Rajinder Kumar vs Ajesh Jain

Rakesh Kumar Jain, J.—Defendant is in second appeal against judgment and decree of both the Courts below by which the plaintiff''s suit for declaration has been decreed and the defendant has been permanently restrained from dispossessing the plaintiff from the suit property and from raising any sort of construction thereon.

Plaintiff''s case is that plot measuring 4 marla comprised in kheqat No. 97, situated within the revenue estate of village Kishanpura, was sold to him by defendant No. 1 vide registered sale deed dated 1.6.1998 against a valuable consideration of Rs. 12,000/-. Initially, the sale deed was impounded by the Sub Registrar which was later on released by Deputy Commissioner, Jind on 21.1.2000 on payment of defficiency of Court fee. The plaintiff had to file a suit as defendant was denying the title of the plaintiff and was threatening to interfere in his peaceful possession by removing malba lying on the plot and by raising construction on it.

The defendant''s case is that the plaintiff had orally agreed to purchase the property in dispute from defendant No. 1 against a consideration of Rs. 1,20,000/-but he alongwith his father fraudulently got executed the sale deed for a sum of Rs. 12,000/-. He also filed a counter claim seeking declaration that despite registration of sale deed No. 761 dated 1.6.1998, he continuous to be owner of the property in dispute as the said sale deed was obtained by fraud.

The only basis for alleging fraud is the amount of sale consideration because according to the defendant, the property was sold for a sum of Rs. 1,20,000/-which has been shown to have been sold for Rs. 12,000/-only. In this regard, learned First Appellate Court has recorded the following findings:

To my mind, there is no force in the arguments of learned Counsel for the defendant/appellant. The version of the defendant/appellant that he had not received sale consideration in para 2 of his counter claim stands belied from his own admission in application written by him to the Deputy Comissioner, Jind Ex.PY dated 14.3.2000, wherein he has specifically mention that a sum of Rs. 12,000/-has been received by him. There is also no force in the contention of learned Counsel for the defendant/appellant that he had receivd only a sum of Rs. 12,000/-out of total sale consideration of Rs. 1,20,000/-. It has come on record that Hawa Singh and Smt. Om Pati had sold the disputed plot vide sale deed Ex.PA on 2.12.1996 to defendant No. 1. for sale consideration of Rs. 8,000/-. Therefore, it is unlikely that wihin a time span of one and half year, the prices of the property in dispute will rise so sharply that it can fetch sale consideration of Rs. 1,20,000/-. Thus,defendant/appellant has failed to prove by leading cogent evidence that the land in dispute was agreed to be sold in favour of plaintiff for Rs. 1,20,000/-.

Learned Counsel for the appellant has argued that had the land been sold as alleged, the possession would have also been delivered to the plaintiff ,but in the muncipal record Ex.DW2/A, possession is still in the name of the defendant. In this regard, learned First Appellate Court has recorded the following findings:

Moreover, the argument of the defendant/appellant that he is owner in possession of the land in dispute as is evident from the municipal record, the copy of which is Ex. DW-2/A has also no force because the copy of the assessment register of municipal record cannot prevail over the recital made in the sale deed regarding the factum of delivery of possession in favour of the respondent. If the plaintiff/respondent did not got incorporate the factum of the sale deed in the municipal record, it does not mean that he is not owner in possession of the suit property. The filing of complaint by defendant No. 1 in a criminal court on 7.6.2000 i.e. after lapse of two years is also suggestive of the fact that defendant No. 1 had came upon with an after thought and concocted version to challenge the impugned sale deed which under the facts and circumstances of the case has been executed by defendant No. 1 for lawful consideration of Rs. 12,000/- in favour of plaintiff/respondent. Phool Kumar DW-4 has also deposed in cross-examination that parties to the sale deed were present at the time of execution of the sale deed. Thus, in view of above discussion and evidence on record, it cannot be said that plaintiff had got executed the alleged sale deed in his favour by playing fraud upon defendant No. 1/appellant, hence counter claim of defendant has also been rightly dismissed by the learned lower court.

In fact, no meaningful argument has been raised by learned Counsel for the appellant except for repeating the arguments which have already been dealt with by the Courts below and as such, no substantial question of law as required u/s 100 of Code of civil Procedure, 1908 (for short, CPC) has been raised before this Court which could warrant any interference by this Court in the concurrent findings of fact recorded by both the Courts below.

Thus, I do not find any merit in this appeal and the same is hereby dismissed, but without any order as to costs.