RSA No.281 of 2010 [1] IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. R.S.A. No. 281 of 2010 Date of Decision: 11 - 7 - 2011 Mahabir and others ....Appellants v. Balbir Singh ....Respondent CORAM: HON'BLE MR.JUSTICE KANWALJIT SINGH AHLUWALIA *** Present: Mr.K.C.Rajput, Advocate for the appellants. Mr.Harkesh Manuja, Advocate for the respondent. *** KANWALJIT SINGH AHLUWALIA, J. Hari Ram had three sons. In the present case, suit revolves around two sons of Hari Ram, namely, Daya Nand and Balbir Singh. Mahabir -plaintiff No.1 to the suit is son, Ram Rati - plaintiff No.2 is widow and Smt.Indro, Smt.Saroj and Smt.Sumitra - plaintiffs No.3 to 5 are daughters of Daya Nand. Daya Nand died on 31.1.2001. The present Regular Second Appeal has been instituted by the above-said plaintiffs. They failed before both the Courts below. Plaintiffs had filed a suit for declaration to the effect that the judgment and decree dated 21.2.1991 passed in earlier Civil Suit No.521 of 1991 by the Court of Shri Surinder Kumar, Sub Judge Ist Class, Panipat in favour of defendant- RSA No.281 of 2010 [2] respondent Balbir Singh is null and void and nonest in the eyes of law. Vide above-said judgment and decree dated 21.2.1991 which has been proved on record as Ex.P1, Daya Nand had admitted the claim of his brother Balbir Singh- defendant to the present suit and he was held owner in possession of 1/18th share of agricultural land, detail and description of which has been given in head note of the plaint. Plaintiffs had further prayed that the judgment and decree dated 21.2.1991, Ex.P1, be set aside, as the same was outcome of fraud and misrepresentation and furthermore Mutation No.695 dated 3.5.1991, on the basis of decree dated 21.2.1991, Ex.P1, be set aside being illegal, nonest in the eyes of law and further a permanent injunction be issued in favour of the plaintiffs restraining the defendants from alienating the suit land. It was pleaded in the suit that the plaintiffs being legal heirs of Daya Nand succeeded to his estate after his death. Late Daya Nand and his other five brothers were separate in mess and residence. They had also partitioned the suit land by way of private arrangement but the said partition was not sanctioned by meets and bounds by the revenue court and, thus, in the revenue record, it was reflected as a joint holding. It was further pleaded in the suit that after the death of Daya Nand, his brother defendant-Balbir Singh started asserting his possession and created hindrance in the way of plaintiffs regarding the use and enjoyment of the suit land which necessitated the plaintiffs to approach the Halqa Patwari for collecting the copies of revenue record. They were greatly surprised to know that 4 Bighas 2 Biswas of land equal to 1/18th share out of the land of the share of late Daya Nand was shown transferred in the name of defendant under the colour of judgment and decree dated 21.2.1991, Ex.P1, passed in Civil Suit No.521 of 1991, titled RSA No.281 of 2010 [3] as, `Balbir Singh v. Daya Nand'. Plaintiffs made inquiries and found that neither Daya Nand appeared in the Court in those proceedings nor admitted the claim of the defendant, who was plaintiff to that suit. The impugned decree was passed on the basis of written statement. It was further pleaded that the judgment and decree dated 21.2.1991 is based on non-existence of facts and same was the result of fraud and misrepresentation of facts played by the defendant with the ulterior motive to grab the land of Daya Nand. It was further averred that there was no occasion for Daya Nand and defendant Balbir Singh to arrive at any family settlement in August, 1990. Upon notice of the suit, defendant-Balbir Singh caused appearance and filed the written statement. In the written statement, it was stated that Daya Nand during his life time for 10 years long time did not challenge the judgment and decree dated 21.2.1991 and thus, the suit was barred by limitation, principle of res judicata and was liable to be dismissed for deficiency in the court fee. On merits, it was stated that a family settlement was arrived at in August, 1990, due to which defendant-Balbir Singh became owner of the suit property. The above-said family settlement arrived at between Balbir Singh-defendant and Daya Nand (since deceased), was affirmed vide judgment and decree dated 21.2.1991 and on the basis thereof mutation was sanctioned on 3.5.1991 by the Assistant Collector IInd Grade, Panipat. After conclusion of the pleadings, the trial Court had drawn the following issues:- 1. Whether the plaintiffs are entitled to the permanent injunction sought? OPP 2. Whether the plaintiffs are estopped from the present suit? OPD RSA No.281 of 2010 [4] 3. Whether the plaintiffs' suit is barred by principle of res judicata? OPD 4. Relief. Ram Rati widow of Daya Nand plaintiff-appellant No.2 tendered her affidavit Ex.PW1 in examination-in-chief. In cross- examination, she admitted that her husband had not challenged the impugned decree during his life time and they had challenged the same after waiting for sufficient long time. She stated that they filed the present suit for setting aside the judgment and decree dated 21.2.1991 after six years. They had also given an application to the police also. She further stated that it is correct that