HIGH COURT OF UTTARAKHAND AT NAINITAL (Court’s order whether the case is or not approved for reporting) Description of the case Second Appeal No. 148 of 2007 Janesh Kumar. Vs. Jaipal Singh and others. Approved for reporting. Date of Decision: 1.4.2008 Initial of Judge: …………… ……………….. …………………. HIGH COURT OF UTTARAKHAND AT NAINITAL SECOND APPEAL NO. 148 OF 2007 Janesh Kumar, S/o late Ilam Chand, R/o Sethpur, Pargana Manglore, Tehsil Laksar, District – Haridwar. …Plaintiff/Appellant. Versus 1. Jaipal Singh, S/o Kewal Singh, R/o Sethpur Pargana Manglore, Tehsil Laksar, District Haridwar, Through power of Attorney Sri Gyan Chand, S/o Jaipal Singh, R/o Sethpur Pargana Manglore, Tehsil Laksar, District – Haridwar. …..Defendant/Respondent. 2. Sri Ajab Singh, S/o late Ilam Chand, 3. Deep Singh, S/o Late Ilam Chand, 4. Smt. Sumitra, W/o late Ilam Chand, All R/o Sethpur, Pargana Manglore, Tehsil Laksar, District – Haridwar. …….Plaintiffs-Performa Respondents. 1.4.2008 Hon’ble Rajesh Tandon, J. Heard Sri Amish Tiwari, counsel for the appellant, Sri Alok Singh, Sr. Advocate, assisted by Sri Lok Pal Singh and Sri D. Barthwal, counsel for the respondents. 2. By the present Second Appeal filed under Section 100 of the Code of Civil Procedure, the appellant has prayed for setting aside the judgment and decree dated 29.9.2007 passed by the District Judge and Sessions Judge, Haridwar in Civil Appeal NO. 43 of 2005 Jaipal Singh Vs. Ilam Chand and others arising out of the judgment and decree dated 30.7.205 passed by the Civil Judge (Junior Division), Laksar District Haridwar in O.S. No. 97 of 1997. Ilam Chand Vs. Jaipal Singh. 3. Present second appeal has been admitted on the following substantial questions of law: “A. Whether, the lower appellate court is justified in setting aside the judgment and decree of learned trial court, without reversing the findings recorded by learned trial court and recording a finding based against the evidence on record? C. Whether the lower appellate court is justified in relying upon the execution of documents (sale deeds) which are not proved by defendant in accordance with provisions of the law under sec 68 of Evidence Act and which burden of proof of execution specifically lies upon the defendant in the condition when execution of the documents be denied? D. Whether the lower appellate court is justified in holding that there is no evidence on record establishing that the sale deeds are forged, without reversing the finding recorded by the trial court while deciding issue No. 2? E. Whether the lower appellate court is justified in relying upon the testimony of power of attorney in the capacity of the defendant with regard to proof of the execution?” 4. Briefly stated, a suit was filed by the plaintiffs/ appellant and respondent n. 2 to 4 filed a suit being Original Suit No. 97 of 1997 Ilam Chand Vs. Jaipal Singh for cancellation of the sale deed and permanent injunction. 5. According to the plaint case, plaintiff Ilam Chand (deceased) has claimed himself to be the owner as well as Bhumidhar with transferable rights and the defendant has no concern with the plot in dispute. According to the plaintiffs, they have been recorded in the revenue records and since the defendant was interfering in possession of the plaintiff, therefore, the suit was filed by the plaintiff praying for permanent injunction restraining the defendants from interfering in the possession of the land in dispute. During the pendency of the suit, after the death of plaintiff-Ilam Chand, successors of the plaintiff, who were substituted, have also sought an amendment for cancellation of the sale deeds dated 8.4.1994 and 19.7.1995 executed by the plaintiff Ilam Chand in favour of the defendant. 6. A written statement was filed by the defendant denying that the plaintiff has any concern with the land in dispute. In paragraphs 25 and 26 of the written statement, it was admitted that the plaintiff Ilam Chand has executed the sale deeds dated 8.4.1994 and 19.7.1995 and the consideration was paid to that effect. 