RSA No. 3782 of 2008 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH R.S.A. No. 3782 of 2008 Date of Decision: 20.10.09 Sham Lal son of Sh. Phool Chand, resident of village Randoli, Tehsil Indri, District Karnal. ... Appellant Versus Gurdial Singh son of Late Chhabil Singh son of Darshan Singh, resident of village Randoli, Tehsil Indri, District Karnal. ...Respondent CORAM: HON'BLE MR. JUSTICE SHAM SUNDER Present: Mr. V.B. Aggarwal, Advocate, for the appellant. Mr. G.S. Kler, Advocate, for the respondent. SHAM SUNDER, J. * * * * This appeal, is directed, against the judgement and decree dated 21.10.08, rendered by the Court of District Judge, Karnal, vide which, it accepted the appeal, against the judgement and decree dated 27.10.07, rendered by the Court of Civil Judge (Junior Division), Karnal, and decreed the suit of the plaintiff. 2. The facts, in brief, are that, Gurdial Singh, plaintiff (now respondent), claimed himself to be the owner of the land, measuring 15 RSA No. 3782 of 2008 2 kanals – 6 marlas, being 1/7 share of land, measuring 107 kanals 1 marla, as fully described in the plaint. In the last week of January, 2002, the plaintiff, came to know that a sale deed dated 15.11.01 registered on 20.11.01, was shown to have been executed by him, in favour of the defendant. It was stated that he never executed the said sale deed. It was further stated that, in fact, the defendant, had only agreed, to take 10 acres of the land, belonging to the plaintiff, situated in village Titarpur, on lease, for a period of two years i.e. from Kharif 2001 to Kharif 2003 @ Rs. 10,000/- per acre, total amounting to Rs. 2,00,000/-. It was further stated that since the lease, was for a period of two years, the same was required to be got registered. It was further stated that, it was agreed, between the parties, that the amount of loan, to the tune of Rs. 96,000/-, already obtained, by the plaintiff, from the Cooperative Bank, would be deposited, by the defendant, on his behalf, before the registration of the lease deed, and the remaining lease amount, to the tune of Rs. 1,04,000/-, would be paid, to him (plaintiff), in the month of January, 2002. It was further stated that the sale deed, was the result of fraud. The defendant, was many a time, asked to cancel the forged and fabricated sale deed, but to no avail. Ultimately, a suit for declaration and permanent injunction, was filed. 3. The defendant, put in appearance, and filed written statement, wherein, he took up various objections, and contested the suit. It was pleaded that the suit, was not maintainable. It was further pleaded that the plaintiff, had no locus-standi, to file the suit. It was further pleaded that no cause of action, accrued to the plaintiff, to file RSA No. 3782 of 2008 3 the suit. It was further pleaded that the Court fee was deficient. It was further pleaded that the plaintiff, had not come to the Court, with clean hands. It was further pleaded that the plaintiff, was estopped, from filing the suit, by his own act and conduct. It was stated that the land, in dispute, was sold, to the defendant, by the plaintiff, for a valuable consideration of Rs. 2,86,857/-. It was further stated that, mutation No. 294, was also sanctioned, in this regard. It was denied that any lease deed, was to be got executed or registered, instead of the sale deed. It was further denied that, it was ever agreed, by the defendant, to pay off the loan, on behalf of the plaintiff, before getting the alleged lease deed registered. It was further stated that the plaintiff, turned dishonest, owing to increase in prices of the land. The remaining averments, were denied, being wrong. 4. On the pleadings of the parties, the following issues were struck:- (i) Whether the plaintiff is entitled to a decree of declaration with consequential relief of permanent injunction, as prayed for? OPP (ii) Whether plaintiff has no locus-standi to file and maintain the present suit? OPD (iii) Whether suit is not maintainable? OPD (iv) Whether the suit is not properly valued for the purpose of Court fee and jurisdiction? OPD (v) Whether plaintiff has not come to the Court with clean hands and has suppressed the true and material facts from the Court? OPD RSA No. 3782 of 2008 4 (vi) Whether the suit is an abuse of process of Court? OPD (vii)Whether the plaintiff has no cause of action against the defendant? OPD (viii)Whether the plaintiff is estopped from filing the suit by his own act and conduct? OPD (ix) Relief. 5. After hearing the Counsel for the parties, and, on going through the evidence, on record, the trial Court, dismissed the suit of the plaintiff. 6. Feeling aggrieved, an appeal, was preferred, by the plaintiff/respondent, which was accepted, by the Court of District Judge, Karnal, vide judgment and decree dated 21.10.08. 7. Feeling dissatisfied, the instant Regular Second Appeal, has been filed by the defendant/appellant. 