RSA No.2066 of 2009 1 IN THE HIGH COURT OF PUNJAB & HARYANA, CHANDIGARH R.S.A. No. 2066 of 2009 (O&M) Date of Decision: September 03, 2009 Smt.Ganga ...........Appellant Versus Satpal Kataria and others ..........Respondents Coram: Hon'ble Mrs. Justice Sabina Present: Mr.N.S.Shekhawat, Advocate for the appellant. ** Sabina, J. Plaintiff-Smt.Ganga filed a suit for declaration with consequential relief of permanent injunction. The suit of the plaintiff was dismissed by the Additional Civil Judge (Senior Division) Gurgaon vide judgment and decree dated 30.1.2008. Aggrieved by the same, the plaintiff filed an appeal which was dismissed by the Additional District Judge, Fast Track Court, Gurgaon vide judgment and decree dated 3.11.2008. Hence, the present appeal by the plaintiff-Smt.Ganga. The facts of the case, as noticed by the District Judge in paras 3 to 5 of its judgment, read as under:- “ 3. Briefly stated the case of the plaintiff is that plaintiff is owner in possession of the agricultural land to the extent of ¼ share described in para No.1 of the plaint measuring 29 kanal 6 marla and ¼ share comes to 7 kanal 6.5 marla situated within the revenue estate of village Babupur Tehsil and Distt. Gurgaon. It is alleged that Nihal Chand son of Phool Singh cousin of the plaintiff colluded with the defendants and with ulterior motive RSA No.2066 of 2009 2 and monetary gain brought the plaintiff to Gurgaon on 13.11.95 on the pretext that brother of the plaintiff had sold her land and he can only make available some amount of the alleged sale consideration to her from the purchaser of her land and said Nihal Chand brought the plaintiff to Gurgaon in the absence of her husband and other family members by exercising undue influence of his relation and by taking undue advantage of the illiteracy. Thumb impressions of the plaintiff were obtained on blank papers and stamp papers. Her photograph was also taken. She was threatened with dire consequences. She returned her matrimonial home at Bhanota. On 24.11.95 the villagers told her that her land has been sold by said Nihal Chand by playing fraud on her and by mis-representation. Plaintiff along with her son came to Gurgaon after taking her brother also and enquired about the illegal act committed with the plaintiff and came to know that her land has been sold by the defendants vide registered sale deed dated 13.11.95 for a sale consideration of Rs,3,95,500/- and the sale consideration was not paid to the plaintiff thus the sale deed is illegal, void and is not binding on the rights of the plaintiff. The sale deed is the result of fraud, misrepresentation and collusion and also the result of undue influence and is liable to be set aside as the plaintiff never executed the sale deed. She never appeared before the Sub Registrar for getting the sale deed registered. No sale consideration passed to the plaintiff. The contents of the sale deed were neither read over nor explained to the plaintiff. It is also pleaded that the sale deed is the result of collusion of Nihal RSA No.2066 of 2009 3 Chand with the defendants. It is also pleaded that defendant nos. 1 and 2 are trying to alienate the suit land to other persons in order to cause harm to the plaintiff and are interfering in the possession and ownership of the plaintiff without any right so the suit was instituted. 4. Defendant Nos. 1 and 2 filed written statement contesting the present suit on the ground that plaintiff has not come to the court with clean hands. On the ground of estoppel, limitation, valuation, maintainability, cause of action, bad for non-joinder and mis-joinder of the parties also suit is contested. It is pleaded that the plaintiff is neither owner nor in possession of the suit land as she has already sold her share out of the suit land to defendants on 13.11.95 for a consideration of Rs.3,26,500/-. The allegations of fraud, misrepresentation, undue influence and collusion are denied. It is submitted that plaintiff had sold away her share with her due consent and knowledge in the presence of the witnesses and she appeared before the Sub Registrar for execution and registration of the sale deed on 13.11.95. It is also submitted that on the same day her other sister namely Rukmani also executed sale deed of her share in the suit land i.e. 7 kanal 6.5 marla for a consideration of Rs.3,26,500/- in favour of Mukesh son of Maman Singh r/o village Daulatabad vide registered sale deed dated 13.11.95. The photographs which were affixed on the sale deed were also taken with her consent and knowledge. If the plaintiff was not ready to execute the sale deed, she could make complaint to the Sub Registrar Gurgaon and to other persons who were RSA No.2066 of 2009 4 sitting near her. Plaintiff has no cause of action to file the present suit and the suit of the plaintiff is liable to be dismissed. 5. Respondent No.3 filed separate written statement and contested present suit on the ground that plaintiff is neither owner nor in possession of the land in question. The suit is not maintainable. It is also submitted that the suit is not properly valued for the purposes of court fee and jurisdiction. On the ground of estoppel, cause of action bad for non-joinder also the suit has been contested. It is submitted that Ganga Devi plaintiff and her sister Rukmani were co-owners in possession to the extent of ¼ share out of the total land. Plaintiff sold her share to defendant Nos. 1 and 2 vide registered sale deed dated 13.11.95 for a valuable consideration and defendant Nos. 1 and 2 were owners in possession of the suit land. Smt.Rukman also sold away her ¼ share to one Satpal son of Ram Kishore and Birbal defendant No.2 vide sale deed dated 13.11.95. In this way, Satpal and Birbal