IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. R.S.A. No.1075 of 2010 (O&M) Date of Decision: 17.5.2010 Balwan Singh. .......Appellant through Shri Girish Agnihotri, Senior Advocate with Shri Gunjan Mehta, and Ms.Binayjeet Sheoran, Advocates. Versus Telu and others. ....... Respondent no.1-Caveator through Shri Arun Palli, Senior Advocate with Shri Kanwal Goyal, Advocate. CORAM: HON'BLE MR.JUSTICE MAHESH GROVER .... 1. Whether Reporters of Local Newspapers 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? .... Mahesh Grover,J. C.M.Nos.3221-22-C of 2010 Allowed as prayed for. R.S.A.No.1075 of 2010, C.M.No.3223-C of 2010 & C.M.No.3430-C of 2010 This Regular Second Appeal is directed against judgment and decree dated 29.1.2010 passed by the Additional District Judge, Fast Track Court, Karnal (hereinafter described as `the first appellate Court') whereby the appeal preferred by the plaintiff-respondent no.1 against judgment & R.S.A. No.1075 of 2010 (O&M) -2- .... decree dated 10.1.2007 of the Additional Civil Judge(Senior Division), Karnal (referred to hereinafter as `the trial Court') was partly accepted. C.M.No.3223-C of 2010 has been moved under Order 39 Rules 1 & 2 read with Section 151 of the C.P.C. for restraining respondent no.1 from alienating the suit properties in any manner whatsoever during the pendency of the appeal, whereas C.M.No.3430-C of 2010 has been filed by the appellant for permission to lead additional evidence in the shape of a registered sale deed dated 10.3.2010 executed by respondent no.1 in respect of the property in dispute. Respondent no.1, who is father-in-law of the appellant, had filed a suit for declaration with consequential relief of permanent injunction. It was prayed that he be declared as owner in possession of the properties as detailed in paragraphs 2 and 2-A of the plaint . A declaration was further sought to the effect that the judgment & decree passed in Civil Suit No.1283 of 1995 titled as “Chand Kaur Versus Telu Ram” are illegal, null & void, result of fraud and misrepresentation. Still further, a prayer was made to declare sale deeds dated 22.1.1998/23.1.1998 and 3.5.1999 as illegal, null & void and result of fraud. As a consequential relief, a decree for permanent injunction was also sought restraining the defendants from dispossessing him from the suit properties mentioned above as well as from the house detailed in paragraph 1 of the plaint. It was pleaded by respondentno.1 that he is having three daughters, namely, Smt.Chand Kaur, Smt.Krishna and Smt.Sunita and had no male issue; that Chand Kaur ( defendant no.1) was married with Balwan R.S.A. No.1075 of 2010 (O&M) -3- .... Singh (appellant); that other two daughters were also married in different villages; that after marriage, all the three daughters were residing in their matrimonial houses; that he is recorded as owner to the extent of 1/3rd share in agricultural land as detailed in paragraph 2 of the plaint; that he is also recorded to be owner to the extent of 1/3rd share in the Bara comprised in khewat no.101/98, Khatauni No.149, Rect. No./Khasra No. 93 (0-18) which is situated within the revenue estate of village Dinger Majra; that a house was constructed over 1/3rd share of the said Bara; that in the year 1998, defendant no.1 and the appellant came to respondent no.1 and represented that the appellant wanted to set up a workshop and for that purpose, a loan was required from the bank; that respondent no.1 being illiterate, was made to thumb mark certain documents on the plea that he would be a guarantor, but these documents were abused, as a sale deed was got registered on 23.1.1998; that upon enquiry, respondent no.1 came to know that vide this sale deed 7 kanals of land being 140/957 the share of total land as detailed in paragraphs 2 and 2-A of the plaint was alienated for a consideration of Rs.1,32,000/-; that the said sale deed was a result of fraud; that on further enquiry, respondent no.1 came to know that defendant no.1 had obtained a civil court decree qua land measuring 6 kanals 6 marlas by impersonating some other person from the Court of Additional Senior Sub Judge, Karnal; that the said decree was purportedly based on a family settlement which never took place; that after the aforesaid decree, a mutation was also got sanctioned by defendant no.1 in her favour and on that basis, that land was further sold by her in favour of defendant nos. 3 to 6 vide sale deed dated R.S.A. No.1075 of 2010 (O&M) -4- .... 