Punjab-Haryana High Court
(O&M) Joginder Singh And Others vs Piara Singh And Others on 10 April, 2024
Author: Anil Kshetarpal
Bench: Anil Kshetarpal
Neutral Citation No:=2024:PHHC:049032
RSA No.1247 of 1994 (O&M) -1- 2024:PHHC:049032
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
RSA No.1247 of 1994 (O&M)
Reserved on: 12.03.2024
Date of Order:10.04.2024
Joginder Singh and others
.Appellants
Versus
Piara Singh and others
..Respondents
CORAM: HON'BLE MR. JUSTICE ANIL KSHETARPAL
Present: Mr. C.L.Sharma, Advocate,
for the appellants.
Mr. Sanjay Majithia, Sr. Advocate, with
Mr. Sumit Sinha, Advocate,
for the respondents.
ANIL KSHETARPAL, J
1. BRIEF FACTS OF THE CASE:-
1.1 In this regular second appeal, the defendants assail the
correctness of the judgment and decree passed by the First Appellate
Court which in turn has reversed the judgment and decree passed by the
trial court.
1.2 In order to comprehend the issues involved in the present
case, the relevant facts, in brief, are required to be noticed.
1.3 For demonstration of inter-se relationship between the
parties, pedigree table/ family tree is extracted as under:-
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Nihal Singh
(deceased)
|--Sukhi
Gulab Devi----|
|
---------------------------------------------------------
| | |
Ram Kishan Mula Singh Jagat Singh
deceased died in son died issueless son deceased
April, 84 and widowless on died issueless and
| 7.11.1986 widowless in
| December, 84.
| |
------------------------------------------------------------------------------------------------------------
| | | | |
Pritam Singh Priara Singh Karam Singh Gian Singh Amar Kaur
son pre-deceased son son died in 1971 Daughter
Ram Kishan (Plff. No.1) (Def. No.1) | (Def No.9)
| | |
| | |
------------------ | |
Pritam Kaur widow | |
plaintiff no.4 | |
| | |
-------------------------------------------------------------------------------------|---------------------------------
| | | | | | | |
Darwak Kanwar Balbir Dalwinder | Joginder | Dalbir Daljit Kaur
Singh Singh Kaur | Kaur | Kaur daughter
son son daughter | daughter | daughter
Plff.No.2 Plff.No.3 deft. no.10 | deft. no.11 | deft. no.12 deft. no.13
| |
----------------------------------------------------------------------------
| | | | | |
Joginder Balwinder Balbir Kashmir | Satnam Singh
Singh Singh son Singh Singh | deft. no.6
deft. no.2 deft. no.3 son son |
deft. no.4 deft. no.5 |
|
--------------------------
| |
Nirmal Kaur Balwant Singh
widow son
deft. no.7 deft. no.8
1.4 The facts in chronological order are as under:-
Sh. Nihal Singh was the common ancestor of the parties. After
his death, his estate devolved upon his two widows, namely, Smt. Sukhi and
Smt. Gulab Devi and his son Sh. Dittu. After the death of Smt. Sukhi, vide
mutation no.52, the property devolved upon Sh. Dittu. After the death of Sh.
Dittu, the property devolved upon Sh. Ram Kishan, Jagat Singh and Mula
Singh, his three sons in equal shares. Sh. Ram Kishan executed a registered
Will on 09.11.1973, bequeathing his property in favour of his four sons,
namely, Piara Singh, Karam Singh, Gian Singh, children of Gian Singh
while excluding his daughter Amar Kaur. Sh. Ram Kishan died on
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23.04.1984. On the basis of the registered Will, mutation Ex.P1 was
sanctioned in favour of Sh.Pritam Singh, Piara Singh, Karam Singh and Sh.
Balwant Singh son of Sh. Gian Singh. Sh. Jagat Singh was unmarried and
issueless. He executed a sale deed on 23.04.1984, in favour of defendants
no.2 to 6, namely, Sh. Joginder Singh, Sh. Balwinder Singh, Sh. Balbir
Singh, Sh. Kashmir Singh and Sh. Satnam Singh sons of Sh. Karam Singh.
In other words, Sh. Jagat Singh transferred the property in favour of his
nephew's children. Thereafter, Sh. Jagat Singh died on 16.01.1985. Sh.
