RSA No.1430 of 2008(O&M) 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.1430 of 2008(O&M) Date of decision: 7.9.2010 Sukh Ram ......Appellant(s) Versus Bhag Singh and others ......Respondent(s) CORAM:- HON'BLE MR.JUSTICE RAKESH KUMAR GARG * * * Present: Mr. L.N. Verma, Advocate for the appellant. Rakesh Kumar Garg, J. This regular second appeal has been preferred by defendant No.1-Sukh Ram challenging the judgment and decrees of the Courts below whereby suit for declaration filed by the plaintiff-respondents to the effect that decree dated 2.6.1980 passed in Civil Suit No.354 of 1980 titled as “Sukh Ram and another v. Het Ram” is illegal, null and void with further prayer of setting aside the mutation Nos.715 and 960 dated 30.5.1990 and is liable to be set aside, was decreed. The plaintiffs (i.e. respondents No.1 to 7) filed a suit for declaration against the defendants (appellant and respondent No.8 in this appeal) to the effect that they were owners in possession of 14/45 share of the total land measuring 204 kanals 8 marlas comprised in khewat No.65, Khatauni No.123 to 125 as per jamabandi for the year 1991-92 situated in village Jodhpuria, Tehsil Rania, District Sirsa and that the judgment and decree dated 2.6.1980 passed in civil suit No.354 of 1980 titled as “Sukh Ram and another v. Het Ram” was null and void, being result of fraud and consequently, mutation No.715 dated 30.5.1990 regarding the land situated in village Dariawala, Tehsil Rania, District Sirsa was illegal and RSA No.1430 of 2008(O&M) 2 liable to be set aside. The plaintiffs also sought a decree for permanent injunction for restraining the respondents from alienating the suit land in villages Jodhpuria and Dariawala. The plaintiffs and defendants are closely related to each other. The plaintiffs are sons of Het Ram whereas defendant No.1 (appellant) is the brother of Het Ram and defendant No.2 (respondent No.8) is the wife of Het Ram . The case of the plaintiff-respondents is that they are coparceners and constituted a joint Hindu family having 14/45 share of the total land measuring 204 kanals 8 marlas situated in village Jodhpuria as detailed in the plaint and 14/45 share of the land measuring 78 kanals 13 marlas comprised in Khewat No.21 Khatoni No.24, situated in village Dariawala, Tehsil Rania, District Sirsa, being the coparcenery property. Civil Suit No.354 of 1980 titled as “ Sukh Ram and another v. Het Ram” was decreed by the then Sub Judge Ist Class, Sirsa whereby Sukh Ram and Smt.Jattan (plaintiffs of Civil Suit No.354 of 1980) were declared owners in possession in equal share of 1/5th share of the land measuring 204 kanals 9 marlas comprised in Khewat No.37 Khatauni No.73 and 79 situated in village Jodhpuria and further Smt.Jattan (plaintiff No.2 in Civil suit No.354 of 1980) was declared owner in possession of 1/5th share of land measuring 98 kanals 13 marlas comprised in Khewat No.15, 16 Khatauni No.29,30 as per Jamabandi for the year 1974-75, situated in village Dariawala, Tehsil Rania, District Sirsa. The plaintiff-respondents challenged the legality of the aforesaid judgment and decree dated 2.6.1980 on the ground alleging that Het Ram had joint family with his sons and Smt. Jattan, defendant No.2, whereas defendant No.1-Sukh Ram had no common family with Het Ram. Het Ram never gave any land to the defendants nor the possession of the land was delivered to them. Smt. Jattan never joined the present appellant in instituting the civil suit No.354 of 1980 and the plaint of that civil suit was RSA No.1430 of 2008(O&M) 3 never thumb-marked by her rather her thumb impressions were put by someone else at the instance of the appellant. Het Ram never admitted the claim in Civil Suit No.354 of 1980 nor he filed any written statement and it was a result of forgery committed by the appellant. Het Ram was not in a fit state of mind and was suffering from maniac depression psychosis and there was no occasion for Het Ram to part with his land in favour of Sukh Ram and Smt. Jattan in the presence of his five sons and that Het Ram had no right to alienate the total coparcenary property as he was having only 1/6th share in the same and thus, alienation more than his share was illegal and void. It was further averred that mutation No.715 dated 30.5.1990 regarding the land of village Jodhpuria was based upon void and illegal decree dated 2.6.1980 and the same was liable to be cancelled. As per further pleadings, mutation No.960 sanctioned on 30.5.1990 regarding the land situated in village Dariawala was void and illegal being without any basis and was liable to be set aside. Thus, the plaintiffs sought a declaration that they were owners in possession of 14/15 share of the land measuring 204 kanals 8 marlas, as per details given above, situated in village Jodhpuria and that the judgment and decree passed in civil suit No.354 of 1980 were null and void based upon fraud played by the appellant with a further prayer for issuance of a decree for permanent injunction in respect of the suit land. The appellant contested the suit by filing written statement dated 24.8.1998 raising various preliminary objections. On merits, he pleaded that the parties to the suit did not constitute a joint Hindu family at all nor they were coparceners and that the suit property to the extent of share of Het Ram was his self acquired property and not the joint Hindu family property. It was pleaded that Het Ram had every right to dispose of the suit land as per his own choice as he was