Punjab-Haryana High Court
Mahender And Another vs Rajbir Singh on 28 July, 2011
Author: Kc.Puri
Bench: K.C.Puri
RSA No.3819 of 2009 1
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
RSA No.3819 of 2009 (O&M)
Date of decision 28.7.2011.
Mahender and another
...... Appellants.
versus
Rajbir Singh
...... Respondent.
CORAM : HON'BLE MR. JUSTICE K.C.PURI
Present : Mr. B.R.Gupta, Advocate for the appellants.
KC.PURI, J.
This is an appeal directed by legal representatives of Panmeshwari against the judgment dated 11.6.2009 passed by Shri R.K.Bishnoi, District Judge, Bhiwani vide which the appeal preferred by the plaintiffs/appellants against the judgment and decree dated 23.3.2007 passed by Smt.Vani Gopal Sharma, Additional Civil Judge (Senior Division), Charkhi Dadri District Bhiwani was dismissed.
Panmeshwari filed suit for declaration in respect of suit property. It is pleaded that plaintiff is related to defendant as Bua as per RSA No.3819 of 2009 2 pedigree table meaning thereby that defendant is nephew of plaintiff- Panmeshwari. It is further pleaded that brother of defendant and defendant connived with each other and got registered general power of attorney No.257 dated 7.2.2000 by playing fraud upon the plaintiff. When she came to know about power of attorney she revoked the said power of attorney vide cancellation deed dated 8.10.2001. The defendant got a release deed No.2519 dated 12.10.2001 without legal right to do so and the same is null and void being the result of fraud. It is pleaded that said release deed is against the memo No.619STRI dated 3.2.2000 as defendant is not related to the plaintiff under the Rules framed under the Stamp Act. The plaintiff never handed over the possession or cultivation of the suit property to the defendant and the defendant had no pre-existing right in the suit property. The plaintiff is a illiterate lady and defendant is a clever person who procured the thumb impression of the plaintiff over the release deed referred to above. Prayer has been made for cancellation of the said release deed.
On put to notice, defendant filed written statement denying the contents of the plaint and asserted that release deed No.2519 dated 12.10.2001 was voluntarily executed by the plaintiff in favour of the defendant. The power of attorney was executed in favour of brother of defendant voluntarily which was later on revoked on 8.10.2001. The defendant or his brother never used the power of attorney. The release deed is the voluntary act of the plaintiff and prayer has been made for dismissal of the suit.
Plaintiff filed replication denying the contents of the written statement and reiterated the stand taken in the plaint. RSA No.3819 of 2009 3
From the pleadings of the parties, following issues were framed :-
1. Whether the plaintiff is owner in possession of the suit land ?OPP
2. Whether the release deed No.2519 dated 12.10.2001 in favour of the defendant is illegal, nonest, null and void and result of fraud and fabricated and is not liable on the rights of the plaintiff ? OPP
3. If issue No.2 is proved then whether the revenue record is liable to be corrected ?OPP
4. If the possession of the plaintiff is not proved then whether in the alternative the plaintiff is entitled to the decree of possession of the suit land ?OPP
5. Whether the suit of the plaintiff is not maintainable in the present form as the plaintiff has got no cause of action to file the present suit ?OPD
6. Whether the plaintiff is estopped to file the present suit by her own act and conduct ?OPD
7. Relief.
In order to prove its case, plaintiff examined Shamsher Singh, Registration Clerk, as (PW-1), Uday Singh Deed Writer as PW-2, plaintiff Panmeshwari herself appeared as PW-3 and closed the evidence after tendering certain documents.
In defence Rajbir defendant himself appeared as DW-1 and also examined Sanjay son of Ram Jiwan as (DW-2).
The learned trial Court returned finding on all the issues against the plaintiff and in favour of the defendant and consequently dismissed the suit of the plaintiff.
Feeling dissatisfied with the above said judgment and decree, RSA No.3819 of 2009 4 the plaintiff preferred First Appeal and the same was dismissed vide judgment and decree dated 11.6.2009 passed by Shri R.K.Bishnoi, District Judge, Bhiwani.
Feeling dissatisfied with the above said judgments and decrees, dated 23.3.2007and dated 11.6.2009, referred to above, the legal heirs of Panmeshwari have filed the present appeal.
The appellants in paragraph No.25 of the grounds of appeal have mentioned that following substantial questions of law have arisen :-
i) Whether an illiterate, old and rustic lady can claim the protection available to a parda nashin lady ?
ii) Whether the learned Courts below have misread and mis-
appreciated the oral and documentary evidence ?
iii) Whether a document which is contrary to the Government Instructions can be said to be validly executed ?
To substantiate the substantial question of law, counsel for the appellants has submitted that Panmeshwari was illiterate and old rustic lady. She was duped by the defendant/respondent. Earlier power of attorney was got executed from her and having came to know about the same, she got the same cancelled. The defendant on the pretext of giving effect to the cancellation of power of attorney got executed release deed. The trial Court has misread and misinterpreted the oral as well as documentary evidence available on the file. The plaintiff has placed on the file Ex.P-1, the instructions regarding execution of release deed in favour of the relatives. The nephew does not fall within the ambit of Ex.P-1. So, the said release deed is inadmissible in evidence. Prayer has been made for RSA No.3819 of 2009 5 acceptance of the appeal and for cancellation of the release deed.
I have carefully considered the said submission but do not find any force in that submission.
Both the Courts below have given a concurrent finding that plaintiff voluntarily executed release deed dated 8.10.2001 in favour of defendant and that she has failed to prove the factum of fraud. There is concurrent finding of fact recorded by both the Courts below against the plaintiff on this point and as such the same cannot be challenged in the regular second appeal in view of Section 100 CPC. There is nothing on the file to show that both the Courts below have misread and misappreciated the oral and documentary evidence on the file. Real sister of plaintiff has also executed release deed in favour of defendant and she has not challenged the same till today, which goes a long way to prove that release deed was voluntarily executed by the plaintiff and also by her sister. The plaintiff could produce her sister as her witness to state that release deed is the result of fraud as alleged. Both the Courts below have rightly held that plaintiff has not furnished the particulars of fraud and has failed to prove the factum of fraud.
So far as the instructions Ex.P-1 are concerned, it was argued before both the Courts below but both the Courts below have not accepted the plea of the plaintiff. Otherwise also instructions Ex.P-1 was in respect of charging stamp duty. In State of Haryana facility has been given to the public that they can execute release deed in favour of his or her relative by payment of nominal stamp duty. Even if stamp duty is less in that case aggrieved persons would be the State of Haryana and not the plaintiff. RSA No.3819 of 2009 6
So, in view of the above discussion, the appeal is without any merit and the same stands dismissed.
16. A copy of this judgment be sent to the trial Court for strict compliance.
( K.C.PURI ) JUDGE July 28 , 2011 sv