RSA No.555 of 2009 (O&M) 1 IN THE HIGH COURT OF PUNJAB & HARYANA, CHANDIGARH Date of Decision: November 03 , 2009 R.S.A. No. 555 of 2009 (O&M) Ram Lal ...........Appellant Versus Amar Singh and others ..........Respondents R.S.A. No. 712 of 2009 (O&M) Ram Lal ...........Appellant Versus Amar Singh and others ..........Respondents Coram: Hon'ble Mrs. Justice Sabina Present: Mr.Arun Jain, Senior Advocate with Mr.Ajay Singh, Advocate for the appellant. ** Sabina, J. This order shall dispose of Regular Second Appeals No. 555 of 2009 (Ram Lal vs. Amar Singh and others) and 712 of 2009 (Ram Lal vs. Amar Singh and others) as both are directed against the same judgment and decree passed by the trial Court. Amar Singh-plaintiff filed two civil suits (bearing No. 72 and 73 dated 28.8.2002/ 12.6.2004 and 19.11.2001/12.6.2004, titled as Amar Singh vs. Ram Lal etc. and Amar Singh vs. Mahni Ram, respectively) for RSA No.555 of 2009 (O&M) 2 declaration. The Additional Civil Judge, Senior Division, Tohana, after consolidating both the abovestated suits as per order dated 9.12.2004, dismissed the suits vide judgment and decree dated 27.2.2007. Aggrieved by the same, plaintiff preferred the appeals. The said appeals were allowed by the Additional District Judge Fatehabad vide judgment and decree dated 10.9.2008. Hence, the present appeal by the defendants. The case of the parties, as noticed by the learned Additional District Judge in paras 3 to 6 of its judgment reads as under:- “ 3. The controversy in the present suit revolved around one fact that the title acquired by Amar Singh and Ram Lal from Mahni Ram regarding land in dispute of which Mahni Ram was owner in possession is valid or not. The plaintiff Amar Singh has claimed that he had purchased the land in dispute from Mahni Ram vide sale deed No.2424 dated 23.9.1977. 4. On the other hand Ram Lal has claimed that the sale deed in favour of Amar Singh was fabricated and not acted upon so it cannot be considered as a valid sale deed and he had become owner by way of compromise and decree dated 14.12.2001. 5.The plaintiff Amar Singh has claimed that he has become owner by way of registered sale deed No.2424 dated 23.9.1977 and he is in possession as owner. The abovesaid sale deed was executed in pursuance of agreement dated 8.1.1971 and 7.3.1974 and the mutation of sale deed No.2424 dated 23.9.1977 was entered with the revenue Patwari bearing no. 1514 dated 21.1.1994 but it was dismissed in default on 5.3.1994. Patwari misplaced original sale deed. The plaintiff again tried to get that the sale deed RSA No.555 of 2009 (O&M) 3 incorporated by mutation No. 1747 dated 8.9.1999 but was dismissed on 23.5.2001 by AC Ist Grade being time barred. The mutation dismissed in default and rejected has no bearing on his right as owner in possession. 6. On the contrary defendant Mahni Ram in civil suit no.73 of 2001 filed his written statement and denied execution of sale deed in favour of the plaintiff and alleged that it is based on fraud and misrepresentation. It was also alleged that possession of land in dispute was already with Ram Lal son of Ram Diwaya another defendant in another suit and he has been declared owner in possession by the Hon'ble Court of Shri O.P.Verma, Additional District Judge, Fatehabad. In another suit Mahni Ram filed his written statement and admitted the claim of the plaintiff. In this suit, Mahni Ram has alleged that he had not suffered any decree in favour of Ram Lal rather he had no knowledge about any such decree and the compromise is out come of fraud. In this written statement Mahni Ram has specifically alleged that he had not filed any written statement in another suit and his present written statement in second suit to be considered as correct and based on real facts. Defendant Ram Lal contested another suit and alleged that he has become owner by way of adverse possession and his ownership was admitted by Mahni Ram in a civil appeal titled as Ram Lal vs. Mahni Ram in which Mahni Ram and Ram Lal entered into a compromise on 14.12.2001 therefore, the decree is binding on plaintiff. He is in possession from more than 12 years from the date of filing of suit in which decree was passed in his RSA No.555 of 2009 (O&M) 4 favour." On the pleadings of the parties, the