R.S.A.No. 4223 of 2008 (O&M) 1 In the High Court of Punjab and Haryana at Chandigarh R.S.A.No. 4223 of 2008 (O&M) Date of decision: 13.8. 2009 Babu Lal ......Appellant Versus Ramgiri .......Respondent CORAM: HON'BLE MRS. JUSTICE SABINA Present: Mr.M.K.Verma, Advocate, for the appellant. **** SABINA, J. Plaintiff Ramgiri filed a suit for declaration and consequential relief, which was dismissed by the Additional Civil Judge (Sr.Divn.) Rewari vide judgment and decree dated 11.6.2005. In appeal, the said judgment and decree were set aside by the Additional District Judge, Rewari vide judgment and decree dated 5.4.2008. and the suit of the plaintiff was decreed with costs. Hence, the present appeal by the defendant. Brief facts of the case, as noticed by the trial Court in para Nos. 2 and 3 of its judgment, are as under:- “2. Briefly, the facts are as that plaintiff is owner in possession of 1/4th share in the agriculture land measuring 12 kanal 4 marla situated in village Nangal Moondi as per jamabandi of the year 1992-93 as detailed R.S.A.No. 4223 of 2008 (O&M) 2 in para No.1 of the plaint. That defendant is a clever person who has obtained a civil court decree dated 20.12.1991 in civil suit titled ‘ Babu Lal v. Kamla etc.’ by way of fraud and impersonation and by obtaining forged thumb impression of plaintiff only to usurp the land of the plaintiff. Plaintiff had never appeared in that civil suit neither had filed written statement nor had made statement in the Court. Moreover, the decree has not been registered and thus is in violation of Registration Act as well as Transfer of Property Act. It is also averred that there was no family settlement as alleged in that suit. On the basis of impugned decree a mutation was also got sanctioned by the defendant and plaintiff was not in the knowledge of these facts and has also come to know about this fact one month prior to institution of the present suit. When she had gone to his field, defendant had proclaimed that this land has been got transferred by him. Hence, this suit. 3. Suit is resisted on behalf of defendant with certain preliminary objections such as suit is barred under Order 23 Rule 2 CPC, suit is barred by limilation, plaintiff is estopped by her own act and conduct. Suit is not maintainable in the present form. On facts, it is submitted on behalf of defendant that plaintiff has legal right in the R.S.A.No. 4223 of 2008 (O&M) 3 suit property as plaintiff who is widow of deceased Parbhati has been leading immoral life by residing with Chandgi Ram. It is also averred that plaintiff herself has appeared in the Court and had made a statement in the Court to give the land and now present suit has been filed by the plaintiff under the influence of Chandgi Ram. There was no such misrepresentation or impersonation as alleged as plaintiff herself has given the suit land by admitting the claim of the defendant. With these averments dismissal of the suit has been prayed for.” On the pleadings of the parties, following issues were framed by the trial Court:- 1. Whether the decree in civil suit No.833 of 1991, decided on 20.12.1991 in case titled Babu Lal vs. Kamla etc. passed by Sh.R.N. Bhari, Sub Judge IInd Class, Rewari and mutation No.613 passed on that decree is illegal, null and void? OPP 2. Whether the suit of the plaintiff is barred under Order 23 Rule 2 of CPC ? OPD 3. Whether the suit of the plaintiff is not within limitation ? OPD 4. Whether the less Court fee has been paid by the plaintiff on the plaint ? OPD R.S.A.No. 4223 of 2008 (O&M) 4 5. Whether the suit of the plaintiff is not maintainable in the present form ? OPD 6. Relief. Thereafter, one following additional issue was framed on 16.12.2004 :- Whether plaintiff has already abandoned her rights in the suit property as alleged ? OPD After hearing learned counsel for appellant, I am of the opinion that the present appeal deserves to be dismissed. The plaintiff had filed a suit for declaration that the civil Court decree dated 20.12.1991 and mutation No.613 sanctioned on the basis of the decree were illegal, null and void being result of fraud and misrepresentation. The case of the plaintiff was that she had not suffered the decree and had not appeared before the Court. The plaintiff had also not engaged any counsel nor had executed any power of attorney in favour of any advocate. In order to substantiate her case, the plaintiff examined PW-2 Vijay Rastogi, handwriting and finger print expert. The said expert, after examining the disputed thumb impressions of the plaintiff on the written statement, vakalatnama and application with standard thumb impressions of the plaintiff, opined that the thumb impressions did not match with each other. From this, it was evident that the plaintiff had not made a statement before the Court; nor had filed the written statement and nor had executed any R.S.A.No. 4223 of 2008 (O&M) 5 vakalatnama in favour of any counsel. Learned Additional District Judge has observed in the impugned judgment that defendant, while appearing in the witness box as DW-4, did not depose with regard to the fact that the plaintiff had suffered the decree in his favour by appearing in the Court after filing written statement or that she had engaged a counsel. No handwriting expert was examined by the defendant to counter the report of the expert submitted by the plaintiff. The case of the defendant was that after the death of his father, plaintiff had left all claims in the suit land in the year 1969. Learned Additional District Judge has rightly observed that in case the plaintiff had left all her claims in the year 1969 when defendant was only about 5-6 years old, then there was no question of any family settlement in the year 1989 as set up in the suit filed by the defendant. In these circumstances, learned Additional District Judge had rightly held that the decree in question was a result of fraud and misrepresentation. Hence, the suit of the plaintiff was rightly decreed by the learned Additional District Judge No substantial question of law arises in this regular second appeal. Accordingly, the same is dismissed. (SABINA) JUDGE August 13, 2009 anita