having sound disposing mind and he had suffered a valid and legal decree in the Court. RSA No.1430 of 2008(O&M) 4 Respondent No.8-defendant No.2 filed separate written statement dated 8.12.1998 admitting the facts pleaded in the plaint asserting that Het Ram had not given any land to the appellant in any family settlement or otherwise and that judgment and decree in Civil suit No.354 of 1980 were procured by the appellant by way of misrepresentation, fraud and impersonation. The appellant had no right in the properties of Het Ram and had inherited land of his share from his father and was having his own family. The suit land was ancestral and coparcenary property qua the plaintiffs and defendant No.2 in the hands of Het Ram and thus, the appellant was not having pre-existing right in the suit land. Thus, respondent No.8 denied the existence of family settlement between the parties and prayed for decreeing the suit of the plaintiffs, as prayed. Replication was filed to the written statement of appellant reasserting the averment made in the plaint and controverting the facts pleaded in the written statement. The trial Court framed the following issues:- “1. Whether the judgment and decree dated 2.6.1980 granted in civil suit No.354 of 1980 by Shri D.D. Yadav, Sub Judge 1st Class, Sirsa in suit titled as Sukh Ram and others vs. Het Ram is void and illegal, fraud and liable to be set-aside and the mutation No.715 and 960 sanctioned on the basis of the proved judgment and decree is also illegal, null and void and liable to be cancelled accordingly? OPP 2. If issue No.1 is proved, whether the plaintiffs are owners in possession of 14/45 share as detailed in the head note of the plaint? OPP 3. Whether the suit of the plaintiffs is not RSA No.1430 of 2008(O&M) 5 maintainable in the present form? OPD 4. Whether the plaintiffs have no locus-standi and cause of action to file the present suit? OPD 5. Whether the plaintiffs have not come to the court with clean hands and they have suppressed true and material facts, if so its effect? OPD 6. Whether the suit of the plaintiff is liable to be dismissed with special costs u/s 35A CPC? OPD 7. Relief.” After hearing learned counsel for the parties and going through the evidence, the trial Court decided the issue No.1 in favour of the plaintiffs. Under issue No.2, it was held that since Smt. Jamna and Bhuri were not made parties to the suit and as relevant mutations were not challenged failing which the same could not be set aside and, therefore, the part of relief could not be granted to the plaintiff-respondents. Issues no.3 & 4 were decided in the favour of plaintiffs-respondents. However, their claim of 14/45 share was held not to be maintainable in the absence of Bhuri and Jamna. Issue No.5 was decided as not pressed while issue No.6 was decided against the appellant. Resultantly, the suit of the respondents was decreed to the extent that judgment and decree dated 2.6.1980 passed in civil suit No.354 of 1980, was illegal, null and void being the result of fraud and was accordingly set aside. Subsequently, mutations No.715 and 960 dated 30.5.1980 were also set aside. However, the claim of the plaintiffs qua 14/45 share was declined. Feeling aggrieved therefrom, the appellant filed an appeal before the Lower Appellate Court. It may be relevant to mention at this stage that before the Lower Appellate Court, the appellant filed an application under Order 41 Rule 27 CPC seeking directions to Smt. Jattan to give thumb impression of RSA No.1430 of 2008(O&M) 6 her left hand and further to allow the appellant to produce and examine an expert in the additional evidence, on the ground that as per the report of handwriting and finger print expert dated 6.1.2007, Smt.Jattan had put thumb impression of her left hand in Civil Suit No.354 of 1980 whereas thumb impression of Smt.Jattan on the specimen sheet on the file of the suit of the trial Court was of her right hand and therefore, it was necessary to allow the appellant to get left hand thumb impression of Smt. Jattan compared with thumb impression appearing on the plaint and power of attorney of Civil Suit No.354 of 1980. The aforesaid application was dismissed holding that the appellant cannot be allowed to fill up the lacuna in his case. Before the Lower Appellate Court, the main contention raised by the appellant was that the suit land was self acquired property of Het Ram and thus, the plaintiff- respondents had no pre-existing right herein and Het Ram could dispose of the same in the manner he liked and hence, he arrived at a family settlement with Sukh Ram and Smt. Jattan, transferring the suit land in their favour. However, the Lower Appellate Court on appreciation of evidence came to the conclusion that no evidence was produced on record by the appellant to show that the suit land was self- acquired property of Het Ram or it had come from any other source through his father. It may also be noticed at this stage that Ami Chand, one of the brothers of Het Ram, died issueless and after his death some part of his property devolved upon Het Ram. On the basis of this fact, it was argued on behalf of appellant before the Lower Appellate Court that once the property coming from Ami Chand intermingled with the ancestral land of Het Ram and became inseparable, the entire land with Het Ram lost its ancestral character and became self acquired property in his hands. However, the aforesaid contention was repelled holding that the land RSA No.1430 of 2008(O&M) 