R.S.A. No. 3655 of 2007 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH R.S.A.No.3655 of 2007 Date of Decision:07.11.2008 Leela Ram and others .....Appellants versus Smt.Mishri and others .....Respondents CORAM: HON'BLE MR.JUSTICE AJAY KUMAR MITTAL. Present: Mr.M.L.Saini, Advocate, for the appellants. **** AJAY KUMAR MITTAL, J. This regular second appeal filed by defendant Nos.1 to 4 is directed against the judgment and decree dated 05.04.2007 passed by the Additional District Judge, Narnaul, affirming that of the Additional Civil Judge (Senior Division), Narnaul dated 21.03.1997 whereby the suit of the plaintiff for declaration, was decreed. Put shortly, the facts of the case are that the plaintiff Smt. Bathori Devi (now deceased represented by her legal heirs, two daughters) filed a suit for declaration to the effect that she was owner in possession of 1/3rd share in the land measuring 117 Kanals 10 Marlas situated within the revenue estate of village Dhani Bathotha, Tehsil and District Narnaul, as per the jamabandi for the year 1985-86 and that the impugned judgment and decree dated 11.05.1988 with regard to the suit land passed by the then Additional Senior Sub-Judge, Narnaul, in the case titled as “Leela Ram and others Versus Smt. Bathori” being based on mis-representation was null and void and not binding on the rights of the plaintiff and was, R.S.A. No. 3655 of 2007 2 therefore, liable to be set aside. It was pleaded that the defendants had obtained the thumb impression of Smt.Bathori Devi on the blank papers on the pretext of her old age pension and used the same in obtaining the impugned decree dated 11.05.1988 by virtue of which they became the owner of 1/3rd share of Smt. Bathori. It was also pleaded that the defendants had obtained the impugned decree by way of mis- representation, i.e. by producing Smt. Gindori wife of Leela Ram in the court in place of Smt. Bathori and the mutation entered on the basis thereof was also challenged. Upon notice, the defendants filed a joint written statement and raised various preliminary objections therein. It was pleaded that the plaintiffs were not owner in possession of the suit land nor had they any right or title over the same. The suit land came to the share of the defendants in a family settlement and in order to give a legal sanctity to that family settlement, they filed a civil suit wherein Smt. Bathori filed duly thumb marked written statement and also made on oath statement in the Court admitting the claim of the defendants. The other averments made in the plaint were denied and a prayer for dismissal of the suit was made. From the pleadings of the parties, the trial Court framed the following issues:- “1. Whether the decree dated 11.5.88 passed by the Addl. Senior Sub Judge, Narnaul is illegal, null and void and not binding against the rights of the plaintiff, as alleged?OPP 2. Whether the plaintiff is owner in possession of the suit property to the extent of 1/3 share out of the total suit and is entitled to the relief of injunction, as alleged?OPP 3. Whether the plaintiff is estopped from filing the suit be R.S.A. No. 3655 of 2007 3 her act and conduct?OPD 4. Whether the suit is barred by the principle of res judicata?OPD 5. Whether the suit is not maintainable in the present form?OPD 6. Whether the defendants are entitled to special costs u/s 35A, CPC?OPD 7. Relief”. During the pendency of the suit, Smt. Bathori Devi died and her legal representatives were substituted as plaintiffs in her place. The trial Court on appreciation of the evidence led by the parties, decided issues No.1 and 2 together being inter-connected in favour of the plaintiffs holding that the decree dated 11.05.1988 was illegal, null and void and not binding on the rights of the plaintiffs and declaring them to be the owners in possession of the suit land to the extent of 1/3rd share. Issues No.3 and 4 to 6 were also decided against the defendants. Accordingly, the trial Court vide judgment and decree dated 21.03.1997 set aside the impugned decree dated 11.05.1988 being illegal, null and void and restrained the defendants not to get sanctioned any mutation in their favour on the basis thereof qua the suit land. Feeling aggrieved, defendants No.1 to 4 approached the lower appellant Court which vide judgment and decree dated 05.04.2007 affirmed the findings recorded by the trial Court and dismissed the appeal. I have heard learned counsel for the appellants and perused the record with his assistance. Learned counsel for the appellants has made an endeavour to persuade this Court to re-appreciate the findings recorded by the courts below on the basis of the evidence available on record and to come to a different conclusion than that of the Courts below. However, he could not R.S.A. No. 3655 of 2007 4 point out any illegality or perversity in the judgments and decrees passed by the courts below warranting interference by this Court in the regular second appeal. Both the Courts below have returned a finding of fact that the impugned decree dated 11.05.1988 was illegal, null and void and not binding on the rights of the plaintiffs as the same was based on fraud played on plaintiff-Bathori by impersonating her in the court, which fact had been specifically pleaded from the very beginning and proved by leading a cogent evidence and, therefore, the findings so recorded by the courts below do not call for any interference by this Court. No question of law much less the substantial question of law arises in this appeal for consideration of this Court. In view of what has been stated above, the present appeal fails and the same is hereby dismissed with no order as to costs. November 07, 2008 (AJAY KUMAR MITTAL) gbs JUDGE R.S.A. No. 3655 of 2007 5 C.M.No.10189-C of 2007 in R.S.A.No.3655 of 2007 Present: Mr.M.L.Saini, Advocate for the appellants. **** This is an application under Section 151 of the Code of Civil Procedure for condonation of 50 days' delay in re-filing the appeal. After hearing the learned counsel for the appellants and perusing the application, the delay of 50 days' in re-filing the appeal is condoned. Civil Misc. application stands disposed of accordingly. November 07, 2008 (AJAY KUMAR MITTAL) gbs JUDGE