Regular Second Appeal No. 220 of 2010(O&M) -1- IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH Regular Second Appeal No. 220 of 2010(O&M) Date of decision : August 18, 2010 Gurdial Singh ....Appellant versus Badama Ram and others ....Respondents Coram: Hon'ble Mr. Justice L.N. Mittal Present : Mr. Ranjit Saini, Advocate, for the appellant L.N. Mittal, J. (Oral) CM No. 715.C of 2010 For the reasons mentioned in the application which is accompanied by affidavit, delay of one day in filing the appeal is condoned. RSA No. 220 of 2010 Gurdial Singh plaintiff no. 2 has filed the instant second appeal having remained unsuccessful in both the courts below. Suit was filed by appellant and his brothers-proforma respondents no. 2 and 3 against respondent no. 1-defendant Badama Ram challenging consent judgment and decree dated 5.1.1979 suffered by plaintiffs' father Bishna Ram in favour of defendant Badama Ram regarding suit land measuring 10 kanals 10 marlas being based on fraud etc. It was Regular Second Appeal No. 220 of 2010(O&M) -2- pleaded that defendant had taken the suit land on lease from the plaintiffs' father and on the pretext of execution of lease deed, the defendant took plaintiffs' father to Kurukshetra and obtained his thumb impressions leading to passing of judgment and decree dated 5.1.1979. The plaintiffs, therefore, claimed to be absolute owners of the suit land. Mutation no. 178 sanctioned on 2.3.1979 on the basis of the aforesaid judgment and decree has also been challenged in the suit. Plaintiffs also claimed relief of possession of the suit land, along with relief of permanent injunction restraining defendant from alienating the suit land. The defendant controverted the plaint allegations. It was pleaded that the plaintiffs' father voluntarily suffered decree dated 5.1.1979 and defendant is owner in possession of the suit land. It was pleaded that defendant and plaintiffs' father are real brothers and in family settlement, the defendant became owner of the suit land. Various other pleas were also raised. Allegations of fraud etc. were repudiated. Learned Additional Civil Judge (Senior Division), Yamuna Nagar at Jagadhri vide judgment and decree dated 21.11.2008 dismissed the plaintiffs' suit. First appeal preferred by plaintiff no. 2 only stands dismissed by learned Additional District Judge, Yamuna Nagar at Jagadhri vide judgment and decree dated 24.7.2009. Feeling aggrieved, plaintiff no. 2 has preferred the instant second appeal. I have heard learned counsel for the appellant and perused the case file. There is practically no evidence to prove the plea of fraud in passing of judgment and decree dated 5.1.1979. Parsa Ram PW2 could not Regular Second Appeal No. 220 of 2010(O&M) -3- have possibly stated about the alleged fraud as he was not present with plaintiffs' father Bishna Ram when decree dated 5.1.1979 was suffered. Plaintiff no. 2 also could not make any statement regarding alleged fraud for the same reason. On the other hand, the plaintiffs themselves examined Sh. Ashok Kumar Goyal, Advocate PW3 who had filed written statement on behalf of plaintiffs' father Bishna Ram in the previous suit in which decree dated 5.1.1979 was passed. This witness of the plaintiffs themselves stated that Bishna Ram had suffered the aforesaid decree voluntarily. It is, thus, apparent that the decree was suffered voluntarily by the plaintiffs' father and there was no fraud or misrepresentation. In addition to the aforesaid, the suit filed by the plaintiffs is hopelessly barred by limitation. In the suit, the plaintiffs challenged decree dated 5.1.1979 and mutation dated 2.3.1979 sanctioned on its basis whereas the suit was filed on 20.10.2000 i.e. more than 21 years after the passing of the decree and sanctioning of mutation. The plaintiffs plea that they were not aware of the decree and mutation cannot be accepted because the decree was suffered voluntarily by the plaintiffs' father and limitation period to challenge the same commenced immediately. Admittedly, the defendant is in possession of the suit land since the passing of the decree dated 5.1.1979. There is no cogent evidence to depict that the defendant was lessee over the suit land and had been paying any lease money or rent to the plaintiffs or their father. Moreover, plaintiffs' father never challenged the consent decree dated 5.1.1979 and it would also depict that the said decree was not obtained by fraud etc. Faced with the aforesaid situation, learned counsel for the Regular Second Appeal No. 220 of 2010(O&M) -4- appellant vehemently contended that the decree dated 5.1.1979 required compulsory registration as it pertains to immovable property worth more than Rs 100/- but the said decree was unregistered and therefore, the said decree does not confer any title or ownership on the defendant relating to the suit land. The contention appears to be forceful on first blush but the contention is completely devoid of merit. It is the case of the defendant that decree dated 5.1.1979 was suffered as defendant had become owner of the suit land in view of family settlement. The defendant also pleaded that he is real brother of plaintiffs' father. Consequently, decree suffered on the basis of family settlement ddid not require compulsory registration. Learned counsel for the appellant submitted that the defendant is not real brother of plaintiffs' father but, in fact, defendant's father and plaintiffs' grand-father were real brothers. Even if it be so, plaintiffs' father and defendant being descendants of common grand father could arrive at a family settlement which would not require compulsory registration. Learned counsel for the appellant referred to observation of the trial court in paragraph 13 of its judgment that the decree dated 5.1.1979 required compulsory registration as it was not based on family settlement. However, this observation of the trial court is erroneous as on the basis of perusal of decree dated 5.1.1979, Ex. P1 it could not be said that the said decree was not based on family settlement. Decree is not supposed to contain the pleadings on the basis of which relief is claimed by the plaintiff. On the contrary, the plaintiffs have not produced in evidence copy of the plaint of the suit in which decree dated 5.1.1979 was passed. In the absence of said plaint, it cannot be said that decree dated 5.1.1979 was not suffered on the Regular Second Appeal No. 220 of 2010(O&M) -5- basis of family settlement. The suit filed by the plaintiffs was completely meritless and has been rightly dismissed. Concurrent finding of both the courts below, non- suiting the plaintiffs does not require interference in second appeal. The said finding is based on appreciation of evidence. No question of law much less substantial question of law arises for determination in the instant second appeal. The appeal is completely devoid of merit and is accordingly dismissed in limine. ( L.N. Mittal ) August 18, 2010 Judge 'dalbir'