R.S.A.No. 4423 of 2004 (O&M) 1 In the High Court of Punjab and Haryana at Chandigarh R.S.A.No. 4423 of 2004 (O&M) Date of decision: 2.7. 2009 Kartar Kaur ......Appellant Versus Suresh Kumar and others .......Respondents CORAM: HON'BLE MRS. JUSTICE SABINA Present: Mr.KPS Sandhu, Advocate, for the appellants. None for respondent No.1. Mr.A.K.Chopra, Sr. Advocate with Mr.Harminder Singh, Advocate, for respondent Nos. 2 and 3. **** SABINA, J. Kartar Kaur-plaintiff filed a suit for declaration and permanent injunction that the sale deeds dated 26.7.1995 executed by defendant No.1 in favour of defendant Nos. 2 and 3 were without consideration and had been obtained by playing fraud and were ineffective against rights of the plaintiff. The Civil Judge (Senior Division), Kapurthala dismissed R.S.A.No. 4423 of 2004 (O&M) 2 the suit of the plaintiff vide judgment and decree dated 6.10.1999. Appeal filed by the plaintiff against the said judgment and decree was also dismissed by the Additional District Judge, Kapurthala vide judgment and decree dated 3.1.2004. The facts of the case, in brief, as noticed by the Additional District Judge, Kapurthala in para Nos. 2 to 6 of his judgment, are as under:- “2. Kartar Kaur plaintiff, was married to Badri Parshad, resident of Nainital (UP) and defendant No.1 was born to her, from their loins. Badri Parshad died in the year 1955. Thereafter, in the year 1955 itself, the plaintiff married Shingara Singh son of Milkha Singh, resident of village Saido Bhulana. At that time, Shingara Singh was also married with Parkash Kaur. Parkash Kaur had no issue, out of that wedlock. Even no child was born to her, after the marriage of the plaintiff, with Shingara Singh. Out of the marriage of the plaintiff with Shingara Singh, five daughters were born, but no male child was born. It was stated that the condition precedent for the marriage of the plaintiff with Shingara Singh, was that she (plaintiff) will not have any connection with defendant No.1. Through sale deeds dated 10.9.92 and 15.9.92, Shingara Singh sold the land, detailed in the head-note of the plaint, in favour of the plaintiff. Since the R.S.A.No. 4423 of 2004 (O&M) 3 purchase of the land, in dispute, the plaintiff became owner in possession thereof. In the month of July 1992, defendant No.1 came to the house of the plaintiff and started quarrelling with her and her husband. The plaintiff and her husband did not like the stay of defendant No.1 at village Saido Bholana, Distt. Kapurthala. Defendant No.1 was asked to leave the village. Defendant No.1 made a complaint to the village Panchayat. A meeting was convened on 26.7.92. During that meeting, it was decided that Shingara Singh will pay Rs. 3,000/- to defendant No.1, and the latter will not come back to village Saido Bhulana and leave the same. Shingara Singh died in June, 1994. When defendant No.1 came to know about the death of Shingara Singh, he again visited the village in the month January, 1995. It was further stated that the plaintiff being an old and illeterate lady, having no male member to look after her interests, her two daughters, namely, Bhupinder Kaur and Surinder Kaur, already married and her remaining daughters, being still minor, defendant No.1 being well educated and well traveled person, there existed fiduciary relationship, between him (plaintiff) and defendant No.1. Defendant No.1 was in a dominating position. It was further stated that since defendant No.1 was in dominating position and the R.S.A.No. 4423 of 2004 (O&M) 4 plaintiff being an illeterate lady, he succeeded in prevailing upon her, to execute will of her property, in his favour. At that time, defendant No.4 was Halqa Patwari. He used to visit that house of the plaintiff, with regard to the sanctioning of mutation of interitance of the estate of Shingara Singh. Defendant No.4 charged a sum of Rs.19,000/- from the plaintiff, for that purpose. He also developed intimacy with defendant No.1 when the plaintiff agreed to execute the will, in favour of defendant No.1, defendant No.4 again started visiting the house of the plaintiff. Defendant No.4 promised to help the plaintiff, in executing the will. For that purpose, the plaintiff was asked by defendant No.4 to bring Rs. 42,000/- as expenses for execution and registration of the will. She withdrew a sum of Rs.40,000/- from her bank account and paid the same to defendant No.4 in Patwar Khana, in the presence of Darshan Singh, a retired Parwari, the thumb impressions of the plaintiff, were obtained, on a number of papers, stating that her will, was being prepared. Defendant No.1 was also present at that time. The plaintiff was further told to come to the Tehsil premises, after two days, for the registration of the will. It was further stated that after two days, the plaintiff visited the Tehsil premises, Kapurthala, and she was made to thumb R.S.A.No. 4423 of 2004 (O&M) 5 mark some documents. She was again asked to come to the Tehsil office, Kapurthala, after one or two days. It was further stated that she thumb marked the papers, under the impression, that a will was to be executed and got registered in the name of Suresh Kumar, defendant No.1. However, those documents were converted into two sale deeds dated 23.6.1995 and 28.6.1995, purported to have been executed by the plaintiff, in favour of defendant No.1. 