IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.2390 of 2006 Decided on : 24.08.2009 Raghbir Singh & others ... Appellants versus Kesa & others ...Respondents CORAM : HON'BLE MR. JUSTICE AJAY TEWARI Present : Mr. Arun Jain, Sr. Advocate with Mr. Anupam Sharma, Advocate for the appellants. Mr.Ashish Kapoor, Advocate for respondent. 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? AJAY TEWARI, J. (ORAL) This appeal has been filed against the concurrent judgments of the Courts below decreeing the suit of the respondent No.1 for declaration that he continues to be owner in possession of 1/3rd share of 87 kanals of land and that the alleged 'Release Deed' got executed from him by his grand sons, did not bind him since it was got executed by fraudulent means. Both the Courts below have, as mentioned above, decreed the suit. The following questions have been proposed: i) Whether the impugned judgments and decrees are nugatory to the provisions of proviso to Section 34 of the Specific Relief Act, 1963? ii)Whether the judgments and decrees are hit by Rule 7 of Order 7 of the Code of Civil Procedure? RSA No.2390 of 2006 -2- iii)Whether the learned lower appellate court erred in law in not taking into consideration the evidence on record or misread the same? iv)Whether issue No.1 has been decided contrary to the provisions of law? v)Whether non-consideration and discussion of the rulings put forth by the defendants-appellants rendered the judgments as untenable? vi)Whether the decree and judgment of the learned lower appellate court is hit by the rulings of the Hon'ble Supreme Court and this Hon'ble Court i.e. AIR 1993 SC 1120, AIC 1992 SC 1604 and 2001 (1) PLJ 552? Learned counsel has mainly argued question No.(iii). It is his assertion that in the plaint the following prayer was made: “It is, therefore, prayed that a decree for declaration to the effect that plaintiff is owner in possession of 1/3rd share of agricultural land measuring 260K-18M situated at village Bastara, Teh. & Distt. Karnal, fully detailed in para No.1 of plaint & also detailed in jamabandi 1996-97, and is not bound by void illegal bogus 'Release Deed' dated 16.08.2000 with consequential relief of permanent injunction restraining the defendants from dispossessing the plaintiff from the suit land and interfering into peaceful possession of plaintiff over suit land and further restraining the defendants from alienating the suit land by way of sale, mortgage, decree etc. may kindly be passed in favour of plaintiff & against the RSA No.2390 of 2006 -3- defendants.” He further argues that in fact no issue was framed in regard to the validity of the 'Release Deed'. He further argued that in fact the appellants had given the original registered 'Release Deed' to their counsel but their counsel did not tell them to produce the 'Release Deed' before the Court since there was no such issue and it was not necessary to produce the same. Learned counsel has further argued that the appellants had moved an application under Rule 27 of Order 41, CPC before the learned Lower Appellate Court taking the same plea and the same has been wrongly rejected. Learned counsel vehemently argued that the absence of this issue resulted in irreparable prejudice to the appellants since they were misled into not producing the original 'Release Deed' and it was only on account of non-production of original 'Release Deed' that the suit of the respondent No.1 has been decreed. At the outset, it may be mentioned that the Courts below have returned a positive finding on the issue of fraud. Thus, a positive finding has been returned on the issue of fact that the fraud was practiced upon respondent No.1. Thus, it was not the case that only the non-production of 'Release Deed' has gone against the appellant. With regard to the plea that the application for additional evidence was wrongly rejected I find that in paragraph 4 of the written statement, it had been clearly mentioned that the appellants had made an averment that they were the owners of the land under the 'Release Deed', which was RSA No.2390 of 2006 -4- executed by the respondent with his free will and without any undue influence. Thus it must be held that the appellants were clearly claiming title under the said 'Release Deed'. In this context, I find that the learned Lower Appellate Court has correctly considered this aspect in paragraphs 25, 26 & 27 of the judgment and, while relying upon a Division Bench judgment of this Court titled as Sardari Lal vs. Kartar Singh & others 1998(3) Civil Court cases 66 as well as the judgment of the Hon'ble Madras High Court entitled as Vellayya Konar & another vs. Ramaswami Konar and another AIR 1939 Madras 894, held that it was the substance of the plaint and not the form which was important. In view of the fact that the respondent had specifically prayed for setting aside the 'Release Deed' and the positive assertion of the appellants that they had become owners, they were not entitled to the benefit of order 41 Rule 27 CPC. It was incumbent upon the appellants to have proved their assertion that they had become owners and they could not take the plea that they were not aware that the original 'Release Deed' had to be produced. In this view of the matter, I hold the question No.(iii) is against the appellants. Consequently this appeal is dismissed. August 24, 2009 (AJAY TEWARI) sonia JUDGE