RSA No.185 of 1983 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.185 of 1983 Date of decision: 23.5.2008 Mohan Singh ......Appellant Versus Mohinder Singh ......Respondent CORAM:- HON'BLE MR.JUSTICE RAKESH KUMAR GARG * * * Present: Mr. Sarwan Singh, Sr. Advocate with Mr. Anil Kshetarpal, Advocate for the appellant. Mr. D.S. Bali, Sr. Advocate with Mr.Sagar Deswal, Advocate for the respondent. Rakesh Kumar Garg, J. 1. The plaintiff-appellant has filed the instant regular second appeal challenging the judgements and decrees dated 26.8.1980 and 23.10.1982 passed by Sh. N.C. Prashar, Subordinate Judge IInd Class, Patti and Sh. K.C. Diwan, Additional District Judge, Amritsar respectively, whereby the suit for exclusive possession by way of partition of joint land measuring 106 Kanals 9 marlas situated in Village Sur Singh has been dismissed. 2. The plaintiff instituted a suit on 28.12.1978 alleging in the plaint that he and the defendant are the joint owners of land in dispute as it was purchased by both of them from its original owner. According to the plaintiff, Mohinder Singh-defendant got a fraudulent and fictitious sale deed executed from one Jarnail Singh s/o Ujjagar Singh by impersonation and posing himself as Mohan Singh plaintiff on 28.12.1967. It is asserted by the plaintiff that he never executed any such sale deed and for that reason the sale deed in question did not create any right, title or interest in favour of the defendant and the plaintiff was not divested with his proprietary RSA No.185 of 1983 2 rights in the suit land to the extent of half share therein. The plaintiff has further averred in the plaint that he came to know about conspiracy between the defendant and his father-in-law (fictitious vendor namely Jarnail Singh s/o Ujjagar Singh) and the other attesting witnesses and lodged an FIR on 31.12.1971 as a result of which Jarnail Singh and Mota Singh s/o Uttam Singh and Mohinder Singh-defendants were challaned, convicted and sentenced by the Court of Chief Judicial Magistrate, Amritsar, on 10.10.1977 under Sections 419,420,467,468,471 IPC. It is claimed by the plaintiff that he still remains the owner of the half share of the suit land as he never executed any sale deed in favour of the defendant and for that reason, the decree for exclusive possession by way of partition be passed in his favour in the present suit. 3. The defendant-respondent filed written statement taking up preliminary objections that the suit is beyond limitation and for that reason, it is liable to be dismissed. Apart from taking various legal objections, it was also pleaded by the defendant-respondent that the plaintiff himself had executed the sale deed in question in favour of the defendant and that the allegations made in the plaint are incorrect and, therefore, the suit is liable to be dismissed. The plaintiff-appellant filed replication thereby denying the pleas taken in the written statement as incorrect and reiterated those of the plaint. The Subordinate Judge, Patti, framed the following issues out of the pleadings of the parties:- “1. Whether the suit is in limitation? OPP 2. Whether the suit is not triable by the civil court? OPD 3. Whether the suit is properly valued for the purposes of court fee and jurisdiction?OPP 4. Whether the plaintiff is estopped by his conduct from filing the present suit?OPD RSA No.185 of 1983 3 5. Whether defendant has purchased the suit land from the plaintiff, if so, its effect? OPD 6. Relief?” 4. The Trial Court held the suit of the appellant barred by limitation observing that the case of the plaintiff revolves around the fact that the sale deed Ex.D-1 allegedly got executed by the defendant fictitiously on 28.12.1967 and he came to know about the same on 31.12.1971 when the defendant obtained illegal possession of land of the plaintiff and lodged FIR against the defendant and the other co-accused. For that reason the plaintiff can at the most claim that he came to know about this fraud on 31.12.1971 and counting the period of three years,from that date, the suit could at the most be filed by the plaintiff on or before 31.12.1974 and not afterwards, whereas the present suit was filed in the Court on 28.12.1978. Issues No.2 to 4 were not pressed by the counsel for the defendant. Under issue No.5, the trial Court after appreciating the evidence on record held that the sale deed Ex.D-1 has been got proved by the defendant as per requirement of Section 68 of Indian Evidence Act and, therefore, the suit land was purchased by the defendant from the plaintiff vide sale deed dated 27.12.1967 and, thus, he has become its owner. Accordingly, the suit of the plaintiff was dismissed. 