RSA No.3203 of 2009 (O&M) 1 IN THE HIGH COURT OF PUNJAB & HARYANA, CHANDIGARH R.S.A. No.3203 of 2009 (O&M) Date of Decision: October 13, 2009 Baldev Singh ...........Appellant Versus Sukhdev Singh and Others ..........Respondents Coram: Hon'ble Mrs. Justice Sabina Present: Mr.G.S.Nahel,Advocate for the appellant ** Sabina, J. Plaintiff-Baldev Singh filed a suit seeking a decree for joint possession as well as declaration and permanent injunction against the defendants Sukhdev Singh and Smt.Mukhtiar Kaur and others. The said suit of the plaintiff was dismissed by the Additional Civil Judge (Senior Division) Sangrur vide judgment and decree dated 23.11.2006. Aggrieved by the same, plaintiff filed an appeal and the same was dismissed by the Additional District Judge (Adhoc), Fast Track Court, Sangrur vide judgment and decree dated 10.6.2009. Hence, the present appeal by the defendants. The case of the parties, as noticed by the learned District Judge, in paras 3 to 6 of its judgment reads as under:- “ 2. Briefly narrated , Baldev Singh filed civil suit seeking a decree for joint possession and declaration as well as permanent injunction against the defendants Sukhdev Singh and Smt.Mukhtiar Kaur and others on the ground that defendant No.1 RSA No.3203 of 2009 (O&M) 2 is the brother and defendant No.2 is real sister of the plaintiff. Smt.Gurnam Kaur was mother of the plaintiff and defendants No.1 & 2 were the owners in possession of the land in dispute. She died on 7.8.1995. After the death of Gurnam Kaur, the plaintiff and defendants No.1 & 2 are joint owners in possession of equal share regarding her share in the suit land. It was pleaded that during her life time, Gurnam Kaur never entered into any family settlement or arrangement regarding the land in dispute. She never suffered any consent decree in favour of defendant No.1 with her sweet will. The alleged decree dated 14.6.1994 was obtained by defendant No.1 by playing fraud and by pleading wrong facts. The alleged decree dated 14.6.1996 is liable to be set aside as Gurnam Kaur never went to Court to engage counsel on her behalf nor she filed any written statement or she appeared in the Court to get record her statement. In case, it is proved that power of attorney, written statement and statement recorded in the Court in the aforesaid judgment and decree, bears thumb impressions of deceased Gurnam Kaur, then the same are result of misrepresentation and wrong facts and fraud was played by defendant Sukhdev Singh upon deceased Gurnak Kaur for obtaining thumb impressions on the power of attorney and written statement. The written statement is in English and Gurnam Kaur was an illiterate and did not know about the single word of English. It was further pleaded that judgment and decree dated 14.6.1994 is unregistered and thus, the same has no value in the eyes of law. It was further pleaded that after the death of Gurnam RSA No.3203 of 2009 (O&M) 3 Kaur, defendant Sukhdev Singh never remained in exclusive possession of the suit land. Rather the suit property is joint possession of the plaintiff along with defendants No. 1 & 2. As the alleged decree was obtained at the back of the plaintiff and defendant No. 2 without pleading them as party, therefore, plaintiff and defendant No.2 are not bound by the same and it has no effect upon their rights. Plaintiff and defendant No.2 came to know about the alleged judgment and decree, when Sukhdev Singh filed an application for the correction of decree after the death of Gurnam Kaur and the Court ordered to implead her legal representatives. Plaintiff and defendant No.2 received summons in the aforesaid application, which was fixed for hearing on 10.3.1997. So the present suit has been filed within limitation from the date of knowledge. Defendant No.2 Sukhdev Singh is proclaiming himself to be owner of the suit property, on the basis of alleged judgment dated 14.6.1994 and wants to alienate the entire suit land. Plaitniff and defendant No.2 requested him not to do so and to admit the ownership of the plaintiff as well as defendant No.2 over the suit property to the extent of their shares, but to no effect. 