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2010 DIGILAW 117 (PNJ)

Amrik Singh v. Jagjit Singh

2010-01-07

MAHESH GROVER

body2010
Judgment MAHESH GROVER, J. 1. This appeal by the defendant is directed against the judgments of the learned trial Court dated 20.3.2006 and the first Appellate Court dated 26.3.2009. 2. The plaintiff-respondent filed the instant suit for declaration pleading that he is owner in possession of the land which has been described in the plaint, and that erroneously in the sale deed dated 16.6.1995, which was the basis of his ownership and possession, the land was described to be a part of Killa No.13 of Rect. No.16 whereas it should have been Killa No.17 of Rect. No.16. The suit was resisted by the defendant-appellant, who pleaded that the sale deed is false, forged and fabricated and that the signatures were obtained on a blank paper. Both, the appellant and respondent were, however, one in saying that a cardboard factory was installed jointly by them on the disputed land. The trial Court framed the following issues and the parties went to trial on the same :- 1. Whether the plaintiff is entitled to the declaration that he is owner in possession of the land of the suit land measuring 2 Kls comprised in killa No.17 of Rect. No.16 located in village Bhattian?opp 2. Whether the plaintiff is entitled to the rectification in the sale deed dated 17.5.1995 and got registered on 16.6.1995 executed by defendant in favour of the plaintiff?opp 3. Whether the alleged sale deed dated 17.5.1995 and got registered on 16.6.95 is forged and fabricated document?opd 4. Whether the suit is not maintainable in the present form?opd 5. Whether the suit is time barred?opd 6. Whether the plaintiff has got no cause of action?opd 7. Relief. 3. Both the courts found the execution of the sale deed dated 16.6.1995 to be duly proved and that the appellant was owner of Killa No.17 of rect. No.16 only and had no concern with Killa No.13 of Rect. No.16. On the basis of this it was inferred that since the sale deed had been executed by the appellant , it could have been only qua the land which was owned by him that is the land comprised in Killa No.17 of Rect. No.16 and the measurement of the same also coincided with the land sold. The suit of the plaintiff-respondent was consequently decreed and the necessary rectification was ordered. No.16 and the measurement of the same also coincided with the land sold. The suit of the plaintiff-respondent was consequently decreed and the necessary rectification was ordered. Assailing the aforesaid findings, learned counsel for the appellant has contended that it was a suit for declaration simpliciter and since no possession was asked for, the suit itself was misconceived. He further contended that the sale deed was forged and fabricated and there was evidence on record in the shape of testimony of marginal witnesses who admitted that no sale consideration was passed on in their presence. He thus contended that this material was sufficient for the courts to come to the conclusion that the sale deed was a sham transaction. He also contended that in view of this material on record, the courts ought to have dismissed the suit of the plaintiff-respondent. He referred to paragraph 7 of the grounds of appeal wherein, according to him, the following law points arise for consideration of this court :- i). Whether the suit for declaration simpliciter is maintainable when admittedly respondent/plaintiff was not in possession? ii) Whether the suit was within limitation? iii) Whether the sale deed was without consideration? iv) Whether the execution of the sale deed could be considered to be proved only on the basis of evidence of attesting witness without examining the scribe or other attesting witnesses? v) Whether the documents though exhibited can be read in evidence if it is not proved according to law? I have heard learned counsel for the appellant and have perused the impugned judgments. 4 The case of the plaintiff-respondent was that he is owner in possession of the property on the basis of the sale deed which was executed in his favour on 16.6.1995. This fact was denied by the appellant who pleaded fraud. It is a settled proposition of law that a person who pleads fraud and forgery has to establish it by leading cogent evidence. The sale deed is a registered document which was proved in accordance with law. This fact was denied by the appellant who pleaded fraud. It is a settled proposition of law that a person who pleads fraud and forgery has to establish it by leading cogent evidence. The sale deed is a registered document which was proved in accordance with law. At no point of time did the appellant raise any dispute regarding the execution of the sale deed and also if it is his case that he was unaware then after the filing of the suit also when he became aware of the factum of sale he did not choose to challenge the execution thereof and had taken no steps to get it declared null and void. It is thus abundantly clear from the conduct of the appellant himself that denial of the execution of the sale deed was merely a defence taken up by him which had no basis. The courts were, therefore, right in concluding that the sale deed had been validly executed. From the material on record it also transpires that the appellant was owner of the property comprised in Killa no.17 of Rect. No.16 which conforms to the dimensions of the suit property which forms a part of the sale deed. It is thus clear that there was a mistake in the description of Killa No.17 which was described as Killa No.13 and apart from this there is no infirmity in the sale deed. The questions of law that have been framed by the learned counsel for the appellant do not arise for the consideration of this Court for the simple reason that a suit for declaration which has been filed by the plaintiff-respondent was maintainable in the present form as he never claimed any possession for the reason that he was already in possession and it was merely a rectification of one killa number which has been wrongly described. He as a result was entitled to get the same rectified from the court of law. The fraud as pleaded by the appellant was not proved. In any eventuality, he did not raise any dispute regarding the sale and therefore the factum of the same being without consideration or not was not to be gone into by the courts below. 5. Having regard to the aforesaid, this court finds that the concurrent findings recorded by the courts below cannot be faulted with. In any eventuality, he did not raise any dispute regarding the sale and therefore the factum of the same being without consideration or not was not to be gone into by the courts below. 5. Having regard to the aforesaid, this court finds that the concurrent findings recorded by the courts below cannot be faulted with. Consequently, the appeal being without merit is dismissed.