Research › Search › Judgment

Punjab High Court · body

2009 DIGILAW 691 (PNJ)

Madan Lal v. Pushpa

2009-04-16

MAHESH GROVER

body2009
Judgment Mahesh Grover, J. 1. This Regular appeal is directed against the judgments and decrees dated 22.9.2004 and 20.7.2005 passed respectively by the Civil Judge (Junior Division), Ludhiana (hereinafter referred to as `the trial Court) and the Additional District Judge, Ludhiana (described hereinafter as `the First Appellate Court) whereby the suit and the appeal of the plaintiff-appellant have been dismissed. 2. The appellant filed a suit for declaration and permanent injunction alleging that the defendant-respondent was a member of Adarsh Colony Cooperative House Building Society Ltd., Ludhiana, having membership No. 584 and she was allotted plot No. 265-A measuring 300 square yards in Rajguru Nagar. It was further alleged that after receiving full consideration, the respondent voluntarily transferred the said plot in the name of the appellant on 5.6.1993 and executed an affidavit duly attested by the Executive Magistrate to that effect. The appellant had pleaded that thereafter he approached the said society for transfer of the plot, but its office-bearers directed him to produce the respondent, who refused to honour the affidavit, as a result of which the plot could not be transferred in his name. 3. The respondent, upon notice, appeared and filed her written statement denying the execution of the alleged affidavit and pleaded that such a document could not confer any right, title or interest upon any person under the Registration Act. It was also denied that the appellant is in possession of the said plot. The respondent pleaded that the act of the appellant in getting the alleged affidavit was fraudulent one. She averred that one Chaman Lal Jindal was holding an important office in the society and was having access to the files of all its members; that he was thick with her family and was looking after other affairs as well and that some blank papers in the process might have been abused by him to create the affidavit upon which the appellant was placing reliance. 4. The parties went to trial on the following issues:- 1. Whether the defendant transferred all her rights in favour of the plaintiff in respect of the suit property by executing alleged affidavit? If so its effect ? OPP 2. Whether the plaintiff is entitled to declaration and injunction prayed for ? OPP 3. Whether the suit is not maintainable in the present form ? OPD 4. Whether the defendant transferred all her rights in favour of the plaintiff in respect of the suit property by executing alleged affidavit? If so its effect ? OPP 2. Whether the plaintiff is entitled to declaration and injunction prayed for ? OPP 3. Whether the suit is not maintainable in the present form ? OPD 4. Whether plaintiff has no cause of action to file the present suit ? OPD 5. Whether the suit is bad for non-joinder of necessary party ? OPD 6. Whether the suit has not been properly valued for the purpose of court fee ? OPD 7. Whether the alleged affidavit is fabricated document and is the result of concealment and misrepresentation ? OPD 8. Relief. 5. Upon appraisal of the entire evidence before it, the trial Court dismissed the suit and held that the affidavit upon which reliance had been placed by the appellant was a fabricated document. 6. The appeal filed by the appellant against the judgment and decree of the trial Court was dismissed by the First Appellate Court. 7. Hence, this Regular Second Appeal. 8. Learned counsel for the appellant contended that the original affidavit which was lying in a sealed cover went missing from the Court file and, therefore, he could not prove the same so as to obtain any benefit therefrom. It is the further contention of the learned counsel for the appellant that the only beneficiary in such a situation where the original affidavit got lost was the respondent herself and, therefore, from this, an inference should be drawn that the affidavit was validly executed as it was inconvenient to her. 9. On the other hand, learned counsel for the respondent contended that the affidavit cannot be read into evidence at all as it is in English and it has been signed in Hindi which is totally contrary to the provisions of Order 19 Rule 1 of the Code of Civil Procedure,1908 (for short, `the C.P.C.). To support this contention, reliance was placed on a judgment of Calcutta High Court in Abdul Rashid Versus Calcutta Municipal Corporation and others, AIR 1990 Calcutta 37. To support this contention, reliance was placed on a judgment of Calcutta High Court in Abdul Rashid Versus Calcutta Municipal Corporation and others, AIR 1990 Calcutta 37. The relevant observations made in paragraph 9 of the judgment are extracted below:- ".......This affidavit cannot be relied upon as the said Kedar Prasad has signed in Hindi and it does not appear from the body of the affidavit that the text of this document in English was explained to him by anybody. ................." 10. I have thoughtfully considered the rival contentions and have gone through the whole record. 11. The only dispute which has been raised in the present appeal is that the appellant purportedly got the affidavit from the respondent in order to give effect to the transfer of the plot which was allotted to her by the society. On asking, learned counsel for the appellant stated before this Court that the reason for resorting to such a process was that the society did not permit any direct sale of plots. He also contended that the affidavit was validly executed by the respondent and, therefore, she cannot wriggle out from the right which was created in favour of the appellant by virtue thereof. 12. I am afraid, the stand of the appellant is totally misplaced. A specific query was put to the learned counsel for the appellant as to whether there was any evidence to show that consideration had passed on to the respondent, but he failed to point out any thing on record in that regard. For the sake of argument, even if it is assumed that the affidavit could have created some semblance of title in favour of the appellant, yet, the fact that no evidence is there regarding passing of consideration makes the whole thing extremely suspicious. In any eventuality, an affidavit is not intended to create any title in favour of a person and that too, an affidavit which is absolutely ambiguous having been written in English and signed in Hindi in complete violation of the provisions of Order 19 Rule 1 of the C.P.C. 13. That apart, the society was never impleaded as a party whose presence could have brought out the fact as to whether there were any bye laws permitting such a transfer by way of an affidavit. 14. In my opinion, the appellant has miserably failed to substantiate his case. That apart, the society was never impleaded as a party whose presence could have brought out the fact as to whether there were any bye laws permitting such a transfer by way of an affidavit. 14. In my opinion, the appellant has miserably failed to substantiate his case. No attempt was made by him to get the signatures of the respondent available on the affidavit compared with her admitted ones. 15. In this view of the matter, no substantial question of law arises for determination in this appeal which is held to be devoid of any merit and is dismissed.