Punjab-Haryana High Court
Smt.Paramjit Kaur And Another vs Bali Singh And Others on 23 November, 2011
Author: Jora Singh
Bench: Jora Singh
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 with this legal proposition. The scope of powers of High Court under Section 100 CPC is a matter of settled law. The learned counsel for the appellant cited several judgments in support of his contention. We do not consider it necessary to discuss these decisions because so far as the question of powers of the High Courts under Section 100 CPC is concerned, it needs no discussion. If the findings of the subordinate courts on facts are contrary to evidence on record and are perverse, such finding can be set aside by the High Court in appeal under Section 100 CPC. A High Court cannot shut its eyes to perverse findings of the courts below. In the present case the findings of fact arrived at by the lower appellate court were contrary to evidence on record and, therefore, perverse and the High Court was fully justified in setting aside the same resulting in the appeal being allowed and suit being decreed."
Report No.158 dated 20.12.1990 as per respondents was lodged by Ajmer Singh, Bali Singh and Uttam Singh. As per report, 64 kanals of land owned by Ajmer Singh and Bali Singh was exchanged with the land measuring 27 kanals 5 marlas owned by Uttam Singh. Ajmer Singh was the owner to the extent of 32 kanals and remaining 32 kanals was owned by Bali Singh. Ajmer Singh gave 32 kanals and got only 13 kanals 12.5 marlas RSA No. 3178 of 2001 17 from Uttam Singh. Evidence on the file shows that Bali Singh with his sons was residing with Uttam Singh separately from Ajmer Singh. Report was recorded by Hardev Singh, Patwari, in the presence of Sukhdev Singh, Lambardar. Hardev Singh, Patwari, and Sukhdev Singh, Lambardar, were alive when evidence was led by the parties. On the basis of report (Ex.D2), if the respondents are claiming ownership of the property in dispute, then they are to lead cogent and convincing evidence that report (Ex.D2) is genuine one. Appellants are simply to state that report (Ex.D2) was not lodged by Ajmer Singh. Onus to prove that report (Ex.D2) dated 20.12.1990 was lodged by Ajmer Singh was on the respondents and respondents were expected to produce Hardev Singh, Patwari, and Sukhdev Singh, Lambardar. Sukhdev Singh, Lambardar, was to state that Ajmer Singh and Bali Singh are known to him. Report (Ex.D2) was lodged by Ajmer Singh and Bali Singh and the same was signed or thumb marked by them. Uttam Singh had also signed or thumb marked the report but no explanation why Hardev Singh, Patwari, or Sukhdev Singh, Lambardar, was not produced for the reasons best known to them. When the respondents failed to produce the best evidence, then adverse inference is to be drawn against them. Report (Ex.D2) was exhibited in the statement of Sultan Singh, Patwari, but he was not present when report was lodged, who joined the revenue department on 14.8.1991.
Ex.D2 shows that report was signed by Ajmer Singh. When onus was upon the respondents, then respondents were required to produce an Expert for comparison of disputed signatures of Ajmer Singh on Ex.D2 with his standard signatures, but respondents failed to examine any Expert.
In Jaswant Kaur and others' case (supra), Hon'ble Supreme RSA No. 3178 of 2001 18 Court held that burden of proving a fact in issue lies on him who asserts it and not on him who denies it. In the present case, allegation of the respondents is that report (Ex.D2) was lodged by Ajmer Singh. So, onus to prove that report (Ex.D2) was lodged by Ajmer Singh was upon the respondents. When Sukhdev Singh, Lambardar, and Hardev Singh, Patwari, were available, then no explanation why they were not examined.
Report (Ex.D2) was exhibited in the statement of Sultan Singh, Patwari, who subsequently joined on 14.8.1991. Respondents should have summoned original roznamcha and after summoning original roznamcha, they should have produced Hardev Singh, Patwari, or Sukhdev Singh, Lambardar, to state on oath that they have seen original report and the same was signed or thumb marked by Ajmer Singh. Copy of report is Ex.D2. So, mere marking of a document as an exhibit does not dispense with its formal proof as held by Hon'ble Supreme Court in Sait Tarajee Khimchand and others' case (supra).