7. On the pleadings of the parties, the trail Court has framed the following issues: “1% D;k oknh iz’uxr Hkwfe ij rUgk :i ls ekfyd ladze.kh; Hkwfe/kj dkfct pyk vkrk gS\ ;fn gk¡ rks izHkko\ 2% D;k oknh us izfroknh ds gd esa iz’uxr lEifRr ds ckjs esa dksbZ cSukek fd;k gS\ ;fn gk¡ rks izHkko\ 3% oknh fdl vuqrks"k dks ikus dk vf/kdkjh gS\” 8. Plaintiff has filed per list 8Ga1 copy of the Khatauni for the Fasli year, 1401 to 1405 Fasli Khata No. 10 Mauja Hirna Hedi Paper No. 9Ga, copy of the Khasra Mauja Gram Hirna Hedi Pargana Jwalapur year 1404 Fasli paper No. 10 Ga, per list 75 Ga 1 copy of the Khatauni for Gata No,. 64 1407 to 1412 Fasli 76Ga 1/1, copy of the Khatauni regarding Gata No. 65 1407 to 1412 Fasli Paper No. 76G1/2, copy of the Khatauni regarding Gata No. 66 1407 to 1412 Fasli Paper No. 76Ga1/3, copy of the Khasra regarding Gata No. 64 Paper No. 76Ga1/4, copy of the Khasra regarding Gata No. 65 Paper No. 76 Ga1/5, cxopy of the Khasra regarding Gata No. 66 Paper No. 76 Ga1/6. Towards the oral evidence, Sri Ilam Chand has been examined as P.W.1. 9. Defendant has filed per list 19Ga2 copy of the sale deed dated 7.7.95 Paper No. 20 Ga1, copy of the sale deed dated 8.4.1994 Paper No. 21Ga1, per list 31GA1 original of the sale deed dated 7.7.95 Paper No. 31Ka1, original sale deed dated 8.4.1994 Paper No. 32 Ka 1. Towards the oral evidence, Gyan Chand and Arun Kumar have been examined as D.W.1 and D.W.2 respectively. 10. While deciding the issue no. 1 as to whether the plaintiff is the sole owner and Bhumidhar of the land in dispute, the trial Court has recorded a finding that the plaintiff continues to be the owner and bhumidhar of the land in dispute with transferable rights and he is in possession of the land in dispute. Thus, this issue has been decided in favour of the plaintiff. 11. While deciding the issue no. 2 as to whether the plaintiff has executed any sale deed regarding the land in dispute in favour of the defendant, the trial Court has recorded the finding that no sale deed was executed in favour of the defendant. Thus, this issue has been decided in favour of the plaintiff and against the defendant. 12. While deciding the issue no. 3 with regard to relief, the trial Court has recorded the finding that the plaintiff has succeeded to prove his case, therefore, he is entitled to get the relief. Thus, the trail Court has decreed the suit of the plaintiff for permanent injunction restraining the defendants from interfering with the possession of the plaintiff. 13. Aggrieved by the said judgment and decree, the defendant preferred an appeal being Civil Appeal No. 43 of 2005 Jai Pal Singh Vs. Ilam Chand and others. The appellate Court on the basis of the evidence available on the record has recorded a finding that the photographs, which are affixed in the sale deed belong to him and there is no evidence showing the duress while executing the sale deed. In the statement, Ilam Chand P.W.1 has admitted that on the sale deed Paper No. 20 Ga 1 and 21 Ga1 his photographs are affixed. 14. I have also perused the statement of D.W.1 Gyan Chand, who has stated that in both the sale deeds, Girvar Singh was the witness and the signatures were made by Sri Ilam Chand. D.W.2 Arun Kumar Advocate has been examined, who has proved the documents and stated that Girvar Singh was one of the attesting witnesses. The statement of Arun Kumar- D.W.2, has fully proved the execution of documents by Sri Ilam Chand. 15. Counsel for the appellant has submitted that the execution of the document has not been proved in accordance with the provisions of Section 68 of the Evidence Act. Section 68 of the Evidence Act reads as under: “68. Proof of execution of document required by law to be attested.-If a document is required by law to be attested, it shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution, if there be an attesting witness alive, and subject to the process of the Court and capable of giving evidence: [Provided that it shall not be necessary to call an attesting witness in proof of the execution of any document, not being a Will, which has been registered in accordance with the provisions of the Indian Registration Act, 1908 (16 of 1908), unless its execution by the person by whom it purports to have been executed is specifically denied.]” 16. A perusal of the record shows that the District Judge has recorded the finding that the land has already been transferred in the name of transferee after the execution of the sale deed. In such a circumstances, the burden was upon the defendant to prove that the sale deed was executed with ill- motive or without any consideration. 