RSA No. 2853 of 2005(O&M) 1
In the High Court for the States of Punjab and Haryana at Chandigarh
...
RSA No. 2853 of 2005(O&M)
Date of decision: May ,2009
Smt. Khazani daugher of Giani ..Appellant.
Versus
Surja and another
..Respondents
Coram: Hon'ble Mr.Justice Rakesh Kumar Garg
Present: Mr. R.N. Sharma, Advocate
for the appellant.
Mr.R.K. Gupta, Advocate
for the respondent No.1.
...
Rakesh Kumar Garg,J.
This is plaintiff’s second appeal challenging the judgment and
decree of the lower Appellate Court whereby the appeal filed by the defendant
No.1 against the judgment and decree of the trial Court was accepted and suit of
the plaintiff was ordered to be dismissed.
The brief facts of the case are that the plaintiff/appellant and
defendant/respondent No.2 were recorded owners of 1/14th share in the
agricultural land comprised in Khewat No.363, Khatauni No.446, measuring 46
Kanals 1 Marla situated in village Bhawar, Tehsil Gohana, District Sonepat. The
defendant/respondent No.1 Surja is the real brother of the plaintiff/appellant and
respondent/defendant No.2 and on 20.9.97 he brought the appellant and
respondent No.2 to Gohana and got their thumb impression on some papers
with assurance that the land will be transferred in favour of all the three brothers
namely, Deepa, Surja and Ramphal the real brothers of the appellant and
respondent No.2. The respondent No.1 got executed sale deed No.1702 dated
26.9.97. The same was registered in his favour and mutation No.11-A was also
entered in the name of respondent No.1 Surja. The sale deed and the mutation
sanctioned on the basis of it were challenged by way of suit for declaration and
permanent injunction in the Court of Additional Civil Judge,(Senior Division),
RSA No. 2853 of 2005(O&M) 2
Gohana with a prayer that the sale deed and mutation were wrong, illegal, null
and void and not binding on the right of the plaintiff/appellant and
defendant/respondent No.2 on the grounds that the plaintiff and defendant No.2
never executed and registered sale deed in favour of the plaintiff that no
possession of the land was ever delivered to the defendant/respondent No.1 that
no sale consideration was ever passed and the sale consideration shown to be
paid to the appellant and respondent No.2 was false and fictitious that
defendant/respondent No.1 is the real brother of the plaintiff and defendant No.2
and in case, there was any such transaction, then certainly the defendant No.1
would have filed the suit for declaration instead of getting the sale deed
executed and registered and that sale deed is the result of fraud and
misrepresentation and the defendant/respondent No.1 has only obtained the
signatures of the plaintiff/appellant and defendant/respondent No.2 merely on
asking that same are for giving the security; that no notice regarding sanctioning
of mutation was ever given to the plaintiff and defendant No.2 which was
mandatory.
In the written statement, contesting defendant No.1 took the stand
that plaintiff and defendant No.2 have sold their shares to him. The grounds on
which the sale deed was assailed were stated to be wrong and denied. It was
further replied that plaintiff and defendant No.2 appeared before Deed Writer
and Sub Registrar having admitted the contents of the sale deed true and
correct, mentioning that suit is liable to be dismissed on account of non-affixation
of advolerum court fee, additional pleas were taken that simple suit for
declaration without seeking possession is not maintainable; that plaintiff has no
cause of action to file the suit; that plaintiff is estopped by her own act and
conduct to file the suit and that she has not come to the court with clean hands.
At the end a prayer has been made to dismiss the suit.
Defendant No. 2 was proceeded against ex parte vide order dated
13.8.2002 as she failed to appear in the court.
Replication was filed refuting the contentions of the defendant No.1
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and re-affirming the assertions made in the plaint. From the pleadings of the
parties, following issues were framed:-
1.Whether the plaintiff and defendant No.2 are still owners of
1/14 share of agricultural land comprised in khewat No. 363,
Khatoni No. 446, situated in village Bhawar and registered sale
deed No. 170 dated 26.9.1977 of 1/12 share and mutation
No.11A sanctioned on the basis of it are illegal, null and void,
not binding upon the rights of the plaintiff and defendant No.2
on the grounds mentioned in para 4 of the plaint? OPP
2. If issue No.1 is decided in favour of the plaintiff, then whether
plaintiff is entitled to the relief of injunction?OPP
3. Whether the suit simpliciter of declaration without relief of
possession is not maintainable? OPD
4. Whether the plaintiff has no cause of action to file the present
suit?OPD
5. Whether the suit is false and vexatious to the knowledge of
the plaintiff ?OPD
6. Whether the plaintiff is estopped from filing the present susit
by her own act and conduct ?OPD
7. Whether the Civil Court has no jurisdiction to entertain the
present suit?OPD
8. Whether the plaintiff has not come to the court with clean
hands?OPD
9. Relief.
Both the parties led evidence. After hearing the arguments, the trial
Court vide its judgment and decree dated 14.8.2004 decreed the suit holding
that the sale deed and mutation in question were null and void and not binding
upon the plaintiff-appellant.