Learned counsel for the respondents argued that exchange can be oral. Land measuring 64 kanals was owned by Ajmer Singh and Bali Singh. Land was exchanged with their father Uttam Singh. Report (Ex.D2) was lodged with the Patwari. After exchange, Uttam Singh was in possession of land measuring 64 kanals. Ajmer Singh and Bali Singh were in possession of land measuring 27 kanals 5 marlas.
In Bhagwant Kaur's case (supra), the Court held that exchange of land with Haveli-Exchange made orally with delivery of possession- Exchange not required to be registered. Subsequently owners admitted exchange in civil suit and in mutation proceedings. After that, owners were estopped to say that there was no exchange.
RSA No. 3178 of 2001 19
In Randhir Singh's case (supra), the Court held that oral exchange of properties- No document is required to be executed and registered when possession was exchanged between the parties pursuant to oral exchange. Later on, document was executed as memorandum of exchange. Section 118 of the Transfer of Property Act is not applicable in the State of Punjab. Oral exchange is legally permissible. Sale deed is not required to be executed.
In Kulwant Singh's case (supra), the Court observed that there cannot be any valid exchange of immovable property without proving the exchange and particular of the properties exchanged. In the present case, immovable property was exchanged in view of Report No.158 (Ex.D2) dated 20.12.1990 but report is not genuine one because respondents failed to prove that report was signed or thumb marked by Ajmer Singh. Again no evidence on the file that report was signed or thumb marked by Uttam Singh. After exchange, no documentary proof on the file that Ajmer Singh and Bali Singh were in actual possession of land measuring 27 kanals 5 marlas and Uttam Singh was in actual possession of land measuring 64 kanals bearing different khasra numbers. There can be oral exchange and when possession of the land is delivered by one party to the other, then document is not required to be registered but original document should have been signed or thumb marked by the parties concerned. As discussed earlier, no evidence was led by the respondents that report No.158 (Ex.D2) dated 20.12.1990 was signed or thumb marked by Ajmer Singh. Photocopy of the report is on the file and report nowhere shows that the same was signed or thumb marked by Uttam Singh. After report (Ex.D2), Ajmer Singh and Bali Singh are not in actual possession of land measuring 27 kanals 5 marlas. RSA No. 3178 of 2001 20 Bali Singh when appeared as DW3, then stated that report (Ex.D2) was thumb marked by Uttam Singh but no thumb impression of Uttam Singh on the original report.
As per exchange, Ajmer Singh gave land measuring 32 kanals and got only 13 kanals 12.5 marlas in exchange. No evidence on the file that the land owned by Uttam Singh was more valuable than the land owned by Ajmer Singh and Bali Singh. When land owned by Uttam Singh was not valuable than the land owned by Ajmer Singh and Bali Singh, then Ajmer Singh was not expected to get only 13 kanals 12.5 marlas of land in lieu of 32 kanals land.
Punjab Singh and Hans Pal Singh are the sons of Bali Singh and in view of judgment and decree dated 23.3.1992, Uttam Singh transferred land measuring 64 kanals, which he got from Ajmer Singh and Bali Singh in exchange. If land was to be transferred in favour of sons of Bali Singh, then Bali Singh had no idea to exchange his share, i.e., 32 kanals with his father Uttam Singh. Bali Singh could easily transfer his share in favour of his sons. Uttam Singh without exchange could also transfer his half property in favour of his grand sons. Bali Singh was joined so that exchange may look like genuine and plausible. In case, exchange was genuine, then Uttam Singh was expected to exchange his half share with the share of Bali Singh.
