Heeralal vs Tulsiram

Arun Bhansali, J.—This second appeal under Section 100 CPC is directed against the judgment and decree dated 17.12.2008 passed by Additional District Judge No. 1, Jodhpur, whereby, the appeal filed by the appellant against the judgment and decree dated 19.12.2005 passed by Additional Civil Judge (Junior Division) No. 7, Jodhpur, has been dismissed.

The facts in brief may be noticed thus-the plaintiff Tulsiram filed a suit for declaration and permanent injunction against appellant Heeralal and the Urban Improvement Trust, Jodhpur (for short ''UIT'') and also impleaded Dalpat Singh pertaining to plot No. 106 at Bhagat Ki Kothi, Jodhpur admeasuring 75 X 75 feet with the averments that the plaintiff and his brother Dalpat Singh had old possession over the suit plot No. 106 and based on old possession the Collector, Jodhpur allotted the suit plot by regularizing the same to the plaintiff and Dalpat Singh; a license dated 07.03.1981 was issued to plaintiff and Dalpat Singh and the cost of plot and lease money was deposited; it was stated in the plaint that a plot was allegedly allotted to defendant Heeralal by the UIT and Heeralal filed Civil Original Suit No. 225/1977 seeking possession of suit plot No. 106, which was illegally got decreed ex-parte on 05.07.1978 and when on 17.10.1978 defendant Heeralal alongwith Court Ameen visited the suit plot for taking possession, the plaintiff came to know about the ex-parte decree, against which, appeal was filed by the plaintiff. However, the appeal was decided on 01.08.1980 as not maintainable and it was left open for the plaintiff to file separate suit for safeguarding his civil rights and, therefore, the present suit was filed seeking declaration that the plaintiff and defendant No. 3 were owners of the suit plot, permanent injunction against the UIT restraining it from canceling the allotment and lease; not to dispossess the plaintiff and defendant No. 3 in pursuance to decree dated 05.07.1978 obtained by defendant Heeralal; permanent injunction restraining allotment and lease of the suit plot to anyone and not to dispossess the plaintiff without due process of law.

A written statement was filed by defendant No. 1 UIT, wherein allotment in favour of plaintiff and defendant No. 3 was admitted, however, it was claimed that the allotment was incorrect; the possession of the plaintiff was denied; it was claimed that the suit was barred by limitation and in absence of notice under Section 98 of the Urban Improvement Act, the suit was liable to be rejected.

Defendant No. 2 -appellant Heeralal filed his written statement; denying the possession of plaintiff and defendant No. 3 on plot No. 106, it was claimed that the suit plot was not plot No. 106 or 106-A in fact they are plot No. 106 only admeasuring 75 X 75 feet, which was allotted to him by the UIT on 20.10.1975 and the UIT only gave possession of the half plot and, therefore, for seeking possession of rest of the half plot, the suit was filed, which has been decreed on 05.07.1978; the appeal was filed by the plaintiff against the judgment and decree dated 05.07.1978, which has been dismissed and, therefore, the judgment dated 05.07.1978 as become final and, therefore, based on decree dated 05.07.1978 and allotment dated 20.10.1975, the plaintiff was owner of the suit plot and the suit was liable to be rejected.

Defendant No. 3 Dalpat Singh also filed his written statement and admitted the averments made in the plaint.

Based on averments made in the pleadings, the trial court framed seven issues. On behalf of the plaintiff, four witnesses were examined and on behalf of the defendants, three witnesses were examined.

After hearing the parties, the trial court by its judgment dated 19.12.2005 came to the conclusion that the disputed plot No. 106 admeasuring 37.5 X 75 feet was of old possession of plaintiff and defendant No. 3 and the same was allotted on 07.03.1981; the decree dated 05.07.1978 has no effect on the suit plot; the sale deed (Ex.-A/1) dated 22.11.1982 pertaining to plot No. 106-A was a forged document and in absence of any evidence on part of the UIT and explanation under Section 98 of the Urban Improvement Act, the suit was maintainable and, consequently, passed the decree granting the relief as prayed and noticed hereinbefore.

Feeling aggrieved, the appellant filed first appeal under Section 96 CPC, the first appellate court after hearing the parties, dismissed the appeal filed by the appellant and upheld the judgment and decree dated 19.12.2005 passed by the trial court.

It is submitted by learned counsel that both the courts below fell in error in decreeing the suit filed by the plaintiff/dismissing the appeal filed by the appellant. The trial court and the first appellate court has relied on the affidavits filed by the Chairman and Secretary of the UIT without giving any opportunity to cross-examine them, which has vitiated the entire finding recorded by both the courts below. It is, further submitted that the appellant was not granted any opportunity to prove Ex.-A/1. It is, further submitted that once the decree dated 05.07.1978 was passed by the trial court, any subsequent act of allotment in favour of the plaintiff was of no consequence. Both the judgments passed by the trial court and first appellate court are vitiated on account of non-providing of adequate opportunity to the appellant and relying on wholly inadmissible evidence and, therefore, the same give rise to substantial questions of law.

