Regular Second Appeal No. 5118 of 2010 (O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No. 5118 of 2010 (O&M) DATE OF DECISION : DECEMBER 24, 2010 Baldev Kaur .... Appellant Versus Devinder Singh and others .... Respondents CORAM : HON'BLE MR. JUSTICE L. N. MITTAL Present: Mr. Akshay Kumar Goel, Advocate for the appellant. **** L. N. Mittal, J. (Oral) CM No.15090-C of 2010 This is application for condonation of delay of 261 days in refiling the appeal. Heard. File perused. There is standard excuse in the application for condonation of aforesaid long delay of almost nine months in refiling the appeal. It has been alleged that the paper book after being returned by the Registry was collected by the Clerk of the counsel and the same was placed in the briefs of decided cases. This standard excuse is being advanced almost in every other case whenever there is long delay in refiling the appeal. The appellant had 40 days at her disposal for refiling the appeal after it was returned. The said period is sufficiently long period to remove the objections and to refile the appeal. However, in addition to the said period of 40 days, the appellant Regular Second Appeal No. 5118 of 2010 (O&M) -2- delayed the refiling of the appeal by 261 days for which there is no sufficient justification. Even applying yardstick of liberal approach in such matters, such long delay of almost nine months cannot be condoned on vague, general and specious ground that the brief was inadvertently placed in decided cases. If such long delay is condoned on such insufficient ground, the very purpose of prescribing the limitation period would be frustrated. For the reasons aforesaid, I find no sufficient ground for condoning the long delay of 261 days in refiling the appeal. The application is accordingly dismissed. Main Case By this common judgement, I am disposing of two appeals i.e. RSANo.5118 of 2010 and RSA No.5122 of 2010 both titled Baldev Kaur Versus Devinder Singh and others because both these appeals have arisen out of a single suit. Suit was filed by appellant Baldev Kaur and her husband Hakam Singh. However, Hakam Singh died soon after filing of the suit and he is also represented by Baldev Kaur plaintiff No.1-appellant as his legal representative. Plaintiffs alleged that their only issue Daljit Singh died on 06.08.1995 in an accident. Harnek Singh defendant No.2 is nephew of appellant's husband Hakam Singh who was plaintiff No.2. Defendants No.1 and 3 are son and wife respectively of defendant No.2. After death of plaintiffs' son, defendants advised the plaintiffs to transfer their share by way of sale deeds in the name of defendant No.1 who would thereupon look after the plaintiffs as their own son in old age of the plaintiffs. Accordingly, Regular Second Appeal No. 5118 of 2010 (O&M) -3- appellant Baldev Kaur executed one sale deed No.1330 dated 06.03.1997, whereas her husband executed two sale deeds No.1337 and 1338 also dated 06.03.1997 regarding the suit land in favour of defendant No.1. The said sale deeds have been challenged in the suit being result of fraud and misrepresentation and without consideration. It was alleged that the transfer was made only out of love and affection. However, after execution of sale deeds, defendant No.1 deserted the plaintiffs and started residing with his parents i.e. defendants No.2 and 3. Thus the plaintiffs were deceived and sale deeds were got executed fraudulently to grab the suit property of the plaintiffs. The sale deeds were executed while the plaintiffs were under mental tension on account of death of their only son. The plaintiffs sought declaration that sale deed executed by plaintiff No.1 regarding 11 bighas 9 biswas 13 biswansis (1/4th share of 45 bighas 19 biswas land) and the other two sale deeds executed by plaintiff No.2 regarding 9 bighas 15 biswas land and 11 bighas 9 biswas 13 biswansis land are null and void. Plaintiffs also sought permanent injunction restraining defendant No.1 from alienating the suit property and from threatening the plaintiffs. Defendant No.1 admitted that plaintiffs' son Daljit Singh had died. However, it was pleaded that he died long back and not on 06.08.1995 in accident. It was alleged that defendant No.1 had been adopted by the plaintiffs more than 25 years back. All ceremonies of adoption were performed. Registered adoption deed was also executed. Since then defendant No.1 had been living with plaintiffs as their son. It was denied that defendant No.2 is nephew of plaintiff No.2. However, it was admitted that defendant No.1 is natural son of defendants No.2 and 3. It was denied Regular Second Appeal No. 5118 of 2010 (O&M) -4- that sale deeds were executed on the advice of defendants or on promise that defendant No.1 would look after the plaintiffs. It was pleaded that defendant No.1 purchased the suit land for valuable consideration of Rs.8,20,000/-. The sale deeds were pleaded to be legal and valid. Various other pleas were also raised. Defendants No.2 and 3 also pleaded similar version. Learned Civil Judge (Junior Division), Dhuri vide judgment and decree dated 03.02.2007 decreed the suit partly relating to one sale deed executed by plaintiff No.1 Baldev Kaur appellant and dismissed the suit regarding other two sale deeds executed by plaintiff No.2 Hakam Singh since deceased. Baldev Kaur as legal representative of plaintiff No.2 Hakam Singh and defendant No.1 Devinder Singh preferred separate appeals against judgement and decree of the trial court. Learned Additional District Judge, Sangrur vide judgment and decree dated 11.11.2009 dismissed the appeal preferred on behalf of plaintiff No.2 Hakam Singh