After report (Ex.D2), one affidavit (Ex.DW6/1) was presented. Affidavit was joint of Bali Singh, Ajmer Singh and Uttam Singh regarding exchange. Firstly, there was no date or place where this affidavit was scribed. Secondly, affidavit was not attested by any competent authority. Affidavit simply bears the stamp of Executive Magistrate, Rania. If the RSA No. 3178 of 2001 21 affidavit is genuine one, then it should have been signed or thumb marked by Ajmer Singh, Bali Singh and Uttam Singh. Affidavit should have been got attested from the competent authority but without attestation, date and place, joint affidavit was presented before the revenue authorities to enter and sanction mutation on the basis of report (Ex.D2). Only photocopy of the affidavit was marked as Ex.DW6/1. DW6 Om Parkash, Kanungo, stated that affidavit was not attested by any competent authority. There is no date or place. So, in view of affidavit (Ex.DW6/1), respondents cannot argue that oral exchange was admitted by the owners.
Evidence on the file shows that fraud was played by the respondents to grab the property of Ajmer Singh. There cannot be direct evidence of fraud but fraud can be proved only from circumstances of the case. Bali Singh and Uttam Singh were residing jointly, then no question of exchange between son and father. When Ajmer Singh was residing separately and land owned by Uttam Singh was not valuable than the land owned by him, then there was no good reason for Ajmer Singh to exchange his 32 kanals of land with 13 kanals 12.5 marlas of land owned by Uttam Singh. After report No.158 (Ex.D2), Civil Suit No.201 was instituted by the sons of Bali Singh against Uttam Singh on 26.2.1992. Before the date of hearing, application was moved and in view of the application, file was taken up. Uttam Singh filed written statement admitting claim of his grand sons. He also made statement admitting claim of his grand sons. Then suit was decreed on 23.3.1992, i.e., within a month. This fact is clear from the copy of the order (Ex.P6) dated 23.3.1992.
As discussed earlier, Uttam Singh was owning land measuring 27 kanals 5 marlas and as per judgment and decree in Civil Suit No.201 of RSA No. 3178 of 2001 22 1992, 64 kanals of land was transferred in favour of sons of Bali Singh but in the land measuring 64 kanals, which was earlier owned by Bali Singh and Ajmer Singh, sons of Bali Singh had no pre-existing right. Civil suit for declaration was decreed in view of the written statement and admission of Uttam Singh. When sons of Bali Singh had no pre-existing right in the land alleged to be obtained by Uttam Singh as per oral exchange, then Uttam Singh had no right to transfer immovable property value of which is more than Rs.100/-.
In Bhoop Singh's case (supra), Hon'ble Supreme Court held that judgment on admission- Decree also creating rights for the first time in immovable property, then decree requires registration. Relevant paras No.16, 17 and 19 are reproduced as under:-
"16. We have to view the reach of clause (vi), which is an exception to sub-section (1), bearing all the aforesaid in mind. We would think that the exception engrafted is meant to cover that decree or order of a court, including a decree or order expressed to be made on a compromise, which declares the pre-existing right and does not by itself create new right, title or interest in praesenti in immovable property of the value of Rs.100/- or upwards. Any other view would find the mischief of avoidance of registration, which requires payment of stamp duty, embedded in the decree or order.
17. It would, therefore, be the duty of the court to examine in each case whether the parties have pre-existing right to the immovable property, or whether under the order or decree of the court one party having right, title or interest therein RSA No. 3178 of 2001 23 agreed or suffered to extinguish the same and created right, title or interest in praesenti in immovable property of the value of Rs.100/- or upwards in favour of other party for the first time, either by compromise or presented consent. If latter be the position, the document is compulsorily registerable.
