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2012 DIGILAW 731 (PNJ)

Gurmail Singh v. Amar Nath

2012-05-18

SABINA

body2012
JUDGMENT Mrs. Sabina, J.: - Plaintiff had filed the suit for possession of the property in dispute and declaration that the sale deed alleged to have been executed by him in favour of defendants No. 1 to 4 dated 21.12.1981 was illegal, null and void. 2. The case of the plaintiff, in brief, was that he was owner of the land measuring 11 Kanals 13 Marlas i.e. 1/3rd share out of land measuring 34 Kanals 18 Marlas as described in the head note of the plaint. The land in dispute was in possession of defendants No. 5 and 6 as co-sharers. The plaintiff and his brothers (defendants No.5 and 6) had purchased the land measuring 34 Kanals 18 Marlas vide two sale deeds dated 4.7.1973 for a consideration of Rs.22,000/-. The possession of the said land was delivered to defendants No. 5 and 6 on 4.7.1973. Ranjit Singh father of defendants No. 1 to 4 and defendant No. 1 took the plaintiff to Machiwara on 18.12.1981 at 10.00 A.M. and kept him in custody. Plaintiff was threatened with dire consequences and was tortured mentally and physically. Some intoxicants were administered to the plaintiff. Plaintiff was an opium addict. Under the effect of intoxicant, defendants No. 1 to 4 got prepared the sale deed dated 21.12.1981 by obtaining his thumb impressions fictitiously. No sale consideration was paid to the plaintiff. Plaintiff had studied upto 5th class and could easily read and write Punjabi language. Hence, there was no occasion for him to have thumb marked the sale deed. The brothers of the plaintiff, after coming to know about his abduction, had sent registered letters to the Station House Officer, Machiwara and Deputy Commissioner, Ludhiana for taking necessary action. Plaintiff had succeeded in running away from the custody of the defendants on 17.2.1982. Thereafter, the suit was filed. 3. Defendants No. 1 to 4, in their written statement, denied the contentions in the plaint. It was averred that the property in dispute had been sold by the plaintiff to them vide registered sale deed dated 21.12.1981. The averments made in the plaint qua abduction or administration of intoxicant to the plaintiff were denied. It was averred that the plaintiff had executed the sale deed of his own free will. 4. It was averred that the property in dispute had been sold by the plaintiff to them vide registered sale deed dated 21.12.1981. The averments made in the plaint qua abduction or administration of intoxicant to the plaintiff were denied. It was averred that the plaintiff had executed the sale deed of his own free will. 4. Defendants No. 5 to 6, in their written statement, admitted the contents of the plaint and prayed that the suit of the plaintiff be decreed. 5. On the pleadings of the parties, following issues were framed by the trial Court:- 1. Whether the sale deed dated 21.12.1981 is a fictitious document and is result of fraud, misrepresentation and undue influence? If so, to what effect? OPP 2. Whether the suit is not maintainable in the present form? OPD 3. Whether the suit is properly valued for the purpose of court fee and jurisdiction? OPP 4. Whether the suit is liable to be dismissed for want of particulars of fraud in the plaint? OPD 5. Whether defendant Nos.1 to 4 are bonafide purchasers for valuable consideration? OPD 6. Whether the suit is barred by the principles of res judicata? OPD 7. Whether the suit has been filed by the plaintiff in collusion with defendant No. 5 and 6? If so, to what effect? OPD 8. Whether the civil court has got no jurisdiction to try the present suit? OPD 9. Whether the plaintiff is entitled to the possession of the suit land? OPD 10. Relief. 6. The trial court vide judgment and decree dated 20.4.1983 dismissed the suit of the plaintiff. Aggrieved by the said judgment and decree, plaintiff preferred an appeal and the same was allowed by the first appellate court vide judgment and decree dated 24.7.1985. Consequently, suit of the plaintiff was decreed. Hence, the present appeal by defendants No. 1 to 4. 7. I have heard the learned counsel for the parties and have gone through the record available on the file carefully. 8. The substantial question of law that arises in this case for consideration is:- “Whether the findings of the learned first appellate court are against the evidence on record and are thereby perverse?” 9. In the present case, the sale deed in dispute is Ex. D-2. A perusal of the same reveals that it is a registered document. 8. The substantial question of law that arises in this case for consideration is:- “Whether the findings of the learned first appellate court are against the evidence on record and are thereby perverse?” 9. In the present case, the sale deed in dispute is Ex. D-2. A perusal of the same reveals that it is a registered document. The same is duly thumb marked by the plaintiff on all pages. The plaintiff had duly affixed his thumb impressions at the time of registration of sale deed in the presence of Sub Registrar. A perusal of the endorsement by the Registrar further reveals that the amount of Rs.10,000/- i.e. part of the consideration was received by the plaintiff before the Registrar. The said endorsement nullifies the plea of the plaintiff that he had not received the sale consideration. Further, the case of the plaintiff while appearing in the witness box as PW-1 was that his thumb impressions had been obtained on one blank paper. However, the said fact is belied by Ex. D2. A perusal of Ex. D2 reveals that the stamp papers which are five in number are duly