Regular Second Appeal No.50 of 2009 1 IN THE HIGH COURT OF PUNJAB & HARYANA, CHANDIGARH R.S.A. No. 50 of 2009 (O&M) Date of Decision: July 23, 2009 Balram and others ...........Appellants Versus Deep Chand and others ..........Respondents Coram: Hon'ble Mrs. Justice Sabina Present: Mr.V.K.Bali, Advocate for the appellants ** Sabina, J. Plaintiffs filed a suit for declaration, joint possession with a consequential relief for permanent injunction. The said suit of the plaintiff was dismissed by the Civil Judge (Senior Division) Kurukshetra vide judgment and decree dated 28.7.2007. Aggrieved by the same, plaintiff filed an appeal and the same was dismissed by the Additional District Judge, Kurukshetra vide judgment and decree dated 31.10.2008. Hence, the present appeal. The case of the parties, as noticed by the learned Additional District Judge, in para 2 of its judgment reads as under:- “ 2. Brief facts of the plaintiffs' case are that the plaintiffs' are owners in possession of land measuring 87 kanals 18 marlas as Regular Second Appeal No.50 of 2009 2 per jamabandi for the years 1994-95, situated in village Sarai Sukhi, Tehsil Thanesar, District Kurukshetra, fully detailed and described in para no.1 of the plaint. The pedigree table showing relationship of the parties inter se is reproduced as under:- Kesa Deep Chand Baru Baru Ram Molar (deft.No.1) (plaintiff No.1) (died) (died) Mehro Ajmer ______________________________ (wife) (son) Jai Ram Bai Ram (deft.No.3) (plaintiff no.3) Ram Charan Ram Sarup Balwant Singh Jarnail Singh (deft.No.3) (deft.No.5) (deft.No.4) (deft.No.2) It is stated that in the last week of May, 1999 they were shocked to learn from Halqa Patwari that defendants had obtained forged and fabricated decree qua the land measuring 17 kanals 6 marlas, described in para 1 of the plaint, out of the total land measuring 87 kanals 18 marlas by dint of judgment and decree passed by the Court of Shri Y.S.Rathore, the then learned Sub Judge IIIrd Class, Kurukshetra on 4.1.1994 in Civil Suit No. 881 of 1993 titled as Deep Chand vs. Bhartu and subsequently by dint of judgment and decree passed by the court of Mrs. R.R.Garg, the then learned Senior Sub Judge Kurukshetra on 28.3.1995 in Civil Suit No.80 of 1995 titled as Jarnail Singh and others vs. Deep Chand. The judgments and decrees were obtained fraudulently and illegally. Defendant No.1, who was cunning and greedy Regular Second Appeal No.50 of 2009 3 person, with mala fide intention to grab the property in dispute kept the decree dated 4.1.1994 secret from the plaintiffs as the defendants in connivance with each other had obtained another decree suffered by defendant No.1 in favour of defendants no. 2 to 5 on 28.3.1995. Mutation No. 904 dated 15.5.1995 on the basis of judgment and decree dated 4.1.1994 was secretly obtained and later on mutation no. 922 dated 14.6.1996 on the basis of judgment and decree dated 28.3.1995 was also got sanctioned in favour of defendants no.2 to 5 secretly without the knowledge of the plaintiffs. When the plaintiffs learnt about the fraud committed, a Panchayat was convened and defendants were requested to get judgment, decree and mutation declared null and void but they refused. Hence, the suit for seeking a decree for declaration to the effect that the judgment and decree dated 4.1.1994 passed by the Court of Shri Y.S.Rathroe, the then learned Sub Judge IIIrd Class, Kurukshethra in Civil Suit No. 881 of 1993 titled Deep Chand versus Bhartu, mutation no. 904 dated 15.5.1995 sanctioned on the basis of judgment and decree; judgment and decree passed in civil suit no.80 of 1995 on 28.3.1995 in civil suit titled Jarnail Singh & Others vs. Deep Chand passed by the Court of Mrs. R.R.Garg, the then learned Senior Sub Judge, Kurukshetra, mutation no.922 dated 14.6.1996 sanctioned on the basis of the impugned judgment and decree are illegal, null and void and not binding on the rights of the plaintiffs and further a decree for joint possession of the suit land with consequential relief of permanent injunction for restraining the Regular Second Appeal No.50 of 2009 4 defendants from dispossessing the plaintiffs from the suit property or interfering in the suit land and from alienating, transferring mortgaging, leasing the suit land or creating any charge or encumbrance on the suit land". On the pleadings of the parties, the following issues were framed by the trial Court:- “1. Whether the plaintiffs are owners in possession of the suit land as alleged in the plaint?OPP 2. If issue No.1 is proved in affirmative, whether the judgment dated 4.1.1994 in civil suit no.881/93 