Mula Singh also executed a sale deed dated 04.11.1984, in favour of Sh.
Karam Singh, defendant no.1. Sh. Mula Singh died on 07.11.1986. The
plaintiffs, namely, Sh. Piara Singh, Sh. Darwak Singh, Kanwar Balbir Singh
and Smt. Pritam Kaur filed a suit for grant of decree of declaration that the
plaintiffs and defendants no.1, 9 to 13 and 15 are joint owner in possession
of the land measuring 159 kanals and 15 marlas and the entry in the revenue
record is wrong. The plaintiffs also asserted that in the revenue record the
property of Sh. Jagat Singh and Sh. Mula Singh has been transferred on the
basis of some forged and fictitious documents which are not binding upon
the parties. In substance, the plaintiffs claim that the property is Joint Hindu
Family/ Ancestral /Coparcenary property.
1.5 Defendants no.7 to 13 and 15 did not contest the suit.
Defendant no.1 to 6 and 14 filed their separate written statements. Defendant
no.14 claimed that Sh. Dittu mortgaged with possession, plot comprised in
Khasra no.65(0-8) in favour of his father. The property was never redeemed
within the period of limitation. Ultimately, Sh. Milkha Singh and Sh.
Mahnga Singh filed a suit for declaration that they have become owner as
the period of redemption has lapsed which was decreed on 27.07.1981
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against which appeal has also been dismissed.
1.6 In the written statement, the defendants projected that Sh. Jagat
Singh executed sale deed dated 27.04.1984, whereas Sh. Mula Singh
executed sale deed on 04.11.1986 which have not been challenged. The
plaintiffs while filing the replication claim that in para 3 and 4 of the plaint,
the correctness of the aforesaid sale deeds have been challenged.
1.7 Upon appreciation of evidence, the trial court dismissed the
plaintiffs' suit, however, the First Appellate Court held that the defendants
have failed to prove proper execution and registration of sale deeds dated
27.04.1984 and 04.11.1986. Therefore, the suit of the plaintiffs is decreed.
1.8 At this stage, it would be appropriate to take note of the reasons
recorded by the First Appellate Court:-
(1) Sale deed Ex.D2, allegedly executed by Sh. Mula Singh
is surrounded by suspicious circumstances because Sh.
Mula Singh was a literate person. He could sign the
documents, however, thumb impressions of Sh. Mula
Singh have been appended and the oral evidence that Sh.
Mula Singh had injured his left thumb impression is
based upon a funny story which is not believable. Sh.
Mahinder Pal Puri, DW1, the scribe, and Sh. Amarjit
Singh, Registrar admitted that they did not know Sh.
Mula Singh personally. The Registrar has admitted that
his clerk does not put stamps in his presence and the
thumb impression of Sh. Mula Singh were not taken in
his presence by his clerk. Sh. Mula Singh died on
07.11.1986. Hence, he was not having a sound disposing
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mind. The payment of sale consideration is also not
proved because no payment was made at the time of
registration of the sale deed. Sh. Balwinder Singh has not
produced any account books to prove that the vendor had
been receiving the amount from him continuously. Mere
vague recital in the sale deed that the vendor has already
received the payment cannot be relied upon.
(2) Similarly, no evidence has been led by the defendants to
prove that the amount of sale consideration was paid to
Sh. Jagat Singh or there was any prior agreement to sell.
Neither the Judgment Debtor-Sh. Balwinder Singh has
produced his source to pay the amount nor he has
produced account books of Sh. Jagat Singh to prove such
payment. Sh. Jagat Singh was cashier of the Cooperative
Society and there is no evidence that any consideration
was paid.
(3) The scrutiny of orders sanctioning the mutation
Ex.P1,Ex.P2 and Ex.P3, show that Sh. Karam Singh was
the mastermind behind execution of the documents.
(4) Ultimately the court held that neither Sh. Mula Singh nor
Sh. Jagat Singh executed the sale deeds and therefore,
decreed the suit.
2. ARGUMENTS ADDUCED
2.1 This Bench has heard the learned counsel representing the
parties at length and with their able assistance perused the paper book along
with the requisitioned record of the lower courts'.
