R.S.A. No. 440 of 2005 1 IN THE HIGH COURT OF PUNJAB & HARYANA, CHANDIGARH R.S.A. No. 440 of 2005 Date of Decision: 23.12. 2009 Sushil Kumar and others ...........Appellants Versus State of Haryana and others ..........Respondents Coram: Hon'ble Mrs. Justice Sabina Present: Mr.Amit Jain, Advocate for the appellant. Mr. Himanshu Raj,Assistant Advocate General, Haryana ** Sabina, J. Plaintiffs filed a suit for declaration and injunction . The suit of the plaintiffs was partly decreed by the Civil Judge (Junior Division) Pehowa vide judgment and decree dated 27.5.2002. Aggrieved by the same, both the parties went in appeal. Vide judgment and decree dated 23.7.2004, the appeal filed by the plaintiffs was dismissed, whereas, the appeal filed by the defendants was accepted and the suit of the plaintiffs was dismissed by the Additional District Judge, Kurukshetra. Hence, the present appeal by the plaintiffs. R.S.A. No. 440 of 2005 2 The case of the parties, as noticed by the learned Additional District Judge, in paras 2 and 3 of its judgment reads as under:- “ 2. Briefly stated the facts of the civil suit for declaration and injunction filed by the plaintiffs are that the land measuring 1K-6M pertaining to Rect.No.72, Killa No.26/1 pertaining to Khewat no.18 min,khatoni no.26 situated at Pehowa, Tehsil Pehowa, District Kurukshetra was owned and possessed by the plaintiffs and defendant No.3. It has been alleged that in the month of August, 1996 the plaintiffs proposed to raise construction over the aforesaid land and submitted the site plan to the Municipal Committee, Pehowa and deposited the development charges on 29.8.1996 and the Municipal Committee, Pehowa vide resolution no.3(9) dated 10.10.1996 sanctioned the site plan no.43 submitted by the plaintiffs and the intimation was also given to plaintiff no.1. It has been further alleged that behind the aforesaid site there was government property, which was having access from Pehowa-Guhla road and Pehowa Galedwa road. It has been further alleged that plaintiffs in view of the sanctioned site plan by the Municipal Committee, Pehowa started raising construction over their site, but defendant No.2 did not like the proposed construction in view of the fact that the same was likely to block the view of the R.S.A. No. 440 of 2005 3 government building situated on the back of the suit land. It has been further alleged that defendant no.3 Lambardar was appointed as general power of attorney by plaintiffs No. 4 and 5 and he was under the direct control of defendant No.2. It has been further alleged that defendant no.2 pressurized defendant no.3 who subsequently pressurized plaintiff no.3 and got a deed of transfer executed in favour of defendant no.1 by styling the same as gift deed in respect of two plots as shown in yellow colour in the site plan from plaintiffs no. 1 to 3 and defendant no.3 who executed the same for himself as well as for plaintiffs no.4 and 5 and thereafter the said gift deed no.1055 was got registered in the office of Sub Registrar, Pehowa on 29.10.1996. The plaintiff have challenged the said gift deed as null, void, illegal and not executed in accordance with the law and a result of undue influence and not executed out of own freewill and without any authority. The plaintiff have challenged the said gift deed dated 29.10.1996 on the ground that defendant no.3 power of attorney holder of defendants no. 4 and 5 has executed impugned gift deed despite the fact that plaintiffs no. 4 and 5 never gave authority to defendant no.1. It has been alleged that the said gift deed was not valid as the same was not attested at least by two persons as required under the law and the R.S.A. No. 440 of 2005 4 same has not been executed in accordance with Section 123 of Transfer of Property Act, 1982. It has been alleged that defendant No.2 was an employee of defendant no.1 but he was not the agent of defendant no.1 and as such he was not competent to accept the gift in favour of defendant no.1 and the said gift deed was not voluntarily executed rather the same was an act of undue influence exercised by defendant no.2 upon defendant no.3 and plaintiffs. It has been further alleged that when the construction of the plaintiffs over the suit property was in progress than the plaintiffs were threatened that the sanction accorded by Municipal Committee to raise construction would be cancelled and the land shall was acquired under the provisions of Land Acquisition Act and thus under the pressure of defendants no. 2 and 3 plaintiffs executed gift deed no.1055 dated 29.10.1996 and as such since the gift deed was not validly executed and thus the same has not divested the plaintiff from their ownership rights and defendant no.1 has not acquired any right in favour of the said gift deed. The plaintiffs have asserted their ownership as well as possessory rights in their favour as well as in favour of defendant No.3 as the suit was lying vacant at the spot. It has been further alleged that defendants No. 1 and 2 under the garb of said gift deed are planning to use the R.S.A. No. 440 of 2005 