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2000 DIGILAW 106 (PNJ)

Balwinder Singh v. Mukhtiar Singh

2000-01-31

IQBAL SINGH

body2000
Judgment 1. This is defendants Regular Second Appeal against whom a decree for declaration and permanent injunction in respect of the property in dispute has been passed by both the Courts below. 2. The facts of the case, in brief, are as under :- The present suit was brought by plaintiff-respondent Mukhitiar Singh against defendant-appellant Balwinder Singh and another seeking declaration that he is co-owner in possession of the suit land, as described in the head-note of the plaint, along with his brothers Sampuran Singh and Ujagar Singh and that the sale deed dated 2-8-1989 obtained from him (plaintiff-respondent) in respect of land measuring 5 Kanals 1 marla is the result of fraud, coercion, undue influence, without consideration and, as such, not binding on him. The plaintiff-respondent also claimed permanent injunction restraining the defendants from interfering in his possession over the land. It was stated in the plaint that the defendants got him (plaintiff-respondent) arrested along with his father Sawan Singh twice, i.e. first under Sections 107/151 of the Code of Criminal Procedure and thereafter again from the local police and pressurised him to execute the sale deed dated 2-8-1989 in their favour. No money was paid while execution of the sale deed and possession of the land was also not delivered by the plaintiff to the defendants. The plaintiff requested the defendants not to interfere in his possession over the suit property, but to no effect. 3 The suit was contested by the defendants. In the written statement filed by them it was claimed that they had purchased the suit property through sale deed dated 2-8-1989 for a consideration of Rs. 50,000/-. They denied that the sale deed was obtained by fraud, coercion or undue influence from the plaintiff and maintained that they are in possession of the suit property. 4. On the pleadings of the parties, the trial Court framed the following issues besides that of relief:- "1. Whether sale deed dated 2-8-1989 is the result of coercion and undue influence ? OPP. 2.Whether no sale consideration was paid to the plaintiff ? OPP. 3.Whether the suit is not maintainable in the present form ? OPD 4.Whether the suit has been properly valued for the purposes of court-fee and jurisdiction ? OPP. 5.Whether description of the suit is not correct ? If so, its effect ? OPD." 5. Issue Nos. OPP. 2.Whether no sale consideration was paid to the plaintiff ? OPP. 3.Whether the suit is not maintainable in the present form ? OPD 4.Whether the suit has been properly valued for the purposes of court-fee and jurisdiction ? OPP. 5.Whether description of the suit is not correct ? If so, its effect ? OPD." 5. Issue Nos. 1 and 2 were discussed together and were decided in favour of the plaintiff and against the defendants. Issue Nos. 3 to 5 were decided against the defendants and in favour of the plaintiff. In view of its findings on the aforementioned issues, the trial Court decreed the suit of the plaintiff. 6. Aggrieved against the judgment and decree passed by the trial Court, the defendants went in appeal before the lower appellate Court and the same was also dismissed. 7. This Regular Second Appeal has been filed by defendant-appellant Balwinder Singh to challenge the judgment and decree passed by the lower appellate Court. 8. I have heard Mr. R.C.Setia, Senior Advocate, assisted by Mr. Aneesh Setia, Advocate, on behalf of the appellant and have gone through the records of the case. 9. In this case, the plaintiff-respondent had challenged the validity of the sale deed dated 2-8-1989 (Exhibit P.W.1/A) on the ground of coercion and undue influence exercised by the defendants upon him. The plaintiff-respondent gave the details of coercion and undue influence in paras 3 and 4 of the plaint wherein he categorically stated that he (plaintiff-respondent) and his father Sawan Singh, were firstly got arrested under Sections 107/151 of the Code of Criminal Procedure and thereafter the defendants again got them arrested with the help of local police and pressurised him to execute the sale deed dated 2-8-1989 regarding the sale of the suit land in their favour. He never executed the sale deed of his own nor received any sale consideration from the defendants. The defendants, in the corresponding paras of the written statement, did not categorically deny the arrest of the plaintiff and his father, firstly under Sections 107/151 of the Code of Criminal Procedure and thereafter again by the local police at their (defendants) instance. The defendants simply alleged that the story of arrest put forth by the plaintiff is concocted one. The defendants, in the corresponding paras of the written statement, did not categorically deny the arrest of the plaintiff and his father, firstly under Sections 107/151 of the Code of Criminal Procedure and thereafter again by the local police at their (defendants) instance. The defendants simply alleged that the story of arrest put forth by the plaintiff is concocted one. Both the Courts below have returned a concurrent finding of fact that there is overwhelming evidence that the sale deed had been got executed from the plaintiff under coercion and undue influence and that it stands amply proved on the record the sale deed was never executed by the plaintiff voluntarily for consideration. Admittedly, the stamp paper on which the impugned sale deed was got scribed from Sarja Singh, Petitioner, was not purchased by the plaintiff. The stamp paper is alleged to have been purchased by Ujagar Singh, brother of the plaintiff, on behalf of the plaintiff. However. relations of the plaintiff with his brother Ujagar Singh were not cordial. The plaintiff in his statement on oath made before the trial Court stated that Ujagar Singh had got him and his father Sawan Singh arrested in proceedings under Sec. 107/151, Criminal Procedure Code. This part of the statement of the plaintiff remains unchallenged. The plaintiff was not subjected to any cross-examination on this point. Even Hakam Singh (D.W.1), attesting witness of the sale deed, admitted that there had been security proceedings between the plaintiff and his brother Ujagar Singh. Smt. Shamsher Kaur (D.W.3), wife of defendant Harjinder Singh, who appeared as his general attorney, also admitted this fact in her cross-examination. In these circumstances, it has rightly been observed by the lower appellate Court that it is difficult to accept that the plaintiff would authorise his brother Ujagar Singh to purchase stamp paper for the execution of the impugned sale deed on his (plaintiffs) behalf. There is nothing on the record that the plaintiff was prevented by any unavoidable circumstances from personally purchasing the stamp paper for the execution of the impugned sale deed in favour of the defendants. Moreover, even Ujagar Singh has not come forward to testify before the Court that he had ever been authorised by the plaintiff to purchase the stamp paper on his behalf for the execution of the impugned sale deed. Moreover, even Ujagar Singh has not come forward to testify before the Court that he had ever been authorised by the plaintiff to purchase the stamp paper on his behalf for the execution of the impugned sale deed. The name of the stamp vendor from whom the stamp paper was purchased, has also not been mentioned by the defendants and the same remains undisclosed on the record. Hakam Singh (D.W.1), who is an attesting witness of the sale deed, has also not disclosed the name of the stamp vendor from whom the stamp paper had been purchased. If the plaintiff were willing to execute the sale deed in respect of the suit land in favour of the defendants, he would have purchased the stamp paper himself. There was no occasion for him to ask his brother Ujagar Singh, with whom he had earlier security proceedings and strained relations, to purchase the stamp paper for him. This circumstance goes a long way to substantiate the plea of the plaintiff that the sale deed was got executed from him by the defendants by exercising coercion and undue influence. 10. There is also not even an iota of evidence on the record to prove that any sale consideration was ever received by the plaintiff from the defendants at the time of alleged execution of the sale deed Exhibit P.W.1/A.In the sale deed, the sale consideration recorded is Rs. 50,000/-, but, admittedly, this amount, or even part of it, was never paid to the plaintiff before the Sub-Registrar. This fact had also been admitted by Hakam Singh (D.W.1), attesting witness of the sale deed. Even Hardial Singh (D.W.4), the then Sub-Registrar, who registered the sale deed, has not disputed this fact in his statement. He has simply stated that the plaintiff admitted of having already received the sale consideration. No receipt regarding making payment of Rs. 50,000/- to the plaintiff was produced on record by the defendants. Furthermore, no independent witness to prove the payment of sale consideration of Rs. 50,000/- to the plaintiff by the defendants had been produced. 11. The plea of the plaintiff that he was got arrested from the local police along with his father by his brother Ujagar Singh, who wanted to help the defendants, also stands corroborated from the documentary evidence. Furthermore, no independent witness to prove the payment of sale consideration of Rs. 50,000/- to the plaintiff by the defendants had been produced. 11. The plea of the plaintiff that he was got arrested from the local police along with his father by his brother Ujagar Singh, who wanted to help the defendants, also stands corroborated from the documentary evidence. Exhibit P.W.3/A is the application which was given by Bhag Singh, a relation of the respondent, under Section 97 of the Code of Criminal Procedure for issuance of search warrants before the Magistrate at Kharar on 1-8-1989 wherein he alleged that Mukhtiar Singh (plaintiff-respondent), his (plaintiffs) brother Sampuran Singh and father Sawan Singh had been picked up from the Village by the Station House Officer of Police Station Kharar and they all had been illegally confined with the intention to persuade them to sign some documents with a view to grab their land at the instance of Ujagar Singh. In Exhibit P.W.3/A, it was also mentioned that even stamp paper had been purchased and one Deed Writer had been deputed to scribe the document on the stamp paper on behalf of the plaintiff, his brother and father, who had been confined in the Police Station. The Judicial Magistrate 1st Class, Kharar, had deputed Mr. Gurmail Singh, Advocate, to visit the Police Station for the search of the plaintiff, his brother and father. This order was passed on 1-8-1989, copy of which is Exhibit P.4 on the record. After receiving the report of Mr. Gurmail Singh, Advocate, the Court had filed the application Exhibit P.W.3/A on 2-8-1989, as in clear from the copy of the order Exhibit P.5. The plaintiff has also reiterated all these facts in his statement which stands unrebutted on the record. The statement of the plaintiff has been corroborated by Sadhu Singh (P.W.2), brother-in-law of the plaintiff from wifes side. No evidence to rebut this evidence led by the plaintiff has been produced by the defendants. Even Sarup Singh, father of the defendant-appellant, against whom the allegations have been made that he wanted to grab the land of the plaintiff through his (plaintiffs) brother Ujagar Singh, has not stepped into the witness box to deny the arrest of the plaintiff, his brother Sampuran Singh and father Sawan Singh on 1-8-1989, i.e. one day prior to the alleged execution of the sale deed dated 2-8-1989. The plaintiff, in his statement, has alleged that litigation between his (plaintiffs) father Sawan Singh and Sarup Singh, father of the defendant-appellant, was pending earlier to the execution of the impugned sale deed. The statement of the plaintiff in this regard also remains unchallenged on the record. 12. For the aforesaid reasons, I do not find any ground to interfere with the concurrent findings of fact recorded by both the Courts in Regular Second Appeal. This appeal is, therefore, hereby dismissed being without any merit.Appeal dismissed.