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2023 DIGILAW 1760 (PNJ)

Surjit Singh v. Vijay Kumar

2023-05-15

ALOK JAIN

body2023
JUDGMENT Mr. Alok Jain, J. The present appeal raises challenge to the judgement and decree dated 04.03.2015 passed by the Additional District Judge, Ferozepur, whereby the judgement and decree dated 17.11.2011 passed by Civil Judge (Senior Division), Ferozepur was reversed. 2. Learned counsel for the appellants, after going through the record has submitted that the defendants filed a suit for declaration claiming, ownership of agricultural land measuring 40 Kanals 11 Marlas being the legal heirs of late Dina Nath their father. The claim of the plaintiffs-respondents was based on Will dated 08.08.1997 registered on 13.08.1997, in favour of the plaintiffs. It was further submitted that Mutation No.338 was sanctioned in favour of the plaintiffs but was rejected by the CRO/Naib Tehsildar, Ferozepur on 21.07.2004. Subsequent thereto, another Mutation No.347, in favour of defendant No.1 Jamail Kaur was sanctioned and subsequent, thereto, Jamail Kaur sold the said land to the present appellants. The present appellants objected to the suit and clarified that Dina Nath during his life time executed another registered Will dated 03.02.1998, wherein, there was a recital of the previous Will and the plaintiffs as well as defendant No.1 Jamail Kaur were beneficiaries of the said Will and only the agricultural land belonging to Dina Nath was bequeathed to Jamail Kaur, who is the predecessor-in-interest of the present appellant. Counsel for the appellant has submitted that the learned trial Court after considering the entire evidence available on the record returned the finding qua the Will dated 03.02.1998, and dismissed the suit. 3. Learned first Appellate Court has reversed the well versed judgement and decree dated 17.11.2011, by wrongly concluding that the Will dated 03.02.1998 was not duly proved and moreso, the act and conduct of the said beneficiaries was suspicious and the Will was surrounded by suspicious circumstances. 4. Learned counsel for the appellants has submitted that the deceased-Dina Nath executed a Will dated 03.02.1998 Ex.Dl, in favour of not only the predecessor in interest of the appellant i.e. Jamail Kaur but also in favour of the respondents. Subsequent to the mutation being sanctioned by the Revenue Authorities, Jamail Kaur executed two sale deeds Ex.P8 and Ex.P9 in favour of the appellants. Subsequent to the mutation being sanctioned by the Revenue Authorities, Jamail Kaur executed two sale deeds Ex.P8 and Ex.P9 in favour of the appellants. The Will propounded by the respondent-plaintiff was dislodged by the trial Court rightly on the premises that the subsequent Will had the recital of the earlier Will, and hence, after recording that the appellants are the bona fide purchaser for consideration, dismissed the suit. 5. However, the first Appellate Court, while considering the matter relied heavily upon the testimony of DW1 Dev Raj, wherein, it transpired that the affidavit in affirmative submitted by Dwl was neither signed nor there was any thumb impression of the said witness. It was submitted that the Dev Raj was the attesting witness to the Will dated 03.02.1998, and since there was no valid tender of the affidavit in examination-in-chief, the said evidence could not be read, trial Court fell in error in relying upon the said testimony. 6. Learned counsel for the appellant has raised two arguments firstly, the testimony of DW1 Dev Raj could not be disregarded for the reason that although, the affidavit was not signed or thumb marked but in the order dated 31.10.2011 and the statement recorded, whereby the said witness duly stated that the tendering of his affidavit, which was also marked as an Exhibit by the learned Judge coupled with the fact that the said witness was duly cross-examined, the said affidavit was rightly considered by the trial Court. Moreso, the Court should have invoked section 153 of CPC to cure the said defect. The second contention raised by the learned counsel for the appellants is that the First Appellate Court has fell in error by not returning any finding on issue No.6, with regard to the appellant being bona fide purchaser for consideration. It has submitted that a specific issue no.6 was framed, which reads as under: "Issue No.6 whether defendants No.3 and 4 are bona fide purchasers with due consideration of the suit property' If so its effect' OPD". 7. He submits that the learned trial Court give a detailed finding on the said issue and therefore, whether the first Appellate Court did not deal with the same and in one line recorded that the finding of learned trial Court on issue No.1 to 6 are hereby set aside. 8. 7. He submits that the learned trial Court give a detailed finding on the said issue and therefore, whether the first Appellate Court did not deal with the same and in one line recorded that the finding of learned trial Court on issue No.1 to 6 are hereby set aside. 8. On the strength of the submission made by the learned counsel for the appellants, it is prayed that the appeal be allowed and the order of the First Appellate Court be set aside or in the alternative. Since the First Appellate Court has not returned the finding on issue no.6, the matter be remanded back to the first Appellate Court with an additional prayer that the First Appellate Court should also consider invoking Provision of section 153 of CPC, to cure the said defect in the evidence of DW1. 