5 said plots for the purpose of ingress and egress to the government building which were situated behind the suit land and as such the defendants have not permitted the plaintiff and defendant no.3 to raise construction over the said plots under the garb of said gift deed no.1055 dated 29.10.1996. It has also been alleged that plaintiff no.2 and 3 alongwith defendant no.3 filed a civil writ petition, titled Kuldeep Chand and others versus State of Haryana bearing no.19080 of 1996 before the Hon'ble High Court for the States of Punjab & Haryana at Chandigarh, but the same was dismissed on 12.12.1996, but the dismissal of the said writ petition does not bar the filing of the present civil suit. On the aforesaid allegations, the plaintiffs have prayed for a decree of declaration that the gift deed no.1055 dated 29.10.1996 does not effect the ownership rights of the plaintiffs and defendant no.2 and the same does not vest ownership rights in favour of defendant No.1. The plaintiffs have also prayed for restraining the defendants no.1 and 2 for interfering in their possession over the disputed plots and also from raising construction over the said plots and also restraining the defendants from using the said plot shown in yellow colour in the site plan for using the same for the purpose of ingress and egress. 3.In response to the notice of the suit defendants no. 1 and R.S.A. No. 440 of 2005 6 2 appeared and filed their joint written statement. However, defendant no.3 was proceeded ex-parte vide order dated 1.5.1997. In the joint written statement filed on behalf of defendants no. 1 and 2 it has been contended in the preliminary objections that the suit of the plaintiffs was not maintainable in the present form; that the plaintiffs have no locus-standi to file the said suit; that the suit of the plaintiffs was hit by principle of resjudicata as the plaintiffs have already availed the opportunity by filing a writ petition before the Hon'ble High Court of Punjab and Haryana, Chandigarh and the same was dismissed; that the plaintiffs were estopped by filing the present suit by their own act and conduct and no cause of action had accrued to file and maintain the present suit; and that the suit was not filed under Section 80 CPC On merits, it has been contended that the description of the property was not correct. Defendants have denied the ownership of the plaintiffs and defendant no.3 over the suit property and have contended that defendant no.1 was owner in possession over he portion mentioned in para no.1 of the plaint. It has been contended that plaintiffs no. 1 to 3 and defendant no. 3 and plaintiffs no. 4 and 5 through their general power of attorney holder R.S.A. No. 440 of 2005 7 defendant no.3 had gifted away the following properties:- a) An area measuring 180 Sq.ft with dimensions North-South 10'x10', East West 17'x19' having following boundaries:- E-Galedwa roadways W-Wall of Tehsil compound N-Shop of Atma Ram etc. S-Govt. Land b) An area measuring 1190 sq.ft with dimensions North 34, South 34, East 35 having following boundaries:- E-Land of owners W-Land of Atma Ram etc., N-Tehsil compound S-Galedwa road C)An area measuring 75.25 sq.ft adjacent to plot(b) above on the corner of West South with dimensions 5 ½, 8 ½, 10 and 11 having following boundaries:- E-Plo of ownership W-Shop of Atma Ram etc. N-Wall of Tehsil compound S-Shop of Atma Ram etc. out of the land to defendant no.1 vide registered gift deed dated 29.10.11996. It has been contended that after gifting the aforementioned properties from the suit land to R.S.A. No. 440 of 2005 8 defendant no. 1 the plaintiffs and defendant no.3 were left with no right, title or interest in the suit property as defendant no.1 has become owner in possession over the said portion. Defendants have denied the deposition of development charges as alleged and it has been contended that the plaintiffs were raising construction on their own land and not on the gifted land. The defendants have denied the allegations that defendant no.3 was under the pressure and influence of defendants no. 1 and 2. It has been contended that defendant no.2 never approached defendant no.3 to influence the same or to influence the plaintiffs rather the plaintiffs and defendant no.3 out of their own freewill and consent and in order to fulfill the earnest desire of their ancestor Shri Somnath and to maintain their determination gifted the land in favour of defendants and the possession was also delivered by the plaintiffs and defendant no.3, where defendant no.1 has already raised construction of one gate. It has been contended that the said gift deed dated 29.10.1996 was duly read over and explained to the plaintiffs and the same was got duly registered in the office of Sub Registrar, Pehowa. The defendants have asserted that the said gift deed was genuine and legal and has got binding force upon the rights of the plaintiffs and defendant no.3 and others. It has been further contended that R.S.A. No. 440 of 2005 9 defendant no.3 was given powers to gift away the property through general power of