5. Before the First Appellate Court , the plaintiff-appellant made an application under Order 18 Rule 17 and 17A of CPC for recalling two attesting witnesses of alleged sale deed Ex.D-1 namely Mota Singh s/o Jowala Singh and Mota Singh s/o Uttam Singh for further cross- examination or as additional evidence. It was alleged in the application that evidence was led by the parties on issue No.5 and the plaintiff had examined Mota Singh s/o Uttam Singh one of the attesting witnesses as PW-3. The said witness was declared hostile and was allowed to be cross-examined by the plaintiff. It was also alleged in the application that RSA No.185 of 1983 4 two attesting witnesses of the sale deed had made statements before SDO (Civil) Patti and proved as Ex.P-4 and Ex.PW9/1 and Mota Singh s/o Uttam Singh examined as PW-3 was also examined in the Court of Judicial Magistrate 1st Class on 24.5.1972 and made his statement which is proved as Ex.P-5. It was alleged that during trial of the suit, the said two witnesses made inconsistent statements but inadvertently the previous statements of the witnesses were not put to them to contradict on material particulars. Thus, it was prayed that the two attesting witnesses PW-3 and DW-5 be recalled and be allowed to be cross-examined by this Court or case may be remanded to the trial Court for allowing the plaintiff to cross-examine them. The said application was opposed by the defendant-respondent and was ultimately rejected by the Lower Appellate Court. 6. The Lower Appellate Court vide impugned judgement and decree confirmed the findings of the trial Court and dismissed the appeal filed by the plaintiff-appellant. Hence, this appeal. 7. The judgements and decrees of the Courts below have been challenged by the counsel for the appellant Sh. Sarwan Singh, Sr. Advocate, who seeks to raise the following substantial questions of law: 1. What is the limitation for filing a suit for possession by way of partition based upon title? 2. Whether a document or deed based on fraud/forgery is required to be just ignored and need not be set aside? 3. Whether the judgements of the courts below are based upon non-reading and non- appreciation of evidence of material evidence available on record? 4. Whether the judgement of conviction passed inter-parties on the same cause of action RSA No.185 of 1983 5 in a criminal case has evidentiary value before the Civil Court in suit based on same cause of action? 8. Sh. Sarwan Singh, learned Sr. Advocate assisted by Mr. Anil Kshetarpal , Advocate appearing for the appellant has vehemently argued that the Courts below have erred in law because the suit of the plaintiff- appellant is based on title and, as such, it falls within the provisions of Article 65 of the Indian Limitation Act, so the suit was within time. The learned Senior Advocate has also argued that a document based on fraud is required to be just ignored and there is no need to challenge the same, therefore, the suit filed by the plaintiff in the present form was very well maintainable. The learned counsel has also challenged the correctness of the findings of the Courts below on issue No.5 by arguing that document Ex.D-1 has not been proved in accordance with law and the Courts below have passed the judgements by ignoring the material evidence available on record. In support of this argument, learned counsel has referred to the statements of the plaintiff-appellant Santokh Singh, PW-5 and R.S. Bal, PW-6, two handwriting expert witnesses and the previous statements of the attesting witnesses made before SDO(Civil), Patti (Ex.P-4 and PW9/1 and Judicial Magistrate 1st Class on 24.5.1972 (Ex.P-5) and has, thus, prayed for the acceptance of the appeal and setting aside of the judgements and decrees of the Courts below and decreeing the suit of the plaintiff-appellant. In support of the arguments, the learned Senior counsel has placed reliance on a judgment of the Hon’ble Surpeme Court cited as Vijay Shekhar and another v. Union of India and others 2004(3) RCR (Criminal) 320, to contend that a fraudulent act cannot be allowed to stand and any action taken pursuant to the said fraud gets vitiated. Learned counsel has also relied upon the jugement reported as Indira v. Arumugam and others 1998(2) PLJ 109, Ibrahim v. Shrifan 1979 (2) RSA No.185 of 1983 6 PLJ 469, Pavan Kumar and another v. K. Gopalakrishna and another AIR 1998 Andhra Pradesh 247 and State of Maharashtra v. Pravin Jethalal Kamdar AIR 2000 SC 1099. 9. On the other hand, Mr. D.S. Bali, Sr. Advocate assisted by Mr. Sagar Deswal, Advocate has strongly supported the judgements of the Courts below and argued that the suit filed by the plaintiff-appellant is essentially a suit for possession of property on the ground that the sale deed Ex.D-1 was not executed by him and therefore, the question of limitation would depend on the decision of the question whether sale deed in dispute was a sham transaction. He has argued that in the present case document Ex.D-1 has been proved in accordance with law and has been held to be genuine. It has been further argued by the counsel for the respondent that the present suit is regulated by Article 56 of the Limitation Act, 1963 and the suit for possession simplicitor on the basis of title without challenging the sale deed Ex.D-1 is not maintainable and, therefore, the present suit is liable to be dismissed. Learned counsel for the respondent has further argued that the Courts below have given a concurrent finding on issue No.5 regarding the execution of the sale deed Ex.D-1 after appreciating the evidence on record and, therefore, no fault can be found in the said findings of the Courts below. Moreover, the previous statements of the attesting witnesses of the sale deed Ex.D-1 are of no use to the plaintiff-appellant as the same were not put to witnesses at the time of their examination before the trial Court. 