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2000 DIGILAW 539 (PNJ)

Jit Singh v. Gian Singh

2000-05-19

R.L.ANAND

body2000
JUDGMENT R.L. Anand, J. - Heard. The delay of 9 days in filing and 18 days in re- filing the appeal is hereby condoned for the reasons stated in the applications which are supported by affidavits. 2. Unsuccessful plaintiffs have filed the present appeal and it has been directed against the judgment and decree dated 26.3.1999 passed by the Additional District Judge, Ferozepur, who affirmed the judgment and decree dated 26.11.1997 passed by the Civil Judge (Senior Division), Ferozepur, who dismissed the suit of Jit Singh and Dalip Singh sons of Sayain Singh against Gian Singh. 3. The case set up by the plaintiffs before the trial Court was that they are the owners and in possession of the suit land measuring 8 kanals fully described in the head-note of the plaint and the sale-deed dated 26.12.1991 allegedly executed by their father Sayian Singh in favour of defendant Gian Singh is a forged and fabricated document being the result of fraud and misrepresentation and is ineffective against their rights. The plaintiffs also sought the consequential relief of injunction that the defendant be restrained from alienating the suit land in any manner whatsoever. It was pleaded by the plaintiffs that they are the sons of Sayian Singh, who died on 15.7.1973 and after the death of Sayian Singh they have become the owner of the suit property by virtue of registered Will dated 12.5.1987 and mutation with regard to the said Will has also been sanctioned in their favour. It was further pleaded that defendant Gian Singh in the month of November, 1993 had filed a civil suit for permanent injunction against the plaintiffs and he claimed ownership and possession of the property on the basis of sale deed in question. The said suit was dismissed and the sale deed in question was held to be fabricated. The mutation sanctioned in favour of the defendant on the basis of that sale deed does not confer any title on him. The defendant was called upon to admit their title but to no effect. Hence, the suit. 4. The suit was contested by the defendant on the ground that the sale deed was executed by Sayian Singh with his free will. It is a valid sale deed. The defendant is a respectable person being the Sarpanch of the village. The defendant was called upon to admit their title but to no effect. Hence, the suit. 4. The suit was contested by the defendant on the ground that the sale deed was executed by Sayian Singh with his free will. It is a valid sale deed. The defendant is a respectable person being the Sarpanch of the village. The mutation has been rightly sanctioned in his favour on the basis of sale deed. The present suit filed by the plaintiffs is a frivolous one. 5. The plaintiffs filed the re-joinder to the written statement of the defendant in which they reiterated their allegations made in the plaint by denying those of the written statement and from the pleadings of the parties, the learned trial Court framed the following issues :- 1. Whether the plaintiffs are owners in possession of the land measuring 8 kanals and described in the head-note of the plaint ? OPP 2. Whether the sale deed dated 26.12.1991 executed in favour of the defendant is a forged and fabricated document and has no legal sanctity and is liable to be rejected ? OPP 3. Whether the plaintiffs are entitled to the injunction prayed ? OPP 4. Whether the present suit is not maintainable in the present form ? OPD 5. Whether the suit is not properly valued for the purposes of Court fee and jurisdiction ? OPD 6. Relief. 6. The parties led oral and documentary evidence in support of their respective cases and on the conclusion of the trial, the suit of the plaintiffs was dismissed by holding that the sale deed dated 26.12.1991 executed by Sayian Singh in favour of defendant Gian Singh is neither fabricated nor forged. It was also held under issue No. 1 that the plaintiffs have not become the owners of the suit property after the death of Sayian Singh on the basis of registered Will pleaded by them. 7. Aggrieved by the judgment and decree dated 26.11.1997 passed by the Court of Civil Judge (Senior Division), Ferozepur, the plaintiffs filed first appeal before the Addl. District Judge, Ferozepur, who, for the reasons given in paras No. 9 to 13 of the judgment dated 26.3.1999, dismissed the appeal. Aggrieved by the judgment and decree of the first Appellate Court, the present appeal was filed by the unsuccessful plaintiffs. 8. District Judge, Ferozepur, who, for the reasons given in paras No. 9 to 13 of the judgment dated 26.3.1999, dismissed the appeal. Aggrieved by the judgment and decree of the first Appellate Court, the present appeal was filed by the unsuccessful plaintiffs. 