R. S. A. No. 1877 of 2011 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Case No. : R. S. A. No. 1877 of 2011 Date of Decision : April 29, 2011 Ram Phal .... Appellant Vs. Birmati and another .... Respondents CORAM : HON'BLE MR. JUSTICE L. N. MITTAL * * * Present : Mr. Vivek Khatri, Advocate for the appellant. * * * L. N. MITTAL, J. (Oral) : Defendant Ram Phal, having failed in both the courts below, has filed the instant second appeal. Respondent no.1-plaintiff Birmati filed suit against defendant- appellant alleging that plaintiff is owner in possession of 18 kanals 12 marlas land in suit being 1/8th share of 148 kanals 19 marlas land. The defendant is real brother of the plaintiff. The defendant obtained consent decree dated 17.03.1993 in Civil Suit No.1436 against the plaintiff herein by impersonation and fraud and also got sanctioned mutation No.270 on the basis of said decree. The plaintiff alleged that she never appeared in Civil R. S. A. No. 1877 of 2011 2 Suit No. 1436 nor admitted the claim of defendant herein, who was plaintiff in that suit nor filed any written statement nor made any statement in this regard in that suit. There was no family settlement between the parties nor there could be any such family settlement, as alleged by defendant herein, in the previous suit filed by him. The defendant broadly denied the plaint allegations. He admitted that plaintiff was earlier owner of the suit land, but she never remained in possession thereof. Impugned consent decree and mutation are legal and valid. Plaintiff herein herself appeared in the previous suit and admitted the claim of defendant herein, who was plaintiff in that suit. Various other pleas were also raised. Learned Civil Judge (Junior Division), Hansi, vide judgment and decree dated 05.05.1998, decreed the plaintiff's suit. First appeal preferred by the defendant has been dismissed by learned Additional District Judge, Hisar, vide judgment and decree dated 01.03.2011. Feeling aggrieved, defendant has preferred the instant second appeal. It may be added that during pendency of first appeal, Satyawan – respondent no.2 herein moved application under Order 1 Rule 10 of the Code of Civil Procedure for impleading him as party to the appeal alleging that he had purchased the suit land from original plaintiff Birmati, vide sale deed dated 18.05.1998 i.e. after decision by the trial court and before filing of first appeal. The said application was dismissed by the first appellate R. S. A. No. 1877 of 2011 3 court and Civil Revision against the same was also dismissed by this Court, but Hon'ble Supreme Court, vide order dated 29.07.2010, allowed Satyawan – respondent no.2 to be impleaded as party to the first appeal and he was accordingly impleaded as party to first appeal. I have heard learned counsel for the appellant and perused the case file. The plaintiff has led sufficient cogent evidence to depict that the consent decree in question was not suffered by her, but was obtained by the defendant-appellant by impersonation. In this regard, she has herself stepped into the witness-box and made statement accordingly. Even her solitary statement in this regard was sufficient to prove the negative onus placed on her that she had not suffered the said decree. However, in addition to it, the plaintiff has examined finger-print expert Yashpal Chand Jain (PW-4), who has opined that alleged thumb impressions of Birmati on written statement and statement made in the Court in the previous Suit No.1436 do not match with her specimen thumb impressions. Science of finger-print comparison is a perfect science. No finger-print expert has been examined by the defendant to contradict or rebut to the report of plaintiff's finger-print expert witness. It is thus amply proved that Birmati – plaintiff herein did not suffer the consent decree in question and the same was obtained by the defendant herein by impersonation of Birmati. Learned counsel for the appellant contended that specimen R. S. A. No. 1877 of 2011 4 thumb impressions of the plaintiff for purpose of comparison by expert were not taken in the presence of the defendant. The contention, although apparently attractive, is completely meritless in the facts and circumstances of the instant case. Firstly, the defendant was at liberty to examine his own finger-print expert as witness to depict that alleged thumb impressions of Birmati on written statement and statement made in the Court in Suit No.1436 matched with her specimen or standard thumb impressions. However, the defendant did not do so for obvious reasons because he very well