RSA No.3725 of 2008 (O&M) -1- ****** IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.3725 of 2008 (O&M) Date of decision:04.08.2010. Teja Singh and others ...Appellants Versus Chhota Singh ...Respondent CORAM: HON’BLE MR. JUSTICE RAKESH KUMAR JAIN Present: Mr. Arun Bansal, Advocate, for the appellants. Mr. Parminder Singh, Advocate, for the respondent. ***** RAKESH KUMAR JAIN, J. (ORAL) The defendants are in second appeal against judgment and decree of the learned First Appellate Court by which judgment and decree of the learned Trial Court has been reversed. The facts are not required to be recapitulated having been narrated in detail in the judgment of Courts below. In short, the dispute is with regard to a decree dated 02.08.1995 which is alleged to have been obtained by the plaintiff against the defendants on the basis of a mutual exchange of land of the plaintiff situated at village Chak Bans Sham Singh Wala Fatehgarh, Tehsil and District Hanumangarh (Rajasthan) with the land of the RSA No.3725 of 2008 (O&M) -2- ****** defendants situated at village Bandi, Tehsil and District Bathinda on account of impersonation. Plaintiff has alleged that he did not appear in the Civil Suit No.101 of 24.02.1995 to suffer the decree dated 02.08.1995. It is alleged to be an act of impersonation on the part of the defendants who had brought some impostor. The suit filed by the plaintiff was dismissed, however, the learned First Appellate Court decreed the suit on two grounds, viz, i) the thumb impression on the written statement and the statement suffered by the plaintiff in the earlier suit did not tally with the specimen thumb impressions appearing in the present suit and ii) there was no truth found in the earlier suit because with regard to the land which is alleged to have been exchanged by the defendants of village Chak Sham Singh Wala Bans Fatehgarh it has been admitted by DW5 that whole of the land of that village belonging to their father and his brother, had already been sold by them for a sale consideration of Rs.24,000/- to one Kartar Kaur in the year 1972. The findings of the learned First Appellate Court in this regard are as under: - “31. After going through judgment Ex.P2 and copy of the plaint of that suit Ex.P5 it is made out as if appellant as well as respondents exchanged lands of Chak Sham Singh Wala with the land of village Bandi on ground that appellant residing in Rajasthan and that is why land of Chak Sham Singh Wala though inherited by respondents given RSA No.3725 of 2008 (O&M) -3- ****** to appellant in lieu of the land of village Bandi left by appellant in favour of respondents. This plaint Ex.P5 was presented on 14.02.1995 and as such question of such exchange to arise only if really respondents of this case would have been owner of any part of land of Chak Sham Singh Wala. No record of land of Chak Sham Singh Wala produced by respondents for showing that they or their father Jang Singh ever remained owner in possession of any part of land of that village i.e. Chak Sham Singh Wala. One of the respondents of this case namely DW5 Baldev Singh admitted in cross examination that he cannot produce any record for proving exchange of land of Chank Sham Singh Wala with that of land of village Bandi. Had really exchange of such land taken place, then entries in revenue records would have been got incorporated but that record has neither been produced and nor attempted to be procured and as such best evidence available withheld by respondents. DW5 further claimed in his cross – examination as if his father disclosed about payment of money to Chhota Singh qua excess land got in village Bandi. If really such amount RSA No.3725 of 2008 (O&M) -4- ****** would have been paid, then mention of the amount paid must have been made to DW5, but DW5 claims as if his father did not disclose as to how much amount was paid to appellant. Thus these versions leads to the inference as if excess land was not purchased from appellant Chhota Singh by payment of any money. If at all the money would have been paid for purchase of excess land, then a registered instrument was required to be executed because provisions of Section 17 of Indian Registration Act lays that as and when there is sale of immovable property of worth of more than Rs.100/-, then the same can be by registered instrument alone. No such regitered instrument produced and as such version of DW5 unbelievable that actually any amount was paid to appellant by his father Jang Singh for purchase of the excessive portion from appellant Chhota Singh. 32. DW5 claimed that Chhota Singh appellant came in court only once for suffering statement, but he is unable to disclose as to whether his statement as well as of appellant Chhota Singh recorded on that day or not. Had really statement RSA No.3725 of 2008 (O&M) -5- ****** of Chhota Singh actually been recorded by the court in 1995 in presence of DW5, then DW5 would have known this fact as to whose statements were recorded. However, DW5 do not know about that and as such the same also casts doubt as to whether appellant Chhota Singh actually was produced on 01.06.1995 for his statement in the court or not. Even DW5 not aware of the names of the counsels engaged. Such a version can be expected from that person alone who is suppressing truth and as such statement of this DW5 unbelievable that actually appellant himself came present in the court for suffering statement on basis of which judgment Ex.P2 and decree Ex.P3 was passed. Therefore, opinion of PW2 has to be given precedence for finding that PW1 telling truth as if he did not appear in the proceedings of the suit in which judgment Ex.P2 and decree sheet Ex.P3 was passed. 