Punjab-Haryana High Court
Dalip Kaur & Ors vs Lachhman Singh & Ors on 8 December, 2022
RSA-3963-2016(O&M) -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
RSA-3963-2016(O&M)
Date of decision:-8.12.2022
Dalip Kaur and others
...Appellants
Versus
Lachhman Singh and others
...Respondents
CORAM: HON'BLE MR.JUSTICE H.S.MADAAN
Present: Mr.Parminder Singh (Sunny), Advocate
for the appellants.
****
H.S. MADAAN, J.
1. Briefly stated, facts of the case are that plaintiffs
Smt.Dalip Kaur - widow, Bhadur Singh - son and Jagtar Singh -
grandson of Sh.Pakhar Singh had brought a suit against defendants
Lachhman Singh, Makhan Singh, Sarabjit Singh - sons, Smt.Shindo
@ Suiinder Kaur, Smt.Beebo @ Balbir Kaur, Smt.Rano @ Gurbax
Kaur - daughters of Sh.Nasib Singh as well as Amrik Singh and
Santokh Singh sons of Pakhar Singh, seeking a declaration that
plaintiffs along with proforma defendants No.7 and 8 namely Amrik
Singh and Santokh Singh are owners in equal shares of the estate left
by Sh.Pakhar Singh son of Battan Singh situated in the area of
village Bundala, Tehsil Phillaur, District Jalandhar and in the area of
village Pasli, Tehsil Phillaur, District Jalandhar and that Sh.Pakhar
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Singh had never mortgaged the suit land in favour of Sh.Nasib
Singh(since deceased) son of Battan Singh predecessor-in-interest of
defendants No.1 to 6 and that the alleged mortgage deed dated
18.7.2001 statedly to be registered on 19.7.2001 as claimed by Nasib
Singh deceased and after his death by his LRs defendants No.1 to 6-
A regarding the suit property is illegal, null and void and result of
fraud and misrepresentation as well as without consideration and as
such is liable to be set aside along with mutations sanctioned on the
basis thereof.
2. In nutshell, the case of the plaintiffs is that the suit
property was previously owned by Pakhar Singh, who had died on
25.2.2003 in Canada and after his death mutation regarding his
landed property was sanctioned in favour of his widow - Dalip Kaur
and sons Bhadur Singh, Jagtar Singh, Amrik Singh and Santokh
Singh; Amrik Singh and Santokh Singh (defendants No.7 and 8) are
also residing in Canada, therefore, in absence of Smt.Dalip Kaur and
Bhadur Singh as well as Amrik Singh and Santokh Singh, the land is
being cultivated by plaintiff No.3 Jagtar Singh; even khasra
girdawari is being entered in the name of Jagtar Singh; Pakhar Singh
was residing in Canada for the last 35-40 years; similarly Nasib
Singh predecessor-in-interest of defendants No.1 to 6-A was also
putting up in Canada almost for that much period. Nasib Singh was
elder brother of Pakhar Singh; Pakhar Singh had died in the year
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2003 at the age of about 77 years; Nasib Singh had expired later on
through his wife had pre-deceased him; Pakhar Singh used to come
to India and he was being looked after by the plaintiffs; the plaintiffs
had cordial relations with him till his death; Pakhar Singh was never
in need of raising any loan or creating any encumbrance upon his
landed property; in the year 2001, Pakhar Singh and Lachhman
Singh son of Nasib Singh came from Canada to India; they were not
accompanied by Nasib Singh; after a short span of time, Pakhar
Singh and Lachhman Sing returned to Canada, however, Lachhman
Singh s/o Nasib Singh threatened to dispossess the plaintiffs from the
suit property; at that time there was some rumor that Lachhman
Singh defendant No.1 had got some mortgage deed executed from
Pakhar Singh in favour of Nasib Singh, however, as a matter of fact
suit property was never mortgaged by Pakhar Singh in favour of
Nasib Singh; the mortgage deed claimed by defendants No.1 to 6-A
is illegal, null and void without consideration, as such is liable to be
set aside. When the grouse was cast over their title regarding the suit
property including houses in question, the plaintiffs filed the suit in
hand.
3. On notice, the defendants did not appear despite service,
as such they were proceeded against ex-parte.
