RSA No.2634 of 2008 (O&M) 1 IN THE HIGH COURT OF PUNJAB & HARYANA, CHANDIGARH R.S.A. No. 2634 of 2008 (O&M) Date of Decision:November 04, 2009 Bachan Kaur and another ...........Appellants Versus Navtej Singh and others ..........Respondents Coram: Hon'ble Mrs. Justice Sabina Present: Mr.M.S.Khaira, Senior Advocate with Mr.Dharminder Singh, Advocate for the appellants Mr.Kanwaljit Singh, Senior Advocate with Mr.Harvinder Singh,Advocate for the respondents ** Sabina, J. Plaintiff-Gian Singh filed a suit for declaration and permanent injunction. The said suit of the plaintiff was dismissed by the Additional Civil Judge (Senior Division), Fatehgarh Sahib vide judgment and decree dated 9.10.2006. Aggrieved by the same, plaintiff filed an appeal and the same was dismissed by the Additional District Judge Fatehgarh Sahib vide judgment and decree dated 19.2.2008. Hence, the present appeal has been filed by the plaintiff. The case of the parties, as noticed by the learned Additional District Judge in paras 4 to 6 of its judgment reads as under:- "4.The brief facts of the suit out of which the present appeal has been directed are that the plaintiff Gian Singh originally filed a suit for declaration to the effect that he is owner in possession of the suit land mentioned at letter X in the head note of the plaint and judgment and decree dated 2.3.1982 passed by Shri Bhagwan RSA No.2634 of 2008 (O&M) 2 Singh,Sub Judge Ist Class, Bassi Pathana in suit No.78 of 10.2.1982 in respect of the suit land mentioned at letter X in the head note of the plaint is illegal, null and void, result of fraud and misrepresentation and does not confer any title on defendant no.1 and is not binding on the plaintiff and sale deed dated 21.5.1999 executed by defendant no.1 in favour of defendants No.2 and 3 in respect of the land detailed at letter Y in the head note of the plaint and sale deed dated 22.6.2000 executed by defendant No.1 in favour of defendant No.4 in respect of land detailed at letter Z in the head note of the plaint, are illegal, null and void and are liable to be set aside and for permanent injunction restraining the defendants from alienating the suit property and also for possession of the land recorded at letter X in the head note of the plaint. It has been averred that plaintiff is peace loving, illiterate, retired and is aged person and is owner in possession of the suit land as detailed at letter X in the head note of the plaint. Defendant No.1 is real nephew of the plaintiff. The plaintiff has good faith in him. Previously plaintiff was serving in Military and he retired therefrom. The Government was providing facilities to Ex-Military personnel. Defendant no.1 asked the plaintiff to accompany him to Bassi Pathana to execute some documents for getting electric motor connection on priority basis and also requested the plaintiff to execute surety for him for obtaining loan from the bank in the year 1982 and while believing representation of defendant No.1 to be true, plaintiff accompanied him to Bassi Pathana. Defendant No.1 obtained thumb RSA No.2634 of 2008 (O&M) 3 impressions of the plaintiff on several papers on the pretext that he is executing documents for the purpose of getting electric connection on priority basis as well as for furnishing surety bond for defendant No.1 for obtaining loan from the bank. The plaintiff never thumb marked any paper with intention to transfer suit land in favour of defendant no.1 nor he suffered any decree for transferring the suit land in favour of defendant No.1. Plaintiff was never summoned in Civil suit No.78 dated 10.2.1982 by any process server of the said court. Plaintiff came to know about decree dated 2.3.1982 passed in the said suit only a month back when defendant No.1 started proclaiming himself to be the owner of the suit land mentioned at letter X in the head note of the plaint and thereafter the plaintiff obtained copies of the revenue record and came to know about the impugned decree which was got passed by defendant No.1 by playing fraud upon the plaintiff and he has also come to know that defendant No.1 has sold 2-1/2 biswas of abadi land belonging to the plaintiff to defendants No. 2 and 3 vide sale deed dated 21.5.1999 and 5 biswas of abadi land to defendant no.4 vide sale deed dated 20.6.2000 alleging himself to be owner of the said abadi. Sale deed dated 21.5.1999 and 22.6.2000 executed by defendant No.1 in favour of defendants No. 2 and 3 as well as defendant No.4 with respect to land mentioned at letters Y and Z in the head note of the plaint are illegal, null and void and not