R.S.A.No. 4170 of 2008 (O&M) 1 In the High Court of Punjab and Haryana at Chandigarh R.S.A.No. 4170 of 2008 (O&M) Date of decision: 15.10.2009 Vijay Kumar and others ......Appellants Versus Pushpa Devi .......Respondent CORAM: HON'BLE MRS. JUSTICE SABINA Present: Mr.B.R.Mahajan, Advocate, for the appellants. **** SABINA, J. Plaintiff Mahanto Devi filed a suit for declaration, which was dismissed by the Additional Civil Judge (Sr.Divn.), Pathankot vide judgment and decree dated 27.2.2001. In appeal, the said judgment and decree were upheld by the Additional District Judge, (Adhoc) Fast Track Court, Gurdaspur vide judgment and decree dated 5.9.2008. Hence, the present appeal by the legal representatives of the plaintiff. Brief facts of the case, as noticed by the lower appellate R.S.A.No. 4170 of 2008 (O&M) 2 Court in para Nos. 2 to 4 of its judgment, are as under:- “2. Brief facts of the case are that plaintiff was owner of the land measuring 39 Kanals 14 marlas,as fully detailed in the head note of the plaint and the said land, the plaintiff got by virtue of will and statements of other successors i.e. five daughters and one son namely Ratno Devi, Rano Devi, Kamla Devi, Krishna Devi, Pushpa and Dharam Pal. The mutation of said land was sanctioned in favour of the plaintiff on 16.4.1988 and since then, the plaintiff remained in continuous, un-interrupted possession and the said land was being cultivated by Dharam Pal the only son of the plaintiff. The Plaintiff never alienated the said land except for a portion of five marlas bearing Khasra no. 25R, 17/1 in favour of Karam Chand son of Mansa Ram,. Besides this alienation, the plaintiff never executed any mortgage or sale of the said land to anybody. About 2-1/2 years back, the plaintiff was prompted by the defendant that she needed to open a poultry farm and for that, she need money for which some piece of land was required to be mortgaged and on believing the defendant being her own daughter, the plaintiff accompanied the defendant upto the Tehsil Complex, where she was made to thumb mark certain blank documents pretending to be an mortgage deed. R.S.A.No. 4170 of 2008 (O&M) 3 The plaintiff thumb marked blank documents believing that what-so-ever, she had done was for the betterment of her own daughter. The plaintiff neither had any necessity, nor any intention to execute any deed for disposing off the said land. On 31-7-1993 the son of the plaintiff wanted jamabandi of the said land i.e. the land of his mother and when copy of the jamabandi was supplied to him, it was utter shock to the son of the plaintiff that the mutation of 19 kanals 17 marlas referred above i.e. one half of the said land had been sanctioned in favour of defendant in pursuance of the sale deed executed by her mother. Dharam pal enquired from his mother regarding the sale deed, but the plaintiff was shocked to know that a bogus sale deed had been prepared and her thumb mark was obtained on the sale deed now in possession of the defendant. The plaintiff categorically told to her son that she had not executed any sale deed in favour of anybody including the defendant. The defendant got executed sale deed by practicing a fraud and undue influence taking the ;benefit of the old age and illiteracy of the plaintiff any by using undue influence taking benefit of fiduciary blood relation with the plaintiff. It was further averred that the plaintiff never appeared before any Registrar for executing any sale deed in favour of the R.S.A.No. 4170 of 2008 (O&M) 4 defendant and the act of the defendant was most clever and fraudulent for which the plaintiff reserved her right to launch criminal prosecution against the petition writer, defendant and the attesting witnesses. It was beyond the knowledge of the plaintiff that they managed to get the sale deed executed and it was out come of criminal conspiracy of the defendant with the petition writer and the attesting witness and the consent of the plaintiff was not at all free and her thumb mark was taken by means of fraud. The defendant two years back ran away from the house and married with Kailash who was the double age of the defendant and was already married and was having five children, three sons and two daughters. The act of the defendant was immoral and she had deliberately to grab the land contacted the illegal relation of the defendant with Kailash was slur on the family of the plaintiff who came to know on 31-7-1993 regarding the said sale deed from the entry of mutation in the Jamabandi which was of column. no. 3 in red line pertaining to the sale 1987-88 and as such,suit was filed,out of which, this appeal has arisen. 