The burden of proof in establishing the execution of unregistered sale deeds and the validity and binding nature of civil court decrees in property ownership disputes.

RAKESH KUMAR GARG, J.

This is plaintiffs’ second appeal challenging the judgments and decrees of the Courts below whereby their suit for declaration to the effect that they are owners in possession of the suit property was dismissed by both the Courts below.

As per the appellants, they had purchased the suit property vide sale deed dated 30.3.1971 from its earlier owners, namely, Ram Sarup and Jage Ram and were in possession through their predecessor in interest. According to the appellants, they had come to know that the suit property has been recorded in the names of defendant no.1 on the basis of decree dated 28.4.1976 passed in Civil Suit No.275 titled as Rajender Vs. Ram Sarup etc. Even the mutation has been sanctioned. Since the defendants failed to get the revenue record corrected and admit the claim of the plaintiff appellants, necessity arose to file the instant suit.

The suit was contested by defendant no.1 stating that the suit property was rightly recorded in their favour by the revenue authorities on the basis of Civil Court decree. Execution of the sale deed, as set up by the plaintiffs, was denied.

On the basis of pleadings of the parties, following issues were framed:

“1. Whether the family settlement has taken place between the parties ? OPP.

2. If issue no. 1 is proved, whether the plaintiffs have become the owner of the suit land by way of family settlement and entitled for decree of declaration ? OPP.

3. Whether the suit of the plaintiffs is not maintainable in the present form ? OPD.

4. Whether the plaintiffs have no cause of action to file the present suit ? OPD.

5. Whether the suit is bad for misjoinder and nonjoinder of necessary parties? OPD.

6. Whether the suit of the plaintiffs is time barred? OPD.

7. Relief.”

After hearing counsel for the parties and considering the evidence on record, the trial Court dismissed the suit vide judgment and decree dated 10.3.2010, observing as under:

“The claim of the plaintiffs is based on the sale deed dated 30.3.1971 Ex. P2 which are allegedly executed by Jage Ram and Ram Sarup in favour of Sultan Singh predecessor in interest of the plaintiffs regarding the disputed property. It is clear at the outset that the sale deed Ex. P2 is an unregistered document and the sale consideration reflected in the sale deed is Rs. 99/only and no attesting witness has been produced to prove the sale deed. PW6 Ramesh Arya Petition Writer has been examined to prove the same, who has not written this document. He has claimed that the document was written by his father. This witness has not produced any register maintained by his father showing the corresponding entries of this sale deed, so as to show the authenticity of the same. The hand writing and finger print expert Sh. V.B. Kashyap has also compared the thumb impressions on this sale deed with the thumb impressions of Ram Sarup and Jage Ram on the records of a civil suit titled as Rajender Vs. Ram Sarup, but merely on the basis of such comparison, it could not be proved that the sale deed was executed by said Ram Sarup and Jage Ram in favour of Sultan Singh, in the absence of any direct evidence to prove the executing said deed (Ex. D2). Further vide sale deed dated 30.3.1971 Ex. P1, Sultan Singh transferred his share in the same plots to Ram Sarup and Jage Ram on the day of sale deed Ex. P2, which nullifies the effect, if any, of the alleged sale. More so, above said Ram Sarup and Jage Ram had suffered a civil court decree dated 28.4.1976 in favour of the defendant No.1 and mutation of the same was entered and sanctioned on 28.11.1978, which was also implemented in the records of rights and as such, the defendant no. 1 is continuing the owner in possession of the disputed property to the extent of 2/3rd share. Judgment and decree passed in favour of the defendant no. 1 or the entries in the records of rights were never challenged by the plaintiffs despite having the knowledge of the same and as such, they are estopped fro