In the High Court of Punjab and Haryana at Chandigarh R.S.A. No. 2717 of 2002 Date of decision: May 27, 2009 Sucha Singh ... Appellant vs. Jit Singh and another ... Respondents R.S.A. No. 2832 of 2002 Jaggo Bai ... Appellant vs. Jit Singh and another ... Respondents. Coram: Hon'ble Mr. Justice A.N. Jindal Present: Mr. Adarsh Jain, Advocate for the appellant in R.S.A. No. 2717 of 2002 Mr. Sanjiv Sharma, Advocate for the appellant in R.S.A. No. 2832 of 2002. Mr. Sandeep Jasuja, Advocate for the respondent No.1. A.N. Jindal, J This judgment of mine shall dispose of R.S.A. No. 2717 of 2002 filed by Sucha Singh appellant-defendant and R.S.A. No. 2832 of 2002 filed by Jaggo Bai appellant-defendant No.2, having arisen out of the one and the same judgment. It is pertinent to mention here that after the suit filed by Jit Singh-plaintiff was decreed, it was only Sucha Singh who preferred the appeal and not Jaggo Bai. Having not assailed the judgment before the lower appellate court, Jaggo Bai could not file the second appeal. However, the appeal of Sucha Singh was dismissed by the learned Additional District Judge, Ferozepur, vide order dated 16.1.2002, now Sucha Singh and Jaggo Bai have preferred two separate appeals. R.S.A. No. 2717 of 2002 & R.S.A. No. 2832 of 2002 -2- The controversy involved in the suit is “whether the sale deed executed by Jaggo Bai, mother of the appellant i.e. respondent No.2- defendant (herein referred as 'the defendant No.2') in favour of Jit Singh dated 27.5.1986 was wrong, illegal, null and void?” Actually Jaggo Bai defendant No.2 had executed sale deed in favour of the plaintiff on 27.5.1986 and thereafter she again sold 6 kanals 2 marlas out of her share in favour of the defendant No.1 (her own son) vide sale deed dated 12.8.1993. Therefore, the plaintiff had to file the present suit for declaration for declaring the subsequent sale deed dated 12.8.1993 as wrong, illegal, null and void in the light of the sale deed executed by the defendant No.2 in favour of the defendant No.1. The plaintiff averred that the defendant No.2 was the owner to the extent of 12 kanal 5 marlas as fully detailed in the head note of the plaint. Consequently she sold the land measuring 6 kanals 2 marlas out of the land bearing Rect. No.23, Killa No.19, Min East (4-5), 20 (8-0) to the plaintiff through registered sale deed dated 27.5.1986 and similarly on the same day, she sold the remaining ½ share measuring 6 kanals 2 marlas to Joginder Singh son of Jit Singh and as such, the defendant No.2 having sold her entire share in the joint khewat and having transferred the possession to the respective vendees, she could not again alienate 6 kanals 3 marlas out of the aforesaid land to defendant No.1 (who is her own son). As such, it was pleaded that the said sale deed was wrong, illegal, null, void, result of collusion and had no effect on the rights of the plaintiff. In his written statement Sucha Singh defendant (now appellant) while raising some preliminary objections regarding the cause of action,; court fee; estoppel and maintainability further pleaded that he was the bonafide purchaser for a valuable consideration and was in possession of the suit land in his own right. He denied if the defendant No.2 had sold the land measuring 6 kanals 2 marlas to the plaintiff vide registered sale deed and if the defendant No.2 had sold the remaining land of her share to Joginder Singh son of Jit Singh, meaning thereby that he denied both the sale deeds i.e. one in favour of Jit Singh defendant No.1 and the other in favour of Joginder Singh son of Jit Singh. R.S.A. No. 2717 of 2002 & R.S.A. No. 2832 of 2002 -3- However, the defendant No.2 in her written statement while raising some preliminary objections further submitted that the suit is false and frivolous. On facts she admitted the sale deed of the land in favour of the plaintiff as well as in favour of defendant No.1. However she denied having executed any sale deed in favour of Joginder Singh and further submitted that the sale deed in favour of Joginder Singh is result of fraud and without consideration. From the pleadings of the parties, the trial court framed the following issues :- 1. Whether the plaintiff is owner in possession of the suit land?OPP 2. Whether the defendant No.2 Jaggo Bai has not sold land measuring 6 kanals 3 marlas to Joginder Singh on 27.5.1986?OPP 3. Whether the sale deed dated 12.8.1993 is illegal and void?OPP 4. Whether suit of the plaintiff is not maintainable in its present form?OPD 5. Whether the suit of the plaintiff is bad for non-joinder of necessary parties and cause of action?OPD 6. Relief. Since the defendant No.2 had admitted having executed the sale deed in favour of Jit Singh which was challenged by the plaintiff and the execution of the sale deed has been duly proved, therefore, the trial court while holding that since Jit Singh had become the owner of the land in question vide sale deed dated 27.5.1986, therefore, the defendant No.2 could not transfer any portion of that area as the defendant No.2 was no more owner of the same. Consequently, the trial court held the plaintiff Jit Singh to the owner of the land measuring 6 kanals 2 marlas and the sale deed executed by the defendant No.2 in favour of the defendant No.1 was declared to be null and void and ineffective qua the