RSA No.1251 of 2010 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.1251 of 2010 (O&M) Date of Decision: 23.03.2010 Balbir Singh & Anr. ..Appellant Vs. Fatta @ Fateh Singh ..Respondent Coram: Hon'ble Mr. Justice Vinod K.Sharma Present: Mr.B.S.Rana Advocate, for the appellants. --- Vinod K.Sharma,J. (Oral) This regular second appeal by the defendant/appellant is directed against the judgment and decree dated 5.12.2009 passed by the learned courts below decreeing the suit filed by the plaintiff/respondent for declaration to challenge the sale deed dated 5.12.2000, to be the outcome of fraud and misrepresentation. The plaintiff/respondent who was owner of the suit property RSA No.1251 of 2010 2 had rented out the premises to defendant No.1, his brother, as he was staying in village Makrod Sahab, District Sangrur. The case of the plaintiff was that taking advantage of illiteracy of the plaintiff/respondent, the defendant/appellants under the garb of getting the rent deed executed, got the sale deed executed in favour of defendant No.2. Learned courts below on appreciation of evidence recorded a concurrent finding of fact that the sale was without consideration and was outcome of fraud and misrepresentation, by taking advantage of the illiteracy of the plaintiff/respondent. A desperate attempt by the appellant to lead additional evidence to prove that the property in dispute was actually under the ownership of Gram Panchayat, was also dismissed by holding that the evidence sought to be led was beyond pleadings and otherwise not necessary for adjudication of the case. Learned lower appellate court held that the conditions laid under Order 41 Rule 27 of the Code of Civil Procedure were not satisfied, to hold that the application for additional evidence was without merit. Findings of the learned trial court were accordingly affirmed. Mr B.S. Rana, learned counsel for the appellants contended that this appeal raises the following substantial question of law for consideration by this court: 1. Whether the judgment and decree passed by the learned courts below is the outcome of misreading of evidence and pleadings therefore, perverse? RSA No.1251 of 2010 3 In support of the substantial question of law, the learned counsel for the appellants, contended that the learned courts below failed to notice, that it was not disputed by the plaintiff/respondent that the sale deed was signed by him and also bore his photographs. The contention of the learned counsel for the appellants was, that even payment of consideration stood proved as he admitted, that at the time of registration of the document some payment towards rent was made by defendant No.1, the appellant herein. On the basis of the contentions referred to above, learned counsel for the appellants claimed that the judgment and decree passed by the learned courts below is the outcome of misreading of evidence. It is also the contention of the learned counsel for the appellants, that the learned courts below relied on the weakness of the case of the appellant/defendants, in decreeing the suit, even though the plaintiff failed to prove plea of fraud and misrepresentation. It was also contended by the learned counsel for the appellants, that the application for additional evidence was wrongly dismissed. On consideration of matter, I find no force in the contentions raised by the learned counsel for the appellants. Judgment and decree passed by the learned courts below is based upon appreciation of evidence. It was not in dispute that the defendant/appellant was put in possession being brother on payment of rent. The plaintiff had taken a positive stand, that he was made to RSA No.1251 of 2010 4 sign the documents on the plea, that the lease deed was to be executed. Witnesses in rebuttal produced by the defendants, could not stand the cross examination. It was proved that no consideration was passed on to the plaintiff/respondent, at the time of execution of the sale deed. Attesting witnesses were discrepant in this regard. Findings recorded by the learned courts below, therefore, cannot be said to be the outcome of misreading of evidence or based on the weakness of the defendant/appellant as contended. No fault can be found with the rejection of application for additional evidence also, as the evidence sought to be led was beyond pleadings and therefore, could not be read in evidence, even if taken on record. For the reasons stated, the substantial question of law framed is answered against the appellant. Consequently, finding no merit in this appeal, it is dismissed in limine, but with no order as to costs.. (Vinod K.Sharma) 23.03.2010 Judge rp