C.R. No. 2793 of 2007 -1- IN THE HIGH COURT FOT THE STATES OF PUNJAB AND HARYANA AT CHANDIGARH C.R. No. 2793 of 2007 Date of order: 25.8.2009 Bhupinder Pal Singh ....Plaintiff-Petitioner Versus Amrik Pal Singh ....Defendant-Respondent. CORAM: HON'BLE MR. JUSTICE JASWANT SINGH Present: Mr. Ashok Aggarwal, Senior Advocate with Mr. Alok Jain, Advocate for the plaintiff-petitioner. Mr. Sanjeev Bansal, Advocate for the defendant-respondent. JASWANT SINGH,J. Plaintiff-petitioner has filed the present revision petition under Article 227 of the Constitution of India for setting aside the impugned order dated 18.09.2006 (Annexure P-6) passed by the learned Additional Civil Judge (Senior Division), Gidderbaha vide which the application under Order 39 Rule 1 and 2 of the C.P.C. for grant of interim injunction was dismissed (except alienation qua property at Head Note-B) and the order dated 02.03.2007 (Annexure P-9) passed by the learned Additional District Judge (Adhoc), Fast Track Court, Muktsar vide which appeal of the plaintiff-petitioner against the order dated 18.09.2006 has been dismissed. Brief facts giving rise to the matter in controversy are as under: Plaintiff-petitioner filed Civil Suit on 20.04.2006 for declaration to the effect that he is owner in possession of the land measuring 195 Kanal 8 Marlas detailed in the head notes A, B and C of the C.R. No. 2793 of 2007 -2- plaint and further consequential relief of permanent injunction for restraining the defendant-respondent from alienating the suit land in any manner and restraining him from interfering into his peaceful possession or to dispossess him illegally, forcibly except in due course of law. Alongwith the civil Suit, an application of the even date under Order 39 Rule 1 and 2 read with Section 151 of the C.P.C. (Annexure P-2) was also filed for restraining the defendant-respondent from alienating the suit property in any manner or to dispossess the plaintiff-petitioner illegally, forcibly and except in due course of law till the disposal of the suit. The defendant-respondent filed written statement dated 27.04.2006 (Annexure P-3) to the civil suit as well as reply (Annexure P-4) of even date to the application under Order 39 Rule 1 and 2 read with Section 151 of the CPC. Plaintiff-petitioner filed replication dated 08.05.2006 (Annexure P-5) and ultimately the application under Order 39 Rule 1 and 2 of the CPC was dismissed (except alienation qua property at Head Note-B of the plaint) by the learned Trial Court vide order dated 18.09.2006 (Annexure P-6). Aggrieved against the order dated 18.09.2006, plaintiff- petitioner filed an appeal dated 19.10.2006 (Annexure P-7) as well as written arguments dated 10.11.2006 (Annexure P-8) but the appeal was also dismissed by the learned Additional District Judge vide order dated 02.03.2007 (Annexure P-9) and in these circumstances the present revision petition is filed. I have heard learned counsel for the parties at length and perused the impugned orders as well as the pleadings placed on record with their able assistance. Learned counsel for the plaintiff-petitioner has contended that C.R. No. 2793 of 2007 -3- both the learned courts below have illegally ignored the true impact of the memorandum of exchange dated 11.12.2005 (Annexure P.10), which contain the recital with regard to the possession of the plaintiff, on the premise that the memorandum of exchange has been denied by the defendant-respondent and the same could not have been entered into due to strained relations between two brothers i.e plaintiff and defendant and further the possession of the plaintiff was not reflected from the revenue records. It was urged that the impugned orders suffer from perversity and are liable to be set aside as from the pleadings, it is amply clear that the defendant-respondent did not deny his signatures on the written memorandum (Annexure P.10) but an explanation is put forth, namely, a result of forgery and fabrication by the plaintiff in connivance with the witnesses as some blank papers had been signed in a fashion used by him prior to the year 1982 and handed over to the plaintiff in relation for his defence in an FIR registered against the defendant in the year 1979. Further, the reliance on entries in jamabandi for the year 2001-2002 qua ownership & possession was of no consequence as the same related to a period prior to the memorandum of exchange and as regards the question regarding strained relation rendering the memorandum improbable, the Court has ignored that the parties had entered into a compromise before the ld. Lok Adalat, Malout in a civil suit whereby vide its order dated 22.1.2005 based on the statement of the parties, the award passed by an Arbitrator to settle the dispute between