In the High Court of Punjab and Haryana at Chandigarh R.S.A. No. 1660 of 2005 Date of decision: July 20, 2009 Narinder Nath Kapoor .. Appellant Vs. Surinder Nath Kapoor and others .. Respondents R.S.A. No. 1941 of 2005 Puran Singh and others .. Appellants Vs. Surinder Nath and others .. Respondents COCP No. 1445 of 2006 Laxmi Narain .. Petitioner Vs. Gurpal Singh and others .. Respondents. Coram: Hon'ble Mr. Justice A.N. Jindal Present: Mr. Ashok Aggarwal, Sr. Advocate with Mr. Suman Jain, Advocate for the appellants. Mr. Chetan Mittal, Sr. Advocate with Mr. Vishal Garg, Advocate for the respondents. A.N. Jindal, J This judgment of mine shall dispose of Regular Second Appeal Nos.1660 and 1941 of 2005, and C.O.C.P. No.1445 of 2006, having been arisen out of the judgment and decree dated 31.3.2005, vide which the appeal preferred by the plaintiff-respondent No.1 (herein referred as 'the plaintiff'), was accepted and the suit for possession filed by him was decreed, and the appeal preferred against the judgment of cross objections R.S.A. No. 1660 of 2005 R.S.A. No. 1941 of 2005 & -2- COCP No. 1445 of 2006 (filed by the defendant No.1) was dismissed. Surinder Nath and Narinder Singh, who are the main contestants, plaintiff and defendant No.1 respectively, in the case are brothers, having Pakistani origion. Narinder Nath was in the Indian Army and left the same on 3.11.1953, whereas, Surinder Nath was in Merchant Navy. After leaving the service, he became Pilot in Bombay and thereafter went to Singapore and obtained citizenship of Singapore. The allegations as set out by Surinder Nath Kapoor plaintiff through Kartar Singh, the alleged power of attorney, in his suit for possession are that he purchased land measuring 165 kanals 18- ½ marlas being 20/25th share of the total land measuring 206 kanals and 3 marlas as fully detailed in the in the plaint) vide registered sale deed dated 17.10.1966 for Rs.31,000/- from Kewal Krishan and Rajinder Krishan sons of Dawarka Dass. On the same day, they also executed a lease deed in favour of Narinder Nath defendant No.1 for 20 years i.e. from Kharif 1966 to Rabi 1986 @ Rs.500/- per annum. The plaintiff also averred that on 7.1.1967, he purchased 26 kanals 16 marlas being ¼ share of the land measuring 106 kanals 3 marlas for Rs.16000/- from Rajinder Krishan and Kewal Krishan. Though, at the time of sale deeds, the possession remained with the defendant No.1. It has also been alleged that by getting undue benefit of the absence of the plaintiff from the village Dhurala, the defendant No.1 started claiming ownership over the suit land and obtained ex-parte civil court decree on the basis of adverse possession on 10.2.1988 by filing civil suit No.655 of 1987 against the previous owners i.e. Kewal Krishan and Rajinder Krishan sons of Dawarka Dass. Thus he has challenged the said decree being illegal, wrong, null and void and ineffective qua his rights. It was further alleged that Prem Nath Khanna and others, who were the co-sharers with him, had also filed a civil suit No.860 of 1990 for declaration and joint possession against Narinder Nath defendant No.1 in which also the said decree dated 10.2.1988 passed in Civil Suit No. 655 of 1987 has been challenged. It was further submitted that after obtaining decree dated 10.2.1988 in the aforesaid civil suit, the defendant No.1 started selling and mortgaging the suit land without any legal authority. He has entered into following transactions of mortgage :- R.S.A. No. 1660 of 2005 R.S.A. No. 1941 of 2005 & -3- COCP No. 1445 of 2006 1. Land measuring 16 kanals, vide registered mortgage deed No.39771/1 dated 31.1.1989, in favour of Punjab & Sind Bank, Pipli, for a sum of Rs.20,000/- 2. Land measuring 64 kanals, vide registered sale deed dated 31.1.1989, in favour of Punjab & Sind Bank, Pipli, for a sum of Rs.95,000/-. 3. Land measuring 8 kanals, vide registered mortgage deed No.4293/1 dated 3.3.1989, in favour of The Punjab Land Mortgage Bank, Thanesar, for a sum of Rs.15,000/-. 4. Land measuring 8 kanals, vide registered mortgage deed No.4470/1 dated 15.3.1989, in favour of The Punjab Land Mortgage Bank, Thanesar, for a sum of Rs.6,000/-. 5. Land measuring 8 kanals, vide registered mortgage deed No.4469/1 dated 15.3.1989, in favour of The Punjab Land Mortgage Bank, Thanesar. 6. Land measuring 17 kanals 13 marlas, vide registered sale deed No.3372 dated 11.12.1989, in favour of defendants No.4 to 6. 7. Land measuring one kanal, vide registered sale deed No.3595 dated 16.12.1989, in favour of the defendant No.7. 