RSA No.3308 of 1984 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.3308 of 1984 Date of Decision: 16.03.2010 Smt.Gejo (dead) through LRs. ..Appellants Vs. Kanwar Raj Singh (dead) through LRs. & Ors. ..Respondents Coram: Hon'ble Mr. Justice Vinod K.Sharma Present: Mr.S.K.Chopra, Advocate, for the appellants. Mr.M.S.Bedi, Advocate, for the respondents. --- 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 Digest? --- Vinod K.Sharma,J. Plaintiff/appellant by way of this regular second appeal has challenged the judgment and decree dated 23.8.1984 passed by the learned RSA No.3308 of 1984 2 lower appellate court vide which suit filed by the plaintiff/appellant for declaration was ordered to be dismissed, by reversing the judgment and decree passed by the learned trial court. Plaintiff/appellant filed a suit for declaration, that she was owner in possession of the suit land as detailed in the head-note of the plaint in pursuance to registered sale deed dated 6.6.1975. Pleaded case of the plaintiff/appellant was that Respondent/defendant No.1 was owner in possession of land measuring 71 kanals 8 marlas. He sold the suit land vide sale deed executed on 6.6.1975 and registered on 23.7.1975 for a consideration of Rs.30,000/- (Rupees thirty thousand only). Vendor handed over the possession of the suit land. At the time of sale land measuring 23 kanals 8 marlas was under mortgage with possession with defendants No.3 and 4 for Rs.10,000/- (Rupees ten thousand only). The said amount was retained by the plaintiff for redemption whereas the remaining land was under mortgage with defendants No.5 and 6 for Rs.16000/- (Rupees sixteen thousand only). The said amount was also retained and the plaintiff paid a sum of Rs.4000/- (Rupees four thousand only) in cash to the defendant. The plaintiff claimed to have become owner of the entire suit land. It was pleaded that defendant No.1 in collusion with the office of Sub-Registrar made interpolation in the sale deed, and added in hand that he sold 1/3rd share of the suit land. Subsequently, defendant No.1 in collusion with defendants No.5 to 7 got the land measuring 47 kanals 12 marlas redeemed out of the suit land and defendant No.5 to give the actual possession to defendant No.1. Defendant claimed that he had sold only 1/3rd RSA No.3308 of 1984 3 share of the suit land to the plaintiff and 2/3rd share was transferred to defendant No.8, by way of gift. This was denied by the plaintiff on the ground that defendant No.1 had no right to gift away the land which was in the ownership of the plaintiff/appellant. Defendants No.5 and 6 being minors, were sued through their father defendant No.7 who had no adverse interest to that of minors. Defendants having refused to admit the claim of the plaintiff, the suit was filed to claim ownership. Defendants No.2,4, 5 ,6 and 8 contested the suit of the plaintiff and took a stand that 1/3rd share of the suit land was sold and not the entire suit land. Defendants also claimed that the suit was not maintainable, and was bad for mis-joinder of necessary parties, as also that the plaintiff had no cause of action. Suit was said to be not properly valued for the purposes of court fee and jurisdiction. It was denied that any part of the suit land was redeemed. Stand was taken that defendant No.1 had gifted away 47 kanals 12 marlas of land being 2/3rd share to defendant No.8. On the pleadings of the parties, learned trial court framed the following issues:- 1. Whether the impugned sale was effected regarding the entire suit land 72 k 8 M? OPP 2. Whether the suit is not maintainable in the present form? OPD 3. Whether the suit is bad for mis-joinder of parties and cause of action? OPD 4. Whether the suit is not properly valued for the purpose of RSA No.3308 of 1984 4 court fee and jurisdiction? OPD (objected to) 5. Whether any portion of the suit land has been got redeemed, if so, by whom and what effect? OPParties. 