Appeal dismissed for failing to show error in lower courts' findings of fact regarding fraud and limitation in a suit challenging a sale deed's validity.
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RSA No.3500 of 2009 (O&M)
1
In the High Court for the States of Punjab and Haryana at Chandigarh.
Decided on January 21,2010.
Surinder Kumar - Appellant
vs.
Garib Dass and others
--Respondents.
CORAM: HON'BLE MR.JUSTICE RAKESH KUMAR JAIN
Present: Mr.Ashok Tyagi,Advocate,Advocate,for the appellant
Rakesh Kumar Jain, (Oral)
The plaintiff is in second appeal in a suit for declaration that sale deed dated 01.7.1985 executed by Chhajju Ram in favour of the defendants for a sum of Rs.18,000/- in respect of the land measuring 37 kanals 11 marlas, bearing khewat/khatoni No. 163/245 min, khasra Nos. 118/812 (5-11), 9 (8-0), 11(8-0),12(8-0) & 13 (8-0) total Kittas -5 situated in village Rataur, H.B.No. 252, Sub Tehsil Raipur Rani, District Ambala, is null and void with consequential relief of possession and permanent injunction from selling, mortgaging or alienating the suit property in any manner.
Plaintiff's case is that suit land was owned by his father, who had purchased it from the Centre Government vide sale deed dated 08.6.1983. In September, 1994, on the pretext of applying for loan from
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some bank, revenue record was consulted in which it was found that the defendants in connivance with the marginal witnesses and revenue authorities have got a false and fabricated sale deed in their favour of the suit land by impersonating some other person as Chhajju Ram (father of the appellant). It is further alleged that after receiving certified copy of the sale deed on 19.9.1994, the plaintiff/appellant had approached the defendants and asked them as to why they had played fraud upon him and trespassed over the suit land on 20.9.1994, but they did not pay any heed which led to the filing of present suit.
In the written statement, the defendants have alleged that the suit land was sold by the plaintiff vide registered sale deed dated 01.7.1985 to them and were put in possession. Allegations with regard to fraud etc. were denied. Additional plea was taken by the defendants that the plaintiff himself had voluntarily called the witnesses and had executed the sale deed in their favour.
Plaintiff filed replication and after completion of pleadings, following issues were framed:-
In support of his case, the plaintiff examined Ishar Singh as
PW-1, Ghanshyam Dass, Clerk of office of Tehsildar (Sales) Ambala as
RSA No.3500 of 2009 (O&M) 3
PW-2, Satish Kuimar as PW-3 and he himself appeared as PW-4. Plaintiff also examined Jassy Anand, Handwriting and Finger Expert as PW-5 and closed his evidence. On the other hand, defendants examined defendant No.1 Garib Dass as DW-1, Joginder Singh VRK office of S. P Ambala as DW-2 and Jai Narain, Handwriting and Finger Print Expert as DW-3 and closed their evidence.
Plaintiff did not lead any evidence in rebuttal.
Since basic case set up by the plaintiff is that the sale deed is an act of fraud by the defendants who have got it signed by an Imposter, the plaintiff had examined PW-5 Jassy Anand, Handwriting and Finger Print Expert to prove signatures/thumb impression of his father whereas defendants had examined Jai Narain Handwriting and Finger Print Expert as DW-3 in this regard.
The learned trial Court found that there are two reports of the experts on the file one obtained by the plaintiff and the other by defendants. Both the reports are in favour of the respective parties. In this situation, it was found important to look into the statement of PW-5 Jassy Anand, who has stated that obtaining of signature or thumb impression from the original is always better than the one from photo copy, for the purpose of comparison. It has also been mentioned in the statement of this expert witness that he had demanded more standard thumb impression of Chhajju Ram but same were not supplied to him. Moreover, the finger print expert was not having the knowledge as to whether the thumb impression SI which was supplied to him for comparison is admitted or proved thumb impression of Chhajju Ram.
Considering the statement of expert witness i.e. PW-5 Jassy
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Anand, there remains no hesitation in holding that the statement of PW-5 is absolutely of no help to the plaintiff in this case because the finger print expert himself is not sure as to whether the thumb impression which he used for the purpose of comparison was admitted or proved thumb impression of deceased plaintiff Chhajju Ram. No ambiguity however, has been pointed out in the statement and report of the Finger Print Expert Madhuban, who has been examined by the defendants as DW-3.
The appellate court found that except for the allegations either made against attesting witnesses or revenue officials, nothing has been proved that sale deed Ex. D1 which is a registered document was an act of fraud or forgery. It was also observed that the plaintiff had failed to place on record copy of jamabandi for the year 1994 to establish that he had actually obtained copy of the revenue record in 1994. Consequently, it was held that cause of action was fabricated in order to file the suit. Thus, it was also observed that the sale deed dated 01.7.1985 has been challenged by way of suit filed on 20.9.1994 while such a declaration can be sought only within a period of three years, but the suit has been filed after the expiry of nine years without placing on record a copy of the said jamabandi which was alleged to have been taken in the year 1994 for the purpose of taking loan. The Court was, thus, of the view that cause of action was also created for the purpose of over coming the period of limitation which had already expired. In the present appeal, the plaintiff has challenged finding of fact recorded by both the Courts below on the ground that it suffers from perversity without pointing it out from the evidence on record. Simply he has framed question as to whether evidence of expert can be brushed aside without any cogent reason. In this regard,
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RSA No.3500 of 2009 (O&M)
categoric finding has been recorded even by the trial Court as well as by the lower Appellate Court by giving cogent reason which has already been noticed in the earlier part of this judgment.
In view of the above, looking from any angle, I do not find any error in the judgment and decree of the Courts below which is based upon pure finding of fact. Hence, the present appeal is dismissed in limine, though without any order as to costs.
January 21,2010 RR
(Rakesh Kumar Jain) Judge
Surinder Kumar
Garib Dass
Rakesh Kumar Jain
As recorded by the court registry
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