R.S.A. No.2318 of 1983 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH R.S.A. No.2318 of 1983 Decided on : 16.03.2010 Smt. Gomti Devi & others .... Appellants VERSUS Dile Ram & others .... Respondents CORAM:- HON'BLE MR. JUSTICE MAHESH GROVER. Present:- Mr. Sanjay Majithia, Senior Advocate, with Mr. Shalinder Sharma, Advocate, for the appellants. Mr. B.S. Bedi, Advocate, for respondents No.2 to 5. MAHESH GROVER, J. The plaintiffs are in Regular Second Appeal against the judgments and decrees dated 24.8.1981 and 22.10.1983 passed respectively by the Sub Judge, IInd Class, Karnal (referred to hereinafter as `the trial Court') and the District Judge, Karnal (described as `the first appellate Court'), whereby the suit and appeal filed by the plaintiffs-appellants, have been dismissed. The plaintiffs/appellants filed a suit and pleaded therein that a declaration be given in their favour to the effect that decree dated 14.6.1976 passed in civil suit titled “Dhan Shingh etc. Versus Sadhu Ram and another” and another decree dated 22.12.1975 passed in civil suit titled “Joginder etc. Versus Dhan Singh” be declared as null and void and not binding on the rights of the R.S.A. No.2318 of 1983 -2- appellants. With reference to the pedigree table, which this Court proposes to reproduce in the subsequent paragraphs, it was pleaded that one Tulsan, who was the widow of Jag Ram had suffered a consent decree in favour of the sons of Sadhu Ram and Dhan Singh transferring half of her share in the said land to sons of Sadhu Ram and the other half to the elder sons of Dhan Singh. Diley Ram defendant No.1 was insisting Tulsan to transfer some portion of the land to his sons and this was a constant source of quarrel between the parties, which resulted in the filing of proceedings under Sections 107/151 Cr.P.C. and also resulted in a criminal case being registered against Diley Ram under the provisions of Section 324 of the Indian Penal code. The matter was, however, settled, but it was alleged that their thumb impressions were obtained on blank papers, which were subsequently used to get the aforesaid decrees. Learned counsel for the respondents admitted the relationship inter se between the parties as reflected in the pedigree table, but pleaded that Tulsan on account of her own love and affection of the children, had voluntarily transferred the property by virtue of decrees and because of the disputes, which were occurring within the family, a settlement was arrived at and the decrees in question were obtained on the basis of a family settlement and were not result of fraud and forgery. The following issues were framed:- “1. Whether the suit No.235 of 1975 detailed in para R.S.A. No.2318 of 1983 -3- No.10 of the plaint and suit No.718 of 1976 detailed in para No.11 of the plaint, are bogus based on forged documents, void and ineffective as claimed in paras 10 to 12 of the plaint? 2. Whether the plaintiffs have no locus standi to file the present suit and the suit is not legally maintainable? 3. Whether the plaintiffs cannot legally challenge the decrees as claimed in preliminary objection No.3 of the written statement. 4. Whether the plaint is not property valued for the purposes of court fee and jurisdiction? 5. Relief.” Both the Courts dismissed the suit and appeal of the plaintiffs/appellants and held the decrees to be valid and not a result of fraud or forgery. Aggrieved by the said findings, the instant Regular Second Appeal has been filed by the plaintiffs-appellants. Learned counsel for the appellants has contended that the impugned decrees were clearly a result of fraud and also referred to the findings of the first appellate Court to state that the decrees were clearly non-conscionable. He thus contended that the impugned judgments deserve to be set aside. He placed reliance on a decision of this Court in Madan Lal and another Vs. Rajesh Kumar (dead) through Lrs, 2005 (3) P.L.R.466. He further contended that the compromise decree was non-conscionable as it R.S.A. No.2318 of 1983 -4- was result of fraud and against the provisions of Order 23 rule 3 C.P.C., as such compromise had not been reduced into writing and was also not signed by the parties. Reliance was placed on judgments passed by this Court in cases reported as Narinde r Singh Vs. Devin d er Singh & others , AIR 1982 Punjab & Haryana 201, Gurdev Kaur & another Vs. Mehar Singh & others, 1990 (1) PLR 334, Shri Manohar Lal & another Vs. Surjan Singh & another, 1990 P.L.J. 480, Pritam Pal Vs. Smt. Lachhmi Bai, 1991 (2) P.L.R. 533, and Shri Santan Dharam Sabha, Durga Bhawan, Rohtak Vs. Basant Lal Gulati & others, 1990 (2) P.L.R. 200. He further contended that by virtue of the decree, share which would have come to the minors was wrongly transferred to the respondents, which could not be done. Therefore, the decrees on this ground are clearly erroneous and liable to be set aside. On the other hand, learned counsel for respondents No.2 to 5 defended the findings recorded by both the Courts below and contended that the decrees have been passed validly on the basis of a family settlement in order to maintain peace and harmony in the family and that further the fraud pleaded