Regular Second Appeal No. 2927 of 1988 1 In the High Court of Punjab and Haryana, at Chandigarh. Regular Second Appeal No. 2927 of 1988 Date of Decision: 13.12.2010 Shamsuddin …Appellant Versus Bashir Ahmad and Others …Respondents CORAM: HON’BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA. Present: Mr. Raj Mohan Singh, Advocate for the appellant. None for the respondents. Kanwaljit Singh Ahluwalia, J. (Oral) Bashir Ahmad filed a suit for declaration and permanent injunction against the appellant and also sought consequential relief thereof. He further prayed that permanent injunction be issued restraining the appellant from alienating the suit property. It was pleaded that the plaintiff was the owner of the agricultural land, description and details whereof have been given in para No.1 of the suit. It was further averred that the plaintiff had appointed defendant No.1-Jahoor Singh as a General Power of Attorney dated 12.6.1969, who, by misusing the same, had alienated the suit property by executing the sale or mortgage deed and no amount had been paid to the plaintiff. It was specifically averred that the sale deed dated 29.4.1974 was the fictitious document and in its garb, the appellant had taken over the possession of the suit Regular Second Appeal No. 2927 of 1988 2 property. The plaintiff had also sought the decree for possession. The appellant is son of defendant No.3-Hamida, and has filed the present appeal as her legal representative. The trial Court, after completion of the pleadings, had formulated the following issues on 29.11.1984:- “1. Whether the plaintiff is owner and in possession as alleged? OPP. 2. Whether defendant No.1 had no authority to alienate the suit land? OPD. 3. Whether the sale deed dated 29.4.74 and mortgage deed dated 9.10.73 executed by defendant No.2 in favour of defendants No.3 is not binding on the plaintiff/ OPP. 4. Whether the plaintiff has no locus standi to file the present suit? OPD. 5. Whether the plaintiff has no cause of action to file the suit? OPD. 6. Whether the plaintiff is estopped by his act and conduct? OPD. 7. Whether the suit is not maintainable in the present form? OPD. 8. Whether the suit is not within time? OPD. 9. Whether the defendant No.3 is bonafide purchaser. If so to what effect? OPD. 10. Relief...” The trial Court, vide its judgment dated 13.3.1985, held qua Regular Second Appeal No. 2927 of 1988 3 issue No.1 that the plaintiff was the owner in possession of the land in dispute. In respect of issue No.2, the finding was given that defendant No.2 to the suit had the valid authority to execute the sale deed. However, for issue No.9, the trial Court gave the finding of fact that the sale deed was executed without any sale consideration. The trial Court had noticed that defendant No.3 had specifically stated that no sale deed was executed in winter for consideration of ` 10,000. The trial Court, after discussing the evidence, gave the following finding of fact:- “13...It is further argued that DW2 Idrish states that sale deed had been executed in winter and that this consideration of ` 10,000 had been paid in his presence whereas the sale deed shows that the sale consideration was regarding loan about which some pronote had been executed. Now the plaintiff is challenging the sale and so whether it was written in winter season or summer season cannot help him at all. The question whether any sale consideration was paid by Hamida while purchasing the suit land remains to be decided. Statement of PW2 that the sale consideration had been exchanged in his presence is obviously wrong. Keeping in view the contents of the sale deed which are as under:- “Lihaja maine Bashir mazkoora ki taraf se uski araji.... badle rupaya das hazar bech di hai. Keemat araji rupaya das hazar (10,000/-) maine karza baruye pronote Regular Second Appeal No. 2927 of 1988 4 mein muzra de kar mushtari se tamam va kamal vasool paa liya hai”. It is argued that this sale deed does not in any way show that the so-called pronote had been executed by the plaintiff and that it was pltf. who was to pay the amount of ` 10,000 under the alleged pronote. It is argued that in case the plaintiff had not taken any loan then now his land could have been sold by defendant No.2 in consideration of that loan. Now it is not disputed before me that past consideration is valid consideration...” The trial Court, while appreciating the evidence, had noticed that the execution of sale deed and payment of consideration is doubtful. It noticed the fact that defendant No.2 had executed a pronote to acknowledge the debt. The trial Court held that the plaintiff had received no payment of any amount from defendant no.3-Hamida in actual terms. Thus, it cannot be held that the sale was the result of consideration and it was held to be bad. The findings of fact were also affirmed by the Additional District Judge, Faridabad, vide his judgment dated 28.9.1988, in the appeal filed by the present appellants. The concurrent findings of fact cannot be set aside especially when it is based on appreciation of the evidence and both the Courts below have considered the discrepancies and contradictions in the testimony of the attesting witnesses to the sale deed to hold that the sale deed was executed without any consideration. The recital in the sale deed that it is in lieu of the satisfaction of the pronote is also not Regular Second Appeal No. 2927 of 1988 5 proved. Neither any substantial question of law has been formulated nor the same has arisen in the present appeal. Hence, there is no merit in the present appeal and the same is hereby dismissed. (Kanwaljit Singh Ahluwalia) Judge December 13, 2010 “DK”