Regular Second Appeal No. 1181 of 2009 (O&M) -1- IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH Regular Second Appeal No. 1181 of 2009 (O&M) Date of decision : July 28, 2010 Sarjit and another ....Appellants versus Het Ram and another ....Respondents Coram: Hon'ble Mr. Justice L.N. Mittal Present : Mr. AK Bishnoi, Advocate, for the appellants Mr. Jaswant Jain, Advocate, for the respondents L.N. Mittal, J. (Oral) CM No. 3507.C of 2009 For reasons mentioned in the application, delay of 30 days in refiling the appeal is condoned. RSA No. 1181 of 2009 Plaintiffs Sarjit and Ram Dass alias Ram Bilas have filed the instant second appeal having remained unsuccessful in both the courts below. Defendants Het Ram and Manphool are brothers of the plaintiffs. The plaintiffs filed suit for possession of half share of 44 kanals 7 marlas and 1/3rd share of 56 kanals land alleging that registered release Regular Second Appeal No. 1181 of 2009 (O&M) -2- deed dated 25.10.2000 alleged to have been executed by the plaintiffs regarding the said suit land in favour of the defendants is illegal, null and void and based on fraud and misrepresentation. The plaintiffs alleged that parties being real brothers wanted to partition their land and on this pretext the defendants got the release deed executed claiming it to be application for partition. It was also pleaded that suit land was not ancestral property of the parties and release deed thereof could not be executed because some of the land was inherited by the plaintiffs from their uncle and some of it was inherited by plaintiffs from their father. The suit property is self acquired property of the plaintiffs and not ancestral property. There was also no basis for executing release deed when the plaintiffs have their own issues. Defendants illegally occupied the suit land and plaintiffs are, therefore, entitled to possession thereof. Defendants denied the plaint allegations and pleaded that the release deed is legal and valid and was not obtained by fraud or misrepresentation. The suit property was ancestral and defendants are now owners in possession of the suit land. Various other pleas were also raised. Learned Additional Civil Judge (Senior Division), Hisar vide judgment and decree dated 16.10.2007 dismissed the plaintiffs' suit. First appeal preferred by the plaintiffs has also been dismissed by learned Additional District Judge, Hisar vide judgment and decree dated 6.10.2008. Feeling aggrieved, the plaintiffs have preferred the instant second appeal. Learned counsel for the appellants vehemently contended that only part of the suit land was ancestral and part of it was not ancestral as the same was inherited by the plaintiffs from their uncle. Learned counsel for Regular Second Appeal No. 1181 of 2009 (O&M) -3- the appellants relied on a judgment of Division Bench of this Court in Smt. Asha Rani versus Controller of Estate Duty, 1997(4) RCR (Civil) 210 to contend that property inherited from lineal ascendant only can be termed to be ancestral property. Reference was also made to the evidence led by the parties. It was also argued that if the suit land was ancestral, the plaintiffs had no right to alienate the same as the plaintiffs' son had right therein by birth. On the other hand, learned counsel for the respondent contended that release deed in question is registered release deed and it also bears photographs of both the parties. Plaintiffs have admitted their signatures and thumb impressions on the release deed. Even Piare Lal PW1 one of the attesting witnesses of the release deed examined by the plaintiff has admitted his signatures on the release deed. I have carefully considered the rival contentions. The plaintiffs have miserably failed to prove that release deed in question has been obtained by fraud and misrepresentation on the pretext of partition application. The plaintiffs have admitted their thumb impressions and signatures on the release deed. Photographs of both the parties also appear on the release deed. In partition application photographs are not required to be affixed. The plaintiffs never pursued the alleged partition application which was to be filed. In addition to it, the release deed stands registered. It adds to the authenticity of the release deed. Plaintiff no. 2 while appearing in the witness box denied having appeared before the Sub Registrar. Piare Lal PW1 also denied having appeared before the Sub Registrar. Their statements are, thus, unreliable because both the parties Regular Second Appeal No. 1181 of 2009 (O&M) -4- and both the attesting witnesses not only attested the release deed but also appeared before the Sub Registrar at the time of registration of the release deed and affixed their thumb impressions/signatures before the Sub Registrar as well on the endorsement of registration. Piare Lal PW1 also stated that he had signed blank plain papers. However, his signatures appear on stamp papers. Moreover, it is not the case of the plaintiffs that the document on which they affixed thumb impressions/signatures had already been signed in blank by the witnesses. Both the courts below have analyzed and appreciated the evidence in proper manner and have come to concurrent finding that the release deed was not obtained by fraud and misrepresentation. The said finding is fully justified by the evidence on record and supported by cogent reasons recorded by the courts below. Consequently, the said finding cannot be said to be perverse or illegal so as to warrant interference in second appeal. No question of law much less substantial question of law arises for determination in the instant second appeal on the question of alleged fraud and misrepresentation. On the other hand, allegation of fraud even in civil case has to be proved beyond reasonable doubt like charge in a criminal case. The plaintiffs have failed to do so. As regards contention that the suit property was not ancestral and therefore, release deed could not be executed. This contention is also untenable. Admittedly part of the suit land was inherited by the plaintiffs from their own father and was therefore, ancestral and release deed qua the same could be executed. As regards part of the suit land inherited by the plaintiffs from their uncle, the same may not strictly be said to be ancestral Regular Second Appeal No. 1181 of 2009 (O&M) -5- as it was not inherited from lineal ascendant. However, nevertheless the said part of the suit land also came from paternal uncle. The plaintiffs were within their rights to execute the release deed qua the entire suit property. It is also recited in the release deed that defendants set up their claim over the suit land and the plaintiffs admitted the said claim to be correct and genuine. Thus, basis for executing release deed has also been specifically recited in the release deed and therefore, it cannot be said that the release deed was executed without any basis. The plaintiffs also cannot challenge the release deed on the ground that they were not competent to execute the release deed qua ancestral property. In fact, no such ground of challenge appears to have been pleaded in the plaint. In any event, the plaintiffs having themselves executed the release deed, cannot turn around and contend that they were not competent to do so. For the reasons recorded hereinabove, I find no merit in the instant second appeal which is accordingly dismissed. ( L.N. Mittal ) July 28, 2010 Judge 'dalbir'