R.S.A. No. 1793 of 2006 1 IN THE PUNJAB AND HARYANA HIGH COURT AT CHANDIGARH R.S.A. No. 1793 of 2006 (O&M) Date of Decision : 4.5.2009 Hardial Singh & another .......... Appellants Versus Bhupinder Singh & others ...... Respondents CORAM : HON'BLE MR. JUSTICE VINOD K. SHARMA Present : Mr. Arihant Jain, Advocate for the appellants. Mr. K.S. Boparai, Advocate for the respondents. **** VINOD K. SHARMA, J. (ORAL) This regular second appeal is directed against the judgment and decree dated 18.11.2005, passed by the learned Courts below, dismissing the suit filed by the plaintiff / appellants, seeking declaration and permanent injunction, to challenge the sale deed dated 27.11.1986, executed by their predecessor-in-interest i.e. Mukhtiar Kaur mother of the plaintiff / appellants. Late Smt. Mukhtiar Kaur executed a registered mortgage deed dated 20.11.1986, in favour of defendants No. 1 to 5, and thereafter on 27.11.1986, she executed the sale deed in favour of defendants No. 6 & 7. The plaintiff / appellants also challenged the sale deed dated 27.11.1986, on the pleading, that this sale deed was outcome of fraud and R.S.A. No. 1793 of 2006 2 misrepresentation , therefore, was not binding on their rights. The suit was contested. Defendants No. 1 to 5 supported the case set up by the defendants No. 6 & 7 to the effect that the mortgage amount stood paid to them by defendants No. 6 & 7 and the sale deed was executed. The learned Courts below on appreciation of evidence, have recorded a concurrent finding, that the plaintiff / appellants have failed to prove fraud in execution of the sale deed dated 27.11.1986. It may be noticed here that Smt. Mukhtiar Kaur died on 4.11.1997, and it was after one year of her death, that the present suit was filed. The defendants besides taking plea, that the sale deed was validly executed, also proved on record the subsequent sales by Late Smt. Mukhtiar Kaur, as well as the plaintiff / appellants. The defendant / respondents also succeeded in showing that plaintiff / appellants were in need of money, as projected in the sale deed. The learned counsel for the appellants has challenged the concurrent finding of fact by rasing the following substantial question of law :- Whether the learned Courts below have misread the oral and documentary evidence on record and, thus, the finding recorded are perverse ? In support of the substantial question of law, referred to above, the learned counsel for the appellants contends, that it was highly improbable for Late Smt. Mukhtiar Kaur to execute a sale deed on R.S.A. No. 1793 of 2006 3 27.11.1986 for a meager sum of Rs. 49,000/-, when in fact seven days prior thereto the suit property was mortgaged for a sum of Rs. 41,000/-, with defendants No. 1 to 5. It is also the contention of the learned counsel for the appellants, that the learned Courts below have failed to notice, that Ex. DW3/A i.e. the sale deed was, in fact, prepared on blank papers, which was got thumb marked from her, on the pretext of getting of power of attorney, and thus the contention raised is, that the finding recorded by the learned Courts below is perverse being outcome of misreading of evidence. The contention raised by the learned counsel for the appellants cannot be accepted. It is well settled law, that the plea of fraud has to be established beyond any reasonable doubt, as in criminal cases. Merely on presumption, no fraud can be presumed, as contended by the learned counsel for the appellants. The mortgage amount was only Rs. 41,000/-, whereas the sale deed was for Rs. 49,000/- the possibility of she having sold the property to claim additional amount could not be disbelieved especially, when further sales were made by Late Smt. Mukhtiar Kaur as well as plaintiff / appellants in favour of defendants No. 6 & 7 and their sons. The contention of the learned counsel for the appellants, that the sale deed prima facie show, that the blank papers were thumb marked by Late Smt. Mukhtiar Kaur, cannot be accepted as it is a registered document and the thumb impressions have also been affixed by Late Smt. Mukhtiar Kaur, in presence of the Sub Registrar. R.S.A. No. 1793 of 2006 4 The concurrent findings, recorded by the learned Courts below, cannot be said to be outcome either of misreading of evidence nor the finding of fact that the fraud was not proved, can be interfered in this appeal. No merit. Dismissed. 4.5.2009 ( VINOD K. SHARMA ) 'sp' JUDGE