RSA No.211 of 2006 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. RSA No.211 of 2006 Date of Decision: 20.8.2009 Gurbachan Kaur ....Appellant Vs. Jagjit Singh and others ....Respondents .... CORAM : HON'BLE MR.JUSTICE RAJIVE BHALLA **** Present : Mr. O.P. Nagpal, Advocate for the appellant. Mr. R.C. Chaudhary, Advocate for respondent no.2. .... RAJIVE BHALLA, J The appellant challenges the judgement and decree dated 29.11.2005, passed by the Additional District Judge, Patiala, reversing the judgement and decree dated 28.1.2003, passed by the Additional Civil Judge (Senior Division), Patiala, whereby the appellant and respondents no.2 and 3 were held to be owners in joint possession of a part of the suit land and owners in adverse possession of the land sold by late Gurdev Singh to Jagjit Singh, respondent no.1. The appellant and respondent no.3 filed a suit for declaration that as they are in open hostile possession, without payment of rent and to the knowledge of Jagjit Singh they have become owners of the land by adverse possession. Jagjit Singh did not appear, despite service and was proceeded against ex-parte. Gurcharan Kaur, respondent no.2 filed an RSA No.211 of 2006 2 application under Order 1 Rule 10 of the Code of Civil Procedure for being impleaded as a party and was impleaded as such. She filed a written statement averring therein that the land originally belonged to Lt. Gen Balwant Singh, who had two sons, Sukhdev Singh and Gurdev Singh and a daughter Sukhdev Kaur. The appellant and respondents no.2 and 3 are the daughters of Sukhdev Kaur. Gurdev Singh died as a bachelor but prior to his death, executed a will dated 22.2.1976 bequeathing his share in the property to his sister Sukhdev Kaur and his mother Jaswant Kaur. After the death of Jaswant Kaur and Sukhdev Kaur, the property has been inherited by the appellant and respondents no.2 and 3, in equal shares. It was further averred that Gurdev Singh executed a sale deed in favour of a fictitious person, Jagjit Singh so as to save his land from being declared surplus under the provisions of Punjab Land Reforms Act, 1972. As this sale deed was a sham transaction, Gurdev Singh remained in actual cultivating possession of the land. After the death of Gurdev Singh, the appellant and respondents no.2 and 3 are in joint cultivating possession of the suit land. It was further pleaded that the plaintiffs have intentionally furnished a wrong address of Jagjit Singh and obtained a false report of service. The suit is, therefore, an abuse of the process of law and should be dismissed. In the replication, to the written statement, the appellant and respondent no.3 admitted the relationship of the parties, the fact that the property had devolved upon them from Gurdev Singh but asserted that Gurdev Singh had executed a sale deed dated 27.9.1971 in favour of Gurcharan Kaur, respondent no.2 transferring another parcel of land measuring 56 Bighas and 8 Biswas and, therefore, she is not entitled to RSA No.211 of 2006 3 any share in this property. On the basis of the pleadings, the trial court framed the following issues :- “1. Whether the plaintiffs are owners in possession over the land by way of adverse possession ? OPP. 2. Whether the plaintiff is entitled for decree of declaration and permanent injunction ? OPP. 3. Whether the plaintiffs have no cause of action to file the present suit ? OPP 3A) Whether the sale deeds in favour of defendant no.1 are bonafide sales or not ? OPD 3B) Whether the land in dispute belonged to Gurdev Singh deceased and is a coparcenery property ? OPD 4. Relief.” After considering the pleadings, the evidence adduced and the arguments addressed, the trial court decreed the suit. The trial court held that the appellant and respondent no.3 are owners in joint possession of the suit land as they have jointly perfected their title by adverse possession against Jagjit Singh. Aggrieved by the aforementioned finding, the appellant and respondent no. 3 filed an appeal. The first appellate court set aside the entire judgement and decree passed by the trial court by holding that the plaintiffs had played a fraud upon the court, by furnishing the wrong address of respondent no.1, Jagjit Singh, in order to get an ex-parte decree against him. It was further held that the suit for declaration of ownership by RSA No.211 of 2006 4 adverse possession was a clever device to undo the effects of a fraudulent sale deed executed by Gurdev Singh to evade the declaration of his land as surplus under the provisions of Punjab Land Reforms Act, 1972. The first appellate court also held that as the revenue entries, record the appellant and respondents no.2 and 3 in possession as relatives and in the absence of any evidence as to the true identity of Jagjit Singh, the alleged owner, the plea of adverse possession could not be accepted. Counsel for the appellant submits that the judgement and decree passed by the first appellate court is a nullity. The first appellate court has misread oral as well as documentary evidence. The appellant filed an appeal challenging the finding that respondent no.2 is also a joint owner but instead the first appellate court has reversed the finding of ownership by adverse possession. It is submitted that in the absence of any appeal challenging the finding of ownership, the first appellate court had no jurisdiction to reverse this finding. It is submitted that in view of the errors committed by the first appellate court, the