rights of the plaintiff. Aggrieved by the said judgment, the defendant No.1 assailed the same in appeal but the lower appellate court while dismissing the appeal modified the judgment to the extent that the plaintiff being vendee of 6 R.S.A. No. 2717 of 2002 & R.S.A. No. 2832 of 2002 -4- kanals 2 marlas from a joint khata was a co-sharer in joint possession to the extent of 6 kanals 2 marlas of area on the basis of the aforesaid sale deed. Feeling aggrieved, the defendant No.1 has preferred this regular second appeal. Arguments heard. Record perused. The parties are not at variance with regard to the share of Jaggo Bai defendant No.2 in a joint Khewat and that she is owner to the extent of 122/3186 share in total land measuring 159 kanals 6 marlas which comes to 12 kanals 6 marlas. Jaggo Bai who is the mother of the appellant has not disputed the sale deed dated 27.5.1986 executed in favour of the plaintiff- respondent but while filing written statement, she had only challenged the sale deed which was executed in favour of Joginder Singh son of defendant No.1. The validity of the said sale deed is not under challenge before me. Now by way of application, at the second appellate stage, since the defendant No.2 did not assail the trial court judgment before the lower appellate court therefore, she could not file second appeal, however, it is noteworthy that she has moved an application for amendment of the written statement stating that due to the communication gap between the learned counsel for the defendant and the defendant some facts were wrongly mentioned in para No.3 and 5 of the written statement disclosing that the sale deed in favour of Joginder Singh son of defendant No.1 was fraudulent and without consideration. As a matter of fact, the defendant No.2 wanted to plead that the sale deed in favour of the respondent No.2 i.e. Jit Singh was fraudulent and the same had been obtained by taking undue advantage of the illiteracy of the defendant. She further pleaded that as the written statement filed by her was in English, therefore, she being not conversant with the English language could not comprehend the contents of the written statement In short, Jaggo Bai appellant now wants to substitute para No.3 and 5 of the written statement stating that taking the benefit of the illiteracy and physical incapacity of the defendant No.2 (Jaggo Bai), the plaintiff in connivance with his son Joginder Singh approached the defendant No.2 for purchasing the land for a consideration of Rs.5000/-. The defendant No.2 who had received the aforesaid consideration executed the sale consideration in favour of Joginder Singh son of Jit Singh but under the R.S.A. No. 2717 of 2002 & R.S.A. No. 2832 of 2002 -5- garb of the said sale deed the defendant No.2 got the thumb impression on blank papers and used the same for getting the sale deed executed in favour of the plaintiff though she had agreed to sell only ½ share of the land measuring 6 kanals 2 marlas and received a sum of Rs.5000/-, but she never executed sale deed in favour of the plaintiff. Thus, she has sought the aforesaid amendment in the written statement. The application was opposed by Jit Singh. Before I set to determine the entitlement of the defendant No.2 to get the written statement amended, it would be essential to reproduce the para No.3 and 5 of the written statement sought to be amended, which reads as under :- “3. Para No.3 of the plaint is correct and so far as it is stated that defendant No.2 sold land to the plaintiff. The particulars of the said sale deed are however, not admitted. It is wrong that the plaintiff has sold land measuring 6 kanals 3 marlas to Joginder Singh son of Jeet Singh on 27.5.1986 itself. The said sale deed in favour of Joginder Singh is itself fraudulent and without consideration. The defendant No.2 is an illiterate and rustic lady. The plaintiff took undue advantage of the above fact and seems to have obtained the thumb impression of the defendant No.1 in the guise and garb of the execution of the sale deed relating to the land measuring 6 kanals 2 marlas in favour of the plaintiff Joginder Singh son of Jeet Singh nor any consideration was passed in this regard. It is denied that the possession of the land measuring 12 kanals 5 marlas was delivered by the defendant No.2 to the plaintiff is not in possession of land comprised in Rect. No.23 kill No.3 (3- 0), 8 (3-0). 4. xxx xxx xxx 5. Para No.5 of the plaint is wrong and hence denied. The plaintiff No.2 was legally competent to sell the land and had validly sold to the defendant No.1. The answering defendant denies the making/execution of the sale deed in favour of Joginder Singh son of Jeet Singh.” R.S.A. No. 2717 of 2002 & R.S.A. No. 2832 of 2002 -6- As a matter of fact, the defendant No.2 while submitting the written statement wanted to convey that she had sold the land to Jit Singh and Joginder Singh got the sale deed executed in his favour in the garb of sale executed in favour of Jit Singh. Now by way of amendment, she seeks to withdraw her earlier admission by setting up a changed stand that she did not execute any sale deed in favour of Jit Singh but the land was sold in favour of Joginder Singh. As a matter of fact, Jaggo Bai had entered into two sale deeds, one in favour of Jit Singh plaintiff as well as his son