R.S.A.No. 3029 of 2009 (O&M) {1} In the High Court of Punjab and Haryana at Chandigarh R.S.A.No. 3029 of 2009(O&M) Date of Decision:August 18, 2009 Balkar Singh and another ---Appellants versus Paramjit Kaur and others ---Respondents Coram: HON'BLE MRS. JUSTICE SABINA *** Present: Mr.R.S.Ahluwalia,Advocate, for the appellants *** SABINA J. Plaintiffs Balkar Singh and Shangara Singh had filed a suit for joint possession to the extent of 2/3rd share of the suit property. Civil Judge (Senior Division), Gurdaspur vide judgment and decree dated 14.6.2003 dismissed the suit of the plaintiffs. Aggrieved by the same, plaintiffs preferred an appeal and the same was dismissed by Additional District Judge (Ad hoc), Fast Track Court, Gurdaspur, vide judgment and decree dated 30.1.2009. Hence, the present appeal. R.S.A.No. 3029 of 2009 (O&M) {2} The facts of the case as noticed by the learned Additional District Judge (Ad hoc), Fast Track Court, in paras 2 to 4 of its judgment read as under:- “Brief facts of the case are that the suit land originally belonged to Smt. Harnam Kaur wife of Hazara Singh, resident of village Lalowal, Tehsil and District Gurdaspur. She was the mother of the plaintiffs and the defendants, it has further alleged that she had bequeathed the same in favour of the plaintiffs and defendant No. 1 in equal shares, on the basis of a registered will dated 8.8.1974. She had executed the will in sound disposing mind. It was also alleged that said Harnam Kaur had died in the year 1985 leaving behind the plaintiffs and defendants as her natural heirs. However, the plaintiffs and defendant No. 1 were her legal heirs who had succeeded to the suit land in equal shares on the basis of the Will. Defendant No. 1 alleged that he got executed sale deed of land measuring 24 kanals 18 marlas comprised in Khewat No. 15, Khatauni No. 39, Rect. No. 9, Killa No. 6,7/1, Rect. No. 10, Killa No.1/2, 10, 11/1/2, situated at village Lalowal i.e. From the suit land in his favour on 30.4.1985 from said Harnam Kaur deceased widow of Hazara Singh for a sum of Rs. 25,000/-. But the sale deed was a sham transaction and was without consideration. The sale deed did not affect the rights of the plaintiffs on the ground that Harnam Kaur deceased was not possessed of sound disposing mind and that deceased Harnam Kaur was not in her R.S.A.No. 3029 of 2009 (O&M) {3} senses and died at the age of about 95 years. Said Harnam Kaur was not mentally conscious. Defendant No. 1 had only 1/3rd share in the suit land, but defendant No. 1 alleged to be the sole owner of the suit land which was wrong. It was also pleaded that the plaintiffs requested many a times to the defendants to admit their claim, but in vain and as such, suit was filed out of which this appeal has arisen. 3. Notice of the suit was given to the defendants. In the amended written statement filed by defendant No. 1, preliminary objections were taken that the suit for joint possession was not maintainable; that the suit was not properly valued for the purposes of court fee and jurisdiction and the plaint did not disclose particulars as required under Order 7 Rule (1) (j) C.P.C. And the same may be rejected. On merits, it was specifically denied that Harnam Kaur executed any will on 8.8.1974 in favour of plaintiffs No. 1 and 2 and defendant No. 1. the validity of genuineness of the said will was denied. It was averred that said Harnam Kaur was residing with defendant No. 1 and he used to serve and look after her, in her last days. Harnam Kaur sold the land measuring 24 kanals 18 marlas in favour of defendant No. 1 for a consideration of Rs. 25,000/- on 30.4.1985. Harnam Kaur was not having good relations with the plaintiffs. It was denied that the said sale deed was a sham transaction. It was also denied that the sale deed was without consideration and was liable to be set aside. R.S.A.No. 3029 of 2009 (O&M) {4} The sale deed dated 30.4.1985 was executed by Smt. Harnam Kaur while possessing a sound disposing state of mind and was in her senses and also fully mentally conscious. She appeared before the Sub Registrat Kalanaur and received sale consideration. It was further averred that during the said period, Harnam Kaur executed many other documents pertaining to other land and also in connection with litigation in civil and criminal and revenue courts with plaintiffs. The remaining averments were denied. Prayer for