R.S.A.No.1642 of 2009 1 In the High Court of Punjab and Haryana at Chandigarh R.S.A.No.1642 of 2009 Date of decision: 13.11.2009 Avtar Singh ......Appellant Versus Sarwan Singh and others .......Respondents CORAM: HON'BLE MRS. JUSTICE SABINA Present: Mr. R.S.Randhawa, Advocate, for the appellant. Mr.Sandeep K.Sharma, Advocate, for the respondent No.1. **** SABINA, J. Plaintiff Avtar Singh filed a suit for declaration/permanent injunction, which was dismissed by the Civil Judge (Jr.Divn.), Jalandhar vide judgment and decree dated 27.4.2006. In appeal, the said judgment and decree were upheld by the Additional District Judge, Jalandhar vide judgment and decree dated 15.12.2008. Hence, the present appeal. Brief facts of the case, as noticed by the lower appellate Court in para Nos. 2 and 3 of its judgment, are as under:- R.S.A.No.1642 of 2009 2 “2. The facts, in brief, of the case put up by the plaintiff/appellant before the learned lower court are that he alongwith defendant No.1 are real brothers alongwith Malkiat Singh who is now dead (represented by defendants No.2 to 5). Mother of the plaintiff and defendant No.1 was owner of the land measuring 60 kanals 6 marlas as fully detailed in the head note of the plaint. Plaintiff was residing abroad and defendant No.1 taking the undue advantage of his absence, filed a false civil suit bearing No.161 of 1995 against his mother on the basis of one alleged family settlement took place on 1.1.1994 and got the consent decree in his favour. The plaintiff has challenged the said judgment and decree in favour of defendant No.1 as illegal, null and void on the ground that Harwant Kaur his mother was not able to execute the decree as she was suffering from various diseases and of the age of 95 years, she was living separately from defendant No.1, the said suit was bad for non-joinder of necessary parties and on the ground that alleged family settlement never took place. It was further pleaded that Harwant Kaur, his mother never appeared in the Court nor suffered any statement and alleged decree is result of fraud. It was further pleaded that plaintiff came to know said judgment and decree about a week R.S.A.No.1642 of 2009 3 back and thereafter, he filed the suit. 3. Upon notice, defendant No.1 appeared and filed written statement by taking preliminary objections that suit is not maintainable; that suit is barred under Order 2 Rule 2 CPC; that plaintiff is estopped by his act and conduct and that plaintiff has no locus standi to file the suit; that suit is hit by the principal of resjudicata; that plaintiff has not come to the court with clean hands; that suit has not been properly valued for the purpose of court fee; that suit is bad for mis-joinder and non-joinder of necessary parties. On merits, the relationship of the parties was admitted. It was also admitted that Harwant Kaur was owner of the disputed property. It was also admitted that plaintiff was residing in England, earlier. It was pleaded that family settlement took place on 1.1.1994 between him and his mother and on the basis of said family settlement he filed civil suit in which his mother appeared and filed written statement and admitted his claim on the basis of which decree was passed. It was pleaded that said decree is legal and valid. It was denied that Harwant Kaur was suffering from any disease or she never appeared in the court. It was also alleged that earlier plaintiff filed civil suit No.286/83 against Harwant Kaur which was decided on 30.11.1983 and that R.S.A.No.1642 of 2009 4 suit of the plaintiff for his 1/5 share was decreed on the basis of compromise. It was pleaded that as the plaintiff had already taken his share from the property left by their father, he is not entitled to any share in the property left by his mother which was mutated in her name on the basis of the Will. The other facts pleaded were denied and defendant No.1 prayed for dismissal of the suit.” On the pleadings of the parties, following issues were framed by the trial Court:- 1. Whether plaintiff is entitled to declaration and injunction as prayed for? OPP 2. Whether suit is not maintainable? OPD 3. Whether suit is hit by order 2 rule 2 CPC? OPD 4. Whether plaintiff is estoppeled? OPD 5. Whether suit is hit by resjudicata? OPD 6. Whether suit is bad for joinder? OPD 7. Whether plaintiff has no locus standi? OPD 8. Whether suit is not properly valued? OPD 9. Whether plaintiff has not come with clean hands? OPD 10. Relief. After hearing learned counsel for the parties, I am of the opinion that the present appeal deserves to be dismissed. R.S.A.No.1642 of 2009 5 The plaintiff had filed a suit for declaration that he was owner in possession of 1/3rd share of the land in dispute. Admittedly, Chajju Ram was owner of the property in dispute. He executed the Will in favour of his wife Harwant Kaur. The plaintiff filed a suit challenging the Will dated 10.5.1983 executed by his father in favour of his mother. A compromise was effected between the parties on 30.11.1983. Suit of the plaintiff was decreed to the effect that he was joint owner to the extent of 1/5th share in the suit land. It has been observed by the learned Additional District Judge in the impugned judgment that the plaintiff through his attorney made a statement in the earlier suit that he gives up all objections to the Will in favour of his mother and he had no objection if his suit was decreed to the extent of 1/5th share in the suit land. It was further stated that the plaintiff shall have no right, title or interest in the remaining 4/5th share since the plaintiff had already arrived at a compromise and had accepted 1/5th share in the suit property. The Courts below had, thus, rightly dismissed the suit of the plaintiff. Harwant Kaur, during her life time had suffered a decree in favour of respondent No.1 on 25.5.1995. the said decree was independently suffered by Harwant Kaur in view of the compromise effected between the plaintiff and his mother in the earlier litigation. In the suit filed by defendant No.1, Harwant Kaur appeared in the Court and admitted the contents of the plaint and consequently decree was passed in favour of defendant No.1 on 25.5.1995 in civil Suit No.16195 of 29.9.1994. The said R.S.A.No.1642 of 2009 6 decree did not create rights between the parties for the first time and consequently, required no registration. No substantial question of law arises in this regular second appeal. Accordingly, the same is dismissed. (SABINA) JUDGE November 13, 2009 anita