8. Land measuring 10 kanals 6 marlas, vide registered sale deed No.666 dated 14.5.1991, in favour of defendants No.6 to 14. The plaintiffs have challenged the aforesaid transactions as well as ex-parte decree and sought declaration that the said transactions are ineffective qua their rights with a consequential relief of joint possession in the suit land. The said suit was contested by filing written statement wherein the defendant No.1-appellant (herein referred as 'defendant No.1') has asserted his ownership by way of adverse possession and has supported the decree obtained by him on 18.10.1988. He has further alleged that the sale deeds dated 17.10.1966 and 17.1.1967 allegedly in the name of Surinder R.S.A. No. 1660 of 2005 R.S.A. No. 1941 of 2005 & -4- COCP No. 1445 of 2006 Nath Kapoor are sham and bogus transactions which were never acted upon and have been executed only to void and land ceiling laws. The mutations entered on the basis of the alleged documents were rejected by the Revenue Authorities. While proceeding further, it has been alleged that the suit is barred by time; it is not maintainable in the present form; Kartar Singh was incompetent and not authorised to file the suit against the defendants on the basis of the power of attorney; plaintiff never executed any such document in his favour. Regarding sale deeds and mortgage deeds, he submitted that he made the aforesaid transactions regarding the transfer in order to effect the improvements over the land as well as to pay debts which had been incurred in effecting such improvements. As such, these are the acts of good management and as such these being perfectly legal and valid are binding upon the plaintiff. In the alternative, the defendant No.1 took the plea that he has been in possession of the suit land as lessee and he never delivered the possession of the same to the plaintiff and other owners therefore even after the expiry of the period of lease, he continues to be the tenant over the same by the principle of holding over. Thus, the plaintiff, even if is held to be the owner, cannot seek possession from him through court. The defendant No.2 i.e. Punjab & Sind Bank, Pipli, alleged that the suit had been filed by the plaintiff in collusion with the defendant No.1 as they are the brothers inter-se. The Bank after taking all the precautions and verifying all the records regarding title qua the defendant No.2 had got pledged the land from defendant No.1, therefore, the defendant No.2 being the bona-fide mortgagee for a valuable consideration are protected under Section 41 of the Transfer of the Property Act. The defendant No.3, Punjab Primary Land Mortgage Bank did not put in appearance, therefore, it was proceeded against ex-parte, whereas, the defendants No.4 to 14 in their separate written statements while denying all the allegations as set up in the plaint pleaded that the plaintiff has no locus standi to file the suit; it is barred by time; plaintiff is estopped from filing the same by his own act and conduct. Kartar Singh who had filed the suit on behalf of the plaintiff does not possess valid power of attorney to institute and prosecute the same. The defendants are the bona-fide R.S.A. No. 1660 of 2005 R.S.A. No. 1941 of 2005 & -5- COCP No. 1445 of 2006 purchasers for a value without notice. Similar pleas were raised by the other defendants Replications were also filed. In the wake of the varied pleas raised by the parties, the following issues were framed :- 1. Whether civil court decree passed in civil suit No.655 of 1987 dated 10.2.1988 in suit titled as Narinder Nath Kapoor vs. Kewal Krishan and anr. is illegal, null and void and not binding upon the rights of plaintiff?OPP 2. Whether the plaintiff is entitled to the relief of joint possession in the land in dispute?OPP 3. Whether suit has been duly instituted by the plaintiff?OPP 4. Whether defendant No.1 has become owner by adverse possession of the land in dispute?OPD 5. Whether suit is not within time?OPD-1 6. Whether civil court has no jurisdiction to entertain the suit?OPD-1 7. Whether plaintiff has no locus-standi to file and maintain the suit?OPD-1 8. Relief. Surinder Nath Kapoor never stepped into the witness box to state anything in support of his case, yet, Kartar Singh on the strength of his special power of attorney dated 13.4.1992 unfolded the facts of the case while appearing as PW-1. The plaintiff further examined Kulwant Singh Halqa Patwari (PW2), Chanderkanta, Head Registration Clerk (PW-3), Santokh Singh (PW4), again Chanderkanta H.R.C. Registrar Office, Kurukshetra (PW5), Tirath Singh (PW6). After producing the documents i.e. attorney Ex.P1, copy of the mutation Ex.P2 to Ex.P5; copy of the power of attorney Ex.PW2/A; copy of the lease deeds Ex.PW3/A, Ex.PW4/A and Ex.PW5/A; copy of the judgment dated 10.2.1988 