3.5.1999 for a consideration of Rs.1,50,000/-; that the said sale deed was illegal and not binding upon him being a result of fraud and that now, the defendants including the appellant were forcibly trying to take possession of the properties in question. The appellant and defendant no.1 filed a joint written statement, whereas defendant nos. 3 to 6 filed their separate written statement. In their written statement, the appellant & defendant no.1 admitted that respondent no.1 was owner of land measuring 15 kanals 13 marlas being 1/3rd share of the total land measuring 46 kanals 19 marlas. They, however, pleaded that respondent no.1 had validly suffered a consent decree qua land measuring 8 kanals and 6 marlas and similarly, the sale deed was executed in their favour by him, for a consideration of Rs.1,32,000/-. It was further pleaded that respondent no.1 had suffered another decree qua the Bara in question much prior to the raising of construction and had also delivered possession thereof to the appellant and defendant no.1, but later on, he got them prosecuted under Sections 107 and 151 of the Cr.P.C.; and that respondent no.1 was living with them after marriage of all the three daughters as there was no one to look after him and it was out of love and affection that he had suffered the decrees and also executed the sale deed, but now he is trying to wriggle out of the same at the behest of some one else. The plea of fraud was denied and it was also refuted that any loan was obtained by the appellant and defendant no.1 and on the pretext of the same, the sale deed was got executed from respondent R.S.A. No.1075 of 2010 (O&M) -5- .... no.1. Defendant nos. 3 to 6, who had purchased the property from the appellant and defendant no.1 denied the averments made in the plaint and pleaded that the decree in favour of defendant no.1 was validly suffered by respondent no.1. They also denied that the sale deed in their favour was a result of fraud. The parties went to trial on the following issues:- 1. Whether the plaintiff is entitled for the decree of declaration to the effect that the plaintiff be declared as owner in possession of the properties as detailed in para No.2 of the plaint and 2A?OPP 2. Whether the plaintiff is further entitled for getting the declaration for the impugned decree passed in civil suit no.1285-95 instituted on 28.10.95 and decided on 1.12.1995 and Goshwara No.54/75D in case titled as Chand Kaur Versus Telu being result of fraud, impersonation as illegal, null and void and not binding on the plaintiff?OPP 3. Whether the plaintiff is further entitled for getting a declaration that the impugned sale deed executed and got registered on 3.5.1999 by the defendant No.1 in favour of defendants No. 3 to 6 being the result of fraud and collusion and being sham transaction, if yes to what effect?OPP 4. Whether the plaintiff is further entitled that the said impugned sale deed executed on 22.1.98 and registered on R.S.A. No.1075 of 2010 (O&M) -6- .... 23.1.1998 is also result of fraud played by the defendants No.1 and 2 on the plaintiffs and same is illegal, null and void and not binding on the plaintiff?OPP 5. Whether the plaintiff is further entitled to the consequential relief of permanent injunction restraining the defendants from dispossessing the plaintiff from the aforesaid properties detailed in para 2 & 2(A) and further restraining the defendants from dispossessing the plaintiff from the house which is constructed on the 1/3 share of the portion shown in red colour in the site plan with respect to land and alienating any portion of the aforesaid properties? If so to what effect?OPP 6. Whether the plaintiff has got no locus standi and cause of action to file and maintain the present suit?OPD 7. Whether the suit is hopelessly time barred?OPD 8. Whether the suit is not legally maintainable in the present form?OPD 9. Whether the suit is bad for misjoinder and non-joinder of the necessary parties?OPD 10. Whether the suit is not properly valued for the purposes of court fee and jurisdiction?OPD 11. Whether the suit is not legally maintainable in the present form?OPD 12. Relief. R.S.A. No.1075 of 2010 (O&M) -7- .... The trial Court, after appraisal of the entire evidence on record, dismissed the suit of the respondent no.1, who then filed an appeal which was partly accepted by the first appellate Court and sale deed dated 22.1.1993/23.1.1998 was set aside being illegal, null & void and based on fraud. In the instant appeal, learned counsel for the appellant has contended that the findings and conclusion of the first appellate Court qua the sale deed dated 22.1.1993/23.1.1998 are erroneous and are liable to be set aside. He submitted that the said sale deed could not be said to be a result of fraud as such a plea was not established by respondent no.1 by leading any cogent evidence. He further submitted that the first appellate Court has gone on conjectures and surmises and has recorded perverse findings in that regard. He argued that it was the case of the appellant and defendant no.1 that out of love & affection and because of the fact that he was residing with them and was being looked after by them, respondent no.1 had executed the sale deed for a consideration of Rs.1,32,000/- and in the absence of any material regarding fraud having