RSA No.2317 of 2008 (O&M) [1] THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. R.S.A. No. 2317 of 2008 (O&M) Date of Decision: 21 - 10 - 2008 Kartar Singh ....Appellant v. Mst.Tej Kaur and others ....Respondents CORAM: HON'BLE MR.JUSTICE KANWALJIT SINGH AHLUWALIA *** Present: Mr.Jatinder Singla, Advocate for the appellant. *** KANWALJIT SINGH AHLUWALIA (ORAL) For the reasons stated in the application, delay in refiling the appeal is condoned. Bagga Singh had three sons, namely, Inder Singh, Bishan Singh and Kehar Singh. Kehar Singh was unmarried and issueless. It is averred that in 1958 Kehar Singh executed two gift deeds in favour of the plaintiff- appellant who was none else but son of Bishan Singh. Therefore, Kehar Singh was his uncle. It is averred that Inder Singh filed a suit for declaration praying that as per customs, gift deed dated 11.2.1958 would not affect his revisionary rights. After death of Kehar Singh, Inder Singh filed another suit for declaration and permanent injunction on the basis of judgment and decree dated 26.2.1959. This suit was dismissed by the Court RSA No.2317 of 2008 (O&M) [2] of Sub Judge Ist Class,Dhuri on 14.6.1971. The litigation culminated into end on 4.3.1983 when this Court decided the regular second appeal. It is stated that Inder Singh filed another suit for permanent injunction which was also dismissed by Sub Judge Ist Class, Barnala on 23.5.1986. Appeal filed was also dismissed by the Additional District Judge, Barnala on 3.1.1989. It has been averred by plaintiff Kartar Singh that defendants in collusion and connivance with each other got executed an agreement relating to family settlement dated 28.9.1992 by fraud showing the right of the plaintiff in the suit land to the extent of 1/3rd share instead of 2/3rd share. The document has been exhibited as Ex.P1. It has been further pleaded in the suit that the plaintiff learnt about the document and the fraud on 26.7.1998 when he went to Halqa Patwari to get a copy of the jamabandi. It has been stated that mutation sanctioned by the revenue authority cannot be sustained being illegal, inoperative and ineffective qua the rights of the parties. Notice of the suit was issued. Defendants filed reply to the suit. Tej Kaur defendant No.1 is daughter of Darbara Singh. Darbara Singh is brother of Kartar Singh. Mohinder Kaur is wife of Karam Singh another brother of the plaintiff. Bhola Singh is son of Karam Singh and, therefore, nephew of plaintiff Kartar Singh. In the written statement filed, a preliminary objection was taken that the plaintiff has no locus standi and no cause of action to sue. It was averred therein that partition of the land was perfectly valid and in consonance with the family settlement and mutation sanctioned. On merits, the averments made in the plaint were denied. The trial Court formulated the following issues:- “1. Whether mutation No.4896 and the partition deed dated 28.9.92 qua the suit property are ineffective, null and RSA No.2317 of 2008 (O&M) [3] void and liable to be set-aside, being result of misrepresentation and fraud? OPP. 2. Whether defendants are owners of 1/3rd share of suit property? OPP. 3. Whether plaintiff has no locus standi and cause of action to file this suit? OPD. 4. Whether plaintiff is estopped by his act and conduct from filing the suit? OPD. 5. Whether suit is bad on account of non-joinder and mis- joinder of necessary parties? OPD. 6. Whether suit is within limitation? OPP. 7. Whether this court has no jurisdiction to try this suit?OPD. 8. Whether plaintiff is entitled to declaration as prayed for?OPP. 9. Whether plaintiff is entitled to permanent injunction as prayed for? OPP. 10. Whether defendants are entitled to special costs? OPD. 11. Relief.” Plaintiff examined Chanan Singh, Assistant from the office of Kanungo. He brought the summoned record relating to agreement and family partition Ex.P1. Mehar Singh and Bhupinder Singh appeared as PW- 1 and PW-2 respectively and plaintiff himself appeared as PW-3. Mehar Singh PW-1 testified that Ex.P1 agreement of family partition was executed by all the co-sharers and he identified his signatures. He further stated that he had gone to the office of Patwari where he was called upon by Amrik Singh and others to witness the agreement. Amrik Singh witness of the plaintiff admitted that the parties had agreed to family partition. Bhupinder Singh PW-2 stated that his land adjoins to the land of the plaintiff and the parties are close relations. The plaintiff deposed in accordance with the averments made in the suit. Defendants examined Tej Kaur and she RSA No.2317 of 2008 (O&M) [4] appeared as DW-1. The trial Court held that the agreement dated 28.9.1992 is a valid document as plaintiff has admitted his thumb impressions upon the same and on the basis of same mutation was entered and the plaintiff had not challenged the mutation having been sanctioned on the basis of agreement. On the basis of mutation, presence of the plaintiff had been recorded. The following findings were recorded by the trial Court:- “......All the co-sharers entered into an agreement to partition the joint khata on 28.9.1992 Ex.P1, on the basis of which, mutation Ex.P6 was entered and sanctioned on 30.9.1992 and co-sharers entered into specific khasra numbers, vide the said mutation No.4896 in pursuance of the partition agreement dt. 28.9.1992, which is perfectly valid and legal. The plaintiff has failed to substantiate his allegations that mutation No.4896 and partition-deed dt. 28.9.1992 are void and ineffective qua his rights and the same are liable to be set aside, being the result of mis-representation and fraud and the defendants are owners to the extent of 1/3 share only in the suit land. Accordingly, Issues No.1 and 2 are found against the plaintiff.” Aggrieved against the same, plaintiff filed appeal before the Appellate Court below. The Appellate Court below not only concurred with the findings arrived at by the trial Court but also concluded that Kartar Singh plaintiff admitted execution of Ex.P1. It also took into consideration conduct of the plaintiff Kartar Singh that being signatory to Ex.P1, he slept over the matter from 28.9.1992 to 3.8.1999. Mr.Singla appearing for the appellant-plaintiff has made an attempt to dislodge the findings recorded by two Courts below and convassed that once Inder Singh had failed in the proceedings, there is no ground for the appellant-plaintiff to execute agreement/family partition RSA No.2317 of 2008 (O&M) [5] Ex.P1. Counsel for the appellant-plaintiff has further urged that execution of gift deed has been denied by the defendants and no issue on this aspect was framed by the trial Court. This arguments cannot be sustained as respondent-defendants are none else but sister and legal heirs of the brother of Kartar Singh appellant-plaintiff, whereas Inder Singh was his uncle and defendant- respondents have no concern with Inder Singh. In partition proceedings as to which land has fallen to the share of plaintiff, no averment has been made. Document Ex.P1 having been validly and legally executed cannot be questioned on the basis of probabilities. Two Courts below have held that from the attending circumstances, execution of document Ex.P1 inspires confidence. Agreement/family settlement Ex.P1 was not dependent between the gift deed. It was arrived at between the parties in their own individual capacity. In para 14 of the grounds of appeal, the appellant-plaintiff has drawn various questions to be the substantial questions of law. On facts, they fail and no importance can be attached to them. There being no substantial question of law, no interference is called for. Hence, the present appeal is dismissed. ( KANWALJIT SINGH AHLUWALIA ) October 21, 2008. JUDGE RC