6. Whether any property out of the suit land has been validly gifted by defendant No.1 in favour of defendant No.8, if so, its effect? OPD 7. Whether the sale deed in question has been interpolated subsequently, if so, its effect? OPP 8. Relief. Issues No.1, 6 and 7 were taken up together. Learned trial court on appreciation of evidence came to the conclusion that land measuring 71 kanas 8 marlas was sold by defendant No.1 to the plaintiff vide sale deed dated 6.6.1975 Ex.D.1. Sale deed was scribed by Hazara Singh PW 1. He deposed having scribed the sale deed in favour of plaintiff Smt.Gejo. Ajit Singh as PW 2, and Shangara Singh as PW 3 being the attesting witnesses of the sale deed, also supported the case set up by the plaintiff by deposing that land measuring 71 kanals 8 marlas was sold by defendant No.1 in favour of Gejo for a consideration of Rs.30000/- (Rupees thirty thousand only). They had also appeared before the Sub-Registrar, who made endorsement Ex.P.1/A in their presence, and they attested the due execution of the sale deed before the Sub-Registrar. Smt. Gejo while appearing as her own witness as PW 5 also deposed as per the pleaded case. PW 4 Gian Singh also deposed that the suit RSA No.3308 of 1984 5 land measuring 9 killas was purchased by his sister-in-law Smt. Gejo for a consideration of Rs.30,000/- (Rupees thirty thousand only) vide sale deed Ex.P.1 and a sum of Rs.1600/- (Rupees one thousand six hundred only) was paid before the Sub Registrar to Kanwar Raj Singh, whereas Rs.2400/- (Rupees two thousand and four hundred only) were paid by the vendee to the vendor at the time of entering into the agreement before the execution of the sale deed and the balance amount of Rs.26000/- (Rupees twenty six thousand only) was kept by the vendor for payment to the mortgagees. He had signed the sale deed on behalf of Smt.Gejo. He deposed that before registering the document, it was read over to the vendor as well as attesting witnesses and it was thereafter signed before the Sub-Registrar. Stand of the defendant No.1 in evidence was that he did not sell land measuring 71 kanals 8 marlas to the plaintiff for a sale consideration of Rs.30000/- (Rupees thirty thousand only). He deposed that he and Swaran Singh, had gone to the office of Sub-Registrar and made necessary correction in Ex.P.1, by incorporating portion “A to A” in the sale deed because he agreed to sell only 3 killas of land qua which sale deed was executed and registered. He further deposed that portion “A to A” which was added subsequently in the sale deed, was inserted before it was presented to the Sub Registrar for registration. Thus, the case set up by the defendant was that he sold only 1/3rd share. Defendant No.1 also led evidence to show that he had agreed to sell land measuring 3 killas to Swaran Singh, by entering into an agreement to sell. Copy of the agreement was marked B. The agreement RSA No.3308 of 1984 6 was scribed by Tirath Ram DW 7. In the evidence it was sought to be proved by Kanwar Raj Singh that he had executed an agreement to sell the land measuring 23 kanals 8 marls to Swaran Singh on 12.5.1975 for Rs.10,000/- (Rupees ten thousand only) per killa. This version was supported by DW 8 Retired Tehsildar, Bachiter Singh,who was Sub Registrar at the time of registration of the sale deed Ex.P.1, who deposed that circled red portion was in existence, when he registered sale deed Ex.P.1. Learned trial court, however, found the evidence of Bachiter Singh to be tissue of lies, to support the version set up by Kanwar Raj Singh. The learned trial court also did not appreciate the conduct of the Tehsildar, as he was said to have acted in most irresponsible manner by participating in the act of forgery to help defendant No.1, who wanted to wriggle out from what he did while registering sale deed Ex.P.1. Defendant No.1 and his witnesses deposed, that interpolation in the agreement was made in the presence of Swaran Singh. The suit land was sold to Smt. Gejo and not to Swaran Singh on whose behalf Gian Singh who had appeared at the time of execution of the sale deed as also at the time of registration of the sale deed before the Sub Registrar, the learned trial court, therefore, did not accept this version. Learned trial court held, that in order to rely a document, the appearance of document should be honest and not suspicious or suffering from falsehood. Document which is surrounded by suspicious circumstances, or is a fraudulent transaction which is convincingly RSA No.3308 of 1984 7 explained, deserves to be rejected. Learned trial court held that appearance of the document showed that added portion was interpolated by defendant No.1 by entering into criminal conspiracy with Bachiter Singh who was Sub Registrar at the time of registration of the sale deed. Their evidence was found to be unsatisfactory. Learned trial court by referring to the oral statement of defendant No.1, held that unsuccessful attempt was made to assert, that he agreed to sell land measuring 3 killas out of the suit land for Rs.10,000/- (Rupees ten thousand only) per killa to Swaran Singh vide agreement copy of which is mark B. This was said to be an agreement to sell qua the land in dispute. Learned