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2.2 The learned counsel representing the parties have also filed their
written submissions, which are extracted as under:-
APPELLANTS
"29.11.1986 Piara Singh s/o Ram Kishan and two
sons of Pritam Singh s/o Ram Kishan and Pritam Kaur
wd/o Pritam Singh filed suit for Declaration that they are
joint owners of the suit land owned by Mula Singh &
Jagat Singh (both real brothers of their father) who died
unmarried and issueless and of Permanent Injunction
restraining defendants from cutting the trees etc on the
suit land, against Karam Singh and others, claiming that
the land in question is Ancestral Coparcenary Joint
Hindu Family Property. Def.No.1 Karam Singh s/o Ram
Kishan is real brother of Piara Singh Plaintiff and
Defendant No.2 to 6 are sons of Karam Singh -the main
contesting defendants, in their written statement stated
that the land in question is not Ancestral Coparcenary
Joint Hindu Family Property but is self acquired
property, Jagat Singh vide Registered Sale Deed
27.4.1984 sold his land to Defendant No.2 to 6 and Mula
Singh vide Registered Sale deed dated 4.11.86 sold his
land to Defendant No.1 for consideration. As the
plaintiffs have not challenged the said sale deeds by
affixing the requisite court fee, the suit as such is not
maintainable. Despite the said written statement, the
Plaintiffs did not bother to challenge the said sale deeds
and in replication stated that since the land in question is
Ancestral and said sellers had no right to sell the same,
so they need not to challenge the said Deeds.
After evidence lead by both the parties, Ld. Trial Court
while dealing with Issue No.1 on maintainability of suit,
held that since the Sale Deeds in favour of Defendants
No.1 to 6 have not been challenged, so the Suit is not
maintainable. (PAGE 44 of Paper Book).
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As regards Issue No.5, regarding Ancestral Coparcenary
Joint Hindu Family Property the Ld. Trial Court after
detail discussion held that "the property is non-ancestral
and is certainly not a corparcenary property of Mula
Singh and Jagat Singh". (PAGE45 to 47 of Paper book).
However the Ld Trial Court while dealing with Issue
No.7,8 & 9 held that since said Jagat Singh and Mula
Singh being unmarried have been living with Defendants
No.1 to 6 who use to serve them and the sale deeds in
question are registered, for consideration and are proved
by attesting witnesses, the said sale deeds in favour of
Defendants No.1 to 6 are valid,
Accordingly the Suit of plaintiffs was dismissed vide
judgment & Decree dated 12.3.1990.
In Appeal as mentioned in the Judgment of Ld. Appellate
Court in para 11, 8th line from botton at page 16 of
Papber Book "in the appeal counsel for the appellants
urged that the plaintiffs/appellants were only challenging
the factum of execution of documents by Moola Singh and
Jagat Singh and were challenging that alleged documents
were without any consideration." And Ld. Appellate
Court in the Opening Lines in para 1 of it judgment has
mentioned that "This is an appeal filed by Kanwar Balbir
Singh etc. plaintiff/appellants whose suit for declaration
challenging the sale deeds executed by Moola Singh and
Jagat Singh in favour of defendant/respondent Karam
Singh defendant No.1 and sons of Karam Singh defendant
had been dismissed vide judgment and decree dated
12.3.1990.."
Accordingly the Ld. Appellate Court after
considering/discussing the said sale deeds which in fact
were not challenged by the plaintiffs in para 19 at page
25 of the paper book has finally held that "neither Moola
Singh nor Jagat Singh had executed sale deeds in
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question Ex.D2 and Ex.D1 respectively. No consideration
had been received by Moola Singh or by Jagat Singh.
Therefore, findings of the trial court on Issue Nos. 7,8
and 9 cannot be affirmed and those are reversed...
Therefore suit of only Plara Singh is decreed for
declaration and permanent injunction in alternative for
joint possession that he is co-sharer in possession of land
in dispute alongwith Karam Singh and Amar Kaur and
both were entitled to 1/3 share in the properties of Moola
Singh and Jagat Singh."
As is evident from the Plaint in this case, the Plaintiffs
have not challenged the sale deeds executed by Moola
Singh and Jagat Singh and the Ld Trial Court has held in
Issue No.1 that since the Sale Deeds in favour of
Defendants No.1 to 6 have not been challenged, so the
Suit is not maintainable the findings and Judgment of Ld.
