Punjab-Haryana High Court
Gian Kaur vs Jaimal Singh And Another on 28 February, 2014
Author: Rakesh Kumar Garg
Bench: Rakesh Kumar Garg
RSA No.4671 of 2013 (O&M) 1
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
RSA No.4671 of 2013 (O&M)
Date of decision:28.02.2014
Gian Kaur ....Appellant
Versus
Jaimal Singh and another ....Respondents
CORAM:- HON'BLE MR. JUSTICE RAKESH KUMAR GARG
1. Whether reporters of local newspapers may be allowed to
see judgment?
2. To be referred to reporters or not?
3. Whether the judgment should be reported in the Digest?
Present:- Ms. Rupinder Kaur Thind, Advocate
for the appellant.
RAKESH KUMAR GARG, J (ORAL)
Appellant filed a suit for declaration to the effect that sale deed executed by defendant/respondent No.2 in favour of defendant/respondent No.1 for the land measuring 2 kanals 1 marla on 26.2.1992 situated at village Manga Sarai, Tehsil and District Amritsar, was null and void and was not having any binding effect on the plaintiff, further restraining the defendants from selling/alienating the land in question to anybody else.
According to the averments made, Karnail Singh, husband of the appellant had purchased the land measuring 4 kanals 3 marlas vide registered sale deed dated 23.1.1979. Said Karnail Singh executed a registered Will dated 31.10.1996 with regard to said land in her favour. Karnail Singh died on 10.12.1998 and thus, Kadian Savita 2014.03.04 10:09 I attest to the accuracy and integrity of this document High Court Chandigarh RSA No.4671 of 2013 (O&M) 2 she became the absolute owner of the said land and was also in possession of the same after his death. Defendant/respondent No.2 who was working as an ASI in Punjab Police Department, taking advantage of his position sold 2 kanals 1 marla of land in favour of defendant/respondent No.1 vide registered sale deed dated 26.2.1992 calming himself to be the owner of the suit property, though he has got nothing to do with the said land. In connivance with the revenue officials, he also got mutation sanctioned of the land measuring 2 kanals 1 marla in favour of defendant/respondent No.1. Defendant/respondents No.1 and 2 have no right, title or interest in the land. She came to know about the bogus sale deed dated 26.2.1992 when defendant/respondent No.1 tried to interfere in her possession a few days back. Hence the instant suit.
Upon notice, none appeared on behalf of defendant/respondent No.1 and he was proceeded against ex-parte vide order dated 14.5.2010. Defendant/respondent No.2 appeared and filed written statement raising various preliminary objections. It was denied that appellant was absolute owner, it was further stated that defendant/respondent No.2 was co-sharer in the total joint khata and the suit land was under his possession in the family partition. It was further stated that he sold the suit land vide legal and valid registered sale deed dated 26.2.1992 in favour of defendant/respondent No.1 and had delivered the possession to him. It was further averred that mutation was also sanctioned in his favour Kadian Savita 2014.03.04 10:09 I attest to the accuracy and integrity of this document High Court Chandigarh RSA No.4671 of 2013 (O&M) 3 and he was owner in possession of the suit property. It was further submitted that suit was hopelessly time barred which has been filed 18 years after the execution of the sale deed. It was further denied that defendant/respondent No.2 was working as an ASI and he was taking advantage of his position and had sold the land of the plaintiff and thus, dismissal of the suit was prayed for.
From the pleadings of the parties, the following issues were framed:-
1. Whether the plaintiff is entitled for declaration to the effect that the sale deed executed by defendant No.2 in favour of the defendant No.1 of the land measuring 2 kanals 1 marla dated 26.2.1992 as detailed in the head note of the plaint is null and void? OPP
2. Whether the plaintiff is entitled for permanent injunction restraining the defendants from selling, alienating or mortgaging the suit land to anybody? OPP
3. Whether the suit is not legally maintainable? OPD
4. Whether the suit is not properly valued for the purpose of court fee and jurisdiction? OPD
5. Whether the plaintiff has no locus standi to file the present suit? OPD
6. Whether the suit is hopelessly time barred? OPD
7. Whether the plaintiff is estopped by her own act and conduct from filing the present suit? OPD Kadian Savita 2014.03.04 10:09 I attest to the accuracy and integrity of this document High Court Chandigarh RSA No.4671 of 2013 (O&M) 4
8. Whether the plaintiff has got no cause of action to file the present suit? OPD
9. Relief.
On 1.10.2012, when the case was fixed for plaintiff's evidence, defendant/respondent No.2 was proceeded against ex- parte.
