RSA No. 3178 of 2001 1 IN THE HIGH COURT OF PUNJAB AND HARYAN AT CHANDIGARH Date of decision:23.11.2011 (I) RSA No. 3178 of 2001 Smt.Paramjit Kaur and another ... Appellants versus Bali Singh and others ... Respondents (II) RSA No. 3188 of 2001 Smt.Paramjit Kaur and another ... Appellants versus Punjab Singh and another ... Respondents CORAM: HON'BLE MR. JUSTICE JORA SINGH, J. Present: Mr.L.N.Verma, Advocate, with Mr.Ashok Verma, Advocate, for the appellants. Mr.Sanjiv Gupta, Advocate, for the respondents. ... JORA SINGH, J. By this common judgment, I propose to dispose of RSA No. 3178 of 2001 and RSA No. 3188 of 2001 preferred by Paramjit Kaur and Gurpreet Singh, who had filed suit for declaration but were unsuccessful before the trial Court. Civil Appeal No.238 of 1999 and Civil Appeal No.239 of 1999 filed against the judgment and decree dated 8.10.1999 passed by trial Court in Civil Suit No. 1120 of 1992/1995 instituted by Ajmer Singh for declaration and in Civil Suit No.1515 of 1992/1993 instituted by Punjab Singh and Hans Pal Singh for permanent injunction, RSA No. 3178 of 2001 2 respectively, were also dismissed vide judgment and decree dated 20.7.2001. Ajmer Singh filed Civil Suit No.1120 of 1992/1995 for declaration against the defendants on the allegation that parties are closely related to each other but he is the owner in possession of the property in dispute fully described in the head note of the plaint situated in the revenue estate of Village Kariwala, Tehsil Rania, District Sirsa. He never exchanged the property with his father Uttam Singh, defendant No.1. He never made any statement regarding alleged exchange nor signed or thumb marked any paper before revenue Patwari or any other revenue authorities in respect of exchange of the land in dispute. In case, there is any document regarding exchange, then the same is the result of fraud, misrepresentation and concealment of facts or fabrication by defendants No.1 and 2 in collusion with each other, who are not having cordial relations with him. In order to grab his property, they got mutation No.3106 entered and sanctioned on the basis of mutual exchange. Mutation No.3106 is liable to be set aside but on the basis of mutation No.3106, Civil Suit No.201-C of 1992 was filed by defendants No.3 and 4, minor sons of Bali Singh, his real brother, against Uttam Singh and the suit was decreed. Judgment and decree in Civil Suit No.201 of 1992 is null and void, against the law and facts, inoperative, ineffective and not binding on his rights and is liable to be set aside. On the basis of judgment and decree in Civil Suit No.201 of 1992 and the impugned mutation, the defendants threatened to take possession of the property in dispute forcibly. Bali Singh and his son Hans Pal Singh filed joint written statement. Suit for declaration filed by Ajmer Singh was contested inter RSA No. 3178 of 2001 3 alia on the ground that the suit is time barred. Plaintiff has no cause of action and locus standi to file suit for declaration. Suit was filed by concealing the true facts. On merit, admitted that Ajmer Singh is the real brother of Bali Singh. Punjab Singh and Hans Pal Singh are minor sons of Bali Singh, whereas Uttam Singh is the father of Ajmer Singh and Bali Singh. Paramjit Kaur and Gurpreet Singh are legal heirs of Ajmer Singh, who had initially filed suit for declaration. Earlier, Bali Singh was in possession of the property in dispute. Civil Suit No.1515 of 1992/1993 was instituted by Punjab Singh and Hans Pal Singh sons of Bali Singh son of Uttam Singh for permanent injunction against Ajmer Singh on the allegation that they are in possession of the property in dispute. On the basis of judgment and decree, Mutation No.3390 was sanctioned in their favour. Ajmer Singh threatened to interfere and take possession of the property in dispute forcibly. Written statement was filed and suit for permanent injunction was contested on the allegation that Ajmer Singh is owner in possession of 1/2 share in the land measuring 64 kanals bearing Khasra No.138/8-9-13- 18-23/1-23/2, 158/3-4, 138/12. Ajmer Singh is in possession of 32 kanals and remaining 32 kanals is owned and possessed by his brother Bali Singh. From the pleadings of the parties, following issues were framed in Civil Suit No.1120 of 1992/1995:- “1. Whether the plaintiff is owner in possession of land measuring 32 kanals, detailed and described in the head note of the plaint, situated at Village Kariwala, Tehsil Rania? OPP 2. Whether the mutation of exchange bearing No.3106 RSA No. 3178 of 2001 4 dated 31.12.1990 is wrong and illegal, null and void and liable to be declared so and liable to be set aside? OPP 3. Whether the judgment and decree dated 23.3.1992 