RSA No.4745 of 2009 1 IN THE HIGH COURTOF PUNJAB AND HARYANA, CHANDIGARH. RSA No.4745 of 2009(O&M) Date of decision: 19.3.2010 Devinder Kumar and another .....Appellants vs. Rama Shanker Rustogi ....Respondents CORAM: HON'BLE MR.JUSTICE RAKESH KUMAR GARG. --- Present: Mr.Vikas Kumar, Advocate, for the appellants. -- Rakesh Kumar Garg,J. This is plaintiffs' regular second appeal challenging the judgment and decrees of the courts below whereby their suit for declaration to the effect that plaintiffs were co-sharers in possession on the suit property and the sale deeds in question were forged and fraudulent documents, and were not having any effect upon the rights/title of the plaintiffs with consequential relief of permanent injunction, was dismissed. As per the averments made in the suit, appellants jointly purchased the land as detailed in para 1 of the plaint vide sale deed dated 6.11.1989 from one Mohan Lal son of Amar Singh and mutation No.468 in respect of the said sale was sanctioned on 2.1.1991. It is further averred that plaintiff No.2 along with one Jitender Singh defendant No.3 (now respondent No.3) purchased jointly 507/10319 share measuring 25 kanals 7 marlas vide another sale deed dated 6.11.1989 and mutation No.467 RSA No.4745 of 2009 2 dated 2.1.1991 was sanctioned in this regard. Defendant No.2 also purchased some share out of the total holding measuring 515 kanals 19 marlas from some of the co-sharers during the said period. Thus, plaintiffs No. 1 and 2 and defendants No. 3 and 4 became co-sharers in the land of joint khewat having total area of 515 kanals 19 marlas. It was further averred that since the date of purchase plaintiffs were in possession of joint holding as co-sharers. Plaintiff No.2 left India for Canada in May 1991. Plaintiff No.1 was looking after the suit property. About six months prior to filing of the suit plaintiff No.1 approached the village Patwari for obtaining revenue record when he came to know that the said land has been transferred by way of sale deeds dated 30.12.1992 and 12.1.1993 in favaour of defendant No.1. On inquiry, it was revealed that defendant No.1 had purchased 507/10319 share vide sale deed No.7194 dated 20.12.1992 in lieu of Rs.1,26,750/- purported to be executed by the plaintiffs jointly. Similarly, defendant No.1 was shown to have purchased the land measuring 25 kanals 7 marlas vide sale deed dated 7371 dated 12.1.1993 purported to be executed by plaintiff No.2 and defendants No. 3 and 4 jointly. Mutations bearing No. 513-514 were sanctioned in favour of defendant No.1. The defendant No.1 isalso stated to have purchased the share of Chander Pal defendant No.3 in the joint holdings vide two sale deeds dated 13.1.1993 and 15.1.1993 bearing Vasika No.7294 and 7473 and two mutations bearing No.515 and 516 on the basis of the said two sale deeds were stated to be sanctioned on 31.3.1991. It is further the case of the plaintiffs that they never sold their respective shares in the joint holdings in favour of defendant No.1 nor they RSA No.4745 of 2009 3 executed any sale deed. They never thumb marked the sale deed nor appeared before the Sub Registrar, Gurgaon, neither any sale consideration was received from defendant No.1 nor possession of their share was transferred in their favour. The sale deeds were forged and fictitious documents. Plaintiff No.2 was not even in India when his share was allegedly sold to defendant No.2. The entire conspiracy has been hatched by defendants No.1,2 and 4 in collusion with each other and with their henchmen who attested the said sale deeds. It was further averred that defendant No.1 transferred the suit land in favour of defendants No.4 and 5 vide sale deeds dated 17.6.1994, 5.7.1994, 7.6.1994, 11.7.1994 and 24.5.1994. However, they were not having better title than the vendor. Plaintiffs requested defendants No. 1 to 3 to admit their claim and not to interfere in their possession over the suit land but they refused to do so which necessitated them to file the present suit. Defendant No.1 filed written statement raising various preliminary objections. On merits, it was submitted that he had purchased the land in question from the plaintiff and Chander Pal defendant vide sale deeds dated 30.12.1992 and 12.1.1993 for a valuable sale consideration. The witnesses and defendants No. 2 and 3 had identified the plaintiffs at the time of sale deeds. Even four civil suits for pre-emption were filed by other co-sharers at the time of said purchase and he had contested those suits which were partly decreed. The defendants had preferred the appeals against the judgment and decrees, which were allowed by the Ist Appellate Court. He further sold the land in question to defendant No.5. The pre-emption suits were filed against plaintiff Narender Kumar and Chander Pal. The RSA No.4745 of 2009 4 former appeared and filed written statements and even partition proceedings were filed by defendants No. 2 and 3. Therefore, it does not lie in the mouth of the plaintiff that he was not present when the sale deeds were executed. The identity of the plaintiff was disputed and it was submitted that it was not clear whether he was real Devinder or not as defendants No. 2 to 4 had identified said Devinder at the time of registration of sale deed. It was further submitted that he was bona fide purchaser of the suit property and this fact was very much within the knowledge of the plaintiff. No fraud was played upon