IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. R.S.A. No. 3453 of 2007 Date of Decision: 22.1.2009 Shamsher Singh and another. ....... Appellants through Shri Anil Rathee, Advocate. Versus Ram Rishi and another. ....... Respondents through Shri S.R.Hooda, Advocate. CORAM: HON'BLE MR.JUSTICE MAHESH GROVER .... 1. Whether Reporters of Local Newspapers may be allowed to see the judgment? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? .... Mahesh Grover,J. The plaintiffs have filed this Regular Second Appeal against the judgments and decrees dated 6.10.2006 and 3.8.2007 passed respectively by the Additional Civil Judge (Senior Division),Ganaur (hereinafter described as `the trial Court') and the District Judge, Sonepat (referred to hereinafter as `the First Appellate Court') whereby their suit and the appeal have been dismissed. The appellants filed a suit seeking a decree of declaration to the effect that judgment and decree dated 9.2.1988 and subsequent mutation no.2754 as detailed in the plaint are wrong, illegal, null & void and not binding on their rights. It was pleaded by them that they are owners in possession to the extent of ½ share of the suit property which was owned R.S.A.No.3453 of 2007 -2- .... and possessed by the deceased-Surta. It was further pleaded that during the life time of Surta, a family settlement was arrived at according to which the appellants and the respondents were to become owners of the suit property to the extent of ½ share each. According to the appellants, the possession of ½ share of the suit property was given to them and since then, they and the respondents were in possession of their respective shares. After the death of Surta, both the appellants and respondents became owners in possession on their shares. But, later on, the appellants came to know that a collusive decree was suffered by deceased-Surta in respect of the suit property in favour of the respondents and pursuant to that, mutation in question was also entered in their favour. It was alleged that since the decree was the result of a fraud, the same was liable to be set aside. It was also alleged that the decree being an unregistered document could not be held to be a valid document. The respondents, who contested the suit, denied the factum of fraud and pleaded that Surta was taken care of by their predecessor-in- interest, that the decree had been suffered in 1988 on the basis of a family settlement which was admitted by Surta himself, who had died issueless. However, the relationship of the appellants was not denied. The parties thereafter went to trial on the following issues:- 1. Whether the impugned judgment and decree dated 9.2.1988 and the subsequent mutation no.2754 are wrong, illegal, null and void on the right of the plaintiffs?OPP 2. Whether the plaintiffs are owners in possession to the R.S.A.No.3453 of 2007 -3- .... extent of ½ share of the suit property?OPP 3. Whether the suit filed by the plaintiffs is not maintainable?OPD 4. Whether the plaintiffs have no cause of action to file the present suit?OPD 5. Whether the plaintiffs have no locus standi to file the present suit?OPD 6. Whether the suit filed by the plaintiffs is time barred?OPD 7. Relief. The trial Court, thereafter, on the basis of the evidence before it, concluded that the fraud as alleged by the appellants was not proved and upheld the decree dated 9.2.1988 and also held that the suit was barred by limitation. Consequently, the suit was dismissed. In appeal, the findings recorded by the trial Court were upheld by the First Appellate Court. It was held that the fraud had not been proved and that the decree did not require registration as Surta, who had suffered the decree in favour of the respondents, had done so by acknowledging the existence of a family settlement. In the Regular Second Appeal, learned counsel for the appellants assailed the findings of the Courts below to contend primarily that the decree in question required registration and since the same was an unregistered document, it could not be held to be valid and that it did not affect the rights of the appellants. On the other hand, learned counsel for the respondents R.S.A.No.3453 of 2007 -4- .... contended that prior to the decree in question, there was a Will in favour of the respondents. That apart, the decree was suffered on 9.2.1988 which was to the open knowledge of the appellants and pursuant to which, the mutation was sanctioned in favour of the respondents transferring the land in their favour, but the same was not questioned, so much so, even Surta was alive up to the year 1992 and no attempt was made to challenge the decree during his life time. It was, thus, contended that the suit of the appellants filed in 2002, apart from being barred by limitation, was totally misconceived. I have considered the respective contentions and have carefully gone through the record. Concededly, the decree was suffered on 9.2.1988 on the basis of a family settlement which was admitted by Surta. He died in the year 1992. No attempt was made by the appellants to challenge the decree during his life time and the suit was filed belatedly in the year 2002. It was alleged that the decree was the result of fraud and, therefore, the question of limitation would not arise, but as determined by the Courts below, the plea of fraud was not established. There is no evidence to substantiate this plea. The appellants, however, tried to explain the belated filing of the suit on the ground that they were minor at the time when the decree was suffered and they came to know about the decree after one month of their father's death. This plea can also not been accepted as their father was alive up to the year 1995,but the suit was filed in the year 2002, i.e., much belatedly. Besides, if, at all, the decree was the result of a fraud, then R.S.A.No.3453 of 2007 -5- .... some attempt ought to have been made at that point of time during the life time of the predecessor-in-interest of the appellants, which was not done. In so far as the matter of registration of the decree is concerned, since Surta admitted the existence of a family settlement pursuant to which the decree was passed, the finding returned by the Courts below cannot be interfered with. On the basis of the above discussion, the appeal is held to be devoid of any merit and the same is dismissed. January 22,2009 ( Mahesh Grover ) “SCM” Judge