R.S.A.No.2556 of 2009 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Misc. No. 7606-C of 2009 and Civil Misc. No. 7607-C of 2009 and Regular Second Appeal No. 2556 of 2009 Date of decision: 15th July, 2009 Ram Lal(through his LR's) ......Appellant Versus Bhim Sain and others ......Respondents Before: HON'BLE MR. JUSTICE RAJIVE BHALLA Present: Mr. P.S.Jammu, Advocate for the appellant. RAJIVE BHALLA, J. Civil Misc. NO. 7606-C of 2009 For the reasons stated in the application, the delay of 277 days in refiling the present appeal is condoned. C.M., stands disposed of accordingly. Civil Misc. No. 7607-C of 2009 Prayer in this application is for impleading the legal heirs of Ram Lal-appellant, mentioned in para 2 of the application, who is stated to have been passed away on 15.01.2009, for the sole purpose of this appeal. C.M is allowed subject to all just exceptions for the purpose of this appeal only. R.S.A.No.2556 of 2009 The appellants, who are the legal representatives of the appellant-Ram Lal(deceased) challenge the correctness of the judgments and decrees dated 9.10.2007 and 31.05.2008, R.S.A.No.2556 of 2009 2 passed by the Civil Judge(Senior Division), Sirsa, and the Additional District Judge, Sirsa, dismissing their suit and their appeal, respectively. The Plaintiff-Ram Lal(since deceased), filed a suit, praying for grant of declaration that the judgments and decrees dated 25.04.1998 and 4.01.1996 passed by the then Civil Judge (Junior Division) Sirsa, are null and void. The plaintiff alleged that in order to maintain peace and harmony in his family, consisting of his wife, a daughter and four sons, they arrived at an oral family settlement whereby, 67 kanals and 11 marlas of land was given to Bhim Sain and Sham Sunder defendant-respondents nos. 1 and 2 and 44 kanals and 13 marlas of land was given to performa defendant-respondents no. 3 and 4. The remaining land measuring 32 kanals and 15 marlas was retained by the plaintiff and his wife. The family settlement also provided that during their life time, they would remain absolute owners in possession of 32 kanals and 15 marlas of land . In order to give effect to the family settlement, suits were filed and decrees were passed in accordance with the family settlement. Ram Lal alleges that at the behest of his children, he requested Bhim Sain respondent no. 1 to prepare a Will bequeathing his 32 kanals and 15 marlas of land, after his and his wife's demise to his children in equal shares. Bhim Sain and respondent no. 2 however, played a fraud and obtained a collusive decree dated 25.04.1998 with respect to this land. It is alleged that the plaintiff never engaged any counsel, did not appear before any R.S.A.No.2556 of 2009 3 court, did not sign any paper, did not make any statement in favour of Bhim Sain and respondent no. 2 and did not suffer any decree in their favour. It was therefore, prayed that this judgment and decree has been obtained by fraud, the suit be decreed. The defendant/respondent no. 1 filed a written statement raising objections as to maintainability, estoppel etc. On merits, it was pleaded that the impugned judgments and decrees were passed with the consent of Ram Lal. The story, as set out in plaint has been set up at the behest of the other parties, is false and incorrect as Ram Lal appeared before the courts and made a statement conceding the averments in plaint. Ram Lal signed his statement which was verified by his counsel and therefore, the judgments and decrees cannot be set aside. The other respondents admitted the claim of Ram Lal. On the basis of the pleadings, the courts below framed the following issues: “1. Whether the plaintiff is entitled for declaration to the effect that the plaintiff is owner in possession of the land measuring 29 kanals 19 marlas, as detailed in the head note of the plaint, as per jamabandi for the year 1991-1992, situated in village Bapp?OPP 2. Whether the judgment and decree dated 25.04.1998 in Civil Suit no. 1278-C of 1997, titled as Bhim Sain and another versus Ram Lal, R.S.A.No.2556 of 2009 4 passed by Ms. Shashi Bala Chauhan, Civil Judge (Junior Division), Sirsa, are wrong, incorrect, against law and facts and the result of fraud and concealment of facts and are liable to be set aside?OPP 3. Whether the plaintiff is entitled for consequential relief of permanent injunction restraining the defendants no. 1 and 2 into the peaceful ownership and cultivating possession of the plaintiff over the suit land, in any manner, on the basis of this impugned judgment and decree?OPP 4. Whether the present suit is not maintainable in the present form?OPD 5. Whether the decrees and judgments under challenge were passed on the basis of compromise in between the plaintiff and the defendant and so, the suit is hit by Order 23 Rule 3 of CPC?OPD 6. Whether the plaintiff is estopped by his own act and conduct to file the present suit?OPD 7. Relief. “ After considering the pleadings, the evidence adduced and the arguments addressed, the