RSA No.4459 of 2002 1 In the High Court of Punjab and Haryana at Chandigarh RSA No. 4459 of 2002 Date of decision: 10.01.2011 Bal Singh and others .....Appellants Versus Smt. Bhuri and Others .......Respondents CORAM: HON'BLE MRS. JUSTICE SABINA Present: Mr.Parveen Hans, Advocate, for the appellants Mr.Yashwinder Pal Singh,Advocate for respondent No.3 Mr. Sunil Panwar, Advocate for respondent No.5 **** SABINA, J. Plaintiffs had filed a suit for declaration to the effect that plaintiffs No.1 and 2 were owners in possession of 8652/25576 to the share of defendants to the extent of half share in equal share and plaintiff No. 3 is owner in possession of remaining half share i.e. 4326/25576 on the basis of family settlement and judgment and decree dated 26.7.1996. The case of the plaintiffs was that the plaintiffs No. 1 and 2 were nephews of defendants No. 1 to 3 and plaintiff No.3 is the brother of defendants No. 1 to 3. Plaintiffs No. 1 RSA No.4459 of 2002 2 to 3 are brothers of defendant No.4 and plaintiff No.3 is maternal uncle of defendant No.4. The property in dispute was joint property of the parties. In a family settlement arrived at between the parties, the defendants gave their share to plaintiffs. The judgment and decree dated 26.7.1996 passed in Civil Suit titled “ Sammat vs. Smt. Bhuri etc.” were illegal null and void. The said decree obtained by defendant No.5 was a result of fraud. Defendants No. 1 to 3 had not appeared before the Civil Court. Defendant No. 1 had taken thumb impression of defendant No. 1 to 3 on blank papers. Defendants No. 1 to 4 in their written statement admitted the claim of the plaintiffs. Defendant No.5 in his written statement averred that the suit property was not the ancestral property of the parties. No family settlement as alleged had taken place between the parties. Plaintiffs were not in possession of the suit land. Defendant No.5 and his brothers and mother had filed a civil suit for declaration qua land measuring 172 kanals 7 marlas situated in village Kutubpur and the same was dismissed by the trial Court vide judgment and decree dated 13.11.1975. In appeal, the parties arrived at a compromise and Ram Sarup, defendant relinquished 22 kanals of land for consideration of ` 6600/- in favour of defendant No.5. After the payment of the requisite money, defendant No.5 was put in possession of 22 kanals of land and had, thus, become owner in possession of khasra No. 47/12(4-0), 11 (7-4)13/1(2-0),8/2(3-5)3(5- 11). The revenue entries in this regard were liable to be corrected in favour of defendant No.5. Plaintiffs had earlier filed a suit for injunction on the basis of family settlement and the same was later RSA No.4459 of 2002 3 withdrawn by the plaintiffs. Defendant No.5 was impleaded as a plaintiff in the said suit but later he got himself transposed as defendants. The judgment and decree dated 26.7.1996 was legal and binding on the plaintiffs and defendants. 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 property as alleged?OPP 2. Whether the plaintiffs has no locus standi to file the present suit?OPD 3. Whether the suit is not maintainable in the present form?OPD 4.Whether the suit is collusive and based upon fraud?OPD 5.Whether the suit is bad for non-joinder and mis joinder of necessary parties?OPD 6.Whether the plaintiffs have no cause of action?OPD 7. Whether the suit is barred by limitation?OPD 8.Whether the plaintiff is estopped to file the present suit by his act and conduct?OPD 9. If issue No.1 is not proved whether the defendant No.5 is owner in possession of the suit property?OPD 10. Relief” However, additional issue No.1-A was framed on 23.12.1997 which reads as under:- “1-A Whether the decree and judgment dated 26.7.1996 is liable to be set aside, as alleged in the plaint?.OPP The trial Court dismissed the suit of the plaintiffs vide RSA No.4459 of 2002 4 judgment and decree dated 21.10.2008. The plea taken by defendant No.5 that he had become owner in possession of the suit property was also rejected. Aggrieved by the said judgment and decree, plaintiffs preferred an Appeal and defendant No.5 filed the cross objections. The Additional District Judge Hisar vide judgment and decree dated 20.8.2002 dismissed the appeal filed by the plaintiff and allowed the cross-objection filed by defendant No.5. Hence, the present appeal by the plaintiffs. After hearing the learned counsel for the parties, I am of the opinion that the instant appeal deserves dismissal. The case of the plaintiffs was that the suit property was ancestral property of the parties and in a family settlement defendants No. 1 to 3 had given their share in the suit property to the plaintiffs. Defendant No. 1 to 4 have admitted the claim of the plaintiffs but plaintiffs were required to establish their case that they had pre-existing right in the suit property and hence, a family settlement could be arrived between the parties. The Courts below, after appreciating the evidence led by the parties on record, have given a finding of fact that defendants No. 1 to 3 were exclusive owners of the suit property to extent of their share and hence, they could not relinquish their share in a family settlement as there was no occasion of any family dispute. As per the revenue record, defendants No. 1 to 3 were recorded as owners of the suit property to the extent of their share. In these circumstances, there was no pre-existing right in favour of the plaintiffs which would call for a family settlement between the parties. In these circumstances, the suit land could not be transferred in favour of the plaintiffs by way of RSA No.4459 of 2002 5 a consent decree. The plaintiffs had no locus standi to challenge the decree dated 26.7.1996 as the said suit was filed by defendant No.5 against Bhuri, Savitri and Bimla. The plaintiffs had no concern with the suit land. No substantial question of law arises in this appeal. Dismissed. ( Sabina ) Judge January 10,2011 arya