IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. R.S.A. No.1478 of 2007 Date of Decision: 22.4.2009 Vijay Kumar. ....... Appellant through Shri Shri Sandeep Punchhi, Advocate. Versus Brij Lal. ....... Respondent through Nemo. CORAM: HON'BLE MR.JUSTICE MAHESH GROVER .... 1. Whether Reporters of Local Newspapers may be allowed to see the judgment? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? .... Mahesh Grover,J. This Regular Second Appeal is directed against the judgments and decrees dated 27.9.2003 and 30.1.2007 passed respectively by the Civil Judge (Junior Division), Sirsa (hereinafter referred to as `the trial Court') and the Additional District Judge, Sirsa (described hereinafter as ` the First Appellate Court') whereby the suit and the appeal filed by Smt.Kala Bai (since deceased) and represented by her legal representative, Vijay Kumar -appellant, were dismissed. Smt.Kala Bai had filed a suit for declaration to the effect that R.S.A.No.1478 of 2007 -2- .... she was owner in possession of a portion of the house described in the plaint and that the sale deed dated 20.10.1983 which was allegedly executed by her in favour of defendant-respondent,Brij Lal, was the result of fraud and misrepresentation and, therefore, it was not binding upon her rights and was liable to be set aside. It was pleaded that Smt.Kala Bai had become the owner in possession of the house in question by way of decree dated 20.2.1969 passed in civil suit no.186 titled “Smt.Kala Bai Versus Vijay Kumar” and that the respondent was a tenant under her since 1971. It was further pleaded that in 1983, she needed some money for the marriage of her grand-son and she approached the respondent along with her son Vijay Kumar; Om Parkash son of Magh Raj and one Ramji Lal son of Jag Ram and told him that she wanted to mortgage the suit property for a sum of Rs.10,000/-. It was averred that as a result of this, a mortgage deed was executed on 20.10.19083 in the presence of her sons Vijay Kumar and Vishva Nath. It was her case that her intention was to get a mortgage deed executed, but instead the respondent got executed a sale deed in his favour for a mere sum of Rs.10,000/-, whereas the value of the suit property was more than Rs.50,000/- at that point of time. Upon notice, the respondent appeared and contested the suit. He set up a plea that the sale deed was validly executed and that the suit was barred by time. It was pleaded that after the execution of the sale deed, he had reconstructed a double- storey building over the same and that this construction was to the knowledge of Smt.Kala Bai.. It was further pleaded R.S.A.No.1478 of 2007 -3- .... that prior thereto, previous suits had been filed by the sons and grand-son of Smt.Kala Bai pertaining to the legality of the sale deed dated 20.10.1983 and the same were dismissed. On the pleadings of the parties, the trial Court framed the following issues:- 1. Whether the plaintiff is owner and in possession of the shop in dispute, as alleged in the head note of the plaint?OPP 2. whether the sale deed dated 20.10.1983 is the result of fraud, mis-representation and concealment of facts etc. and not binding upon the plaintiff?OPP 3. Whether the suit of the plaintiff is not maintainable in the present form?OPD 4. Whether the plaintiff has concealed true and material facts from the court and has not come to the court with clean hands?OPD 5. Whether the suit is barred by the provisions of res judicata?OPD 6. Whether the plaintiff is estopped to file the present suit by her own act and conduct?OPD 7. Whether the suit has not been properly valued for the purpose of court fee and jurisdiction?OPD 8. Whether the suit is time barred?OPD 9. Whether the defendant is entitled to special costs U/S 35-A R.S.A.No.1478 of 2007 -4- .... CPC?OPD 10. Relief. The parties were afforded opportunities to lead their respective evidence. It is pertinent to mention here that during the pendency of the suit, Smt.Kala Bai expired and Vijay Kumar, her son, was brought on record as her legal representative. After appraisal of the entire evidence on record, the trial Court dismissed the suit with special costs of Rs.3000/-. In appeal, the findings of the trial Court were affirmed by the First Appellate Court. Hence, this Regular Second Appeal. Learned counsel for the appellant contended that the findings recorded by both the Courts below are erroneous as they failed to appreciate that a fraud had been perpetrated upon Smt. Kala Bai as she only intended to execute a mortgage deed for a sum of Rs.10,000/-, but instead, a sale deed was got executed. It was further contended that the value of the suit property was much more than what was reflected in the sale deed and from this, the existence of fraud should be inferred. I have thoughtfully considered the contentions of the learned counsel for the appellant and have perused the impugned judgments which reveal that prior to the filing of the present suit, Civil Suit No.1338 of 1990 titled “Naresh Kumar versus Brij Lal” was filed. Naresh Kumar was the R.S.A.No.1478 of 2007 -5- .... grand son of Smt.Kala Bai. He had impugned this very sale deed dated 20.10.1983. Exhibit D4 is the copy of the written statement which was filed by Smt.Kala Bai in that suit wherein she admitted the factum of execution of the sale deed in favour of the respondent. She even admitted that the property had been sold for Rs.40,000/- even though the sale deed reflected the consideration as Rs.10,000/-. Further, Civil Suit No.84 of 1990 was filed by Dev Dutt and Raja Ram sons of Vijay Kumar (present appellant) against Vijay Kumar, Kala Bai and Brij Lal for a similar declaration and impugning the same sale deed dated 20.10.1983. In those proceedings, no fraud was alleged. Therefore, it is apparent that the appellant had been indulging in unnecessary litigation with the respondent pertaining to the same sale deed. Even otherwise, the plea of the sale deed being executed under an erroneous impression of a mortgage deed having been executed is also to be rejected for the reason that the respondent had stated that he had reconstructed the entire house and had there been a mortgage and not a sale deed, then in such an eventuality, Smt.Kala Bai and her sons or grand-sons would not have permitted the house to come up. The findings of the Courts below on all the counts, therefore, cannot be termed to be erroneous. No other point was urged and neither any material was shown from which it could be inferred that the findings are erroneous so as to R.S.A.No.1478 of 2007 -6- .... warrant any interference in the Regular Second Appeal. No substantial question of law arises for determination by this Court and the appeal being devoid of any merit is dismissed. April 22,2009 ( Mahesh Grover ) “SCM” Judge