R.S.A. No. 2466 of 2010 -1- IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH R.S.A. No. 2466 of 2010 (O&M) Date of decision : 13.7.2010 ... Pyare Lall ................Appellant vs. Adarsh Kumar and another .................Respondents Coram: Hon'ble Mr. Justice K.C. Puri Present: Sh. P.K. Jain, Advocate for the appellant Sh. Navjeet Singh, Advocate for the caveator-respondent No.2. ... K.C. Puri, J. This is regular second appeal directed by plaintiff-appellant against the judgment and decree dated 22.2.2010 passed by Sh.J.S. Chohan, Additional District Judge, Ludhiana, vide which the appeal preferred by the plaintiff against the judgment and decree dated 27.3.2008 passed by Sh. Harbans Singh Lekhi, Additional Civil Judge (Senior Division), Samrala, was dismissed. The plaintiff filed a suit for declaration to the effect that he is owner in possession of the land measuring 15 Kanals 2 Marlas as described in the heading of the plaint. The plaintiff has challenged the R.S.A. No. 2466 of 2010 -2- sale deed No. 3632 dated 9.12.1977 executed by Amar Chand, father of the plaintiff in favour of Adarsh Kumar-defendant No.1, in respect of the suit property. It is alleged that said sale deed is illegal, nonest, void, without consideration, invalid, fraudulent, fictitious and a result of fraud, as father of the plaintiff and his uncle Rakha Ram never appeared before the Sub Registrar and nor executed the sale deed. The suit property was allotted to Amar Chand on 23.12.1966. The sale certificate was issued in his favour on 18.7.1977. The mutation was attested. The Chief Sales Commissioner, Ludhiana vide his order dated 27.2.1981 cancelled the sale deed in favour of Amar Chand. However, later on the same was restored. The plaintiff further claimed that Amar Chand executed un-registered Will 18.5.1984 in his favour. Defendants were not served through ordinary manner and they were served through publication in daily Ashiana but none appeared and consequently, they were proceeded against ex parte. Plaintiff, in the trial Court in ex parte evidence, himself appeared as PW-1. He also examined PW-2 Jagir Singh, PW-3 Sarwan Ram and PW-4 P.S. Ahuja, expert. The trial Court, after appraisal of the evidence reached to the conclusion that plaintiff has failed to prove that sale deed in question is a forged and fabricated document. It was held by the trial court that report of the expert produced by the plaintiff is not sufficient to prove that sale deed in question does not bear the signatures of Amar Chand. It is further observed that there can be natural variation due to passage of time. The other evidence is not sufficient to prove that sale deed dated R.S.A. No. 2466 of 2010 -3- 9.12.1977 is a result of forgery and is an invalid document. Feeling dissatisfied with the said judgment dated 27.3.2008, passed by Additional Civil Judge (Senior Division), Samrala, the plaintiff-appellant preferred the Ist appeal, which was heard by Sh. J.S. Chohan, Additional District Judge, Ludhiana and the same was dismissed vide judgment dated 22.2.2010. Feeling still dissatisfied with the judgments dated 27.3.2008 and 22.2.2010, referred to above, the present regular second appeal has been filed. Although, in the grounds of appeal in paragraph No. 18, a number of substantial questions of law have been raised, but counsel for the appellant has confined his argument to the extent mentioned below. However, the questions of law raised in that paragraph are reproduced as under:- 1. Whether the Ist Appellate Court has acted illegally in violation of the mandatory provisions of Order 41 Rule 27 CPC by basing its decision in the impugned appeal on copy of document propounded by the respondent during the course of hearing of appeal, which otherwise were beyond the records of the learned Lower Court and there was no leave by the Court to record any additional evidence? 2. Whether the property purchased in restricted auction by Amar Chand vide certificate of sale dated 18.7.1977 could in any circumstance be sold within 20 years there from in violation of rule (6) sub rule (8) of the Punjab Package Deal Properties (Disposal) Rules, 1976? R.S.A. No. 2466 of 2010 -4- 3. Whether the impugned sale deed dated 9.12.1977 being on its face having been executed in violation of the restrictions imposed to transfer the same for a period of 20 years, is void abinitio and opposed to public policy? 4. Whether the limitation to file the present suit would being to run against the appellant/plaintiff when the actual threat to his possession over the suit property was perceived or when the alleged forged document of sale deed was executed? 