Ex.P6; decree sheet Ex.P7 and Ex.P8; copy of the jamabandi for the year 1985-86 Ex.P9; copy of the mutation No.1707, 1735, R.S.A. No. 1660 of 2005 R.S.A. No. 1941 of 2005 & -6- COCP No. 1445 of 2006 1762 Ex.P10 to Ex.P12; copy of the khasra girdawri from the year 1908 to 1913 Ex.P13; death certificate of Ram Gopal, Jaimal Singh, Dharambir Sabherwal and Sant Singh Ex.P14 to Ex.P17 respectively, the plaintiff closed the evidence. To the contrary, the defendant examined K.S. Bhatia Branch Manager, Punjab & Sind Bank, Pipli (DW1), Narinder Nath Kapoor himself appeared in witness box as DW-2, Chander Kanta H.R.C. Registrar Officer, Kurukshetra (DW3), Ram Niwas Clerk Record Room (DW4), Chander Bhan Clerk (DW5), Mihan Singh (DW6), Sunhera (DW7), Puran Singh (DW8) and Ran Singh (DW9). After tendering into evidence documents i.e. mortgage deed regarding purchase of tractor Ex.D1; confirmation regarding mutation Ex.D2; statement of account Ex.D3; copy of amended plaint Ex.D4; copy of mortgage deed with the bank Ex.D5; copy of the statement of account Ex.D6; certified copy of power of attorney Ex.D7; original power of attorney Ex.D8; copy of the judgment dated 17.2.1993 Ex.D8/A; copy of the decree sheet dated 17.2.1993 Ex.D9; copy of mutation No.1762 Ex.D10; copy of the mutation No.1707 Ex.D11; copy of khasra girdwri Ex.D12; original power of attorney in favour of the defendant No.1 Ex.DW2/A. On scrutiny of the evidence, the trial court vide judgment dated 27.9.2000 had decreed the suit of the plaintiff with costs. On appeal, the learned District Judge, Kurukshetra, vide order dated 17.1.2002, set aside the decree passed by the lower court and remitted the case back for re-trial after framing the following additional issues :- A.1 Whether defendants No.4 to 14, Puran Singh and others are bona-fide purchasers for value and consideration. If so, its effect?OPD- No.4 to 14. A.2 Whether the mortgage deeds in question executed by defendant No.1 Narinder Nath Kapoor in favour of defendants No.2 and 3 are binding on him as well as on the plaintiff and others?OPD-No.2 and 3. R.S.A. No. 1660 of 2005 R.S.A. No. 1941 of 2005 & -7- COCP No. 1445 of 2006 On receipt of the case, the defendants No.4 to 14 produced the documents i.e. original sale deeds Ex.D13 and Ex.D14; copy of the sale deed Ex.D15; copies of jamabandies for the years 1985-86, 1990-91 and 1995-96 Ex.D16 to Ex.D18; copy of the mutation No.1660 Ex.D19; copy of the mutation No.1707 Ex.D20 and copy of the mutation No.1762 Ex.D21. In rebuttal, neither Kartar Singh nor the plaintiff appeared in the witness box to rebut the aforesaid evidence, rather the evidence was closed by them by tendering in evidence copy of the power of attorney Ex.P-1/A. After remand, the trial court vide judgment dated 3.6.2002 dismissed the suit of the plaintiff with costs. The defendants No.4 to 14 were declared to be bona-fide purchasers of the suit land for value and consideration in good faith. Issue-wise findings were delivered as under :- Issues No.1, 2 and 4 The trial court observed that there is nothing on the record to declare the civil court decree dated 10.3.1988 as illegal, null and void and the plaintiff is not entitled for the relief of joint possession. On the other hand, the defendant No.1 was held to be the owner in possession of the suit land by prescription of adverse possession. Issue No.5 While holding that the suit is within limitation, this issue was decided in favour of the plaintiff. Issues No.3 and 7 Both these issues were decided against the plaintiff and in favour of the defendants. Issue No.6 This issue was decided in against the defendants. Additional issues No.1 and 2 While holding the transfers made by the defendant No.1 in favour of the subsequent transferees including the defendants No.2 and 3, to be legal, these issues were were decided in favour of the defendants. Surinder Nath Kapoor, through his power of attorney Gurnam Singh challenged the impugned judgment in appeal and at the same time, R.S.A. No. 1660 of 2005 R.S.A. No. 1941 of 2005 & -8- COCP No. 1445 of 2006 Narinder Nath Kapoor also filed cross objections alleging as under :- (i) That the plaintiff Surinder Nath Kapoor is not a citizen of India and is Non Resident Indian as defined in Foreign Exchange Regulation Act, 1973. As per evidence on record, the plaintiff-appellant held a passport and visa from Singapore to visit India. (ii) Under Section 3(i) of the Foreign Exchange Regulation Act, 1973, a Non Resident Indian cannot acquire, hold and transfer and dispose off by sale mortgage, lease, gift, settlement or otherwise any immovable property situated in India especially agricultural land/farm/house/plantation