trial court held that interpolation was fraudulent, because the said addition and alteration was not made in the register of the Scribe PW 1 Hazara Singh. He had categorically stated that interpolated portion in Ex.P.1 was not written in his hand. He also denied the signatures Mark “B to B” on the sale deed to be in existence at the time of execution of the sale deed by him. He also deposed that as per entry in his register, defendant No.1 sold 71 kanals 8 marlas of land to Smt. Gejo vide sale deed Ex.P.1. Copy of entry was exhibited as Ex.P.2. Mala fide of defendant No.1 stood proved as he gifted away 2/3rd share of the land to his wife Smt. Ravinder Kaur by way of gift deed. According to the learned trial court the land measuring 71 kanals 8 marlas could be sold for a consideration of Rs.30,000/- (Rupees thirty thousand only). The defendant produced the sale deeds Ex.D.1 and D.2 in evidence to show that the area of land sold by him was much more than the land in suit. RSA No.3308 of 1984 8 Learned trial court did not accept this version, as in the cross- examination he admitted having sold 14 killas of land in the year 1970 to Raghbir Singh at the rate of Rs.6000/- (Rupees six thousand only) per killa. Learned trial court held that quality of land sold to plaintiff/appellant was not proved. Learned trial court also did not find any explanation, forthcoming as to why land measuring 71 kanals 8 marlas was mentioned in the sale deed when he was owner of additional land measuring 22 killas besides this land. The learned trial court, therefore, recorded a finding that interpolation was made subsequent to registration of sale deed, in criminal conspiracy with Bachiter Singh who was Sub-Registrar at the time of registration. Findings on issues No.1, 6 and 7 were returned in favour of the plaintiff by holding that defendant No.1 sold land measuring 71 kanals 8 marlas to Smt. Gejo vide sale deed Ex.P.1 which was binding on defendant No.1. On issue No.2 it was held that suit was maintainable in the present form. In view of the pleadings and the evidence the learned trial court on issue No.3 held the suit to be bad for misjoinder of parties merely because no relief was claimed against Defendants No.2 to 8. However, this was held to be not fatal, in view of Order 1 Rule 9 of the Code of Civil Procedure. Issue No.4, was decided against the defendants for want of evidence On issue No.6 it was held, that it was not proved that the property was redeemed and documents produced in support thereof, were not admissible for want of registration. RSA No.3308 of 1984 9 Consequently, the suit was decreed. In appeal, judgment and decree passed by the learned trial court was reversed. Learned lower appellate court reversed the finding by holding that the question to be decided in appeal was as to “at what time interpolation was made?”. To reverse the finding, the learned lower appellate court took note of the fact that the defendant No.1 had produced on record agreement to sell, executed in favour of Swaran Singh, for sale of 23 kanals 8 marlas of land at the rate of Rs.10000/- (Rupees ten thousand only) per killa. Entry of the sale was entered at Sr.No.750 for which earnest money of Rs.2000/- (Rupees two thousand only) was paid. Learned lower appellate court came to the conclusion that the agreement to sell was executed on 12.5.1975, whereas sale deed Ex.P.1 was executed on 6.6.1975 for land measuring 71 kanals 8 marlas, which did not seem to be apparently correct. The learned appellate court came to the conclusion, that only 1/3rd share was sold but in the sale deed inadvertently, the whole land was mentioned. It was held that vendor had right to add or correct the same, at the time or before registration of the sale deed. Learned lower appellate court also took into consideration the deposition of Defendant No.1 wherein he had stated that as the scribe was not available, therefore, he added the words “1/3rd share” himself which was said to be in his own hand. The learned lower appellate court came to the conclusion that title passes to the party at the time of registration of the sale deed and not on the date of sale. The vendor had right to get the sale deed corrected at RSA No.3308 of 1984 10 any time, on or before its registration. Learned lower appellate court also held that the vendee did not appear either at the time of sale or at the time of registration i.e. why corrections were not initialed by vendee. The learned lower appellate court took into consideration the deposition of Sub Registrar who deposed, that the contents