Regular Second Appeal No. 3596 of 2009 1 In the High Court of Punjab and Haryana, at Chandigarh. Regular Second Appeal No. 3596 of 2009 Date of Decision: 2.8.2011 Shamsher Singh …Appellant Versus Smt. Shakuntala Devi and Others …Respondents CORAM: HON’BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA. Present: Mr. Vikram Singh, Advocate for the appellant. Kanwaljit Singh Ahluwalia, J. (Oral) Deiya had only one daughter named Shanti, who was married to Ram Kishan. After the death of Deiya, Shanti succeeded to his estate and became its absolute owner. In the present case, a son and daughter-in-law of Shanti, defendant No.2 to the suit, namely Shamsher Singh, appellant/plaintiff and Shakuntla Devi, respondent No.1/defendant No.1, are in litigation. Briefly stated, the appellant/plaintiff instituted a suit praying that a decree for declaration be passed in his favour and against defendants No.1, 2 and 8 holding that the judgment and decree passed by the Civil Court in Civil Suit No. 723 of 1994 titled as “Shakuntala Devi v. Shanti” be declared as null and void and not binding upon him and further subsequent mutation and sale deed, in favour of defendant No.1 and lease deed in favour of defendant No.7 be also set aside and Regular Second Appeal No. 3596 of 2009 2 declaration be made that the appellant/plaintiff is owner in possession of 1/4th share in the suit property. As a consequential relief, prayer was made that defendant No.1 be restrained from dispossessing the plaintiff and alienating the suit property in any manner. Details and description of the suit property has been given in paragraph No.1 of the plaint. It was stated that Shanti Devi, mother of the appellant/plaintiff, had inherited this property from her father. Furthermore, Shakuntala Devi, wife of brother of appellant/plaintiff, got 1/4th share of mother, defendant No.2 Shanti, transferred in her name by filing Civil Suit No. 723 of 1994. After the decree was passed in the above said suit, mutations No. 4200 and 3247 were sanctioned in favour of defendant No.1, who had leased out the land to defendant No.7 vide lease deed dated 24.11.1999. The grounds taken to assail the judgment and decree, passed in Civil Suit No. 723 of 1994, have been very aptly culled out and reproduced by the trial Court in its judgment, which are reproduced hereunder:- “i) That no family settlement had taken place in June 1983 as alleged in the impugned suit; ii) That the plaintiff was in service from 1982 and he retired from the job in October, 2000 and without his presence, no family settlement could have taken place; iii) That the judgment and decree are collusive; iv) That as the judgment and decree are not registered, it has no legal value in the Regular Second Appeal No. 3596 of 2009 3 eyes of law; v) That the judgment and decree are result of fraud and misrepresentation; vi) That no summons was issued to the defendant No.2 nor she engaged any counsel nor filed any written statement and the defendant No.2 was an illiterate lady; vii) That the suit property was inherited by the defendant No.2 from her father and so, she had no right to dispose of the same and that decree was obtained just to deprive the plaintiff and defendants No.3 to 6 from their valuable right in the suit property.” Upon notice, defendants No.1, 2 and 8 filed a written statement and raised a preliminary objection regarding maintainability of suit, locus standi of the plaintiff and the suit was barred by limitation. On merits, they admitted that Shanti Devi had inherited the property from her father, which she had transferred in favour of her son Ranjit Singh and Shakuntala Devi vide judgment and decree dated 19.2.1987 and 13.12.1987. They denied that there was any collusion between defendants No.1 and 2 and the suit property was voluntarily transferred in favour of defendant No.1. It is further stated that the judgment and decree, passed in favour of Shakuntala Devi, defendant No.1 and Ranjit Singh defendant No.8, being legal, are binding upon the rights of the Regular Second Appeal No. 3596 of 2009 4 plaintiff and others. It was further pleaded that a family settlement had taken place and the possession has been delivered to defendant No.1 at the time of family settlement and the decree was passed by the Court after applying its mind. It was further pleaded that no fraud or misrepresentation has been disclosed by the plaintiff. Defendant No.2 Shanti Devi filed a separate written statement. She denied that any land was ever transferred in favour of Shakuntala Devi on the basis of family settlement. She also pleaded her ignorance regarding the entries made in the revenue record. She further stated that if any such revenue entries have been made, the same are wrong and illegal. She further stated that defendant No.1 and 8 might have played fraud with her and might have got her thumb impression. The trial Court, after conclusion of the pleadings, had formulated the following issues: “1. Whether the judgment and decree in Civil Suit No. 723 of 1994 passed by the Court of Sub Judge Ist Class, Gohana, is illegal, null and void and not binding upon the rights of the plaintiff on the grounds mentioned in the plaint? OPP 2. Whether the sale in favour of defendant No.1 and defendant No.7 and subsequent mutation on the basis of impugned judgment and decree are illegal, null and void on the grounds mentioned in the plaint? OPP Regular Second Appeal No. 3596 of 2009 5 3. If issues No.1 and 2 are proved then whether the plaintiff is owner of 1/4th share in the suit property and whether the plaintiff is entitled for the relief of injunction? OPP 4. Whether the plaintiff has no cause of action to file the present suit? OPD 5. Whether the suit has not been properly valued for the purpose of Court fee