8. Before I deal with the submissions raised by the learned counsel for the appellants, it will be appropriate for me to incorporate paras No. 9 to 13 of the judgment of first Appellate Court, which read as under :- "9. I have heard learned counsel for the appellants and have gone through the file. Counsel for the appellants argued that appellants are owners in possession of the property in dispute, earlier owned by their father. Sayian Singh had executed a valid Will in their favour dated 12.5.1987 and on the basis of Will mutation was sanctioned in their favour. Appellants are owners in possession of the property in dispute. Sayian Singh did not execute sale deed dated 26.12.1991 and the alleged sale deed dated 26.12.1991 is the result of mis-representation and fraud and is wrong and illegal. Argued that one criminal case was registered against the respondent. There is report of hand-writing expert. Disputed thumb impression of Sayian Singh on the alleged sale deed was compared with the standard thumb impression of Sayian Singh. Expert opined that disputed thumb impressions are not tallying with the standard thumb impressions of Sayian Singh. Appellants were represented by Sh. Vikramaditya Mandhar Advocate, counsel for the appellants before the trial Court was young-cleagre and was mainly practising on the criminal side. The learned counsel for the appellants before the trial Court failed to examine expert. An application under section 41 r 27 was filed that appellants be allowed to examine hand-writing and finger print expert to prove the report. Appellants should not be suffer for the fault of their counsel. 10. Earlier respondent filed suit for permanent injunction on the allegations that he is owner in possession of the property in dispute on the basis of sale deed. That suit was dismissed vide judgment and decree dated 24.7.1997. It was held by the Court that the respondent is not in possession of the property in dispute. 10. Earlier respondent filed suit for permanent injunction on the allegations that he is owner in possession of the property in dispute on the basis of sale deed. That suit was dismissed vide judgment and decree dated 24.7.1997. It was held by the Court that the respondent is not in possession of the property in dispute. Registration of criminal case is an admitted fact, so finding of the lower Court that appellants are in possession of the property in dispute is correct, whereas trial Court wrongly came to this conclusion that appellants are not owners of the property in dispute. The alleged sale deed executed by Sayian Singh was not produced by the respondent nor on the basis of sale deed there is any effort to obtain possession. Trial Court wrongly came to this conclusion that respondent is owner of the property in dispute as per sale deed, particularly when there is affidavit of one of the marginal witnesses of the sale deed i.e. of Mohinder Singh Sarpanch to the effect that he never witnessed the sale deed executed by Sayian Singh. Requested that judgment and decree of the trial Court be set aside and the appellants be allowed to lead additional evidence. 11. Admittedly, appellants are sons of Sayian Singh. Sayian Singh was owner of the property in dispute. According to the appellants Sayian Singh had executed registered will dated 12.5.1987 in their favour, so as per will they are owners in possession of the property in dispute, whereas allegation of the defendant is that vide sale deed dated 26.12.1991 disputed property was sold by Sayian Singh. Now the main point which requires consideration is whether Sayian Singh had executed sale deed dated 26.12.1991 in favour of respondent, who is ex parte before the appellate Court. 12. It is in evidence that one criminal case was registered against the respondent and there is report of the expert. But the question is whether at this stage, appellants can be allowed to lead additional evidence. In the plaint there is allegation that Anil Kumar hand-writing expert has compared the disputed thumb impression of Sayian Singh on the sale deed with the standard thumb impression of Sayian Singh on the Will. Report of the expert is dated 25.12.1993. Civil suit for declaration was filed in the month of June, 1995. In the plaint there is allegation that Anil Kumar hand-writing expert has compared the disputed thumb impression of Sayian Singh on the sale deed with the standard thumb impression of Sayian Singh on the Will. Report of the expert is dated 25.12.1993. Civil suit for declaration was filed in the month of June, 1995. After issues, numbers of dates were given to the appellant to lead evidence. Jit Singh in cross-examination stated that sale deed was supplied to the hand-writing expert for comparison of the disputed thumb impression. Statement of Jit Singh was recorded on 1.8.1997 that means report of the expert was very much in existence and was in the knowledge of the appellants. Suppose there is no report of finger print expert, even then it was clear cut case of the appellant that sale deed alleged to have been executed by Sayian Singh is the result of mis-representation and fraud. The appellants could easily examine the expert for comparison of the disputed thumb impression of Sayian Singh on the sale deed with his standard thumb impression, but no effort was made either to examine Anil Kumar hand-writing expert or any other expert, when the appellants were leading evidence. No doubt, due to the negligence of lawyer, party should not suffer but in this case, no question of any negligence of the lawyer. Appellants were of the opinion that disputed sale deed was not executed by Sayian Singh, so appellants could easily examine Anil Kumar or any other expert to opine that the disputed thumb impression on the sale deed is not of Sayian Singh. Again, there is allegation that Mohinder Singh one of the marginal witnesses of sale deed gave affidavit to the effect that he never witnessed the sale deed alleged to have been executed by Sayian Singh. Again, no effort was made to examine Mohinder Singh. On the basis of sale deed, mutation was sanctioned. No reference to the mutation sanctioned in favour of the appellants on the basis of Will. That means appellants never made any effort to get the mutation sanctioned qua this suit land in their favour on the basis of registered Will, so application for additional evidence without merits is rejected. 