Civil Revision No.4734 of 2010 (O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. 1. Civil Revision No.4734 of 2010 (O&M) Sohan Lal .....Petitioner v. Pardeep Kumar and others .....Respondents 2. Civil Revision No.4733 of 2010 (O&M) Manmohanlal .....Petitioner v. Pardeep Kumar and others .....Respondents Date of decision: July 18, 2011 CORAM: HON'BLE MR.JUSTICE RAM CHAND GUPTA Present: Mr.Kanwaljit Singh, Sr.Advocate with Mr.Sidharth Gupta, Advocate for the petitioners. ..... RAM CHAND GUPTA, J. Both the aforesaid revision petitions have been filed for setting aside order dated 30.3.2010, passed by learned Additional District Judge, Ferozepur, vide which appeals filed by petitioners against order dated 11.5.2009 passed by learned Civil Judge, Senior Division, Ferozepur, Annexure P1, vide which application dated 2.11.1999 filed by respondents no.1 and 2 for issuance of sale certificate regarding property in dispute in their favour was accepted by dismissing the objections filed by present petitioners, were dismissed. I have heard learned counsel for the petitioners and have gone through the whole record carefully including the orders passed by learned Civil Revision No.4734 of 2010 (O&M) -2- Courts below. Facts relevant for the decision of present revision petition are that in execution of money decree titled as Banwari Lal and another v. Munshi Ram, four different properties belonging to judgment debtor were put to auction. Mulkh Raj son of Lakhpat Rai Chawla was the auction purchaser of one of the properties of the judgment debtor. Munshi Ram- judgment debtor challenged the said auction upto Hon'ble Apex Court and, however, the same was dismissed. In the meantime, Mulkh Raj also expired and his legal representatives, i.e., Pardeep Kumar and Rajiv Kumar filed an application for issuance of sale certificate regarding the auctioned property in their favour. During pendency of the said proceedings, present petitioners- applicants, i.e., Sohan Lal and Manmohan Lal, sons of Shri Jaswant Rai filed objections and prayed for issuance of sale certificate in their favour as legal representatives of Jaswant Rai on the ground that some writing dated 16.1.1959 was executed by Mulkh Raj in favour of their father Jaswant Rai and by virtue of the same they are entitled to the said property and not legal representatives of Mulkh Raj. The writing which has been described by the present petitioners as Memorandum of Settlement-cum-Will has been filed as Annexure P3 with this petition. Perusal of Annexure P3 shows that it has been mentioned that property in dispute was purchased by Mulkh Raj in Court auction by paying Rs.5600/-. It has also been mentioned that on account of stay granted by the Court, registry could not be executed in his favour and he also could not get possession of the same. It is further mentioned that he had sold the said property to Jaswant Rai for Rs.5600/- Civil Revision No.4734 of 2010 (O&M) -3- which has already been received by him and that he will get the sale deed registered as and when he would become owner of the same. It has further been mentioned that if he would get ownership and possession of the property in his lifetime, he would get the registry done in favour of Jaswant Rai and further if he dies then rights in the said property would be that of Jaswant Rai and his son, wife and any other relative would be having no right in the same. It was denied by legal representatives of Mulkh Raj that any such writing was written by him in favour of Jaswant Rai. Learned Executing Court framed the following issues on the objections and reply thereof:- “1. Whether auction purchaser Mulkh Raj executed a Memorandum of Settlement-cum-Will dated 16.1.1959 in favour of Jaswant Rai? OPA 2. If issue no.1 is held in affirmative, whether Jaswant Rai executed a Will on 16.3.1964 in favour of applicants Manmohan Lal and Sohan Lal and what is its effect? OPA 3. Whether the sale certificate is required to be issued in the name of applicant Sohan Lal and Manmohan Lal, sons of Jaswant Rai being legal representatives of Mulkh Raj? OPA 4. Whether Pardeep Kumar and Rajiv Kumar sons of Rattan Lal being legal heirs of Mulkh Raj are entitled for issuance of sale certificate in respect of the property purchased by Mulkh Raj in auction? OPR 5. Relief.” Parties adduced evidence in support of their respective Civil Revision