R.S.A. No. 2329 of 2009 -1- IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH R.S.A. No. 2329 of 2009 (O&M) Date of decision : 10.8.2010 ... Mohan Singh and another ................Appellants vs. Banta Singh and others .................Respondents Coram: Hon'ble Mr. Justice K.C. Puri Present: Sh. M.S. Rakkar, Senior Advocate with Sh. P.S. Baath, Advocate for the appellants Sh. R.P.S. Ahluwalia, Advocate for the respondents. ... K.C. Puri, J. This is an appeal directed by defendants No. 1 and 2- appellants against the judgment dated 4.3.2009 passed by Sh. R.N. Bharti, Additional District Judge, Ambala, vide which the appeal preferred by them against the judgment dated 30.4.2007 passed by Sh. Mahavir Singh, Civil Judge (Junior Division) Ambala City, was dismissed. Briefly stated, Banta Singh filed a suit for declaration challenging the judgment and decree dated 18.3.1991 passed in civil suit No. 618 of 31.7.1990 passed by Sh. R.K. Sondhi, Sub Judge IInd Class, Ambala City, in case Mohan Singh and others vs. Banta Singh. R.S.A. No. 2329 of 2009 -2- The challenge in the suit is that the plaintiff is real uncle of the defendants and he is very old and sick person. He is owner in possession of the suit property. The impugned judgment and decree have been obtained by playing fraud by the defendants. The plaintiff never appeared before the Court of Sh. R.K. Sondhi, the then Sub Judge IInd Class, Ambala City and he never made any statement in the Court, nor did he engage any counsel. The defendants being the nephews of the plaintiff have played fraud upon the Court to get the impugned judgment and decree dated 18.3.1991 by arranging some impersonator. The defendants are trying to alienate the suit property. Upon notice, defendants appeared and contested the suit by filing two written statements. Defendants No. 1 and 2 filed the written statement in which they have admitted the relationship between the parties, but all other averments made in the plaint have been denied. It is pleaded that defendants are owners in possession of the suit property on the basis of the decree. The defendant filed the written statement and engaged Sh. Dinesh Jain, Advocate. No fraud was committed by the contesting defendants No. 1 and 2 and prayer has been made for dismissal of the suit. Defendants No. 3 to 5 filed separate written statement taking similar pleas as that of defendants No. 1 and 2. Replication to the written statement was filed by the plaintiff, in which he has controverted the averments made in the written statements, while reiterating the stand taken in the plaint. From the pleadings of the parties, following issues were framed:- R.S.A. No. 2329 of 2009 -3- 1. Whether the plaintiff is entitled to declaration to the effect that judgment and decree dated 18.3.1991 in civil suit No. 618 of 31.7.1990 passed by the Court of Sh. R.K. Sondhi, the then Sub Judge IInd Class, Ambala City in case titled as Mohan Singh and others vs. Banta Singh is null and void, ineffective, in-operative and has been obtained by fraud and is not binding upon the rights of the plaintiff? OPP. 2. Whether the plaintiff is entitled to consequential relief of permanent injunction restraining the defendants from alienating the suit property? OPD 3. Whether the plaintiff has got no locus standi to file the present suit? OPD 4. Whether the plaintiff has no cause of action to file the present suit? OPD 5. Whether the suit of the plaintiff is false and frivolous and is liable to be dismissed? OPD 6. Whether the plaintiff has concealed the true and material facts from the Court? OPD 7. Relief. Plaintiff-Banta Singh himself appeared as PW-1 and deposed on the line of his pleadings and also examined PW-2 Sh. Dinesh Jain, Advocate, who proved the document. Plaintiff also examined PW-3 Jarnail Singh besides PW-4 Mani Jain, Handwriting Expert. In rebuttal defendants examined DW-1 Gopal Krishan Sharma, handwriting expert, DW-2 Nirmal Singh – Halqa Patwari, DW-3 Preetam Singh, DW-4 Mohan Singh and closed the evidence after R.S.A. No. 2329 of 2009 -4- tendering certain documents. Learned trial Court has taken issues No. 1 and 2 together and returned the finding on these issues in favour of the plaintiff and against the defendants. Issues No. 3 to 6 were also decided against the defendants and in favour of the plaintiff. Consequently, the suit of the plaintiff was decreed. Feeling dissatisfied with the above said judgment dated 30.4.2007 passed by Sh. Mahavir Singh, Civil Judge (Junior Division), Ambala City, defendants No. 1 and 2, namely, Mohan Singh and Pritam Singh have preferred the Ist Appeal. The said appeal was dismissed vide judgment dated 4.3.2009 passed by Sh. R.N. Bharti, Additional District Judge, Ambala. Feeling still dissatisfied with the judgments dated 