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2009 DIGILAW 514 (PNJ)

Jaswinder Kaur @ Jassi v. Kapoor Singh

2009-03-18

MAHESH GROVER

body2009
JUDGMENT Mahesh Grover, J.:-This Regular Second Appeal is directed against judgments and decrees dated 12.10.2002 and 26.5.2005 passed respectively by the Civil Judge (Junior Division), Nawanshahar (hereinafter described as ‘the trial Court’) and Additional District Judge, Nawanshahar (referred to hereinafter as ‘the First Appellate Court’) whereby the suit filed by the plaintiff-respondent no.1 was decreed and the appeal of defendant no.1-appellant was dismissed. 2. Respondent no.1, who is father of the appellant filed a suit for declaration to the effect that he is owner and in joint possession of the land fully described in the head notes (a) to (c) to the extent of ½ share, whereas he is owner and in exclusive possession of the land detailed in head note (d) of the plaint and that the decree dated 1.6.1994 passed in Civil Suit No.143 of 1994 is null & void, inoperative, illegal, not binding on him and is the result of fraudulent means. A consequential relief of permanent injunction was also sought restraining the appellant from dispossessing him from the suit land forcibly or alienating the same. Alternatively a decree for possession of the suit land was also prayed. 3. It was pleaded by respondent no.1 that the aforesaid decree was the result of fraud and impersonation; that a week prior to the filing of the suit, he had discovered that mutation no.1033 had been sanctioned in favour of the appellant qua the disputed land on the basis of that decree and that he had never appeared in the Court. It was further pleaded that he was an old person of more than 80 years and was having no male child and that he was residing with his brother Gurbachan Singh and nephews, namely, Sukhdev Singh and Parvinder Singh, who were cultivating the suit land jointly. Respondent no.1 had averred that the appellant had mortgaged the suit land in favour of respondent no.3-Punjab National Bank and that such mortgage was also not binding on his rights. 4. Upon notice, the appellant had appeared and filed her written statement controverting the averments made in the plaint. It was pleaded by her that the decree dated 1.6.1994 was validly passed after respondent no.1 had himself appeared in the Court and got recorded his statement to that effect. 4. Upon notice, the appellant had appeared and filed her written statement controverting the averments made in the plaint. It was pleaded by her that the decree dated 1.6.1994 was validly passed after respondent no.1 had himself appeared in the Court and got recorded his statement to that effect. It was further pleaded that she was the only legal heir of respondent no.1 and was residing with him in the same house since her birth and after her marriage as well. She averred that in fact, the suit land had been given to her in a family settlement which took place on 1.6.1991 and even prior to the passing of the decree in question, she was in possession of it. The instant suit was stated to have been filed fraudulently at the instance of respondent no.2 and his sons because they had designs to grab the land in dispute and proceedings under Section 145 of the Cr.P.C. were initiated and the appellant was held to be owner in possession thereof. The mortgage was also pleaded to be legal and valid. 5. In his separate written statement, respondent no.2 had admitted that respondent no.1 was owner of the suit land and that the same had been leased out to him and he was in exclusive cultivating possession thereof. 6. Respondent no.3, in its written statement, denied that respondent no.1 was owner in possession of the suit land. It asserted that the appellant being the exclusive owner and in possession, mortgaged the suit land measuring 31 kanals 6 marlas in its favour vide registered deed dated 19.9.1994 for Rs.1,35,000/- which loan was meant for purchase of a tractor. The rest of the allegations were denied for want of knowledge. 7. It may be mentioned here that the suit against Ujagar Singh respondent no.4, who was impleaded as defendant no.4, was withdrawn on 7.11.1996. 8. On the basis of the pleadings of the parties, the trial Court framed the following issues:- 1. Whether the plaintiff is owner in joint possession to the extent of 1/.2 share out of the suit land fully mentioned in the head note of plaint?OPP 2. Whether the plaintiff is owner in exclusive possession of the land described in head note?OPP 3. Whether the plaintiff is owner in joint possession to the extent of 1/.2 share out of the suit land fully mentioned in the head note of plaint?OPP 2. Whether the plaintiff is owner in exclusive possession of the land described in head note?OPP 3. Whether the decree passed in civil suit no.143/94 passed on 1.6.94 by Sh.M.S.Walia, ASSJ, is null, void, inoperative and not binding on the plaintiff and obtained with fraud after connivance with the persons concerned?OPP 4. If the above stated issues are proved, whether plaintiff is entitled to declaration and permanent injunction prayed for?OPP 5. If the above stated issues not proved, whether plaintiff is entitled for the possession of the suit land in the alternative?OPP 6. Whether the suit is not maintainable in the present form?OPD 7. Whether the suit is not within time?OPD 8. Whether the plaintiff is barred by his act and conduct, estoppel, res judica and acquiescence?OPD 9. Whether the suit is bad for mis-joinder and non-joinder of necessary parties and cause of action?OPD 10. Whether the plaintiff has got no locus standi to file the present suit?OPD 11. Relief. 