passed in Civil Suit No.201-C of 1992 are wrong, illegal, null and void, against law and facts, inoperative and ineffective and not binding on the rights of the plaintiff and liable to be declared so and set aside? OPP 4. Whether the plaintiff is entitled for relief of permanent injunction, as alleged in the plaint? OPP 5. Whether the suit of the plaintiff is hopelessly time barred? OPD 6. Whether the plaintiffs have no cause of action and locus standi to file the present suit? OPD 7. Whether the suit of the plaintiff is not maintainable in the present form? OPD 8. Whether the plaintiffs have concealed the true and material facts, if so to what effect? OPD 9. Whether the defendants are entitled to special costs u/s 35-A of CPC? OPD 10. Relief.” In Civil Suit No.1515 of 1992/1993, following issues were framed:- “1. Whether the plaintiff is entitled to the relief of permanent injunction as prayed for? OPP 2. Whether suit of the plaintiff is not maintainable in the present form? OPP RSA No. 3178 of 2001 5 3. Whether plaintiff has no locus standi to file the present suit? OPD 4. Whether plaintiff is estopped to file the present suit by his own act and conduct? OPD 5. Whether the present suit is bad for non-joinder and mis- joinder of necessary parties? OPD 6. Relief.” In Civil Suit No.1120 of 1992/1995, issues No.1 to 4, 6 and 7 were decided against the appellants-plaintiff. Issues No.5, 8 and 9 were not pressed by the contesting respondents. In Civil Suit No.1515 of 1992/1993, issues No.1,2 and 3 were decided in favour of the contesting respondents. Issues No.4 and 5 were not pressed by the contesting respondents. After going through the evidence on the file, Civil Suit No.1120 of 1992/1995 filed by Ajmer Singh for declaration was dismissed, whereas Civil Suit No.1515 of 1992/1993 filed by Punjab Singh and Hans Pal Singh sons of Bali Singh for permanent injunction was decreed. Against the judgment and decree of trial Court, Civil Appeals No.238 of 1999 and 239 of 1999 preferred by the appellants were dismissed. I have heard learned counsel for the appellants, learned counsel for the contesting respondents and have gone through the evidence on the file. Learned counsel for the appellants argued that Ajmer Singh (deceased) and his brother Bali Singh were owners in joint possession of the land measuring 64 kanals in equal share but Bali Singh in collusion with Uttam Singh lodged false report No.158 (Ex.D2) dated 20.12.1990 with the RSA No. 3178 of 2001 6 revenue authorities to the effect that he along with his brother Ajmer Singh have exchanged their land measuring 64 kanals with the land measuring 27 kanals 5 marlas owned by Uttam Singh. On the basis of report (Ex.D2), Mutation No.3106 dated 31.12.1990 was got sanctioned. Ex.P-1 is the copy of mutation. After that, Bali Singh got filed Civil Suit No.201 dated 26.2.1992 through his sons qua the land measuring 64 kanals against Uttam Singh. Uttam Singh filed written statement by admitting the claim of his grand sons. Ultimately, suit was decreed within a month on 23.3.1992 in view of admission of Uttam Singh. When sons of Bali Singh threatened to take possession then Ajmer Singh filed Civil Suit No.1120 of 1992/1995 for declaration and permanent injunction. During the pendency of civil suit, respondents threatened to dispossess the appellants, then apprehending breach of peace, SDM, Ellanabad attached the property in dispute. Tehsildar was appointed as receiver and possession of the property in dispute is with the receiver. No doubt, concurrent findings by the Courts below but High Court can interfere in concurrent findings of fact based on inadmissible evidence or on wrong appreciation of evidence. Report No.158 (Ex.D2) dated 20.12.1990 was merely exhibited without formal proof. According to the respondents, report (Ex.D2) was recorded by Hardev Singh, Patwari, in the presence of Sukhdev Singh, Lambardar. Hardev Singh and Sukhdev Singh are alive but for the reasons best known to the respondents, they were not examined. Report (Ex.D2) was exhibited in the statement of Sultan Singh, Patwari, who was not present when report (Ex.D2) was lodged. In fact, he joined revenue department subsequently on 14.8.1991. Sultan Singh simply stated that according to record, Ex.D2 is the copy of report No.158 dated 20.12.1990 but question is whether report RSA No. 3178 of 2001 7 (Ex.D2) was signed or thumb marked by Ajmer singh. Sukhdev Singh, Lambardar, was the best witness to state that Ajmer Singh was known to him personally and in his presence, report (Ex.D2) was lodged. Report (Ex.D2) was signed or thumb marked by Ajmer Singh in his presence. Report (Ex.D2) is regarding exchange of land but report was not signed or thumb