R.S.A. No. 3201 of 2004 (O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH R.S.A. No. 3201 of 2004 (O&M) Date of Decision : 27.3.2009 Charan Singh & another ....Appellants Versus Mani Kant & others ...Respondents CORAM : HON'BLE MR.JUSTICE MAHESH GROVER .... Present : Mr.Rajender Chhokar, Advocate for the appellants. Mr.Kulbhushan Sharma, Advocate for respondent No.1. ..... MAHESH GROVER, J. This appeal by the plaintiffs/appellants is directed against the judgments of the learned trial Court dated 1.2.2002 and that of the first Appellate Court dated 12.4.2004. The plaintiffs/appellants filed a suit for declaration and permanent injunction seeking a declaration to the effect that the three documents executed by their father in favour of the respondents be declared as null and void. It was alleged that their father has executed a General Power of Attorney on 13.10.1989; a lease for a period of 90 years in favour of the respondents of the same date and a sale deed in their favour on 18.10.1989. It was alleged that all these documents were a result of fraud which was played by the respondents on their R.S.A. No. 3201 of 2004 (O&M) -2- father. It was further pleaded that their father had suffered a decree in the year 1993 in their favour and therefore the factum of fraud should be inferred from this as well. The respondents, who contested the suit, pleaded the validity of the documents in their favour and denied the factum of fraud. The following issues were struck while dealing with the matter :- 1. Whether the plaintiffs are owner in possession of the suit property as alleged in para No.1 of the plaint ? OPP 1-A. Whether the contesting defendants No.1 to 3 and 5 are bona fide purchasers of the suit land?OPD 2-A. Whether the plaintiff has filed the suit in collusion with defendants No.4 and 6 to 8?OPD 2. Whether the mutation No.763 on the basis of the sale deed dated 18.10.1989 and GPA dated 13.10.1989 and mutation of Pattanama No.737 and 710 are illegal and void as alleged?OPP 3. Whether the suit is not maintainable in the present form?OPD 4. Whether the suit is time barred?OPD 5. Whether the plaintiffs are estopped from filing suit by their own acts and conduct?OPD 6. Relief. Both the Courts below on the basis of the evidence before R.S.A. No. 3201 of 2004 (O&M) -3- them concluded that the factum of fraud as alleged by the appellants was not proved and further denied the interference in favour of the appellants on the ground that the suit was barred by limitation. Aggrieved by the aforesaid findings, learned counsel for the appellants has contended that both the Courts below have recorded perverse findings. It has been contended that there was ample evidence to show that fraud had been committed upon the appellants which can be inferred from the fact that the general power of attorney and the lease deed were executed on the same day, whereas the sale deed was executed thereafter. It was further contended that there is cogent evidence to establish that the possession is still with the appellants and it is not conceivable that a person who has got a sale deed in his favour would deprive himself of the possession for as long as 7 years. He thus prayed for setting aside of the impugned judgments. It is further contended that both the Courts have gone wrong in recording the finding regarding possession. Reliance has been placed on Balwant Singh v. Khushal Singh and another 2004(1) RCR(Civil) 806 and Surto (Died) through Lrs v. Shanti 2004(3) RCR (Civil) 545. On the other hand, learned counsel for the respondent No1 contended that the findings recorded by the Courts below are correct. It is his contention that the father of the appellants and all their relations who had executed the said documents are still alive and all of them were arrayed as defendants, but none of them chose to contest the suit, which shows that they had voluntarily executed these documents and there was no element of fraud. R.S.A. No. 3201 of 2004 (O&M) -4- After hearing the learned counsel for the parties, I am of the opinion that the contentions raised by the learned counsel for the appellants are totally misconceived. The most glaring aspect of the case is that the documents were executed in the year 1989 by defendants No.4 and 6 to 8 who are relations of the appellants. At no point of time did they raise any dispute regarding the documents having been procured by fraud or by other means. Even when they were arrayed as parties in the suit, they chose not to support the case of the appellants. A person who executes the documents is the best person to know as to whether fraud has been practiced upon him or not. It is also to be noticed that all these documents were registered documents executed with the active participation of the executor and the beneficiaries. In the given set of circumstances when the executors of the documents were alive and were arrayed as parties to the suit and they did not plead fraud and support the plea of the appellants, then it leads to only one inference that the plea of the appellants is without any basis and has to be rejected. That apart, the suit was filed in the year 1996 and the documents were executed in the year 1989. The documents being registered are to be considered in the deemed knowledge of the appellants. In this view of the matter, the findings returned by the Courts below on the question of limitation also cannot be faulted with. Consequently, the appeal is totally devoid of any merit and is dismissed. 27.3.2009 (MAHESH GROVER) JUDGE R.S.A. No. 3201 of 2004 (O&M) -5- dss