Regular Second Appeal No. 3827 of 2010 -1- In the High Court of Punjab and Haryana at Chandigarh Regular Second Appeal No. 3827 of 2010(O&M) Date of Decision:September 27, 2010 Parsin Kaur ---Appellant versus Dalip Singh ad others ---Respondents Coram: HONBLE MR. JUSTICE GURDEV SINGH *** Present: Mr.S.S.Kamboj, Advocate, for the appellant *** GURDEV SINGH, J. The plaintiff-appellant, Parsin Kaur, has filed this appeal against the judgment and decree dated 22.9.2004 passed by Additional District Judge(Fast Track Court), Ferozepur, vide which he accepted the appeal filed by respondents -defendants, Dalip Singh and others, and set aside the judgment and decree dated 29.11.2001 passed by Civil Judge (Senior Division), Ferozepur, in favour of the plaintiff, to the effect that she was entitled to the possession of the land measuring 8 kanals, bearing Killa No. 24(8-0), situated in village Dona Rehmat Wala, District Ferozepur. The plaintiff filed suit for possession of the above said land on the basis of the sale deed dated 30.12.1982, executed in her favour by Sulakhan Singh and for rendition of accounts for the period of three years and for the recovery of mesne profits for the use and occupation of that Regular Second Appeal No. 3827 of 2010 -2- land by the defendants. According to her, she purchased this land from Sulakhan Singh, vide registered sale deed dated 30.12.1982 for a consideration of ` 3000/-. Though it was mentioned in the sale deed that the possession of the land has been delivered, yet the same was never delivered to her and that possession remained with the vendor till his death, which took place in the year 1989. After the death of Sulakhan Singh, the defendants came into possession of this land as his legal heirs and got sanctioned mutation in their favour on the basis of the inheritance illegally. The possession of the defendants is illegal and unauthorised and as such she is entitled to recover the mesne profits from them for the use and occupation thereof. Previously also, she filed one civil suit for the same relief, which was dismissed on the ground that the said sale deed was not valid as the same was not signed by the Sub Registrar. She filed an appeal against the judgment and decree of the trial court, in which she was allowed to withdraw the suit with permission to file a fresh suit on the same cause of action on the ground that she wanted to plead and brought on record the circumstances in which the sale deed was not signed by Sub Registrar and that the same was technical defect. The suit was contested by defendants No. 1 and 3 to 5. In their written statement, they denied the contentions of the plaintiff and pleaded that the alleged sale deed is without any consideration and is not a valid document. Sulakhan Singh never signed the same or put his thumb impression on that sale deed in the presence of the Sub Registrar. The dispute arose between the parties and Gian Singh, husband of the plaintiff, forcibly took away the alleged sale deed. No title in the suit land ever passed in favour of the plaintiff on the basis of such a sale deed. Gian Regular Second Appeal No. 3827 of 2010 -3- Singh himself got filed a criminal complaint against Rattan Singh regarding 34 kanals-01 marla of land, which included the suit land also, alleging that the sale deed in favour of Sulakhan Singh was forged and fabricated document. Sulakhan Singh remained the owner in possession of the alleged land during his life time and thereafter, they are coming in possession as owners. Therefore, they are not liable to pay any such mesne profit for the use and occupation thereof. On the pleadings of the parties, following issues were framed by the Trial Court:- 1. Whether the plaintiff is the owner of the suit land having purchased the same vide sale deed dated 30.12.1982 for the consideration of Rs. 3000/-? OPP 2. In case, issue No. 1 is proved, whether the sale deed was not got registered? If so, to what effect? OPD 3. Whether the plaintiff is entitled to the possession of the suit land? OPP 4. Whether the plaintiff is entitled to any rendition of accounts with regard to the means profits of the suit land for the period of three years as claimed in the suit? OPP 4(a) Whether the suit is within limitation? OPP 5.Relief To prove her case, plaintiff examined herself as PW-1 and examined John Alfred, HRC, PW-2 and Nirla Devi, DRK PW-3. On the other hand, defendant, Sulakhan Singh, himself appeared in the witness box as DW-2 and examined Balbir Singh, DW-1. After going through the evidence so produced on the record Regular Second Appeal No. 3827 of 2010 -4- and hearing learned counsel for both the sides, the learned Trial Court decided Issues No. 1 to 3 and 4(a) in favour of the plaintiff and resultantly decreed her suit only for the possession of the land in dispute whereas dismissing the same for the rendition of accounts and recovery of mesne profits. The defendants preferred appeal against the judgment and decree of the trial court, which was accepted, as aforesaid, and the suit of the plaintiff was dismissed. I have heard learned counsel for the plaintiff. It has been submitted by counsel for the plaintiff that the learned First Appellate Court erred while upsetting the well reasoned finding recorded by the Trial Court to the effect that the omission on the part of the Sub Registrar to put his signatures on the sale deed was on account of the fact that the same was taken away stealthily by Sulakhan Singh. It is the case of the defendants themselves, in the written statement, that the sale deed was taken away by Gian Singh, husband of the plaintiff. According to him, the following substantial question of law arises in the present appeal:- “Whether in view of the admission made by the defendants, the finding recorded by the Appellate Court that the title in the suit did not pass in favour of the plaintiff can be sustained?” The said question of law does not arise in the present appeal. The learned Appellate Court legally and validly upset the finding recorded by the trial court in view of the omission on the part of the plaintiff to plead the facts in the plaint regarding which she produced evidence to the effect that the sale deed was forcibly taken away by Sulakhan Singh before Regular Second Appeal No. 3827 of 2010 -5- the same could be signed by the Sub Registrar and the admission made by her during her cross examination, fully supports the case of the defendants. The previous suit filed by the plaintiff, in which the sale deed was held to be invalid document, was allowed to be withdrawn with liberty to file a fresh suit on the same cause of action by the Appellate Court, in view of the fact that the plaintiff wanted to plead the facts that before the sale deed could be signed by the Sub Registrar, the same was forcibly taken by Sulakhan Singh. No such plea was taken by her in the present suit, as is clear from the observations made by the learned Appellate Court in para No. 10 of its judgment. It has been discussed in para No. 11 that the plaintiff herself demolished the statement made by her during her examination-in-chief by deposing during her cross examination that the Sub Registrar had signed the sale deed on the same date when it was presented before him for registration and the original sale deed was delivered to her by the Sub Registrar after registration and that she never returned that sale deed to the Sub Registrar at any point of time. There was no such admission by the defendants, as alleged by the counsel for the plaintiff that the sale deed was got registered. When no such substantial question of law is involved, this second appeal is not maintainable and is hereby dismissed. (GURDEV SINGH) JUDGE September 27, 2010 PARAMJIT