9. During the trial, respondent nos. 2 and 3 did not appear and were proceeded against ex parte. 10. After appraisal of the entire evidence on record, the trial Court decreed the suit of respondent no.1. 11. In appeal, the findings recorded by the trial Court were affirmed by the First Appellate Court. 12. Learned counsel for the appellant contended that the findings recorded by both the Courts below are erroneous. The fore-most contention raised by him is that the appellant had moved an application under Order 41 Rule 27 of the C.P.C. before the First Appellant Court, but the same remained undecided. It was contended that by way of the additional evidence, the appellant wanted to produce the statement of respondent no.1 wherein he had admitted the factum of executing a gift deed a sale deed in the years 1963 and 1964 respectively and that on these documents, his signatures were existing and that the decree dated 1.6.1994 which was suffered by him was valid and proper. It was further contended that during the course of trial in the instant suit, respondent no.1 had denied the execution of the aforementioned documents and had the application under Order 41 Rule 27 of the C.P.C. been allowed, the appellant would have been able to establish the mala fides on the part of respondent nos. 1 & 2 and would have also been in a position to get signatures of respondent no.1 existing on the said documents compared with his other admitted signatures, especially in view of the fact that decree dated 1.6.1994 was challenged on the point of fraud and impersonation. While placing reliance on a Single Bench judgment of this Court in Ashok Kumar Versus Surinder Kumar, reported as 2005(2) R.C.R. (Civil) 557, it was submitted that the matter deserves to be remanded back as non-decision of the application under Order 41 Rule 27 of the C.P.C. resulted in miscarriage of justice as it was the duty of the First Appellate Court to decide that application before deciding the appeal. In the above referred case, it was observed in paragraph 7 of the judgment, as under:- “As referred to above, the defendant-appellant had filed an application under Order 41 Rule 27 CPC for production of additional evidence during the pendency of the appeal. Notice in the said application was given to the other side, who had filed the reply and the case was fixed for arguments in the main appeal as also on the application for additional evidence. However, without deciding the application for additional evidence, learned Additional District Judge, proceeded to dismiss the appeal filed by the defendant-appellant. Under these circumstances, in my opinion, the decision of the appeal without deciding the application for additional evidence has resulted in miscarriage of justice. In my opinion, it was the duty of the lower appellate Court to have decided the application for additional evidence and could not have decided the appeal without deciding the aforesaid application for additional evidence.” 13. It was next contended by the learned counsel for the appellant that both the Courts have ignored the cogent and material evidence on record while returning the findings against the appellant. It was next contended by the learned counsel for the appellant that both the Courts have ignored the cogent and material evidence on record while returning the findings against the appellant. It was pointed out that onus to prove issue no.3 was upon respondent no.1 and he had produced a handwriting expert whose testimony was discarded by the Courts below and once that was done, then it was imperative upon respondent no.1 to produce some other evidence to prove that the decree was result of impersonation and fraud, but rather the onus to prove the said issue was obliquely shifted upon the appellant and it was argued that according to the provisions of Section 80 of the Indian Evidence Act,1872 (for short, ‘the Act’), the document which is a decree of the Court ought to have been accepted. The said Section reads as under:- “80. Presumption as to documents produced as record of evidence.- Whenever any document is produced before any Court, purporting to be a record or memorandum of the evidence, or of any part of the evidence, given by a witness in a judicial proceeding or before any officer authorized by law to take such evidence, or to be a statement or confession by any prisoner or accused person, taken in accordance with law, and purporting to be signed by any Judge or Magistrate, or by any such officer as aforesaid, the Court shall presume-- that the document is genuine; that any statements as to the circumstances under which it was taken, purporting to be made by the person signing it, are true, and that such evidence, statement or confession was duly taken.” 