R.S.A.No. 4023 of 2005 (O&M) {1} In the High Court of Punjab and Haryana at Chandigarh R.S.A.No. 4023 of 2005 (O&M) Date of Decision:August , 2009 Smt. Savitri ---Appellant versus Jora Ram and others ---Respondents Coram: HON'BLE MRS. JUSTICE SABINA *** Present: Mr.Pritam Saini,Advocate, for the appellant Mr.Ranjan Lakhanpal, Senior Advocate, with Ms. Shumaila Parvez, Advocate for respondent No. 1. *** SABINA J. Plaintiff –Savitri had filed a suit for declaration and permanent injunction. Civil Judge ( Junior Division), Hisar vide judgment and decree dated 5.2.2003 dismissed the suit of the plaintiff. Aggrieved by the same, plaintiff preferred an appeal. District Judge, Hisar, vide judgment and decree dated 14.5.2006 dismissed the appeal of the plaintiff. Hence, the present appeal. The brief facts of the case as noticed by learned District Judge, R.S.A.No. 4023 of 2005 (O&M) {2} in paras 3 to 5 of its judgment are as under:- Tirkha Ram father of the plaintiff and defendants No. 2 to 4 and husband of defendant No. 5 was owner of 80 Kanal 3 Marlas of land situated in village Kirtan Tehsil and District, Hisar. Tirkha Ram died on 17.5.1992. The case of the plaintiff is that consequent on the death of Tirkha Ram, the plaintiff and defendants No. 2 to 4 became owners to the extent of 1.5th share each. It was pleaded that plaintiff was the owner and in possession of her share of the property. Defendant No. 1 is the Sharda-defendant No.4. It was pleaded that he was very clever and collusion with his mother and with a view to deprive the plaintiff and other defendants of their right and by practicing fraud and mis-representation produced a decree from the Court of Shri S.B.Sharma, the then Sub Judge, Hisar on 2.11.1987. It was pleaded that Tirkha had never signed or thumb marked any written statement. He has not engaged any counsel and the thumb impression on the written statement were fictitious. It was pleaded that no family settlement had taken place between Tirkha and defendant No. 1. Plea was also taken that no notice was issued and Tirkha never knew about the contents of the plaint. Plea was also taken that the suit property was ancestral in the hands of Tirkha qua the plaintiff. It was also pleaded that in case it was found that the power of attorney bore the thumb impressions of Tirkha, even then it did not have any effect because Tirkha was 80 years old and was not keeping good health could not distinguish between right and wrong and R.S.A.No. 4023 of 2005 (O&M) {3} was under the influence of defendant No. 1 It was pleaded that the cause of action arose when defendant No. 1 threatened to take possession of the property on the basis of the decree and mutation and then plaintiff came to know about the decree. The plaintiff made enquiries and came to know that the decree was procured. Plea was also taken that the decree was collusive. The plaintiff sought a decree for declaration that along with defendants No. 2 to 5 were owners in equal shares of the land in suit. Declaration was also sought that the decree was null and void and the mutation entered on the basis of the decree was without jurisdiction and did not affect the rights of the plaintiffs. 4 Defendants No. 1,2, 4 and 5 filed joined written statement contesting the suit. Several preliminary objections ere raised, namely, mis-joinder, non-joinder, locus standi, estoppels and res judicata. It was pleaded that defendant No. 1 was the grad son of Tirkha and Tirkha and Tulsa did not have a male issue, therefore, Sharda entrusted Jora Ram defendant No. 1 to Tirkha and Tulsa and since his birth defendant No. 1 was residing with his grand parent and it was Tirkha who had performed his marriage. It was denied that the decree was collusive or that any fraud or misrepresentation was practiced. It was pleaded that mutation was effected on the basis of the decree in `1987 and the plaintiff had not challenged the decree even after the expiry of seven years or during the life time of Tirkha. It was pleaded that the plaintiff was married and was R.S.A.No. 4023 of 2005 (O&M) {4} residing at Hisar therefore, her possession over the property did not arise. 