R.S.A. No.4392 of 2010 (O&M) IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH **** R.S.A. No.4392 of 2010 (O&M) DATE OF DECISION: 26.11.2010 **** Ram Kumar . . . . Appellant Vs. Ved Parkash & another . . . . Respondents **** CORAM : HON’BLE MR.JUSTICE RAKESH KUMAR JAIN. **** Present: - Mr. Amit Jhanji, Advocate, for the appellant. Mr. Sachin Mittal, Advocate, for the caveator. **** RAKESH KUMAR JAIN J. (ORAL) C.M. No.13207-C of 2010 Allowed as prayed for. R.S.A. No.4392 of 2010 (O&M) The plaintiff is in second appeal against the judgment and decree of both the Courts below by which his suit for declaration challenging the decree passed in Civil Suit titled as Ved Parkash Vs. Phoolgiri dated 23.11.1993 and mutation entered and sanctioned on the basis of the said decree, has been dismissed. The plaintiff-Ram Kumar is the son of Phoolgiri (since deceased), who has challenged, by the present suit for declaration, the Civil Court decree dated 23.11.1993 passed in Civil Suit titled as Ved Parkash Vs. Phoolgiri and mutation No.6828 dated 15.5.1994 entered and sanctioned on the basis of the said decree with respect to agricultural land measuring 39 kanals 6 marlas on the ground that the defendants had obtained the decree by way of impersonation by producing some other person in place of his father. It is alleged that defendants had earlier filed Civil Suit No.454 of 1993. At that time, Ram Kumar had appeared along 1 R.S.A. No.4392 of 2010 (O&M) with his lawyer and filed an application under Order 1 Rule 10 of the Code of Civil Procedure, 1908 (for short ‘CPC’) but the said suit was withdrawn and the Court of Sh. A.K. Tyagi did not give permission to file the fresh suit on the same cause of action. However, the defendants and their father filed another suit which was transferred to the Court of Sh.Rajinder Parshad where it was decreed though in that suit his deceased father Phoolgiri had neither engaged any lawyer nor signed the written statement or Vakalatnama etc. In the written statement, the allegations made in the plaint were denied and alleged that the decree dated 23.11.1993 passed in Civil Suit No.836 of 1993 titled as Ved Parkash and others Vs. Phoolgiri was validly passed by the Court. On the pleadings of the parties, following issues were framed on 09.02.1998: - “1. Whether the civil court decree dt. 23.11.93 passed in civil suit no.836/93 titled as Ved Parkash Vs. Phoolgiri and mutation No.6828 dated 15.5.94 entered and sanctioned on the basis of the said decree are liable to be set aside on the grounds mentioned in the para No.5 of the plaint? OPP 2. Whether the plaintiff is entitled to relief of injunction as claimed for? OPP 3. Whether the plaintiff has already suffered a decree in favour of Maya Parkash and others? OPD 4. Whether the suit is barred by time? OPD 5. Whether the suit is not maintainable in the present form? OPD 6. Whether the suit has not been properly valued for the purpose of Court fee and jurisdiction? OPD 7. Relief. 2 R.S.A. No.4392 of 2010 (O&M) On 13.01.1999, another issue was framed as issue No.2-A that “whether the plaintiff Phoolgiri executed a valid Will in favour Ram Kumar applicant? OPA”. The learned trial Court decided issues No.1 to 5 against the plaintiff and issues No.2-A and 6 were decided being not pressed. The suit, however, was dismissed. Before the First Appellate Court, the plaintiff filed an application for additional evidence alleging therein that one more suit prior to filing of the suit leading to the impugned decree was filed and was withdrawn without seeking permission to file a fresh suit. In reply to that application, it was alleged that suit was not related to the defendants and as such it had no link with the decree which has been challenged by the plaintiff in the present suit. The learned First Appellate Court while dealing with the application for additional evidence observed that the filing and withdrawl of the earlier suit was admitted by the defendants and the plaintiff had admitted that it was pertaining to different parties and different land. In view thereof, the application for additional evidence was dismissed. The Court had observed that the said Civil Suit No.454 of 1993, which was earlier filed and withdrawn on 7.6.1993, was pertaining to different land which is not subject matter of the impugned decree. It was also observed that another suit filed by the collateral of the parties which is going on at Assandh related to another decree of the different land and has no relation with the decree in question. It is an admitted case of the plaintiff that he had earlier filed similar suit challenging the impugned decree in Civil Suit No.457 of 1996 titled as Ram Kumar and others Vs. Phoolgiri and others on the grounds which are taken in the present suit and the said suit was dismissed on 23.10.1997 (Ex.D-10) and the appeal was dismissed on 05.02.2001 (Ex.D-6) and the Regular Second Appeal was dismissed by this Court on 7.01.2005 (Ex.D-13). Thus, finally the impugned decree dated 23.11.1993 was held to be valid and the suit land was not proved to be ancestral. It was observed that the learned trial Court had rightly observed that the present suit was barred under the principles of res judicata and was not maintainable. The learned First Appellate Court had also dismissed the suit on the ground that Phoolgiri (deceased), who had suffered the impugned decree, had the knowledge about it but he himself had never challenged it within the prescribed period of three years 3 R.S.A. No.4392 of 2010 (O&M) from the date of decree or even from the date of knowledge. Moreover, Phoolgiri is alleged to have died during the pendency of the present suit, therefore, the plaintiff, who claims his right on the basis of Will, could not have filed the suit for want of locus standi because the Will would take effect after the death of Phoolgiri and the appellant had no right at that time when the suit was filed as Phoolgiri was alive. In this regard, learned counsel for the respondents has relied upon a decision of this Court in the case of “Hari Singh Vs. Gurcharan Singh and others” 2003(3) Civil Court Cases 183. Learned counsel for the appellant has though tried his level best to persuade this Court to take a view different from the view taken by the Courts below while recording a firm finding of fact but he has been miserably failed to point out any error of law in the judgment and decree of both the Courts below and even could not establish his right to file the suit on the ground of fraud during the life time of his father, who knew about the impugned decree very well. In view of the above discussion, neither I find any merit in the present appeal nor any question of law much less substantial is involved as envisaged under Section 100 of the CPC and as such the same is hereby dismissed in limine. Parties are directed to bear their own costs. (RAKESH KUMAR JAIN) November 26, 2010 JUDGE Vivek 4