R. S. A. No. 2139 of 2010 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Case No. : R. S. A. No. 2139 of 2010 Date of Decision : July 06, 2010 Jaswinder Kaur .... Appellant Vs. Narinder Singh .... Respondent CORAM : HON'BLE MR. JUSTICE L. N. MITTAL * * * Present : Mr. Deepak Sahni, Advocate for the appellant. * * * L. N. MITTAL, J. (Oral) : Defendant Jaswinder Kaur has filed the instant second appeal after having remained unsuccessful in both the courts below. Suit was filed by Charan Singh (since deceased and represented by his son Narinder Singh – respondent as his legal representative). The plaintiff alleged that he is owner in possession of the suit land measuring 16 kanals 10 marlas. Defendant has no right, title or interest therein. However, the defendant alleges herself to be owner in possession of the suit land on the basis of sale deed dated 29.12.1994. The plaintiff pleaded that he never executed the said sale deed. The said sale deed, if any, is illegal and null and void and result of fraud. By giving particulars of fraud, the plaintiff R. S. A. No. 2139 of 2010 2 pleaded that he is also owner in possession of other 11 kanals 19 marlas land, which he agreed to sell to defendant's sons Inderjit Singh etc., vide agreement dated 25.05.1994 @ Rs.1,50,000/- per acre and the plaintiff received Rs.80,000/- as earnest money. Sale deed was to be executed on 31.12.1994. However, the plaintiff was brought to Tehsil office on 29.12.1994 for execution of sale deed as per said agreement. Plaintiff's signatures were obtained by telling him that the sale deed was regarding the other land, to which the agreement pertained. However, the plaintiff later on learnt that the sale deed has been got executed regarding the suit land (which was not subject matter of the agreement to sell) in favour of the defendant by changing khasra numbers. On the same date, endorsement regarding extension of date of sale deed from 31.12.1994 to 10.07.1996 was also obtained on the back of agreement to sell alleging further payment of Rs.50,000/-. The said endorsement was also claimed to be false and fabricated. The plaintiff never received any further amount nor executed the said endorsement. Accordingly, the plaintiff sought declaration that he is owner in possession of the suit land and that defendant has no right, title or interest therein. The plaintiff also sought permanent injunction restraining the defendant from interfering in peaceful possession of the plaintiff and from taking possession thereof illegally or forcibly and from alienating the same. The plaintiff, by amendment of plaint, pleaded that during pendency of the suit, defendant had dispossessed the plaintiff from the suit land R. S. A. No. 2139 of 2010 3 forcibly. Accordingly, the plaintiff also sought relief of possession of the suit land. The defendant controverted the plaint allegations and raised various preliminary objections. The defendant pleaded that the plaintiff was owner in possession of the suit land and sold it to the defendant vide registered sale deed dated 29.12.1994 and since then, defendant is owner in possession of the suit land. The plaintiff has no right, title or interest therein. The sale deed is legal and valid. It was pleaded that vide endorsement dated 29.12.1994, made on the back of agreement to sell, date of sale deed regarding land of the agreement was extended and further amount of Rs.50,000/- was paid. Learned Civil Judge (Junior Division), Gurdaspur, vide judgment and decree dated 27.07.2002, decreed the plaintiff's suit. First appeal preferred by the defendant has been dismissed by learned Additional District Judge (Adhoc), Fast Track Court, Gurdaspur, vide judgment and decree dated 08.03.2010. Feeling aggrieved, defendant has preferred the instant second appeal. I have heard learned counsel for the appellant and perused the case file. Learned counsel for the appellant vehemently contended that original sale deed was lost and certified copy thereof from the registration record was produced and got proved as Ex.D-1, but the same has not been R. S. A. No. 2139 of 2010 4 taken into consideration by the courts below. The contention cannot be accepted because learned counsel for the appellant, in spite of repeated inquiry, could not tell if permission for leading secondary evidence of the sale deed was obtained and granted. In the absence of permission to lead secondary evidence, copy of the sale deed could not be taken into consideration. On the other hand, the plaintiff required the defendant to produce the original sale deed and when the defendant failed to do so, the plaintiff produced photostat copy of the original sale deed, which depicted that the sale deed had been tampered with. Originally, khasra numbers of the land, which was agreed to be sold by the plaintiff to defendant's sons, vide agreement dated 25.05.1994, were mentioned, but by over-writing, said khasra numbers were changed to khasra numbers of the suit land. It is thus manifest that the plaintiff did not execute sale deed of the suit land, but wanted to execute sale deed of the land, which he had agreed to sell to the defendant's sons, vide agreement dated 25.05.1994. In addition to the aforesaid, vide agreement dated 25.05.1994, the plaintiff agreed to sell 11 kanals 19 marlas land @ Rs.1,50,000/- per acre and the said land was barani land, as depicted by jamabandi (Ex.P-15). On the other hand, the suit land is chahi land and it was sold for total sale consideration of Rs.1,40,000/- i.e. at less than Rs.70,000/- per acre. The plaintiff would not have sold the better quality suit land at less than half the price of the other land, which the plaintiff had agreed to sell to defendant's R. S. A. No. 2139 of 2010 5 own sons more than seven months before the impugned sale deed dated 29.12.1994. These admitted and proved facts completely belie the defendant's version that the plaintiff had sold the suit land to the defendant. Failure of the defendant to produce the original sale deed has also been adversely commented upon by the courts below and rightly so. If the sale deed had been lost, the defendant would have sought permission to lead secondary evidence thereof. There is no material on record to depict that original sale deed had been lost. On the other hand, perusal of photostat copy of the original sale deed reveals that khasra numbers of the suit land had been changed by over-writing, as already noticed herein above. The foot-note was appended, but the foot-note was not signed by the plaintiff-vendor regarding change of khasra numbers. Rather the foot-note would show that khasra numbers were in fact changed by over-writing. It would also depict that the plaintiff intended to execute the sale deed of different land, which is subject matter of the agreement dated 25.05.1994 and never intended to execute sale deed of the suit land. There is also evidence of handwriting expert in favour of the plaintiff. Plaintiff's signatures on the copy of the sale deed in the record of registration do not tally with his specimen/standard signatures, as per opinion of handwriting expert. The trial court has also noticed that the sale deed was scribed by the deed writer of proven history of committing fraud and illegalities. R. S. A. No. 2139 of 2010 6 The said scribe was examined as witness by the defendant, but his testimony was completely shattered. Even his license has been cancelled. He also failed to bring his register to prove entry regarding the sale deed made in the register. Courts below have thus assigned more than sufficient reasons for decreeing the suit of the plaintiff. Concurrent finding recorded by both the courts below is based on proper appreciation of evidence and cannot be said to be suffering from any illegality or perversity so as to call for interference in the instant second appeal. No question of law, much less substantial question of law, arises for determination in the instant second appeal. The appeal is completely devoid of merit and is accordingly dismissed in limine. July 06, 2010 ( L. N. MITTAL ) monika JUDGE