R.S.A. No. 724 of 2009 (O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH R.S.A. No. 724 of 2009 (O&M) Date of decision : 12.2.2009 Samay Singh ....Appellant Versus Rukmani and another ...Respondents CORAM : HON'BLE MR.JUSTICE MAHESH GROVER .... Present : Mr.Vikram Punia, Advocate for the appellant. ..... MAHESH GROVER, J. This appeal is directed by the defendant against the judgments of the learned trial Court dated 19.8.2008 and that of the first Appellate Court dated 24.12.2008. A suit was filed by the plaintiff/respondent No.1 Rukmani for declaration that the sale deed dated 1.7.2003 allegedly executed by her in favour of the appellant be set aside as it was a result of fraud and misrepresentation. Her case in brief was that she was the owner in possession of 1/24th share of the agricultural land which has been described in the suit. She further pleaded that she was an old lady of 70 years and was illiterate and Pardanasin and did not have knowledge of the worldly affairs. She alleged that on 1.7.2003 the appellant and respondent No.2 in collusion with each other with mala R.S.A. No. 724 of 2009 (O&M) -2- fide intention to grab her property brought her to Sonepat on the pretext that her son namely Raj Singh was taking earnest money for sale of her property and in case she accompanies them to Sonepat and affixes thumb impression on some papers at Sonepat, then transaction of payment of earnest money for sale of her property could be stopped. Believing this to be correct, she obeyed the diktats of the appellant and respondent No.2. Two different sale-deeds were executed, one of land measuring 2 Kanals favouring the appellant and another of land measuring 8 Kanals 10 Marlas favouring respondent No.2. The first sale deed depicted the sale consideration of Rs.44,000/- while in the second sale deed the sale consideration was Rs.1,86,000/-. The appellant and respondent No.2 contested the suit and pleaded that respondent No.1 is the mother of respondent No.2 and aunt of the appellant and that she had voluntarily sold the land measuring 8 Kanals 10 Marlas in favour of her son for a total sale consideration of Rs.1,86,000/- whereas the sale qua land measuring 2 Kanals was executed by her in favour of the appellant. The fraud was denied and it was pleaded that the sale deeds were genuine and for valid consideration. Both the parties went to trial on the following issues :- 1. Whether the plaintiff is owner in possession of 1/24th share in the suit land and impugned sale deeds are illegal, null and void?OPP 2. Whether the suit of the plaintiff is not properly valued for the purpose of Court fees?OPD R.S.A. No. 724 of 2009 (O&M) -3- 3. Relief. The trial Court as also the first Appellate Court held that the fraud as alleged by the plaintiff/respondent No.1 stood proved from the evidence on record and decreed the suit. The appellant has assailed the findings of the Courts below to contend that the findings are perverse as the sale deeds which were registered are on record and once the factum of sale has been established, the consequent plea of fraud was without any basis and ought to have been rejected by the Courts below. I have heard the learned counsel for the appellant and have perused the impugned judgments. Both the Courts below have returned a consistent and concurrent finding regarding the plea of fraud which stood established from the evidence on record. Concededly, the parties are related. Respondent No.2 is the son of respondent No.1 while appellant is the nephew of the husband of the plaintiff/respondent No.1. It is also established that she was illiterate and 70 years old and that she was incapable of taking care of her affairs which were being looked after by the other son of the plaintiff, namely Raj Singh or her grandsons. Therefore, the fact that she was illiterate and not aware of the worldly affairs stood established from the evidence on record. In so far as the passing of the sale consideration was concerned, respondent No.2 in his cross-examination stated that the entire sale consideration of Rs.1,86,000/- pertaining to his sale deed was paid by him to his mother at her house which was totally contrary to what he had stated in his examination-in-chief that the amount had R.S.A. No. 724 of 2009 (O&M) -4- been paid in the presence of Sultan Singh, Lambardar and Tek Ram of village Dodwa and she had also received the entire sale consideration in the presence of these persons. He also testified that he had arranged a sum of Rs.1 lakh from his maternal uncle which was not established by way of any evidence. Tek Ram (DW3) and Sultan Singh Lambardar (DW4), who were also the attesting witnesses to the sale deed, denied the factum of passing of the sale consideration to the plaintiff/respondent. In this view of the matter, the findings recorded by the Courts below regarding the sale deeds being without any consideration cannot be termed to be erroneous or perverse so as to warrant any interference in the second appeal. This Court is of the opinion that the plea of fraud which has been set up by the plaintiff has been adequately proved and in any eventuality the finding on the plea of fraud is a question of fact which cannot be interfered with in a regular second appeal, especially when no substantial question of law arises for the determination of this Court. Consequently, the appeal being devoid of any merit is dismissed. 12.2.2009 (MAHESH GROVER) JUDGE dss