Appellate Court as mentioned hereinabove are wholly
illegal.
Moreover the suit of the plaintiff is claiming share in the
suit land on the plea that the land in question is an
Ancestral Coparcenary Joint Hindu Family Property
only and the Ld. Trial Court while deciding Issue No.5
has clearly held that "the property is non-ancestral and is
certainly not a corparcenary property of Mula Singh and
jagat Singh". Thus the suit of the plaintiff deserve to be
dismissed and has been rightly dismissed. But the Ld.
Appellate Court without setting aside the findings on
Issue No.1 and Issue No.5 has allowed the appeal in the
terms mentioned herein above, which is not sustainable
in the eyes of law.
RESPONDENT
1. Piara Singh son of Ram Kishan, Darwak Singh,
Kanwar Balbir Singh son of Pritam Singh son of Ram
Kishan, Pritam Kaur widow of Pritam Singh filed the suit
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against Karam Singhj and 14 Others for declaration that
plaintiff and defendant no. 1, 9 to 13 and defendant no.
15 are joint owners in possession of land measuring 159
Kanal 15 Marla in which plaintiff no. 1 owns 38 Kanal 7
marla and plaintiff no. 2 to 5 and defendant no. 15 jointly
own 38 kanal 7 marla. In para no. 2 of the judgment of
Ld. Trial Court, judgment gave the pedigree table of the
family. The disputed land was originally owned by Nihar
Singh and later on inherited by Dittu. After Dittu the land
was inherited by three sons namely Ram Kishan, Moola
Singh and Jagat Singh in equal shares in whose hand the
suit land was ancestral coparcenary joint Hindu Family
property. Ram Kishan, Moola Singh and Jagat Singh had
got no saleable interest of any kind in the suit property.
2. After Ram Kishan, Moola Singh and Jagat Singh
the property came to plaintiff and defendant no. 1, 7, 8
and 9 to 15 in which plaintiff no. 1 has got share of 38
kanal 7 marla and heirs of Pritam Singh also got share of
38 kanal 7 marla, whereas Plaintiff no. 2,3 and 5 and
defendant no. 15 got 9/40th share.
3. After death of Jagat Singh mutation of his share
was entered in name of defendant no. 2 to 6 on the basis
of some forged document in connivance with revenue
authorities. However after death of Jagat Singh Moola
Singh was entitled to his share. Thus mutation of share of
Jagat Singh in favour of defendant no. 2 to 6 is illegal
and void as Jagat Singh had no right to transfer the suit
property as the same was joint Hindu family coparcenary
ancestral property in hands of Jagat Singh.
4. Moola Singh died on 07.11.1986, defendant no. 1
in connivance with revenue authorities got the share of
Moola Singh mutated in his name without any right and
authority as the suit land in hands of Moola Singh also
was ancestral coparcenary joint Hindu family property.
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5. In their separate written statements the
defendant no. 1 to 6 took certain preliminary objections
that suit is not maintainable as cancellation of sale deed
dated 27.04.1984 executed by Jagat Singh and sale deed
dated 04.11.1986 executed by Moola Singh has not been
sought and the land in hands of Jagat Singh and Moola
Singh was self acquired property.
6. Mutation on sale made by Jagat Singh was
sanctioned on 27.06.1984. Mutation of registered sale
deed dated 04.11.1986 made by Moola Singh for Rs.
40,000/- was sanctioned on 24.11.1986. The Ld. Trial
Court held that land is not ancestral and mutation on
sale deed made by Jagat Singh and Moola Singh was
sanctioned without objections from any party. The civil
suit was dismissed.
7. The unsuccessful plaintiff filed first appeal on
16.04.1970 which was allowed on 05.04.1994. In first
appeal it was urged that although the original suit was
that transferees were members of coparcenary and joint
Hindu family property but in first appeal the appellants
urged that they were only challenging the factum of
execution of documents by Moola Singh and Jagat Singh
and that the very documents were without consideration,
Hence the suit was maintainable and plaintiffs was not
bound to file a suit for cancellation of sale deed as they
were not parties to the suit.
