Sh.Karan Singh & Others vs Sh. Gian Chand & Others
2014 Latest Caselaw 855 Del

*             IN THE HIGH COURT OF DELHI AT NEW DELHI

+                 RSA 53/2008
%                                      14th February, 2014
SH.KARAN SINGH & OTHERS                       ......Appellants
                  Through: Mr. Rajat Katyal and Mr. Rishab
                            Kaushik, Advocates.


                          VERSUS

SH. GIAN CHAND & OTHERS                                    ...... Respondents

Through:

CORAM:

HON'BLE MR. JUSTICE VALMIKI J.MEHTA

To be referred to the Reporter or not?

VALMIKI J. MEHTA, J (ORAL)

CM No. 2573/2008 (delay)

For the reasons stated in the application, delay is condoned. CM

stands disposed of.

RSA 53/2008

1. This regular second appeal is filed impugning the concurrent

judgments of the courts below; of the trial court dated 7.8.2004 and the first

appellate court dated 5.11.2005; by which the suit of the appellants-plaintiffs

for declaration and injunction for cancelling of the registered sale deed dated

4.9.1989 executed by the appellants-plaintiffs in favour of defendant no.3

has been dismissed.

2. Appellants-plaintiffs filed the subject suit stating that they alongwith

the defendant nos. 1 and 2 (who are also brothers of the plaintiffs) agreed to

sell the suit property to the defendant no.3, however, the intention of

defendant nos. 1 and 2 became malafide and they colluded with defendant

no.3 unlawfully and fraudulently by paying lesser consideration got the sale

deed executed and registered with respect to the suit property admeasuring

19 bighas and 4 biswas forming part of Khasra no. 28/14 to 17, Village

Deramandi, Delhi in favour of defendant no.3. It was contended that the

sale deed not only was fraudulently got executed, but, the sale was in

violation of Section 33 of the Delhi Land Reforms Act, 1954 (in short DLR

Act) as per which no sale deed can be executed of an agricultural land, if

after the sale, the sellers would be left with land less than 8 standard acres in

the village.

3. Defendant no.3 contested the suit and pleaded that the suit was an

exercise to extract money from the defendant no.3. It was pleaded that there

was no fraud in getting the sale deed executed and registered. It was further

pleaded that there was no fraud inasmuch as entire agreed consideration,

and as stated in the sale deed, stood paid to the appellants-plaintiffs. It was

also pleaded that the case set up on the basis of Section 33 of the DLR Act

was misconceived because alongwith the sale deed executed in favour of

defendant no.3, the appellants-plaintiffs had also executed sale deeds of their

remaining landed property in favour of their wives and mother to avoid the

bar of Section 33 of the DLR Act.

4. The trial court has held that there was no fraud in execution of the sale

deeds and that the entire consideration as stated in the sale deeds, and which

was the agreed price, was paid. Trial court held that there does not arise any

question of fraud because as many as 6 persons appeared before the sub-

Registrar and they signed/executed the sale deed and registered the sale

deed. These aspects were deposed to on behalf of defendant no.3 by DW-2

Sh. Ram Singh who was the Deputy Pradhan of the village. Similar

deposition was made by DW-1 Sh. Suresh Kumar with respect to the

execution and registration of the sale deed. Both these DWs also deposed

that the plaintiffs and defendant nos. 1 and 2 transferred their remaining land

on the same date as the sale deed, an area of two acres, to their wives and

mother to avoid the contravention of Section 33 of the DLR Act. Trial court

has also held that in fact the suit is a collusive suit between the plaintiffs and

defendant nos. 1 and 2 and as referred to the fact that the plaintiffs and

defendant nos. 1 and 2 had jointly written a letter to the sub-Registrar where

it was stated that the plaintiffs and defendant nos. 1 and 2 have been cheated

and they were fraudulently induced to sign the sale deed, and which stand is

different than the stand taken up in the written statement in the suit that the

plaintiffs did not sign the sale deed. The relevant observations in this regard

which have been made by the trial court are in paras 25 to 31 of the

impugned judgment of the trial court and which read as under:-

"25. From the above evidence, it emerges that DW2 Ram Singh, attesting witness to the sale deed under challenge has testified that the plaintiffs had signed the sale deed in his presence. He also deposed that he knows the plaintiffs and defendants No. 1 and 2 personally. He further proved his signatures at point E on sale deed EX.PW1/4. No question or suggestion was put to him to the effect that signatures on the sale deed were not of plaintiffs or that they were not oppended in his presence. In this regard I find that the testimony of the DW 2 who is attesting witness has proved the execution of sale deed under challenge and the signatures of plaintiffs thereon as per Section 68 of Indian Evidence Act.

26. Now as the sale deed is duly registered document and as proved by the testimony of DW 5 and duly executed document, the onus to prove that the sale deed does not bear their signature or is not a duty executed and registered document, shifts on the plaintiffs.

27. On the other hand, it is to be seen that both the witnesses examined by the plaintiffs have denied even the factum of entering into an agreement with the defendant whereas in their plaint they have clearly mentioned that they had entered into an agreement to sell with the defendant no. 3. It is further interesting to note that on

the day on which sale deed under challenge was purported to be executed, another sale deed was executed by the plaintiffs and the defendants no. 1 and 2 in favour of their wives and mother the execution of which the plaintiffs have again denied.