through legal representative Baldev Kaur and allowed the appeal preferred by defendant No.1 Devinder Singh and thereby dismissed the suit in toto. Feeling aggrieved Baldev Kaur has preferred these two second appeals because there were two first appeals. I have heard learned counsel for the appellant and perused the case file. The appeals are liable to dismissal because delay in refiling the appeals has not been condoned. However, even on merits, the appeals cannot succeed. Learned counsel for the appellant contended that the sale Regular Second Appeal No. 5118 of 2010 (O&M) -5- deeds were executed on the promise that defendant No.1 would look after the plaintiffs in their old age, but after execution of the sale deeds, defendant No.1 deserted the plaintiffs and started residing with his parents i.e. defendant Nos.2 and 3 and, therefore, the sale deeds are null and void. I have carefully considered the aforesaid contention but find no merit therein. Perusal of the sale deeds reveals that the sale deeds were executed for consideration of Rs.8,20,000/-. The said consideration was admitted to have been received by the vendors i.e. both the plaintiff's by recital in the sale deeds and also before the Sub-Registrar at the time of registration of the sale deeds. Consequently, the contention that the sale deeds were without consideration cannot be accepted. There is also no cogent evidence to depict that defendant No.1 promised to look after the plaintiffs and the said promise was basis of execution of the sale deeds. There is no such recital in the sale deeds. On the contrary, the plaintiffs admitted that they executed the sale deeds consciously, although on the basis of alleged assurance of defendants. The contention that plaintiffs were under mental tension on account of death of their son when the sale deeds were executed, also cannot be accepted to set aside the sale deeds. Even according to plaintiffs' own version, their son died on 06.08.1995, whereas the impugned sale deeds were executed on 06.03.1997 i.e. one year and seven months after the death of the plaintiffs' son. Said period was sufficiently long period that elapsed between the death of plaintiffs' son and execution of the impugned sale deeds. Consequently, it cannot be said that sale deeds were result of depression or mental tension on account of death of plaintiffs' son. Regular Second Appeal No. 5118 of 2010 (O&M) -6- Moreover, defendants specifically pleaded that plaintiffs' son had died long back and not on 06.08.1995. In spite thereof, plaintiffs did not produce any document to prove the date of death of their son being 06.08.1995 as pleaded by them. Consequently, impugned sale deeds cannot be said to be result of depression or mental tension of plaintiffs. There is not even an iota of evidence to depict that the two sale deeds executed by plaintiff No.2 Hakam Singh were without consideration. Even plaintiff No.1 appellant in the witness box did not state about the said two sale deeds being without consideration, but stated about her own sale deed only. However, her statement regarding her own sale deed is also not sufficient to depict that the said sale deed was executed without consideration. The suit is also barred by limitation. Impugned sale deeds executed on 06.03.1997 have been challenged in the suit which was instituted on 22.05.2002 i.e. more than five years after the execution of the sale deeds. However, limitation period to seek declaration that the sale deeds are null and void was three years only. Learned counsel for appellants contended that the limitation period commenced when defendant No.1 deserted the plaintiffs and it became known to the plaintiffs that the sale deeds had been obtained by fraud i.e. defendant No.1 dishonoured the assurance of serving the plaintiffs. Learned counsel for appellant referred the Article 59 of the Schedule to the Limitation Act, 1963 in this behalf. The contention is completely misconceived. It is mentioned in paragraph 7 of the plaint that after transfer of title of the suit property, defendant No.1 started residing in other village with his parents i.e. defendants No.2 and 3. Regular Second Appeal No. 5118 of 2010 (O&M) -7- From this averment, it is manifest that some time after the execution of the sale deeds i.e. some time in the year 1997 itself, defendant No.1 started residing with his parents and went back on his alleged promise of looking after the plaintiffs. Thus the limitation period even under Article 59 of the Schedule to the Limitation Act commenced in the year 1997 and the suit filed in the year 2002 is barred by limitation. Learned counsel for the appellant contended that defendants refused to look after the plaintiffs a week before filing of the suit. However, that is not the starting point of limitation. Defendant No.1 allegedly deserted the plaintiffs soon after the execution of impugned sale deeds and at best, that could be the starting point of limitation although in fact the limitation period commenced with the execution of the sale deeds itself. Thus examined from any angle, the suit is patently barred by limitation. For the reasons aforesaid, I find no merit in these second appeals. Finding recorded by the lower appellate court against the plaintiffs is fully justified by the evidence on record and is supported by cogent reasons and cannot be said to be perverse or illegal so as to warrant interference in the second appeals. No question of law, much less substantial question of law, arises for determination in these second appeals. Accordingly, both the appeals are dismissed in limine. (L. N. MITTAL) JUDGE December 24, 2010 'raj'