the brothers was accepted. On the other hand, learned counsel for the respondent- defendant argued that the impugned orders suffer from no infirmity, which may warrant any interference by this Court. It was further argued that in C.R. No. 2793 of 2007 -4- furtherance of the ownership and possession of the land in dispute, defendant- respondent has further let out the land in dispute to 3rd party namely Punjab Citrus Council. After giving thoughtful consideration to the rival submissions of the parties and perusing the impugned orders and the pleadings, this Court is of the opinion that the contentions raised on behalf of the plaintiff- petitioner are meritorious and deserve to be accepted. To decide the matter in controversy between the two blood brothers, who are well educated and well placed in life, it would be advantageous to go through the pleadings attached with the revision petition. Perusal of the plaint dated 20.04.2006 (Annexure P-1) reveals that the suit of the plaintiff-petitioner is based on oral exchange dated 2nd October 2005 which was subsequently incorporated in a form of memorandum with concurrence of both the parties on 11.12.2005 (Annexure P-10) and notarized copy of the same was attached with the plaint. It is further mentioned in paragraph 3 of the plaint that original was to be produced in the court as and when required or when so ordered. A perusal of order dated 20th April, 2006 (Annexure P-30) passed by the learned Trial Court reveals that notice of the suit was given to the defendant for 9th May, 2006 and initially ex-parte stay was granted restraining the defendant from alienating the suit land and from dispossessing the plaintiff illegally and forcibly except in due course of law till the next date. Perusal of zimni order dated 8th May, 2006 (Annexure A-3- colly) at page 243 of the paper book reveals that the original writing of C.R. No. 2793 of 2007 -5- Annexure P.10 was produced in the court by the plaintiff's counsel, and the order dated 8.5.2006 reads as under: “Replication filed. The original writing also produced by the plaintiff counsel. The same be produced again on 9.5.2006. The date already fixed. File be put up on that date for settlement of issue and arguments on stay application. Ex parte stay order is extended till then.” Thereafter, the suit came up for hearing on 9th May 2006 and a perusal of the zimni order dated 9th May, 2006 (Annexure A-3-zimni orders produced collectively at page 243-244 of the paper book) reveals that the said order was extended till 11th May 2006 and from the pleadings of the parties, the following issues were framed:- 1. Whether any oral exchange regarding the suit property took place between the parties on 02.10.2005?OPP 2. Whether a memorandum of oral exchange was executed on 11.12.2005 by the parties? OPP 3. Whether the plaintiff is entitled to declaration as prayed for?OPP 4. Whether the plaintiff is entitled to permanent injunction as prayed for? OPP 5. Whether the plaintiff has not come to the Court with clean hands and has suppressed material facts from the Court? OPD 6. Whether the memo of exchange dated 11.12.2005 is forged and fabricated documents? OPD 7. Relief. Perusal of order dated 29.07.2006 (Annexure P-25) further reveals that ex-parte stay order dated 20.04.2006 (Annexure P-30) was C.R. No. 2793 of 2007 -6- vacated by the learned Trial Court. It would be relevant to have a careful reading of para 2 and 3 of the plaint as well as written statement in order to decide the matter in its true perspective. The same reads as under: “ Para 2 of the Plaint That to overcome domestic problem and for effective and better management of the lands both defendant and the plaintiff, with the help of common relations and well wishers of the family, orally exchanged their lands with each other on 02.10.2005. Each of them handed over the possession of the respective lands to the other and they are in actual physical possession of the same since then. The suit land measuring 195K-8Marlas, as referred in the para above is in actual possession of the plaintiff since then and the defendant is enjoying the fruits of the land got in exchange by him from the plaintiff. Para 2 of the written statement That para No.2 of the plaint is incorrect and denied and the contents contained therein are totally false and baseless which has no grain of truth at all. The parties to the suit never ever orally exchanged their lands with each other on 02.10.2005 nor they ever handed over the possession of the alleged exchanged land nor at present plaintiff is in possession of the suit land. The sub para of para No.2 is also wrong and denied. The suit land as mentioned in the head note of the plaint is not in possession of the plaintiff, rather on the