Chhittar Singh and Another vs Siri Dev and Another

Harjit Singh Bedi, J.—This is a plaintiff Second Appeal and arises out of the following facts:-

The plaintiff-appellants filed a suit for permanent injunction claiming that they were owners and in possession of the suit property since 1954-55 and that the defendant-respondents were interfering in their peaceful possession. Respondent No. 2 Kiran Dev Sharma contested the suit and pleaded that the appellants were neither the owners nor in possession of the suit land and that they had sold the same to the respondents vide a registered sale deed dated 10.4.1973 for a consideration of Rs. 20,000/- and as a consequence thereof they had continued to be in possession of the suit property as they were already tenants thereon. The appellants, filed a replication and the pleas raised by the respondent were controverted and it was pleaded that Kiran Dev Sharma who had been his counsel in some cases might have obtained his thumb impression on the sale deed by fraud and misrepresentation.

On the pleadings of the parties, the following issues were framed by the trial Court:

Whether the plaintiffs are owners in possession of the suit property as alleged?

Whether the defendants are owners in possession of the suit land by virtue of the sale deed dated 10.4.1973?

Whether the suit is not maintainable as alleged?

Whether the suit is bad for misjoinder of parties as alleged?

Whether the suit is properly valued for the purposes of Court fee and jurisdiction?

Whether the defendants are entitled to special costs as alleged?

Relief.

The trial Court discussed issue Nos. 1 and 2 together and decided issue No. 1 against the appellants whereas issue No. 2 was found in favour of the respondents. Likewise, issue No. 3 was held against the appellants and as a consequence of the cumulative effect of the relevant issues, the suit was dismissed. An appeal was taken before the first appellate Court and that too was dismissed. Hence the second appeal at the instance of the plaintiff-appellants.

The Lower Appellate Court given a categorical finding that a valid sale deed Exhibit D-1 had been executed between the parties on 10th April, 1973, and for that purpose relied on the evidence of the appellant, Chhittar Singh, who had admitted before the Sub-Registrar that he had received a sum of Rs. 4,000/- by way of earnest money and that the balance amount had been paid at the time of the execution of the sale deed. The Courts below also discussed the evidence of Om Jiwan Sharma (DW-2), an attesting witness of the sale deed who stated that it had been written on the instructions of both the appellants and that he along with Sant Ram Advocate had attested this document. The Courts below also relied on the evidence of D.W.3, Dharam Pal, a petition writer, who was the scribe of the document Exhibit D-1 and his statement was corroborated by entry at Serial No. 417 dated 5.4.1973 in the register maintained by him. The courts below also relied on the evidence of P.W.4 Arjan Singh, Assistant Cashier of the office of A.T.O. Ballabgarh, who on the basis of the record, stated that Chhittar appellant had purchased stamps worth Rs. 2,000/- for executing the sale deed in favour of Kiran Dev Sharma, Advocate, and on the evidence of B.K. Sharma, D.W.1 the Tehsildar-cum-Sub Registrar had registered the deed on the relevant date. The Courts below also discussed the evidence produced by the appellants and observed that in the light of the over-whelming evidence of the other side, not much credence could be attached to it.

I have heard the learned counsel for both the parties at great length and perused the record with their assistance.

Mr. Gopi Chand Bhalla, the learned counsel appearing for the appellants, has argued that from the evidence adduced by the parties, it was apparent that no sale deed had been executed and that the respondents as also their witnesses had connived in depriving the appellants of their property. He has also relied on the evidence of Gopal Vasishtha (PW4) who stated that though he was a witness to the sale deed Exhibit D-1, no money had been paid in his presence.

Miss Harsh Rekha Dutt the learned counsel appearing for the respondents has urged that a finding of fact had been recorded by the two Courts below on a thread bare discussion of the evidence produced by the parties, and that this finding should not be disturbed in second appeal. She has highlighted the various aspects of the evidence which has been discussed by the Courts below.

After hearing the learned counsel for the parties, I am of the opinion that there is no merit in the appeal. Mr. Gopi Chand''s assertion that Shri Gopal Vasistha (PW4) had stated that no money had been paid in his presence stands falsified from the evidence of B.K. Sharma, the Sub-Registrar. It is also significant that Shri Gopal Vasistha (PW4) had stated that Chhittar Singh had admitted before him that he had taken a sum of Rs. 4,000/- as earnest money. No reliance can be placed on the evidence of Gopal Vasistha as on one hand he is a witness of the document and on the other hand he is denying its valid execution. It is true that the agreement to sell on the basis of which the sale deed had been executed is not on record but the respondents have explained that the same had been lost. Moreover, in the light of the fact that the sale deed had been validly executed the fact that the agreement to sell had not been produced in evidence, would be of no consequence. The sale deed Exhibit D-1 stands proved from the evidence of the attesting witnesses, the scribe of the document, the Clerk from the Treasury Office who deposed that the stamp papers had been purchased in the name of Chhittar and ultimately the evidence of the Sub-Registrar. Moreover, as urged by the learned counsel for the respondents concurrent findings of fact are not to be interfered with lightly in second appeal. To my mind, no circumstances has been pointed out which would justify interference.

The appeal is accordingly dismissed. No order as to costs.