binding upon the plaintiff. The plaintiff asked the defendant No.1 to admit his claim over the suit land detailed at letter X in the head note of the plaint and hence RSA No.2634 of 2008 (O&M) 4 this suit. 5. Notice of this suit was given to the defendants. Defendants appeared and filed written statements. Defendant No.1 in his written statement took preliminary objections that this suit is not maintainable and the plaintiff has no cause of action and locus standi to file the present suit. The suit is time barred. The plaintiff has not come to the court with clean hands as he concealed the true and material facts from the court. The suit is bad for non-joinder of necessary parties as other co-sharers have not been impleaded. The suit is barred under Section 11 of CPC. It has been further averred that plaintiff has no son and answering defendant used to serve the plaintiff and his wife and also managing and cultivating affairs of the suit land from the very beginning and then a dispute arose between the parties to the suit with respect to the suit land which resulted into an oral family settlement and arrangement among them in the presence of relatives and friends including Inder Singh and Charanjit Singh Fauji and in the said settlement, the defendant no.1 was declared the owner of the suit land and the plaintiff had relinquished all his rights, title and interest in the suit land in favour of the defendant No.1 and to keep the peace and harmony among them the said settlement was bonafide for the welfare of the family and since then he is owner in possession of the suit and has prayed that the judgment and decree dated 2.3.1982 is legal and valid one and is binding upon the plaintiff as also the sale deed dated 21.5.1999 and 22.6.2000 are legal and valid and has prayed that suit be RSA No.2634 of 2008 (O&M) 5 dismissed. 6. Defendants No. 2 and 3 in their written statement apart from taking the same preliminary objections as were taken up by defendant No.1 further pleaded that ; they have purchased the suit property after verifying the records and after due inquiry from the revenue officials and as such they are protected under Section 41 of Transfer of Property Act being bona fide purchasers. To the same fact is the written statement filed by defendant No.4 and has prayed that suit be dismissed with costs. 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?OPP 2. Whether decree dated 2.3.1982 passed in civil suit No.78 of 10.2.1982 titled as Navtej Singh vs. Gian Singh is illegal, null and void?OPP 3.Whether sale deed dated 21.5.1999 executed by defendant No.1 in favour of defendants No. 2 and 3 is null and void?OPD 4.Whether sale deed dated 26.6.2000 executed by defendant No.1 in favour of defendant No.4 is null and void?OPD 5.Whether the suit is not maintainable?OPP 6.Whether plaintiff has no cause of action to file the suit?OPD 7.Whether plaintiff has no locus standi to file the suit?OPD 8.Whether suit is within limitation?OPP 9.Whether suit is bad for non-joinder of necessary parties?OPD 10.Whether suit is bad for want of provisions of Section 11 RSA No.2634 of 2008 (O&M) 6 CPC?OPD 11.Whether this court has jurisdiction to try the suit?OPP 12.Relief.” After hearing the learned counsel for the parties, I am of the opinion that the present appeal deserves to be dismissed. Gian Singh, plaintiff filed the suit challenging the decree dated 2.3.1982 suffered by him in favour of defendant No.1. Plaintiff could only challenge the decree on the ground of fraud. However, the plaintiff failed to establish the said fact. The decree was passed in the year 1982,whereas, the plaintiff filed the suit in the year 2000 challenging the same. Mutation No.1148 dated 10.3.1983 (Exhibit P6) was sanctioned in favour of defendant No.1 on the basis of the decree dated 2.3.1982. The mutation was sanctioned in the presence of plaintiff-Gian Singh, and, hence, it cannot be said that the plaintiff had no knowledge about the passing of the decree. In these circumstances, the suit of the plaintiff was time barred. The consent decree was suffered by Gian Singh in favour of his nephew. Both the Courts below, after appreciating the evidence led by the parties on record, have given a finding of fact that the plaintiff had failed to establish that the decree in question was a result of fraud and misrepresentation. The said finding of fact cannot be interfered by this Court. No substantial question of law arises in this regular second appeal which would warrant interference by this Court. Accordingly, this appeal is dismissed. ( Sabina ) Judge November 04, 2009 arya