RSA No. 2625 of 1988 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No. 2625 of 1988 Date of decision 27 .04.2011. Smt.Kastura Devi ...... Appellant. versus Smt.Kaushalya Devi ...... Respondent. CORAM : HON'BLE MR.JUSTICE K.C.PURI. Present : Mr. Arun Palli, Senior Advocate with Mr. Tushar Sharma, Advocate for the appellant. Mr. Vivek Suri, Advocate for the respondents. K.C.PURI, J. This is regular second appeal directed by appellant impugning the judgment and decree dated 16.8.1988 passed by learned Additional District Judge, Fatehabad, who dismissed the appeal preferred by defendant against the judgment and decree dated 21.11.1985 passed by the trial Court vide which the suit of plaintiff was decreed. Briefly the facts gathered from the record are that plaintiff had claimed to be owner of 3 kanals of land i.e. 1/7th share of land measuring 11 kanals 15 marlas and 9 kanals 5 marlas comprised in Khewat No.404 and RSA No. 2625 of 1988 2 405 respectively situated in village Ratia District Hisar. The plaintiff had never sold the said land to Smt.Kasturi Devi defendant in the suit and now appellant and had never executed any sale deed in her favour. Smt.Kasturi Devi in connivance with her husband Karamjit Singh, who was step-son of the plaintiff had set up some third person to impersonate the plaintiff and to execute the sale deed in her name. Therefore, it was claimed that the said sale deed was null, void, nonest and liable to be ignored. The plaintiff had further claimed that even earlier her step son Karamjit Singh had filed a suit for declaration that he was owner of the suit land as plaintiff Smt Kaushalya was presumed to be dead as she had not been heard of for the last more than seven years before filing of the civil suit. By chance she had come to know of the suit and had appeared in the Court and so his suit had been dismissed. The plaintiff had claimed that she was owner and in possession of the suit land but in case her possession is not proved, she may be given possession of the suit land on the basis of ownership. The defendant had contested the suit on the ground that plaintiff had sold the suit land to her and she may have herself made some other lady to thumb mark the sale deed in her name as many ladies were standing at that time and the defendant had gone somewhere else. The defendant had claimed that she had paid Rs.15,000/- for the suit land and the sale was quite legal and the plaintiff cannot take the advantage of her own wrong. It has also been claimed that the suit had not been properly valued for the purposes of Court fees and jurisdiction. Pleadings of the parties give arise to the following issues :- RSA No. 2625 of 1988 3 1. Whether the plaintiff is the owner of the suit land ?OPP 2. Whether the impugned sale deed dated 4.11.1982 was not executed by the plaintiff ?OPP. 3. Whether the plaintiff is estopped from filing the suit by his suit by his own act and conduct ?OPD 4. Whether the suit is not maintainable in the present form ? OPD 5. Whether the suit has not been sufficiently stamped for the purpose of court fee ?OPD. 6. Whether the defendants are entitled to special costs u/s 35-A of CPC ?OPD 7. Relief. The parties have led their respective evidence on the aforesaid issues. After appraisal of the evidence, the learned trial Court decreed the suit of the plaintiff with costs vide judgment and decree dated 21.11.1985. Feeling dissatisfied with the judgment and decree dated 21.11.1985, the defendant preferred an appeal before the First Appellate Court. The said appeal was dismissed by learned Additional District Judge, Hisar vide judgment and decree dated 16.8.1988. Still feeling dissatisfied with the above judgments and decree passed by both the Courts below, defendant-appellant has preferred the present regular second appeal before this Court. I have heard learned counsel for the parties and have gone through the records of the case. Learned counsel for the appellant has submitted that the trial court has misread and misinterpreted the evidence on the file. Appellant- RSA No. 2625 of 1988 4 Smt. Kastura Devi is the bona fide purchaser for valuable consideration. The plaintiff by giving suggestion to the defendant has admitted the factum of execution of sale deed. The defendant/appellant is the owner in possession of the suit property. So, prayer has been made for acceptance of the appeal and for dismissing the suit of the plaintiff for possession. Learned counsel for the plaintiff-respondent has supported the judgments of both the Courts below and prayed for dismissal of the appeal. I have given my thoughtful consideration to the rival submissions made by learned counsel for the parties and have gone through the records of the case. It is settled law that the second appeal lies only if any substantial question of law is involved. The counsel for the appellant has submitted that the trial Court has misread and misinterpreted the evidence on the file but no pointed attention towards misreading and misinterpreting the evidence has been brought to my notice during the course of arguments. The main controversy in the present appeal is whether the sale deed in question is the result of impersonation. Both the Courts below have returned the concurrent finding of fact that the said sale deed is the result of fraud and plaintiff has never executed the said sale deed. That finding of fact remains unassailable in the present case. So far as the submission made by the learned counsel for the appellant to the effect that suggestion regarding execution of sale deed proved the execution of the same is concerned, that submission is without any substance. The suggestion has to be interpreted as a whole and not in isolation with the other evidence on file. The case of the plaintiff from the RSA No. 2625 of 1988 5 very beginning is that she has never executed the sale deed nor appeared before the Sub Registrar nor accepted any sale consideration. She has produced the Expert to prove the fact that sale deed does not bear her signatures and thumb impression. No contrary evidence has been produced by the defendant in this regard. The respondent could have produced the evidence of Expert to prove the sale deed but no evidence in this regard has been produced. So, the concurrent finding of both the Courts below that the sale deed in question is the result of fraud committed by the defendant/appellant stands affirmed. Consequently, I have no hesitation in holding that no substantial question of law has arisen in the present case and as such the appeal is without any merit and the same stands dismissed with costs. Decree be drawn. A copy of this judgment be sent to the trial Court for strict compliance. ( K.C.PURI ) JUDGE April 27, 2011 sv