14. With reference to the above quoted provisions of law, learned counsel for the appellant contended that in the proceedings of Civil Suit No.143 of 1994 pursuant to which decree dated 1.6.1994 was passed, the statement of respondent no.1 was recorded under the signatures of a Magistrate and, therefore, ipso facto that ought to have been sufficient to have been accepted by the Courts below and it could not be set aside on the ground that it was the result of fraud. 15. 15. Lastly, it was contended that the appellant had produced cogent and material evidence in the shape of Court officials and the Clerk of the Advocate, who had identified respondent no.1 during the course of earlier proceedings and in this view of the matter, the Courts below ought to have held the decree to be valid, but since they have resorted to erroneous reasoning, it has resulted in perverse findings and accordingly, the same deserve to be set aside. 16. On the other hand, learned counsel for respondent no.1 contended that merely because the application under Order 41 Rule 27 of the C.P.C. has not been decided, it would not mean that the entire case has to be remanded back and the entire exercise undertaken by the Courts below has to be reduced to a nullity. He further contended that it has to be shown to this Court and established before it that the appellant had made genuine efforts to get the said application decided during the course of proceedings and despite that, it was not done. Moreover, no prejudice has been shown to have been caused to the appellant by non-decision of the application for the reason that there was other collateral evidence on record on the basis of which the suit was decreed. It was submitted that the appellant is the only daughter of respondent no.1, but she was having strained relations with him which had been admitted by her when she testified before the Court. He categorically referred to the statement of the appellant made during the course of proceedings in the suit to say that she had expressed total ignorance regarding the earlier proceedings pursuant to which decree dated 1.6.1994 had been passed, implying thereby that the decree was the result of fraud and, therefore, the Courts below have rightly set aside the same. 17. To support his contentions/ submissions, he placed reliance on Prabhu Dayal Versus Hardevi, 1994(1) P.L.R. 398 and Sohan Singh Versus Gurmej Singh and others, 2002(4) R.C.R. (Civil) 703. 18. In Prabhu Dayal’s case (supra), it was observed in paragraph 5 of the judgment, as under:- “............Thus, the prayer of the petitioner for remand of the case cannot be accepted because it would be an exercise in futility if the case is remanded to the appellate Authority for deciding application under Order XLI Rule 27 of the Code of Civil Procedure. ..........” 19. That was a case wherein the ejectment of the tenant was ordered by both the Authorities below and in the revision petition preferred by him before this Court, it was pointed out that no order was passed by the Appellate Authority on his application under Order 41 Rule 27 of the C.P.C. while deciding his appeal. 20. In Sohan Singh’s case (supra), the Regular Second Appeal was dismissed by this Court, although it was argued on behalf of the appellants that their application for additional evidence under Order 41 Rule 27 of the C.P.C. remained undecided by the District Judge, Amritsar at the of decision of the appeal. It was observed in paragraphs 7 and 9 of the judgment as under:- “7. I have examined the records and considered the submissions made by the learned counsel for the plaintiffs-appellants. Perusal of the record reveals that the application for additional evidence under Order 41 Rule 27 CPC was filed by the plaintiffs-appellants on 5.11.1981, when the appeal was fixed for hearing. It was not filed along with the appeal, which was filed on 5.5.1979. Reply to the said application was filed by the contesting defendants-respondents on 24.11.1981 and on that date, it was ordered that the application shall be disposed of along with the main appeal. The main appeal was decided on 5.1.1982. It also appears from the record that no separate order has been passed on the said application at the time of final disposal of the appeal. In the judgment, no reference of the said application has been made. It appears that the application for additional evidence was not pressed and no argument was raised on that application at the time of final arguments and perhaps for these reasons, no order was passed on the said application and the same was not referred to in the judgment. In the grounds of appeal before this Court also, the plaintiffsR. S.A.No.2242 of 2005 -11- .... appellants did not state that this application was pressed and argued before the learned first appellate Court at the time of final arguments and in spite of that, no order was