7 inherited by Het Ram from his brother Ami Chand along with others, vide mutation Ex.P10 and the ancestral land inherited by Het Ram from his father, did not intermingle so as to become inseparable rather both lands were capable of being separated and hence the suit land in the hands of Het Ram cannot be said to be self acquired property and the same was ancestral property in his hands qua the plaintiffs. It was further held that since the suit property was found to be ancestral, Het Ram could not suffer a consent decree in respect of the suit land in favour of his brother who had no pre-existing right in the suit land. The Lower Appellate Court further held that the judgment and decree dated 2.6.1980 passed in Civil Suit No.354 of 1980 was the result of deceitful means as the suit was filed by the appellant and respondent No.8-wife of Het Ram seeking ownership of the suit land against Het Ram on the ground of family settlement. Written statement admitting the averments made in the plaint of that suit was filed on behalf of Het Ram. However, statements of the parties were not recorded in the Court. Smt. Jattan had denied the factum of filing of the suit against her husband. In spite of the fact that she had taken a stand that she had not filed any suit against her husband and had never engaged any lawyer nor had signed the plaint and stepped into witness box as DW-4 tendering affidavit Ex.DW4/A deposing that she had not filed any suit nor had ever engaged a lawyer and that the suit land was in possession of his sons and was ancestral in nature, no cross- examination was conducted upon her by the appellant and her statement went unchallenged. The appellant also failed to place on record any other evidence to controvert the stand taken by Smt.Jattan. The issue of limitation was also decided against the appellant and the judgment and decree of the trial Court was upheld. Still not satisfied defendant No.1 has approached this Court by way of instant appeal. It is relevant to point out that initially, learned counsel for the RSA No.1430 of 2008(O&M) 8 appellant had contended before this Court that the declaration sought by the plaintiff-respondents was only in respect of land measuring 204 kanals 8 marlas situated in village Jodhpuria and not in respect of land in village Dariawala and therefore, mutation No.960 dated 30.5.1990 which was sanctioned in respect of village Dariawala, could not be challenged. However, the aforesaid contention was found to be prima facie against the pleadings on the record. Vide order dated 17.8.2010, during the course of hearing, when the learned counsel for the appellant was asked to explain the aforesaid argument, it was fairly submitted that the aforesaid contention was misconceived. Thereafter, in support of the appeal, he has vehemently argued that the impugned judgment and decree is based upon grave misconception and wrong appreciation of true legal import and implication of the real matter in controversy and the conclusions arrived at were wholly erroneous, fallacious and cannot be sustained. Elaborating his argument, learned counsel for the appellant has argued that the suit filed by the plaintiff-respondents was hopelessly time barred and was liable to be dismissed on this ground alone. According to the learned counsel for the appellant, the Civil Court decree was passed on 2.6.1980 in favour of the appellant and both the mutations Ex.P3 and Ex.P8 were sanctioned on 30.5.1990, whereas the present suit was filed on 3.8.1996. The said decree and mutation could be challenged only within a period of three years as per Article 58 of the Limitation Act, 1963 whereas the same was filed more than six years after the sanctioning of the mutation and it was incumbent upon the trial Court to dismiss the same. Learned counsel for the appellant further argued that Het Ram remained alive for a long time after passing of the impugned judgment and decree and he never challenged the same alleging any fraud played upon him and therefore, such ground was not available to the plaintiffs for RSA No.1430 of 2008(O&M) 9 seeking annulment of the judgment and decree passed in civil suit No.354 of 1980. Learned counsel for the appellant further argued that the trial Court erred at law while drawing an adverse inference against the appellant for not getting the disputed thumb impression of Smt. Jattan compared with her admitted and undisputed thumb impression on the application filed by Om Parkash, one of the plaintiffs and in spite of the fact that the point was raised in the grounds of appeal before the Lower Appellate Court and it was side tracked that it was the duty of the appellant to get her disputed thumb impression compared with the thumb impression on the plaint in the earlier suit. Lastly, it was argued by Sh. L.N. Verma, learned counsel for the appellant, that the Court has passed an infructuous decree which is not permissible in law as in spite of the fact that suit has been decreed, the relief of declaration qua 14/45 share was declined. On the basis of the arguments, learned counsel for the appellant has argued that the following substantial questions of law arise in this appeal: “(a) Whether it was incumbent upon the ld. Trial Court to dismiss the suit as being hopelessly time barred irrespective of whether limitation had been set up as a defence or not? (b) Whether the suit for declaration simpliciter without seeking the relief of possession was maintainable? ( c) Whether the plaint was liable to be rejected