Bijender Singh v. Smt. Phool Kaur

Mr. Arun Jain, Sr. Advocate with Mr. Amit Jain, Advocate for the appellant. Ms. Amita Gupta, Advocate with Mr. Rajbir Singh, Advocate for the respondent. ... Rakesh Kumar Garg,J. This is plaintiff's second appeal challenging the judgment and decrees of the courts below, whereby his suit for declaration that he is owner in possession of the suit land, was dismissed. As per the averments made in the plaint, respondent, who is his mother was owner of the suit land. Appellant served her for the last more than 35 years and out of love and affection and due to the service rendered to her by the appellant, she gave the suit land to the appellant about 10 years back and since then he was getting the land cultivated through his servants and agents. Defendant-respondent had also agreed to get the suit land transferred in his favour. Since she was trying to wriggle out from the aforesaid arrangement, the necessity arose to file the present suit.

Initially the aforesaid suit of the appellant was decreed by the Permanent Lok Adalat, Gurgaon vide judgment and decree dated 7.5.2003 on the basis of an admitted written statement alleged to be filed by the defendant- respondent. However, the aforesaid decree was challenged by the defendant- RSA No. 669 of 2010 2 respondents and was ultimately set aside by the Hon'ble Supreme Court of India. The order dated 3.1.2008 of the Hon'ble Supreme Court reads as follows:- “Heard learned counsel for the parties. Leave granted. After having heard learned counsel for the parties, we are satisfied that the present case is not one which could have been decided at the Lok Adalat. The award made by the Lok Adalat is, accordingly, set aside. We, however, make it clear that we have not expressed any opinion on the merits of the case. However, considering the nature of the dispute, we direct the trial Court i.e., the Court of Civil Judge, Senior Division, Gurgaon to dispose of the suit as early as practicable, preferably by the end of June, 2008.

To avoid unnecessary delay, let the parties appear before the concerned court on 30.1.2008 so that the court can fix a date for trial. The appeal is disposed of accordingly.” On remand, the defendant was permitted by the court to file amended written statement whereby she controverted the averments of the plaint raising various preliminary objections and further submitting that she was owner in possession of the suit property and there was no document of transfer of title of the suit land in favour of the appellant. It was also stated that he had played a fraud upon her by getting the matter listed before the Permanent Lok Adalat, Gurgaon and got award dated 7.5.2003 passed in his favour which was set aside by the Hon'ble Supreme Court on 3.1.2008 in CA No.2 of 2008. It was further stated that revenue record of the suit land was in the name of the respondent. It was also submitted that she was owner of the entire suit land and besides this, she was also owner of other land which was sold by the plaintiff without her consent and knowledge.

It was denied that appellant ever served her. She had stayed with her husband and after his death in the year 1998, she was looked after by her nephew and daughter Geeta alias Neeru. It was denied RSA No. 669 of 2010 3 that appellant had provided any financial assistance to her. It was further stated that plaintiff never rendered any service to her and she never agreed to transfer the suit land or any other land in his favour. Thus dismissal of the suit was prayed for. framed:- From the pleadings of the parties, the following issues were

Whether on account of love and affection of the defendant towards the plaintiff and for the services rendered by the plaintiff towards the defendant, defendant gave the suit land to the plaintiff about 10 years back ?OPP

Whether the plaintiff is owner in possession of the suit property ?OPP.

Whether the plaintiff has no cause of action for filing the present suit ?OPP

Whether the plaintiff has played fraud with the defendant ?OPD

Relief. Both the courts below on appreciation of evidence recorded concurrent finding that there was no documentary/cogent evidence on the basis of which it could be proved that the appellant has become the owner of the suit property. The courts below further found that the oral evidence placed on record by the appellant was not sufficient to prove the fact that suit land was given to him 10 years back from the date of filing of the suit. Still not satisfied, the plaintiff had filed the instant appeal. During the pendency of this appeal, plaintiff-appellant died on

19.1.2010. His legal heirs were brought on record vide order dated 12.10.2010 passed in C.M.No.10212-13-C of 2010. In the grounds of appeal, it has been submitted that the following substantial questions of law are involved in the instant appeal:- i) Whether the respondent who had failed to give particulars of fraud and proved the fraud, could be heard in view of her admitted RSA No. 669 of 2010 4 written statement and the subsequent proceedings ? ii) Whether in view of the fact that the appellant had led documentary evidence supported by the affirmative evidence in support of his pleas in the plaint which the respondent failed to rebut, the approach of the learned courts below in dismissing the suit filed by the appellant can be sustained in law ? In support of this appeal, Mr. Arun Jain, learned Senior Advocate appearing on behalf of the appellant has vehemently argued that the Hon'ble Supreme Court while setting aside the award of the Lok Adalat had not expressed any opinion on the merits of the case and there was sufficient affirmative evidence on record to prove that suit land was given to the appellant as the respondent had appeared in the court along with her counsel and filed written statement wherein she had admitted the claim of the appellant and the said admission was binding upon her and in view of the over whelming affirmative evidence on record, it was for the respondent to prove that the appellant had played fraud on her, but neither any material was brought on record by the respondent nor any particulars of fraud were mentioned.

Hence findings against the appellant are not justified and the impugned judgment and decrees of the courts below being perverse are required to be set aside. I have heard learned counsel for the appellant and perused the impugned judgment and decrees of the courts below. I have also perused the testimony of PW1 Vijay Kumar Sharma and PW7 Bhim Singh as pointed out by the counsel for the appellant in support of his case. Undisputedly, the respondent is the owner of the suit property. Again there is no dispute that there is neither any documentary evidence establishing the transfer of title of suit land to the appellant with regard to the suit property nor there is any documentary evidence to establish the possession of the appellant over the suit land. In none of the documents placed on record by the appellant, it has been mentioned that he came into possession of any part of the suit land about 10 years back from the date of filing of the suit.

No khasra RSA No. 669 of 2010 5 girdawari of the suit land or any other revenue record has been placed on record to prove that appellant came into possession of the suit land. In the jamabandis of the suit land for the year 1996-97 Ex.DW7/1 and for the year 2002-03, Ex.PW7/2, the respondent is recorded as owner in possession of the suit land., It is well settled that presumption of truth is attached to the aforesaid entries of jamabandies unless the same are rebutted by some evidence. There is absolutely no documentary evidence on record to controvert the aforesaid presumption of truth attached to the revenue record. The oral evidence placed on record by the appellant is not sufficient to controvert the aforesaid presumption of truth. The argument raised by the counsel for the appellant on the basis of the alleged admission of respondent in the proceedings before the Permanent Lok Adalat are of no help to him as the award of the Permanent Lok Adalat dated 7.5.2003 on the basis of the aforesaid admissions of the appellant was set aside by the Hon'ble Supreme Court.

Moreover, on an application filed by the respondent for amendment of written statement, the court had allowed her to amend her earlier written statement and by virtue of said amendment, the earlier admitted written statement of the respondent stands nullified. Moreover, the amended written statement, she had completely denied the case of the appellant. In view of the aforesaid discussion, I find no merit in this appeal and it cannot be said that findings of the lower Appellate Court are perverse warranting interference of this court under Section 100 of the Code of Civil Procedure. Thus no substantial question of law arises in this appeal. Dismissed. November 9, 2010 (RAKESH KUMAR GARG) JUDGE