other C.R. No. 2793 of 2007 -7- hand defendant being the owner of the land is in possession of the suit land. It is false and baseless that defendant is enjoying the fruits of the land allegedly got in exchange from the plaintiff. All these averments put forward by the plaintiff are false and baseless. In reply to the contents of para No.2 of the plaint, it is submitted that the alleged story put forward by the plaintiff is totally wrong and denied as there was no occasion to effect the alleged exchange. It is also incorrect and denied that in order to overcome domestic problems and for effective and better management of the lands both the defendant and plaintiff are effected any alleged oral exchange with the help of common relatives and well wishers of the alleged family. A detailed reply will be given in the next para which may kindly be read as part of reply to this para of the plaint. Para 3 of the plaint That oral exchange was incorporated in the form of a Memorandum with the concurrence of both the parties on 11.12.2005. That memo was read over and explained to them and the defendant, after admitting the contents thereof to be correct, signed the same before the witnesses brought by him and the witnesses had signed that Memorandum at the asking of the defendant and in his presence. Notarized copy of the Memo dated 11.12.2005 is attached alongwith and the original will be produced in the Court as and when required or when so ordered. Para 3 of the written statement C.R. No. 2793 of 2007 -8- That para No.3 of the plaint is incorrect and denied and the contents contained therein are totally false and baseless. The alleged Memorandum of exchange dated 11.12.2005 is a false and fabricated document which was never executed by the defendant. It is also wrong and denied that the alleged memo was read over and explained to the parties or that it was admitted to be correct. It is further wrong and denied that the same was signed in the presence of the witnesses or that the witnesses were brought by the defendant and they signed the alleged Memorandum at the asking for the defendant. Actually, the background of the case is that the defendant was falsely implicated in a murder case U/S 302, 336, 337, 148, 149, 34 IPC vide FIR No.333 dated 04.11.1979 of P.S. Lambi. During those days, plaintiff, who is the real elder brother of the defendant, was posted as Additional District Attorney at Bathinda and being brother of the defendant, he had been pursuing the said case. When the defendant was in custody, plaintiff asked the defendant to sign on some blank papers which were needed for submitting bail application and other miscellaneous applications before the Court. As the defendant was involved in the murder case, therefore, relying upon his elder brother, defendant put his signatures on number of blank papers at the instance of the plaintiff. Some of blank papers, which were signed by the defendant, were used and the remaining signed papers are still lying with the plaintiff. It is also worthwhile to state here that after 1982 defendant C.R. No. 2793 of 2007 -9- started signing in other fashion as compared to the signatures of the defendant prior to 1982 and the alleged Memorandum of Exchange is of the old designed signatures of the defendant prior to 1982. It seems that the plaintiff might have misused some papers out of the remaining signed blank papers of the defendant in connivance with the witnesses. It is also important to state here that the defendant is having strained relations with the plaintiff for the last about 18 years because there had been long drawn litigations between both the brothers in different Courts. It is also worthwhile to state here that the present defendant was falsely implicated under Section 13(i)(e) read with Section 13(ii) of the Prevention of Corruption Act, 1988 vide FIR No.20 dated 19.08.2002, registered in P.S. Flying Squad-I, Mohali. In the said FIR this plaintiff moved one petition U/S 482 Cr.P.C. with a prayer directing the respondents to transfer the investigation of the case FIR No.20 dated 19.08.2002. In the said petition it was very specifically admitted by Bhupinder Pal Singh (now plaintiff) that it was the petitioner who had submitted a complaint in writing to the Vigilance authorities against Amrikpal Singh accused and later on above mentioned FIR was registered. This plaintiff also tried to take forcible possession of the suit land by forging one writing dated 26.09.2004 in connection with his henchmen. So in order to protect his possession, defendant had to knock the doors of the Civil Court vide Civil Suit No.499-1 of 28.10.2004 titled as Amrikpal C.R. No. 2793 of 2007 -10- Singh and others versus Bhupinderpal Singh and SHO, P.S. Lambi which was filed by