by the appellants, was not proved and consequently, there was no infirmity in the findings recorded by the Courts below. He further contended that under the provisions of Section 100 of the Code of Civil Procedure, the scope of interference by the High Court, is extremely limited and in view of the concurrent findings of fact recorded by both the Courts below, no interference was warranted. He placed reliance on the judgments passed by the Hon'ble R.S.A. No.2318 of 1983 -5- Supreme Court in cases reported as Kondiba Dagadu Kadam Vs. Savitribai Sopan Gujar and others, 1999 (3) SCC 722, Hero Vinoth (Minor) Vs. Seshammal, 2006 (5) SCC 545, Ramanuja Naidu Vs. V. Kanniah Naidu and another (1996) 3 SCC 392, M.C. Mehta Vs. Union of India and others, (2001) 9 SCC 520 and Secretary, Taliparamba Education Society Vs. Moothedath Mallisseri Illath M.N. and others, (1997) 4 SCC 484. I have heard learned counsel for the parties and have perused the impugned judgments and also the material on record. The pedigree table, which was relied upon and not denied by the parties to the litigation, is extracted here:- Nannu (223 Bigha-2 biswas) I I I I I I I I Balla (74B-7B) Chandan(74B-7B) Jagram(74B-7B) I I I Jhandhu ____ I_____ I I Sadhu Dhan Singh Tulsan I I(37B) I(37B) I Dilley Ram -------------------- I consent decree I I I I in favour of progeny I Bhim Ramesh I of Sadhu & Dhan Singh I I I ---------------------------------------------------- I I I I I I I Jasmer Dalel Gian Sultan Makhan I ------------------------------------------- I I I Joginder Mohinder Rajinder The total land, which was in the hand of Nanu, the predecessors-in-interest of the parties was 223 bighas and 2 biswas. Nanu was survived by 4 sons namely Bhalla, Chandan, R.S.A. No.2318 of 1983 -6- Jag Ram and Nihala. Nihala died issueless and his share of the property devolved upon the three surviving brothers in equal share. In this manner if the share is calculated each of three brothers came into possession of 74 kanals and 7 biswas. After the death of Jag Ram, his widow Tulsan transferred the property in favour of the sons of Sadhu Ram and Dhan Singh in equal share i.e. half to the sons of Sadhu Ram and half to the sons of Dhan Singh, implying thereby that these two brothers came into possession of 37 kanals approximately each in addition to their share of 74 kanals and 7 biswas. In order to settle this dispute, a family settlement was arrived at between the parties and decree dated 22.12.1975 in first civil suit “Joginder Singh Vs. Dhan Singh” came into existence. However, the parties noticed some mistake regarding the share of plaintiff No.1 therein, being mentioned as 74 bighas 7¼ biswas, whereas the holding between the parties was in equal shares. This mistake was corrected by the second decree. Both the Courts on the basis of cogent evidence and reasoning based on such evidence, came to the conclusion that there is no infirmity in the decrees, which were validly passed and the fraud, which was pleaded, was not proved. No material has been shown to the Court from where any inference of fraud could be derived. The passing of the decrees were almost a result of prudent behaviour within a family and merely because one person got a slightly less share does not imply fraud. In such an eventuality, when there is ample evidence to show that there was R.S.A. No.2318 of 1983 -7- no infirmity in the decrees, this Court in a Regular Second Appeal is loathe to interfere in these findings of fact. A contention was raised that the handwriting expert clearly found that the disputed thumb impressions of the appellants did not tally with those of the admitted impressions of the appellants. But this contention has to be rejected because if the report of the handwriting expert is to be seen, then he had noticed that the thumb impressions, which were compared with the admitted thumb impressions of the appellants, had been erased by applying some chemical; suggesting a tampering of the thumb impressions and it was on the basis of this fact that the impressions were not tallying with each other. DW-3 D.N. Chaudhary, Advocate, who had earlier represented the appellants, at the time of obtaining the decrees stated as much that Sadhu Ram had appended his thumb impressions on the vakalatnama and the written statement. Hence, the plea of the appellants is meaningless. All throughout, it was projected by the learned counsel for the appellants that the decrees on the face of it, are non- conscionable and therefore, liable to be set aside on this ground alone. I am afraid such an argument cannot be accepted, merely because the decrees are non-conscionable in the given set of circumstances, is not a fact, which leads to any inference of fraud unless the same is proved by material on record. It is evident that the families were at logger heads and a criminal case has been R.S.A. No.2318 of 1983 -8- registered and in order to settle the issue and to buy peace within the family some portion in excess was parted away by the parties in favour of each. The decrees in any eventuality, cannot be termed to be bad on this ground. No ground to interfere. Dismissed. 16th March, 2010. (MAHESH GROVER) Monika JUDGE