of the sale deed were read over to the parties and at the time of registration nothing was added. Learned lower appellate court also took note of the fact that though the sale was registered on 23.7.1975, suit was filed after 2 years of registration, but there was nothing on record to show as to whether any report was made in this regard to the higher authority. The learned lower appellate court also came to the conclusion that the learned trial court wrongly held the interpolation to be in connivance with the Sub Registrar as this assertion was not proved nor it could be said that interpolation was made mala fide or fraudulently. The learned lower appellate court held that vendor had right to correct the sale deed before the registration. The learned lower appellate court also took note of the fact that defendant No.1 was not the owner of land measuring 71 kanals 8 marlas, as he owned only ½ share along with his brother Jaspartap Singh, as was clear from Ex.P.3 i.e. copy of Jamabandi for the year 1971-72. In view of proved facts the vendor could not have handed over, the entire land of which he was not owner. The learned lower appellate court held that word 1/3rd share was added before registration of the sale deed, and was not an act of fraud or mala fide. The findings on issues No.1 and 7 recorded by the learned trial court were reversed. RSA No.3308 of 1984 11 The learned lower appellate court held that findings on other issues could not be assailed and were affirmed. The learned appellate court also held that there was no necessity to give finding, as to whether the land was redeemed or not, as it had no bearing on the facts of the case. The finding on issue No.2, was reversed and as a result appeal was accepted by setting aside judgment and decree and the suit was ordered to be dismissed. Mr.S.K.Chopra, learned counsel for the appellant contended, that the appeal raises the following substantial questions of law for consideration by this court: 1. Whether the judgment and decree passed by the learned lower appellate court is the outcome of misinterpretation of sale deed Ex.P.1? 2. Whether the learned lower appellate court could reverse the findings of the learned trial court only on the possibility of other view being also possible? In support of the substantial questions of law referred to above, learned counsel appearing on behalf of the appellant referred to the sale deed Ex.P.1 dated 6.6.1975 which was said to be scribed by the deed writer to show that interpolation on the sale deed was apparent on the face of record. The interpolation was said to have been made by defendant No.1 and initialed by him. He also referred to the handwriting of defendant No.1, taken by the court to compare, as to whether the entry was made by him. The contention of the learned counsel for the appellant was that RSA No.3308 of 1984 12 comparison, of the interpolation and handwriting, would clearly show that interpolation was not made by defendant No.1 in his own hand as claimed. Learned counsel for the appellant referred to Section 20 of the Registration Act, which reads as under:- “20. Documents containing interlineations, blanks, erasures or alterations (1) The registering officer may in his discretion refuse to accept for registration any document in which any interlineation, blank, erasure or alteration appears, unless the persons executing the document attest with their signatures or initials such interlineation, blank, erasure or alteration. (2) If the registering officer registers any such document, he shall, at the time of registering the same, make a note in the register of such interlineation, blank, erasure or alteration.” The contention of the learned counsel for the appellant was that the statement of Bachiter Singh could not be relied upon, as there was no note recorded by him in terms of Section 20 of the Act. Therefore, the findings of the learned trial court could not have been reversed merely on the statement of Bachiter Singh who was rightly not believed by the learned trial court. Learned lower appellate court has given no reason, whatsoever, to differ with the findings of the learned trial court. Learned counsel for the appellant also referred to the judgment of this court in the case of Shrimati Surjit Kaur Bajwa Vs. Capt. Kohar RSA No.3308 of 1984 13 Singh & Anr. 1978 PLR 773, wherein this court was pleased to lay down that normally if any insertion is made in a document, after the writing has been finished or any words have been scored out, initials of the parties are obtained by the petition writer, to