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2008 DIGILAW 1766 (PNJ)

Surjit Singh v. Surjit Kaur

2008-10-20

RAKESH KUMAR GARG

body2008
JUDGMENT Rakesh Kumar Garg, J. - This is defendants second appeal challenging the judgment and decree of the Lower Appellate Court whereby the suit of the plaintiff-respondent for declaration that the plaintiffs are owners in possession in equal shares of suit land and that the revenue entries in this regard are liable to be corrected and the defendant has no right, title or interest in the suit land in any manner, has been decreed. 2. Briefly, stated that the plaintiff-respondents filed a suit for declaration to the effect that they are owners in possession in equal share of land measuring 20 kanals 1 marla fully detailed in the head note of the plaint on the allegations that originally Mehar Singh was owner of the suit land comprising in Khasra No. 1076/120 and after the consolidation, suit land was accorded new Khasra numbers. Earlier Mehar Singh mortgaged the suit land to Albel Singh, the grand father of the plaintiff-appellants No. 2 to 6 and husband of plaintiff appellant No. 1 bearing mutation No. 6601 Kartar Singh had also died on 8.11.1998 and his inheritance had devolved upon the plaintiff-appellants who have been wrongly shown as mortgages. The plaintiff- appellants have requested defendants many times to get the entries in the revenue record changed in their name, but to no effect and accordingly prayer for decreeing the suit of the appellants was made. 3. On notice, defendant appeared and contested the suit by raising preliminary objections as to suit being nullity filed against dead person, no cause of action has accrued, suit is not maintainable, it is barred by limitation, plaintiffs are estopped by their own act and conduct and the suit is barred by principle of res judicata. On merits it was alleged that previously Mehar Singh and after his death defendant being his legal heir is owner of the suit land. It is denied that Mehar Singh had mortgaged the suit land with Albel Singh or his being sold the land to Albel Singh. Thus, the entries regarding mortgage in favour of Albel Singh and after his death in favour of his legal heirs are wrong. All other averments were denied and prayer was made for dismissal of the suit. 4. After conclusion of evidence by the parties and hearing arguments, the trial Court dismissed the suit of the plaintiff-respondents. 5. Thus, the entries regarding mortgage in favour of Albel Singh and after his death in favour of his legal heirs are wrong. All other averments were denied and prayer was made for dismissal of the suit. 4. After conclusion of evidence by the parties and hearing arguments, the trial Court dismissed the suit of the plaintiff-respondents. 5. Feeling aggrieved against the aforesaid judgment and decree of the trial Court, the plaintiff-respondents filed an appeal. The additional District Judge, Fast Track Court, Bathinda vide impugned judgment and decree dated 22.8.2008 accepted the appeal filed by the plaintiff-respondents and decree the suit. 6. The contention of the learned counsel for the appellant is that the sale deed Ex.CX cannot be admitted into evidence as the original sale deed was not produced and only a certified copy thereof was produced and the loss qua the sale deed has not been established on record. Thus, the secondary evidence is not admissible. Elaborating his argument, the learned counsel has further argued that the plaintiffs were permitted to prove the registered sale deed dated 7.6.1945 by way of secondary evidence subject to the proof of its loss and existence which has not been proved and therefore, the sale deed Ex.CX cannot be held to be proved at all by any stretch of imagination. 7. The contention of the learned counsel is without any merit. The defendant- appellant has not challenged the mortgaged deed as well as the factum of sale deed till date nor they have sought the possession of the suit land from the plaintiff-respondent. A perusal of the affidavit Ex. PW-4/A of Surjit Kaur reveals that the registered sale deed could not be traced in spite of search. PW-3 Beant Kaur has also stated in her statement that as per the summoned register pertaining to Vasika number 515 from Mehar Singh son of Bachan Singh resident of Kele Wander in favour of Albel Singh for Rs. 600/- (i.e. the sale deed dated 7.6.1945) entry is found in the record and has proved the copy of the sale deed Ex.CX. On the basis of this evidence on record, the Lower Appellate Court has recorded a finding of fact that the existence and loss of sale deed in question has been proved on record. There is a presumption that a registered document is validly executed. On the basis of this evidence on record, the Lower Appellate Court has recorded a finding of fact that the existence and loss of sale deed in question has been proved on record. There is a presumption that a registered document is validly executed. There is no proof on behalf of the appellant to rebut the said presumption. Thus, the document in question obviously is admissible in evidence in view of Section 65(F) of the Evidence Act read with Section 57(5) of the Registration Act, 1908. Further, the document in question had been executed in the year 1945. The loss of the original has been proved and the relevant record has come from the custody of sub-register and thus, the genuineness of such a document can be presumed. Otherwise also, there is no evidence on record to rebut this presumption. Accordingly, the Lower Appellate Court has rightly held that the sale deed in question has been proved on record. 8. No other point has been urged. In view of the above, I find no merit in the appeal. No substantial question of law arises. Dismissed Appeal dismissed.