GURBAX SINGH Vs. JAI PARKASH AND ORS.

JUDGEMENT

(1.) SUIT filed by the plaintiff was dismissed by the trial court, vide judgment and decree dated 26.03.2013. Appeal preferred against the said decree failed and was dismissed on 15.09.2014. This is how, plaintiff is before this court, in this regular second appeal. Parties to the lis, hereinafter, would be referred to by their original positions in the suit.

(2.) BRIEFLY stated, plaintiff prayed for a decree for injunction with a prayer to restrain the defendants from interfering in their peaceful possession and ownership qua an agricultural land, comprised in khewat No. 1234, khasra No. 159/16/2/2/2 min east (1 -10), situated at village Uklana, District Hisar. A declaration was also claimed that the registered sale deed No. 120, dated 08.05.2003, was illegal, void and without consideration. It was maintained that the said document i.e. sale deed dated 08.05.2003, was a forged and fabricated document and was obtained by defendants No. 1 & 2 by playing fraud upon the plaintiff. Consequently, even a mutation No. 972, sanctioned on 04.12.2004, was also liable to be set aside. As possession of the suit land was never delivered to the defendants, pursuant to the said sale deed, plaintiff continued to be in possession thereof. An injunction was also claimed, restraining the defendants from alienating the suit land in any manner. It was averred, that plaintiff happened to be the absolute owner in possession of the suit property and he never entered into an agreement to sell qua the suit land i.e. 1 kanal, nor received any consideration, therefore, from the defendants. In fact, plaintiff had sold only a land measuring 2 kanals, comprised in khewat No. 1234, pursuant to a registered sale deed dated 24.09.2002, for a consideration of Rs. 30,000/ -. And thereafter, plaintiff never sold any land to the defendants. It was maintained that the plaintiff had not executed the sale deed dated 08.05.2003. As plaintiff came to know of the sale deed only in September, 2009, thus, the suit.

(3.) ON a consideration of the matter in issue and evidence on record, the courts below found, that though, the sale deed No. 120, dated 08.05.2003 (Ex.P1), was alleged to be a forged and fabricated document, but nothing was brought on record to substantiate the said plea. In fact, besides himself, plaintiff failed to examine any other witness in support of his claim. As plaintiff had assailed the veracity and validity of the sale deed in question, thus, burden lay upon him to show that the sale deed dated 08.05.2003, was not executed by him. Apparently, plaintiff failed to discharge the onus in this regard. On the contrary, defendants proved that the sale deed in question was duly executed, attested and registered by the competent authority. Balwan Singh (DW1), one of the attesting witnesses of the sale deed in question, testified that the sale deed dated 08.05.2003, was executed by the plaintiff, in favour of defendant Jai Parkash in his presence. Defendant Jai Parkash himself appeared as DW2 to prove his claim. The scribe of the sale deed in question i.e. Ajay Shanker, Advocate (DW3), deposed that both the sale deeds i.e. dated 24.09.2002 & 08.05.2003, executed by the plaintiff, were scribed by him. Further, the contents of the sale deed in question were duly read over to the plaintiff and having understood and admitting them to be correct, he put his thumb impression/signatures thereupon. Recitals in the sale deed, dated 08.05.2003, revealed that the entire sale consideration had already been paid to the plaintiff at home. The back page of the sale deed in question bears the photographs of the plaintiff, defendant and the witnesses thereof. And the same also bears the thumb impression of the plaintiff. Sub Registrar, Hisar had endorsed the certificate of registration of sale deed dated 08.05.2003. Nothing was brought on record by the plaintiff to show that as to why and when he affixed his thumb impression upon the document in question and as to how the same bears his photograph. Despite opportunity granted, plaintiff failed to cross -examine the scribe i.e. Ajay Shanker, Advocate (DW3). Resultantly, it was concluded that the sale deed, dated 08.05.2003, was a legal and valid document and plaintiff was no longer owner of the suit land. As the sale deed was executed on 08.05.2003, and the present suit was instituted by the plaintiff after about 6 years on 08.12.2009, thus, the suit was apparently barred by time. Further, as plaintiff failed to prove himself to be in possession of the suit land, thus, a simple suit for declaration, without seeking a decree for possession, was not maintainable in law. All what the plaintiff brought on record was the khasra girdawaris related to the year 2007. Plaintiff failed to bring on record the current revenue record to prove his possession. So much so, he failed to examine any witness from the vicinity, who could prove the possession of the plaintiff. As a result, the suit and thereafter, even the appeal preferred by the plaintiff against the said decree was dismissed.