marked by Ajmer Singh and Uttam Singh. Respondents were to lead cogent and convincing evidence that report (Ex.D2) was got recorded by Ajmer Singh and Bali Singh in the presence of Sukhdev Singh, Lambardar. Appellants were simply to state that report (Ex.D2) is not genuine one. Respondents are claiming property in dispute on the basis of report (Ex.D2), then they are to lead evidence that actually report No.158 (Ex.D2) was got lodged by Ajmer Singh. If document is exhibited, then mere marking of a document as an exhibit does not dispense with its formal proof. Due to non- appearance of Sukhdev Singh, Lambardar, and Hardev Singh, Patwari, adverse inference is to be drawn against the respondents. No explanation why Sukhdev Singh, Lambardar, or Hardev Singh, Patwari, were not examined. Purpose to manipulate the exchange is to grab the property owned by Ajmer Singh. Ajmer Singh was the owner to the extent of 32 kanals out of 64 kanals and Bali Singh was the owner of remaining 32 kanals. There was no idea for Bali Singh to exchange of 32 kanals of land with his father Uttam Singh and ultimately get the land transferred in favour of his sons through decree. Without exchange, Bali Singh can transfer his share in favour of his sons. As per exchange, 64 kanals of land was transferred in favour of Uttam Singh, whereas Uttam Singh gave only 27 kanals 5 marlas of land. 32 kanals was given by Ajmer Singh and in exchange got only 13 kanals 12.5 marlas. No evidence on the file that the RSA No. 3178 of 2001 8 land owned by Uttam Singh measuring 27 kanals 5 marlas is more valuable than the land owned by Ajmer Singh and Bali Singh. Before revenue authorities, one affidavit (Ex.DW6/1) was submitted. Affidavit is joint of Bali Singh, Ajmer Singh and their father Uttam Singh regarding alleged exchange but affidavit is not attested one. Date and place not mentioned as to who had attested the affidavit and where. This fact is clear from the statement of Sultan Singh, Patwari, appeared as DW6. After the alleged exchange, sons of Bali Singh filed Civil Suit vide which Uttam Singh transferred the land measuring 64 kanals but judgment and decree of trial Court without registration is without any evidentiary value. Civil Court decree requires compulsory registration. Clear cut case of fraud and when the land was transferred by playing fraud, then appellants were not in a position to produce direct evidence of fraud but circumstantial evidence on the file shows that fraud was played to grab the property. Bali Singh and Uttam Singh were residing jointly and separately from Ajmer Singh. In case, Uttam Singh had the intention to transfer his property in favour of his grand sons, namely, Punjab Singh and Hans Pal Singh, sons of Bali Singh, then there was no idea to exchange land with Bali Singh but Bali Singh was introduced so as to make the exchange look plausible. In case, exchange was genuine, then after the exchange, land measuring 27 kanals 5 marlas owned by Uttam Singh should have been in possession of Ajmer Singh and Bali Singh but no documentary evidence on the file that report No.158 (Ex.D2) was signed or thumb marked by Ajmer Singh and Uttam Singh and after the report regarding exchange of property, land measuring 64 kanals owned by Ajmer Singh and Bali Singh was actually in possession of Uttam Singh and land of Uttam Singh measuring 27 kanals 5 marlas was actually RSA No. 3178 of 2001 9 in possession of Ajmer Singh and Bali Singh. When evidence on the file was not rightly appreciated by the Courts below, evidence was misread and the judgments are perverse, then while disposing of Regular Second Appeal, the High Court has the power to interfere. Learned counsel for the appellants placed reliance on the following authorities:- “1. 1999(2) PLJ 486, Ishwar Dass Jain (dead) through LRs vs. Sohan Lal (dead) by LRs; 2. 2003(2) RCR (Civil) 222, Bondar Singh and others vs. Nihal Singh; 3. 1977 PLJ54, Smt.Jaswant Kaur vs. Smt. Amrit Kaur and others; 4. AIR 1971 (SC) 1865, Sait Tarajee Khimchand and others vs. Yelamarti Satyam and others; and 5. AIR 1996 (SC) 196 (1), Bhoop Singh vs. Ram Singh Major and others.” Learned counsel for the respondents argued that Ajmer Singh and Bali Singh are the sons of Uttam Singh. Main suit for declaration was filed by Ajmer Singh. After the death of Ajmer Singh, his wife and son were impleaded and they were to lead cogent and convincing evidence on the file that report No.158 (Ex.D2) was not lodged by Ajmer Singh. Appellants could easily produce Sukhdev Singh, Lambardar, or Hardev Singh, Patwari. Report (Ex.D2) shows that the same was signed by Ajmer Singh. Appellants could easily examine an Expert for comparing the disputed signatures of Ajmer Singh on the