RSA No.1955 of 2009 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CM No.5725-26-C of 2009 & RSA No.1955 of 2009 Decided on :11.02.2010 Ravi Setia ... Appellant versus Sheela Devi & others ... Respondents CORAM : HON'BLE MR. JUSTICE AJAY TEWARI Present : Mr. R.K.Kakkar, Advocate for the appellant. **** 1.To be referred to the reporters or not? 2.Whether the judgment should be reported in the Digest? AJAY TEWARI, J. (ORAL) CM No.5725-C of 2009 For the reasons mentioned in the application, delay of 25 days in refiling the appeal is condoned. CM stands disposed of. RSA No.1955 of 2009 This appeal has been filed against the concurrent judgments of the courts below decreeing the suit of the respondents whereby it was held that consent decree dated 11.06.1993 obtained by the appellant against the respondent, was illegal, null and void and on the basis of fraud. As per the consent decree, the appellant gave up his rights in a plot measuring 45' x 90' in village Gill Kallan Tehsil Rampura Phool in exchange of 18 kanals 19 marlas of land in Fazilka. Both the courts below found as a fact that the family never owned any property at village Gill Kallan and thus, held that the RSA No.1955 of 2009 -2- very basis of the alleged decree is not proved. Following questions have been proposed: a) Whether a compromise/consent judgment and decree can be challenged by filing a separate suit in some other court or by filing an application in the same court on the ground that the consent of the parties was not obtained or the consent was result of any fraud? b) Whether there is any presumption of truth attached to a power of attorney executed by one person in favour of another person and duly attested by Notary? c) Whether when a plea of fraud is taken by the plaintiffs in a suit is to be proved by the plaintiffs? d) Whether a mere suit for declaration without seeking relief of possession, when the plaintiffs are not in possession of the suit land is maintainable in view of Section 34 of Specific Relief Act? e) Whether non appearance of Parkash Devi & Parmanand plaintiffs in the witness box in order to deny the execution of the power of attorney allegedly executed by them should be sufficient to draw an adverse inference against those plaintiffs? f) Whether Madan Lal attorney of the plaintiffs who made statement before ld. Sub Judge, Ram Pura Phool was a necessary party to the present suit? g) Whether civil courts while deciding a civil suit are within their jurisdiction to rely upon documents which have not been marked as exhibits and not proved as per RSA No.1955 of 2009 -3- the provisions of Indian Evidence Act? The main question argued by the learned counsel is question No.(c). Learned counsel has argued that it was for the plaintiff/respondent to prove that Sh. Madan Lal – attorney was not duly constituted attorney. In my opinion, once it is proved that the family did not own any property at village Gill Kallan, then question of consent or family agreement do not arise. Thus, in these circumstances, this question about onus would not hinder this court further. Second question argued by learned counsel is question No.(a). In this regard, the ld. Lower Appellate Court has rightly found that in a case of fraud, it is not necessary to go to the same court which has passed the decree while placing reliance on the decision of the Hon'ble Supreme Court in the case of Kasturi vs. Iyyamperumal & others, reported as 2005(2) RCR (Civil) page 690. Learned counsel for the appellant has not raised any argument on the remaining questions. In these circumstances, holding the proposed questions against the appellant, this appeal and application for stay are dismissed. February 11, 2010 (AJAY TEWARI) sonia JUDGE