4.3.2009 and 30.4.2007, referred to above, defendants No. 1 and 2 have preferred the present regular second appeal. Notice of the appeal was given to the respondents, who have appeared through Sh. R.P.S. Ahluwalia, Advocate. The appellants in paragraph No. 2 of the grounds of appeal have mentioned that following substantial questions of law have arisen in the present appeal:- i) Whether the Courts below have recorded the findings without taking into consideration the statement of the witnesses produced by the parties? ii)Whether the courts below have not framed the issues arising out of the pleadings of the parties? iii)Whether the courts below have not considered the R.S.A. No. 2329 of 2009 -5- documentary and other evidence while deciding the issues No. 1 and 2? iv)Whether the Courts below have ignored the material evidence and had acted on no evidence and had drawn wrong inferences from the proved facts? v) Whether the suit filed by the plaintiff/respondent was barred by limitation and the non-framing of issue on the same has materially prejudice the case of the appellants? vi)Whether the report of Hand Writing Expert PW-4 was not admissible for lack of requisite findings and whether the report of expert D-1 was conclusive and has wrongly not been relied upon? Learned counsel for the appellants has submitted that the judgment of the trial Court is based upon the submission of Mani Jain, Document Expert, Ambala City. This witness has stated in the cross examination that he compared standard thumb impression of the plaintiff S-1 with the disputed thumb impression Q-1 to Q-4. It is submitted that the plaintiff has not produced any evidence on the file that thumb impression S-1 were affixed by the plaintiff. In the absence of that evidence, the report of Mani Jain, document expert, Ambala City, is liable to ignored. Defendant-appellants have examined Gopal Krishan Sharma, Handwriting and Finger Prints Expert, Patiala, who has categorically stated that disputed thumb impressions Q-2 and Q-3 appear to be identical with standard thumb impressions S-1 and S-2, The testimony of DW-1 Gopal Krishan Sharma, has been wrongly ignored by both the Courts below. It is a R.S.A. No. 2329 of 2009 -6- case 'Expert vs. Expert'. So, the finding of both the Courts below that disputed thumb impressions are not that of plaintiff, is wrong on the face of it. The plaintiff has to prove his own case. The oral testimony made by the plaintiff is meaningless. The defendant-appellants are the real nephews of plaintiff, now respondent No.1. The decree was suffered by plaintiff in their favour voluntarily. So, finding of both the Courts below is required to be reversed. In fact, both the Courts below have misinterpreted and misread the evidence on the file regarding the thumb impression of plaintiff in the earlier decree. The other ground of challenge made by the counsel for the appellants is that no issue regarding limitation has been framed by the trial Court. In the absence of any issue, the defendant-appellants have been prejudiced in leading the evidence. Without any issue in respect of limitation, no finding can be given that suit of the plaintiff is within limitation. In reply to the above noted submission, learned counsel for the respondents has supported the judgment of both the Courts below. It is submitted that there is concurrent finding of fact that the decree is a result of fraud committed by the appellants upon the plaintiff. The criminal case is also pending. When the parties are alive to the case of each other and argue at length, in that case, non-framing of any issue is immaterial. There is nothing on the file that both the Courts below have misinterpreted or misread the evidence. The expert produced by the defendants has also taken S-1 and S-2 as specimen signatures of plaintiff. So, the appellants are estopped from taking the plea that plaintiff has failed to prove that S-1 and S-2 thumb impressions are R.S.A. No. 2329 of 2009 -7- not that of plaintiff. The report of Gopal Krishan Sharma, has been rightly discarded by both the Courts below. It is further submitted that decree obtained by fraud is a nullity and it can be challenged even in collateral proceedings. To support this contention, learned counsel for the respondents has relied upon authorities reported as N. Khosla vs. Rajlakshmi (dead) and others 2006 (2) RCR (Civil) 389 and S.P. Changalvaraya Naidu (dead) by L.Rs. vs. Jagannath (dead) by L.Rs. 1995 (1) PLR 293. It is further contended that otherwise also, limitation start from the date of knowledge. To support this contention, he has relied upon the authorities reported as Md. Noorul Hoda vs. Bibi Raifunnisa and others (1996) 7 Supreme Court Cases 767 and Darshan Singh vs. Mohinder Kaur (deceased) 1986 PLJ 4. I have given