passed on their application. In these circumstances, it will not be appropriate for this Court to accept the contention of the learned counsel and remand the matter to the first appellate Curt after setting aside the judgment decree. In these circumstances, it will not be appropriate for this Court to accept the contention of the learned counsel and remand the matter to the first appellate Curt after setting aside the judgment decree. I am of the view that instead of remanding the case to the first appellate Court and to compel the parties to face further agony of years for final determination of their dispute, it will be more appropriate if this Court considers their application for additional evidence filed by the plaintiffs-appellants and take a decision whether they are entitled to lead additional evidence and whether the proposed additional evidence is necessary for the just and proper adjudication of the matter. My above view is supported by decision of this Court in Prabhu Lal v. Hardevi, (1994-1) 106 P.L.R. 398, wherein it has been held in similar circumstances that the remand of the case will not be appropriate. It will result into delay and the ends of justice will meet if the application for additional evidence is considered by this Court. I am of the opinion that the remand of a case cannot be ordered by the appellate court as a matter of course or convenience. Appellate Court can remand a case only when any eventuality as mentioned in Order 41 Rule 23 and 23(a) C.P.C. occurs. Mere insufficiency of evidence on the file to support the contentions of a party is by itself no ground for setting aside the judgment of the trial court and order for remand. Remanding a case for re-trial is a serious matter. Such order can be passed in exceptional circumstances where there had been no real trial or complete and effective adjudication of the matter. Remand is not meant for providing fresh opportunity to a party. Keeping in view these factors, I find no merit in the contention of learned counsel for the plaintiffs-appellants for remanding the matter to the first appellate Court, after setting aside its judgment and decree, for deciding their application for additional evidence and then to decide their first appeal on merits. 9. I have considered this application and am of the view that the plaintiffs-appellants were not entitled to lead any additional evidence as they did not fulfil the requirements of leading additional evidence at appellate stage, as required in Order 41 Rule 27 CPC. 9. I have considered this application and am of the view that the plaintiffs-appellants were not entitled to lead any additional evidence as they did not fulfil the requirements of leading additional evidence at appellate stage, as required in Order 41 Rule 27 CPC. It has not been mentioned in the application as to when these documents came to the knowledge of the plaintiffs-appellants nor any averment has been made in the application that notwithstanding the exercise of due diligence, they could not get the knowledge of these documents at the time when they were leading their evidence. Furthermore, in my opinion, these documents are not required to decide the matter in controversy because as per the findings recorded by the learned trial court, the alleged gift deeds in favour of the plaintiffs-appellants were held to be result of fraud and the same were never acted upon. As per the documents, available on the record, possession of the land of Bhan Singh was never transferred to the plaintiffs-appellants and Bhan Singh always remained in possession thereof during his life time. It has also come on record that Bhan Singh himself filed a suit, copy of plaint whereof is Ex.D2 against the plaintiffs-appellants alleging therein tha the did not make any gift deed in favour of any one and the alleged gift deeds in favour of the plaintiffsappellants are result of fraud. During the pendency of that suit, he made a statement in the court, copy of which is Ex.D2/A, that he never executed the alleged gift deeds in their favour, which were result of fraud and mis-representation. In view of these facts and finding, the documents sought to be proved in additional evidence by the plaintiffs-appellants were not relevant for adjudication of the controversy in question because once the alleged gift deeds were found to be the result of fraud and mis-representation, then these documents were not relevant. Thus, I find no merit in the application filed by the plaintiffs-appellants for leading additional evidence and I am of the opinion that no prejudice was caused to them by not deciding their application by the first appellate court.” 21. I have thoughtfully considered the rival contentions and have perused the impugned judgments, as also the record. 22. Thus, I find no merit in the application filed by the plaintiffs-appellants for leading additional evidence and I am of the opinion that no prejudice was caused to them by not deciding their application by the first appellate court.” 21. I have thoughtfully considered the rival contentions and have perused the impugned judgments, as also the record. 