R.S.A.No. 505 of 2008 (O&M) 1 In the High Court of Punjab and Haryana at Chandigarh R.S.A.No. 505 of 2008 (O&M) Date of decision: 3.12.2009 Major Singh and another ......Appellants Versus Jagar Singh and another .......Respondents CORAM: HON'BLE MRS. JUSTICE SABINA Present: Mr.S.K.Singla, Advocate, for the appellants. Mr.Sachin Sharma, Advocate, for respondent No.1. Mr.M.L.Saini, Advocate, for respondent No.2. **** SABINA, J. Plaintiff Jagar Singh filed a suit for recovery of Rs.2,06,250/- ; declaration and mandatory injunction which was decreed by the Civil Judge (Sr.Divn.), Dhuri vide judgment and decree dated 17.7.2006. In appeal, filed by defendants No. 1 and 3, R.S.A.No. 505 of 2008 (O&M) 2 the said judgment and decree were upheld by the Additional District Judge, Fast Track Court, Sangrur vide judgment and decree dated 29.11.2007. Hence, the present appeal by the defendants. Brief facts of the case, as noticed by the lower appellate Court in para Nos. 3 to 5 of its judgment, are as under:- “3. Brief facts of the case of plaintiff, as pleaded in the plaint, are that the defendant No.1 borrowed a sum of Rs.1,50,000/- with interest at the rate of two percent per month on 20.1.2000 and executed a pronote and receipt. It was further averred that defendant No.1 agreed to return the amount with interest at the rate of 12- 1/2 percent per annum. It is stated that the defendant No.1 has neither returned the principal nor interest, but she has transferred her entire property in favour of defendants No.2 and 3, who are her sons by way of transfer deed dated 28.8.2002 to defeat and delay the recovery rights of the plaintiff. The plaintiff has challenged the said transfer deed as illegal, null and void. When the defendants refused to admit the claim of the plaintiff, the present suit has been filed. 4. Upon notice, the defendant No.1 appeared through counsel and filed written statement, wherein it was denied that she borrowed any amount from the plaintiff or executed any pronote and receipt. It was alleged that R.S.A.No. 505 of 2008 (O&M) 3 pronote and receipt is forged and fabricated document and without consideration. It was further pleaded that grandson of defendant No.1 Avtar Singh r/o Delhon Distt. Ludhiana, has good relations with plaintiff and plaintiff might have obtained her thumb impressions on blank pronote and receipt. It was alleged that she has sold her entire property to defendants No.2 and 3 for a consideration of Rs.21,70,000/-, which is legal and valid. It was denied that she has transferred the property to defeat and delay that recovery rights of the plaintiff. 5. Defendant No.3 also filed separate written statement, wherein it was denied that defendant No.1 ever borrowed any amount from the plaintiff or executed any pronote and receipt. Rest of the pleas of written statement filed by this defendant are the same as taken by defendant No.1 in her written statement, rather an additional plea was taken that he is a bonafide purchaser for consideration. The defendants prayed for the dismissal of the suit of plaintiff." On the pleadings of the parties, following issues were framed by the trial Court:- 1. Whether defendant has borrowed a sum of Rs.1,50,000/- and agreed to pay interest at the rate of two percent per mensem on 20.1.2000 and executed R.S.A.No. 505 of 2008 (O&M) 4 pronote and receipt in favour of the plaintiff? OPP 2. Whether the plaintiff is entitled for interest at the rate of 12-1/2 percent per annum? OPP 3. Whether the plaintiff is entitled for declaration declaring the registered sale deed No.1911 dated 28.8.2002 executed by defendant No.1 in favour of defendants No.2 and 3 regarding land measuring 51 bighas 14 biswas described in the head note of the plaint as null and void? OPP 4. Whether plaintiff is entitled for declaration that mutation sanctioned bearing No.1208 is null and void? OPP 5. Whether the sale deed executed by defendant No.1 in favour of her sons defendants No.2 and 3 with an intention to delay and defeat the recovery of plaintiff? OPP 6. Whether plaintiff is entitled for permanent injunction restraining the defendants No.2 and 3 from alienating/dispossessing the suit property? OPP 7. Whether the suit is not maintainable in the present form? OPD 8. Whether alleged pronote and receipt are forged and fictitious documents ? OPD 9. Whether no consideration passes in hand at the R.S.A.No. 505 of 2008 (O&M) 5 time of execution of pronote and receipt dated 20.1.2000? OPD 10. Whether suit of the plaintiff is under valued? OPD 11. Whether suit of the plaintiff is not properly drafted? OPD 12. Whether suit of the plaintiff is liable to be dismissed as provided u/o 6 rule 15 CPC? OPD 13. Whether plaint of the plaintiff is liable to be rejected u/o 7 rule 11 CPC on account of non affixation of proper court fee ? OPD 14. Relief. After hearing learned counsel for the parties, I am of the opinion that the present appeal deserves to be dismissed. The plaintiff had filed a suit for recovery on the basis of pronote and receipt dated 20.1.2000 and with further prayer that the transfer made by defendant No.1 in favour of her sons defendant Nos. 2 and 3 to defeat and delay the recovery rights of the plaintiff was illegal, null and void. The plaintiff, in order to prove the due execution of the pronote and receipt, examined PW-1 Maninder Pal Jindal, deed writer and PW-3 Bhag Singh. The plaintiff himself appeared in the witness box as PW-2. The said witnesses duly proved the execution of the pronote and receipt. The defendants, on the other hand, failed to establish that the pronote and receipt were a result of fraud. The argument raised by the learned counsel for the R.S.A.No. 505 of 2008 (O&M) 6 appellant that the thumb impressions of defendant No.1 had been taken on blank pronote and receipt were not substantiated by the appellant. Learned Additional District Judge in the impugned judgment has observed that in the written statement filed by the appellants, a plea had been taken that the thumb impressions of defendant No.1 might have been obtained by the grandson of Chand Kaur, whereas, in her affidavit, she deposed that Jagar Singh had obtained her thumb impressions on certain documents on the pretext of correction of entries in the khasra girdawari. However, no such complaint was ever lodged by defendant No.1 against the plaintiff to any higher authority. Thus, the thumb impressions of defendant No.1 are admitted on pronote and receipt and a presumption arises that the same were executed for consideration. The sale deed executed by defendant No.1 in favour of defendant Nos. 2 and 3 was also liable to be set aside as defendant No.1 had failed to establish that the same was executed for consideration. In these circumstances, the Courts below rightly drew the inference that the sale deed had been executed to defeat the right of the plaintiff/creditor. The Courts below, after appreciating the evidence led by the parties on record, have given a finding of fact that the pronote and receipt were duly executed by defendant No.1 in favour of the plaintiff and the sale deed executed by defendant No.1 in favour of her sons was without consideration and with a reason to defeat the right of the plaintiff. The said finding of fact arrived at by R.S.A.No. 505 of 2008 (O&M) 7 the Courts below cannot be interfered with by this Court in appeal. No substantial question of law arises in this regular second appeal. Accordingly, the same is dismissed. (SABINA) JUDGE December 03, 2009 anita