5. Whether the law of limitation limits its horizon in cases where fraud is alleged and fraudulent document has been alleged to have come into existence and whether the limitation will start from the date of knowledge of the fraud? 6. Whether the rebuttal of the otherwise unrebutted opinion of Handwriting Expert PW-4 could only be, by way of another Handwriting Expert and not otherwise? 7. Whether the Courts below committed serious illegality in not decreeing the suit of the appellant/plaintiff in which there was unrebutted evidence produced as prove of all the material pleadings? Learned counsel for the appellant has submitted that Ist Appellate Court has dismissed the appeal of the plaintiff on the ground that suit was not within limitation. It is further contended that the Ist Appellate Court has taken into account another sale deed executed by Amar Chand. It is contended that the said sale deed has R.S.A. No. 2466 of 2010 -5- been considered by the Ist Appellate Court without giving any opportunity to the plaintiff to rebut that evidence by allowing the application under Order 41 Rule 27 CPC. The finding of the Ist Appellate Court to the effect that suit is not within limitation is wrong on the face of it, as the limitation starts from the date of knowledge. Learned counsel for the respondent has supported the judgments of both the Courts below. It is contended that whether the sale deed is valid or not is a question of fact and there is concurrent finding of both the Courts below that plaintiff has failed to prove that sale deed in question is a forged and fabricated document. It is further contended that plea of bar of 20 years regarding sale of property has not been taken before both the Courts below and that cannot be allowed to be taken for the first time in the appeal. I have heard counsel for both the sides and have also gone through the record of the case. The appellant in paragraph No.5, clause 18 (2) and (3) of the grounds of appeal, has mentioned that since the property was sold within 20 years and as such the same is void. From the bare reading of file, it is revealed that such an objection was not taken before the both the Courts below. The said controversy cannot be raised for the first time in the second appeal. It so seems that counsel for the appellant, feeling that difficulty, has not argued in respect of clause 18(2) and (3) of paragraph 5 in the grounds of appeal, wherein substantial questions have been raised. So, far as the submission that the Ist Appellate Court has wrongly admitted the sale deed of the same date is concerned, that R.S.A. No. 2466 of 2010 -6- submission is without any substance. For the substantial justice, the Court can take additional evidence at any stage of trial. The said sale deed goes to the root of the case. The case of the plaintiff is that father of the plaintiff has not executed any sale deed in favour of defendant No.1. To prove that fact, he has simply examined one expert, who has stated that disputed signatures on the sale deed are not similar to that of signatures on the Will in favour of the plaintiff. The Ist Appellate Court has observed that the Will in favour of the plaintiff cannot be taken as an admitted document. That finding does not call for any interference. Once it is proved that on the same date another sale deed was also executed by Amar Chand with same witnesses, as that of witnesses appearing in the disputed sale deed and that the said sale deed has not been challenged, goes a long way to prove that sale deed in question is a genuine document. As per finding of the Ist Appellate Court in paragraph No. 10, Amar Chand died in the year 1989. The present suit was filed on 28.11.2005. the sale deed is dated 9.12.1977. The argument advanced by counsel for the appellant to the effect that from the date of knowledge, the suit is within limitation, is without any substance. Plaintiff admittedly, is not in possession of the suit property. After the death of Amar Chand in the year 1989 till 20.11.1005, the plaintiff has not taken any action. So, the Ist Appellate Court has rightly held that suit is not within limitation, challenging the sale deed. Both the Courts below have rightly held that plaintiff has failed to prove that sale deed in question is a result of forgery or an invalid document. That being the finding of fact, does not call for any R.S.A. No. 2466 of 2010 -7- interference. In view of the above discussion, all the questions of law raised by the appellant above, stand answered against the appellant. Consequently, the appeal is without any merit and the same stands dismissed. ( K.C. Puri ) 13.7.2010 Judge chugh