8. Facts surrounding execution of sale deed ExD2 by
Moola Singh make very interesting reading. Moola Singh
was a literate person and could sign documents as he
was signing his pension papers. Explanation was given
by Amarjit Singh DW3 and Balwinder Singh DW2 that
Moola Singh had not signed the documents because of his
old age. DW2 states that Moola Singh has not signed the
documents because left thumb impression of Moola Singh
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had been cut with knife that is why he had put his right
thumb impression on the document . An Application was
given by Moola Singh to purchase stamp papers and
those forms was having left thumb impression Moola
Singh on PW1/B and PW2/A on 03.11.1986. But later on
the sale deed shows that Moola Singh had put his right
thumb impression on 04.11.1986 at the time of sale deed.
But at the time of registration of document neither the
word L.T.I ( left thumb impression) had been mentioned
nor the word R.T.I (right thumb impression) had been
mentioned. The comparison of documents, where thumb
impressions on Moola Singh is on the sale deed and
application for purchase of stamp paper, clearly shows
that the document was not executed by Moola Singh as
they were not by one and the same person. In para no. 17
of the judgment of Lower Appellate Court it was observed
that:
"In this case documents had got compared
all the thumb impression of Moola Singh on the
sale deed and on the application to purchase stamp
papers and none of the thumb impressions was fit
for comparison. That clearly proves that
documents was not got executed by Moola Singh
and by one and the same person, otherwise, thumb
impression taken on 03.11.1986, 04.11.1986 and
06.11.1986 would have tallied with each other.
Explanation given DW3 Balwinder Singh that right
thumb impression of Moola Singh had been cut by
knife is not supported by any document which are
showing the left thumb impression of Moola Singh
on 03.11.86 and 04 11.86 on the form for
purchasing stamp and statement of Balwinder
Singh is not corroborated by the Registrar who had
stated that Moola Singh had put his thumb
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impression due to old age but this fact was not
stated by Balwinder Singh in his examination-in-
chief or in his cross-examination. Moola Singh is
proved to be the person who used to sign the
documents. Normal practice of the deed writer is to
obtain the left thumb impression of the male as laid
down by the Hon'ble High Court in case Harbans
Kaur Vs. Anup Singh and others reported in 1989
Civil Court cases 17(1) (H&H). Therefore,
execution of the documents is not proved at all
from the oral statement of Balwinder Singh." The
document was registered on 06.11.1986 and Moola
Singh died on 07.11.1986 which shows that he was
ill and not in sound state of mind.
9. As regards sale deed Ex D1 is concerned Jagat
Singh was a literate person and cashier of co-operative
society and a member of Panchayat hence Jagat Singh
could sign documents and there was no occasion for him
to put his thumb impression on document and hence sale
deed ExP1 is suspicious more so as no amount was paid
to Jagat Singh at the time of execution of document nor is
there any evidence that any amount had been paid at
home prior to sale deed. Vague recital that amount was
paid at home cannot be accepted. Hence the appeal was
rightly accepted and sale deeds were set aside and held
to be without consideration."
3. ANALYSES & DISCUSSION
3.1 This court has carefully examined the first sale deed Ex.D2,
dated 03.11.1986. The stamp paper for execution of the sale deed was
purchased on 03.11.1986. It has been scribed on a non-judicial stamp paper
of Rs.5000/-. Actually it is executed on three papers, one non-judicial stamp
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paper of Rs.5000/- and two plain papers. It was scribed on 04.11.1986 by
Khushi Ram, a professional scribe. It was registered by the Sub-Registrar
on 06.11.1986.
3.2 To prove this sale deed, DW6-Gurcharan Singh Lambardar, its
marginal witness and DW7-Khushi Ram scribe have been examined.
Whereas, the sub-registrar who registered the sale deed namely Amarjit
Singh has been examined as DW3.
3.3 Apart from this, Balwinder Singh, who is also signatory to the
sale deed has been examined as DW2. He has proved the execution and
registration of the sale deed. A careful perusal of the sale deed proves that on
each page Sh. Mula Singh has appended his right hand thumb impressions.
3.4 On 06.11.1986, he has appended two thumb impressions in the
office of the sub-registrar. Both the marginal witnesses, namely, Gurcharan
Singh, Lambardar, and Tarsem Singh, Sarpanch, have appended their
signatures not only on 04.11.1986 when the sale deed was executed but also
on 06.11.1986 when the sale deed was registered in the office of the sub-
registrar.