following substantial questions of law arise for consideration :- i) Whether the misreading of oral as well as documentary evidence and perversity of finding arrived at amounts to substantial question of law which clearly and candidly gives a power to this Hon'ble court to interfere ? ii) Whether non appreciation of evidence in wrong prospective has caused grave injustice to the plaintiffs ? iii) Whether ignoring relevant and material evidence is resulting into miscarriage of justice ? RSA No.211 of 2006 5 iv) Whether the learned Addl. Distt.Judge has exceeded his jurisdiction by reversing the judgement and decree instead of modifying the same and also dismissing the suit of the plaintiffs ? v) Whether the judgement and decree of the learned Addl.Distt.Judge is beyond jurisdiction and materially illegal ? vi) Whether the judgement and decree of the Addl.Distt.Judge is without any provision of law by setting aside the judgement and decree of trial judge ? Vii) Whether the Addl.Distt.Judge was only empowered either to dismiss the appeal or to modify the judgement of the trial court and he was not empowered to dismiss the suit ?” Counsel for respondent no.2 submits that the appellant was aware that Jagjit Singh is a fictitious person set up by Gurdev Singh to save his land from being declared surplus under the Punjab Land Reforms Act, 1972. The suit based upon this fraud was, therefore, rightly dismissed by the first appellate court. It is further argued that in the absence of the proof of the identity of Jagjit Singh, the first appellate court rightly reversed the finding of ownership by adverse possession. I have heard learned counsel for the parties, perused the impugned judgements and appraised the questions of law. The appellant along with respondent no.3 filed a suit for declaration that they are owners by adverse possession of the suit land sold by Gurdev Singh to Jagjit RSA No.211 of 2006 6 Singh,respondent no.1. But for the written statement filed by respondent no.2, the fraud perpetuated by Gurdev Singh would have gone unnoticed. It appears that Gurdev Singh executed a sale deed in the name of a fictitious person, Jagjit Singh. After Gurdev Singh's death, the appellant and respondent no.3 hatched a plan to undo the sale deed and filed the suit for declaration of their ownership by adverse possession, fully aware of the fact that no person by the name of Jagjit Singh, exists or resides in village Chandpur. As the process server reported that no such person resides in this village, Jagjit Singh was proceeded against ex-parte. This devious ploy adopted by Gurdev Singh, to evade the declaration of surplus area and after his demise by the appellant and respondent no.3 to retrieve the land would not have come to light but for the written statement filed by respondent no.2, their sister. It is conclusively established from the evidence on record that Jagjit Singh is a fictitious person as even the appellant and her witnesses deny any knowledge of this person, his whereabouts or his identity. The fact that Jagjit Singh was proceeded against ex-parte before the trial court, before the first appellate court and before this court, even after publication in a newspaper fortifies the conclusion that the sale deed executed in favour of Jagjit Singh was a fraud. The trial court failed to discern this fraud but the first appellate court was alive to the facts and, therefore, unearthed this fraudulent transfer and thwarted the appellant's attempt to become owner of the property, which was sold to avoid the provisions of Punjab Land Reforms Act, 1972. The questions of law framed by counsel for the appellant are devoid of any particulars as to evidence that has been ignored, as to the nature of the alleged perversity in the process of reasoning or the particulars RSA No.211 of 2006 7 of the errors committed by the first appellate court while appreciating the evidence. The only question that requires consideration is the question, whereby the appellant alleges that the Additional District Judge has set aside the findings of adverse possession passed by the trial court, though Jagjit Singh did not file any appeal. I have considered this argument carefully and have no hesitation in holding that there could not be any appeal against the finding of ownership by adverse possession, as Jagjit Singh does not exist. The first appellate court did the right thing and instead of standing by, as a mute spectator, did not allow this blatant fraud to go unnoticed. It is true that an appellate court draws its jurisdiction from the appeal filed before it but where fraud is writ large on the facts of a case, such a suit or such a decree can be reversed by a court irrespective, of the nature of the appeal. The fact that the sale deed executed in favour of Jagjit Singh is a fraud and the suit is a blatant attempt to legitimise this fraud cannot be overlooked. In view of what has been stated herein above, as the impugned judgement and decree do not suffer from any error of jurisdiction or of law, the appeal is dismissed, with no order as to costs. Before parting with the judgement, it would be appropriate that the entire matter with respect to evasion of surplus area at the behest of Gurdev Singh,deceased be referred to the Financial Commissioner, Revenue, Punjab, for appropriate action, in accordance with law. A copy of this judgement be sent to the Financial Commissioner, Revenue Punjab, Chandigarh. 20.8.2009 (RAJIVE BHALLA) GS JUDGE