R.S.A. No.2531 of 2003 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. R.S.A. No.2531 of 2003 Date of Order: 26.9.2011 Inder Singh and others. ....... Appellants Versus Deiya (since deceased and represented by his L.Rs. and another. ....... Respondents CORAM: HON'BLE MR. JUSTICE K.C.PURI. 1. Whether Reporters of Local Newspapers may be allowed to see the judgment? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? Present :- Shri Chetan Mittal, Senior Advocate with Shri Nitin Jain, Advocate and Shri C.B.Goel, Advocate for the appellants. Shri N.S.Rapri, Advocate , Shri Arun Jain, Senior Advocate with Shri Kushagra Mahajan, Advocate for respondent. K.CPURI, J. R.S.A. No.2531 of 2003 2 This Court vide judgment and decree dated 10.2.2010 allowed the applications filed by the appellants and the documents filed therewith were ordered to be taken on record and the matter had been remanded back to the trial Court for determination of the validity thereof. The trial Court was further directed to determine the validity thereof and to submit a report to this Court. Respondents preferred Civil Appeal No.2222 of 2011 ( Special Leave Petition © No.17450 of 2010) before Hon'ble the Apex Court. Hon'ble the Apex Court vide order dated February 28, 2011 set aside the impugned order and remit the matter back to this Court for deciding the same on merits in accordance with law. 2. The instant Regular Second Appeal has been directed against judgment and decree dated 15.5.2003 passed by the learned Additional District Judge, Panipat vide which the appeal of the plaintiff-respondent no.1 (since deceased and is represented by his legal representatives) was accepted and the judgment and decree dated 6.9.1992 of the Additional Civil Judge (Senior Division), Panipat were set aside. 3. Brief facts of the case are that respondent no.1 had filed a suit for possession pleading that on the pretext of getting a mortgage deed prepared for the land in question, his thumb impressions were obtained on blank papers and the sale deed was executed on 25.9.1974 in favour of the appellants and the mutation was also entered. 4. The appellants had defended the sale deed in their favour to be a valid piece of document and denied the other allegations of respondent R.S.A. No.2531 of 2003 3 no.1. 5. On the pleadings of the parties, the following issues were framed by the trial Court:- 1. Whether plaintiff is entitled to possession of suit land?OPP 2. Whether plaintiff is entitled to a decree for declaration that he is joint owner in possession in respect of the suit land and the registered sale deed dated 25.9.74 is null and void and not binding upon the plaintiff?OPP 3. Whether plaintiff is entitled to decree of permanent injunction from changing the nature of the suit land?OPP 4. Whether suit is not maintainable in the present form?OPD 5. Whether plaintiff has no locus standi to file the suit?OPD 6. Whether plaintiff has no cause of action to file the suit?OPD 7. Whether suit is bad due to non-joinder of necessary parties?OPD 8. Whether plaint is liable to be rejected/OPD 9. Whether suit is barred by time?OPD 10. Relief. 6. The trial Court, after appraisal of the entire evidence available on record reached to the conclusion that respondent no.1 had failed to prove that the appellants had played fraud upon him while getting the sale deed dated 25.9.1974 executed. The suit was accordingly dismissed. 7. In appeal, the first appellate Court, however, reversed the R.S.A. No.2531 of 2003 4 findings of the trial Court and decreed the suit of respondent no.1 while concluding that the sale deed in question and consequential mutation were null and void and were not binding on his rights. Therefore, the present appeal has been directed. 8. The appellants in para No.14 of the grounds of appeal have mentioned that following law points are involved in the present appeal for adjudication :- (i) Whether the suit, as framed, was maintainable when admittedly sale deed Ex.D/1 was executed and registered on 25.9.1974 ? (ii) Whether the evidence of DW 2 Sh.Ranbir Singh Advocate could be brushed aside solely on the ground that he did not file his affidavit regarding his statement in examination in chief when particularly he has appeared and gave his statement on oath ? (iii) Whether oral evidence regarding contents of a document are admissible ? (iv) Whether in view of the admitted position that the document Ex.D-1 which admittedly bears the thumb impression of the plaintiff/respondent and was registered with the Sub Registrar could be declared as null and void ? (v) Whether the suit was liable to be dismissed solely on the ground that the suit was hopelessly time barred and the requisite court fee had not been paid with the plaint and deserve to be rejected under order 7 Rule 11 CPC ? 9. I have heard learned counsel for the parties and have gone through the records of the case with their able assistance. 10. Learned counsel for the appellants has submitted that the First R.S.A. No.2531 of 2003 5 Appellate Court has ignored the registered sale deed in favour of the appellants. To ignore the registered sale deed there must be some convincing evidence which is missing in the present case. The sale deed is dated 25.9.1974 and has been challenged in the year 1999 after lapse of 25 years. In order to cover this long delay of 25 years, the plaintiff has taken a stand that plaintiff had executed the document in respect of mortgaged/lease of property for 25 years and that stand is fallacious. According to the case of plaintiff he was working with the appellant and he was turned out from the house after some time of the execution of lease deed. In case his contention is accepted in that case he should have knock the door of Court immediately after he was thrown out from the house by the appellants. The plea of fiduciary relationship is not correct. The appellant earlier executed agreement to sell and received Rs.17,000/- as consideration. The property has been mortgaged by the plaintiff with Puran Singh and that has been redeemed by the appellants. The remaining amount of Rs.2000/- was paid at the time of execution of the sale deed. Bihari Lal Lamberdar has proved the execution of the sale deed. Thumb impression on the sale deed has been admitted. 