knew that the said thumb impressions in question had not been affixed by Birmati. Consequently, very strong adverse presumption arises against the defendant. Secondly, even during arguments in the trial court, plaintiff offered to the defendant that he could examine any finger-print expert of his choice to compare the disputed thumb impressions of Birmati on the written statement and statement made in the Court in Suit No.1436 with her specimen/standard thumb impressions, but for obvious reasons, the defendant did not accept the said offer. In addition to the aforesaid, the defendant did not examine as witness even the Advocate, who represented Birmati in Suit No. 1436. Learned counsel for the appellant vehemently contended that plaintiff being out of possession, suit for declaration and permanent injunction only is not maintainable being barred by Section 41 (h) and proviso to Section 34 of the Specific Relief Act, 1963. It was pointed out R. S. A. No. 1877 of 2011 5 that plaintiff herself has admitted that she never cultivated the suit land and therefore, she is out of possession. Reliance in support of aforesaid contention has been placed on judgment of this Court in the case of Devi Lal vs. Shokaran and another reported as 2011 (1) Law Herald (P&H) 549 and judgment of Hon'ble Supreme Court namely Vinay Krishna vs. Keshav Chandra and another reported as AIR 1993 Supreme Court 957. I have carefully considered the contention, but the same is unacceptable in the facts and circumstances of the instant case. The plaintiff is co-sharer in the joint land measuring 148 kanals 19 marlas to the extent of 1/8th share. Possession of other co-sharers would also be deemed to be possession of plaintiff co-sharer as well. In addition to it, it cannot be said that plaintiff was not in possession of the suit land. She stated that she got the suit land cultivated from her brothers on batai. Consequently, she cannot be said to be out of possession of the suit land. The plaintiff being married woman, is residing in her matrimonial home in a different village and therefore, she had to get the suit land cultivated through some one and she was getting it cultivated through her brothers, and therefore, it cannot be said that she was out of possession. Consequently, suit for declaration and injunction without claiming the relief of possession is very much maintainable in the instant case. Learned counsel for the appellant next contended that sale in favour of respondent no.2 is hit by doctrine of lis pendens. Reliance in R. S. A. No. 1877 of 2011 6 support of this contention has been placed on five judgments namely Jati Ram Saini vs. Prithi alias Sansi and others reported as 1996 P. L. J. 339, Mohammad Aleek vs. Maqsood Alam and others reported as 1989 AIR (Raj) 43, Radhashyam Routray vs. Puranjan Mohapatra and others reported as AIR 1987 Orissa 142, Inderjeet Wadhwa vs. Jagjit and another reported as AIR 2005 Punjab and Haryana 216 and Pritam Singh and others vs. Virsa Singh reported as 1990 P. L. J. 71. It was also contended that during pendency of the first appeal, plaintiff effected compromise with defendant on 07.12.1998 and made statement that first appeal be allowed and consent decree in question be upheld and suit filed by plaintiff herein be dismissed. Application for withdrawal of the suit was also moved, but the same was dismissed. It was contended that in view of compromise effected by the plaintiff and in view of application moved by her for withdrawal of the suit, the suit should have been dismissed. Reliance in support of this contention has been placed on three judgments i.e. a judgment of this Court in the case of Baljit Singh vs. Ravinder Singh and others reported as 1979 P. L. J. 196, a judgment of Andhra Pradesh High Court namely Bijivemula Venkata Subba Reddy vs. Jangam Satya Babu reported as 2010 (6) R. C. R. (Civil) 364 and also a judgment of Kerala High Court in the case of Ammini Kutty and others vs. George Abraham reported as 1987 AIR (Kerala) 246. I have carefully considered the aforesaid contentions, but the R. S. A. No. 1877 of 2011 7 same, although attractive on first blush, are completely unacceptable and devoid of force. Respondent no.2 got himself impleaded as party to the first appeal by taking legal steps up to Hon'ble Supreme Court to safeguard his interest because he very well knew that his vendor i.e. plaintiff Birmati, who is sister of the defendant, could collude with him after sale of the suit land being left with no right, title or interest therein. Consequently, any compromise effected on 07.12.1998 by plaintiff