3.5 The First Appellate Court has held that the execution of the sale
deed by Mula Singh is doubtful on the ground that Mula Singh was illiterate
and his left hand thumb impression was not appended.
3.6 It may be noted here that Balwinder Singh DW2 has explained
that Mula Singh had become old and there was an injury on the left thumb
impression. Hence, right thumb impression was appended.
3.7 The scribe of the sale deed has specified that right thumb
impression of Mula Singh has been appended on each page. Though, in the
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office of sub-registrar, it has not been recited as to whether it is right or left
thumb impression, however, the thumb impression of Mula Singh has been
appended.
3.8 However, as noticed Balwinder Singh has explained the reasons
why left hand thumb impression was appended. Moreover, it has been
explained that Mula Singh had become old. DW7-Khushi Ram is a
professional scribe. DW3-the Joint Registrar is the registering authority. He
has explained that he inquired from Mula Singh that why he has appended
his thumb impression. In response thereto, Mula Singh explained that due to
old age he cannot sign.
3.9 It is important to note that DW6-Gurcharan Singh, witness of
the margin of the sale deed dated 04.11.1986, executed by Mula Singh and
the scribe DW7-Khushi Ram has been cross examined at length however,
the learned counsel representing the appellant failed to impeach their
credibility. DW6-Gurcharan Singh in his statement has mentioned that
Mulla Singh was wearing a bandage on his left thumb but its correctness
was never doubted because the witness was never cross examined on this
aspect.
3.10 Similarly, to prove the sale deed dated 27.04.1984, Sh.
Mohinder Pal Singh Puri, scribe and Gokal Singh, Lambardar, witness of
the margin have been examined. They have also been cross-examined at
length. However, the learned counsel representing the plaintiff failed to
impeach their credibility.
3.11 The First Appellate Court has looked at the sale deed with a
prism of suspicion. The sale deed is a registered document. It carries
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presumption of having been executed correctly/genuinely. It was for the
plaintiff to prove that the sale deed was not executed by Mula Singh. They
have not led any reliable evidence to prove the same.
3.12 They examined the handwriting and finger print expert (to be
checked), however, he failed to give any definite opinion. However, he has
stated that the thumb impressions are not comparable. It may be noted here
that the real brother of Mula Singh, namely, Jagat Singh had executed a sale
deed in favour of children of Balwinder Singh in the year 1984. Thus, it is
obvious that Mula Singh and Jagat Singh were residing with the family of
Balwinder Singh.
3.13 The onus lay on the plaintiff to prove that the sale deed was
result of fraud or misrepresentation. In rebuttal, the plaintiffs have
examined Arvind Sood, Hand Writing and Fingerprint Expert. He had stated
that the thumb impressions are not comparable.
3.14 In these circumstances, there is no cogent evidence to prove that
Mula Singh did not execute the sale deed.
3.15 The presumption of genuineness in favour of the registered
document has not been rebutted.
3.16 The second sale deed Ex.D1 dated 27.04.1984, was executed by
Jagat Singh in favour of children of Balwinder Singh. This has been again
scribed on three non judicial stamp papers of Rs.5,000/-. The first and
second leaf is for Rs.2000/- each whereas the third leaf is for Rs.1000/-. Sh.
Jagat Singh purchased the stamp paper for execution of the sale deed on
26.04.1986, whereas the sale deed was scribed and registered on 27.04.1984.
Sh. Jagat Singh had appended his thumb impression on each page of the sale
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deed.
3.17 Sh. Jagat Singh has also appended his thumb impression at the
time of registration of the sale deed on the back of the first page. This sale
deed has been scribed by Sh. Mohinder Pal Puri, who has been examined as
DW1.
3.18 Two witnesses of the margin are Gokul Singh Lambardar and
Jagir Singh Lambardar. Gokul Singh Lambardar has been examined as
DW5. In both the sale deeds, the vendors have acknowledged the receipt of
entire sale consideration. Hence, The First Appellate Court has erred in
recording finding that the payment of sale consideration is not proved.
3.19 It may be noted here that the title to the sale deed has passed on
the execution and registration of the sale deed. It is nowhere stipulated that
if payment is not made, the sale would not come into effect. The sale deed
is a registered document which carries presumption of correctness which has
not been rebutted.