3. Thereafter, Bhupinder Kaur and Surinder Kaur, daughters of the plaintiff, filed a civil suit for declaration and injunction, against her, and defendant No.1 that the sale deed dated 23.6.95, executed by her, in favour of defendant No.1 was without consideration and in favour of a non-existing person. The said suit was filed through Sh.SS Sargodhia, Advocate. It was further stated that the plaintiff later on learnt that the written statement on her behalf, was filed, in the Court by Sh.MR Kalia, Advocate. The said written statement, was not signed or thumb marked by the plaintiff. It was further stated that through written statement, filed in that suit, in which the plaintiff was one of the defendants, the validity of the sale deed was admitted. It was further stated that the plaintiff had not engaged R.S.A.No. 4423 of 2004 (O&M) 6 any lawyer, to contest the suit. It was further stated that her thumb impression, on the power of attorney, that suit, was obtained, on the pretext of execution of a will. That suit was still pending. The sale deeds, purported to have been executed, by defendant No.1 in favour of the plaintiff, were stated to be without consideration. Subsequently, the plaintiff came to know that defendant No.1 had sold the suit land, in favour of defendants No.2 and 3, through sale deed dated 26.7.1995, registered on 28.7.1995 and sale deed dated 26.7.1995, registered on the same date. In these sale deeds, defendant No.1 posed as Surinder Singh son of Shingara Singh. It was further stated that the said sale deeds, allegedly executed by the plaintiff, in favour of defendant No.1 and by defendant No.3 in favour of defendants No.2 and 3, were Sham transactions, without consideration, illegal, void and inoperative against the rights of the plaintiff. The plaintiff made complaint about this fact to the SSP and Public Grievance Officer, Kapurthala, against defendants No. 1 and 4. The defendants started proclaiming that they had become owners in possession of the land, in dispute, on the basis of the sale deeds, referred to above. The defendants were R.S.A.No. 4423 of 2004 (O&M) 7 many a time, asked to admit the plaintiff to be the owner in possession of the land, in dispute, and get cancelled the sale deeds, which were the result of fraud, but to no avail. On their final refusal to admit the claim of the plaintiff. Left with no alternative, a suit for declaration and permanent injunction, was fileed. 4. The defendants were summoned, to appear and answer the claim of the plaintiff. Defendant No.1 put in appearance, and filed written statement, wherein he took up various objections, and contested the suit. It was pleaded that the plaintiff was estopped from filing the suit, by her own act and conduct. It was further pleaded that the suit was bad for non-joinder of necessary parties. It was further pleaded that the suit was not properly valued for the purpose of Court fee and jurisdiction. It was further pleaded that the suit was not maintainable. It was further pleaded that the plaintiff had no cause of action and locus standi to file that suit. It was admitted that defendant No.1 was the son of the plaintiff, from the loins of Badri Parshad. It was stated that when the plaintiff remarried with Shingara Singh, defendant No.1 was also adopted and considered and treated as son of the plaintiff, and Shingara Singh. It was further stated that defendant R.S.A.No. 4423 of 2004 (O&M) 8 No.1 had been residing with the plaintiff, and her husband Shingara Singh. It was admitted that Shingara Siangh executed the sale deeds dated 10.9.92 and 15.9.92 in respect of the land, in dispute, in favour of the plaintiff. It was further stated that thereafter, the plaintiff sold the suit land, in favour of defendant No.1 though the sale deeds dated 26.6.95 and 28.6.95 for valid consideration and possession was also delivered to him. It was further stated that, on the basis of the said sale deeds, defendant No.1 became that owner in possession of the land, in dispute. It was further stated that defendant No.1 sold the suit land, in favour of defendants No. 2 and 3, through registered sale deeds dated 26.7.95 and 28.7.95 for consideration. It was further stated that after the purchase of the suit land, defendants No. 2 and 3 became the owners in possession of the same. It was denied that any meeting of the Panchayat, was held. It was admitted that Bhupinder Kaur and Surinder Kaur filed a suit against the plaintiff. It was denied that the plaintiff ever agreed to execute the will, in favour of defendant No.1. On the other hand, it was stated that she executed the sale deeds dated 26.6.95 and 28.6.95 in favour of defendant No.1 voluntarily. It was R.S.A.No. 4423 of 2004 (O&M) 9 denied that defendant No.1 was in a dominant position. It was further stated that in the suit filed by Bhupinder Kaur and Surinder Kaur, against the plaintiff, challenging the sale deeds, Sh. MR Kalia, Advocate was engaged as a counsel by the plaintiff, who was defendant therein, and he filed written statement, wherein, the execution of the sale deeds, in favour of defendant No.1 was admitted. It was further stated that thereafter, the plaintiff, at the instance of Bhupinder Kaur and Surinder Kaur, backed out of her previous written statement, and fresh written statement was filed without canceling the power of attorney, given to Sh.MR Kalia, Advocate. The remaining averments were denied being wrong. 