9. Per contra, learned counsel for the respondents has taken this Court to the record and has submitted that there was no occasion for Dina Nath to bequeath any portion of the property to the stranger Jamail Kaur. The act and conduct of the Jamail Kaur is extremely suspicions for the reason that Jamail Kaur never entered into the witness box and did not contest the suit. He further submits that in the absence of any legal and valid tender of affidavit in affirmation by Dev Raj, the cross-examination is inconsequential, and hence, section 68 of the Indian Evidence Act has not been complied with to prove the Will under section 63 (c) of the Succession Act. Therefore, there is no Will dated 03.02.1998 in the eyes of law and thus, the predecessor-in-interest of appellant was not entitled to execute the sale deed. He further submits that the purchasers are none other than the close relatives of Jamail Kaur and the entire exercise has been done only to defeat the interest of the respondents/plaintiffs as alleged mutation, which was sanctioned in favour of Jamail Kaur was done on 04.08.2005, and the sale deed were executed on 17.08.2004. He further submits that the revenue officials had also erred in law in not issuing any notice to the legal heirs of Dina Nath before sanction of the mutation, in favour of Jamail Kaur. Though, he concedes that the said mutation was challenged by the plaintiffs, but the appeal also came to be dismissed. 10. He further submits that the revenue officials had also erred in law in not issuing any notice to the legal heirs of Dina Nath before sanction of the mutation, in favour of Jamail Kaur. Though, he concedes that the said mutation was challenged by the plaintiffs, but the appeal also came to be dismissed. 10. Learned counsel for the respondent has also relied upon the judgement in case titled as "M/s Rathi TMT Sariya Pvt Ltd. v. JSL Ltd.", 2015(8) RCR (Civil) 691, to contend that tendering any unsigned affidavit, in examination-in-chief which was even duly attested by the Oath Commissioner, is a fraudulent act and fraud vitiates all solemn acts. "8. In the instant case, the only evidence led by the plaintiff was in the form of affidavit of PW-1 (Ex.PW-l/A) which remained unexecuted for want of signature of the deponent. The documents got exhibited in such examination-n-chief have no evidentiary value as they cannot be treated to be led in evidence. In the absence of affidavit Ex.PW-1/A, case of the plaintiff will be of no evidence and only irresistible conclusion is that the suit is bound to be dismissed. It is relevant to state here that evidence of the plaintiff was closed 23.011.2020 on the basis of his own statement. 10. Tendering of unsigned affidavit Ex.PW-l/A by PW-1 in examination-in-chief which was even duly attested by the Oath Commissioner is a fraudulent act. Fraud vitiates all solemn acts. Such an act should be treated to be nullity and a person whose plea is based on falsehood has to be throfwn out summarily at any stage of litigation. Plaintiff by tendering unsigned affidavit of deponent virtually gained advantage on the basis of trial Court decree. Such an act amounts to fraud on the Court as well as on the appellant and cannot be endorsed by the Court at any stage of litigation. " 11. Having considered the arguments of the counsel for the parties, I am of the opinion that nothing is forthcoming as to why Dina Nath bequeathed his agricultural land to a stranger Jamail Kaur. " 11. Having considered the arguments of the counsel for the parties, I am of the opinion that nothing is forthcoming as to why Dina Nath bequeathed his agricultural land to a stranger Jamail Kaur. Presuming that Dina Nath was served well by Jamail Kaur and he wanted to protect her future interest and secure her well being, the act and conduct of Jamail Kaur to sell the land within a span of two weeks from the date of sanctioned of mutation also raises serious concern, which goes to shows a long way that something suspicious has skept in. The act and conduct of the Revenue Official is also not above board for the reason that initially mutation is signed in favour of the plaintiff, however, the said sanction is not approved by the Naib Tehsildar on 21.07.2004 and within a month of the rejection of the said mutation, a fresh mutation is sanctioned after 15 days without notice to the plaintiffs, who were the legal heirs of Dina Nath and within less than two weeks, thereafter, the said property sold to none other than elder brother of the husband of said Jamail Kaur. The best witness and evidence available with the appellant-respondent was Jamail Kaur herself, who could have justified and put to rest all the suspicion, but for the reason best known to her she did not join the proceedings. The anomaly occurred in the evidence of Dev Raj, even if cured would be at the best bring both the Wills on the same footing being duly proved under Section 68 of the Evidence Act but there is no suspicious circumstances surrounding the Will dated 08.08.1997. As regards the issue of bona fide purchaser for valid consideration is concerned I am of the view that the same is a sham due to close proximity of the relationship between the Jamail Kaur and the present appellants, and hence, the alleged sale deeds does not fall under the category of bona fide sale and hence the appellants are not bonafide purchasers. 12. In light of the above, the present appeal fails and the same is dismissed.