RSA No. 3044 of 2008 1 IN THE HIGH COURTOF PUNJAB AND HARYANA, CHANDIGARH. RSA No.3044 of 2008 Date of decision: 14.1.2010 Mohinder Kaur and another .....Appellants vs. Kanwal Singh and others. .....Respondents CORAM: HON'BLE MR.JUSTICE RAKESH KUMAR GARG. --- Present: Mr.B.S.Bhalla, Advocate, for the appellants. Rakesh Kumar Garg,J. This is plaintiffs' second appeal challenging the judgment and decrees of the Courts below whereby suit for declaration to the effect that the plaintiffs are owners in possession of the suit land in equal shares i.e., 1/6th share each and for setting aside the decree dated 3.1.1995 passed by Shri S.K. Aggarwal, Sub Judge Ist Class, Moga, dated 3.1.1995 in Civil Suit No.740 of 1994 in favour of defendants No. 1 to 5 and mutation No.14028 on the basis of the aforesaid decree with a further prayer of consequential relief of permanent injunction restraining the defendants from alienating the suit property, was dismissed. Briefly stated , the facts of the case are that the civil suit was filed by the plaintiff-appellants on the ground that a fraud was committed with them by the defendant-respondents, as they never appeared in Civil Suit No.740 of 1993, and there was no ground that the plaintiffs would give the suit land to the defendants. It was further submitted that the transfer of the property vide aforesaid decree required stamp and registration, and the RSA No. 3044 of 2008 2 same was not admissible in evidence. The civil suit was contested by the defendants raising various preliminary objections. On merits, it was alleged that the general power of attorneys of the plaintiffs had appeared in Court and made statements admitting the claim of the defendants, and in consequence thereof, the decree was passed. On appreciation of evidence and after hearing the learned counsel for the parties, it was found that Mohinder Kaur plaintiff-appellant had herself admitted that power of attorney Ex.D1 was executed by the plaintiffs in favour of their brothers. It was also found that the plaintiffs have made statements in the Court on 26.11.1994 through their attorneys who were duly identified by the Lambardar. Further more, the plaintiffs themselves appeared in the Court on 24.12.1994 and suffered the statements to the satisfaction of the Court and admitted the claim of the defendants. On the basis of the aforesaid evidence the trial Court held that the plaintiffs have failed to prove that the decree in question was obtained by fraud and misrepresentation, and it would be misconceived to hold that the same was obtained by fraud and misrepresentation. The aforesaid findings of the trial Court were upheld by the lower appellate Court by the impugned judgment and decree dated 19.12.2005. Learned counsel for the appellant has argued that the following substantial questions of law arise in this appeal:- 1. Whether the oral as well as documentary evidence has been ignored by the Courts below ? 2. Whether judgment and decree dated 3.1.1995 passed by Shri RSA No. 3044 of 2008 3 S.K.Aggarwal,PCS, Sub Judge Ist Class,Moga in Civil Suit No.740 of10.11.1994 was obtained by fraud and misrepresentation and the mutation sanctioned on the basis thereof is liable to be set aside ? I have heard the learned counsel for the appellants and have gone through the record. It will be useful to refer to the following observations of the lower Appellate Court:- “ I have considered the arguments advanced by the learned counsel for the appellants and learned counsel for respondent no.2. In this case, Mohinder Kaur and Hardial Kaur have challenged the judgment and decree dated 3.1.1995 passed in civil suit No.740 of 10.11.94 passed by the Court of Shri S.K.Aggarwal, Sub Judge Ist Class, Moga. The plaintiffs have challenged this decree on the ground of fraud played on them by Kanwal Singh and others. As per the version of the plaintiffs, they were never served in the above said civil suit. Their village was wrongly mentioned. They never appeared in that case nor engaged any counsel on their behalf. Joginder Singh and others claimed themselves to be the power of attorney holders, appeared on the same day and filed their written statement admitting the claim of Kanwal Singh and others. It is pleaded that the plaintiffs never appeared in person before the court nor they gave statements admitting the claim of the plaintiffs in that case. By challenging this decree and mutation no.14028 passed on the basis of the above said decree, they have claimed their 1/6th share each in the property in dispute. To prove these facts, both the plaintiffs have stepped into the witness box to prove their case. The plaint, written statement and the judgment and decree passed in the above said civil suit are also proved on file. On the other hand the defendant no.2 has challenged these allegations. It is pleaded that on the death of Boota Singh family settlement took place among the legal heirs of Boota Singh in which Mohinder Kaur RSA No. 3044 of 2008 4 and Hardial Kaur left their claim over the property of Boota Singh and in pursuance of this statement both the plaintiffs executed power of attorney in favour of Joginder Singh, Bakhtaur Singh and Jaspal Singh. Kanwal Singh and others filed a suit against Joginder Singh and the present plaintiffs through their attorneys. The power of attorney holders appeared on the same day admitting the claim of Kanwal Singh and others. Ultimately the suit was decreed by the Court on 3.1.1995. The certified copy of the judgment and decree are Ex.P1 and P2 respectively. The plaintiffs have also denied the execution of power of attorney in their replication. They further claimed that they never appeared in person before the trial Court. So far as the power of attorney is concerned, the defendants have examined Gulshan Kumar (DW3), the scribe, Mukand Singh (DW2) and Darbara Singh (DW1) both marginal witnesses to prove the execution of power of attorney which is Ex.D1. The counsel for the respondent defendant no.2 has rightly referred the cross-examination of both plaintiffs where Mohinder Kaur admitted the execution of power of attorney which was duly witnessed by Mukand Singh (DW2) and Darbara Singh DW1. Hardial Kaur DW7 