show that the same was done at their instance. Learned counsel for the appellant also contended that the learned lower appellate court wrongly placed reliance on the agreement Ex.D.1, even though it did not disclose, as to which part of the land was agreed to be sold to the husband of the plaintiff. In any case, this could not be a basis to reject the sale deed duly executed. The contention of the learned counsel for the appellant, therefore, was that the learned lower appellate court misinterpreted the sale deed to upset the well reasoned judgment of the learned trial court. Learned counsel for the appellant also referred to the judgment of Hon'ble Supreme Court in the case of State of Rajasthan & Ors. Vs. M/s Khandaka Jain Jewellers AIR 2008 SC 509, to contend that the execution of the document is complete when it is signed before the same is submitted for registration. Learned counsel for the appellant contended that the learned lower appellate court gave no finding, as to how the finding recorded by the learned trial court was wrong. Rather it proceeded on different angle, to consider the case with respect to the agreement to sell executed by the husband of the plaintiff. The contention of the learned counsel for the appellant, RSA No.3308 of 1984 14 therefore, was that even if for the sake of arguments it is taken that the view taken by the learned lower appellate court was permissible, still as the view taken by the learned trial court was based on appreciation of evidence and law, could not be reversed merely on the possibility of a different view being possible. Mr.M.S.Bedi, leaned counsel for the respondents, on the other hand, contended that learned lower appellate court rightly upset the judgment, as it was proved that the price of the land was much higher. There was, thus, no possibility of 71 kanals 8 marlas of land being sold for a sum of Rs.30000/- (Rupees thirty thousand only). It was also the contention of the learned counsel for the respondents, that there was no reason to disbelieve the Sub-Registrar, because he was uninterested party nor the plaintiff was able to prove connivance or fraud alleged by her. It was also the contention of the learned counsel for the respondents that the agreement executed in favour of the husband of the plaintiff left no manner of doubt that it was only for 1/3rd share of the property which was to be sold, as the agreement to sell was executed on 12.5.1975, and the sale deed was executed thereafter on 6.6.1975. Finally, it was contended that the defendant/respondent being not the owner of total land, could not sell it as his ownership was only half, as proved by the revenue record. Learned counsel for the respondents contended that first substantial question of law raised by the learned counsel for the appellant, RSA No.3308 of 1984 15 therefore, deserves to be answered against the appellant. It is the contention of the learned counsel for the respondents, that view taken by the learned lower appellate court was only view which was possible. The learned lower appellate court righty set aside the judgment and decree passed by the learned trial court. Learned counsel for the respondents placed reliance on the judgment of Hon'ble Supreme Court in the case of Narayanan Rajendran & Anr. Vs. Lekshmy Sarojini & Ors. 2009 (2) RCR (Civil) 286, to contend, that in first appeal under section 96 of the Code the appellate court can go into question of fact, whereas in the second appeal under section 100 of the Code High Court cannot interfere in the findings of fact of first appellate court and appeal is only confined to the questions of law. It was the contention of the learned counsel for the respondents that even if this court honestly believes and is satisfied that the courts below have committed an error in recording the finding of fact, still no interference is called for in regular second appeal. On consideration, I find force in the contentions raised by the learned counsel for the appellant. Learned trial court on appreciation of evidence rightly held that the stand taken by the defendant/respondent that the interpolation was made fraudulently has not been reversed, but the learned lower appellate court had proceeded on presumption that the agreement to sell in favour of the husband of the plaintiff was sufficient to prove the fact that the intention was to sell 1/3rd property. Finding of the learned lower appellate RSA No.3308 of 1984 16 court is the outcome of misinterpretation of document. Any interpolation in the document is necessarily required to be initialed by