as it disclosed no cause of action? (d) Whether the impugned judgments and decrees are liable to be set aside as being based upon gross misreading of the material evidence on record? (e) Whether the statement of respondent No.8 could be taken into consideration without her having been subjected to cross-examination? RSA No.1430 of 2008(O&M) 10 (f) Whether the suit could be decreed in favour of plaintiffs despite the relief claimed by them having been declined? (g) Whether the relief claimed having been declined, the impugned decrees are liable to be set aside as being wholly infructuous? (h) Whether the Civil Court decree dated 2.6.1980 could be set aside in the whole when challenge had been made only in respect of a part of the subject-matter thereof? (i) Whether concurrent findings of fact recorded by the ld. Courts below on the basis of random observations and against the record of the case are immune to challenge the interference in the second appeal?” I have heard learned counsel for the appellant and perused the impugned judgment and decrees. Though the appellant had not claimed any issue on the question of limitation before the trial Court and had raised the same before the First Appellate Court, the same is liable to be rejected as it is well settled that mere entry of mutation in the name of the defendant would not furnish cause of action to the plaintiffs to file the suit for declaration and the same accrued to him only when actually his rights came under cloud. No doubt, the decree in Civil Suit No. 354 of 1980 was passed in favour of the defendants on 2.6.1980, however, the same was held to be based upon fraud and therefore, the decree being a nullity and void ab initio, the same would not be governed by Article 58 of the Limitation Act. Not only this, it is well settled that fraud vitiates everything. Again, it is well settled that mutation does not confer any title and therefore, the limitation will not start RSA No.1430 of 2008(O&M) 11 running in the present case from the date of alleged decree or the sanction of mutation in favour of the appellant but on the day when the rights of the respondents came under cloud and the appellant actually threatened to take forcible possession. In this view of the matter, the plea of limitation as raised by the appellant is without any merit and is liable to be rejected. Not only this, the plea of limitation is a mixed question of law and facts. The same was neither raised in the pleadings nor in the arguments by the appellant before the trial Court and therefore, in view of the authoritative pronouncement of the Hon’ble Supreme Court in the case of Bachhaj Nahar v. Nilima Mandal and another, 2008 JT 13 SC 255 , the same could not have been raised by the appellant. The argument of the appellant that since Het Ram had not challenged the alleged decree, the respondent was not competent to take the ground of fraud to challenge the aforesaid decree, is again without any substance. Admittedly, in the revenue record, the suit land has been shown in joint possession of the owners and therefore, in the absence of any evidence on record to establish that the fraud practiced on Het Ram by the appellant was revealed to him, the argument raised by the appellant does not have any merit. Not only this, it may be noticed at this stage that the Courts below have recorded a finding of fact that the suit land was ancestral at the hands of Het Ram qua respondents and he was having only 1/5th share in the aforesaid suit property and therefore, he was not competent to suffer the decree dated 2.6.1980 in favour of the appellant in any case. The appellant has not raised any argument against the aforesaid findings of the Lower Appellate Court. Therefore, no fault can be found in the finding that the decree suffered in favour of the appellant cannot be sustained. The third argument of the appellant regarding adverse inference inferred against him by the trial Court on the application filed by RSA No.1430 of 2008(O&M) 12 Om Parkash plaintiff for comparison of thumb impression of Smt. Jattan is again misconceived. A perusal of the impugned judgment and decree would show that in fact the Lower Appellate Court has found that Smt.Jattan-co-plaintiff with the appellant in Civil Suit No.354 of 1980 had taken a specific stand in the present suit that she never filed any plaint nor engaged any lawyer in Civil Suit No.354 of 1980. It was for the appellant to prove that Smt. Jattan had filed the aforesaid suit along with him by placing on record cogent evidence. Admittedly, the appellant has not placed on record any such evidence. Not only this, even the statement of Smt. Jattan who appeared as DW-4, had gone unrebutted as no cross-examination was conducted upon her by the appellant and thus, the argument raised is without any merit. Even the last argument raised by the appellant is without any force. It may be noticed that only a part of the relief claimed has not been granted to the plaintiff-respondents by the Courts below in view of the existence of the sisters of Het Ram. Learned counsel was unable to support the aforesaid argument by citing the law. Thus, the contentions raised by the appellant are without any merit. In view of the aforesaid discussion, the findings of the Lower Appellate Court cannot be held to be perverse or incorrect. Therefore, the substantial questions of law as framed do not arise in the present appeal. Dismissed. September 7, 2010 (RAKESH KUMAR GARG) ps JUDGE RSA No.1430 of 2008(O&M) 13