and jurisdiction? OPD 6. Whether the suit is false and vexatious to the knowledge of the plaintiff? OPD 7. Relief.” The plaintiff himself appeared in the witness box as PW.1 and produced Lal Chand as PW.2. Whereas defendant No.1 examined Ramdiya, Clerk from the office of Assistant Registrar as DW.1, Mahabir Singh, Clerk, as DW.2, Ranjit Singh as DW.3 and Om Parkash as DW.4and tendered into evidence various documents. The trial Court held that even though Shanti Devi, defendant No.2, had admitted that her thumb impressions have been taken by defendant No.8 on the pretext of taking loan for a tractor. The same were taken on blank papers. She further stated that she had no knowledge of sufferance of any decree in favour of defendant No.1 about 13/14 years ago. However, the trial Court further held that the plaintiff and defendant No.2 failed to make out a case for fraud or misrepresentation. It was further held that defendant No.2, having Regular Second Appeal No. 3596 of 2009 6 become aware of the alleged fraud, had opted not to challenge the impugned decree by filing any suit. The trial Court further held that there was a remedy available to defendant No.2 to approach the same Court, which had passed the judgment and decree, but she had also not availed that remedy. The trial Court further held that the family settlement had taken place on 28.6.1988 and defendant No.2 has nowhere stated that the said family settlement was reduced into writing. However, Ex.DA/4 was taken as a memorandum of family settlement on the basis of which the impugned decree was passed. The trial Court further held that the plaintiff had not challenged the decree within a stipulated time and thus, the suit was barred by limitation. The trial Court took into consideration the fact that Shanti Devi had voluntarily appeared in Civil Suit No. 723 of 1994 and made a statement admitting the claim of defendant No.1-Shakuntala Devi and on the basis of her admission, the judgment and decree was passed. The trial Court further held that since on the family settlement decree was suffered, it does not require registration especially when the plaintiff had no clear and existing right over the suit property. Relying upon the documentary evidence, the trial Court held that defendant No.1- Shakuntala Devi is in possession of the suit property. After having returned the above said findings, the trial Court decided issues No.1 to 3 against the plaintiff and in favour of defendants No. 1 and 7. The trial Court further held that since defendants No.1 and 8 are in possession of the suit property, no consequential relief that the plaintiff be put in possession over the suit property, can be granted, therefore, it was held that the suit is not maintainable. Issue No.5 was Regular Second Appeal No. 3596 of 2009 7 was also decided against the plaintiff and in favour of the defendants. Issue No.6 was not pressed, therefore, the same was decided against the defendants. The findings, returned by the trial Court, have been affirmed by the lower Appellate Court, vide its judgment dated 28.4.2009. Learned counsel for the appellant/plaintiff has assailed the concurrent findings of fact of both the Courts below on the ground that the appellant/plaintiff, at the relevant time, was posted in the Army, therefore, he was not aware of the impugned judgment and decree suffered by defendant No.2-Shanti in favour of Shakuntala Devi, defendant No.1 and he could not defend the same. He has further submitted that when the appellant/plaintiff became aware of the sufferance of above said judgment and decree, he had filed the suit. Learned counsel further submitted that the trial Court had ignored the report Ex.PX/1 of Deepak Jain, Handwriting Expert and has placed reliance upon Ex.DA/4 which is a family settlement wherein the plaintiff had accepted the judgment and decree in favour of defendant No.1. Learned counsel, during the course of arguments, has produced the report of Deepak Jain, Handwriting Expert, who had only examined the signatures of plaintiff Shamsher Singh upon the family settlement Ex.DA/4. The plaintiff had not examined the counsel engaged by Shanti Devi, defendant No.2, in Civil Suit No. 723 of 1994 titled as “Shakuntala Devi v. Shanti”. Even the signatures of Shanti Devi on the written statement and application filed in the Civil Court have not been compared with her any admitted signatures. It is too difficult to say that the impugned decree was a result of fraud and misrepresentation. After Regular Second Appeal No. 3596 of 2009 8 a period of about 13 years any party can turn to say that she had not appeared in the Court. The heavy onus was upon the plaintiff, while assailing the judgment and decree, to prove that Shanti Devi was impersonated. No such plea was raised in the plaint also. Learned counsel for the appellant has also produced a copy of plaint and a perusal whereof shows that the plaintiff has only stated that the impugned judgment and decree, sale deed and lease deed along with all the mutations are illegal, null and void and not binding upon the rights of the plaintiff. He has not pleaded that the impugned judgment and decree was bad by any fraud or misrepresentation. Therefore, the concurrent findings of fact, returned by both the Courts below, cannot be set aside especially when the submissions made by learned counsel for the appellant only require this Court to re-appreciate and do re-appraisal of the evidence. Thus, taking totality of the circumstances into consideration, this Court can very safely say that no question of law, much less a substantial one, arises for consideration of this Court. Hence, no interference is warranted in the present appeal and the same is hereby dismissed. (Kanwaljit Singh Ahluwalia) Judge August 2, 2011 “DK”