my thoughtful consideration to the rival submissions made by counsel for both the sides and have also gone through the record of the case. The case of the plaintiff is specific that the decree is the result of fraud. He did not engage any counsel, nor appeared in the Court and defendant-appellants have impersonated him in the Court. Both the Courts below after appreciating and re-appreciating the fact, reached to the conclusion that earlier decree is a result of fraud played upon the plaintiff and plaintiff never appeared in that case. That being a finding of fact, does not call for any interference. There is nothing on the file that the said finding is the result of misinterpretation and misreading of the evidence on the file. The argument advanced by counsel for the appellants to the effect that thumb impression S-1 has R.S.A. No. 2329 of 2009 -8- not been proved and on that account the report of the expert produced by the plaintiff should be discarded, looks attractive but is without any legal force. Under section 114 of the Indian Evidence Act, the Court proceedings are supposed to be in order unless the contrary is proved. From the bare reading of the file, it is revealed that it is nowhere disputed before the Courts below that S-1 signatures are not that of plaintiff. The fact that the expert produced by the defendant- appellants has taken S-1 and S-2 as specimen thumb impression of plaintiff, goes a long way to prove that authenticity of S-1 and S-2 has not been challenged by the appellants before the Courts below. It does not lie in the mouth of defendants in the second appeal to raise that objection. The science of comparison of thumb impression is the perfect science and does not admit any error. Mani Jain, the expert produced by the plaintiff while appearing as his witness, has categorically stated that disputed thumb impression S-1 is not that of person who has put thumb impression Q-1 to Q-4. He has given an elaborate report in this regard, which has been proved as Exhibit P-6 alongwith photographic charts and negatives. Thorough cross- examination was conducted on Mani Jain, Document Expert and nothing could be brought on the file. So, the testimony of Mani Jain, has been rightly accepted by both the Courts below. So far as testimony of DW-1 Gopal Krishan Sharma, is concerned, he has made a very clever statement while appearing as DW-1.He has not given opinion that thumb impression S-1 and S-2 are of the same person who has put thumb impression Q-2 and Q-3, R.S.A. No. 2329 of 2009 -9- but has stated that “thumb impression Q-2 and Q-3 appears to be identical with thumb impression S-1 and S-2”. Regarding Q-1 he has stated that it is a faint impression and regarding Q-4 he has opined that it is superimposed. The pattern of disputed thumb impression and standard thumb impression is different. It is settled law that one point of dissimilarity regarding pattern is sufficient to arrive at the conclusion that disputed thumb impression and admitted thumb impression are of different persons. One another circumstance which militates the case against the appellants is that appellants are facing trial in FIR No. 379 of 18.12.2005 under Sections 420/467/468/120-B IPC, registered at Police Station Ambala City. The Hon'ble Apex Court in authorities N. Khosla's case (Supra) and S.P. Changalvaraya Naidu's case (Supra) has categorically held that a decree obtained by fraud is nullity and even can be ignored in a collateral proceedings. So for as argument advanced by counsel for the appellants that since no issue regarding limitation has been framed and as such the judgment of both the Courts below is liable to be set aside, is concerned, that submission is without any force. No Court would accept the fraud committed on it. It is settled law that when parties are alive to the case of each other and lead evidence and argue the case, in that case, non-framing of issue is not fatal for the decision of the case. The point of limitation was hotly contested by the appellants before both the Courts below and there is concurrent finding of both the Courts below that suit is within limitation. In authorities Md. R.S.A. No. 2329 of 2009 -10- Noorul Hoda's case (Supra) and Darshan Singh's case (Supra), it has been held that limitation will start from the date of knowledge. The plaintiff did not appear in the earlier litigation, the decree of which has been challenged. The mutation was not attested in his presence, so both the Courts below have rightly given a concurrent finding that suit is within limitation. In view of the above discussion, all the points raised by the appellants stand determined against the appellants. Consequently, the appeal is without any merit and the same stands dismissed. ( K.C. Puri ) 10.8.2010 Judge chugh