5. Defendant No. 3 filed a written statement admitted the plaint to be correct but subsequently she filed an application to amend the written statement. It was pleaded that she was illiterate and her thumb impressions were obtained on blank papers, which were converted in to a written statement. In the amended written statement she took up the pleas taken up by the remaining defendants. On the pleadings of the parties, following issues were framed by the learned trial Court:- 6. Whether the plaintiff and defendants No. 2 to 5 are owners in possession of the equal share of the land in question? OPP 7. Whether the decree No. 759 dated 2.11.1987 passed in the court, civil suit titled Jora Ram vs. Tirkha Ram by the Court of Sh. S.P.Sharma, S.J.Hissar and on the basis of that mutation No. 1481 dated 27.8.1988 entered on the name of defendant No. 1 is wrong, against law and facts and based on fraud and mis- representation? OPP 8. Whether the suit is bad for non-joinder of necessary parties?OPD 9. Whether the plaintiff has no locus standi to file the present suit? OPD 10.Whether the suit is barred by principle of res R.S.A.No. 4023 of 2005 (O&M) {5} judicata?OPD 11.Relief. Learned counsel for the appellant has submitted that the Courts below had erred in dismissing the suit of the plaintiff-appellant. The decree, in question required registration. No family settlement , as alleged, had taken place. In support of his contention, learned counsel for the appellant has placed reliance on Shish pal vs. Vikram 1999(1) R.C.R. (Civil) 628, Sher Singh v,. Mahabir Singh 2002(3) Civil Court Cases 19 (P&H), Sudershan Kumar v. Raj Rani, 2003(3) Civil Court Cases 564 (P&H). Ajay Chaudhary v. Santosh Kumar and another 2003(3) P.L.J. 3,Brij Lal and another v. Smt. Pari Devi and others 2004(2) Civil Court Cases 202 and Nachhattar Singh and another v,. Jangir Singh and others 2005 (1) R.C.R. (Civil) 776 Learned counsel for respondent No. 1, on the other hand, has submitted that the decree, in question, had been rightly upheld by the court below as the same had been executed by Tirkha in favour of his grand son- Jora Ram. The property in question was self acquired property of Tirkha and he could dispose of the same in the manner he liked. The decree, in question, has been challenged by the appellant on the ground that it was a result of fraud and misrepresentation and required registration. Tirkha was not having a son. Plaintiff and defendant Nos. 2 and 3 are daughters of Tirkha. Defendant No. 5 -Tulsa Devi is the widow of Tirkha. Since Tirkha was not having any son, the property, in question could be termed as his self-acquired property. Tirkha had not suffered any decree in favour of any stranger but had suffered the same in favour of defendant No. 1 (his grand son). Both the courts below after R.S.A.No. 4023 of 2005 (O&M) {6} appreciating the evidence on record have given a categoric finding of fact that the the decree, in question was not a result of fraud or misrepresentation. Plaintiff had failed to establish that Tirkha was not produced in the Court. Plaintiff had also failed to establish her possession over the property in dispute. Rather from the revenue record i.e. Jamabandis Ex. D-11 to D-13 ownership and possession of Jora Ram is duly established. Grand mother of defendant No. 1 had also executed a Will in favour of defendant No. 1 wherein the decree suffered by Tirkha in his favour is mentioned. Sisters of the plaintiff also supported the case of defendant No. 1. DW-2 Sham sunder had deposed that Jora was got admitted in their school at Kirtan by his maternal grand father. This shows that Jora was being looked after by Tirkha. The decree in question, was passed in the year 1987 and mutation was sanctioned in the year 1988. Tirkha died in the year 1992. He did not himself challenge the decree nor the plaintiff had challenged the decree during the life time of her father. The decree, in question was a consent decree. Jora -defendant No. 1 had filed a suit for declaration that he was owner in possession of the suit land. Defendant -Tirkha in his written statement had admitted the claim of the plaintiff to be correct and on the basis of the same the suit of the plaintiff was decreed. The said fact is evident from the copy of the judgment placed on record as Ex. P-5. A perusal of the copy of the plaint mark 'A', placed on record in the suit filed by Jora Ram reveals that he had averred in the plaint that he was residing with defendant and about six years ago, defendant had given him the property in dispute in a family settlement and had also given possession of the property. Defendant in his written statement Mark 'B' admitted the said R.S.A.No. 4023 of 2005 (O&M) {7} contention and thus, decree in question was passed. The said decree by no stretch of imagination can be said to be a collusive decree. Since the decree did not create rights between the parties for the first time, it did not require any registration. There is no quarrel with the proposition of law settled by the judgments relied upon by the learned counsel for the appellants. However, the same are not application to the facts of the present case and fail to advance the case of the appellant. No substantial question of law arises in this appeal. Accordingly, the appeal is dismissed. (SABINA) JUDGE August , 2009 PARAMJIT