10. I have heard learned counsel for the parties and perused the records with their help. 11. Undisputedly, the plaintiff-appellant has filed the present suit for possession by partition of joint land alleging therein that the defendant has got executed a sale deed dated 28.12.1967 Ex.D-1 by fraud and impersonation and the appellant has never executed the said sale deed RSA No.185 of 1983 7 and, therefore, he was not divested of his proprietary rights in the land in suit to the extent of half share. The appellant has also stated that he came to know about this alleged act of fraud/conspiracy on 31.12.1971 when he lodged an FIR for the commission of said fraud/conspiracy by the respondent and others. It is also undisputed that the plaintiff-appellant has not sought, any declaration to the effect that the said sale deed is not binding upon him, or as regards cancellation of the said sale deed. The contention raised by the counsel for the appellant is to the effect that since the document Ex.D-1 is an act of fraud and is void ab initio, therefore, the said document is required to be just ignored and the same does not divest him from any title. In my view, the argument raised by the appellant is misconceived. In the present case, the respondent is in possession of the land in dispute as owner, may be on the basis of sale deed Ex.D-1 which is alleged by the plaintiff-appellant to be a fictitious document. Thus, the title of the plaintiff-appellant in the present suit itself is under cloud and, therefore, unless he seeks a cancellation of the said sale deed, he cannot establish his title over the suit property and his suit for possession cannot be decreed. It may further be pointed out that for getting such a document declared as null and void, Article 56 would be applicable, which provides limitation of three years only for filing a suit to get an instrument or document declared to be void. 12. The reliance of the counsel for the appellant on the judgements cited by him is misplaced. There is no dispute with the proposition of law as laid down by Hon’ble Supreme Court of India in the case of Vijay Shekhar and another (supra) to the effect that any action on the basis of fraud cannot be allowed to stand. However, in the present case, this is a mere assertion of the appellant that document Ex.D-1 is an act of fraud whereas both the Courts below after appreciation of evidence have found that the said document has been executed in favour of the RSA No.185 of 1983 8 defendant-respondent in accordance with law. Similarly, the Lahore High Court in the case of Mt. Basant Kaur v. Ram Singh AIR 1939 Lahore 544 has held that where the allegation in a suit for possession of property on the ground that its sale was a sham transaction, are correct, the suit for possession of the property in dispute must be governed by Article 144 and not by Article 91 of the Limitation Act, 1908 whereas in the present case this is not the situation and the Courts below have found it otherwise to the effect that the execution of sale deed is genuine. 13. Similarly, the reliance of the appellant upon the judgement of this Court in the case of Ibrahim v. Sharifan (supra) is misplaced. In that case the plaintiff continued to be in possession of the entire property even after the sanction of the mutation in the name of defendant and no cloud was cast on the title of the plaintiff by mere entry of a mutation in the name of the defendant and further there was no proof on record to show that by any act or assertion of the defendant, the right of the plaintiff was ever acutally jeopardized and it was only in the year 1969 that the defendant tried to assert her right and interfere with the possession of the plaintiff and in that situation it was held that mere entry of a mutation in the name of the defendant would not furnish any cause of action to the plaintiff and the suit filed by the plaintiff was held to be within limitation, whereas in the present case it is the case of the plaintiff-appellant himself that the possession was taken from him by the defendant illegally on the date of lodging of FIR, i.e., 31.12.1971. 