RSA No.3338 of 2005 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.3338 of 2005 Date of decision : 23-7-2009 Shoqin Singh ....Appellant VERSUS Joginder Singh and others ...Respondents CORAM:- HON'BLE MR. JUSTICE RAJIVE BHALLA Present: Mr. K.S. Dadwal, Advocate, for the appellant. Mr. Deepak Arora, Advocate, for the respondents. RAJIVE BHALLA, J. The appellant challenges judgments and decrees dated 14-12-2001 and 9-05-2005 passed by the Civil Judge (Jr. Division) Hoshiarpur and the Addl. District Judge (Ad-hoc), Fast Track Court II, Hoshiarpur, decreeing the suit filed by respondent No.1 and dismissing the appeal filed by the appellant. The plaintiff/respondent No.1 filed a suit for declaration that he along with respondent No.3 to 7 are joint owners to the extent of their share of land measuring 13 kanals comprised in khata No.278/424, 425 khasra No.90 R/9/2(5-0), 10(5-0), 90R/10 min(3-0), as per jamabandi for the year 1993-94 situated in the revenue estate of village Rarha HB no.522 Teh. Dasuya, Distt. Hoshiarpur. It was further prayed that the sale deed dated 13-5-1993 allegedly executed RSA No.3338 of 2005 -2- by Jagat Singh is illegal, null and void being the result of impersonation and fraud. The plaintiff/respondent No.1 pleaded that Jagat Singh was owner in possession of the suit land. He died on 25-08-1972 but defendant No.1/the appellant alleges that during his life time Jagat Singh had executed a sale deed dated 13-5-1993 in his favour. Defendant No.1/the appellant filed a written statement pleading that sale deed was legal and valid and the suit should be dismissed. On the basis of the pleadings, the learned trial Court framed the following issues:- 1. Whether the sale deed dated 13-5-99 alleged to be executed by Jagat Singh in favour of defendant No.1 is null and void and result of impersonation? OPP 2. Whether the plaintiff is entitled to decree for declaration as prayed for? OPP 3. Whether in the alternative plaintiff is entitled for possession of the suit land? OPP 4. Whether the plaintiff has no cause of action to file the present suit? OPD 5. Whether the suit is not maintainable? OPD 6. Whether the suit is not properly valued for the purpose of court fee and jurisdiction? OPD 7. Relief. Vide judgment and decree dated 14-12-2001, the learned trial Court held that the death certificate Ex.P1 reveals that Jagat Singh died on 25-8-1972 whereas the sale deed was executed on 13-5-1993. It was also held that the sale deed was the result of RSA No.3338 of 2005 -3- impersonation. Consequently, the trial Court proceeded to set aside the sale deed and decreed the suit. Aggrieved by the aforementioned judgment and decree, the appellant filed an appeal. Vide judgment and decree dated 9-5- 2005, the First Appellate Court dismissed the appeal and affirmed the findings recorded by the trial Court. Counsel for the appellant submits that the sale deed describes Jagat Singh as a Jat Sikh. Ex.D2 the parat patwar records Jagat Singh as a Jat Gill. The respondents are admittedly Mazbi Sikhs i.e. their claim that they are the sons, the widow and the daughters of Jagat Singh is false. It is further argued that the death certificate Ex.P1, which records the death of Jagat Singh on 25-8- 1972, was issued in the year 1996 and should therefore have been rejected by the Courts below. In support of this argument, counsel for the appellant places reliance upon a judgment State of Karnataka vs. Smt. Annakka, 2001(2) Civil Court Cases 365 (Karnataka) and contends that if the death is not reported within one year a subsequent entry cannot be held to be conclusive, evidence of the date of death. Counsel for the respondent, however, submits that Jagat Singh who was a resident of village and Tehsil Batala Distt. Gurdaspur died in the year 1972. The appellant, in connivance with the revenue authorities hatched a conspiracy to mis-appropriate his property and, therefore, got a sale deed executed in his favour by impersonating Jagat Singh. It is submitted that the entries in the sale RSA No.3338 of 2005 -4- deed and the parat patwar that Jagat Singh is a Jat Gill are incorrect and in fact establish that the appellant was not aware of the caste of Jagat Singh. It is further argued that, in his written statement, the appellant has not traversed a specific averment appearing in the plaint that Jagat Singh passed away on 25-08-1972. It is also pointed out that the respondents have averred in the plaint, that the appellant kept the sale deed a secret and even paid rent as settled up to the year 1994. In Para 6 of written statement, this fact has not been specifically denied. It is further submitted that as findings of fact