4. During the course of evidence of the plaintiffs, they
examined Satnam Singh as PW1, Lachhman Singh as PW2, Santokh
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Singh as PW3, Jagtar Singh attorney of plaintiffs No.1 and 2
appeared as PW4. After tendering documents counsel for the
plaintiffs closed his evidence.
5. Arguments advanced by learned counsel for the plaintiffs
were heard and judicial file was perused and thereafter, the trial
Court of Addl.Civil Judge(Sr.Divn.), Phillaur vide judgment and
decree dated 20.10.2012 dismissed the suit of the plaintiffs.
6. Feeling aggrieved by the said judgment and decree, the
plaintiffs had filed an appeal in the Court of District Judge,
Jalandhar, which was assigned to Additional District Judge,
Jalandhar, who vide judgment and decree dated 8.1.2016 dismissed
the same.
7. Still feeling dissatisfied, the plaintiffs have knocked at
the door of this Court by way of filing a regular second appeal
praying that the same be accepted, the impugned judgments and
decrees passed by the Courts below be set aside and their suit be
decreed.
8. I have heard learned counsel for the appellants besides
going through the record.
9. Both the Courts below considering the facts and
circumstances of the case, the evidence brought on record by the
parties in light of the settled legal position have arrived at the
conclusion that the impugned mortgaged deed was executed on
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18.7.2001. Such deed carries photographs of Lachhman Singh -
defendant No.1, who had appeared on behalf of Nasib Singh as well
as Pakhar Singh predecessor-in-interest of plaintiffs and defendants
No.7 and 8 and was attested by Mohan Singh, Lambardar as well as
Kanwar Singh son of Ajit Singh resident of village Bundala and
further signatures of deceased Pakhar Singh were there on the
endorsement of Sub-Registrar as well as on the second page of the
mortgage deed. The plaintiffs had neither denied signatures of Pakhar
Singh nor his photographs on the mortgage deed, rather plaintiffs
themselves admitted in the pleadings as well as in the evidence that
in year 2001 Pakhar Singh and Lachhman Singh came from Canada
to India. Thus, presence of Pakhar Singh and Lachhman Singh in
India at the time of execution of the mortgage deed is not disputed by
the plaintiffs even.
10. With regard to the allegations by the plaintiffs that
mortgage deed is result of fraud and is without consideration, it was
taken into view that Pakhar Singh mortgagor had not challenged the
mortgage deed during his life time inasmuch as mortgage deed was
executed on 18.7.2001, whereas Pakhar Singh had died in the year
2003 in Canada. The mortgage deed being a registered document
carries presumption of due execution and genuineness. Furthermore,
in the mortgage deed it is mentioned that amount of Rs.24 lakhs had
already been received by Pakhar Singh. Since Pakhar Singh during
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his life time did not raise any objection to the mortgage deed and
only he could inform that no consideration amount had passed from
the mortgagee to him or that the mortgage deed was result of fraud
and misrepresentation. But as already observed he did not challenge
the mortgage deed on any ground during his life time. Jagtar Singh
plaintiff No.3 had obviously knowledge regarding the mortgage deed
from the very beginning since he had filed an application before the
revenue authorities for correction of khasra girdawari regarding the
suit properly in village Pasli as well as village Bundala and he had
made Pakhar Singh and Nasib Singh as party in these proceedings,
where the revenue authorities had directed that khasra girdawari be
corrected in the name of Jagtar Singh. Furthermore, defendants have
said to have filed a suit against the plaintiffs for recovery of
possession as well as claiming damages, which was dismissed in
default due to non prosecution. In that way, the opinion of the Courts
below that plaintiffs have miserably failed to prove their case,
therefore their claim was rejected.
11. I find that the findings given by the Courts below are
based upon proper appreciation and correct interpretation of law.
Both the Courts had rejected the claim of the plaintiffs. I do not see
any reason to disagree with the Courts below and take a different
view and further to interfere with the impugned judgments and
decrees.
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12. No substantial question of law or fact arises in this
appeal.
13. Therefore, I do not find any merit in the present appeal
and do not see any reason to disturb the legal, valid and well
reasoned judgments and decrees passed by the Courts below. The
same are upheld
14. The appeal stands dismissed with costs accordingly.
Since the main appeal stands dismissed, the
miscellaneous application(s), if any, stand disposed of accordingly.
8.12.2022 (H.S.MADAAN)
Brij JUDGE
Whether reasoned/speaking : Yes/No
Whether reportable : Yes/No
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