IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH R.S.A.No.1979 of 2005 Date of Decision : 11.5.2010 Gorkha Ram ....Appellant Versus Ramehar and others ...Respondents CORAM : HON'BLE MR.JUSTICE MAHESH GROVER .... Present : Mr.B.R.Gupta, Advocate for the appellant. Mr.Narender Hooda, Advocate for respondent No.1. ..... MAHESH GROVER, J. This appeal by the defendant is directed against the judgment of the first Appellate Court. The plaintiff/respondent filed a suit assailing the decree suffered by his father Chander Bhan in favour of present appellant on 28.3.1984 in Civil Suit No.137 of 1984 titled Gorkha Ram vs. Chander Bhan. He pleaded that the land is ancestral and his father was given to vices and alienated the suit property by way of the said decree which was contrary to law. The appellant resisted the suit and pleaded that the decree in question was suffered on account of the family settlement in which moveable property worth Rs.18,000/- was agreed to be given R.S.A.No.1979 of 2005 -2- by the appellant in favour of Chander Bhan in lieu of property being decreed in his favour in the said civil suit. The decree pertains to 27 kanals 11 marlas of land whereas Chander Bhan was owner of 160 kanals 15 marlas of land. He pleaded that since moveable property had been given to deceased Chander Bhan in lieu of the movable property and since he was not getting the revenue entries corrected, he was constrained to file the suit in which the consent decree was suffered. Apart from these pleadings the appellant also took up the plea that the respondent has no locus standi to file the suit and that the suit is not maintainable in the present form and is bad for non- joinder of parties. Estoppel was also pleaded. The parties went to trial on number of issues out of which the relevant ones are 1 and 2 which are extracted as under :- 1. Whether the plaintiff and proforma defendants are owners in possession of the suit land?OPP 2. Whether the judgment and decree in civil suit titled as “(Gorkha Ram Versus Chander Bhan) (Civil Suit No.137 of 1984) is illegal and void?OPP The learned trial Court dismissed the suit on the ground that it was barred by limitation while the first Appellate Court reversed the findings of the learned Trial Court which has resulted in filing of the instant regular second appeal. Learned counsel for the appellant contended that the respondents themselves are beneficiaries of decrees of the similar nature when deceased Chander Bhan, father of the respondent suffered such decrees alienating the remaining land in their favour. R.S.A.No.1979 of 2005 -3- He contended that the decree in his favour was valid as it was a result of exchange inter se between Chander Bhan and the appellant wherein moveable property worth Rs.18,000/- was given to Chander Bhan in lieu of land measuring 27 kanals 11 marlas. Learned counsel for the appellant further contended that the suit was hopelessly barred by limitation and since the respondent wants to take the benefit of Section 6 of the Limitation Act to plead his status as a minor and having not pleaded such a fact this benefit could not be afforded to him. He further contended that the decree has not been challenged on the ground of non-registration and consequently the Courts were precluded from returning a finding against the appellant on such a ground which was not pleaded. On the other hand, learned counsel for the respondent contended that no issue regarding limitation was claimed by the appellant and apart from making a passing reference to the suit being barred by limitation no specifics on this aspect were pleaded by the appellant. He further contended that the property being ancestral is not in dispute as it has been admitted by the appellant himself. But at the same time there was no occasion for the father of the respondent to suffer a decree in favour of the appellant as he was remotely related to him and it is hard to imagine that such a person would prefer the appellant over the natural successors against whom he had no animus which is reflected from the fact that the remaining land was given to the respondent by way of similar decree. He further contended that the question whether the decree was bad on account of non- registration is a question of law and can be raised at any point of time. R.S.A.No.1979 of 2005 -4- He thus defended the findings recorded by the Courts below. I have heard the learned counsel for the parties and have perused the impugned judgment. The appellant, who is the beneficiary of the decree dated 28.3.1984 and which is in question in the instant proceedings, has pleaded that the decree was suffered on account of an exchange. Moveable propertied worth Rs.18,000/- were given to Chander Bhan in lieu of the land which was made the subject-matter of the court decree. However, if the material on record is to be seen, the appellant has failed to give the details of such moveable properties which form the bedrock of the exchange. He has also not been able to show any pre-existing right in his favour and has also failed to establish the existence of any settlement between him and Chander Bhan which could have necessitated the suffering of a decree by him in favour of the appellant. In this view of the matter the Court was right in relying upon Bhoop Singh v. Ram Singh Major and others AIR 1996 SC 196 to say that in the absence of any pre-existing right the decree being unregistered was bad in the eyes of law. The plea of the learned counsel for the appellant that the decree was not assailed on this ground is meaningless as the respondent has pleaded in his plaint that the decree was against law. It was not necessary for him to qualify this plea and in any eventuality this being a question of law was available to the respondent to raise it at any stage of the proceedings. The contention of the learned counsel for the appellant therefore has to be repelled and the decree necessarily has to be held bad on account of non-registration. R.S.A.No.1979 of 2005 -5- In so far as the plea that the suit was barred by limitation is concerned, the Court is not inclined to accept the same as the appellant himself who took up the plea of limitation failed to even get an issue struck on the question of limitation. In any eventuality, written statement filed by the appellant shows a lame attempt to raise the plea of limitation with no specifics of such a plea. In any eventuality, some evidence was available with the Court in the shape of matriculation certificate which shows the date of birth of the respondent as 5.5.1976 implying thereby that he was a minor when the decree was suffered by his father and the suit having been filed within three years of his attaining majority. The Court is also compelled to observe that in the absence of any material having been shown to have been given to Chander Bhan by way of movable properties, which has been pleaded to be the cause of exchange, the decree and the events leading to it can be termed to be suspicious. No other point has been urged. Hence in view of what has been observed above the Court does not find any merit in the appeal and the same is hereby dismissed. 11.5.2010 (MAHESH GROVER) JUDGE dss