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IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
Arvind Singh Sangwan, J.
Gurdial Singh (since Deceased) Through Lrs & Anr. – Appellants
Versus
Raja Narinder Singh & Ors. – Respondents
RSA No. 1503 of 1992 (O&M)
Decided On : 29-10-2022
The suit filed by the respondents/plaintiffs was decreed as well as for setting aside the judgment and decree dated 05.05.1992, passed by the lower appellate Court, whereby the appeal filed by the appellants/defendants was dismissed. The appellants/defendants contested the suit by filing the written statement. The factum of gift deed in favour Gurdev Kaur was disputed, however, it was denied that Gurdev Kaur was murdered as alleged by the plaintiffs. It was also denied that plaintiff No. 2 ever created any Trust regarding property and if there is any Trust Deed, the same is sham transaction, which is created to cause loss to the defendants. It was further stated that the judgment and decree dated 15.12.1981 passed by the Sub-Judge, Ludhiana is legal and valid. It was further stated that it is plaintiff No. 2 Rattan Singh, who engaged Sh. Harnek Singh, Advocate as his counsel and filed written statement and appeared in Court. In para 7 of the written statement, it was specifically denied that the plaintiff-Trust was ever in possession of the land in dispute, therefore, there was no occasion for the defendants to take its forcible possession from the plaintiffs. The original Trust Deed of Gurdev Kaur Memorial Trust, Nabha was produced as Ex. PA/A and its certified copy as Ex. P-1 and the same were proved by PW-1 Ashok Kumar, Registration Clerk of the Office of Sub-Registrar, Nabha. Sukhwant Singh, Advocate and Charan Dass were the attesting witness to the Trust Deed dated 13.10.1977 and PW-2 supported the execution of the Trust Deed by Rattan Singh and by other Trustees. PW-3 Rakesh Kumar, the deed writer, also proved that he had written the Trust Deed by producing his register. Plaintiff No. 1 Raja Narinder Singh also appeared and supported the execution of Trust Deed. The defendants, in their evidence, produced the revenue record i.e. jamabandis and girdawaris, Ex. D-1 to Ex. D-4, for the years 1971 to 1981/1982 i.e. immediately prior to filing of the suit, as well as the impugned decree as Ex. D-5 and the order of revenue Officers sanctioning the mutation No. 4873 as Ex. D-6. The copy of the plaint in the previous suit No. 228 dated 15.10.1981 was produced as DW-1 by examining DW-2 Kamaljit Singh Gill, Advocate. Similarly, Harnek Singh, Advocate proved the written statement as Ex. DW-4, which was thumb marked by Rattan Singh. The appellant Gurdial Singh himself appeared as DW-1. The trial Court framed the following issues:1. Whether the suit is not maintainable as alleged in preliminary objection Nos. 1 and 3? OPD 1 & 2.2. Whether the suit is bad for non-joinder of necessary parties? OPD 1 & 2.3. Whether the suit is barred by the principle of res-judicata? OPD 1 & 2.4. Whether the suit is not properly valued for the purpose of Court fee and jurisdiction? OPD 1 & 2.5. Whether the suit property was declared as Trust property vide a valid Trust Deed dated 13.10.1977 in the name of plaintiff No. 6? OPP6. Whether plaintiff Nos. 1 to 5 are Trustees of the Trust in the name of plaintiff No. 6? OPP7. Whether decree dated 15.12.1981 passed by Sh. B. C. Gupta, SJIC, Ludhiana is illegal, ineffective and not binding on the plaintiffs as alleged in para 5 of the plaint? OPP8. Whether the mortgages created by defendant No. 1 in favour of defendant Nos. 3 and 4 are illegal, void, arbitrary without consideration and not binding on the plaintiffs as alleged in para 9 of the plaint? OPP9. If issue No. 8 is proved in the affirmative, whether defendant No. 4 is a bona fide mortgagees for consideration without notice of the Trust? OPD 4.10. Whether the plaintiffs are entitled to declaration prayed for ? OPP11. Whether the plaintiffs are entitled to the possession of the suit property as prayed for ? OPP12. The mesne profit, deposited by the appellants in terms of interim order(s) passed by this Court, shall be returned to the appellant, after four months of passing of this judgment.
JUDGMENT
Arvind Singh Sangwan, J. - It is worth noticing that this appeal is pending since 1992 and stands admitted on 29.07.1993 and as interim measure, it was directed that the appellants will deposit cash security to the tune of Rs. 2500/- per year with the trial Court. In the meantime, a period of about 30 years has passed and the appellants are continuing in possession of the property. The lower court record is already requisitioned.
2. During the pendency of the appeal, a miscellaneous application was also filed for vacating the stay on the ground that the appellants have not deposited the cash security, however, on 02.12.2014, it was noticed that the appellants have produced on record the receipt with regard to deposit of the security amount and the said application was rendered infructuous.
CM-18680-C-2018
3. This application was filed by the appellants for leading additional evidence to produce on record the report of a handwriting expert, which, vide order dated 18.07.2019, was ordered to be heard with the main case.
4. Learned senior counsel for the appellants has argued that in order to prove that the present plaint, filed by six plaintiffs, the thumb impressions of Rattan Singh are forged/fabricated, therefore, appellants have got his thumb impressions on the plaint examined with his standard thumb impression on a sale deed dated 19.07.1976 executed by Rattan Singh.
5. Learned senior counsel for the appellants has placed on record the report dated 14.12.2018, submitted by the Handwriting and Fingerprint Expert, according to which, it is opined that the disputed thumb impressions on the plaint are not identical with the standard thumb impressions of Rattan Singh. Along with the report, a copy of the said sale deed is also placed on record.
6. Learned senior counsel for the appellants has referred to a judgment of Hon'ble Supreme Court rendered in 2008 AIR (Supreme Court) 1541 Thiruvengada Pillai vs. Navaneethammal and another to submit that the Court has the power to compare the disputed signature with the admitted signature so as to reach its own conclusions. Learned senior counsel has referred to the thumb impressions of Rattan Singh on the plaint before the trial Court to submit that the ridges are in circular in nature, whereas in the standard thumb impression, the same are other way around.
7. In reply, learned counsel for the respondents has submitted that additional evidence at the appellate stage should not be allowed as the same was not produced earlier when the suit was pending or during the pendency of the appeal before the lower appellate Court.
8. After hearing learned counsel for the parties, I am of the view that though it is not disputed that the additional evidence can be allowed at any appellate stage and primarily, the proposed additional evidence contains an opinion of the Handwriting and Fingerprint Expert that the thumb impressions of Rattan Singh on the plaint in the instant suit do not tally with his standard thumb impression on a registered sale deed, however, considering the fact that the suit was instituted in the year 1983 and a period of about 40 years has passed, I do not deem it appropriate to allow the application seeking to lead additional evidence. Therefore, the application bearing CM-18680-C-2018 is dismissed.
Main Appeal
9. Challenge in this appeal is laid to the judgment and decree dated 27.07.1990, passed by the trial Court, vide which the suit filed by the respondents/plaintiffs was decreed as well as for setting aside the judgment and decree dated 05.05.1992, passed by the lower appellate Court, whereby the appeal filed by the appellants/defendants was dismissed.
10. From the pleadings of the parties, certain undisputed facts emerge, which are as under:
1950 Rattan Singh, whose estate is under dispute, performed marriage to one Naurati and out of this wedlock, appellant/defendant No. 2 Jagir Kaur was born, who was married to appellant/defendant No. 1 Gurdial Singh. After the death of Nau
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