titled Deep Chand vs. Bhartu is illegal, null and void as per the grounds mentioned in the plaint?OPP 3. Whether the subsequent decree dated 28.3.1995 passed in civil suit no.80/95 alongwith mutation no.922 and 904 is also liable to be set aside as alleged in the plaint and whether the plaintiffs are also entitled for consequential relief of permanent injunction as prayed for? OPP 4. Whether the suit of the plaintiff is time barred ?OPD 5. Whether the present suit is not maintainable in its present form? 6. Whether the plaintiffs are estopped by their own act and conduct from filing of the present suit and concealed the true and material fats?OPD 5. Relief.” After hearing the learned counsel for the appellant, I am of the opinion that this appeal is devoid of any merit. Plaintiffs claimed themselves to be owner in possession of Regular Second Appeal No.50 of 2009 5 the suit land. The Civil Court decree passed in the Civil Suit No. 80 of 1995 dated 28.3.1995 in suit titled `Jarnail Singh and others vs. Deep Chand' was a result of fraud. The decree dated 4.1.1994 passed in Civil Suit No. 881 of 1993 titled as `Deep Chand vs. Bhartu' was also a result of fraud. Mutation with regard to the said decrees were sanctioned without the knowledge of the plaintiffs. Defendant No.1- Deep Chand in his written statement admitted the contents of the plaintiffs. Hence, the learned counsel for the appellants has strenuously argued that since the defendant No.1 had admitted the case of the plaintiffs , the suit filed by the plaintiffs was liable to be allowed. However, the admission made by defendant No.1 in his written statement cannot be said to be binding on the other defendants. Moreover, he had not offered himself for cross-examination. Defendants No. 3 to 5, on the other hand, have contested the suit of the plaintiffs and have stated that the decrees in question had been challenged after the expiry of period of three years and hence, the suit was liable to be dismissed. Defendant No.1 who had 1/3rd share in the land measuring 51 kanal 2 marla and which was fraudulently got transferred by the plaintiffs in favour of plaintiffs No. 2 and 3 vide judgment and decree dated 22.2.1991. The said dispute was later settled in a family settlement and Bhartu transferred 17 kanal 6 marla of land in favour of defendant No.1. Deep Chand had remained owner of the suit property on the basis of family settlement in December, 1994 he had transferred the same in favour of defendants No. 2 to 5 in equal shares by virtue of Civil Court decree dated 28.3.1995. Defendant No.1 never challenged the decree in question by Regular Second Appeal No.50 of 2009 6 filing the Civil suit. The only ground available to defendant No.1 to challenge the decree in question was fraud or misrepresentation. However, the decrees on the said grounds were never challenged by defendant No.1. At the time of sanction of mutation No. 904 Exhibit P7, the presence of Bhartu Ram and Deep Chand is duly mentioned. PW3-Mani Jain examined the questioned thumb impressions of Bhartu on the written statement filed before the Court and Vakaltnama in the suit decided on 4.1.1994 titled as `Deep Chand vs. Bhartu' and compared them with the standard thumb impression of Bhartu . As per the opinion of the hand writing expert the disputed thumb impressions on the statement before the Court were different from the standard thumb impression of Bhartu . Sh.Ram Dia, Advocate appeared in the witness box as DW5 and he deposed that he had represented Bhartu in the Suit No. 881 of 1993 and identified the thumb impressions of Bhartu on the Vakalatanama and written statement. He deposed that Bhartu had appeared in the Court and had thumb marked his statement. He identified Bhartu before the Court. In these circumstances, the opinion of the handwriting expert has been rightly brushed aside by the Courts below and the defendants had been successful in establishing that Bhartu had appeared in the Court and had suffered a statement in the earlier suit. More over thereafter, both Bhartu and Deep Chand had appeared at the time of sanction of mutation. In these circumstances, the Courts below rightly held that the decrees in question were not illegal, null and void. Since the suit had been filed after the expiry of period of three years from the passing of the decree, the suit filed by the plaintiffs was rightly held to be time barred. Regular Second Appeal No.50 of 2009 7 No substantial question of law arises in this case which would warrant interference by this Court. Accordingly, this appeal is dismissed. ( Sabina ) Judge July 23, 2009 arya