Nazar Singh vs Rajinder Kaur

Tej Pratap Singh Mann, J.—After remaining unsuccessful in both the Courts below in his suit for declaration and permanent injunction, the plaintiff has filed the present second appeal u/s 100 of the Code of Civil Procedure. In the plaint, it was averred by the appellant that he was owner of 120/276 shares in the suit property. He was duped by the defendant, who was none else but the wife of his brother Avtar Singh @ Mithu Singh, on the pretext that she would get him a loan by mortgaging his property, which amount she would use to bear the expenses of his marriage. The plaintiff thumb marked various papers which were not even read over to him. He was also made to present himself before the Tehsildar. Later on, he learnt that the defendant had usurped his property by getting sale deed No. 1599 dated 20.8.2001 executed. Claiming that the sale deed was not binding upon him being result of fraud and the defendant was trying to dispossess him, besides further selling the property, the plaintiff filed the suit for declaration and permanent injunction.

The suit was resisted by the defendant by filing the written statement. She denied the allegation of playing any fraud upon the plaintiff. According to her, her husband Avtar Singh alias Mithu Singh had turned her, alongwith her minor children out from the house and litigation between them was going on. The suit was filed in connivance with Avtar Singh @ Mithu Singh for the sole purpose of harassing her. The sale deed had been executed by the plaintiff voluntarily after receiving entire sale consideration of Rs. 75,000/-. Now when the rates had gone up, the plaintiff filed the present suit to wriggle out of the sale deed.

Both the Courts below had held that there was a valid sale deed executed by the plaintiff in favour of the defendant. There was no evidence of any intention on the part of the plaintiff to execute any mortgage deed. Accordingly, the suit stands dismissed.

Counsel for the appellant has submitted that the appellant never intended to execute any sale deed. The sale deed had been got executed from him by the defendant after playing fraud upon him.

Apart from taking stand that the defendant had played fraud upon him, the plaintiff led no evidence to prove his allegations. He did not disclose particulars of fraud. At the same time, the sale deed Ex.D-1 contained the photograph of the plaintiff affixed on the same, besides bearing his thumb impression. The sale deed stands proved by the testimonies of DW-1 Pritam Singh and DW-2 Rajinder Kaur-defendant. The sale deed was duly registered and endorsement Ex.D-2 by the Registrar is reflected on the same. The sale deed also bears the recital of payment of consideration amount of Rs. 75,000/-. Therefore, it cannot be said that the sale deed had been got executed from the plaintiff after playing fraud upon him.

The sale deed in question was executed on 20.8.2001. The suit was, however, filed by the plaintiff on 26.7.2005. The plea of the plaintiff that he was not aware of the sale deed is "plea of convenience" only, more so when according to him, he had executed the deed under the impression that he was mortgaging his property in order to raise loan for his marriage. The suit, thus, stands barred by limitation.

The plaintiff had examined his brother Avtar Singh as PW-2. During his cross-examination, aforementioned Avtar Singh admitted that the suit was filed by the plaintiff at his instance in order to put pressure upon the defendant to withdraw her suit for maintenance and also for harassing her. This goes a long way to show that the plaintiff had come up with the make-believe story so as to wriggle out of the sale deed, which had been consciously executed by him in favour of the defendant. Both the Courts below have considered the evidence brought on the record by the parties. The same has been appreciated in its proper perspective. The concurrent findings of facts arrived at by both the Courts below are not open to challenge and that too, in a second appeal, which is maintainable only on some substantial question of law. The substantial questions of law, as formulated by counsel for the appellant, do not arise for determination.

The appeal is without any merit and, therefore, dismissed.