report (Ex.D2) with his standard signatures. Oral exchange is admissible. After exchange, sons of Bali RSA No. 3178 of 2001 10 Singh filed civil suit and the same was decreed in view of admission and written statement of Uttam Singh. First Appellate Court is the fact finding Court. High Court is to interfere while disposing of Regular Second Appeal if any substantial question of law is involved. Both the Courts below rightly observed that there was exchange amongst the sons and father and on the basis of exchange, Mutation No.3106 was rightly sanctioned. Punjab Singh and Hans Pal Singh, sons of Bali Singh, are the grand sons of Uttam Singh. Uttam Singh rightly suffered decree in Civil Suit No.201 of 1992 and the decree is not required to be registered. Reliance was placed on the following authorities:- “1. 1990(1) PLR 290, Bhagwan Kaur and others vs. Ranjit Singh and another; 2. 2009(2) RCR (Civil) 254, Kulwant Singh vs. Kharaiti Lal and others; and 3. 2011(2) RCR (Civil) 246, Randhir Singh vs. Ranjit Singh.” Undisputedly, Ajmer Singh (deceased) and Bali Singh are the real sons of Uttam Singh. After the death of Ajmer Singh, his wife and son were impleaded as a party. This fact is also an admitted one that Ajmer Singh and Bali Singh owned land measuring 64 kanals bearing different khasra numbers and Uttam Singh owned land measuring 27 kanals 5 marlas bearing different khasra numbers. Case of the appellants is that Ajmer Singh (deceased) did not exchange his share, i.e., 32 kanals with the land owned by Uttam Singh. Report No.158 (Ex.D2) dated 20.12.1990 was not lodged by Ajmer Singh with the revenue Patwari. In fact, report No.158 (Ex.D2) is forged and RSA No. 3178 of 2001 11 fabricated one to grab the property of Ajmer Singh. In view of report (Ex.D2), Mutation No.3106 was sanctioned on 31.12.1990 and after mutation, sons of Bali Singh filed Civil Suit No.201 dated 26.2.1992 for declaration of ownership of land measuring 64 kanals against Uttam Singh. Uttam Singh filed written statement admitting the claim of sons of Bali Singh and ultimately, suit was decreed on 23.3.1992. Now the question is whether there was exchange amongst the sons, i.e., Ajmer Singh and Bali Singh, with their father Uttam Singh and as per exchange, Ajmer Singh and Bali Singh had exchanged their land measuring 64 kanals with the land of Uttam Singh measuring 27 kanals 5 marlas. Secondly, after Mutation No.3106, whether decree dated 23.3.1992 suffered by Uttam Singh without registration has any evidentiary value. Following substantial questions of law arise for determination in the present appeal:- “1. Whether report No.158 dated 20.12.1990 and affidavit (Ex.DW6/1) merely exhibited but not formally proved in accordance with law could be relied upon? 2. Whether mere marking of a document as an exhibit dispenses with the requirement of its formal proof? 3. Whether the onus to prove the positive that Ajmer Singh had joined Bali Singh in lodging report No.158 dated 20.12.1990 (Ex.DW5/A) with the Patwari was upon the respondents and it was not for the appellants to prove the negative that Ajmer Singh had not joined Bali Singh in lodging the said report? RSA No. 3178 of 2001 12 4. Whether report (Ex.DW5/A) of exchange creating rights in the land in dispute in favour of Uttam Singh for the first time, required compulsory registration? 5. Whether the civil Court decree (Ex.D15) dated 23.3.1992 creating rights in the land in dispute in favour of respondents No.3 and 4 for the first time was required to be compulsorily registered? 6. Whether as document requiring compulsory registration but which has not been registered can be relied upon for any purpose? 7. Whether the High Court in Second Appeal can interfere in the concurrent findings of fact based upon inadmissible evidence? 8. Whether fraud can be proved only by circumstantial evidence in the absence of direct evidence?” Civil suit for declaration filed by Ajmer Singh was dismissed, whereas civil suit for permanent injunction filed by the sons of Bali Singh against Ajmer Singh was decreed. Against the judgment and decree by the trial Court, civil appeals preferred by the appellants were dismissed. Concurrent findings of the Courts below were challenged by the appellants by preferring different Regular Second Appeals. Question is whether the High Court can interfere in concurrent findings of the Courts below. In Ishwar Dass Jain's case (supra), Hon'ble Supreme Court observed that when material or relevant evidence not considered which if considered would have led to opposite conclusion, and where a finding arrived at by Appellate Court by placing reliance of inadmissible evidence, RSA No. 3178 of 2001 13 which if omitted opposite conclusion is possible, in either situation a substantial question of law can arise. Relevant paras No.11, 12 and 13 are reproduced as under:- “11. There are two situations in which interference with findings of fact is permissible. The first one is when material or relevant evidence is not considered which, if considered would have led to an opposite conclusion. This principle has been laid down in a series of judgments of this Court in relation to section 100 CPC after the 1976 amendment. In Dilbagrai Punjabi vs. Sharad Chandra [1988 Supple. SCC 710], while dealing with a Second Appeal of 1978 decided by the Madhya Pradesh High Court on 20.8.81, L.M.Sharma, J.