attorney. It has been contended that two witnesses were present before the Sub Registrar, Pehowa and the provisions of Transfer of Property Act were not strictly applicable to Haryana, but even than the same have been duly complied with and the gift deed was not a waste paper. It has been contended that the act of defendant no.2 while accepting gift on behalf of defendant no.1 was not contrary to law and the gift deed was out come of voluntarily act and not the result of undue influence and the plaintiffs have put a false and fabricated story. The other allegations have been denied as false, frivolous, baseless and it has been prayed that the suit of the plaintiff has been dismissed as having no merit as well called by principle of resjudicata.” On the pleadings of the parties, the following issues were framed by the trial Court:- “1. Whether the plaintiffs are entitled to the relief of declaration and a consequential relief of permanent injunction as prayed for in para No.20 of the plaint?OPP 2. Whether the plaintiffs have no locus-standi to file and maintain the present suit?OPD 3.Whether the plaintiffs had filed any writ petition in the Hon'ble High Court and the same was dismissed. If so to R.S.A. No. 440 of 2005 10 what effect?OPD 4. Whether plaintiffs are estopped by their own act and conduct from filing the suit?OPD 5.Whether plaintiff has no cause of action to file and maintain the present suit?OPD 6.Whether present suit is barred for want of notice under Section 80 CPC ?OPD 7.Whether plaintiffs no. 1 to 3, defendant no.3 and plaintiffs no. 4and 5 through their general power of attorney (defendant no.3) have gifted away the properties mentioned n para no.2 of the written statement if so to what effect. 8. Relief.” Learned counsel for the appellants has submitted that the suit of the plaintiffs was liable to be decreed as the gift deed in question had not been proved to have been duly executed as the same was not attested by two witnesses in terms of requirement of Section 123 of the Transfer of Property Act, 1982 (for short 'the Act') Learned counsel for the respondents, on the other hand, has submitted that the gift deed was duly proved to have been executed by the defendants. After hearing the learned counsel for the parties, I am of the opinion that this appeal deserves to be dismissed. The controversy involved in this case is with regard to execution of gift deed dated 29.10.1986 Ex.P-3. Section 123 of the R.S.A. No. 440 of 2005 11 Act reads as under:- “Transfer how effected:- For the purpose of making a gift of immoveable property, the transfer must be effected by a registered instrument signed by or on behalf of the donor, and attested by at least two witnesses. For the purpose of making a gift of moveable property, the transfer may be effected either by a registered instrument signed as aforesaid or by delivery Such delivery may be made in the same way as goods sold may be delivered.” The said provision was extended to the State of Punjab w.e.f. 6.5.1925. Thus, a gift deed qua the immovable property is required to be effected by a registered instrument signed by or on behalf of the donor and attested by at least two witnesses. The gift deed Ex.P-3 is dated 29.10.1996 and was registered on the same day. A perusal of the gift deed reveals that although same is not signed by the witnesses on page 2 of the deed but the witnesses i.e. Urmila Kumari and Darshan Singh have duly signed the gift deed at the time of registration. Urmila Kumari, one of the attested witnesses, has been examined as DW-4 and she has deposed with regard to the due execution of the gift deed in her presence and thereafter, regarding its registration in her presence. DW-3 Rampal Singh, Tehsildar has deposed with regard to the due registration of the gift deed. DW-1 Laldhir Singh has also R.S.A. No. 440 of 2005 12 deposed with regard to the execution of the gift deed by the donees in favour of the State. The said witness had signed the gift deed on behalf of the State. As per the endorsement made on the gift deed, the same was read over to the executants by the Sub Registrar and thereafter, they had admitted the same to be correct. Thus, the said witnesses had duly proved the due execution of the gift deed. Even otherwise execution of the gift deed is not specifically denied by the plaintiffs. The case of the plaintiffs themselves is that the gift deed in question was got executed from them by the defendants by undue influence. Thus, the execution of the gift deed was admitted by the plaintiffs. The plaintiffs had failed to establish that the gift deed was a result of undue influence. A perusal of the gift deed reveals that the possession of the gifted land was handed over to the State and was accepted by the State. Keeping in view the totality of factual matrix of this case, the learned Additional Judge had rightly dismissed the suit of the plaintiffs No substantial question of law arises in this regular second appeal which would warrant interference by this Court. Accordingly, this appeal is dismissed. ( Sabina ) Judge December 23, 2009 anita