11. It is further submitted that the First Appellate Court has given undue importance to the fact that agreement to sell has not been produced and that original sale deed has been produced. The sale deed was produced before the Mutation Officer and the same could not be found out. Later on, the sale deed was proved by calling the record from the office of Sub Registrar, which for all purposes is the original sale deed as the copy of the sale deed was given by the Registrar. Lastly, it was submitted that even if it R.S.A. No.2531 of 2003 6 is presumed that plaintiff has executed a lease deed in that case also the actual possession cannot be ordered in view of Punjab Security of Land Tenure Act, 1953. 12. Learned counsel for the appellants has relied upon the following authorities :- (1). H.K.Ramakrishna Iyengar vs. Smt.R.Kamalabai 1998 (1) Civil Court Cases 155 (Karnataka) ; (2) State of Haryana vs. Ram Singh 2001(3) RCR (Civil) 832 ; (3) Saleem Advocate Bar Association, Tamil Nadu vs. Union of India 2002(4) RCR (Civil) page 786 ; 13. Learned counsel for the respondents has supported the judgment and decree of the trial Court. It is contended that the finding of fact recorded by the First Appellate Court cannot be interferred. The sale deed is not at all proved. The passing of consideration is not proved. So, prayer has been made for dismissal of the appeal. Learned counsel for the respondents has relied upon the following authorities :- 1. Sukhdei (dead) by LRs. vs. Bairo ( SC) 2000 (1) RCR (Civil) 381; 2. Chalti Devi and others vs. Rajinder Kumar and another 2003(4) RCR (Civil) 527 ; 3. Smt. Dularia Devi vs. Janardan Singh and others AIR 1990 Supreme Court 1173 ; 4. Guljan Bibi v. Nazir-uddin Mia AIR 1975 Gauhati 30 ; 5. Hamza Haji vs. State of Kerala AIR 2006 Supreme R.S.A. No.2531 of 2003 7 Court 3028 ; 6. S.P. Chengalvaraya Naidu (dead) by L.Rs. Vs Jagannath (dead) by L.R's and others 1994 HRR page 1 and 7. Gurdev Kaur & Ors. vs. Kaki & Ors. 2006(2) R.C.R. (Civil) 561. 14. I have given my thoughtful consideration to the rival submissions made by both the sides and have gone through the records of the case with their able assistance. 15. The controversy in the present lis resolved around the execution of the sale deed dated 25.9.1974. The case of the plaintiff is that he was working with the defendants/appellants and that appellants paid Rs.4000/- for creating a lease for 25 years. After expiry of 25 years the present suit has been filed. The case of the defendant is that plaintiff voluntarily executed the sale deed. The trial Court dismissed the suit of the plaintiff but the first Appellate Court accepted the appeal and decreed the suit of the plaintiff. Now the question arises which of the judgment is correct? The submission of the counsel for the appellants is that since the sale deed is registered document and thumb impression has been admitted besides proving the same by marginal witnesses, the same should be given effect. There is finding of fact recorded by the the First Appellate Court that plaintiff was working with the appellants in the year 1974. The land was mortgaged by the plaintiff. Man may tell a lie but the circumstances cannot. According to the case of the appellants the total consideration for sale was Rs.40,000/-. Rs.21,000/- was the mortgage amount and the R.S.A. No.2531 of 2003 8 remaining amount was paid. In the written statement, there is no reference of execution of agreement and payment of Rs.17,000/- at the time of agreement. The major consideration regarding the sale transaction according to the appellant was made at the time of agreement to sell. The appellants while appearing as his own witness has also again not produced the agreement to sell during the course of trial. According to the recital of the sale deed Rs.2,000/- was paid at the time of execution of the sale deed whereas the case of the plaintiff was that Rs.4,000/- was paid at the time of execution of the document which was a lease deed for 25 years. Defendant/appellant Ram Mehar in his affidavit has stated that defendant paid Rs.19,000/- to the plaintiff and Rs.21,000/- were kept for redeeming the land. It is not mentioned how the amount of Rs.19,000/- was paid. He does not talk about any agreement while appearing as DW-2. If the agreement is taken out than major part of the consideration remained unproved. Randhir Singh is an Advocate and has been produced as (DW- 3). This witness has stated that he has not prepared the affidavit though he was asked to prepare the affidavit as per amended Code of Civil Procedure in respect of his testimony in the Court. In the cross-examination, this witness has stated that in his presence Rs.2000/- to Rs.4000/- were paid at the time of execution of sale deed. So, the testimony of this witness proved the stand taken by the plaintiff that Rs.4000/- was paid at the time of execution of lease deed. He has categorically stated that no other amount was paid to the plaintiff in his presence. He is resident of Panipat and is Advocate by profession and has stated that he had come to the tehsil office R.S.A. No.2531 of 2003 9 for the execution of sale deed and there was no other work. So, the interestedness of this witness in favour of appellants is apparent. Prem Lamberdar (DW-4) in the cross-examination has stated that Deiya plaintiff had told him about the sale deed when no other person was present. So, he ruled out the presence of Randhir Singh Advocate (DW-3). The witnesses of the plaintiff have proved the fact that plaintiff was working with appellants and looking after their cattle. So, the First Appellate Court has rightly held that the appellants were in a dominating position over the plaintiff. 