R.S.A.No.1960 of 2006 (O&M) -1- In the High Court of Punjab and Haryana at Chandigarh R.S.A.No.1960 of 2006 (O&M) Date of Decision:August 27, 2009 Smt. Yashoda Devi and another ---Appellants versus Smt. Rattan Kaur and others ---Respondents Coram: HON'BLE MRS. JUSTICE SABINA *** Present: Mr. Arun Jain,SeniorAdvocate, with Mr. Amit Jain, Advocate, for the appellants None for the respondent. *** SABINA J. Plaintiffs- Yashoda Devi and Parmeshwari had filed a suit for declaration and permanent injunction. Civil Judge ( Junior Division), Hisar vide judgment and decree dated 28.9.2002 dismissed the suit of the plaintiffs. Aggrieved by the same, plaintiffs and defendant No. 1 preferred appeals. The appeal filed by Rattan Kaur-defendant No. 1 was partly accepted and the appeal filed by the plaintiffs was dismissed by Additional District Judge (Ad hoc), Fast Track Court, Hisar vide judgment and decree dated 16.12.2005. Hence, the present appeal by the plaintiffs. R.S.A.No.1960 of 2006 (O&M) -2- The facts of the case as noticed by the learned Additional District Judge, in paras 3 to of its judgment read as under:- “The material facts giving rise to the present appeals are that suit for declaration to the effect that the plaintiffs and the defendants are the joint owners in possession in equal share of the land measuring 300 kanals 12 marlas i.e. 2/3 share in the total land 450 kanals 17 marlas comprised in khewat no. 61, khatoni no. 83 situated at village Dabra, Tehsil & District, Hisar as per jamabandi 1991-92 and that the decree dated 28.10.1971 passed by Sh. Kanwal Singh, Sub Judge, Hisar in civil suit no. 339 of 1971 titled as Rattan Kaur vs. Ranjit Singh was obtained by fraud collusion and undue influence, the mutation no. 1020 sanctioned in pursuance thereof and the mutation no. 1449 about the inheritance of Sh. Ranjit Singh and other entries in the revenue record inconsistent and contrary to the rights and share of the plaintiffs in the said land are null, void and not binding upon them that all such entries in the revenue record are liable to be rectified with consequential relief of permanent injunction restraining the defendant No. 1 from seeking partition on the basis of present wrong and incorrect entries in the revenue record and also alienating the land was filed by the plaintiffs against the defendants. It was averred that defendant No. 1 by undue influence and fraud obtained a decree dated 28.10.1971 passed by Sh.Kewal Singh, Sub Judge, Hisar in civil suit no. 339 of 1971 and the said decree is null, void inoperative and ineffective upon the R.S.A.No.1960 of 2006 (O&M) -3- plaintiffs and is liable to be set aside on the grounds that defendant no. 1 had obtained the decree by playing fraud and undue influence upon her father. It was averred that plaintiffs and performa defendants came to know about the decree dated 28.10.71 and the mutation of inheritance of late Shri Ranjit Singh, they arranged the meeting of their close relatives to settle the dispute, in the month of January, 1997. It was averred that Smt. Rattan Kaur defendant No. 1 was also present and she admitted the wrong and incorrect present entries in the revenue records and she expressed her total ignorance about the decree and told the relatives present that she never obtained the decree, she did not sign the plaint, Vakalatnama nor she engaged any counsel for obtaining the decree dated 28.10.71. However, she admitted that once in 1971 Sh. Ranjit Singh told him that he had transferred 1/3rd share in his land by way of collusive decree in her name to save the land from the operation of Haryana Land calling law and she never appeared in the court, not she ever brought or arrange the jamabandi attached with the suit in which the decree was passed and she never participated in the decree and did not make any effort to get the land transferred in her name. It was averred that the respectables of the family after having been convinced with the defendant no. 1 advised the plaintiffs and the defendants to get the necessary entries rectified in the revenue record and also share the land equally R.S.A.No.1960 of 2006 (O&M) -4- that was owned by Sh. Ranjit Singh at the time of his death. Though Smt. Rattan Kaur was only entitled to 1/35 share in the land but with a view to maintain peace and harmony and cordial relation between the parties to the suit all agreed to share the land equally as aforesaid. Smt. Rattan Kaur acknowledged and accepted the family settlement in this manner and agreed to share the land equally with his brothers, sisters and mother. She promised to get the necessary entries corrected accordingly in the revenue record. It was averred that mutation no. 1020 sanction on the basis of decree and the consequent entries to this effect for the revenue record and mutation no. 1499 about the inheritance of Ranjit Singh are null and void and are liable to be set aside and the parties to the suit are joint owners in possession in equal shares of the suit property. It is also averred that the cause of action accrued to the plaintiff in the month of January, 1997 when she come to know about the entries in mutation of inheritance of their father. On the basis of aforesaid averments it has been sought that the suit of the plaintiffs be decreed. 