale deed, which was a sham transaction, the defendant intended to alienate the suit property. Accordingly, plaintiff sought declaration that sale deed dated 22.8.2003 regarding suit property is illegal and null and void being sham transaction without consideration. The plaintiff also sought permanent injunction restraining defendant from dispossessing the plaintiff from the suit property. The defendant, inter alia, pleaded that she had married the plaintiff. It was also pleaded that she purchased suit property from the plaintiff for consideration vide sale deed dated 22.8.2003 and she is owner in possession of the suit property. All plaint allegations were controverted. It was alleged that the defendant had filed divorce petition under section 13 of the Hindu Marriage Act (in short, the Act) against the plaintiff and therefore, the instant suit has been filed. Learned Civil Judge (Junior Division), Fatehgarh Sahib vide judgment and decree dated 6.10.2009 dismissed the plaintiff's suit. First appeal preferred by the plaintiff stands dismissed by learned Additional District Judge, Fatehgarh Sahib vide judgment and decree dated 15.2.2010. Feeling still aggrieved, the instant second appeal has been filed. Regular Second Appeal No. 1930 of 2010 -3- I have heard learned counsel for the appellant and perused the case file. Admittedly, the plaintiff executed sale deed of the suit property in favour of the defendant. The onus was, therefore, very heavy on the plaintiff to prove that the sale deed was without consideration and was a sham transaction. However, the plaintiff has miserably failed to discharge the said onus. In addition to the plaintiff himself entering into witness box, he examined another witness Harbhajan Singh PW1. However, testimony of Harbhajan Singh PW1 has been rightly discarded by the courts below because he was not even present at the time of execution of the sale deed. Consequently, he could not depose that the sale deed was without consideration or was a sham transaction. His testimony was of mere hear- say and therefore, even inadmissible in evidence. Thus, we are left with only self serving statement of the plaintiff which is not sufficient to depict that the impugned sale deed was executed without consideration. In addition to the aforesaid, the plaintiff's version is practically to the effect that the sale deed was benami transaction. However, plaintiff cannot seek declaration to this effect in view of prohibition created by the Benami Transactions (Prohibition) Act, 1988. Both the courts below on appreciation of evidence have come to concurrent conclusion. The said finding cannot be said to be perverse or illegal so as to call for interference in the second appeal. It may be added that if the defendant had to raise loan, the plaintiff on the basis of suit property could furnish guarantee for the same without even transferring the suit property in favour of the plaintiff. Consequently, very basis pleaded by Regular Second Appeal No. 1930 of 2010 -4- the plaintiff for alleged transfer is un-founded. It has to be noticed with significance that the plaintiff filed the instant suit just 11 days after the defendant filed divorce petition against the plaintiff. For two years after the execution of the sale deed, the plaintiff remained mum and did not challenge the sale deed although defendant had not started any business for which purpose the suit house had allegedly been transferred to her to enable her to raise loan. Divorce petition filed by defendant under section 13 of the Act was converted into petition for divorce by mutual consent under section 13- B of the Act. Joint statement of the parties was recorded therein in Lok Adalat. The parties stated that they were residing separately since July,

2003. Accordingly, marriage between the parties was dissolved by decree of mutual consent vide award dated 8.12.2007, Ex. D2 passed by the Lok Adalat. It is, thus, apparent from the statement made in Lok Adalat in divorce case that parties were residing separately since July, 2003 and so the question of transferring the suit property to defendant in August, 2003 without consideration did not arise. Learned counsel for the appellant also contended that the sale deed is regarding sale of land only whereas house also exists therein. However, the aforesaid contention is beyond the pleadings. The plaintiff has not examined any marginal witness of the sale deed in support of his version. On the other hand, there is admission of the plaintiff by recital in the sale deed to have received sale consideration. The contention of learned counsel for the appellant that the defendant had no resources to pay consideration also cannot be accepted because no such plea Regular Second Appeal No. 1930 of 2010 -5- was either raised in pleadings. Moreover, the defendant has stated that she had taken some money from his brothers to pay sale consideration. The finding of the courts below on appreciation of evidence is finding of fact which does not warrant interference in second appeal as the said finding is not perverse or illegal. Evidence is not to be appreciated again in second appeal. The contentions raised by learned counsel for the appellant relate to re-appreciation of evidence and do not raise any question of law much less substantial question of law for determination in the second appeal. The appeal is found to be without any merit and is, therefore, dismissed in limine. July 13, 2010 'dalbir' ( L.N. Mittal ) Judge