both the brothers had arrived at a family partition. She also admitted that she is not aware whether the decree was fabricated. Satpal, Election Kanungo appeared as PW2. Balbir Singh defendant-respondent appeared as DW1 and tendered his affidavit as Ex.DW1/A. Jasbir Singh, an official of Judicial Record Room, Panipat appeared as DW2 and produced record of case titled as, `Balbir Singh v. Daya Nand', decided on 21.2.1991. Sukhbir Singh Mann, Advocate appeared as DW3. He stated that he was practising at Panipat Courts. He identified his signatures on the written statement filed by Daya Nand. He proved certified copy of judgment Ex.D2. He further stated that he had prepared the written statement, on the instructions of Daya Nand. According to this witness, the contents of the written statement were read over to Daya Nand. After hearing the same and found to be correct, he appended his signatures. He also proved signatures of Daya Nand on the Vakalatnama. Om Parkash DW4 stated that he had two sisters Murti and Ram RSA No.281 of 2010 [5] Rati. His sister Murti was married with Balbir Singh and other one Ram Rati-plaintiff PW1 was married with Daya Nand. He stated that in the year 1990, the brothers had separated. The trial Court decided issue No.1 against the plaintiffs and in favour of the defendant. The trial Court relied upon the testimony of DW3 Sukhbir Singh Mann, Advocate and held that the written statement was signed by Daya Nand. Plaintiffs had not examined any expert to prove that on the written statement and the Vakalatnama, the signatures were not of Daya Nand. The Court further held that Daya Nand survived from 1991 to 2001. He had not challenged the judgment and decree dated 21.2.1991. Plaintiffs challenged the judgment and decree dated 21.2.1991 in the year 2006 and, therefore, the same was time barred. Thus, issue No.3 was also decided against the plaintiffs and it was held that the suit was time barred. Issue No.2 was decided in favour of the defendant and against the plaintiffs. No relief was granted to the plaintiffs and the suit was dismissed. The lower Appellate Court concurred with the findings returned by the trial Court. The lower Appellate Court after evaluating the evidence held that indeed family settlement was arrived at between the parties and Daya Nand himself had appeared in the suit filed by his brother Balbir Singh. The Court relied upon the testimony of DW3 Sukhbir Singh Mann, Advocate to hold that Daya Nand himself had signed the Vakalatnama and the written statement, therefore, the stand of the plaintiff-appellants that the fraud was committed by the defendant was discarded. The Court further held that since the decree was passed on the basis of a family settlement, no registration was required. The Court also relied upon the evidence that Daya Nand was a Government employee and he cannot be termed to be a RSA No.281 of 2010 [6] simpleton. I have heard Mr.K.C.Rajput, learned counsel for the plaintiff- appellants and Mr.Harkesh Manuja, learned counsel for the defendant- respondent. If the evidence of Ram Rati PW1 is taken into consideration in totality, it cannot be said that decree dated 21.2.1991, Ex.P1, was the result of fraud and misrepresentation. Not only Daya Nand was a Government employee, both the brothers Balbir Singh-defendant and Daya Nand were married to two sisters Murti and Ram Rati. Therefore, it was but natural for the parties to arrive at a family settlement. Hence, it was rightly held by the trial Court that mere bald assertion of Ram Rati that Daya Nand had not signed the written statement and the Vakalatnama cannot be given credence as no handwriting expert was examined. Plaintiff-appellants for the reasons well known to them had not taken the signatures on the written statement and the Vakalatnama compared with the signatures of Daya Nand appended on any other document. Immediately after the decree was obtained on 21.2.1991, mutation was sanctioned on 3.5.1991. Daya Nand died in the year 2001. For 10 years, he had not challenged the judgment and decree dated 21.2.1991, Ex.P1. Further suit was instituted in the year 2006, five years after the death of Daya Nand. Thus, it cannot be held that some body had impersonated Daya Nand for obtaining judgment and decree dated 21.2.1991, Ex.P1. Once both the Courts below had given a concurrent findings of fact that family settlement was arrived at between the parties, judgment of Hon'ble Apex Court in Bhoop Singh v. Ram Singh, AIR 1996 SC 196 is not attracted to the facts of the present case. It has also come in evidence that entire land belonged to common ancestral Harphool which RSA No.281 of 2010 [7] devolved upon Maman and Hari Ram and later between the sons of Hari Ram. Therefore, as observed in various judicial pronouncements, this Court has to take a liberal view in favour of a family settlement. Thus, no substantial question of law arises which could merit consideration of this Court. The concurrent findings of facts given by both the Courts below are sufficient to say that counsel for the plaintiff-appellants has failed to formulate any point of law, much less the substantial one, which merits attention of this Court. Hence, there is no merits in the present appeal and the same is hereby dismissed. ( KANWALJIT SINGH AHLUWALIA ) July 11, 2011. JUDGE RC