22. There is no doubt that the appellant’s application under Order 41 Rule 27 of the C.P.C. remained undecided, but it has to be seen as to whether any prejudice has been caused to her on that account. Both the parties have examined Handwriting experts in support of their respective claims and they have furnished reports favouring the party engaging them. The appellant got the signatures of respondent no.1 compared with his signatures present on various documents, viz., the sale deed Exhibit D1, plaint of Civil Suit No.602 of 3.7.1997, the application under Order 39 Rules 1 & 2 of the C.P.C. and the power of attorney in favour of Shri P.S.Kahlon, Advocate (Exhibit DW4/1 to DW4/), whereas respondent no.1 got his specimen signatures given by him in the Court compared with the disputed signatures on the written statement filed in suit no.143 of 1994 and the statement made by him before the Court. Both the Courts below have given cogent reasoning while discarding the reports submitted by the handwriting experts and I do not find any infirmity therein. Therefore, the prayer of the appellant made now in the application under Order 41 Rule 27 of the C.P.C. for production of documents containing signatures of respondent no.1 for the purpose of comparison thereof with his disputed signatures, in my opinion, cannot be acceded to. Moreover, it has not been shown as to whether these documents were not in the knowledge of the appellant at the time when she was leading evidence and further the signatures were in any case compared with those present on the documents which were on record and to which the parties had willingly submitted themselves to. Therefore, even if the application would have been allowed, it would have made no significant change in the case of the appellant. Therefore, even if the application would have been allowed, it would have made no significant change in the case of the appellant. Resultantly, the contention of the learned counsel for the appellant that the matter be remanded back to the First Appellate Court for decision of the application of the appellant under Order 41 Rule 27 of the C.P.C. after setting aside the impugned judgments and decrees cannot be accepted. 23. In so far as the merits of the case is concerned, I am of the opinion that both the Courts below have given cogent reasons for discarding the decree dated 1.6.1994. 24. Respondent no.1 stepped into the witness box as PW1 and deposed that he never suffered any consent decree in favour of the appellant. He further stated that neither he engaged any counsel nor filed any written statement and that he never appeared in Court of Shri M.S. Walia, the then Additional Senior Sub Judge, Nawanshahar. It is his deposition that the appellant had committed fraud upon him and produced some one else in his place to grab the suit land. 25. To the contrary, the appellant appeared as DW8. Her testimony is revealing. In her cross-examination, she replied to most of the question by using the phrase “I do not remember”. She also admitted that her father had got an FIR registered against her. The reading of her testimony also gives a hint that she was having strained relationship with her father, i.e., respondent no.1. She also expressed her ignorance about each and every aspect of the proceedings leading to the passing of the consent decree dated 1.6.1994. 26. Both the Courts below have extensively referred to the deposition of the appellant in order to arrive at a conclusion whether the impugned decree was out of a free will of respondent no.1 or not and concluded that it was the result of fraud and misrepresentation. 27. Moreover, Shri J.S.Rana, Advocate, who had filed written statement on behalf of respondent no.1 in Civil Suit No.143 of 1994 and also signed under the statement of respondent no.1, has not been examined during the course of trial and only his Clerk was produced as a witness. 27. Moreover, Shri J.S.Rana, Advocate, who had filed written statement on behalf of respondent no.1 in Civil Suit No.143 of 1994 and also signed under the statement of respondent no.1, has not been examined during the course of trial and only his Clerk was produced as a witness. It is not the case of the appellant that the said counsel was not available and this fact alone leads to a strong inference that there was something wrong in the action of the appellant. It has also come in evidence that Shri J.S.Rana, advocate was an associate of Shri I.J.Sarin, Advocate, who was counsel of the appellant in the instant proceedings before the trial Court, as also before the First Appellate Court, which further lends credence to the fraudulent and collusive nature of the proceedings. 28. On the basis of the above discussion, I do not find any merit in the appeal and the judgments of the Courts below deserve to be upheld. 29. No substantial question of law arises for determination by this Court. Accordingly, this appeal is dismissed, as also the application under Order 41 Rule 27 of the C.P.C. and the impugned judgments & decrees are maintained. --------------