Joginder Singh. Both the sale deeds were executed on the one and the same day for consideration. She in unequivocal words admitted the sale transaction in favour of Jit Singh in the written statement. Now she cannot be allowed to withdraw the said admission which will entirely change the whole situation and also the stand set up by the defendant No.1. Earlier the defendant No.2 while pleading the particulars of fraud stated that under the garb of the sale deed executed in favour of Jit Singh, sale deed was got executed in favour of Joginder Singh. Now she wants to submit that the sale deed was executed in favour of Joginder Singh but under the garb of the said sale deed, sale was got executed in favour of Jit Singh. This inconsistent amendment at this second appellate stage without any explanation, would amount to nothing but purely misuse of process and withdrawal of admission would not only change the nature of the particulars of the fraud but also result into serious prejudice to the defendant No.1. While looking the case from other angle, the trial court decreed the suit against the defendant No.1. She remained satisfied and did not file appeal against the judgment of the trial court. Now this regular second appeal filed by the defendant No.2 is nothing but motivated to help the appellant who is none else but her own son. She by seeking this amendment wants to support the collusive sale deed executed subsequently by her in favour of her son. As such, the application cannot be allowed at the second appellate stage. Now coming the substantial question of law which arises in the case is that “whether the sale deed executed by the defendant No.2 Jaggo Bai in favour of the defendant No.1 could vest any right, title or interest in R.S.A. No. 2717 of 2002 & R.S.A. No. 2832 of 2002 -7- him?” In this regard, it may be observed that this question of law is bound to be answered against the appellant as Jaggo Bai was no more the owner of any property which has been transferred by her on 12.8.1993 in favour of the appellant. She had already transferred the entire share in the suit land in favour of the defendant No.1 and his son Joginder Singh vide registered sale deed dated 27.5.1986. The sale deed executed by her in favour of Jit Singh has been duly admitted by her in para No.3 of the written statement. As per Section 58 of the Evidence Act, the admitted facts need not to be proved. So the admission suffered by defendant No.2 in the written statement could be used against her and the inference with regard to execution of the sale deed by Jaggo Bai in favour of the plaintiff would in favour of latter. That apart, the sale deed Ex.P-1 has been duly established on the record by the testimony of Ramesh Bawa Advocate (PW2) who was the scribe of the sale deed and also from the testimony of Surjit Singh (PW4) an attesting witness of the sale deed. Both these witnesses are quite consistent regarding the execution of sale deed and passing of consideration thereunder. Surjit Singh (PW4) has categorically testified that after scribing the sale deed, the same was presented before the Sub Registrar for attestation and after admitting the contents of the sale deed she thumb marked the same before the Sub Registrar. Again there is an endorsement of the Sub Registrar on the sale deed as proved by Anoop Singh Registration Clerk (PW3) which authenticates that the sale deed was duly executed and registered by Jaggo Bai for consideration. The matter does not end here. In Civil Suit No. 100-1 of 21.5.1998 filed by Sucha Singh and Jaggo Bai against Jit Singh (plaintiff of the present suit), the plaint Ex.PA reveals that defendant No.1 and 2 of the present suit and the plaintiff in that suit admitted about the existence of thumb impression of Jaggo Bai on the sale deed Ex.P-1. If that is the position, then the only fact remained to be proved is regarding passing of consideration which has been duly proved by Anoop Singh (PW3) so as the plaintiff. The possession of the plaintiff has already been admitted while the witnesses examined by the defendant-appellant DW-2 Puran Singh admits that Jit Singh as well the appellant got ploughed the land through R.S.A. No. 2717 of 2002 & R.S.A. No. 2832 of 2002 -8- him. From the tenor of the statement of Puran Singh (DW2), it transpires that the respondent No.1 is in possession of some land nearby the land of the appellant or respondent No.2. Even Jagtar Singh (DW3) has admitted in his cross examination that Jit Singh is in possession of some portion of the land. There is also recital in the sale deed regarding the transfer of possession, as such, from the evidence led by the plaintiffs as well as on appreciation of the evidence of the defendant, it transpires that Jaggo Bai after selling the property to the plaintiff transferred possession to him. It may further be observed that since Jaggo Bai had lost her interest in the suit land, therefore, she could not transfer a valid title in favour of the defendant No.1. Resultantly, it is observed that the judgment imparted by the lower appellate court is well founded and does not call for any interference by this Court. Consequently the substantial question of law is answered against the appellant. For the foregoing reasons, both the appeals stand dismissed. May 27, 2009 (A.N. Jindal) deepak Judge