RSA No.1401 of 2009 (O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.1401 of 2009 (O&M) Date of decision : 21-7-2009 Gurmel Singh ....Appellant VERSUS Gurmeet Kaur and others ....Respondents CORAM:- HON'BLE MR. JUSTICE RAJIVE BHALLA Present: Mr. Jagdish Rai Mittal, Sr. Advocate with Mr. Kashmir Singh, Advocate, for the appellant. RAJIVE BHALLA, J. CM No.4137-C of 2009 For reasons stated in the application, delay in re-filing the appeal is condoned. RSA No.1401 of 2009 The appellant challenges the judgments and decrees dated 8-12-2006 and 19-11-2008, passed by the Civil Judge (Senior Division) Mansa and District Judge, Mansa, dismissing his suit and his appeal. The plaintiff/appellant filed a suit for declaration that the decree dated 11-10-1993, passed by the Sub Judge IInd Class, Mansa in favour of the defendants is a nullity as he is owner in possession of the suit land. The plaintiff alleged that Harbans Singh, RSA No.1401 of 2009 (O&M) -2- his brother, filed a Civil suit No.321-A dated 7-4-1993 claiming ownership of the suit land on the basis of a family partition. The suit was dismissed as withdrawn on 11-8-1993, pursuant to the death of Harbans Singh. The legal representatives of Harbans Singh filed an application for restoration of the suit. The suit was restored without issuing notice to the appellant and eventually a decree was passed on 11-10-1993. The appellant filed an appeal which was dismissed on 13-11-1998. The second appeal filed by the appellant was dismissed on 23-12-1998 with liberty to challenge the decree before a Civil Court. It is asserted that the impugned decree is a nullity as no family partition was effected between the parties. Harbans Singh did not have any pre-existing right in the suit land even otherwise the judgment and decree dated 11-10-1993 is void for want of registration. In response, the defendants/respondents filed a written statement avering that Harbans Singh and the appellant were brothers. By way of an oral family settlement, the suit land fell to the share of Harbans Singh. In order to formalise the family settlement, Harbans Singh filed Civil suit No.321-A on 7-04-1993. During the pendency of the suit as Harbans Singh passed away, the suit was dismissed as withdrawn on the statement of an Advocate who was not the counsel. The respondents, thereafter, filed an application for restoration of the suit. The suit was restored and eventually decreed in favour of the defendants as the appellant had admitted Harbans Singh's claim. It was further averred that as the judgment and decree dated 11-10-1993 does not suffer from any illegality the suit be RSA No.1401 of 2009 (O&M) -3- dismissed. After framing of issues, parties were called upon to lead evidence. After considering the pleadings, the evidence adduced and the arguments addressed, the learned trial Court dismissed the suit by holding that the decree dated 11-10-1993 was passed on the basis of an admission made by the appellant and, therefore, could not be set aside whether on the ground of fraud, or lack of registration. The learned trial Court also held that the suit is barred by time. Aggrieved by the aforementioned judgment and decree, the appellant filed an appeal. The First Appellate Court dismissed the appeal and affirmed the findings recorded by the trial Court. Counsel for the appellant contends that the suit land was the self-acquired property of the appellant. Hence, as Harbans Singh did not have any pre-existing right there could be no family settlement. The respondents have failed to produce any evidence as to the date, time and place of the alleged family settlement. In these circumstances, there was no reason for the appellant to suffer the decree admitting the claim put forth by Harbans Singh. It is further argued that Civil suit No.321-A of 7-4-1993 could not have been restored without notice to the appellant, and, therefore, the decree that eventually came to be passed is a nullity. It is further submitted that as a prayer for a declaration on the basis of title is a continuing right the suit could not have been dismissed as barred by time. I have heard counsel for the appellant, perused the impugned order, and considered the questions of law framed by RSA No.1401 of 2009 (O&M) -4- counsel for the appellant. It is not denied that the judgment and decree dated 11-10-1993 was passed on consent as the averments in the plaint that the suit property had fallen to the share of Harbans Singh deceased pursuant to a family settlement were not denied. Before the decree could be passed on this admission Harbans Singh passed away and the suit was dismissed as withdrawn but was eventually restored and decreed. The argument arising from the withdrawal of the suit and its subsequent restoration without notice to the appellant were admittedly made subject matter of a first and a second appeal which were both dismissed. Consequently, these arguments and the questions of law relating thereto are not available to the appellant and are therefore rejected. The appellant's plea that the decree is a nullity for want of registration merits rejection. The decree is based upon a prior, oral family settlement duly acknowledged and admitted by the appellant in his written statement filed in that suit and therefore does not require compulsory registration. As regards the plea that the suit is not barred by time, as liberty was granted to the appellant to challenge the judgment and decree dated 7-4-1993 by a separate suit pursuant to an order passed by the High Court in RSA No.3917 of 1998, suffice is to say that liberty to avail a remedy is always subject to any legal bar attendant thereto. Even if the suit was to be held to be within time, the consent decree suffered by the appellant, cannot be said to be void or nonest. The questions of law framed by counsel for the appellant relate to the legality of the judgment and decree dated 11-10-1993, challenge whereto has already been rejected upto this RSA No.1401 of 2009 (O&M) -5- Court. In view of what is stated hereinabove, as no question of law much less a substantial question of law arises for consideration, the present appeal is dismissed. (RAJIVE BHALLA) 21-07-2009 JUDGE manju