5. Defendant No.3 in her separate written statement, took up the objections that the plaintiff had no locus standi and cause of action of file the suit. She also pleaded that the suit was not maintainable, and the plaintiff was estopped from filing the suit, but her act and conduct. It was further pleaded that defendant No.3 was the bonafide purchaser of the suit land for valuable consideration through sale deed dated 26.7.95 for Rs.1,75,000/- in good faith and without any notice of the defect in the title of defendant No.1. It was further R.S.A.No. 4423 of 2004 (O&M) 10 stated that defendant No.1 was living and brought up in the house of Shangara Singh and the plaintiff. At the time of execution of sale deed, in favour of defendant No.3 defendant No.1 was also residing in the house of the plaintiff, and Shingara Singh. It was admitted that vide two sale deeds, Shingara Singh, sold the suit land, in favour of the plaintiff. It was further stated that thereafter through sale deeds dated 26.6.95 and 28.6.95 the plaintiff sold the suit land, in favour of the defendant No.1. Thereafter, defendant No.1 further sold the suit land, in favour of defendants No.2 and 3, through sale deeds dated 26.7.95 and 28.7.95. The remaining averments were denied being wrong. 6. Defendant No.5 in his separate written statement, stated that in the column of possession of the revenue record, his name had been wrongly mentioned. It was further stated that, in fact, Kartar Kaur, plaintiff, was the owner in possession of the suit land. It was further stated that defendant No.5 had been unnecessarily dragged into litigation. The remaining averments, were denied being wrong.” On the pleadings of the parties, following issues were framed by the trial Court:- R.S.A.No. 4423 of 2004 (O&M) 11 “1. Whether the plaintiff is owner in possession of the suit land? OPP 2. Whether the sale deeds dated 23.6.95 reregistered on 26.6.95 and 28.6.95 and the sale deed dated 26.7.95 executed on 28.7.95 and 26.7.95 are void, without consideration and obtained by fraud and are ineffective qua the rights of the plaintiff? OPP 3. Whether the plaintiff is in peaceful possession of the suit land? OPP 4. Whether the plaintiff is entitled to the injunction prayed for? OPP 5. Whether the suit is not maintainable in the present form? OPD 6. Whether the plaintiff has no cause of action and no locus standi to file the present suit? OPD 7. Whether defendant No.3 is a bona fide purchaser, for valuable consideration, without notice? OPD 8. Whether the plaintiff is estopped by her act and conduct to file the present suit? OPD R.S.A.No. 4423 of 2004 (O&M) 12 9. Whether the plaintiff has intentionally, wrongly given the description of the defendant and plaint needs amendment because the name of defendant Surinder Singh and at present he is residing at village Saido Bholana? OPD 10. Whether the suit is bad for non-joinder of necessary parties? OPD 11. Whether the suit is not properly valued for the purpose of court fee and jurisdiction? OPD 12. Relief. ” After hearing learned counsel for the parties, I am of the opinion that the present appeal deserves to be dismissed. The case of the plaintiff is that the sale deeds in question were a result of fraud. Shingara Singh was admittedly owner of the land in dispute and he executed sale deeds in favour of the plaintiff and hence, she became owner in possession of the property in dispute. Plaintiff executed sale deeds dated 26.6.1995 and 28.6.1995 Ex.D-6 and D-7 respectively in favour of defendant No.1. The case of the plaintiff is that she had thumb marked the said documents considering the same to be a Will. Both the Courts below after appreciating the evidence had held that the plaintiff had failed to prove that the sale deeds Ex.D-6 and D-7 were a result of fraud. Both the said sale deeds are duly thumb marked by the plaintiff. DW-5, who had scribed the said sale deeds, has deposed with R.S.A.No. 4423 of 2004 (O&M) 13 regard to the due execution of the said sale deeds. Defendant Nos. 2 and 3 after going through the sale deeds Ex.D-6 and D-7 must have been satisfied that defendant No.1 was owner of the property in question and purchased the same from him (defendant No.1) vide impugned sale deeds Ex.D-3 and D-4. Although a plea has been taken by the plaintiff that she was an illiterate lady but since in the year 1992, two sale deeds were registered in her favour by her husband Shingara Singh and she appeared before the Sub Registrar for execution of the same, it cannot be said that she was not well versed with the procedure of execution of sale deeds. Hence, it cannot be said that the sale deeds Ex.D-6 and D-7 had not been executed by the plaintiff in favour of defendant No.1 and were a result of fraud. In these circumstances, the Courts below had rightly dismissed the suit of the plaintiff. No substantial question of law arises in this regular second appeal. Accordingly, the same is dismissed. (SABINA) JUDGE July 02, 2009 anita