16. In authority H.K.Ramakrishna Iyengar's case (supra) relied upon by the counsel for the appellant it has been held that registered sale deed is a different document and certified copy of the sale deed is admissible in evidence. There is no dispute to that proposition of law. Now a day two original copies of the sale deeds are prepared which are thumb marked by both the parties as well as witnesses to that document. The appellants have failed to prove that said practice was available in the year 1974 when alleged document was execution. So, in these circumstances, the First Appellate Court has rightly given weight for non-production of the original sale deed without any explanation for the same. 17. In authority State of Haryana vs. Ram Singh's case (supra), it has been held that the certified copy of the registered sale deed is admissible in evidence. There is no dispute to that proposition of law. The question in the present case is why the original was withheld. 18. So far as the authority Saleem Advocate Bar Association, R.S.A. No.2531 of 2003 10 Tamil Nadu's case (supra) is concerned, in that authority, it has been held that provisions of order 18 Rule 4 CPC will not apply and it is to file affidavit or made statement in the Court. It has been further laid down in that authority that discretion lies with the Court to direct the witness either to file an affidavit or to examine him on oath. The testimony of this witness has not been discarded by the First Appellate Court on the said ground. So, the above said authority is not helpful to the appellant. 19. In authority Sukhdei (dead) by LRs' case (supra), the Hon'ble Apex Court has held that in case the document is the result of fraud the same is illegal and inoperative against the rights of the said party. The facts of this case are similar to the facts of the present case. 20. In authority Chalti Devi and others' case (supra) this Court has held that under Section 114 of the Indian Evidence Act, genuineness of the document has to be proved by the person, who propounded it. When the person is having fiduciary relationship with the another and active confidence, the burden of proving the absence of fraud, misrepresentation or undue influence is upon the person in the dominating position. 21. In authority Smt. Dularia Devi's case (supra), it has been held that in case of an illiterate woman, mere thumb impression does not prove the execution of the document, where there is misrepresentation against character of the document, in that case sale deed is void and not voidable. Similar view was taken in authority Guljan Bibi's case (supra). R.S.A. No.2531 of 2003 11 22. In authority Hamza Haji's case (supra) the Hon'ble Apex Court goes to the extent that in case order of the Tribunal is procured by fraud, the same is liable to be ignored. 23. In authority Jagan Nath, the Hon'ble Apex Court has held that a judgment and decree obtained by playing fraud is nullity and nonest in the eyes of law. 24. In authority S.P. Chengalvaraya Naidu (dead) by L.Rs. Vs Jagannath (dead) by L.R's and others' case (supra) Hon'ble Apex Court has held that the judgment or decree obtained by playing fraud on the Court is a nullity and nonest in the eyes of law. The facts of this case are similar to the facts of the present case. 25. In authority Gurdev Kaur & Ors' case (supra) even if the first appellate Court committed an error in recording a finding of fact, that itself will not be a ground for the High Court to upset the same. 26. The appellant has failed to prove that judgment of the First Appellate Court is the result of misreading and misinterpreting the evidence on the file. 27. So far as the arguments regarding delay of filing the suit is concerned the First Appellate Court has rightly dealt in that the plaintiff has filed the suit after 25 years only on the ground that he was under the impression that prior to the period of lease deed he was not in a position to file the suit. The document was found to be a sale deed instead of lease deed. The fraud committed by the appellants upon his own petty employee cannot be approved. R.S.A. No.2531 of 2003 12 28. The argument that if the document is taken as a lease deed in that case possession of plaintiff is protected under Punjab Security of Land Tenure Act, 1953 is concerned that submissions are meritless being beyond pleadings. Otherwise also by setting up adverse title the plaintiff became trespasser. 29. In view of the above discussion, the substantial questions of law raised for determination referred to above stand determined against the appellant, as discussed above. 30. Consequently, the appeal is without any merit and the same stands dismissed with costs. 31. A copy of this judgment be sent to the trial Court for strict compliance. ( K.C.PURI ) JUDGE September 26 , 2011 sv