RAJ BALA Vs. DARIYA SINGH AND ORS.

JUDGEMENT

(1.) Prayer in this application is for condonation of delay of 17 days in filing the appeal.

(2.) This contention of learned counsel for the appellant -defendant No. 1 cannot be accepted in the light of the fact that there are documents on record which prove beyond doubt that the sale deed was executed in his favour qua the property and was got registered by Kundan Singh, Reader of the Court of Shri R.K. Sharma, the then Civil Judge (Senior Division), Karnal, who was appointed as a Local Commissioner on the basis of an agreement to sell dated 03.03.1983 in favour of the respondent No. 1 -plaintiff. The witnesses, who had appeared on behalf of the appellant -defendant No. 1, namely Bhim Singh DW -1, Norattan DW -2, Kulbir Singh DW -3, Hajari Singh DW -4 admitted the execution of the sale deed. The sale deed stands proved as Exhibit P -2 which establishes that the respondent No. 1 -plaintiff is the owner of the suit property. The Courts have rightly proceeded on the presumption in the light of Sec. 114 of the Evidence Act that where a document is registered under Sec. 34 of the Registration Act, it presupposes that the Sub Registrar followed the procedure prescribed for registering a deed. It, thus, cannot be said that it is always essential for the plaintiff to appear in the witness box in support of his/her claim, specially when the document on record and the evidence adduced in the suit establishes the right and ownership, as has been claimed.

(3.) An assertion has been made that the present suit was barred by the principle of res judicata as a suit for permanent injunction was earlier preferred by the respondent -plaintiff on 17.07.2001 regarding the same property, which was dismissed in default on 29.07.2004 but this contention has rightly been rejected by the Courts below by asserting that the nature of the suits and the reliefs claimed therein were totally different and both the suits were not directly and substantially the same nor were the issues involved therein same. The principle of res judicata has, therefore, correctly been found to be not applicable.