Thereafter, in order to prove her case, appellant examined Karnail Singh as PW1, Mohinder Singh as PW2, Avtar Singh as PW3 and Dilbagh Singh as PW4. All the witnesses supported the version of the plaintiff. Plaintiff also placed on record photocopy of the sale deed dated 23.1.1997 (Ex.P1), photocopy of Will dated 31.10.1996, photocopy of death certificate of Karnail Singh dated 10.12.1998, photocopy of sale deed dated 26.2.1992, original jamabandi for the year 2007-08, original khasra girdawari dated 19.3.2010, original jamabandis for the years 1978-79 and 1997-98.
While dismissing the suit, the trial Court found that the appellant has failed to prove the alleged sale deed on record as mere placing of photocopy on record was not sufficient in the absence of any permission to lead secondary evidence.
Aggrieved from the judgment and decree of the trial Court, the appellant filed an appeal before the lower Appellate Court which was also dismissed vide impugned judgment and decree dated 7.10.2013. While dismissing the appeal, the lower Appellate Court observed as under:-
Kadian Savita 2014.03.04 10:09 I attest to the accuracy and integrity of this document High Court Chandigarh RSA No.4671 of 2013 (O&M) 5
"I have heard learned counsel for the parties besides going through the record and I find that there is absolutely no merit in the appeal. In the present case, the plaintiff has impugned sale deed dated 26.2.1992 said to have been executed by defendant No.2 in favour of defendant No.1. It need to be mentioned here that the plaint has been drafted very poorly inasmuch as in para No.6 of the plaint it is pleaded that the sale deed has been executed by defendant No.1 working as an ASI in Police Department in favour of defendant No.2 which is bogus and fabricated, then again it is pleaded that he has executed the sale deed in favour of defendant No.1.That shows the haphazard, incoherent and confusing pleadings which create utter confusion. Then the very basis of the case of the plaintiff is very shaky because admittedly the impugned sale deed was executed by defendant No.2 in favour of defendant No.1 and not vice versa. She did not prove the same by placing on file its certified copy and summoning record from the office of Sub Registrar, Amritsar, or by summoning scribe or attesting witness thereof. Only a photocopy of the sale deed has been placed Kadian Savita 2014.03.04 10:09 I attest to the accuracy and integrity of this document High Court Chandigarh RSA No.4671 of 2013 (O&M) 6 on file which is clearly inadmissible in evidence. Nevertheless the plaintiff has tendered in evidence copy of jamabandi for the year 2007-08, a perusal of which goes to show that name of Smt. Gian Kaur is mentioned in the cultivation column being purchaser from Smt. Bui. Name of defendant No.2 Chanan Singh is also mentioned and Jaimal Singh is shown to have purchased land from him from Khasra No.18//20/2/2(2-0). This land is reflected to be part of joint khata having other khasra no.18//20/2/1(2-4). Qua Khasra under 18//20/2/1(2-
4) the entry in cultivation column shows Smt. Bui to the extent of ½ share, Chanan Singh, defendant No.2, Deepo, Swaran Kaur having ½ share equally, selling the same to Smt. Gian Kaur wife of Sh.
Karnail Singh son of Shri Hakam Singh to the extent of ½ share and Chanan Singh son of Shri Teja Singh to the extent of ½ share. In the head note of the plaint, the plaintiff has not given the khasra numbers of the land regarding which the impugned sale deed is said to have been executed by defendant No.2 in favour of defendant No.1. Similarly, in body of the plaint, the khasra numbers of the land said have been purchased by Shri Kadian Savita 2014.03.04 10:09 I attest to the accuracy and integrity of this document High Court Chandigarh RSA No.4671 of 2013 (O&M) 7 Karnail Singh, deceased, husband of plaintiff from Shri Mohinder Singh, are not mentioned.