were made owners in possession of the suit land. Mutation of both the sale deeds was also sanctioned on 12.12.95. Answering defendant is bonafide purchaser/lessee of the land in question total land measuring 14 kanal 13 marla out of the land measuring 29 kanal 6 marla. Answering defendant had entered into an agreement for the purchase of total land 29 kanal 6 marla vide written agreement dated 23.11.95 from Satpal, Mukesh, Birbal defendants who were owners in possession of the land measuring 14 kanal 13 marla on the basis of the two sale deeds dated 13.1195. The answering defendant filed agreement dated RSA No.2066 of 2009 5 13.11.95 agreed to purchase the land from Birbal etc. for a consideration of Rs.7,50,000/- and on the date of execution of the agreement answering defendant paid Rs.2,50,000/- to Mukesh etc., through cheque and cash. Answering defendant again paid a sum of Rs. 5 lacs to said Mukesh etc., on 29.11.1995 vide written agreement. In this way answering defendant had paid the entire sale consideration to defendant No. 1 and 2. It is also further pleaded that Mukesh etc. had also executed a registered lease deed dated 22.12.95 in respect of the land measuring 14 kanal 13 marla for a period of 50 years in favour of the answering defendant and had handed over physical possession to the answering respondents and since then answering defendant is owner in possession of the land in question. Balbir etc., ceased to have right, title or interest in the suit land. It is further pleaded that answering defendant entered into bargain of the sale after making proper enquiries from defendant Nos. 1 and 2 and from the plaintiff and after going through the sale deeds, mutations etc. answering defendant also got executed an irrevocable registered power of attorney in his favour from said Mukesh etc., registered on 22.12.95 and as such answering defendant is a bona fide purchaser of the land in question and is entitled to the protection of Section 51 of the Transfer of Property Act. Plaintiff is neither owner nor in possession of the suit land. She has filed suit in collusion with Nihal Chand to blackmail the defendant. She has voluntarily sold the suit land in favour of defendant Nos. 1 and 2. No fraud was played. All the allegations of fraud, RSA No.2066 of 2009 6 misrepresentation, undue influence etc. are wrong and denied. The suit of the plaintiff is liable to be dismissed.” On the pleadings of the parties, the following issues were framed by the trial Court:- “1. Whether the plaintiff is owner in possession of suit land as mentioned in para No.1 of plaint?OPP 2. Whether the defendants are liable to be restrained from alienating the suit as alleged?OPP 3. Whether the plaintiff is estopped from filing the present suit by his own act and conduct?OPD 4. Whether the suit is time barred?OPD 5. Whether the suit is not properly valued for the purposes of court fee and jurisdiction?OPD 6. Whether the suit is bad for non-joinder and misjoinder of necessary parties?OPD 7. Whether the suit is not maintainable in the present form?OPD 8. Whether the plaintiff has got no cause of action?OPD 9. Relief.” After hearing the learned counsel for the appellant, I am of the opinion that the present appeal deserves to be dismissed. Plaintiff has filed the suit for declaration that she is owner in possession of the suit land to the extent of 1/4th share. Plaintiff has challenged the sale deed dated 13.11.1995 (Exhibit PW5/3) on the ground that the sale had been got executed from her by her brother fraudulently. In fact, the said sale deed was not binding on the rights of the plaintiff. Both RSA No.2066 of 2009 7 the Courts below, after appreciating the evidence led by the parties, have held that the plaintiff had failed to establish that the sale deed in question was the result of fraud and undue influence. Plaintiff failed to examine the deed writer or the attesting witness to the sale deed to substantiate her plea that the sale deed in question was the result of fraud. The case of the plaintiff was that she had been brought to Tehsil Complex Gurgaon on the pretext that some amount would be paid to her by her brother Nihal Singh and no consideration was paid to the plaintiff at the time of execution of the sale deed in question. However, plaintiff, while appearing in the witness box, had not deposed to the effect that no consideration was paid to her . Plaintiff also failed to establish any collusion between the scribe or attesting witness with her brother. Defendant, on the other hand, examined Balbir Singh Advocate as DW7 who was one of the attesting witness to the sale deed. Beerbal, Deed writer was also examined as defendant by DW5. Learned Additional District Judge, after going through the statement of the said witness has observed that it was no where put to the said witness that the thumb impression of the plaintiff had been obtained on blank papers. Hence, the Courts below rightly held that the plaintiff had failed to establish that the sale deed in question was a result of fraud. Moreover, it was observed by the learned Additional District Judge that the plaintiff was not proved to be in possession of the suit land. Rather she asserted that her brother was in possession of the suit land. Rukmani, sister of the plaintiff had also challenged the sale deed alleged to have been executed by her on the same day in favour of the defendant. But the said suit was also dismissed. In these circumstances, both the Courts below rightly dismissed RSA No.2066 of 2009 8 the suit of the plaintiff. No substantial question of law arises in this regular second appeal which would warrant interference by this Court. Accordingly, this appeal is dismissed. ( Sabina ) Judge September 03, 2009 arya