14. The reliance of the appellant on the judgement of Hon’ble Andhra Pradesh High Court in the case of Pavan Kumar and another (supra) is also misplaced. In that case, 'the suit is essentially and preliminarily a suit for possession based on title' and there was practically no controversy as to the title of plaintiff. The relevant paragraph of the judgement is reproduced: RSA No.185 of 1983 9 “The suit is essentially and primarily a suit for possession based on title. The mere fact that the declaration of title is also sought for therein does not bring it within Article 58 or 113 so as to attract the three years period of limitation, as observed by the learned single Judge. There is practically no controversy as to title for the simple reason that the defendants recognise the plaintiff as the predecessor-in-title and it is the specific case of the defendants that the plaintiff sold the property to Choudary Rajanna, who in turn effected the sale to them. As already noticed, the sale by Gopal Krishna to Choudary Rajanna was disbelieved by the trial Court. Under these circumstances, as far as the title of the plaintiff is concerned, there could hardly be any controversy that a formal declaration of title from the Court was sought for, may be by way of caution. Realising the difficulty in pursuing the argument as regards inapplicability of Article 65, the learned counsel for the appellants has chosen the obvious course of highlighting the alternative argument that even if Article 65 applies, the suit is barred.” 15. The judgement reported as State of Maharashtra v. Pravin Jethalal Kamdar AIR 2000 SC 1099 is also of no help to the appellant. In that case, possession was taken under a void document and relief of declaration was also sought with recovery of possession and, therefore, the Hon'ble Supreme Court held that the suit will be governed by Article 65 and not Article 58. In the present case, the plaintiff-appellant has not sought any relief of declaration regarding his title. Moreover, in the present case, RSA No.185 of 1983 10 the document Ex.D-1, has been held to be genuine. Thus, in these circumstances, I find no force in the contentions raised by the counsel for the appellant to show that the present case is governed by Article 65 of the Act and not Article 56 of the Limitation Act. 16. The argument of the learned counsel for the appellant to the effect that the Courts below have erred while ignoring the fact that a criminal Court has already convicted the respondent and other co-accused for the offences under Sections 419,420,467,468,471 of IPC and, therefore, on the basis of these findings of the criminal Court, his suit is liable to be decreed. It is well settled that the standard of proof required in the two proceedings is entirely different. Civil cases are decided on the basis of preponderance of evidence while in a criminal case the entire burden lies on the prosecution and proof beyond reasonable doubt has to be given. There is neither any statutory provision nor any legal principle that the findings recorded in one proceeding may be treated as final or binding in the other, as both the cases have to be decided on the basis of the evidence adduced therein. 17. The next contention of the counsel for the appellant challenging the findings of the Courts below on issue No.5 is also without force. Both the Courts below have given a concurrent findings of fact by appreciating the evidence on record to the effect that the sale deed Ex.D-1 was executed by the plaintiff-appellant. Mota Singh s/o Uttam Singh one of the attesting witnesses of the sale deed was produced as DW-3 by the plaintiff-appellant himself. However, the said witness in stead of supporting the claim of the appellant proved the sale deed and has stated that Mohan Singh has signed the sale deed in his presence and it was again signed by him before the Sub Registrar. In spite of the fact that said Mota Singh witness was declared hostile, nothing could be extracted from this witness given in the cross-examination. Moreover, the previous statements made RSA No.185 of 1983 11 by him before the revenue Authorities and Judicial Magistrate, Patti, were not put to him and he was never confronted with those statements and, therefore, the appellant cannot take advantage of the same. Even his application for recalling the witnesses for leading additional evidence was dismissed by the first Appellate Court and the same was not challenged by the appellant. Even before me in this appeal, no challenge has been made by the appellant in this regard. No doubt, the plaintiff-appellant examined Santokh Singh, Assistant Government Examiner and R.S. Bal, Handwriting and Fingerprint Expert as PW-6 on the questioned document and both these witnesses gave the opinion that the signatures of Mohan Singh as vendor on the original Ex.D-1 do not tally with the specimen signatures of Mohan Singh taken in the Court, is not of much assistance to the plaintiff-appellant because admittedly the sale deed was executed as far back as on 28.12.1967 and the expert evidence was produced in Court only on 24.2.1977. Even the plaintiff-appellant in his examination-in-chief has not stated that he never signed the alleged sale deed. 18. No other point has been raised. 19. In view of the above discussion, I find that no substantial question of law arises in the present appeal and the same is liable to be dismissed. 20. Ordered accordingly. May 23, 2008 (RAKESH KUMAR GARG) ps JUDGE