denied the execution of power of attorney given by them was got cancelled. Therefore, keeping in view statements of defence witnesses and cross examination of both plaintiffs on this point clearly shows that Mohinder Kaur and Hardial Kaur executed power of attorney Ex.D1 in favour of Joginder Singh, Bakhtaur Singh and Jaspal Singh. Keeping in view these documents, if Kanwal Singh and others filed the suit for declaration against Joginder Singh and the present plaintiffs through attorney that does not amount to any fraud. It is also matter of record that the power of attorney holder of the plaintiff appeared in Court, gave their statements admitting the claim of the plaintiffs in that case and the said power of attorney holders were identified by Darbara Singh Lambedar who is defendant no.9 in the present case. RSA No. 3044 of 2008 5 From the recitals of the judgment Ex.P1, it is further clear that Mohinder Kaur and Hardial Kaur were duly summoned in this case and their statements were recorded in person and thereafter, the court had passed the judgment and decreed dated 3.1.1995. Both the plaintiffs claimed that they did not appear in the Court. In order to establish this fact they got thumb mark on the statement in the above said civil suit compared with specimen thumb impressions from Shri Anil Kumar Gupta handwriting and finger print expert. He stepped into the witness box as PW5 and gave his detailed report Ex.PW5/C alongwith photographic charge. As per this report the disputed thumb impressions could not be compared with the specimen thumb impression because the disputed thumb impressions were unfit for comparison. Under these circumstances, it cannot be said that the statements which were recorded by the court in civil suit no.740 decided on 3.1.95 were not of the plaintiffs. The facts of the case clearly shows that the plaintiff did execute the power of attorney in favour of Joginder Singh and others who gave their statements in civil suit admitting the claim of Kanwal Singh and others on behalf of Mohinder Kaur and Hardial Kaur and on the basis of statement the trial court passed the judgment and decree dated 3.1.95 Ex.P1 and P2. In view of the above discussion the plaintiffs have failed to establish any fraud played upon them in the passing of impugned judgment and decree Ex.P1 and P2 respectively. The counsel for the appellants also raised the issue that there was no question of any family settlement among the plaintiffs and defendant no. 1 to 5. Kanwal Singh and others were having no pre existing right in the share of present plaintiffs. Therefore, this kind of family settlement cannot be looked into and it is wrongly pleaded in the plaint that a family settlement took place between the parties. From the relationship of the parties, it is clear that the property in dispute initially belonged to Boota Singh who was having three sons namely RSA No. 3044 of 2008 6 Joginder Singh, Ajaib Singh and Bakhtaur Singh and three daughters namely Mohinder Kaur, Hardial Kaur and Rachpal Kaur. Joginder Singh was having two sons namely Baldev Singh and Balbir Singh plaintiff no.2 in the civil suit no.740 dated 10.11.94 and Kanwal Singh plaintiff no.1 who is the son of Baldev Singh son of Joginder Singh. Ajaib Singh plaintiff no.3 is one of the son of Boota Singh in the above said civil suit whereas Nachatar Singh and Gurcharan Singh plaintiffs no. 4 and 5 in the above said cvil suit are also the son of Bakhtaur Singh son of Buta Singh. The present plaintiffs are the daughters of Boota Singh who have filed this suit challenging the impugned judgment and decree Ex.P1 and P2. From this pedigree table it is clear that the above said civil suit was filed by the son, grand son and great grand son of Boota Singh against Joginder Singh one of the son of Buta Singh and the present plaintiffs, who constituted a family settlement and a dispute was regarding the inheritance of land left behind by their common ancestor Buta Singh. Therefore, it cannot be said that there could not be any family settlement between the parties. Both the plaintiffs and defendants were having common ancestor Boota Singh and regarding his estates, the parties effected a family settlement. Therefore, the plea raised by the counsel for the appellant that there could not be any family settlement between the plaintiffs and defendants is without any justification. The present plaintiffs were not stranger to Kanwal Singh and others in whose favour the civil suit was decreed. The counsel for the appellants also raised the plea that this judgment and decree require registration. Therefore, it cannot pass a valid title in favour of Kanwal Singh and others. On this point, the learned counsel for respondent no.2 relied upon the authority where it is clearly held that once a compromise decree is passed by the Court, the same is binding on both the parties and it operates as res judicata. This judgment and decree cannot be challenged by the plaintiffs on RSA No. 3044 of 2008 7 the ground of its non registration but the impugned judgment and decree can be challenged only on the ground of fraud, mis representation or coercion. As discussed above the plaintiffs have miserably failed to established any fraud played upon them by contesting respondent or others. Therefore, once the plaintiffs executed the power of attorney in favour of Joginder Singh and others, they are bound by same and they are also bound by the act done by their power of attorney holders in pursuance of the same. Under these circumstances, I do not find any merits in the appeal preferred by the appellants. The trial court has dealt with all the points in detail which are raised before me. The judgment and decree passed by the trial Court does not require any interference and the same is upheld. The appeal preferred by the appellants is dismissed with costs....”. During the course of arguments, learned counsel for the appellants was unable to controvert any of the aforesaid finding recorded by the lower appellate Court. Thus, I find no fault with the aforesaid finding of the Courts below. No substantial question of law arises in this appeal. No merit. Dismissed. (Rakesh Kumar Garg) Judge January 14, 2010 rk