Furthermore, the khasra numbers of the land said to have been sold by defendant No.2 in favour of defendant no.1 are not given. Thus, the plaint is quite vague, but one thing comes out that husband of plaintiff had purchased land out of joint khata and defendant No.2 also sold land out of joint khata. The proper remedy for the plaintiff was to seek partition of the joint land so as to get her share separated instead of filing the present suit. The law is well settled that sale of even specific khasra numbers by a co-sharer is to be taken as sale of share subject to adjustment at the time of final partition. The plaintiff may seek her remedy before the revenue authorities by applying for partition. In the suit which was filed in the Court on 9.4.2010, sale deed executed by defendant No.2 in favour of defendant No.1 dated 26.02.1992 has been challenged. Limitation for filing such suit for declaration is three years. The sale deed being a registered document, registration is notice to the entire world and it cannot be claimed by the plaintiff that she was not aware of the execution of the sale Kadian Savita 2014.03.04 10:09 I attest to the accuracy and integrity of this document High Court Chandigarh RSA No.4671 of 2013 (O&M) 8 deed. Therefore, the suit is time barred also. However, as far as the impugned judgment and decree passed by the trial Court dismissing her suit is concerned, no illegality or impropriety therein is found. The judgment and decree passed by the lower Court are upheld. The appeal is obviously without any merit and is dismissed with costs. Decree sheet be prepared. Lower Court record be returned forthwith and appeal file be consigned to the record room."
Still not satisfied, plaintiff has approached this Court by way of instant appeal, submitting that the following substantial questions of law arise in this appeal:-
i. Whether the findings of the Courts below without considering the evidence led by the appellant are illegal and liable to be set aside?
ii. Whether both the Courts below have illegally dismissed the suit of the appellant without giving any issue wise finding?
iii.Whether in view of the fact that the respondents were relying upon and admitting the execution of sale deed dated 26.2.1992, the findings of the Court that the alleged sale deed have not been exhibited properly are wrong?
Kadian Savita 2014.03.04 10:09 I attest to the accuracy and integrity of this document High Court Chandigarh RSA No.4671 of 2013 (O&M) 9 iv.Whether the findings of the lower Court with regard to the pleadings without any reference to the document attached and the evidence led thereafter are wrong? v. Whether the suit filed by the appellant ought to have been decreed as she has successfully shown that she is the owner in possession of the suit land and the respondents have failed to prove to the contrary? In support of her case, learned counsel for the appellant has vehemently argued that while dismissing the suit of the appellant, the Courts below have ignored the fact that defendant- respondents have not contested the suit and there was no evidence on record to controvert the evidence produced on record by the appellant and from her evidence produced on record, the averments made in the suit were duly proved. Hence the Courts below have wrongly held that sale deed dated 26.2.1992 has not been proved. According to the appellant, the plaintiff was not to prove the sale deed dated 26.2.1992 as the same was not disputed by defendant No.2 in his written statement and it was for the defendants to prove that the suit land was owned by them on the date of execution of the sale deed and in view thereof, substantial questions of law, as raisesd, do arise in this appeal.
I have heard learned counsel for the appellant and perused the impugned judgments and decrees of the Courts below.
The argument raised is misconceived.
Kadian Savita 2014.03.04 10:09 I attest to the accuracy and integrity of this document High Court Chandigarh RSA No.4671 of 2013 (O&M) 10 It is well settled that the plaintiff is to prove his case by cogent and convincing evidence. The plaintiff cannot take benefit that the defendant has been proceeded against ex-parte and he has to stand on his own legs. The evidence produced by the plaintiff does not support her case. The absence of the defendants would not ipso facto lead to the conclusion that the case of the appellant is proved. Simply because she has led some evidence cannot by itself entitle her to an ex parte decree. Admittedly, appellant has failed to prove alleged sale deed in question. She has further failed to prove the Will in her favour and has also failed to prove that she was absolute owner of the suit property.
In view thereof, this Court finds no merit in this appeal. Thus, no substantial questions of law, as raised, arise in this appeal.
Dismissed.
February 28, 2014 (RAKESH KUMAR GARG)
savita JUDGE
Kadian Savita
2014.03.04 10:09
I attest to the accuracy and
integrity of this document
High Court Chandigarh