R.S.A. No. 1387 of 2009 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH R.S.A. No. 1387 of 2009 Date of Decision: 19.082009 Kashmir Singh son of Naranjan Singh (legal heir of Naranjan Singh) resident of Sultanwind, Tehsil and District Amritsar. ... Appellant Versus 1. Rajinder Kaur widow of Major Singh resident of village Sultanwind, Tehsil and District Amritsar. ...Respondent 2. Jasbir Singh; 3. Balwinder Singh; both sons of late Naranjan Singh; 4. Jaswinder Kaur daughter of late Naranjan Singh; all residents of Sultanwind, Tehsil and District Amritsar. ...Proforma-Respondents CORAM: HON'BLE MR. JUSTICE SHAM SUNDER Present: Mr. GPS Bal, Advocate, for the appellant. SHAM SUNDER, J. * * * * This appeal, is directed, against the judgement and decree, dated 09.12.06, rendered by the Court of Civil Judge (Junior Division), Amritsar, vide which, it dismissed the suit of the plaintiff, and the judgement and decree dated 15.01.09, rendered by the Court of Additional District Judge, Amritsar, vide which, it dismissed, the appeal. 2. Naranjan Singh, plaintiff, claimed himself to be the owner, in R.S.A. No. 1387 of 2009 2 possession of land, measuring 20 kanals, situated in village Sultanwind Suburban, Tehsil and District Amritsar. It was stated that neither the plaintiff, nor his attorney, ever executed any sale deed, in favour of the defendant. It was further stated that, if any such sale deed, came into existence, that was the result of fraud and misrepresentation. On the basis of the sale deed, the defendant threatened to dispossess the plaintiff, from the property, in dispute, and also denied the ownership of the plaintiff. She was many a time asked, to admit the claim of the plaintiff, but to no avail. On the final refusal of the defendant, to admit the claim of the plaintiff, left with no other alternative, a suit for declaration and permanent injunction, was filed. 3. The contesting defendant/respondent, put in appearance, and filed written statement, wherein, she took up various objections, and contested the suit. It was pleaded that the suit was not maintainable. It was further pleaded that the plaintiff, had no locus-standi, to file the suit. It was further pleaded that the suit, was bad for non-joinder of necessary parties. It was denied that the plaintiff, was either the owner, or in possession of the land, in dispute. It was stated that the plaintiff, had got four sons, out of whom, Major Singh, died. Major Singh left him surviving the defendant, as his widow, and three children, who were minors. It was further stated that Naranjan Singh, plaintiff, appointed one Ranjit Singh son of Surjit Singh, as his lawful attorney, vide registered power of attorney dated 08.06.98. The said attorney sold the suit land, in favour of the defendant, for a valuable consideration, vide sale deed dated 01.02.99. It was further stated that thereafter, the defendant, came into possession of the land, in dispute, as owner. It was further stated that thereafter the plaintiff, was left with no right or interest, in the land, in dispute. It was denied that the sale deed, was R.S.A. No. 1387 of 2009 3 the result of fraud. It was further stated that since the plaintiff, was not in possession of the land, in dispute, the question of his forcible dispossession, from the property, in dispute, did not at all arise. 4. In the replication, filed by the plaintiff, he reiterated all the averments, contained in the plaint, and repudiated those, contained in the written statement. However, it was stated by him, that he never executed any power of attorney, in favour of Ranjit Singh. It was further stated that, if any power of attorney existed, that was the result of fraud and misrepresentation. 5. On the pleadings of the parties, the following issues were struck:- (i) Whether the plaintiff is owner in possession of suit land? OPP (ii) Whether the defendant threatened to take forcible possession of the suit land? OPP (iii) Whether the present suit is legally maintainable? OPP (iv) Whether the plaintiff Naranjan Singh executed sale deed on 01.02.99 through his attorney in favour of defendant? If so its effect? OPD (v) Whether the plaintiff has suppressed true and material facts from the Court? OPD (vi) Whether the plaintiff is estopped by his own act and conduct from filing the present suit? OPD (vii) Whether the suit is bad for mis-joinder and non-joinder of necessary parties? OPD (viii)Whether the present suit is properly valued for the purposes of Court fee and jurisdiction? OPD (ix) Relief. R.S.A. No. 1387 of 2009 4 6. After hearing the Counsel for the parties, and, on going through the record of the case, the trial Court, dismissed the suit of the plaintiff. 7. Feeling aggrieved, an appeal was preferred, by the plaintiff/appellant, which was also dismissed, by the Court of Additional District Judge, Amritsar, vide judgement and decree dated 15.01.2009. 