Regular Second Appeal No.2717 of 2010 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Date of Decision:-28.7.2010 Manjit Kaur widow of Avtar Singh alias Tara Singh and others ...Appellants Versus Gurdev Kaur and others ...Respondents CORAM: HON'BLE MR.JUSTICE MEHINDER SINGH SULLAR Present:- Mr.Kanwaljit Singh, Senior Advocate with Mr.Ajay Singla, Advocate for the appellants. M ehinder S ingh S ullar , J . (Oral) As to whether any substantial question of law is involved in this regular second appeal, in view of law laid down by the Hon'ble Apex Court in case Kashmir Singh v. Harnam Singh & Anr. 2008 (2) R.C.R. (Civil) 688 : 2008 AIR (SC) 1749, is the moot point to be decided by this Court. 2. Tersenessly, the facts, relevant for disposal of the present appeal and emanating from the record, are that Gurdev Kaur widow of Hakam Singh and others respondent-plaintiffs (hereinafter to be referred as “the plaintiffs”) filed the present suit for a decree of declaration to the effect that they are owners and in joint possession, with a consequential relief of permanent injunction restraining Tara Singh (since deceased), being represented by his LRs appellant-defendants (hereinafter to be referred as “the defendants”) from alienating the suit land in any manner. They have also challenged the collusive decree dated 2.5.1991 passed in civil suit No.407 of 3.9.1990 titled as “Tara Singh vs. Kehar Singh” obtained by Tara Singh son of Kehar Singh (since deceased), original defendant No.1, represented by his legal representatives, being illegal, void and inoperative on their rights. 3. The defendants contested the suit and filed the written statement inter-alia pleading certain preliminary objections of, maintainability of the suit, Regular Second Appeal No.2717 of 2010 2 locus standi of the plaintiffs, res-judicata and the suit is time barred. On merits, the defendants claimed that defendant No.1 is owner and in possession of the land in dispute by virtue of collusive judgment and decree dated 2.5.1991. According to the defendants, the suit filed by the plaintiffs, which was allegedly decided on 14.2.1996, was never contested by Kehar Singh and the said judgment and decree are liable to be set aside and are not binding on their (defendants) rights. The judgment and decree dated 2.5.1991 were claimed to be correct and legal. It will not be out of place to mention here that the defendants have stoutly denied all other allegations contained in the plaint and prayed for dismissal of the suit. 4. Controverting the allegations contained in the written statement and reiterating the pleadings of the plaint, the plaintiffs filed the replication. In the wake of pleadings of the parties, the trial Court framed the relevant issues for proper adjudication of the case. 5. The parties led oral as well as documentary evidence, to prove their respective pleaded cases. 6. Taking into consideration the evidence on record, the trial Court decreed the suit of the plaintiffs, vide impugned judgment and decree dated 22.10.2007. 7. Aggrieved by the judgment and decree of the trial Court, the appellant-defendants filed the appeal, which was dismissed as well, by the Ist Appellate Court, vide impugned judgment and decree dated 16.4.2010. 8. Still aggrieved by the impugned judgments and decrees of the Courts below, the appellant-defendants filed the present appeal. 9. After hearing the learned counsel for the appellant-defendants, after going through the record with his valuable help and after analyzing the matter, to my mind, there is no merit in the appeal. 10. As is evident from the record, the trial Court has observed that the original defendant No.1 obtained the impugned decree by playing fraud with the Regular Second Appeal No.2717 of 2010 3 Court and is hit by the principle of lis-pendens. The first appellate Court has, inter- alia, observed as under:- “Indubitably, judgment and decree, copies Ex.P2 and Ex.P3 respectively, were obtained by appellant No.1, since deceased, through concealment of judgment and decree dated 28.2.1972. If, these judgment and decree dated 28.2.1972 would have been brought on record of civil suit, wherein, judgment and decree, copies Ex.P2 and Ex.P3 respectively, were rendered, the learned trial Court would have dismissed the suit on the principle of resjudicata. So, these judgment and decree, copies Ex.P2 and Ex.P3 respectively, which have been obtained by concealment of facts of rendering of earlier judgment and decree dated 28.2.1972, were required to be set aside and the learned trial Court rightly did so and rightly upheld the judgment and decree dated 28.2.1972, which were validated by the judgment and decree, copies Ex.P4 and Ex.P5 respectively and by virtue of these judgment and decree, appellant No.1 became co-owner and co-occupier in land measuring110 kanals 17 marlas. So, the polemic regarding this land stood settled way back on 28.2.1972 and these judgment and decree were rightly resurrected by the judgment and decree copies Ex.P4 and Ex.P5 respectively and the learned trial Court rightly ignored judgment and decree, copies Ex.P2 and Ex.P3 respectively. Even the judgment and decree dated 2.5.1991, copies Ex.P2 and Ex.P3 respectively, were hit by principle of lis pendens as land, thereunder, was transferred during the pendency of suit between the parties, wherein, judgment and decree, copies Ex.P4 and Ex.P5 respectively were rendered and the judgment and decree dated 28.2.1972 could not be repelled for want of registration, as appellant No.1 Hakam Singh predecessor-in-interest, of the respondents had pre-existing right, therein. So, the judgment and decree dated 28.2.1972 were not required to be registered.” 11. Meaning thereby, the Courts below have rightly accepted the claim of the plaintiffs and negatived the claim of the defendants in this relevant connection. 12. Faced with this situation, the learned counsel for the appellant- Regular Second Appeal No.2717 of 2010 4 defendants has fairly conceded that he will not be able to pursue the present appeal any more, in view of decision of even date rendered in RSA Nos.2715 and 2716 of 2010. 13. In other words, the Courts below have taken into consideration and appreciated the entire relevant evidence brought on record by the parties in the right perspective and have recorded the indicated concurrent findings of fact. Such pure concurrent findings of fact based on the evidence, cannot possibly be interfered with by this Court, while exercising the powers conferred under section 100 CPC, unless and until, the same are illegal and perverse. No such patent illegality or legal infirmity has been pointed out by the learned counsel for the appellant-defendants, so as to take a contrary view, than that of well reasoned decision already arrived at by the Courts below, in this regard. Since no question of law, muchless substantial, is involved in the second appeal, in view of law laid down by Hon'ble Supreme Court in Kashmir Singh's case (supra), so, no interference is warranted, in the impugned judgments/decrees of the Courts below as contemplated under section 100 CPC, in the obtaining circumstances of the present case. 14. No other legal point, worth consideration, has either been urged or pressed by the learned counsel for the appellant-defendants. 15. In the light of the aforementioned reasons, as there is no merit, therefore, the instant appeal is hereby dismissed. (Mehinder Singh Sullar) 28.7.2010 Judge AS