Birmati with the defendant- appellant is completely meaningless and has no value because Birmati herself was left with no right, title or interest in the suit land having already sold it to the defendant. Consequently, neither the compromise effected by the plaintiff with the defendant nor the application moved by the plaintiff for withdrawal of the suit could be accepted or acted upon. On the contrary, alleged compromise between plaintiff Birmati and her brother defendant- appellant Ram Phal would simply depict dishonesty not only of the defendant-appellant, but also of the plaintiff-respondent no.1. The plaintiff, after succeeding in the trial court, sold the suit land to respondent no.2, and thereafter, dishonestly colluded with her brother defendant-appellant by effecting alleged compromise so as to deprive the plaintiff's vendee- respondent no.2 of the suit land. This conduct of the plaintiff has to be strongly depricated. For the reasons aforesaid, I find no merit in the instant second appeal. Concurrent finding recorded by both the courts below against the R. S. A. No. 1877 of 2011 8 defendant-appellant and in favour of the plaintiff is fully justified by the evidence on record. The said finding is not shown to be perverse or illegal in any manner nor it is based on misreading or misappreciation of evidence. Consequently, the said finding does not call for interference in exercise of second appellate jurisdiction. No question of law, much less substantial question of law, arises for determination in the instant second appeal. Before parting with the order, it has to be observed that stream of administration of justice has been polluted by the defendant-appellant herein by obtaining the consent decree in question by impersonation of the plaintiff herein. The defendant herein played fraud not only on the plaintiff herein, but also on the Court by obtaining the consent decree in question by impersonation of the plaintiff herein. Such abuse of the process of Court has to be curbed with a very strong hand. The instant second appeal is not only meritless, but is also completely frivolous. The defendant-appellant wants to perpetuate the wrong committed by him in obtaining the consent decree in question by impersonation of the plaintiff herein. Litigants cannot be allowed to indulge in such act of fraud and abuse of process of Court thereby gravely affecting the administration of justice adversely. Such litigants should not be allowed to escape unpunished for their sins so as to curb this tendency and to discourage potential litigants intending to do so. If appropriate action is not taken against such litigants, other potential litigants would feel encouraged to do so with impunity. If this menace is R. S. A. No. 1877 of 2011 9 not curbed, public would lose faith in system of administration of justice. Accordingly, I am of the considered view that not only exemplary cost has to be imposed on the defendant-appellant to curb this evil, but also, his prosecution has to be ordered. It is prima facie manifest from the record that the defendant- appellant committed offence of perjury in the instant case by giving false evidence regarding consent decree in question said to have been suffered by the plaintiff herein herself. Defendant herein also committed offence of impersonation and forgery and other related offences in getting the impugned consent decree passed because written statement on behalf of plaintiff herein, who was defendant in the previous Suit No.1436, was forged and the same was used as genuine one and plaintiff herein was also impersonated in that suit while making statement in the Court to suffer the said consent decree. It is, therefore, expedient, in the interest of justice, to lodge criminal complaint against the defendant-appellant herein for the offences committed by him by exercising power under Section 340 of the Code of Criminal Procedure. Accordingly, the instant second appeal is dismissed with exemplary cost of Rs.50,000/- to be deposited by the defendant-appellant with the Registry of this Court within one month from today, failing which the case shall be listed for this purpose. Registrar (General) is directed to file criminal complaint in R. S. A. No. 1877 of 2011 10 competent Court under Section 340 of the Code of Criminal Procedure against the defendant-appellant for the offences prima facie committed by the defendant, as noticed hereinbefore. The concerned Magistrate, in whose Court the complaint is filed, may, if deemed necessary, hold further inquiry or investigation. April 29, 2011 ( L. N. MITTAL ) monika JUDGE