been proved, the validly executed sale deed which is a registered document, could not have been set aside. Reliance was place on a judgment of the Supreme Court in Union of India Versus M/S Chaturbhai, 1976 C.L.J. (Civil) 166 (S.C.), wherein it was held that the fraud like any other charge, whether made in civil or criminal proceedings, must be established beyond reasonable doubt and mere suspicion cannot take place of proof. On the other hand, learned counsel for respondent no.1, who R.S.A. No.1075 of 2010 (O&M) -8- .... has appeared on caveat, has contended that the sale deed dated 22.1.1998/23.1.1998 was clearly a result of fraud. He referred to the material and evidence on record to state that the appellant and defendant no.1 had failed to show that a valid consideration was passed on in the transaction and in such an eventuality when this material fact was not proved, an inference regarding fraud could be easily derived. He further contended that the very fact that proceedings under Sections 107/151 of the Cr.P.C. were initiated by respondent no.1 against the appellant and defendant no.1 showed that the relations between the parties were not cordial and hence, the plea that it was on account of love and affect that the property had been sold to the appellant and defendant no.1 was not tenable. I have thoughtfully considered the rival contentions and have perused the impugned judgment. In my considered opinion, one of the essential ingredients of a sale is passing of consideration. The sale necessarily means alienation of possessory right and passing of title to another person in lieu of consideration which is received by the vendor. If the evidence on record is to be seen, the appellant, while appearing as DW7, admitted that he did not give any sale consideration to respondent no.1. He has categorically deposed to this effect. The relevant portion of his testimony is extracted below:- “There was no agreement to sell between my father in law with respect to 7 kanals agricultural land although there was a direct registered sale deed. Consideration amount of the land I R.S.A. No.1075 of 2010 (O&M) -9- .... purchased did not take place. xx xx xx xx xx xx xx xx xx xx xx xx xx xx It is correct that I did not give any money to Telu Ram. Volunteered. Money was given to him.” If the implication of the extracted portion of the statement of the appellant is to be seen, then it leads to an irresistible conclusion that no consideration had passed on to respondent no.1. The appellant also stated in his testimony as DW7 that he got thumb impression of respondent no.1 on stamp papers. None of the witnesses to the sale deed was examined and the cumulative effect of these pieces of evidence is that the sale deed was not a result of free expression of mind of the vendor and was result of manipulation and fraud. There is, indeed, no doubt that mere suspicion cannot replace the requirement of proof, but as observed earlier, if the facts of the instant case are taken into consideration, the suspicion is more or less concretised into a proof for the simple reason that it is not conceivable as to why a person would execute a sale deed without consideration and if it was out of love and affection, the property could have been alienated by way of a consent decree, gift or any other mode and respondent no.1 did not have resorted to such a gimmick so as to execute a sale deed without consideration. The plea of love and affection between the parties is also hallow for the reason that immediately when respondent no.1 came to know about the execution of the sale deed, he lodged a complaint with the police R.S.A. No.1075 of 2010 (O&M) -10- .... and initiated proceedings under Sections 107/151 of the Cr.P.C. against the appellant and defendant no.1. This fact has been categorically admitted by the appellant himself when he appeared as DW7. The relevant part of his statement is extracted below:- “It is correct that when my father in law came to know of the false decree and registration, he gave a complaint in the police and we were challenged under Sections 107/151 Cr.P.C.” There is also material to show that respondent no.1 used to sign in Urdu, but in the sale deed, his thumb impression has appeared. DW12- Satbir Singh and DW13-Ram Kumar admitted in their cross-examination that on the date of execution of the sale deed, they along with the appellant and defendant no.1 were present, but the vendor was not present. No question of law, much less a substantial question of law has been shown to have arisen for consideration of this Court. As a result of the aforementioned discussion, I do not find any illegality or infirmity in the impugned judgment. No other point has been urged before me. Consequently, this appeal is dismissed being without any merit. Resultantly, both the civil miscellaneous applications are also dismissed. May 17,2010 ( Mahesh Grover ) “SCM” Judge