R.S.A. No. 2076 of 2009 1 IN THE PUNJAB AND HARYANA HIGH COURT AT CHANDIGARH C.M. No. 6170-C of 2009 and R.S.A. No. 2076 of 2009 Date of Decision : 20.5.2009 Gurdial Singh .......... Appellant Versus Smt. VarshaRani & another ...... Respondents CORAM : HON'BLE MR. JUSTICE VINOD K. SHARMA Present : Mr. Ashok Sehgal, Advocate for the appellant. **** VINOD K. SHARMA, J. (ORAL) This regular second appeal is directed against the judgment and decree dated 5.2.2009 passed by the learned Courts below vide which suit for declaration filed by the plaintiff / appellant stands dismissed. The plaintiff brought a suit on the allegations that he was owner in possession of land measuring 2K-9M being 1/8th share out of the land situated at village Rupo Majra, as detailed and described in the head-note of the plaint. He challenged the sale deed dated 7.4.1995, to be null and void, ineffective, inoperative qua the right, title or interest of the plaintiff being a result of fraud, misrepresentation, undue influence and coercion exercised upon him by the defendants, with a consequential relief of permanent injunction restraining the defendants from interfering in his possession over the suit land in any manner. R.S.A. No. 2076 of 2009 2 It was pleaded that by using undue influence the defendants had compelled the plaintiff to enter into an agreement to sell his share in the suit land in their favour. The suit land was agreed to be sold @ Rs. 180/- per square yard and a sum of Rs. 20,000/- was paid as earnest money. It was pleaded that the remaining amount was promised to be paid before the Sub Registrar at the time of registration of the sale deed. The sale deed was agreed to be registered on 7.4.1995. The defendants did not make balance payment to the plaintiff / appellant upto 31.3.1995 by keeping him under the influence of liquor. He was not even allowed to meet his family members. He was brought to the Court compound on 7.4.1995 and his signatures were taken on some papers when he was under the influence of alcohol. He was thereafter again taken to Court compound and his signatures and photographs were obtained and he was allowed to go to his house after a week only after making payment of Rs. 16,000/-. The case of the plaintiff / appellant was that in the Panchayat the defendants agreed to pay the balance amount in terms of the agreement dated 31.3.1995. However, no such payment was made. The plea was also raised that the property being ancestral property in his hands, he was not competent to alienate it without legal necessity. The sale deed dated 10.4.1995 was claimed to be null and void, ineffective and not binding on him and his family members. The suit was contested by raising number of preliminary objections. On merit, it was denied that the sale deed was got executed by the plaintiff under undue coercion or fraud. The property was said to have been purchased for a valuable consideration of Rs. 36,000/- vide sale deed R.S.A. No. 2076 of 2009 3 dated 10.4.1995. The allegation that the defendants brought the plaintiff to Court compound and obtained his signatures on some papers under the influence of alcohol and had also kept the plaintiff in their house in an intoxicated condition was denied. It was claimed that the plaintiff in order to extract money from the defendants had filed a false suit. It was further pleaded that the land was sold for legal necessity as he was in need of money to clear the loan amount, and also for welfare of his family. It was denied that the defendants agreed to purchase the land @ Rs. 180/- sq. yards as alleged. The other allegations were also denied. The learned Courts below recorded a concurrent finding of fact on appreciation of evidence that the sale deed dated 7.4.1995 registered on 10.4.1995 was legal and not void as claimed by the plaintiff / appellant. The Court also held that he was not entitled to relief of permanent injunction. The Court further held that the suit was not maintainable, and that the plaintiff was estopped by his own act and conduct from filing the present suit. The issue of locus standi to file the present suit was also decided against him. The learned trial Court held that the plaintiff had paid the court fee. However, issue No.6 was decided in favour of the appellant / defendants. Learned lower appellate Court affirmed the findings recorded by the learned trial Court by recording the findings as under :- “11. After hearing the learned counsel for the parties and going through the record of the case, this court has arrived at the conclusion that the findings returned by the learned trial court on issue no.1 do not suffer from R.S.A. No. 2076 of 2009 4 any infirmity. It is settled law that fraud has to be proved by leading cogent evidence. The appellant / plaintiff had set up a case that the sale deed had been got executed by the respondents / defendants by playing a fraud upon him. His case was that he was under the influence of liquor when the sale deed was got executed. It was therefore incumbent upon him to prove the fact that the sale deed had been got executed by playing a fraud by leading cogent evidence. No doubt the sale deed on the fact of it looks a little suspicious because all pages have been signed only by Gurdial Singh and not by the respondent / defendants whereas normally both the parties would have signed each page. Even the last page has not been signed by the respondents/ defendants. However, it also cannot be ignored that it has repeatedly been laid down that suspicion howsoever strong cannot take the place of proof. If the appellant / plaintiff wished to prove that the sale deed had been obtained by playing a fraud upon him, he could have examined other witnesses of the sale deed, the deed writer, the person from whom the stamp papers had been purchased etc. However, no such person was examined. Only PW1 Lajja Ram was examined who was also a witness to the sale deed. Even this witness faulted in his cross- examination. He stated in his cross-examination that he had been called as a witness to the sale deed by the appellant / plaintiff himself. He further stated that appellant / plaintiff was in a position to recognize him when he had been called as a witness. Once it had come on record that the appellant / plaintiff was in position to recognize Lajja Ram, it cannot be stated that the sale deed had been got executed by playing a fraud upon him. R.S.A. No. 2076 of 2009 5 The appellant / plaintiff has also not been able to prove that the agreement to sell is not signed by the respondents / defendants. Further the stamp papers are in some other person's name. It cannot therefore be said that the agreement to sell had been executed. The appellant / plaintiff has not produced any evidence in support of his contention that the land in dispute was ancestral property or that a Panchayat had been convened in which the respondents / defendants had agreed to pay the balance sale consideration. The testimony of the appellant / plaintiff alone is not sufficient at all to prove all these facts. In the opinion of this court, the appellant / plaintiff has miserably failed to prove that the sale deed had been got executed by the respondents / defendants by playing a fraud upon the appellant / plaintiff. The findings of the learned trial court on issue no.1 are, therefore, affirmed.” The reading of the findings returned by the learned lower appellate Court shows that the plea that the sale deed was bad for want of signatures by the respondent / defendants, was totally misconceived as the fraud was required to be proved by giving cogent reasoning. The plaintiff failed even to examine any witness to prove the fraud. The learned counsel for the appellant contends that the appeal raises the following substantial question of law :- Whether the sale deed, which does not fulfill the requirement of law for want of signatures of purchaser, could be upheld by the Court ? The learned counsel for the appellant in support of the substantial question of law contends that in absence of signatures of both R.S.A. No. 2076 of 2009 6 the parties on the sale deed, the sale deed could not be upheld being in violation of the mandatory provisions of law. No such provision has been pointed out laying down that without signatures of the purchaser the sale deed is to be held void. It is settled law that the seller is required to sign, and once it is proved that the plaintiff had signed the sale deed for consideration and amount received and further that the sale deed was duly registered, it could not be said that there was any violation of statutory provisions of law. The substantial question of law raised is answered against the appellant. No merit. Dismissed. 20.5.2009 ( VINOD K. SHARMA ) 'sp' JUDGE