RSA No.4432 of 2010 (O&M) -1- ****** IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.4432 of 2010 (O&M) Date of decision:26.11.2010. Sukhwinder Singh and another ...Appellants Versus Smt. Hamir Kaur and others ...Respondents CORAM: HON’BLE MR. JUSTICE RAKESH KUMAR JAIN Present: Mr. Suram Singh Rana, Advocate, for the appellants. None for the respondents. ***** RAKESH KUMAR JAIN, J. Appellants are the legal representatives of defendant No.1 who have questioned the validity of the judgment and decree of the learned First Appellate Court dated 13.05.2010 by which the judgment and decree of the Trial Court dated 01.02.2008 has been set aside. In brief, the plaintiff filed a suit for declaration to the effect that the sale deed dated 28.07.1986, registered on 29.07.1986, in respect of 18 Kanals 10 Marlas of land, situated in village Ramgarh alias Sarifpur, Tehsil and District Ambala, purported to have been executed by the plaintiff in favour of defendant No.1, is illegal, null and void and the mutation No.234, sanctioned and attested on the basis of the alleged sale deed dated 28.07.1986, is illegal and further the judgment and decree dated 15.10.1987, suffered by defendant No.1 in favour of defendant No.2 in Civil Suit No.8560/1987, passed by Shri L.N.Mittal, the then Senior Sub Judge, Ambala in a case titled as `Harbhajan Kaur Vs. Amrik Singh'' regarding the land in dispute and the mutation No.243, sanctioned and attested on the basis of alleged decree dated 15.10.1987, are wrong, null and void and also prayed for possession of the suit land. It is averred in the plaint that Puran Singh had five sons, namely Inder Singh, Karam Singh, Gurmukh Singh, Dara Singh and Nachhattar Singh and the plaintiff is RSA No.4432 of 2010 (O&M) -2- ****** the widow of Karam Singh S/o Puran Singh . Defendant No.1 Amrik Singh is the son of Inder Singh. It is further averred that Karam Singh, husband of the plaintiff had expired sometime in 1947 and she had inherited his property after his death and became absolute owner thereof after coming into force of the Hindu Succession Act, 1956 [for short “1956 Act”]. It is further averred that she was ill-treated by her in-laws' family members, which compelled her to live at her parental house, she got re-married with one Harnam Singh in the year 1958 and gave her land for cultivation to Inder Singh etc., brothers of her late husband Karam Singh. She did not visit the village of her in-laws for many years, but on 07.01.1996, when she paid a casual visit to her parental home in Punjab, she came to know that some litigation is going on in Ambala between the family members of her in-laws with regard to suit land and on verification, she found that some litigation is going on in Ambala between the members of her in-laws' family by way of Civil Suit titled as `Dara Singh etc. Vs. Amrik Singh etc.' in respect of her land. She inquired from the revenue authorities and came to know on 10.01.1996 that defendant No.1 had forged and fabricated a sale deed dated 28.07.1986, purported to have been executed by the plaintiff in his favour who suffered a decree of the said land in favour of his own wife. She reported the matter to the police, but no action was taken, ultimately a private complaint was forwarded under Section 156 (3) of the Code of Criminal Procedure, 1973 and the case was registered. During investigation of the criminal case, police had produced finger print comparison report of the plaintiff on the alleged sale deed to the effect that she had never sold her land to defendant No.1. The plaintiff had moved an application under Order 1 Rule 10 of the Code of Civil Procedure, 1908 [for short “CPC”] for becoming a party in the suit titled as 'Dara Singh etc. Vs. Amrik Singh etc.', but her application was dismissed on 07.04.1998 and a revision filed against that order was dismissed by this Court on 29.04.1998 with the observation that it would always be open to the plaintiff to file a suit to protect her rights and the suit titled as 'Dara Singh etc. Vs. Amrik Singh etc.' would not come in her way. Since the plaintiff had no other remedy left, therefore, the present suit was filed. In the written statement filed on behalf of Amrik Singh and Harbhajan Kaur (defendant Nos.1 RSA No.4432 of 2010 (O&M) -3- ****** and 2), an objection was raised that Hamir Kaur was not the wife of Karam Singh as she had already been declared dead by her relatives Ajaib Kaur etc., therefore, she had no right, title or interest in the suit property. It was also alleged that the suit is barred by principle of res judicata as the matter involved was already adjudicated in the suit titled as `Ajaib Kaur etc. Vs. Amrik Singh etc.' which has been dismissed on 24.07.1998. Further, the sale deed dated 28.07.1986 was executed by Hamir Kaur in favour of defendant Nos.1 and 2 in the year 1986, therefore, the suit was barred by time. It was also alleged that they have been continuously coming in possession for more than 12 years, therefore, they have become owner by way of adverse possession. Defendant No.4 filed his separate written statement and alleged that the plaintiff is not the real Hamir Kaur. Defendant No.5 filed separate written statement and claimed that he is the bona fide purchaser of the suit property for consideration. However, it is relevant to mention that he had purchased the property in dispute during the pendency of the suit. Plaintiff filed separate replications to the various written statements filed by the defendants and from the pleadings of the parties, following issues were framed by the learned Trial Court:- “1. Whether sale deeds dated 29.07.1986 and subsequent judgment and decree dated 15.10.1987 passed in case titled Harbhajan Kaur Vs. Amrik Singh and mutation thereon are illegal, null and void, result of fraud and not binding upon rights of the plaintiffs as alleged?OPP. 2. Whether if issue No.1 is proved ten plaintiff is entitled to decree of declaration with the consequential relief of possession as prayed for?OPP. 