recorded by the Courts below do not suffer from any error, the present appeal be dismissed. I have heard counsel for the parties, perused the impugned judgments and the questions of law framed by counsel for the appellant which read as follows:- i) Whether the courts below were duty bound to frame the proper issues which were arising out of the pleadings of the parties? ii) Whether the respondents were bound to prove their relationship with Jagat Singh who was belonging to Gill Community and not to majbi Sikh? iii) Whether the sale deed which was proved by the marginal witnesses can be set aside? iv) Whether the appellant is entitled to protection under Section 41 of the Transfer of Property Act being bonafide purchaser against consideration? RSA No.3338 of 2005 -5- v) Whether the court was under mandatory obligation to order the enquiry with regard to the identity of the plaintiff/respondent no.1, keeping in view the stand taken by the appellant? vi) Whether the finding which are based on misinterpreted, misreading of evidence can be made? By way of the first question of law, the appellant alleges that proper issues, arising out of the pleadings of the parties, were not framed. However, no argument has been addressed with respect to this question of law. The second question of law arises from an assertion that the respondents were bound to prove their relationship with Jagat Singh, who is a Jat Gill, whereas the respondents are Mazbi Sikhs. It would be necessary to mention here that in paragraph 1 of the plaint, the respondents pleaded that they are the sons, the widow and the daughters of Mohinder Singh son of Jagat Singh. This averment has not specifically denied. A reference to paragraph 1 of the plaint and the written statement would be appropriate. Paragraph 1 of the plaint:- 1. That plaintiff and defts No.3 to 7 are legal heirs of deceased Jagat Singh. Plaintiff and deft No.3 are sons of Jagat Singh and deft No.4 is widow, deft No.5 is son and defts. No.6 and 7 are daughters of Mohinder Singh s/o Jagat Singh, hence they are co- owners of the land in suit. Paragraph 1 of the written statement:- 1. That Para No.1 of the Plaint is incorrect hence denied. RSA No.3338 of 2005 -6- It is, therefore, apparent that the appellant has not denied the relationship between Jagat Singh and the respondents therefore cannot be allowed to urge this point. As regards the assertion that the Jagat Singh who executed the sale deed was a Jat Gill whereas the respondents are mazbi Sikhs, suffice is to say that no such averment finds mention in the written statement filed by the appellant. Facts not pleaded cannot be urged. Similarly the plea that Jagat Singh was alive on the date of the execution of the sale deed is belied from the averments in the plaint and the written statement. In Paragraph 2 of the plaint, the respondents have specifically averred that Jagat Singh died on 25-08-1972. However, in Paragraph 2 of the written statement, the appellant did not choose to deny this fact. Consequently, the argument that the death certificate issued in the year 1996, incorporating an entry with respect to the death of Jagat Singh in the year 1972, was rightly accepted by the Courts below. The argument that the death certificate is inconclusive as the entry was recorded after 24 years would be relevant, if the appellant had denied the death of Jagat Singh on 25-08-1972. It appears that the appellant took advantage of the fact that Jagat Singh and the respondents resided in another District. Taking advantage of his absence and by impersonation, he got a sale deed executed in his favour. It would also be necessary to mention here that one of the attesting witnesses DW4 produced by the appellant deposed in his examination-in-chief that Jagat Singh had died 27/28 years ago and the appellant had got the sale deed executed in his favour from some other person who impersonated Jagat Singh. After this deposition, RSA No.3338 of 2005 -7- this witness was apparently withheld from the Court as he has deposed against the appellant. It would also be necessary to mention here, as held by the Courts below even the marginal witnesses of the sale deed admitted that they did not know Jagat Singh and had never met him before the execution of the sale deed. In view of what has been stated hereinabove, I am of the considered opinion that the learned Courts below have returned concurrent findings of fact that are legal and valid and do not suffer from any error as would give rise to the substantial question of law that would require interference of this Court in Second Appeal. As a result, the appeal is dismissed. (RAJIVE BHALLA) 23-07-2009 JUDGE manju