property. The defendant further pleaded in the cross objection petition that while deciding the case under issue No.2 and 7, the court should have taken the above proposition of law into consideration as additional ground which was duly argued and written arguments were also submitted that the relief of possession cannot be granted to the plaintiff and the plaintiff who cannot purchase the agricultural land in India without permission has no locus standi to file and maintain the suit. Learned Additional District Judge, Kurukshetra, while accepting the appeal upset the judgment passed by the trial court, dismissed the cross objections and decreed the suit of the plaintiff. Now there are three appeals, one filed by the subsequent vendees and the other filed by Narinder Nath Kapoor against the judgment and decree passed by the learned Additional District Judge, Kurukshetra. The third appeal has been preferred by the appellant against the decision on cross objections. I have heard Mr. Ashok Aggarwal, Sr. Advocate with Mr. Suman Jain, Advocate for the appellant, Mr. Chetan Mittal, Sr. Advocate with Mr. Vikas Garg, Advocate for the respondents and have examined the requisitioned records and preferred to dispose of these appeals on merits which are pending for the last four years. R.S.A. No. 1660 of 2005 R.S.A. No. 1941 of 2005 & -9- COCP No. 1445 of 2006 The substantial questions of law which arise in this case are as under :- 1. Whether Kartar Singh was competent to file the suit under special power of attorney dated 13.4.1992 which was given for defending some other suit? 2. Whether the sale deeds dated 17.10.1966 and 7.1.1967 allegedly executed by Kewal Krishan and Rajinder Krishan in favour of Surinder Nath Kapoor were the sham and bogus transactions and have been executed in order to avoid land ceiling laws as pleaded in the written statement by the defendant No.1? 3. Whether the suit could be decreed even if the plaintiff neither intended to appear nor actually appeared in the witness box in support of his case to own the sale deeds and claim ownership over the property particularly when the original sale deeds never saw the light of the day till the filing of the suit? 4. Whether copy of the copy of the alleged sale deeds were admissible in evidence to prove ownership without any further proof? 5. Whether the plea of adverse possession as set out by the defendant No.1 as an alternative plea could damage his plea of lessee? 6. Whether the plaintiff can be considered as owner on the basis of the copy of the copy of the sale deed which was never acted upon and whether these sale deeds were executed with an intention for conferring the absolute title upon him? 7. Whether the property could be purchased by the plaintiff in contravention with the Foreign Exchange Regulation Act, 1973? The plaintiff through his attorney Kartar Singh has claimed ownership of 165 kanals 18- ½ marls being 20/25th share of the land R.S.A. No. 1660 of 2005 R.S.A. No. 1941 of 2005 & -10- COCP No. 1445 of 2006 measuring 206 kanals 3 marlas, so also ¼ share of the land measuring 106 kanals 3 marlas i.e. 26 kanals 11 marlas situated at village Dhurala, on the basis of the attested copies of the sale deeds dated 17.10.1966 as well as 7.1.1967, having purchased the same from Kewal Krishan and Rajinder Krishan sons of late Dawarka Dass son of Diwan Chand resident of village Dhurala. Similarly, Prem Nath Khanna and his brother Pran Nath Khanna being the legal heirs of Kaushalya have claimed joint possession over 3/4th share of the land measuring 106 kanals 3 marlas and 5/25 share in the land measuring 206 kanals 3 marlas on the basis of the copies of sale deeds dated 17.10.1966 and 17.1.1967 respectively. The plaintiff and the defendant No.1 are brothers so as Kaushalya Rani is father's sister of Narinder Nath defendant No.1 (appellant). Prem Nath Khanna and Pran Nath Khanna (plaintiff in the other suit) being the sons are the legal heirs of Kaushalya Rani. The plaintiff in order to seek possession or joint possession over the suit land had to stand on his own legs and prove his case by leading best evidence in his possession. The proof of title was condition precedent to seek the possession, but the original sale deeds which ordinarily should have been in his possession and power after making the purchase thereof, did not see the light of the day for about 24-25 years since the date of their execution till filing of the suit, rather the allegation made against the defendant No.1 that sale deeds were handed over to the defendant No.1 for entering and sanctioning the mutations are not correct. Halqa Patwari has been examined in order to prove that two