RSA No.2761 of 2011 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.2761 of 2011 (O&M) Date of decision 6.7.2011. Parwinder Singh ...... Appellant. versus Izaz Farooq ...... Respondent. Present : Mr. A.S.Jattana, Advocate for the appellant. K.C.PURI . J. This is an appeal directed by plaintiff/appellant against the judgment and decree dated 5.3.2011 passed by Shri K.C.Gupta, learned Additional District Judge, Barnala vide which the appeal preferred by the appellant against the judgment and decree dated 3.12.2010 passed by Shri Balwinder Kumar, Civil Judge (Junior Division), Barnala was dismissed. Plaintiff filed suit for declaration and permanent injunction with the pleadings that plaintiff is the owner in possession of the land mentioned in the heading of the plaint. On 8.4.2008, he was going to the bank for the said loan where on the way the defendant met him. The latter RSA No.2761 of 2011 2 disclosed the plaintiff that he has good relations with the bank officials and he would get the easy loan from the bank to him. The defendant took the plaintiff to the Liquor shop and administered alcohol upon him and told him that for obtaining loan the property has to be mortgaged. It is further averred that defendant took plaintiff to Tehsil office, Barnala, when the plaintiff was not in sound condition and under the influence of liquor. He connived with the revenue officials, scribe and witnesses got prepared sale deed by playing fraud. The plaintiff came to know about the same when defendant got the mutation sanctioned of the sale deed and defendant tried to interfere in the possession of the plaintiff. On put to notice, the defendant had filed written statement, denying the contents of the plaint. The defendant has taken legal objection regarding cause of action, locus standi and has pleaded that plaintiff has not come to the Court with clean hands. It is pleaded that plaintiff was in need of money due to which he sold his properties to the defendant on 8.4.2008 and executed sale deed. All other averments were denied. Replication to the written statement was filed in which contents of written statement were denied and that of plaint were reiterated. From the pleadings of the parties, following issues were framed :- 1. Whether the plaintiff is owner in possession of suit property ? OPP 2. Whether the sale deed bearing No.101 dated 8.4.2008 having been executed by the plaintiff in favour of defendant is illegal, null and void document and without consideration and same is liable to be set aside ?OPP 3. Whether the plaintiff is entitled to relief of declaration as prayed for ?OPP RSA No.2761 of 2011 3 4. Whether the plaintiff is entitled to relief of permanent injunction as prayed for ?OPP 5. Whether the plaintiff has no locus-standi and cause of action to file the present suit ?OPD. 6. Whether the plaintiff is estopped by his own act and conduct from filing the present suit ?OPD. 7. Whether the plaintiff has not come to the court with clean hands ? OPD 8. Relief. In order to prove the case, the plaintiff himself has appeared as PW-1. In rebuttal, defendant examined Baldev Singh DW-1, Mohd. Hussain DW-2, himself appeared as DW-3 and closed the evidence after tendering the sale deed Ex.D-3. The learned trial Court has taken issue Nos. 1 to 4 and 7 together and returned a finding upon all these issues against the plaintiff and in favour of defendant. Issue Nos. 5 and 6 were also decided against the plaintiff and consequently suit of the plaintiff was dismissed with costs. Feeling dissatisfied with the above said judgment and decree, the plaintiff preferred the First Appeal which was heard by Shri K.C.Gupta, Additional District Judge, Barnala and vide judgment dated 5.3.2011 the appeal preferred by the plaintiff was dismissed. Feeling still dissatisfied with the judgment dated 5.3.2011 passed Shri K.C.Gupta, Additional District Judge, Barnala and judgment and decree dated 3.12.2010 passed by Shri Balwinder Kumar, Civil Judge (Junior Division), Barnala, the plaintiff/appellant has preferred the present regular second appeal. RSA No.2761 of 2011 4 The plaintiff/appellant in paragraph No.12 in the grounds of appeal has mentioned that following law points have arisen for consideration in the appeal :- i) Whether sale deed is result of fraud played by the defendant upon the appellant ? ii) Whether the sale deed is in gross violation of law of contract ? iii) Whether the judgments of courts below are based against the evidence on the record of both the parties ? iv) Whether the courts below has propounded a new case for defendant in the absence of pleading by either parties? Learned counsel for the appellant has submitted that trial Court has misread and misinterpreted the evidence on the file. No sale deed was executed by the plaintiff in favour of the defendant. The said sale deed is the result of fraud played by the defendant upon the plaintiff. The plaintiff was forced to take liquor and under the influence of that liquor, the sale deed was executed. No amount of consideration has been received by the plaintiff/appellant. I have carefully considered the said submission and have gone through the records of the case. There is concurrent finding of fact recorded by both the Courts below that the plaintiff has executed the sale deed dated 8.4.2008 after receiving consideration. That being a finding of fact cannot be challenged in the regular second appeal. The defendant has been able to prove the fact that wife of plaintiff purchased another property on the same day. So, in these circumstances, it cannot be said that sale deed in question is the result of fraud or misrepresentation. Moreover, it is a civil case and it has to be RSA No.2761 of 2011 5 decided on preponderance of evidence. The plaintiff has himself appeared as his own witness whereas the defendant had examined the cogent and convincing evidence to prove the sale deed and passing of consideration. Baldev Singh DW-1 scribe and Mohd. Hussain DW-2 attesting witness of the sale deed have supported the version of the defendant besides the testimony of defendant himself. So, in these circumstances, I have no hesitation in holding that no substantial question of law has arisen in the present case. In the absence of any such question, the appeal is without any merit and the same stands dismissed. A copy of this judgment be sent to the trial Court for strict compliance. ( K.C.PURI ) JUDGE July 06, 2011 sv