8. Naranjan Singh, appellant, died, and his legal representative, was brought, on record. 9. Feeling aggrieved, Kashmir Singh, legal representative of deceased Naranjan Singh, appellant, filed the instant Regular Second Appeal. 10. I have heard the Counsel for the appellant, and have gone through the record of the case, carefully. 11. The following substantial question of law arise, in this appeal for the determination of this Court:- Whether the Courts below recorded perverse findings on account of misreading and misappreciation of evidence that the registered power of attorney dated 08.06.98, and the sale deed dated 01.02.99, were not the result of fraud and misrepresentation? 12. The Counsel for the plaintiff/appellant, submitted that the power of attorney dated 08.06.98, was the result of fraud. He further submitted that, as such, the sale deed executed by Ranjit Singh, in favour the defendant/respondent, on the basis of the said power of attorney, was the result of fraud and misrepresentation. He further submitted that the defendant/respondent, is the daughter of Ranjit Singh, the alleged attorney of Naranjan Singh, (deceased). He further submitted that the Courts below, recorded perverse findings, on account of mis-reading and mis-appreciation of evidence. He further submitted that the judgements and decrees of the R.S.A. No. 1387 of 2009 5 Courts below, being illegal, were liable to be set aside. 13. After giving my thoughtful consideration to the contentions, raised by the Counsel for the appellant, in my considered opinion, the appeal deserves to be dismissed, for the reasons to be recorded, hereinafter. In Madvan Nair Vs. Bhaskar Pillai (2005) 10, SCC, 533, Harjeet Singh Vs. Amrik Singh (2005) 12, SCC, 270, H.P. Pyarejan Vs. Dasappa, JT 2006(2), SC, 228, and Gurdev Kaur and others Vs. Kaki and others (JT 2006 (5) SC, 72, while interpreting the scope of Section 100 of the Code of Civil Procedure, the principle of law, laid down, was that the High Court, has no jurisdiction to interfere with the findings of fact, arrived at by the trial Court, and the first Appellate Court, even if the same are grossly erroneous as the legislative intention was very clear that the legislature never wanted second appeal to become a third trial on facts” or “one more dice in the gamble.” It was further held that the jurisdiction of the High Court in interfering with the judgements of the Courts below, is confined only to the hearing of substantial questions of law. No doubt, the plaintiff, pleaded in the replication that the power of attorney was not executed by him, and, if the same existed, it was the result of fraud. He also pleaded in the plaint that the sale deed P2 executed by the attorney was the result of fraud. The power of attorney is D1. Harjinder Singh, DW1, and Ranjit Singh, DW2, proved the execution of the power of attorney. They also proved the execution of the sale deed, copy whereof, is exhibit P2. The mode and manner, in which, the alleged fraud, was committed, was not mentioned, in the plaint. The particulars of fraud, were also not stated, in the plaint as also in the replication. No doubt, the fraud, can hardly be proved through direct evidence. However, the person, who alleges that fraud was committed, is required to prove the same, even in a civil case, in the same R.S.A. No. 1387 of 2009 6 manner, as in a criminal case. Suspicion, howsoever, strong, it may be, can hardly take the shape of proof. The Courts below, were right, in coming to the conclusion, that no worthwhile evidence, was produced, that the fraud, was committed, at the time of execution of the aforesaid documents. Once the Courts below, came to the conclusion, that the power of attorney was executed, in favour of Ranjit Singh, by Naranjan Singh, plaintiff, since deceased, which authorized him, to deal with his property, and even dispose of the same; that he executed the sale deed, in favour of the contesting defendant/respondent, for valuable consideration; and that there was no evidence, that any fraud, was committed, at the time of execution of these documents, they did not commit any illegality, in dismissing the suit. The concurrent findings of fact of the Courts below, on the aforesaid points, being based on the correct reading and due appreciation of evidence, and law, on the point, do not suffer, from any illegality or perversity, and, warrant no interference. The submission of the Counsel for the appellant, thus, being without merit, must fail,and the same stands rejected. The judgements and decrees of the Courts below, are liable to be upheld. The substantial question of law, depicted above, is answered against the appellant. 14. For the reasons recorded above, the instant Regular Second Appeal, being devoid of merit, must fail, and the same is dismissed. 19.08.2009 (SHAM SUNDER) Amodh JUDGE