mutations No.905 and 906 were rejected on 1.3.1968 on the ground that they were null and void. Had the sale deeds been produced before the Patwari then he would have proved the same. No admissible document from the revenue record has been brought on record in order to establish that the sale deeds were ever handed over to the Revenue Patwari for recording entries in their favour. The court has worked on the assumption that the defendant admits the execution of the sale deeds but that is not factually correct. The condition precedent to lead secondary evidence was to prove the loss and destruction of the documents. Had the plaintiff been true owner on the basis of the aforesaid sale deeds, then certainly he must have R.S.A. No. 1660 of 2005 R.S.A. No. 1941 of 2005 & -11- COCP No. 1445 of 2006 been in possession of the said documents and would not have parted the possession and remained silent for getting return of these documents for 24- 25 years. The alleged mutation further go a long way to prove that the sale deeds were not actual and genuine documents but were documents showing sham transactions. Even after rejection of the mutation as alleged, no efforts were made by the plaintiff for making the revenue record up to date so that he could be indicated as owner therein. The plaintiff has also not stepped into the witness box to say that he is the owner of the property and having purchased the same through Narinder Nath Kapoor defendant No.1. He placed reliance only on the copies of copies of the sale deeds kept in the public record. The sale deed admittedly is not a public document, therefore, its execution needed to be proved by leading evidence. In this regard Hon'ble Division Bench of Madhya Pradesh High Court made an elaborate discussion in case Rekha vs. Smt. Ratnashree, 2006 (1) RCR (Civil) 685 and observed that the certified copy of the sale deed is not a public document merely on the assumption that it is a certified copy of the sale deed being public document and certified copy is also a public document. Similarly this Court in case Ved Parkash vs. Rattan Lal Aggarwal, 2005 (1) RCR (Civil) 366 observed as under :- “7. The argument that the certified copy of the mortgage deed is a public document being a private record kept by public authority is not sustainable in law in view of the Full Bench judgment of this Court in Gutari's case (supra). It has been held therein that what is kept in the records of the Registering Authority is a copy of the original as the original is returned to the party and, therefore, certified copy is from a copy kept in the public record and the said certified copy is made admissible in evidence in terms of the provisions of Section 57(5) of the Registration Act. In the absence of Section 57(5) of the Registration Act, certified copy of such a document would not have been admissible at all. It is held to the following effect:- “.....The explanatory paragraph to Section 65 envisages, R.S.A. No. 1660 of 2005 R.S.A. No. 1941 of 2005 & -12- COCP No. 1445 of 2006 as already observed in the earlier part of the judgment, that secondary evidence of the original documents mentioned in clauses (e) and (f) of Section 65, could be adduced only in the form of certified copies and no others. Copies of the true copies given by the Registering authority of the original documents are not certified copies of the original documents and, therefore, would not be admissible as secondary evidence of the original document. In fact, but for the provision of sub- section (5) of Section 57 of the Registration Act, such a certified copy of a true copy could not have been received in Court to prove the contents of the original document. The said provision of sub-section (5) of Section 57 was incorporated not to enact law of the kind which permitted the giving in evidence of a certified copy of the original, as envisaged by clause (f) of Section 65 of the Act, but to overcome the difficulty of non-reception in evidence of a certified copy of a true copy, the same not being certified copy of the original, which alone qualified to be called secondary evidence in terms of Section 63 of the Act.” 8. Still further, while examining the argument that each of the clauses of Section 65 of the Evidence Act has to be read disjunctively and one is not to see as to whether the requirement of any other clause or the rest of the clause is complied with or not before the secondary evidence of the kind permitted by the explanatory paragraph of Section 65 can be let in. It was held that if the other party pleads that the document is forged one, the Court could summon the original and in case the original is not forthcoming on the ground