plaintiffs No.2 and 3. Other averments made in the plaint were denied and dismissal of the suit was prayed for. Defendant No.2 filed written statement conceding the suit of the plaintiffs and defendants No.3 and 4 did not appear before the trial Court and were proceeded against ex parte. Defendants No. 5 and 6 also contested the suit. It was submitted by them that they had purchased the disputed land from defendant No.1 for a valuable consideration and a factory is running under the name and style of M/s Eastern Silk Industries Limited. It was further submitted that at the time of registration of the sale deed, the plaintiff was identified by defendants No. 3 and 4. Plaintiff and defendant No.2 executed the sale deed in favour of defendant No.1 and handed over the possession of the suit land to defendant No.1. The sale deed executed in favour of defendant Ni,.1 was legal and valid and the defendants were bona fide purchasers of the suit land. On appreciation of evidence, the trial Court dismissed the suit. Feeling aggrieved plaintiffs filed an appeal before the lower Appellate RSA No.4745 of 2009 5 Court. On re-appraisal of evidence, the lower Appellate Court upheld the findings of the trial Court concurring with its findings. Challenging the judgment and decrees of the Courts below, learned counsel for the appellant has vehemently argued that there was ample evidence on record which has entirely gone unchallenged and, therefore, the judgment and decrees of the Courts below cannot be sustained in the eyes of law. It is further argued by the learned counsel that the appellants have been non suited wholly on irrelevant considerations. The appellants have led voluminous evidence in the affirmative by examining Hand writing and finger prints etc to establish that their signatures on the alleged sale deeds were forged and there was no rebuttal to the aforesaid evidence and thus the findings of the Courts below were perverse and the following substantial questions of law arise in this appeal:- (i)As to whether the findings of the courts below concerning the legality and validity of the sale deeds dated 30.12.1992 and 12.1.1993 Ex.P3 and P4 respectively are vitiated on account of categorically evidence in the form of testimony of PW4 Devender Kumar, PW-5 Ombir Attorney of plaintiff Narender Kumar and PW3 Parveen Pahuja handwriting and finger print expert and his report Ex.PW3/1 which clearly establishes that the impugned sale deeds are forged and fabricated documents and it is the result of impersonation ? (ii) As to whether the findings recorded by the courts below on the issue No.1 and 2 with illogical reasoning can be called findings at all and the inferences drawn on basis thereof can be said to be merely based on conjectures and surmises ? (iii) As to whether the finding recorded by the courts below regarding the identity of plaintiff No.1 are vitiated having RSA No.4745 of 2009 6 been recorded in total disregard of the testimony of PW-2 Mann Singh-an official of Oriental Bank of Commerce Bhiwani and PW4 Devender Kumar ? (iv) As to whether a witness who deposes in terms of the attorney granted, such a witnes is competent witness and his statement is admissible evidence ? As to whether the statement of Power of Attorney can be read as the stastement of party ? I have heard the learned counsel for the appellants and perused the impugned judgment and decrees of the Courts below. The basic point to be decided in this case is the identity of the plaintiff. Both the Courts below have recorded a finding that the plaintiffs have failed to establish their identity. In his pleadings defendant No.1 specifically stated that there was suspicion about the identity of the plaintiff. The aforesaid contention of the defendants has not been controverted in the replication and the plaintiffs have given evasive reply. Once the identity of the plaintiff was questioned it was for him to establish his credentials beyond reasonable doubt. There is nothing on record except the statement of a bank employee to establish plaintiffs' identity. No such documents of his educational qualifications, ration card/photo identity card etc. have been placed on record. Moreover, the plaintiff No.2 never appeared in the Court. The facts with regard to the identity of appellant No.2 could have been disclosed only by him being exclusively to his knowledge and, therefore, his attorney was not competent to depose on his behalf. RSA No.4745 of 2009 7 The case of the plaintiff is that the sale deed in favour of defendant No.1 are forged and fabricated. Instead of examining the scribe and the attesting witness, hand writing and finger print expert was examined who compared the signatures of present plaintiffs with that of the signatures on the alleged sale deed to come to a conclusion that the signatures were of different persons. This testimony is of little relevance. The signatures would obviously be not of the same person when the identity of the plaintiff is not established. Though, there is no rebuttal to the evidence of the plaintiff-appellants, however, it is well settled that plaintiff has to stand on his own legs. Thus, no fault can be found with the findings of the Courts below that the plaintiff appellants have miserably failed to prove their case. In view of the above, no question of law much less substantial question of law arises in this appeal. No merit. Dismissed. March 19, 2010 (Rakesh Kumar Garg) Judge rk