28. PW1 deposed that he did not file any criminal complaint against his wife or his brother's wife as they have not committed any offence by having the sale deed of remaining land executed in their own name, although they allege that their signature on the same were forged. Neither any criminal complaint has been filed by the plaintiffs against the defendants for the alleged forgery and fraud committed by them.

29. From the above it emerges that in fact the sale deed was executed in the name of the plaintiffs wife and wife of defendants No. 1 and 2 and mother of plaintiffs and defendants No. 1 and 2, the plaintiffs have denied the execution or knowledge of any such sale deed. I find it highly improbable that the wife of a person who had and still has cordial relation and is living with him, would cheat him in the manner as alleged by the plaintiffs. This is again highly improbable that the plaintiffs wives would have the sale deed executed in their name without the knowledge of their husbands to the extent that PW 1 stated that they had not committed any offence, it is again highly improbable that a person on being cheated in the manner in which the plaintiffs allege that they have been cheated, would not file a criminal complaint against the defendants.

30. On the other hand, it is highly probable that the sale deed was executed by the plaintiffs and defendants No. 1 and 2 in favour of their wives and mother to circumvent the provisions of Section 33 of Delhi Land Reforms Act as after executing the sale deed in favour of defendant No. 3 they would have been left with less than 8 standard acres of land and the transaction would have been void u/S 42 of Delhi Land Reforms Act. With these observations, I find that both the witnesses produced by the plaintiffs are not very credible witnesses and it is also to be seen that defendants no. 1 and 2 who are the real brothers never appeared and contested the suit.

31. During the course of arguments on being asked by my Ld. Predecessor, the plaintiffs filed the complete set of Hon'ble High Court petition wherein a document is annexed as annexure P4. The same is a letter written by the plaintiffs and defendant no. 1 and 2 to the Sub-Registrar (Properties), Asaf Ali Road, New Delhi wherein in Para No. 4, the plaintiffs have submitted that the sale deed was not executed by them freely and in Para No. 5, they have stated that the execution was obtained fraudulently. More importantly the Para No. 7 of the said document they have stated that they have been cheated and fraudulently induced to sign, although some of them did not sign the same but does not mention who are the ones whose signatures does not bear. The sold letter bears the signature of plaintiff No. 1 Karan Singh and is dated 21.9.89. In the light of circumstances it is a high probability that the plaintiffs and defendants No. 1 and 2 are in collusion with each other." (underlining added)

5. I completely agree with the aforesaid findings and conclusions

because it is not possible to believe that as many as 6 brothers would not

only sign and execute the sale deed, by putting their signatures and therein

thumb impressions, appear before the Sub-Registrar for getting the sale deed

registered, and receive consideration stated therein, although, they did not

know what they were doing and that allegedly a fraud was played upon

them. In fact, plaintiffs and defendant nos. 1 and 2 on the same date

executed sale deeds of the remaining area of two acres with them in favour

of their wives and mother, thus clearly indicating that there was no fraud in

executing the sale deed of the suit land in favour of defendant no.3.

Obviously, the object of the suit is to extract money from the defendant no.3,

although, entire consideration in terms of the sale deed was received by the

plaintiffs and defendant nos. 1 and 2. I completely agree with the findings

and conclusions of the trial court.

6. First appellate court by its crisp judgment has accepted the findings

and conclusions of the trial court. Para 6 of the impugned judgment of the

first appellate Court reads as under:-

" I have heard the counsel for the parties and have gone through the record. The plaintiff has submitted that neither he put his signatures nor his thumb impression was put on the sale deed. Whereas DW-1 Sh. Suresh Kumar has categorically stated that he is witness to the execution of sale deed. Similarly DW-2 Sh. Ram Singh, Vice Pradhan of the village has identified his own signature at point E on the sale deed Ex.PW1/14. The witness has categorically deposed that two acres of land was transferred by six brothers in favour of their wives and mother on the same date. Similarly, DW-5 Sh. G.C.Chopra, UDC of Sub-registrar has proved the sale deed executed by Sh. Gyan Chand, Shyam Lal, Babu Ram, Ram Singh, Karan Singh and Sant Kumar which also bears their signatures on the back page 2 of the sale deed. These all points were considered by the trial Court. The plaintiff/appellant could not point out any material from which the inference can be drawn that at the time of execution of sale deed, he was not present and the sale deed does not bear his signatures. So far as the second part is concerned about the sale for consideration by the plaintiff is concerned, it is categorically stated that sum of Rs.1,60,000/- was paid to all the six brothers at the time of registration of sale deed. Since it has already been observed above that the sale deed was duly executed and from no stretch of imagination it can be presumed that the

amount stated to be paid in cash at the time of registration is without the transfer of actual consideration."

7. Therefore, the aforesaid findings of facts and conclusions arrived at

by the courts below do not suffer from any illegality or perversity for a

substantial question of law to arise under Section 100 CPC. The appeals

being a gross abuse of the process of law and a strategy to extract money

after the sale of the suit land to the defendant no.3, is accordingly dismissed

with costs of Rs.1,00,000 /- in view of the observations made by the

Supreme Court in its judgment in the case of Ramrameshwari Devi & Ors.

Vs Nirmala Devi & Ors. (2011) 8 SCC 249 that it is high time that in

frivolous litigations, exemplary and actual costs be imposed. I am

empowered to impose costs in terms of Volume V of the Punjab High

Court Rules and Orders (as applicable to Delhi) Chapter VI Part I Rule

15.

FEBRUARY 14, 2014                             VALMIKI J. MEHTA, J.
ib