19. Now, let us see whether on the strength of the decree passed in Suit No.215 of 1973, the petitioner could sustain his case as put up in his written statement in the present suit, despite the decree not having been registered. According to us, it cannot for two reasons : (1) The decree having purported to create right or title in the plaintiff for the first time that is not being a declaration of pre-existing right, did require registration. It may also be pointed out that the first suit cannot really be said to have been decreed on the basis of compromise, as the suit was decreed "in view of the written statement filed by the defendant admitting the claim of the plaintiff to be correct". Decreeing of suit in such a situation is covered by Order 12 Rule 6, and not by Order 23 Rule 3, which deals with compromise of suit, whereas the former is on the subject of judgment on admissions. (2) A perusal of the impugned judgment shows that the first appellate court held the decree in question as "collusive" as it was with a view to defeat the right of others who had bona fide claim over the property of Ganpat. Learned Judge of the High Court also took the same view."RSA No. 3178 of 2001 24
In the present case, property in the hands of Uttam Singh was his self acquired property and was not the ancestral coparcenary properties of the joint Hindu family. Sons of Bali Singh have no pre-existing right in the property but Bali Singh who was residing with his father Uttam Singh to defraud Ajmer Singh concocted the story regarding exchange of land measuring 64 kanals with land measuring 27 kanals 5 marlas owned by Uttam Singh. In view of exchange, possession of 27 kanals 5 marlas of land owned by Uttam Singh was not transferred to Bali Singh and Ajmer Singh. Regarding exchange, Report No.158 alleged to be lodged by Ajmer Singh and Bali Singh is not genuine one. In fact, Report No.158 was lodged by Bali Singh to defraud his brother Ajmer Singh simply to transfer the land in favour of his sons. Mere marking of report as an exhibit does not dispense with its formal proof. Report was lodged in the presence of Sukhdev Singh, Lambardar, and Hardev Singh, Patwari, but for the reasons best known to the respondents, none of them was examined. Only photocopy tendered was exhibited in the statement of Sultan Singh, Patwari. Report No.158 is without any evidentiary value.
Once report No.158 dated 19.12.1990 is not legally proved and genuine one then mutation No.3106 entered/sanctioned on the basis of Report No.158 confers no title. On the basis of Mutation No.3106, Uttam Singh has not become owner of the land measuring 64 kanals owned by Bali Singh and Ajmer Singh sons of Uttam Singh.
As per Mutation No.3106, sons of Bali Singh filed suit against their grand father Uttam Singh but in the land transferred as per judgment and decree, sons of Bali Singh have no pre-existing right. Judgment and decree in Suit No.201-C of 1992 being unregistered document is not helpful RSA No. 3178 of 2001 25 to the decree holders, i.e., sons of Bali Singh. Evidence on the file was misread by the Courts below. Inadmissible evidence was taken into consideration. Due to non-appearance of Sukhdev Singh, Lambardar, and Hardev Singh, Patwari, adverse inference is to be drawn against the respondents because onus was upon the respondents to lead evidence that there was valid exchange amongst Ajmer Singh and Bali Singh on one hand and Uttam Singh on the other hand, but the document requires to be compulsorily registered was admitted into evidence and taken into consideration.
Possession of the property in dispute is with the receiver but as discussed earlier, there was no valid exchange amongst the sons and father. Mutation No.3106 confers no title upon the respondents. When sons of Bali Singh had no pre-existing right in favour of the property transferred as per judgment and decree which requires to be compulsorily registered then possession of land measuring 64 kanals owned by Ajmer Singh and Bali Singh is to be delivered to them.
For the reasons recorded above, judgments of both the Courts below are set aside. RSA No.3178 of 2001 and RSA No.3188 of 2001 are accepted and Suit No.1120 of 25.5.1992/23.11.1995 filed by Ajmer Singh (deceased) is decreed to the effect that plaintiffs are the owners in possession of land measuring 32 kanals having 1/2 share of land measuring 64 kanals bearing different khasra numbers shown in the heading of plaint and Mutation No.3106 dated 31.12.1990 and judgment and decree dated 23.3.1992 in Suit No.201-C of 1992 are null and void. Decree sheet in Suit No.1120 of 25.5.1992/23.11.1995 be prepared.
23.11.2011 ( JORA SINGH ) pk JUDGE