defendant in the court of Additional Civil Judge (Senior Division) Malout and during the pendency of the said suit, arbitrators were appointed between the parties to the suit and the said suit was decided in Lok Adalat, Malout on 22.1.2005 on the basis of Arbitration Award-cum- Compromise which was exhibited as C-1. It is important to state here that there was one clause in the Arbitration Award Exhibit C-1 that the land comprised of Rect.No.65, Killa No.2, 3,8,9,11/2, 12/2, 13,14,17,24, 12/1 situated at Village Fathuhiwala is owned by Amrikpal Singh and he will not alienate the said land in any manner during the life time of his parents. The said compromise was duly admitted by the parties before the Court. If as per this compromise Amrikpal Singh was not to effect any alienation during the life time of his parents, who are still alive and are residing with the defendant, then how the present defendant was competent to effect any alleged exchange of the said land with the plaintiff ..................................... ”(Emphasis supplied) A perusal of the issues framed in the suit, reproduced hereinabove reveals that the onus of issue No.6 is upon the defendant to prove that memorandum of exchange dated 11.12.2005 (Annexure P.10) is a forged and fabricated document. Although while deciding the present revision petition, this Court is not recording a finding on issue No.6 yet it is discernible from the contents of para 3 of the written statement of the C.R. No. 2793 of 2007 -11- defendant-reproduced hereinabove that the defendant has not denied his signatures on the alleged memorandum of exchange dated 11.12.2005 rather he has simply alleged that on the memorandum of exchange, his signatures are of old design and it seems that the plaintiff might have misused some papers out of the remaining signed blank papers of the defendant in connivance with the witnesses. But the fact remains that the document/memorandum of exchange dated 11.12.2005 (Annexure P.10) is in existence and the original writing was produced before the learned trial Court by the counsel for the plaintiff on 8.5.2006 (order reproduced hereinabove). Learned trial Court in para 6 of the impugned order dated 18.9.2006 (Annexure P.6) has, by relying upon the law laid down by Single Bench of this Court in Bhagwan Kaur etc versus Ranjit Singh and another 1990, Civil Court cases, 295 (P&H) undisputedly noticed that an exchange can be made orally followed by delivery of possession and thus an oral exchange is valid. Relevant extract of para 6 of the impugned order dated 18.9.2006 (Annexure P.6) passed by the learned trial Court at page 89 of the paper book is reproduced hereunder: “There is no doubt in it that oral exchange is valid. Exchange can be made orally followed by delivery of possession and an entry to that effect in the mutation register as held by the Hon'ble High Court in 1990, Civil Court cases, 295 (P&H) in case titled as Bhagwan Kaur etc versus Ranjit Singh and another relied upon by the learned counsel for the defendant” The observation of the learned trial Court in para 6 at page 90 to the effect that “Even the defendant has denied his signatures on the memo of exchange deed dated 11.12.2005” is, thus, erroneous. It has further come on record that after the oral exchange of land with possession and the memorandum of oral exchange reduced in C.R. No. 2793 of 2007 -12- writing (Annexure P.10), the plaintiff, in April 2006, had moved for correction of entries of possession in the khasra girdawari on 24.5.2006 besides Rapat dated 13.4.2006 (Annexure P.11) and 14.4.2006 (Annexure P.12) intimating that a mutation be entered on the basis of memorandum of exchange dated 11.12.2005. It is claimed that for extraneous reasons, Tehsildar-cum-Assistant Collector, Ist Grade kept the matter pending and ultimately during the pendency of the present revision petition dismissed the same against which an appeal by the plaintiff has been filed and is pending before the appellate authorities. In this backdrop of facts, therefore, the further observation of the learned trial Court in the impugned order dated 18.9.2006 that in the jamabandi for the year 2001-02 placed on the file, defendant Amrik Pal Singh is recorded to be in possession of the disputed property, is of no consequence and not relevant for deciding the issue of possession on the date of filing of the suit i.e April 2006 as the alleged memorandum of exchange was reduced in writing only on 11.12.2005 and obviously the same cannot be reflected in the jamabandi for the year 2001- 02. It is not in dispute that under the provisions of the Punjab Land Revenue Act,1887, a jamabandi is prepared after a gap of every five years and, therefore, the memo of exchange dated 11.12.2005 could