13. The case of the appellants is that sale deed alleged to have been executed by their father, copy of which is Ex.P6, is the result of fraud and mis-representation. 13. The case of the appellants is that sale deed alleged to have been executed by their father, copy of which is Ex.P6, is the result of fraud and mis-representation. The main suit for declaration was filed by the appellants and the appellants were to lead cogent and convincing evidence to establish that the alleged sale deed was not executed by their father i.e. the disputed thumb impression on the sale deed is not of Sayian Singh. Appellants were required to examine expert for comparison of the disputed thumb impression on the sale deed with the standard thumb impression of Sayian Singh. Anil Kumar hand-writing expert after comparison of the disputed thumb impression with the standard thumb impression of Sayian Singh submitted report, but no effort was made to examine Anil Kumar to opine that the disputed thumb impression on the sale deed, copy of which is Ex.P6 is not tallying with the standard thumb impression of Sayian Singh. The marginal witnesses of the sale deed were not examined. One Mohinder Singh Sarpanch is marginal witness of the disputed sale deed. As per appellants, Mohinder Singh gave affidavit to the effect that he did not witness sale deed alleged to have been executed by Sayian Singh, but he was not examined. No effort was made to prove the affidavit of Mohinder Singh. Jit Singh one of the appellants when appeared in Court then stated that he came to know about the sale deed four years back. Again stated that Sayian Singh died about three years back. That means, before the death of Sayian Singh, appellants came to know about the disputed sale deed. If the appellants had knowledge that their father did not execute sale deed, then during life time of Sayian Singh, suit should have been filed. Sayian Singh was the best person to approach the Court on the allegations that he did not execute the sale deed dated 26.12.1991 in favour of Gian Singh. Failure to file the suit for declaration either by appellants or by Sayian Singh during his life time show that contention of the appellants is not genuine one. As per disputed sale deed, disputed property was sold to the respondent, so appellants are to plead that the sale deed is the result of fraud and mis- representation. Failure to file the suit for declaration either by appellants or by Sayian Singh during his life time show that contention of the appellants is not genuine one. As per disputed sale deed, disputed property was sold to the respondent, so appellants are to plead that the sale deed is the result of fraud and mis- representation. But to substantiate this allegation either the marginal witnesses or the scribe were the best persons to opine that Sayian Singh did not execute the sale deed. Disputed thumb impression on the sale deed alleged to have been executed by Sayian Singh is not tallying with the standard thumb impression of Sayian Singh. The only conclusion which can be drawn is that Sayian Singh had executed disputed sale deed dated 26.12.1991 for valuable consideration in the presence of Mangal Singh and Mohinder Singh. Mangal Singh, one of the marginal witnesses appeared in the Court as DW2 and on oath stated that vide sale deed dated 26.12.1991 property was purchased by respondent from Sayian Singh. Original sale deed was got summoned from the file State v. Gian Singh. Mohinder Singh is second marginal witness of the sale deed produced by the respondent. Mohinder Singh on oath stated that sale deed Ex.D1 was executed by Sayian Singh in favour of Gian Singh. Sayian Singh had thumb marked the sale deed admitting the same to be correct one. On cross-examination, Mohinder Singh categorically stated that he never executed any affidavit to the effect that he did not witness the sale deed in dispute. As discussed earlier, original affidavit should have been brought on file and the affidavits should have been put to the witness. In case, the witness denies the execution of affidavit, then appellants could easily summon expert for comparison of the standard signatures of Mohinder Singh with his disputed signatures on the affidavit. Oath Commissioner with record could be summoned to prove the execution of affidavit. So appearance of marginal witnesses and non-examination of expert by appellants clearly show that respondent purchased the property vide sale deed dated 26.12.1991, photo copy of which is Ex.D1. Failure to obtain possession as per sale deed or dismissal of suit for permanent injunction is not sufficient to presume that Sayian Singh did not execute sale deed dated 26.12.1991. Earlier suit was for permanent injunction filed by the respondent. Failure to obtain possession as per sale deed or dismissal of suit for permanent injunction is not sufficient to presume that Sayian Singh did not execute sale deed dated 26.12.1991. Earlier suit was for permanent injunction filed by the respondent. Present suit is for declaration, so no question of declaring the appellants to be owners of the disputed property." 