No.4734 of 2010 (O&M) -4- contentions. Learned Executing Court decided issue no.1 against the present petitioners- applicants vide impugned order and came to the conclusion that Mulkh Raj had not executed any alleged Memorandum of Settlement-cum-Will, dated 16.1.1959, Ex.P1 in favour of Jaswant Rai. Sufficient reasons have been given by learned Executing Court in discarding Ex.P1, which has been attached as Annexure P3, in these revision petitions. Memorandum of Settlement-cum-Will is stated to be dated 16.1.1959 when admittedly Mulkh Raj was lying admitted in the hospital, as he was ill. He died on the very next day, i.e., on 17.1.1959. This fact has been admitted even by one of the witnesses of the document. There was no opinion of the concerned doctor regarding mental fitness of Mulkh Raj for executing a document while lying admitting in the hospital. Even one of the petitioners-applicants, i.e., Manmohan Lal has admitted in the cross- examination that Mulkh Raj was seriously ill for the last few days and he remained admitted in the civil hospital. Some other discrepancies were also discussed in the deposition of the witnesses of the applicants, while disbelieving Ex.P1. It has also been observed that both the alleged attesting witnesses of Ex.P1 were very close to Jaswant Rai and that Mulkh Raj was not known to them and they were having no association with Mulkh Raj. Hence, it was observed that execution of writing Ex.P1 by Mulkh Raj is surrounded by suspicious circumstances, which applicants have not been able to remove. It has also been mentioned that writing cannot be taken as sale of the property in dispute as the same is unregistered one and hence, the rights in the immovable property valuing more than `100/- cannot be transferred by way of unregistered document, as the same requires registration as per Section 17 of the Indian Registration Act and Section 54 Civil Revision No.4734 of 2010 (O&M) -5- of the Transfer of Property Act. Issue no.3 has also been decided against the present petitioners- applicants by observing that they have failed to show as to how they came in possession of the property in dispute as per their assertion. Even as per writing Ex.P1, it has been mentioned by Mulkh Raj that he was not in possession of the same and that he would deliver the possession as and when he would get the possession. However, he died before he could get the possession. It has also been observed that present applicants-objectors can seek any other legal remedy against successor in interest of Mulkh Raj available to them under the law, after issuance of sale certificate in favour of legal representatives of Mulkh Raj. Appeals filed against the said order passed by learned Executing Court were also dismissed by learned appellate Court by finding the said reasons cogent and reliable and based on evidence. It has been observed that when Mulkh Raj was seriously ill, it cannot be said that he was in sound disposing mind so as to bequeath property in favour of Jaswant Rai, predecessor-in-interest of present petitioners-applicants. Learned counsel for the petitioners has failed to convince this Court as to whether any illegality or material irregularity has been committed by learned courts below in passing the impugned orders or that grave injustice or gross failure of justice has occasioned thereby, warranting interference by this Court. Moreover, law has been well settled by Hon'ble Apex Court in Surya Dev Rai v. Ram Chander Rai and others, 2003(6) SCC 675 : AIR 2003 SC 3044: 2004(1) RCR (Civil) 147, that supervisory jurisdiction is not available to be exercised for indulging in re-appreciation or evaluation of Civil Revision No.4734 of 2010 (O&M) -6- evidence or correcting the errors for drawing inference like a Court of appeal. It has been observed as under:- “Be it a writ of certiorari or the exercise of supervisory jurisdiction, none is available to correct mere errors of fact or of law unless the following requirements are satisfied : (i) the error is manifest and apparent on the face of the proceedings such as when it is based on clear ignorance or utter disregard of the provisions of law, and (ii) a grave injustice or gross failure of justice has occasioned thereby.” Hence, both the aforementioned revision petitions are, hereby, dismissed being devoid of any merit. 18.7.2011 (Ram Chand Gupta) meenu Judge