suit was dismissed. The trial court held that Ram Lal had failed to establish his plea of fraud as R.S.A.No.2556 of 2009 5 he appeared along with his counsel, filed a written statement and then made a statement accepting the correctness of the averments in the plaint. Aggrieved by the aforementioned judgment and decree, the appellant filed an appeal. Vide judgment and decree dated 31.05.2008 the Additional District Judge, Sirsa, dismissed the appeal. Counsel for the appellants submits that respondent no. 1 has played a fraud upon Ram Lal and his other brothers and obtained the impugned judgment and decree by perpetuating a fraud. The findings recorded by the courts below, are perverse and contrary to the evidence on record. The courts below have failed to appreciate that Ram Lal had already executed a will dated 18.01.1995 in favour of his sons and therefore, there was no need for him to suffer a decree in favour of respondent no. 1. It is submitted that the decree is a fraudulent transaction, particularly in view of the fact that Ram Lal had already transferred land to his sons. It is further submitted that respondent no. 2, who was a party to the fraudulent judgment and decree, has accepted the correctness of the appellants' claim and therefore, the courts below should have decreed the suit. It is submitted that in view of the errors in the impugned judgments and decrees, the following substantial questions of law arise for consideration: “1. Whether the admission of the contesting respondent/defendant no. 2 is not admissible in R.S.A.No.2556 of 2009 6 the evidence? 2. Whether the Registered Will prevail the collusive decree? 3. Whether the impugned judgments and decrees passed by the courts below are liable to be set aside? 4. Whether the impugned judgment and decree are perverse and arbitrary to law and facts on the file? 5. Whether the judgment and decree in question are contrary to evidence on record and whether evidence has been misread? 6. Whether the impugned judgments and decrees are hit by ruling of the Hon'ble Supreme Court and other Hon'ble Courts?” I have heard counsel for the appellants and carefully perused the judgments and decrees passed by the courts below. Both the courts below, have recorded concurrent findings of fact that Ram Lal has failed to establish his plea that the judgment and decree dated 25.04.1998, passed by the then Civil Judge (Junior Division) Sirsa, was obtained by fraud. It has been held that Ram Lal, filed a written statement and made a statement, before the court, admitting the claim set out in the plaint. By alleging that his signatures were taken by his counsel on blank papers, Ram Lal, in essence, admitted his signatures on the R.S.A.No.2556 of 2009 7 written statement.. It would be necessary to mention here that respondent no. 1 has proved the execution of another registered will dated 14.10.1997, Ex.D-W 1/A, vide which Ram Lal cancelled the Will dated 18.01.1995 and bequeathed his land, tractor etc., to respondent nos. 1 and 2 with a stipulation that respondent no.1 would get 6 kanals of land more than respondent no. 2. The Will bears the photograph of Ram Lal. The judgment and decree dated 25.04.1998, passed in Civil Suit No. 1278 of 1997, is in consonance with the recitals in this Will. The courts below also took notice of the fact that Ram Lal had executed three wills at different times, had suffered two other collusive decrees and therefore, was fully aware of the difference between the execution of a will and the procedure for suffering a consent decree and therefore, negatived his plea of fraud. The questions of law framed by counsel for the appellants are facts in issue rather than questions of law much less substantial questions of law. Counsel for the appellants has failed to refer to any evidence that would raise an inference that the judgment and decree dated 25.04.1998 was obtained by perpetuating a fraud. The mere fact that respondent no. 2 , who is a party to the decree dated 25.04.1998 admits the claim of Ram Lal cannot be a ground to hold that the judgment and decree was obtained by fraud. The registered will dated 18.01.1995 is irrelevant as by a subsequent will dated 14.10.1997, Ram Lal cancelled this will and bequeathed his property to respondents no. 1 and 2. It would also be necessary R.S.A.No.2556 of 2009 8 to mention here that the judgment and decree dated 25.04.1998 is in consonance with a will dated 14.10.1997. Counsel for the appellants has failed to advance any argument or refer to any part of the impugned judgments as would disclose such a perversity or illegality in the impugned judgments as would raise a substantial question of law and invite the interference of this Court in second appeal. In view of what has been stated herein above, as the concurrent findings recorded by the courts below do not suffer from any error or raise any substantial question of law, the appeal is dismissed with no order as to costs. [RAJIVE BHALLA] JUDGE 15th July, 2009 SKaushik