8. I have heard the Counsel for the parties, and have gone through the evidence, and record of the case, carefully. 9. The following substantial question of law arises, in this appeal, for the determination of this Court:- Whether the first Appellate Court, on misreading and misapprecation of evidence, recorded perverse findings, that no legal and valid sale deed dated 15.11.01, registered on 20.11.01, was executed, by Gurdial Singh, plaintiff, in favour of Sham Lal, defendant? 10. The Counsel for the appellant, submitted that the legality and validity of the sale deed, aforesaid, was duly proved, by producing the cogent and convincing evidence. He further submitted that the trial RSA No. 3782 of 2008 5 Court, rightly held, that the execution, legality, and validity of the sale deed stood duly proved, and dismissed the suit. He further submitted that the first Appellate Court, on account of misreading and misappreciation of evidence, recorded perverse findings, that the execution, legality, and validity of the sale deed, did not stand proved. He further submitted that the judgement and decree of the first Appellate Court, being illegal, were liable to be set aside. 11. On the other hand, the Counsel for the respondent, submitted that the first Appellate Court, after due scrutiny of the evidence, came to the conclusion, that the execution, legality, and validity of the sale deed , did not stand proved. He further submitted that the judgement and decree of the first Appellate Court, do not suffer from any illegality, and are liable to be upheld. 12. After giving my thoughtful consideration, to the rival contentions, advanced by the Counsel for the parties, in my considered opinion, the appeal is liable to be accepted, for the reasons to be recorded, hereinafter. It is, no doubt, true that, this Court, in the Regular Second Appeal, cannot interfere with the findings of fact, recorded by the first Appellate Court, until and unless, it comes to the conclusion, that the same, are perverse, on account of misreading or misappreciation of evidence or ignoring a material piece of evidence. Mohan Lal, one of the attesting witnesses of the sale deed dated 15.11.01, in clear-cut terms, stated that, land measuring 15 kanals 6 marlas, was sold, by Gurdial Singh, plaintiff, in favour of Sham Lal, defendant, for a sum of Rs. 2,86,875/-. He further stated that the parties RSA No. 3782 of 2008 6 signed the sale deed, after admitting the contents of the same to be correct, whereas, he and Balwant Singh, another attesting witness, thumb marked the same. He further stated that the sale deed, was presented, before the Sub-Registrar, who again read over and explained the contents of the same, to the parties, and after admitting the same to be correct, they signed it, whereas, he and Balwant Singh, attesting witness, thumb marked the same again. Sham Lal, defendant, when appeared as DW2, also deposed, with regard to the execution of the sale deed, in his favour, by Gurdial Singh. Gurdial Singh, plaintiff, when appeared, as PW1, also admitted, that his photograph, on the sale deed, was affixed. He also admitted his signatures, on the sale deed. He also stated that he knew Mohan Lal, an attesting witness, to the sale deed. He further stated that he had obtained loan, from the bank, after mortgaging the land, in dispute. He further stated that, after obtaining the amount, from Sham Lal, he repaid the loan, and got redeemed the land. Ashok Kumar, Registration Clerk, PW2, also deposed with regard to the execution of the sale deed, copy whereof is PW2/A, by Gurdial Singh, in favour of Sham Lal. Sham Singh, Clerk, Land Mortgage Bank, Indri, appeared, as PW3, and stated that, on 20.11.01, Gurdial Singh, plaintiff, deposited a sum of Rs. 18,292/-, in one account, and Rs. 49, 766/-, in the other account. He further stated that a sum of Rs. 18,215/-, was also deposited, by Gurdial Singh, in another account of the bank. He proved receipts PW3/A to PW3/C, in this regard. From the evidence, aforesaid, it was proved, that a legal and valid sale deed, was executed, by Gurdial Singh, in favour of Sham Lal, in respect of RSA No. 3782 of 2008 7 15 kanals 6 marlas of land, for a valid consideration. The amount, aforesaid, which was deposited by Gurdial Singh, in his accounts, for repayment of loan, to the bank, was admittedly obtained, by him, from Sham Lal, defendant. There was no reason, on the part of Mohan Lal, attesting witness, and other official witnesses, to depose falsely. The defendant, also stated, that a sum of Rs. 1,01,875/-, was given, in cash, to the plaintiff, and Rs. 90,000/-, were deposited, in the bank, by the plaintiff, to repay his loan, after obtaining that amount, from him. He further stated that a sum of Rs. 95,000/-, was again paid, to Gurdial Singh. So the first Appellate Court, was wrong, in coming to the conclusion, that no sale deed, was executed by Gurdial Singh, in favour of Sham Lal. 13. The first Appellate Court, discarded the sale deed, on the grounds, that the