R.S.A.No.2202 of 2009 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH R.S.A.No.2202 of 2009 Date of Decision : 26.08.2009 Sampuran Singh ...Appellant Versus Dilbag Singh and others ...Respondents CORAM:HON'BLE MR. JUSTICE HEMANT GUPTA 1. Whether Reporters of local papers may be allowed to see the judgment? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? Present: Mr. B.S.Saini, Advocate, for the appellant. HEMANT GUPTA, J. (ORAL) The defendant is in second appeal aggrieved against the judgment and decree passed by the Courts below, whereby suit for declaration that the sale deed registered on 2.5.1994 is fraudulent, fictitious, without consideration, ineffective, illegal, null & void and is not binding upon the rights of the plaintiff, was decreed. Consequently, granting decree for possession of land measuring 5 bighas. It is the case of the plaintiff that Sital Singh, deceased-plaintiff, now represented by his legal representatives was co-owner in possession of 1/3 share of land measuring 80 bighas 19 biswas. He has mortgaged the land measuring 13 bighas 15 biswas comprising in khasra No.1580, 635, 632, 636 and 1 bigha 5 biswas comprising in khasra No.634 with the defendant and his brother Fakir Singh for Rs.60,000/- vide mutation No.354. Keeping in view the undue advantage of possession as a R.S.A.No.2202 of 2009 2 mortgagee, the defendant in connivance with the witnesses has created fictitious sale deed dated 29.4.1994 registered on 2.5.1994, by producing fictitious person in place of plaintiff and that the plaintiff has not sold land to the defendant. It is also pointed out that in the sale deed there is no mention of the mortgage, nor mortgage money has been adjusted. Still further, in the proceedings of redemption leading to order of redemption on 9.12.1996, it was not disclosed that the land has been purchased by the defendant. In execution of the order of redemption passed by the Collector, warrants of possession were issued. Thus, the plaintiff alleged that the possession of the defendant after redemption of the mortgage is illegal and unwarranted. Before the learned trial Court, the plaintiff examined PW-1 Navdeep Gupta, Document Expert, PW-4 Kuldip Singh, son of the deceased Sital Singh. The disputed sale deed was tendered into evidence as Ex.PX. On the other hand, defendant examined DW-1 Jit Singh, DW- 2 Mohinder Singh, attesting witnesses of sale deed dated 29.4.1994 and himself appeared as DW-3. On the basis of the evidence led by the parties, the suit was decreed. The learned trial Court found that in the sale deed Ex.PX, it is recited that a sum of Rs.80,000/- has been received by the vendor vide agreement dated 11.3.1994, but the aforesaid agreement has not been produced. One Darshan Singh has filed a suit against Sital Singh for specific performance of agreement to sell dated 11.3.1994. The said suit was dismissed holding that original agreement to sell has not been produced. The Court found that the two agreements to sell of the same date, one in favour of the defendant and another in favour of Darshan Singh, is not plausible. The agreement has not been R.S.A.No.2202 of 2009 3 produced, neither in the present case nor by Darshan Singh in the aforesaid case. Darshan Singh is also found to be husband of daughter of sister of the plaintiff Sital Singh and that Darshan Singh is also facing trial for the offence under Sections 468 and 420 IPC. It has also been found that the defendant was inducted as a mortgagee and an application was filed for redemption. The order was passed by the Collector on 9.12.1996. The reply by the defendant in such proceedings was filed on 23.8.1995 Ex.PW-3, but no reference was made to the sale deed in the reply. The defendant appeared as a witness in the redemption proceedings on 30.10.1995 and on 29.5.1996, but still has not disclosed the sale deed in his testimony. It was, thus, found that the defendant has concealed the factum of sale in redemption proceedings. It was also noticed that defendant and his brother Fakir Singh filed a civil suit for permanent injunction on 6.6.1994 in respect of land comprising in khasra Nos.632, 633, 634 and 635. The said suit was dismissed under Order 9 Rule 8 CPC on 21.11.1996. It was also noticed that defendant filed another suit on 22.7.1998 after the death of Sital Singh, wherein the sale deed dated 29.4.1994 registered on 2.5.1994, was propounded. The said suit was dismissed as default on 8.6.2002. It was found that the defendant has introduced Mohinder Singh, who had filed another suit against Sital Singh and Darshan Singh to grab the property of Sital Singh by all means. In view of the said fact and other circumstances noted by the learned trial Court, the suit of the plaintiff was decreed holding that the sale deed dated 29.4.1994 registered on 2.5.1994 is result of fraud, illegal, null & void and binding upon the rights of the plaintiff. Such decree was affirmed in appeal. R.S.A.No.2202 of 2009 4 Learned counsel for the appellant has vehemently argued that redemption proceedings were in respect of land, which was not subject matter of the sale. Therefore, no reference of sale deed was required to be made in redemption proceedings. However, I do not find any merit in such argument raised by the learned counsel for the appellant. A perusal of the sale deed dated 29.4.1994 registered on 2.5.1994 shows that the entire share of property of Sital Singh is purported to be sold. It necessarily implies that the property mortgaged by Sital Singh was part of the property, which was purportedly sold by him. Therefore, the inference drawn by the Courts below that the reference of sale deed was not made in the redemption proceedings intentionally, is correct. Since, the defendant himself was a mortgagee, the mortgage amount in normal circumstances should have been adjusted out of sale consideration, but not done so. Still further, the failure to disclose the factum of sale in redemption proceedings shows that the defendant wanted to conceal more than as he wanted to reveal. Findings of fact have been recorded by the Courts below on the basis of appreciation of evidence. It could not be pointed that any evidence has been misread or not taken into consideration. Findings of fact recorded by the Courts below cannot be permitted to be disputed by reappreciation of evidence in second appeal. Consequently, I do not find that any substantial question of law arises for consideration by this Court. Dismissed. 26.08.2009 (HEMANT GUPTA) Vimal JUDGE