17. Counsel for the respondent has referred the judgment of Prem Singh & Ors. Vs. Birbal & Ors. 2007 (4) Civil Court Cases 226 (S.C.) regarding the presumption of the registered documents and the onus of proof would be on a person, who leads the evidence to rebut the presumption. Relevant paragraphs 28 and 29 of the judgment is below: “28. There is a presumption that a registered document is validly executed. A registered document, therefore, prima facie would be valid in law. The onus of proof, thus, would be on a person who leads evidence to rebut the presumption. In the instant case, Respondent No. 1 has not been able to rebut the said presumption. 29. If a deed was executed by the plaintiff when he was a minor and it was void, he had two options to file a suit to get the property purportedly conveyed thereunder. He could either file the suit within 12 years of the deed or within 3 years of attaining majority. Here, the plaintiff did not either sue within 12 years of the deed or within 3 years of attaining majority. Therefore, the suit was rightly held to be barred by limitation by the trial court.” 18. While allowing the appeal, the appellate Court has taken into consideration the statement of Ilam Chand that the Photographs have been affixed by the seller himself. The appellate Court has also recorded a finding to the following effect: “iz’u ;g mBrk gS fd tc cSukeksa ij oknh @ izR;FkhZ dh viuh QksVks vkSj gLrk{kj gS vkSj iz’uxr Hkw[k.M dks og izfroknh @ vihykUV ds i{k esa LFkkUkkUrfjr dj pqdk gS rks ml fLFkfr esa jktLo vfHkys[kksa ds vk/kkj ij oknhx.k @ izR;FkhZ dks iz’uxr Hkwfe dk ekfyd ,oa dkfct eku djds okn fMdzh djus dk fo}ku flfoy tt ¼dfj"B izHkkx½ yDlj ds le{k D;k vkSfpR; FkkA ,slh fLFkfr esa] tcfd iz’uxr lEifRr izfroknh @ vihykUV ds i{k esa LFkkukUrfjr gks pqdh gSA vkSj ,slh dksbZ lk{; i=koyh ij fo|eku ugha gS fd fodz; foys[k Ny] diV ,oa /kks[kk dk ifj.kke gSA” 19. In view of the aforesaid, the question of law no. A is decided against the defendant and in favour of the plaintiff. 20. So far as questions of law no. C and D are concerned, the evidence on the record has fully proved that there is presumption of execution of the document and the questions of law are decided against the defendant. Further name of the defendant having been recorded after the execution of the sale deed is another presumption that sale deed has been acted upon in favour of the defendant. Arun Kumar has also been examined, who has identified Ilam Chand, therefore, there is no reason to disbelieve the statement of Ilam Chand. 21. So far as question of law no. E is concerned, the defendant has executed a power of attorney in favour of Gyan Chand but Ilam Chand has come in the witness box and has provd his own photograph. Therefore, there is no reason to disbelieve the sale deed executed by the plaintiff in favour of the defendant. Gyan Chand has filed his affidavit. In paragraph 15, it has been stated has under: “15&;g fd lgh rF; gS fd oknh] izfroknh dk lxk HkkbZ gS vkSj oknh dks izfroknh ds gd esa gq, cSukes fnukad 8-4-94 o 7-7-95 oknh ds izfroknh ls izfrQy izkIr djds gh izfroknh ds gd esa fu"ikfnr fd;s gS vkSj oknh i<+k fy[kk o cgqr rst rjkj O;fDr gS ftl dkj.k oknh dks izfroknh ds gd esa gq, cSukeksa dks pqukSrh nsus dk vf/kdkj izkIr ugha gSA” 22. In view of the above, question of law no. E is decided in favour of the plaintiffs and against the defendant. 23. In view of the aforesaid since the courts below have recorded the findings of fact and the same cannot be interfered under Section 100 of the Code of Civil Procedure. 24. In H.P. Pyarejan Vs. Dasappa 2006 AIR SCW 715, the Apex Court has observed as under:- “Under Section 100 of the Code (as amended in 1976) the jurisdiction of the High Court to interfere with the judgments of the courts below is confined to hearing on substantial questions of law. Interference with findings of fact by the High Court is not warranted if it involves re- appreciation of evidence.” 25. In view of the aforesaid, I do not find any reason to interfere under Section 100 of the Code of Civil Procedure. Further, I do not find any substantial questions of law involved in this Second Appeal and the Second Appeal is concluded by the findings of fact and deserves to be dismissed. 26. Consequently, Second Appeal is dismissed. No order as to costs. (Rajesh Tandon, J.) 1.4.2008 Rathour