RSA No.4473 of 2010 (O & M) - 1 - IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.4473 of 2010 (O & M) Date of Decision: 31.01.2011 Banwari and others ……Appellants Versus Smt. Ram Sanehi and others …...Respondents Coram: HON’BLE MR. JUSTICE L. N. MITTAL. Present: Mr. Pankaj Mehta, Advocate for the appellants. L.N. MITTAL, J (ORAL) Defendant Nos.1 and 2 and Rajinder one of the legal representatives of defendant No.3, are in second appeal. Smt. Ram Sanehi-respondent No.1-plaintiff filed suit seeking declaration that she is owner in possession of 11 kanals 10 marlas land being 1/8th share of 92 kanals 3 marlas land described in the plaint in view of decree dated 28.09.1995 passed in their favour against her father Mani Ram-defendant No.4 and that defendants have not right, title or interest in the suit land and decree dated 11.03.1999 obtained by defendants No.1 to 3 against defendant No.4 is against law and facts, without jurisdiction and based on fraud and misrepresentation and liable to be set aside and is not binding on the plaintiff. Permanent injunction restrained defendants from taking possession of the suit land and from alienating the same was also claimed. Plaintiff alleged that at the time of passing of ex parte decree dated 11.03.1999, defendant No.4 himself was not owner of the suit land, plaintiff already having been declared owner thereof vide decree dated 28.09.1995. It was also alleged that written statement on behalf of RSA No.4473 of 2010 (O & M) - 2 - defendant No.4-Mani Ram herein and Ram Jass, who were defendants in the suit in which decree dated 11.03.1999 was passed in favour of defendant Nos.1 to 3 herein, was allegedly filed in that suit through Johri Lal (defendant No.5 herein) as their attorney, but Johri Lal was never appointed as attorney by Mani Ram and Ram Jass. Even signatures of defendant No.5 herein were forged on the said written statement. Defendants of the said suit were never served with summons. Thus the resultant decree dated 11.03.1999 is null and void. Defendant Nos.1 to 3 contested the suit. They broadly denied the plaint allegations. It was pleaded that defendant No.4-Mani Ram orally exchanged the suit land with land situated in village Sarangpur. However, Mani Ram resiled from the said oral exchange and, therefore, defendant Nos.1 to 3 had to file civil Suit against him which was decreed on 11.03.1999 and defendants No.1 to 3 have been declared owners in possession of the suit land. Decree dated 28.09.1995 set up by the plaintiff is illegal, null and void and has no effect on the rights of defendant Nos.1 to 3. Various other pleas were also raised. Learned Civil Judge (Junior Division), Hisar vide judgment and decree dated 22.11.2007 dismissed the plaintiff's suit. However, first appeal preferred by plaintiff has been allowed by learned Additional District Judge, Hisar vide judgment and decree dated 10.08.2010 and thereby suit filed by the plaintiff stands dismissed. Feeling aggrieved, defendant Nos.1 and 2 and one of the legal representatives of defendant No.3 have filed the instant second appeal. I have heard learned counsel for the appellants and perused the case file. Decree dated 28.09.1995 stands passed in favour of the plaintiff regarding 1/8th share of her father Mani Ram defendant No.4 in the RSA No.4473 of 2010 (O & M) - 3 - joint land measuring 92 kanals 3 marlas. Mani Ram’s brother Ram Jass also had equal share in the said land. Defendant Nos.1 to 3 herein filed civil suit No.377 of 1991 against Ram Jass and Mani Ram regarding their 1/4th share (1/8th share each) in the joint land alleging the oral exchange mentioned hereinbefore. In the said suit, written statement on behalf of Mani Ram and Ram Jass was filed through Johri Lal-defendant No.5 herein as their general attorney. However, no general power of attorney allegedly executed by Mani Ram and Ram Jass in favour of Johri Lal was produced in the said civil suit No.377 of 1991 nor any such power of attorney has been produced in the instant suit. Summons in the said suit were also not served on Ram Jass and Mani Ram. It is thus apparent that Ram Jass and Mani Ram did not appear in the said suit nor they were served and consequent decree dated 11.03.1999 passed in that suit is null and void because Johri Lal, who put in appearance as attorney of Mani Ram and Ram Jass in that suit, is not proved to be their attorney and consequently, counsel appearing on their behalf having been engaged by Johri Lal had not been engaged by Mani Ram and Ram Jass. So all proceedings of the said suit culminating in decree dated 11.09.1999 in favour of defendant Nos.1 to 3 herein are vitiated and are rendered null and void. In addition to it, defendant Nos.1 to 3 alleged that they had given their land of village Sarangpur to Mani Ram and Ram Jass in exchange of the suit land i.e their share in the joint land in question. However, not even an iota of evidence has been led to depict that defendant Nos.1 to 3 were owners or in possession of any land in village Sarangpur or that any such land was given to Mani Ram and Ram Jass in exchange. There is not even an iota of evidence on record to depict that Mani Ram and Ram Jass have any land in village Sarangpur given to them in exchange by defendant Nos.1 to 3 herein in lieu of the suit land. It is thus manifest that the alleged oral exchange set up by defendant Nos.1 to 3 is also untenable. RSA No.4473 of 2010 (O & M) - 4 - Plaintiff had already been declared owner in possession of the suit land i.e 1/8th share of her father Mani Ram in the joint land vide decree dated 28.09.1995. Consequently, subsequent decree dated 11.03.1999 obtained by defendant Nos.1 to 3 against Mani Ram and Ram Jass can have no adverse bearing on the rights of the plaintiff in the suit land. On the contrary, said decree dated 11.03.1999 is result of fraud and misrepresentation and is completely null and void. Learned counsel for the appellants vehemently contended that plaintiff has no right to challenge decree dated 11.03.1999. The contention cannot be accepted. Decree dated 11.03.1999 has cast clouds on the title of the plaintiff on the suit land as declared vide decree dated 28.09.1995 passed in her favour. Consequently, plaintiff has every right and locus standi to challenge decree dated 11.03.1999 obtained by defendant Nos.1 to 3 by fraud etc. Learned counsel for the appellants also contended that Mani Ram and Ram Jass had executed power of attorney in favour of Johri Lal defendant No.5, who appeared in previous suit No.377 of 1991 on their behalf. The contention cannot be accepted because alleged power of attorney was not produced either in suit No.377 of 1991 or in the instant suit. It may be added that defendant Nos.1 to 3 in their suit No.377 of 1991 alleged that oral exchange had taken place 20 years back, but there is no document on record to depict that defendant Nos.1 to 3 ever came in possession of the suit land 20 years before the filing of the said suit or at any other stage. Finding recorded by the lower appellate Court in favour of the plaintiff is fully justified by the evidence on record and is supported by cogent reasons. Finding of the trial Court to the contrary has been rightly reversed by the lower appellate Court by assigning cogent reasons. There is no illegality or perversity in the finding of the lower appellate Court RSA No.4473 of 2010 (O & M) - 5 - decreeing the suit of the plaintiff. No question of law, much less substantial question of law, arises for determination in the instant second appeal. The appeal lacks any merit and is accordingly dismissed in limine. (L. N. MITTAL) JUDGE 31.01.2011 A.kaundal