9-10. The learned counsel for the appellants submitted that both the Courts have fell in error in dismissing the suit of the plaintiffs, because vide judgment and decree dated 24.7.1997 the suit of Gian Singh was dismissed and in the earlier suit Gian Singh had pleaded and relied upon his title and possession on the basis of sale deed dated 26.12.1991, which is the main controversy in the present suit. He submitted that the Courts below, especially the first Appellate Court, did not give the proper opportunity to the appellants to place on record the certified copy of the judgment dated 24.7.1997 vide which the earlier suit of Gian Singh was dismissed. The counsel further submitted that in these circumstances, the application under Order 41 Rule 27 CPC moved by the appellants before the first Appellate Court ought to have been allowed. 11. After considering the contentions raised by the learned counsel for the appellants, I am of the considered opinion that this appeal deserves to be dismissed. The judgment dated 24.7.1997 was an inter-party judgment and it was within the knowledge of the appellants. This judgment could be easily produced by them before the trial Court. In these circumstances, this document could not be allowed to be taken on record in the first appeal. The additional evidence cannot be allowed to a party as a matter of course. Order 41 Rule 27 C.P.C. starts with a negative note and it lays down that the parties to an appeal shall not be entitled to produce additional evidence, whether oral or documentary, in the Appellate Court. The additional evidence cannot be allowed to a party as a matter of course. Order 41 Rule 27 C.P.C. starts with a negative note and it lays down that the parties to an appeal shall not be entitled to produce additional evidence, whether oral or documentary, in the Appellate Court. But if the Court from whose decree the appeal is preferred has refused to admit evidence which ought to have been admitted, or the party seeking to produce additional evidence, establishes that notwithstanding the exercise of due diligence, such evidence was not within his knowledge or could not, after the exercise of due diligence, be produced by him at the time when the decree appealed against was passed, or the Appellate Court requires any document to be produced or any witness to be examined to enable it to pronounce judgment, or for any other substantial cause, the Appellate Court may allow such evidence or document to be produced, or witness to be examined. A reading of the above provisions would show that a party to the litigation cannot lead additional evidence as a matter of right. He has to bring his case under one or two clauses of the provisions. Of course, the additional evidence can always be taken by the Court if such evidence is required for the pronouncement of a judgment or for any substantial course. Be that as it may, if this judgment is looked into for the advantage of the appellants, still this Court is of the considered opinion that the case of the appellants is not likely to be improved. The earlier suit filed by Gian Singh was a suit for injunction, vide which he made a prayer that the present appellants be restrained from interfering in his possession. Gian Singh could not prove his possession on the date of the institution of the suit, resultantly his suit was dismissed. There was no issue with regard to the sale deed in the earlier suit. The sale deed was never set aside by the Civil Court. In these circumstances, it is always open to Gian Singh to say that he has become the owner of the property by virtue of a sale deed. In the present case a specific challenge has been given to the sale deed dated 26.12.1991 executed by Sayian Singh in favour of Gian Singh and issue No. 2 is to that effect. In these circumstances, it is always open to Gian Singh to say that he has become the owner of the property by virtue of a sale deed. In the present case a specific challenge has been given to the sale deed dated 26.12.1991 executed by Sayian Singh in favour of Gian Singh and issue No. 2 is to that effect. This issue has gone against the plaintiffs. The case set up by the plaintiffs before the trial Court was that the sale deed was a result of forgery, mis-representation or fraud. In these circumstances, it was for the appellants to establish that the signatures of Sayian Singh on the sale deed in question are of a different person. Rather, there is no satisfactory evidence led on behalf of the appellants that any fraud or mis-representation was played upon Sayian Singh. Therefore, on the strength of the title, Gian Singh has become the owner of the suit property. Resultantly, this Court is of the considered opinion that both the Courts below have rightly dismissed the suit of the present appellants. No merits. Dismissed. Appeal dismissed.