JUDGMENT :

Nidhi Gupta, J.

The plaintiff is in appeal against the concurrent findings returned by the learned Courts below.

2. Mr. Akshay Jindal, Advocate puts in appearance on behalf of the respondent and files Vakalatnama, which is taken on record.

3. Learned counsel for the appellant submits that the appellant/plaintiff had filed a suit for declaration with consequential relief of permanent injunction pleading that he is the owner and in possession of the suit land as detailed in Para 1 of the plaint. It was pleaded that the respondent/defendant sought to encroach upon the land of the appellant on the basis of fraudulent sale deed dated 24.3.1966; and the consequent Jamabandi for the year 1979-80 and Khasra Girdawari entries. It was contended that the appellant had never executed any such Sale Deed and had in fact, executed a Mortgage Deed dated 24.03.1966 for an amount of Rs.3,000/- in favour of the respondent.

4. On the other hand, learned counsel for the respondent/defendant contends that the submissions made on behalf of the appellant are utterly false. The Sale Deed dated 24.03.1966 (Ex.D1) was a registered document which was duly proven in accordance with law. It is argued that a registered document can only be set aside on the ground of fraud'; whereas in the present case, no ingredients of fraud are made out as required under Order 6 Rule 4 CPC. Even there is no pleading regarding fraud in the present plaint. It is accordingly prayed that the present appeal be dismissed.

5. In support of his contentions, the learned counsel for the respondent-defendant has relied upon judgment of this Court in "Mishat Girdhar Vs. Raj Kumari & Others" Law finder Doc ID # 2042888.

6. The aforesaid contention of the learned counsel for the respondent/defendant is countered by learned counsel for the appellant who submits that the plea regarding fraud was duly taken by the appellant. It is further submitted that the execution of the Mortgage Deed has been duly admitted by the defendant in the written statement filed by him before the learned trial Court.

7. No other argument is raised on behalf of the parties.

8. I have heard learned counsel for the parties and perused the case file in great detail.

9. The short question to be decided by this Court is whether the appellant had executed a Sale Deed or a Mortgage Deed. In this regard, the following issues were framed by the learned trial court: -

"1. Whether the plaintiff is owner and the possession of the land in question? OPP

2. Whether the plaintiff had sold the land in question to the defendant vide sale deed dated 29.03.66 and delivered the possession of the same. If not, its effect? OPD.

3. Whether the suit is within time? OPP

4. Relief."

10. As regards issue No.2, following findings were returned by the learned trial Court:-

"8. The contention of the defendant is that he became owner and in possession of the suit land as a sequel to the sale of the suit land vide a sale deed dated 29-3-66 though the execution of the sale deed has not been disputed by the plaintiff in the plaint as he has alleged that he executed the same under the impression that he is executing a mortgage deed. I have observed while discussing issue No.1 that plaintiff has failed to prove any fraud or cheating as to how fraudent sale deed was executed. Besides, defendant has independently proved the execution of the sale deed. The defendant has examined D.W.3 Paras Ram, He is the son of the author, Raghbir singh, of the impugned sale deed. He has stated that his father has since died and he is acquainted with the handwriting of his father. He has stated that the record maintained by his father is in his custody and as per the record at serial No. 78 dated 24-3-66 Asa Ram plaintiff had executed a sale deed for a consideration of Rs. 6000/- in favour of the defendant and the Brahama (D.W.2) and Har Sarup (D.W.4) are the attesting witness of the same who have, also stated that Ex. D.1 was written in their presence and they had attes