(as he then was) observed that: "The Court (the first appellate Court) is under a duty to examine the entire relevant evidence on record and if it refuses to consider important evidence having direct bearing on the disputed issue and the error which arises as of a magnitude that it gives birth to a substantial question of law, the High Court is fully authorised to set aside the finding. This is the situation in the present case." In that case, an admission by the defendant-tenant in the reply notice in regard to the plaintiff's title and the description of the plaintiff as `owner' of the property signed by the defendant were not considered by the first appellate Court while holding that the plaintiff had not proved his title. The RSA No. 3178 of 2001 14 High Court interfered with the finding on the ground of non- consideration of vital evidence and this Court affirmed the said decision. That was upheld. In Jagdish Singh vs. Nathu Singh 1992 (1) SCC 647, with reference to a Second Appeal of 1978 disposed of on 5.4.1991. Venkatachaliah, J. (as he then was) held: "where the findings by the Court of facts is vitiated by non-consideration of relevant evidence or by an essentially erroneous approach to the matter, the High Court is not precluded from recording proper findings." Again in Sundra Naicka Vadiyar vs. Ramaswami Ayyar 1995 Suppl. (4) SCC 534, it was held that where certain vital documents for deciding the question of possession were ignored - such as a compromise, an order of the revenue Court - reliance on oral evidence was unjustified. In yet another case in Mehrunissa vs. Visham Kumari 1998 (2) SCC 295 arising out of Second appeal of 1988 decided on 15.1.1996, it was held by Venkataswami, J. that a finding arrived at by ignoring the second notice issued by the landlady and without noticing that the suit was not based on earlier notices, was vitiated and the High Court could interfere with such a finding. This was in Second Appeal of 1988 decided on 15.1.1996. 12. The second situation in which interference with findings of fact is permissible is where a finding has been arrived at by the appellate Court by placing reliance on RSA No. 3178 of 2001 15 inadmissible evidence which if it was omitted, an opposite conclusion was possible. In Sri Chand Gupta vs. Gulzar Singh 1992 (1) SCC 143, it was held that the High Court was right in interfering in Second Appeal where the lower appellate Court relied upon an admission of a third party treating it as binding on the defendant. The admission was inadmissible as against the defendant. This was also a Second Appeal of 1981 disposed of on 24.9.1985. 13. In either of the above situations, a substantial question of law can arise. The substantial question of law that arises for consideration in this appeal is "whether the courts below had failed to consider vital pieces of evidence and whether the Courts relied upon inadmissible evidence while arriving at the conclusion that the mortgage was sham and that there was no relationship between the plaintiff and the defendant as mortgagor and mortgagee but the real relationship was as landlord and tenant? Point 1 is decided accordingly.” In Bonder Singh and others' case (supra), Hon'ble Supreme observed that when findings of the subordinates courts on facts are contrary to the evidence on record and suffer from perversity, the High Court in second appeal cannot shut its eyes and such findings can be set aside in appeal under Section 100 CPC. Relevant para No.4 is reproduced as under:- “4. Before we proceed further it is necessary to notice a preliminary argument raised by the learned counsel for the appellants. It was contended that the question of possession is a question of fact and the High Court while exercising power RSA No. 3178 of 2001 16 under Section 100 of the Code of Civil Procedure, had no jurisdiction to upset the findings on this question recorded by the lower Appellate Court. An appeal under Section 100 CPC can be entertained by the High Court only on a substantial question of law. There can be no quarrel