3. Upon notice, the defendant appeared and filed written statement taking preliminary objection inter alia that the plaintiff was not in possession of the suit land R.S.A.No. 4170 of 2008 (O&M) 5 and as such, the suit land and as such, the suit was not maintainable in the present form. The suit was hopelessly time barred. The plaintiff had executed a valid sale deed in favour of the defendant and had received the consideration for the same, therefore, the plaintiff was estopped from filing the present suit by her own act and conduct and that the suit of the plaintiff was not properly valued for the purpose of court fee and jurisdiction. The plaintiff had not come to the court with clean hands and had misused the process of the court for executing three sale deeds in favour of Dharam Pal and another and she was not entitled to the equitable relief of declaration and injunction. 4 Along with the written statement, the defendant also filed a counter claim for the grant of decree for declaration to the effect that the defendant was the owner in possession of land measuring 19 Kanals 17 Marlas ½ of Khasra no. 24R/16, 25R/14/2,17/2,18,19,20 northern side, situated in village chak Madho Singh,Tehsil Pathankot having purchased the same from the plaintiff vide sale deed dated 14.12.1990 and the three sale deeds dated 10.9.1993 and 27.9.1993 were illegal null and void and the same were not binding on the defendant R.S.A.No. 4170 of 2008 (O&M) 6 and as a consequential relief decree for permanent injunction against the plaintiff restraining her, her representatives, assignees from interfering in any manner into the possession of the defendant as owner of the said land. From the pleadings of the parties,learned trial court framed the following issues in this case:- 1) Whether the plaintiff is entitled to the declaration prayed for?OPP 2) whether the plaintiff is entitled to the consequential relief of permanent injunction prayed for ?OPP 3) Whether the suit is not maintainable in the present form? OPD 4) Whether the suit is time barred? OPD 5) Whether the plaintiff is estopped from filing this suit by his own act and conduct? OPD 6) Whether the suit is not properly valued for purpose of court fee and jurisdiction? OPD 7. Whether the plaintiff has not come to the court with clean hands, if so its effect? OPD 8. Relief. ” Vide order dated 13.11.1998, the following additional R.S.A.No. 4170 of 2008 (O&M) 7 issue was framed:- 7-A Whether the defendant is entitled to declaration and injunction as prayed for in the counter- claim? OPD After hearing learned counsel for the appellants, I am of the opinion that the present appeal is devoid of any merit and deserves to be dismissed. The parties in this case are closely related to each other being mother and daughter. Plaintiff (mother) has filed a suit challenging the sale deed dated 14.12.1990 alleged to have been executed by her in favour of defendant (her daughter). Defendant proved the due execution of the sale deed by examining Gurbaksh Singh, scribe and Sansar Chand, attesting witness, of the sale deed. The attesting witness proved that after the sale deed was scribed at the instance of the plaintiff, a sum of Rs.12,500/- were paid by the defendant to the plaintiff before the Sub Registrar. Plaintiff admitted at the time of registration of the sale deed that she had received the remaining amount of Rs.50,000/-. The registration Clerk from the office of the Sub Registrar also proved the due registration of the sale deed. The plaintiff, on the other hand, failed to establish that the sale deed in question was a result of fraud. Both the Courts below, after appreciating the evidence led by the parties, have given a finding of fact that the sale deed in question was a genuine R.S.A.No. 4170 of 2008 (O&M) 8 document. The said finding of fact cannot be interfered with by this Court in appeal. No substantial question of law arises in this regular second appeal. Accordingly, the same is dismissed. (SABINA) JUDGE October 15, 2009 anita