JUDGMENT :

Deepak Gupta, J.

CM-5416-C-2023

1. This is an application under Section 5 of the Limitation Act to condone the delay of 24 days in filing the appeal.

Heard.

2. For the reasons as mentioned in the application, supported by an affidavit of Sh. Jaswinder Singh, Clerk of the counsel for the appellant, the delay of 24 days in filing the appeal is hereby condoned.

The application stands disposed of.

RSA-1466-2023

Plaintiff of the suit is before this Court in the present regular second appeal against the concurrent findings of the Courts below.

2.1 Pritam Singh was admittedly the owner in possession of the suit land situated at Village Dharaur, Tehsil and District Ludhiana. Said Pritam Singh expired on 08.08.2009 unmarried & issue less.

2.2 The case of the plaintiff (now appellant) is that during his life time, Pritam Singh had executed a Will dated 15.11.2007 in his favour bequeathing his entire property to him being pleased by the services rendered by him. He challenged the two sale deeds bearing Vasika Nos.518 and 519 dated 23.06.2008 purported to have been executed by Pritam Singh in favour of defendant No.1. These sale deeds are alleged to be null and void being the result of fraud and misrepresentation.

2.3 As per the case of the plaintiff, Pritam Singh never intended to sell the suit land. Rather, defendant No.1 alongwith her husband had approached Pritam Singh to lease out the land. Pritam Singh had agreed to lease out the same in case lease deed was got registered. It is further alleged by the plaintiff that defendant No.1 alongwith her husband took Pritam Singh to the Sub Registrar Officer, Dehlon, where on the pretext of getting the lease deed executed and registered and taking the benefit of illiteracy of Pritam Singh, defendant No.1 got executed the impugned sale deeds in connivance with the marginal witnesses and Deed Writer. The thumb impressions of Pritam Singh were hurriedly taken without disclosing the contents of the documents. He was also produced in the office of Sub Registrar, where also the contents of the documents were not disclosed to him. It was further alleged that during pendency of the suit, defendant No.1 had further sold the suit land to defendant No.2 by virtue of a sale deed dated 07.12.2011, which was also null, illegal and void being hit by the principle of lis pendens.

3. Both the defendants contested the suit. Defendant No.1 did not deny the title of Pritam Singh or the fact that he had executed a Will dated 15.11.2007 in favour of the plaintiff. However, defendant No.1 claimed that she had purchased the suit land by way of the impugned sale deeds dated 23.06.2008 by making payment of the sale consideration and that mutation was also sanctioned in her favour. She denied the allegations of fraud or misrepresentation as made by the plaintiff. Prayer was made for dismissal of the suit.

4. Necessary issues were framed. Evidence produced by the parties was taken on record. Learned trial Court came to the conclusion that though a legal and valid Will dated 15.11.2007 in favour of the plaintiff had been executed by Pritam Singh bequeathing the suit land in favour of the plaintiff, but the said Will did not have any effect because during his life time, Pritam Singh had sold the suit property in favour of defendant No.1 by way of sale deeds No.518 and 519 dated 23.06.2008. It was held that in view of these documents, plaintiff was not entitled for the declaration or the possession as prayed by him. Accordingly, suit was dismissed by way of judgment dated 15.02.2016. The appeal filed by the plaintiff has been dismissed by the First Appellate Court by way of judgment dated 26.10.2022.

5. Assailing the findings of the Courts below, it is contended by learned counsel for the appellant that once the plaintiff had set up his case on basis of fraud and misrepresentation by which the sale deeds were executed by Pritam Singh in favour of defendant No.1, the onus had shifted upon the defendant, so as to prove the lega