3. Whether present suit is not maintainable?OPD. 4. Whether present suit is barred by resjudicata?OPD RSA No.4432 of 2010 (O&M) -4- ****** 5. Whether present suit is hopelessly time barred?OPD. 6. Whether plaintiff has not come in the Court with clean hands and concealed the true and material facts from the Court?OPD. 7. Rerlief.” Both the parties led their respective evidence and the learned Trial Court dismissed the suit primarily on the ground that the plaintiff is not the real Hamir Kaur. Before the First Appellate Court, the plaintiff had led additional evidence and tendered document Ex.PX which is a judgment dated 22.04.2008, whereas in rebuttal to the additional evidence, defendant No.1(i) & (ii) tendered documents Ex.R1 & Ex.R2 and defendant No.4 tendered documents Ex.D2 to Ex.D7. It was argued before the First Appellate Court that the learned Trial Court has dismissed the suit of the plaintiff on the ground that she is not the real Hamir Kaur despite the fact that there is no issue with regard to her identity. It was observed that “the learned Trial Court in the opinion of this Court got unnecessarily swayed by the question of identity of Hamir Kaur. No issue had been framed with regard to the identity of Hamir Kaur and, therefore, the learned Trial Court went wrong in non-suiting the appellant- plaintiff only on this ground. Further, it were the respondents-defendants who had raised the issue that the appellant-plaintiff was not the real Hamir Kaur. It was then for them to prove that the appellant-plaintiff was not the real Hamir Kaur. They could not have got away just by making an averment. The onus lay on them to prove this fact and not on Hamir Kaur.” Moreover, the learned First Appellate Court observed on the merits of the case in para No.14 of its judgment, which reads as under: - “14. After hearing learned counsel for the parties and going through the record, this Court has arrived at the conclusion that the findings of the learned trial court on issue No.1 are erroneous and deserve to be set aside. Before coming to the merits of the case, this Court has no hesitation in holding that the RSA No.4432 of 2010 (O&M) -5- ****** respondents-defendants duped the appellant-plaintiff and usurped her property. She was unfortunate to have lost her husband at a young age. Fortunately, she remarried and settled in Madhya Pradesh. She, however, did not know that behind her back her greedy relatives had first forged a sale deed and had then suffered a decree also. When she came to know that some litigation was going on between the relatives with regard to her land, she filed an application for being impleaded as a party. The application was dismissed. She approached the Hon'ble High Court where the Hon'ble High Court though did not allow her application for being impleaded as a party but stated that she could always file a fresh suit. It was under these circumstances, that she filed the present suit. The evidence led on the record of the case leaves no manner of doubt that the sale deed dated 28.07.1986 was obtained as a result of fraud. Hamir Kaur did whatever she could when she came to know that she had been defrauded. She approached the police but did not get any help. She then filed a private complaint which was forwarded under Section 156(3) Cr.P.C., and an FIR was registered. She pursued the trial. The accused were convicted vide judgment dated 22.04.2008 (Ex.PX). Report of the FSL is on record as Ex.P5. It holds that the thumb impressions of Hamir Kaur were not there in the sale deed dated 29.07.1986. this clearly proves that the sale deed Ex.P7 was forged and fabricated. The sale consideration was also grossly inadequate. Not only this, Amrik Singh transferred the land further to his wife in a clandestine manner by suffering a decree on 15.10.1987. Once the RSA No.4432 of 2010 (O&M) -6- ****** sale deed is held to be fraudulent, the decree also has to go because Amrik Singh could not have transferred a better title than he himself had.” Learned counsel for the appellant has argued that the learned First Appellate Court has erred in reversing the well reasoned judgment and decree of the learned Trial Court on the ground that the plaintiff has failed to prove her identity as Hamir Kaur wife of Karam Singh. Interestingly, no such issue was struck by the learned Trial Court about the identity of Hamir Kaur and specifying the burden of proof. Basically, it is the allegation of the defendants that the plaintiff is not the real Hamir Kaur and the real Hamir Kaur has already died, then it was incumbent upon them to bring on record evidence to the effect of the death of real Hamir Kaur. In the absence of any issue having been sought to be framed by the defendants or any evidence led by them in this regard, the learned Trial Court could not have recorded a finding that the plaintiff is not the real Hamir Kaur. Insofar as the genuineness of the sale deed dated 28.07.1986 is concerned, the FSL report has been produced on record from which it is proved that the thumb impressions of the plaintiff and the thumb impressions available on the alleged sale deed are not of the same person and no effort was made by the defendants to prove the thumb impressions on the sale deed with the admitted thumb impressions of alleged deceased Hamir Kaur in order to prove the genuineness of the sale deed. Further, it has been recorded by the learned First Appellate Court that Hamir Kaur had re-married in the year 1958, i.e. after coming into force of the 1956 Act, therefore, her re- marriage did not affect her right in the property in dispute which had already vested in her as she had become absolute owner of the suit property after coming into force of the 1956 Act. Thus, in the totality of the circumstances, I do not find any substantial question of law involved in this appeal as envisaged under Section Section 100 of the CPC. Hence, the present appeal is hereby dismissed, however, without any order as to costs. November 26, 2010 (RAKESH KUMAR JAIN) vinod* JUDGE