RAMESH CHANDER Vs. BUDHA SINGH

JUDGEMENT

(1.) THIS is plaintiffs appeal filed under Section 100 of the Code of Civil Procedure, 1908 (for brevity the Code) challenging concurrent findings of facts recorded by both the Courts below holding that plaintiff- appellants have failed to prove that the portion of the compound was in joint ownership of Khazan Singh and defendant respondent Budha Singh. It has also been held that plaintiff-appellants failed to examine their vendor Khazan Singh and which would lead to an adverse inference against them. It has been categorically found that defendant-respondent Budha Singh alongwith his brother is exclusive owner of the compound shown as ABCD in red colour in the site plan Ex. P.1 and plaintiff-appellants have no right, title or interest in this petition. Accordingly, they are not entitled to interfere in this portion of the compound.

(2.) SHRI B.R. Mahajan, learned counsel for the plaintiff-appellants has argued that registered sale deeds Ex. P.1 and P.2 dated 19.7.1990 were signed by defendant-respondent Budha Singh as an attesting witness and once he has appended his signature he is bound by its contents also. According to the recitals in the sale deed Ex. P.1 and P.2 even the stair case is part of the sale transaction and is shown to be sold to the plaintiff-appellant. Therefore, the learned counsel submitted that the stair case would also be deemed to be transferred by the sale deeds Ex. P.1 and P.2.

(3.) THERE are concurrent findings of facts that Budha Singh is a marginal witness on the sale deed Ex. P.2 dated 19.7.1990. However, merely on the basis of being marginal witness, defendant-respondent canot be held bound by the convenants or recitals made in the sale deeds. Such sale deeds can be evidence of due execution and defendant-respondent Budha Singh who have signed the same as an attesting witness could prove that fact but he cannot be held bound by its contents. In the case of Chandrakantaben v. Vadilal Bapalal Modi, 1989(2) RRR 408 (SC) : AIR 1989 SC 1269, their Lordships of the Supreme Court have held that an attesting witness of a document is not presumed to be aware of its contents. The observations of their Lordships in this regard reads as under :