33. DW5 Baldev Singh one of the respondents of this case expressed ignorance qua fact as to whether the whole of the land of village Chak Sham Singh Wala was sold by his father Jang RSA No.3725 of 2008 (O&M) -6- ****** Singh alongwith his uncle Gurbachan Singh in favour of Kartar Kaur. However, that sale deed Ex.P10 has been produced on the record to establish as if father of respondents namely Jang Singh along with his brother Gurbachan Singh sold the whole of land of village Chak Sham Singh Wala in favour of Kartar Kaur for consideration of Rs.24,000/-. Though DW5 Baldev Singh expressed ignorance regarding sale of this land in the first instance, but in the further lines of his cross-examination dated 18.1.2005 he admitted as if after sale of land by his father of village Chak Sham Singh Wala in 1972, he was left with not even a single Marla of land in that village. This admission of respondent Baldev Singh as DW5 enough to establish as if after 1972 no land was left by respondents or their father in village Chak Sham Singh Wala. The exchange of the land as per DW5 took place between his father and appellant and their brothers. Thus virtually the judgment Ex.P2 obtained on the strength of the family settlement alleged to be arrived at between father of respondents and appellant. However, above admission of DW5 Baldev Singh RSA No.3725 of 2008 (O&M) -7- ****** establishes as if after 1972 not even a Marla of land was left by his father in village Chak Sham Singh Wala. If after 1972 no land was left in name of father of respondents at Cham Sham Singh Wala, then question of exchange of land in 1993 by respondents or their father with appellant does not arise. So the family settlement relied upon by respondents for getting judgment Ex.P2 and decree sheet Ex.P3 could not have been arrived at because respondents or their father left with no land in village Cham Sham Singh Wala, which could hve been given in exchange to appellant after 1972. However, after going through para No.2 of plaint Ex.P5 it is made out as if respondents claimed at the time of filing of that suit on 14.2.1995 as if exchange of land of village Cham Sham Singh Wala with land of village Bandi took place two years prior to the filing of that suit i.e. In 1993. However, as already referred above admission of respondent Baldev Singh as DW5 establishes that they did not left any land in village Chak Sham Singh Wala and as such story regarding arrival of the family settlement for giving land of village Bandi to respondents is absolutely RSA No.3725 of 2008 (O&M) -8- ****** incorrect. So virtually the said suit was filed on false facts also. As and when a suit is filed on false facts, then the same ipso facto enough to establish as if fraud played in obtaining judgment and decree. As and when decree obtained by playing fraud on the court then the same is nonest in the eyes of law as per ratio of case Hamza Haji Vs. State of Kerala 2006(4) Civil Court Cases 407 (Supreme Court). Rather ratio of this case lays that if a case is founded on false plea or on a claim which is known to be false, then production of the documents for suppressing facts are the circumstances pointing as if fraud committed. Same is the position in the case before me because here at the time of filing of the plaint Ex.P5 respondents were fully aware that family settlement could not have been arrived at due to non owning of any land by them or their father in village Chak Sham Singh Wala in 1993. Those facts pleaded for suppressing the truth. Thus it is obvious that judgment Ex.P2 and decree sheet Ex.P3 obtained by pleadings facts false to the knowledge of respondents and the same enough to draw the inference that the judgment and RSA No.3725 of 2008 (O&M) -9- ****** decree under challenge was obtained by playing fraud.” Learned counsel for the appellant has vehemently argued that insofar as the first question is concerned, the thumb impression of the plaintiff is found to be smudged by the Finger Print and Handwriting Expert and, therefore, his report cannot be accepted. However, with regard to second question, he has admitted that the entire land of village Chak Sham Singh Wala Bans Fatehgarh was sold by father of the appellants in the year 1972. Once there is an admission by the appellants that they did not possess any land in village Chak Bans Sham Singh Wala Fatehgarh when the alleged suit was filed by them against the plaintiff for the purpose of exchange, the question of suffering a decree by the present plaintiff in their favour does not arise at all because no prudent man much-less an agriculturist would loose his land in favour of a person without giving anything in exchange, either in cash or in the form of land. In view of the finding of fact recorded by the learned First Appellate Court, I do not find any question of law much-less substantial involved in this appeal as envisaged under Section 100 of the Code of Civil Procedure, 1908 and as such the present appeal is dismissed. Before parting with this order, it is also worthwhile to mention here that the present appellants have already been convicted on the charge of impersonation in Civil Suit No.101 of RSA No.3725 of 2008 (O&M) -10- ****** 24.02.1995 in a private complaint case registered by the plaintiff under Sections 120-B, 419, 465, 467, 471 of the Indian Penal [for short IPC] by the learned Judicial Magistrate 1st Class, Bathinda and vide his order of the same date, the present respondent have been sentenced to under go rigorous imprisonment for a period of three years each under Section 120-B IPC, rigorous imprisonment for a period of two years each and to pay fine of Rs.500/- each under Section 419 IPC, rigorous imprisonment for a period of two years and to pay fine of Rs.200/- each under Section 465 IPC, rigorous imprisonment for a period of three years each and to pay fine of Rs.500/- each under Section 467 IPC and rigorous imprisonment for a period of one year each and to pay fine of Rs.200/- each under Section 471 IPC and the sentences have been ordered to run concurrently. August 04, 2010. (RAKESH KUMAR JAIN) vinod* JUDGE