Learned counsel for the respondents vehemently opposed the submissions made by learned counsel for the appellant. It was submitted that a bare look at the document (Ex.-A/1) produced by the appellant would on its face show that the document is a forged document; the admitted case between the parties was pertaining to plot No. 106 and the document (Ex.-A/1) pertains to 106-A, the map attached with the sale deed (Ex.-A/1) does not match with the sale deed itself and, therefore, the entire foundation of the appellant being baseless and having originated in a forged document, no substantial question of law arise for consideration in this appeal and the appeal deserves to be dismissed.

I have considered the rival submissions.

From a bare look at the averments contained in the plaint and the written statement filed by the appellant, it is apparent that the dispute pertained to plot No. 106 situated at Bhagat Ki Kothi, Jodhpur and the plaintiff had very categorically in the plaint and annexed map (Ex.-1) indicated the disputed plot as marked A, B, C, D in the map. Even in the written statement, the appellant-defendant specifically claimed his right qua the said plot No. 106 only. No reference was made to the sale deed dated 22.11.1982 till the appellant produced the said Patta alongwith the map alongwith an application under Order XIII, Rule 2 CPC on 20.02.2001 and 27.02.2001, which application was rejected by the trial court on 16.03.2001.

Feeling aggrieved, the appellant filed S.B. Civil Revision Petition No. 463/2001, which came to be allowed by order dated 15.01.2002 by this Court and the application under Order XIII, Rule 2 CPC was allowed and the document was taken on record. Whereafter, the appellant filed application under Order XVIII, Rule 17A CPC seeking opportunity to lead evidence to prove the said sale deed. The trial court by its order dated 11.04.2002 dismissed the said application on coming to the conclusion that after having led evidence in terms of the written statement, the appellant cannot be permitted to lead fresh evidence on a new defence and as the document was taken on record in terms of orders passed by the High Court, marked it as Ex.-A/1 and directed that the same would be read in evidence in context of the cross-examination of the appellant. Whereafter, the application under Section 340 CPC was filed by the plaintiff, on the said application by order dated 11.05.2002, the Court called upon the then Chairman and Secretary of the UIT, to file their affidavits regarding the said document-sale deed, which affidavits were filed on 01.06.2002. Whereafter, the appellant filed application seeking cross-examination of the said deponents, which application was rejected by the trial court on 19.08.2002.

The trial court by its impugned judgment noticed filing of the affidavits by the Chairman and Secretary of the UIT and based on other material available on record came to the conclusion that the said sale deed was a forged document. The first appellate court, despite concurring, by its exhaustive judgment running into 53 pages, after meticulously & painstaking analyzing the pleadings, oral and documentary evidence came to the conclusion that the document (Ex.-A/1 sale deed), which was made to be the sheet-anchor in the suit and the first appellate court and even before this Court was an absolutely forged document. The first appellant court gave as many as 17 reasons (A to Q) in para-53 of its judgment for coming to the conclusion that the document (Ex.-A/1) was a forged document.

The reasons given by the trial court and the first appellate court for coming to the conclusion that the document (Ex. A/1) was a forged document is essentially a finding of fact and the concurrent findings recorded by both the courts below does not give rise to any substantial questions of law. In fact, the reasons recorded by the first appellate court from A to Q not only communitively but for each individual reason makes/proves the document forged and on that count also findings recorded by both the courts below cannot be faulted.

So far as the plea raised by the appellant regarding reliance placed on the affidavits by the courts below without giving opportunity to the appellant to cross-examine the deponents is concerned, the said fact by itself, even if the same had any substance, does not vitiate the findings of the sale deed being forged. The argument that the appellant was not provided any opportunity to prove document (Ex.-A/1) has also little substance inasmuch as the document was produced after almost 20 years from the date of filing of the suit, though the same had allegedly come into existence during the pendency of the suit in the year 1982 itself, however, no attempt was made to amend the written statement and in absence of any plea, there was no question of grant of any opportunity to the appellant to lead evidence in relation to the said document (Ex.-A/1), however, as the document was taken on record under orders from this Court, the trial court was justified in marking the same as Ex.-A/1. Whereafter, it was well within the jurisdiction of the courts below to examine the validity of the said document and its evidentiary value.

The submissions made by learned counsel for the respondents have much substance inasmuch as the categorical plea in the written statement and in the oral statement as DW-3 by appellant was that the dispute pertained to plot No. 106 only and that plot No. 106-A has no existence and, admittedly, the document Ex.-A/1 sale deed pertained to plot No. 106-A, the plea raised by the appellant even factually falls to the ground and he cannot be permitted to claim any right or raise a plea regarding proof of sale deed pertaining to plot No. 106-A.

The submissions made by learned counsel for the appellant does not give rise to any substantial question of law. The findings of fact on issue raised by learned counsel for the appellant and other factual issues are concluded by concurrent judgments of both the courts below and for lack of any perversity in the said findings, the same does not give rise to any substantial questions of law.

Consequently, there is no substance in the second appeal and the same is, therefore, dismissed.