following issues were framed on 22.11.2004 in civil suit titled as `Amar Singh vs. Mahni Ram:- “1. Whether the plaintiff is owner in possession of the suit land mentioned in head note of the plaint vide registered sale deed No. 2424 dated 23.9.1977?OPP 2.Whether the suit of the plaintiff is not maintainable?OPD 3.Whether the plaintiff is estopped by his own act and conduct?OPD 4.Relief.” The following issues were framed in civil suit titled as `Amar Singh vs. Ram Lal etc.':- 1. Whether the plaintiff is owner in possession of the suit land mentioned in head note of the plaint vide registered sale deed No.2424 dated 23.9.1977?OPP 2. Whether the Civil suit decree of case No.119 dated 14.12.2001 is null and void and liable to be set aside?OPP 3. Whether the suit is not maintainable?OPD 4. Whether the plaintiff is estopped by his own act and conduct to file the present suit?OPD 5. Whether the plaintiff has not come to Court with clean hands?OPD 6. Relief." After hearing the learned counsel for the parties, I am of the opinion that the present appeal deserves to be dismissed. Plaintiff-Amar Singh had filed two suits for declaration. The RSA No.555 of 2009 (O&M) 5 trial Court dismissed both the suits, whereas, in appeal, it was held that the plaintiff was owner in possession of the suit land purchased by him vide sale deed dated 23.9.1977 and the decree in civil suit No. 119-CA dated 14.12.2001 was set aside. Defendants were restrained from interfering in the possession of the plaintiff over the suit property. Plaintiff, in order to prove, his case proved on record Exhibit P1 and Exhibit P2 agreements to sell dated 8.1.1971 and 7.3.1974. Since the said documents had come from proper custody, the learned Additional District Judge rightly held that they were per se admissible being more than 30 years old. Defendants, on the other hand, had failed to rebut the presumption attached to the said documents under Section 90 of the Indian Evidence Act,1872. Mahni Ram,who has executed an agreement to sell did not appear in the witness box to rebut the said presumption. In order to prove the sale deed,dated 23.9.1977,(Exhibit P3) plaintiff led secondary evidence. Plaintiff himself appeared in the witness box and deposed that the sale deed dated 23.9.1977, (Exhibit P3) was executed by Mahni Ram in his favour. Registration Clerk was also examined from the Office of the Sub Registrar to prove the registration of the sale deed. O.P.Gupta, PW4, deed writer also proved the execution of the sale deed dated 23.9.1977. Deed writer deposed that the sale deed after it was scribed was read over and explained to the vendor and,thereafter, it had been thumbmarked by the Vendor. Vendor had also thumbmarked the entries in the register. He had prepared two copies. One copy was written on a stamp paper. Document (Exhibit P3) had been produced from proper custody and was,thus, rightly held, to be duly executed, by the learned Additional District Judge. Defendant had failed to lead any evidence to the RSA No.555 of 2009 (O&M) 6 contrary. Thus, the plaintiff came in possession of the suit property on the basis of the agreement to sell and later became owner of the suit property after the sale deed was executed in his favour by Mahni Ram. The case of the plaintiff further was that the defendants in collusion with each other had got the decree dated 14.12.2001 on the basis of compromise Exhibit DW3/B. The said decree was not binding on the rights of the plaintiff. Ram Lal filed a civil suit No.119-CA dated 14.12.2001 against the Mahni Ram and the said suit was decreed in favour of Ram Lal. Plaintiff was not a party to the suit although he had purchased the suit property from Mahni Ram. Since Mahni Ram had already sold the suit property to the plaintiff vide sale deed dated 23.9.1977, no decree could be suffered by him qua the suit property. The said decree was on the face of it a collusive decree so as to defraud the plaintiff. In these circumstances, the learned Additional District Judge had rightly decreed the suit of the plaintiff. No substantial questions of law arise in these regular second appeals which would warrant interference by this Court Accordingly, these appeal are dismissed. ( Sabina ) Judge November 3 , 2009 arya RSA No.555 of 2009 (O&M) 7