The judgment and decree dated 14.8.2004 passed by the trial
Court was assailed by defendant No.1/respondent No.1 pleading that the trial
RSA No. 2853 of 2005(O&M) 4
Court had taken a wrong view that the sale deed in question was the result of
misrepresentation as it was proved on record that both the parties had appeared
before the Sub Registrar and had appended the thumb impression and their
photographs were also taken. It was also pleaded that the suit for declaration
simpliciter without seeking possession was not maintainable as the plaintiff was
not in possession of the suit land and thus the judgment and decree of the trial
was liable to be set aside. The lower Appellate Court vide impugned judgment
and decree dated 15.2.2005 accepted the appeal and set aside the judgment
and decree of the trial Court resulting into dismissal of the suit.
While allowing the appeal, the lower Appellate Court observed as
under:-
“The execution of the sale deed has been proved. The attesting
witness who is Lambardar of the village has stated that Khazani
and Omi had admitted that they had received the consideration. It is
not the case of the plaintiff that market value of the property was
more. The plaintiff had admitted that they had wanted to give their
property. The plaintiff had set up a plea of fraud but it has not been
established beyond all reasonable doubts. The fraud in a civil suit is
to be established like any other facts on the basis of preponderance
of evidence. The fraud is an act of deliberate deception with a
design to secure something from another. In this case the parties
were closely related. The sisters are married and had been living in
their matrimonial homes. They are not “Parda Nashin” ladies. No
inference can be drawn in their favour in the circumstances of the
case. The plaintiff had failed to prove that any fraud had been
practiced, therefore, the sale could not have been set aside on
those grounds. The findings recorded by the lower Court on issue
No.1 is reversed. The plaintiff had brought a suit for declaration
simpliciter. They are not in possession of the property. The property
had been mutated in favour of Surja. His possession is being
RSA No. 2853 of 2005(O&M) 5recorded thereafter. A suit for mere declaration without seeking
possession was not maintainable and the findings recorded on the
issue by the lower Court has also to be set aside.
Feeling aggrieved from the judgment and decree of the lower
Appellate Court, the plaintiff has filed the present appeal arguing that the
following substantial questions of law arise in this appeal for consideration of this
Court:-
“i)Whether the impugned sale deed executed and registered in his
favour by the respondent No.1, by way of fraud and
misrepresentation is null and void and cannot affect the rights of
the appellant and respondent No.2, especially when their intention
was to transfer the suit land in favour of all the three brothers ?
ii) Whether the mutation got some fraud by the respondent No.1 in
his favour without giving any notice to the appellant and
respondent No.2, is legal and void ?
iii) Whether the sale deed executed without the sale consideration
is valid and legal and sustainable in the eyes of law ?
In support of his case, learned counsel for the appellant
vehemently argued that it was proved on the record that defendant No.1
practiced misrepresentation and fraud at the time of execution of the sale deed
in question and thus any agreement or contract like the sale deed in question,
which is vitiated by fraud and misrepresentation cannot be sustained in the eyes
of law. It was further argued that in case the sale deed and mutation sanctioned
on the basis of it are set aside, then status of the parties in the suit land will be of
co-sharers and therefore, the suit for declaration simpliciter was maintainable
and thus the judgment and decree of the lower Appellate Court is liable to be set
aside.
On the other hand, learned counsel for the respondent No.1 has
supported the findings of the lower Appellate Court and has argued that no
substantial question of law arises in this appeal as on appreciation of evidence, a
RSA No. 2853 of 2005(O&M) 6
finding of fact has been recorded by the lower Appellate Court to the effect that
the sale deed was proved and further that the plea of fraud set up by the plaintiff-
appellant could not be established from the evidence on record and therefore,
this appeal is without any merit and is liable to be dismissed.
I have heard learned counsel for the parties. While passing the
impugned judgment and decree, the lower Appellate Court on appreciation of
evidence has recorded a finding that the execution of the sale deed is proved
from the testimony of attesting witness who is a Lambardar of the village and
that the plea of fraud as set up by the plaintiff has not been established. The
fraud in a Civil Suit is to be established like any other fact on the basis of
preponderance of evidence. The fraud is an act of deliberate deception with a
design to secure something from another, which is not proved in this case. In the
case in hand, parties were closely related. It is not the pleaded case of the
appellants that she and her sister are “Parda Nashin” ladies. Thus, no inference
can be drawn in their favour in the circumstances of the case. Nothing could be
pointed out from the evidence before this Court from which it can be proved that
any fraud was practiced upon the appellants.
For the reasons recorded above, I find no merit in the contentions
raised by the appellants.
No other point was urged.
Thus, no substantial question of law arises in this appeal.
Dismissed.
May , 2009 (RAKESH KUMAR GARG)
nk JUDGE
RSA No. 2853 of 2005(O&M) 7