R.S.A. No. 2452 of 2005 1 IN THE PUNJAB AND HARYANA HIGH COURT AT CHANDIGARH R.S.A. No. 2452 of 2005 (O&M) Date of Decision : 13.2.2009 Shamsher Singh .......... Appellant Versus Chuhar Singh ...... Respondent CORAM : HON'BLE MR. JUSTICE VINOD K. SHARMA Present : Mr. C.B. Goel, Advocate for the appellant. **** VINOD K. SHARMA, J. (ORAL) This regular second appeal is directed against the judgments and decree dated 31.5.2001 and 20.5.2004 passed by the learned Courts below decreeing the suit for declaration with consequential relief of joint possession. The plaintiff-respondent brought a suit on the pleadings that he was owner of land measuring 51 Kanals 9 Marlas being half share in land measuring 102 Kanals 18 Marlas, situated in village Naisi, Tehsil Pehowa, District Kurukshetra and that the decree dated 17.3.1990 passed in Civil Suit No. 388 of 1990 by Sh. V.K. Bakshi, the then learned Addl. Senior Sub Judge, Kurukshetra was non-est, null and void, illegal, inoperative, ineffective, non-est, and outcome of fraud and of no consequence and not binding on the rights of the plaintiff. A decree of rendition of accounts for the last four years for R.S.A. No. 2452 of 2005 2 mesne profits of use and occupation of the share of the plaintiff was also claimed. A consequential relief of joint possession was also claimed. The suit was contested wherein the factum of the plaintiff having only half share prior to the passing of the decree dated 17.3.1990 was not disputed. However, it was claimed that decree passed was valid and legal. The allegations of fraud on merit were denied. The learned trial Court on the pleadings of the parties was pleased to frame the following issues :- “1. Whether the plaintiff is entitled to the relief of declaration as prayed for ? OPP 2. Whether the plaintiff is entitled to decree for joint possession of half share of the land in question ? OPP 3. Whether the plaintiff is entitled to rendition of accounts and for mesne profits for the use and occupation of the land ? OPP 4. Whether the plaintiff has no locus standi to file the suit ? OPD 5. Whether the plaintiff is estopped by his own act and conduct from filing the suit ?OPD 6. Whether the plaintiff has not come to the court with clean hands ? OPD 7. Whether the suit is barred by limitation ?OPD 8. Whether the plaintiff has no cause of action?OPD 9. Whether the suit is barred under provisions of Section 23 C.P.C. ? OPD 10. Whether the suit is liable to be dismissed with special costs ?OPD 11. Relief.” R.S.A. No. 2452 of 2005 3 On appreciation of evidence brought on record the learned Courts below have recorded a concurrent finding of fact that plaintiff was entitled to relief for declaration as prayed for as the judgment and decree dated 17.3.1990 was outcome of fraud and misrepresentation, thus, was not binding on the rights of the plaintiff-respondent. On issue No.2 it was held that plaintiff was entitled to decree for joint possession of half share of the land in dispute. However, issue No. 3 was decided against the plaintiff and issues No. 4 to 6 were decided against the the defendant, being not pressed. On issue No.7, it was held that suit was within limitation. Issues No. 8 to 10 were also decided against the appellant- defendant being not pressed. The learned counsel for the appellant contends that the following substantial questions of law arise for consider in this appeal by this Court :- 1. Whether the learned Courts below were justified in declaring the decree dated 17.3.1990 to be null and void and not binding on the rights of the plaintiff ? 2. Whether the suit can be said to be within time which was filed after a period of more than three years to challenge the decree suffered by the plaintiff-respondent ? 3. Whether the suit was barred under the provisions of Section 23 of the Code of Civil Procedure ? The learned counsel appearing on behalf of the appellant contends that the decree dated 17.3.1990 was passed with the consent of the plaintiff- R.S.A. No. 2452 of 2005 4 respondent and, therefore, the learned Courts below were not justified in setting aside the judgment and decree. There is no force in the contention raised by the learned counsel for the appellant. The learned Courts below recorded a concurrent finding of fact that the decree was outcome of fraud and misrepresentation as the plaintiff had not appeared in the Court nor was party to the suit. The first question of law as raised is decided against the appellant. The contention of the learned counsel for the appellant that suit was not within time as the suit for declaration should be filed within three years of passing of the decree. However, this plea of the learned counsel for the appellant cannot be accepted. Once it is proved that plaintiff was not party to the suit and the suit has been filed within three years of knowledge was within time. The learned Courts below rightly decided issue No.7 against the appellant- defendant. In view of the finding holding that the decree was outcome of fraud and misrepresentation it could not be said that the suit filed by the plaintiff was barred under Order 23 Rule 3A of the CPC. The third substantial question of law also deserves to be and is answered against the appellant-defendant. No merit. Dismissed. 13.2.2009 ( VINOD K. SHARMA ) 'sp' JUDGE