dismissal of the suit was made. 4. Defendants Nos. 2 and 4 filed separate written statement taking preliminary objections that the suit was not maintainable in the present form and that the plaint did not disclose particulars as required under Order 7 Rule 1(i) C.P.C. On merits, it was admitted to the extent that the suit land was originally owned by Smt. Harnam Kaur, but the remaining averments were denied. It was also denied that she executed any will dated 8.8.1974 in favour of the plaintiffs and defendant No. 1. The alleged will if any was false and fabricated. The plaintiffs did not render any services to Smt. Harnam Kaur during her life time. They had strained relations with Harnam Kaur. It was admitted that the plaintiffs and defendants were natural heirs of Smt. Harnam Kaur deceased and they were co-sharers in joint possession in equal shares of the suit land after her death. Defendant No. 1 had got 1/6th share in the suit land. The plaintiffs had got no claim worth R.S.A.No. 3029 of 2009 (O&M) {5} admitting. Remaining averments made in the plaint were denied. It was prayed that defendants Nos. 2 and 4 be declared as co-owners in joint possession to the extent of 1/3rd share in the suit land.” On the pleadings of the parties, trial court framed the following issues:- “(1)Whether the suit is properly valued and stamped for the purpose of court fee and jurisdiction? OPP (2)Whether the suit is maintainable in the present form? OPP (3)Whether the suit for joint possession is maintainable? OPP (4)Whether defendant No. 1 is owner in possession of the suit land measuring 24 kanals 18 marlas out of the suit land having purchased vide sale dated 30.4.1985 for consideration? OPD (5) Whether the sale deed exe4cuted by Harnam Kaur in favour of defendant No. 1 is not valid? If so, its effect? OPP 5.AWhether Harnam Kaur executed valid will dated 8.8.1974 in favour of the plaintiffs and defendant No. 1? OPP 6.Relief. After hearing learned counsel for the appellant, I am of the opinion that the present appeal deserves to be dismissed. Plaintiffs had filed a suit for joint possession of the suit land to the extent of 2/3rd share. Admittedly, Harnam Kaur was owner of the property in dispute. Plaintiffs and defendant No. 1 are the sons of Harnam Kaur. Defendant No. 1 placed reliance on sale deed dated 30.4.1985 executed by Harnam Kaur in his favour regarding 24 kanals and 18 marlas R.S.A.No. 3029 of 2009 (O&M) {6} of land. In order to prove the due execution of the sale deed, defendant No. 1 examined DW-1 Sukhdev Singh, Scribe of the sale deed, DW-2 Milkhi Ram, attesting witness of the sale deed. Both the said witnesses deposed with regard to the due execution of the sale deed. There is no force in the arguments raised by learned counsel for the appellants that since the sale consideration was only Rs. 25,000/- and hence, the sale deed was a sham transaction. The fact that the sale consideration was inadequate could only be agitated by the vendor. Harnam Kaur during her life time did not challenge the sale deed on the ground of inadequacy of the sale consideration. Plaintiffs, on the other hand, had failed to establish that the sale deed was a result of fraud or misrepresentation. Plaintiffs had set up a Will alleged to have been executed by Harnam Kaur in their favour and defendant No. 1. The said Will is dated 8.8.1974. However, the plaintiffs had failed to prove the due execution of the Will. Before the lower Appellate Court, an application under Order 41 Rule 27 of the Code of Civil Procedure was filed for permission to lead additional evidence to prove the Will. The said application was dismissed. It was held that the decree dated 6.2.1999 and compromise dated 6.10.1990 sought to be brought on record by way of additional evidence would also not help the case of the plaintiffs as the decree in question was an ex parte decree and no opportunity had been given to the opposite side to oppose the Will. Moreover, the plaintiffs were required to prove their case by leading cogent evidence before the trial court. The documents sought to be placed on record by way of additional evidence were already in the knowledge of the plaintiffs and they had, however, failed to prove the same on record. R.S.A.No. 3029 of 2009 (O&M) {7} No substantial question of law arises in this appeal. Accordingly, this appeal is dismissed. (SABINA) JUDGE August 18, 2009 PARAMJIT