4 On notice, written statement has been filed by the defendant no. 1, Smt. Rattan Kaur and raised several preliminary objections. It was averred that the suit was not maintainable and was time barred. It was averred that the plaintiffs had no cause of action and locus standi to file the present suit. It was averred that suit was bad for mis joinder and non joinder of necessary parties and suit was false. R.S.A.No.1960 of 2006 (O&M) -5- On merits all the averments made in the plaint were denied. It was averred that the decree dated 28.10.1971 in civil suit no. 339 of 1971 was passed on the basis of family settlement between the parties with free consent and there was no question of any fraud etc. as alleged by the plaintiffs. It was averred that decree dated 28.10.1971 was very much in the knowledge of plaintiffs and the performa defendants. It was averred that father or defendant no. 1 had expired in 1987 and defendant no. 1 also got share out of the land which her father had retained and at that time the plaintiffs and performa defendants did not raise any question in any manner. It was averred that the defendant No. 1 had full faith in defendant no. 3 in whose favour she had executed general power of attorney of her total share and later had withdrawn the same. It was accordingly submitted that the decree dated 28.10.1971 and the mutation no. 1449 about the inheritance of her father was legally justified. It was averred that the fact of partition in 1997 as alleged by the plaintiffs was also wrong. On the basis of aforesaid averments the dismissal of the suit has been sought by the defendant no. 1. All the remaining defendants were proceeded against ex-parte.” On the pleadings of the parties, trial court framed the following issues:- “(1)Whether the plaintiffs and defendants are joint owners in possession in equal share of the land measuring 300K-12M comprised in Khewat No. 61, khatuni No. 83? OPP R.S.A.No.1960 of 2006 (O&M) -6- (2)Whether the decree dated 28.10.1971 passed by S. Kewal Singh, Sub Judge, Hisar in the civil suit no. 339 of 1971 was obtained by fraud, undue influences and therefore, liable to be set aside? OPP (3)Whether the mutation No. 1020 and mutation no. 1449 are illegal null and void and not binding upon the rights of the plaintiff? OPP (4)Whether the suit is not maintainable in the present form? OPD (5)Whether the suit is time barred? OPD (6)Whether the plaintiff is estopped by his own act and conduct from filing the present suit? OPD (7)Whether the plaintiff has no cause of action and no locus standi to file the present suit? OPD (8)Whether the plaintiff has not come to the court with clean hands? OPD (9)Whether the suit of the plaintiff is bad for non joinder and mis joinder of necessary parties? OPD (10)Whether the suit of the plaintiff is false frivolous and liable to be dismisses with costs u/s 35A CPC? OPD (11)Relief. After hearing learned counsel for the appellants, I am of the opinion that the present appeal is liable to be dismissed. Plaintiffs had filed a suit for declaration to the effect that the plaintiffs and defendants were joint owners in possession in equal share of the suit land and the decree dated 28.10.1971 passed by Sub Judge, Hisar in R.S.A.No.1960 of 2006 (O&M) -7- civil Suit no. 339 of 1971 was a result of fraud, collusion and undue influence. The trial court held while deciding issue No. 2 that in fact, there was no dispute between the family members of Ranjit Singh in the year 1971 which required them to arrive at a family settlement. A decree had been suffered by Ranjit Singh to save the land from the provisions of Land Ceiling Act which came into force. The land would have become surplus and would have gone to the State and in order to save his land, Ranjit Singh had suffered a decree in favour of defendant No.1-Rattan Kaur. It was further held that the decree, in question, required registration as defendant had acquired interest in the suit property by way of a decree. The suit of the plaintiffs was dismissed being time barred. The decree challenged by the plaintiffs was passed in the year 1971 whereas the suit was filed in the year 1997. Appeal filed by Rattan Kaur was partly allowed by learned Additional District Judge and the appeal filed by the plaintiffs was dismissed. Finding on issue No. 1 was modified to the extent that the land which was subject matter of mutation No. 1449(Ex. P-9) shall not be effected in any manner and the finding on issue No. 3 was modified to the effect that Mutation No. 1449 was valid and Mutation No. 1020 was illegal, null and void. Ranjit Singh died in the year 1987. Mutation No. 1449 (Ex. P-9) was sanctioned on 26.2.1998 in favour of legal heirs of Ranjit Singh including defendant No. 1 as per law. Hence, mutation No. 1020 (Ex. P-8) equalizing the share of defendant No. 1 was liable to be declared illegal, null and void as no family settlement in the year 1997 was borne out from the record. In the present case, the decree, in question was passed in the 1971. It is not the case of the appellants that they were not in the R.S.A.No.1960 of 2006 (O&M) -8- knowledge of the decree. Rather the decree was passed with a view to save the land from being declared as surplus. However, the suit had been filed in the year 1997. In these circumstances, both the courts below have rightly held that the suit of the plaintiffs was time barred. The said finding of the trial court calls for no interference by this Court in this appeal. No substantial question of law arises in this appeal. Accordingly, this appeal is dismissed. (SABINA) JUDGE August 27, 2009 PARAMJIT