RSA No. 1371 of 2006(O&M) 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No. 1371 of 2006 (O & M) Date of Decision: August 07, 2009 Amarjit Singh ...... Appellant Versus Sadhu Singh and others ...... Respondents Coram: Hon'ble Mr. Justice Ajay Tewari Present: Mr.R.S.Longia, Advocate for the appellant. Mr. Satinder Khanna, Advocate for the respondents. **** 1. Whether Reporters of local papers may be allowed to see the judgment? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? Ajay Tewari, J. This appeal has been filed against the judgment of the learned lower Appellate Court allowing the appeal of the plaintiff and thereby decreeing his suit for declaration that he was owner in possession of 4 kanals 18 marlas of land which he had purchased from one Kartar Singh in the year 1967. The appellant claims that he had purchased about 15 kanals odd land from one Chain Singh who had inherited the property of Kartar Singh by way of registered will. The following questions have been proposed:- i) Whether the finding of the lower Appellate Court regarding the execution of the sale deed dated 18.5.1967 is not RSA No. 1371 of 2006(O&M) 2 perverse and against the law? ii)Whether the plaintiff was not required to prove the sale deed dated 18.5.1967 as per Section 69 of Indian Evidence Act, 1872? iii)Whether the defendant No.1-appellant has not fully proved the execution of sale deed dated 15.10.1982 as per law? iv)Whether the suit is not liable to be dismissed under Order 1 Rule 9 CPC? v) Whether the findings in earlier Civil Suit are not relevant for the present suit under Section 13 of Indian Evidence act, 1872? In my opinion the seminal questions are questions No. (i) and (ii) even though they are pure questions of fact. If the sale in favour of respondent No.1 is proved the appellant can have no title in the land in dispute. With regard to these two questions learned counsel has argued that as per the respondents the vendor and the two witnesses had died but even if that was so yet under Section 68 read with Section 69 of the Evidence Act it was incumbent upon the respondents to have examined some person who would have identified the signatures of the witnesses. He has further stated that mere permission to lead secondary evidence would not mean that the document has been held to be proved. In support of the second argument he has relied upon Ashok Kumar Sachdeva v. Harish Malik reported as 2007(4) R.C.R.(Civil) 311, M/s Gopal Krishan Jiwan Kujmar v. Puran Singh reported as 1998(2) R.C.R.(Civil)103 and Lakhi Baruah v. Padma Kanta Kalita reported as 1996(8) S.C.C. 357. With regard to the first question raised by learned counsel for the appellant, learned counsel for the respondents has placed reliance on the case of Smt. Hans Raji v. Yosodanand reported as 1996(1) CCC 115(SC) wherein it was held as follows by the Hon'ble Apex Court:- RSA No. 1371 of 2006(O&M) 3 “10. So far as the applicability to the proviso to Section 68 is concerned, it must be noted that there was no occasion for the respondent to examine any attesting witness to the document in question as it was a Sale Deed which never required any attestation and even i some “marginal” witnesses had attested the document the document did not attract Section 68 of the Evidence Act which in term applies to the proof of execution of document required bylaw to be attested. It reads as under: “68. Proof of execution of document required by law to be attested.- If a document is required by law to be attested it shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution, if there be an attesting witness alive, and subject to the process of the Court and capable of giving evidence. Provided that it shall not be necessary to call an attesting witness in proof of the execution of any document, not being a Will, which has been registered in accordance with the provisions of the Indian Registration Act, 1908,unless its execution by the person by whom it purports to have been executed is specifically denied.” Therefore, Section 68 would not cover such a transaction. Hence there would remain no occasion to invoke the proviso to Section 68 with a view to finding out whether ht execution of such a document was specifically denied by the adverse party or not. Consequently all the main contentions canvassed before the High Court which are repelled by the High Court cannot be said to be wrongly repelled.” In this view of the matter it has to be held that Section 68 is not applicable to the question of proof of a sale deed. Coming to the second question the proposition of law cannot be faulted. However, I find that the leaned lower Appellate Court has relied upon the testimony of the official of the Registrar's office as well as the RSA No. 1371 of 2006(O&M) 4 scribe to hold that the sale deed of 1967 has been proved. Learned counsel for the appellant has not been able to persuade me that this finding of fact is based either on no evidence or on such misreading of the evidence so as to render the same perverse. Once questions No. 1 and 2 are held against the appellant, questions No.3, 4 and 5 pale into insignificance and need not be decided to reject the claim of the appellant. Consequently this appeal is dismissed. No costs. Since the main case has been decided, the pending Civil Misc. Applications, if any, are disposed of. (AJAY TEWARI) JUDGE August 07, 2009 sunita