3.20 Moreover, the parties are very closely related. Moreover, non-
payment of sale consideration does not effect the validity of the sale deed
unless it is established that there was stipulation to this effect in the sale
deed.
3.21 With respect to the findings of the First Appellate Court that the
sale consideration was not paid at the time of execution of the sale deed, it
may be noticed that the consideration can be price paid or promised or part
paid and part promised. Actual payment of the full price at the time of
execution of the sale deed is not a sine-qua non for completion of the sale
deed. While adjudicating upon such allegations particularly when the sale
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has been challenged by a person who is not party to the sale deed, the court
is required to examine the intention of the parties.
3.22 The real test is what was intended by the parties. Reliance in
this regard can be placed on the judgment of the Surpreme Court in Vidhya
Dhar vs. Manik Rao and others 1999 3 SCC 573 and Kaliaperumal vs.
Raj Gopal and another, 2009) 4 SCC 193. In this case, the plaintiffs have
not proved that in absence of absolute proof of sale consideration, the vendor
intended to retain the title of the property.
3.23 Moreover, it has been proved from the deposition of Amarjit
Singh, Joint Registrar, that he inquired from the vendor who acknowledged
receipt of the payment of sale consideration. In any case, they were parties
the vendor and vendee were closely related.
3.24 While examining such cases, the court is not required to
examine the case with the prism of a detective who is trying to find fault
with all the things or facts which are presented to him.
3.25 Moreover, the official acts are presumed to have been carried in
accordance with law. The First Appellate Court has found that Mula Singh
and witnesses appended their signatures in the presence of the Clerk in the
office of Joint Registrar. The office of Joint Registrar or Registrar is a
comprehensive office which includes the officer and its official. These
officials are posted to help the officers, hence it was not appropriate for the
First Appellate Court to doubt the veracity of the registered sale deed on the
ground that the thumb impression were appended not in the presence of the
registrar.
3.26 Furthermore, the First Appellate Court has erred in observing
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that Mahinder Pal Puri (scribe), DW1 and the Joint Registrar (Registering
Authority) has stated that they were not knowing the parties personally. It
may be noted here that the scribe and the Registrar are doing their
professional duty. They are not expected to personally know the parties.
3.27 The finding recorded by the First Appellate Court that the
vendor was not of sound disposing mind at the time of registration of the
document on 06.11.1986 is not only beyond pleadings but also beyond
evidence. It is not the case of the plaintiffs that Mula Singh was not of
sound disposing mind. Moreover, the First Appellate Court has shifted the
entire onus of proving that the sale deed was executed on payment of sale
consideration upon the defendants, whereas it was for the plaintiffs to prove
their case.
3.28 Similarly, the First Appellate Court's second reason is also
erroneous in view of the judgments passed in Vidhya Dhar and (supra)
and Kalira perumal. In this case also, Jagat Singh had acknowledged the
payment of sale consideration before the execution of the sale deed. Jagat
Singh was working as a Cashier in a Cooperative Society. In other words, he
was literate and was not a rustic villager. He was unmarried and issueless.
Hence, it is not appropriate to doubt every official document.
3.29 The First Appellate Court's reason no.3 is again not only
beyond pleadings but beyond evidence also. It is nowhere the case of the
plaintiffs that Karam Singh is the mastermind behind the execution of the
documents. Karam Singh is a beneficiary of one of the sale deed.
3.30 The last reason assigned by the court is also erroneous because
the First Appellate Court has reiterated what has been already observed.
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3.31 It may be noted here that the learned counsel representing the
plaintiff before the First Appellate Court did not press the issue with regard
to property being ancestral or coparcenary as recorded by the First Appellate
Court in para 19, hence, he abandoned the same plea.
3.32 The correctness of all the contentions of the learned senior
counsel representing the respondents have already been examined while
analyzing the reasons recorded by the First Appellate Court.
4. CONCLUSION
4.1 Keeping in view the aforesaid discussion, inevitable conclusion
is that the judgment of the First Appellate Court is erroneous and hence, set
aside and that of the trial court is restored.
4.2 The appeal is allowed.
4.3 All the pending miscellaneous applications, if any, are also disposed
of.
10th April, 2024 (ANIL KSHETARPAL)
nt JUDGE
Whether speaking/reasoned :YES/NO
Whether reportable :YES/NO
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