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2004 DIGILAW 239 (HP)

BHUPINDER KUMAR v. KISHORI LAI

2004-09-23

K.C.SOOD

body2004
JUDGMENT K.C. Sood, J.: This Second Appeal arises out of the findings of the learned Sub Judge 1st Class-II, Palampur, as affirmed by the learned Additional District Judge-II, Kangra at Dharamshala vide his impugned judgment dated 28.2.2004. 2. It appears, plaintiffs filed a suit challenging the sale deed said to have been executed by their father in favour of Devi Dass on the ground of fraud. The plea was that no sale deed was executed by their father Jagat Ram in favour of Devi Dass. The dispute raised before the trial Court was that the sale deed said to be executed by Jagat Ram on 8th November, 1976, registered with the Sub Registrar, was result of fraud as someone else was presented in place of Jagat Ram before the Sub Registrar and this sale in fact was never effected by Jagat Ram. 3. The suit was contested by the defendants. Learned trial Court as well as the first appellate Court noticed that no evidence was led by the plaintiffs in respect of the fraud claimed to have been practiced by the defendants. On the basis of the evidence led by the defendants, the trial Court and the first appellate Court came t the conclusion that the sale of and land, subject-matter of dispute was in fact made by Jagat Ram at favour of Devi Dass by thi registered sale deed. 4. Mr. Sharma, learned Counsel for the appellant, submits that the sale deed in question has not been proved on record by this defendants. He would submit that out of the two attesting witnesses one had expired and other was given up as won over b the opposite party and therefore, it cannot be said that the sale deed was duly executed by deceased Jagat Ram. 5. It is true that Section 68 of the Evidence Act provides that a document is required to be attested, it shall not be used a evidence until one attesting witness atleast has been called for the purpose of proving its execution, provided the attesting witness is alive and subject to the process of the Court and capable of giving evidence. But, proviso to Section 68 itself stipulates that it shall not be necessary to call an attesting witness in proof of the execution c a sale deed which is registered in accordance with the provisions the Indian Registration Act, 1908. But, proviso to Section 68 itself stipulates that it shall not be necessary to call an attesting witness in proof of the execution c a sale deed which is registered in accordance with the provisions the Indian Registration Act, 1908. In the present case, Section 6 obviously would not be applicable. 6. The next contention of Mr. Sharma is that the sale deed was proved through the Sub Registrar who cannot be said to be a attesting witness. It is true that Sub Registrar cannot be a attesting witness to a document. Nevertheless it is his evidence that this sale deed was signed in his presence by Jagat Ram who was identified by Kala Singh, Lambardar of the Illaqa who was personally known to the Sub Registrar. This statement of Su Registrar remained unchallenged. 7. This apart, Patwari Halqa (DW-1) deposed before the tri; Court that sale deed was presented by vendor Jagat Ram as per the record and it was thereafter the sale deed was atleast in th absence of vendee. This also, noticed learned District Judge would show that sale was in fact effected by deceased Jagat Ran The scribe had died, but his son Prabhdyal was produced by the defendants to show that it was scribed by his father. 8. The trial Court and the first appellate Court concurrently found that the sale deed contained the signatures of Jagat Ram One of the witnesses Bhawani Singh (DW-3) produced some record and it was found that the admitted signatures on the record were similar to that on the sale deed. 9. Whether a document was executed or not by a person is s pure question of fact and this Court will not interfere with the concurrent findings of fact in second appeal. 10. In this case no substantial question of law arises. Dismissed.