thumb marked by the plaintiff. Further as per Ex.D2, the plaintiff had appeared before the Sub Registrar and had affixed his thumb impressions in the presence of the Sub Registrar. The plaintiff while appearing in the witness box in his examination in chief has not deposed to the effect that he had been taken to the office of Sub Registrar under the influence of intoxicant. In his cross examination he deposed that he was separate from his brothers since the time of death of his father. He was cultivating his land himself. After his release he did not lodge any report with the police nor made any complaint against the defendants to any higher official. He denied that he had gone to the Tehsil office on 21.12.1981. In his examination in chief he deposed that he was not addicted to any intoxicant. Thus, the plaintiff while appearing in the witness box has demolished his own case and has not deposed in terms of his plaint. He denied that he had gone to the Tehsil office on 21.12.1981. In his examination in chief he deposed that he was not addicted to any intoxicant. Thus, the plaintiff while appearing in the witness box has demolished his own case and has not deposed in terms of his plaint. In case the plaintiff had not appeared before the Sub Registrar on 21.12.1981 then he should have got his thumb impressions on the impugned sale deed examined from the hand writing expert to establish that in fact someone else had appeared before the Sub Registrar at the time of execution of the sale deed. It appears that the suit was got filed from the plaintiff after the execution of the sale deed by his brothers defendants No. 5 and 6. 10. Learned counsel for the respondent-plaintiff has laid much stress on the fact that in fact the sale deed was a sham transaction. The plaintiff was not paid the sale consideration. The account of the plaintiff was got opened in the bank with Ujagar Singh who was a relative of defendants No. 1 to 4. As per PW-3 Janak Ram, plaintiff had opened a joint account with Ujagar Singh in Punjab and Sind Bank on 22.12.1981 and had deposited Rs.10,000/- in the said account. The said amount as per this witness was still lying in the account. Merely because the plaintiff had opened a joint account with Ujagar Singh in itself is not sufficient to come to the conclusion that the account had been got opened by defendants No. 1 to 4 for some ulterior purpose. It is not the case of the plaintiff that no such account was opened by him with the said bank. Merely because a joint account was opened with Ujagar Singh fails to establish that no sale consideration was paid to the plaintiff at the time of execution of the sale deed. Rather the amount of Rs.10,000/- paid at the time of execution of sale deed was still lying in the account and had not been withdrawn by Ujagar Singh to lead to the inference that the joint account had been got opened by defendants No. 1 to 4 to show that the sale consideration had been paid to the plaintiff although the same was later on withdrawn by Ujagar Singh at the instance of defendants No. 1 to 4. Part of the sale consideration i.e Rs.10,000/- were duly paid to the plaintiff in the presence of the Sub Registrar. 11. It is a common saying that men may tell lies but documents do not. The case of the plaintiff was duly demolished by the documents on record. Further, the pleas taken by the plaintiff in the plaint were rather demolished by the plaintiff himself. In the plaint the plaintiff had stated that he was opium addict whereas while appearing in the witness box, the plaintiff stated that he was not addicted to any intoxicant. The plaintiff had stated in the plaint that the sale deed was got fictitiously executed from him under the influence of some intoxicant whereas while appearing in the witness box the plaintiff deposed that he had not appeared before the Sub Registrar at the time of execution of the sale deed. 12. The plaintiff took up the plea in the plaint that he had been kept in illegal confinement by defendants No. 1 to 4 and Ranjit Singh for about one and half months but no complaint was ever lodged by the plaintiff or his brothers in this regard. In case, the plaintiff had been actually abducted and kept in illegal confinement for one and half months, defendants No. 5 and 6 would have made efforts to search the plaintiff. They would have approached the police officials and lodged some complaint qua missing of their brother. The fact that no such complaint has been established on record leads to the inference that the story that the plaintiff had been confined illegally by defendants No. 1 to 4 for the purpose of execution of the sale deed is an afterthought. Further it appears that the plaintiff was aggrieved that the sale consideration had not been paid to him but the said fact is also belied from the statement of PW-3 and the endorsement made by the Sub Registrar at the time of execution of the sale deed. 13. The finding recorded by the learned first appellate court that the sale deed was a fictitious document is against the evidence on record and is thus, perverse. The substantial question of law that arises in this case stands answered accordingly. 14. Consequently, this appeal is allowed. The impugned judgment and decree of the learned first appellate court dated 24.7.1985 are set aside. The substantial question of law that arises in this case stands answered accordingly. 14. Consequently, this appeal is allowed. The impugned judgment and decree of the learned first appellate court dated 24.7.1985 are set aside. Consequently, the judgment and decree dated 20.4.1983 passed by the trial court are upheld.