case of the defendant, regarding the mode and manner of payment of sale consideration, was falsified, by the recitals of the sale deed; that Mohan Lal, DW1, in his cross-examination, stated that, he knew the parties, from childhood, but, he did not know, that the plaintiff, was having agricultural land, in village Tatarpur; that it was unimaginable, that a huge amount of Rs. 1,01,875/-, was paid, out of the sale consideration, by the defendant, to the plaintiff, before the petition writer; and that Mohan Lal, was an interested witness, and the recitals, with regard to the delivery of possession, in the sale deed, were wrong, as the plaintiff was only a co-sharer, in joint possession of the land, in dispute and, therefore, could not deliver possession to the defendant. It may be stated here that when the witnesses appeared, in RSA No. 3782 of 2008 8 the Court, after a number of years, it was not at all possible, for them, to remember each and every detail, and each and every event, which happened, much earlier. In view of such minor omissions, in the statements of the witnesses, in my considered opinion, the first Appellate Court, was wrong, in coming to the conclusion, that the execution, legality, and validity of the sale deed, was not proved. The first Appellate Court, was required to take into consideration, the evidence, produced by the parties, in its entirety, in its proper perspective, to come to the conclusion, as to whether, a legal and valid sale deed, was executed, by the plaintiff, in favour of the defendant, or not. The approach of the first Appellate Court, in holding, that no legal and valid sale deed, was executed, was only based on conjectures and surmises. The first Appellate Court, thus, misread the evidence, in discarding the sale deed, which was duly proved. 14. Even if, it is assumed, for the sake of arguments, that there was contradiction, in the ocular evidence, produced by the defendant, vis-a-vis the recitals, contained, in the sale deed, regarding the mode and manner, in which, the sale consideration, was paid, that hardly mattered. It is settled principle of law, that mere denial by the vendor of the receipt of consideration, acknowledged in the recitals of the deed of sale, cannot be doubted, unless it is proved to be incorrect by examining some official from the office of the Sub-Registrar. No official of the Sub-Registrar, was produced, to prove the non-payment of sale consideration, as recited in the sale deed. Even otherwise, where a sale has been completed by execution and registration of the RSA No. 3782 of 2008 9 conveyance, mere non-payment or part payment of the purchase money, does not prevent the passing of title in the property sold. The plaintiff, could, if he was so aggrieved, resort to the legal remedy, for the recovery of the balance consideration, if any. On this ground, the sale deed, could not be said to be illegal and invalid. The first Appellate Court, was wrong, in coming to the conclusion that, on account of this reason, the sale deed, was illegal and invalid. 15. No doubt, a case was set up by the plaintiff, that, under the garb of execution of the lease deed, by playing fraud, upon him, the sale deed, was got executed, from him, by the defendant. No specific particulars of fraud, were pleaded, in the plaint. Fraud, is required to be proved, in a civil case, in the same manner, in which, it is required to be proved, in a criminal case. The mere allegations, in the plaint, that fraud was committed, could not be said to be sufficient, until and unless, the same were proved, through cogent and convincing evidence. In the instant case, the signatures, on the sale deed, were admitted, by the plaintiff. It means, that he is a well educated person. It could not be expected of him, to sign a document, without going through the contents of the same. Even the contents of the sale deed, were read over and explained, to him, by the Sub Registrar. Even, at that time, he did not take any objection, that he was not executing the sale deed, but it was only a lease deed. In these circumstances, the first Appellate Court, was wrong, in coming to the conclusion, that the sale deed, was a fraudulent transaction. The judgement and decree of the first Appellate Court, being not based, on the correct reading and due appreciation of RSA No. 3782 of 2008 10 evidence, and law, on the point, suffer from illegality, and perversity, warranting the interference of this Court. The judgment and decree of the first Appellate Court, are, thus, liable to be set aside. 16. The substantial question of law, depicted above, is answered, in favour of the appellant. 17. For the reasons recorded above, the instant Regular Second Appeal, is accepted, with costs. The judgement and decree of the first Appellate Court, are set aside and the judgement and decree of the trial Court, are restored. Consequently, the suit of the plaintiff shall stand dismissed. 20.10.2009 (SHAM SUNDER) Amodh JUDGE