not be reflected in the jamabandi for the year 2001-02, therefore, the reliance on the revenue record by the learned trial Court to come to the conclusion that plaintiff is nowhere recorded in possession of the suit property and, therefore, there is no question of dispossessing him forcibly or illegally and thus denying him the grant of temporary injunction, in the opinion of this Court, is also erroneous. It is to be noticed that the learned trial Court declined the stay application qua possession over the suit property as C.R. No. 2793 of 2007 -13- detailed in head note A,B and C and alienation of property as detailed in para A and C but the defendant was restrained from alienating the property as detailed in para B of the head note of the plaint till the final decision of the civil suit. A perusal of the order at Annexure P.26 (at page 224) further reveals that the learned Appellate Court in the appeal filed by the plaintiff- petitioner against order dated 18.9.2006 (Annexure P.6) passed by the learned trial Court directed the parties to maintain status quo regarding possession till 18.11.2006. It is also not disputed that the plaintiff-petitioner along with his memorandum of exchange had filed an application U/o 26 Rule 9 of the Civil Procedure Code for appointment of a local commissioner at his own expense for submitting the report regarding possession in order to facilitate a just and fair decision on the application for temporary injunction and the same was opposed by the defendant. However, learned Appellate Court vide its order dated 2.3.2007 (Annexure P.9) dismissed the appeal filed by the plaintiff. A perusal of para 11 of the impugned judgment dated 2.3.2007 (Annexure P.9) reveals that the main argument of the plaintiff-petitioner was that the learned trial Court has wrongly ignored the memorandum of exchange dated 11.12.2005 by virtue of which, the possession of the suit land was transferred to the plaintiff-petitioner and strained relations were, in no way, a hindrance in effecting the memo of exchange between the parties. In para 14 of the impugned judgment dated 2.3.2007 (Annexure P.9), it is noticed that it was contended by counsel for the appellant that when the defendant has admitted his signatures upon the memorandum of exchange dated 11.12.2005, then its execution is said to be prima facie admitted. C.R. No. 2793 of 2007 -14- A further perusal of para 16 of the impugned judgment dated 2.3.2007 (Annexure P.9) reveals that the learned Additional District Judge was convinced that no doubt the respondent-defendant has admitted his signatures on the memorandum of exchange, so, prima facie weightage should be given to the memorandum (Annexure P.10). However, reasoning adopted by the learned first appellate Court that in view of explanation given by the defendant-respondent in his written statement and above all in view of strained relations and long standing/run litigation between the parties, it cannot be said that the said memorandum would have been accepted by the respondent-defendant, in the opinion of this Court, is based on conjectures and surmises and thus not sustainable. Law is well settled that when a person admits his signatures on a document, it is for him to explain as to how and under what circumstances, his signatures came to be obtained on it and as to whether its contents were explained to him or not and in what manner, his signatures were obtained. At the initial stage of the suit, on the basis of material available on record, prima facie, the contents of the memorandum of exchange (Annexure P.10) cannot be ignored in the face of the explanation tendered by the defendant, a highly educated person and a Government official, which in the opinion of this Court, is flimsy. It is further amply clear from reading of para 17 of the impugned judgment dated 2.3.2007 (Annexure P.9) that the learned Appellate Court has noticed the execution of an arbitration settlement Ex.C.1 between the parties, which was further placed on record by the parties in the civil suit titled Amrik Pal Singh v. Bhupinder Pal Singh, which was disposed of by the learned Lok Adalat. However, the execution of the memorandum of exchange has been disbelieved on the premise that C.R. No. 2793 of 2007 -15- during the period the parties were at loggerheads and thus not likely to execute the said memorandum of exchange. In the opinion of this Court, this approach and reasoning of the learned Appellate Court is also based on conjectures and surmises and thus not sustainable. Still further, the observation by the learned Additional District Judge in para 18 that the case is only at the stage of deciding of ad interim injunction and as such issues were still to be framed, is contrary to the record of the