4.On receiving notice of the suit, defendant No.1 appeared and filed written statement taking legal objections that the suit is barred by limitation as the decree in question was passed on 14.6.1994 and the present suit was filed on 25.7.1997 i.e. after the lapse of more than three years. Further, suit is not maintainable in the present form; Gurnam Kaur was the exclusive owner of the RSA No.3203 of 2009 (O&M) 4 suit property and she was having full right to deal with the same as per her sweet will. 5.On merits, despite the claim of the plaintiff, it was pleaded that decree dated 14.6.1994 was legal and valid. The family settlement in the alleged decree is correct and on this ground,the decree cannot be challenged. It was specifically denied that decree is result of fraud and misrepresentation. Rather it was pleaded that Gurnam Kaur herself appeared in the Court. She engaged her counsel and filed written statement and also suffered statement in the Court. The written statement in English was filed by the counsel engaged by Gurnam Kaur at her instructions. Decree was suffered by Gurnam Kaur and thus, presence of the plaintiff was not required. As regards to the question of registration of decree is concerned, there is no requirement of law to get register the decree question. 6. Denying the joint possession of the plaintiff and defendant No.2 alongwith answering defendant upon the suit property, it was pleaded that the answering defendant is in exclusive possession over the suit property in dispute as per family settlement. It was pleaded that Gurnam kaur was residing with the answering defendant, who performed her last rites. It was also specifically denied that Gurnam Kaur remained ill for a long period before her death. However, it was pleaded that there was a mistake regarding khasra number, as a result of which, an application for correction of the same was filed and denied the other allegations and prayed for the dismissal of the suit. RSA No.3203 of 2009 (O&M) 5 On the pleadings of the parties, the following issues were framed by the trial Court:- “1.Whether the plaintiff is entitled for declaration, as prayed for? OPP 2.Whether the judgment and decree dated 14.6.1994 does not effect the rights of plaintiff and defendant No.2?OPP 3.Whether the plaintiff is entitled for injunction, as prayed for?OPP 4.Whether the suit is beyond limitation?OPD 5.Whether the suit is not maintainable in the present form?OPD 3. Relief.” After hearing the learned counsel for the appellant, I am of the opinion that this appeal is devoid of any merit. Plaintiff-Baldev Singh had filed a suit for joint possession. The case of the plaintiff was that Gurnam Kaur had never suffered any consent decree in favour of defendant No.1 in Suit No. 214 dated 21.5.1994 decided on 14.6.1994. Defendant, on the other hand, led evidence to the effect that Gurnam Kaur had appeared before the Court and had admitted the claim of defendant No.1 (Plaintiff in the said suit). Jaswinder Singh, DW3, counsel for Gurnam Kaur, in the earlier suit, deposed that Gurnam Kaur was personally known to him and had engaged him as a counsel in the Civil Suit No.214 dated 21.5.1994. She had thumb marked power of attorney in his favour (Exhibit D3). She had also thumb marked the written statement (Exhibit D4) which was drafted on the instructions of Gurnam Kaur and she had thumb marked the same after admitting the contents to be correct. The RSA No.3203 of 2009 (O&M) 6 statement of Gurnam Kaur was recorded by the Presiding Officer in her own hand and,thereafter, it was thumb marked by Gurnam Kaur. In these circumstances, the learned Courts below rightly held that the decree in question was not a result of fraud and misrepresentation. Moreover, it had also come into evidence that Gurnam Kaur had been travelling to Sangrur for receiving pension till one month prior to her death. In these circumstances, it is evident that Gurnam Kaur was not suffering from any serious ailment. The argument as to whether a decree was bad on account of registration was not raised before the lower appellate Court in appeal as is evident from para 17 of the judgment of the Additional District Judge. Moreover, the decree in question was not challenged by Gurnam Kaur during her life on the ground that it had been obtained fraudulently . Gurnam Kaur had died on 7.8.1995, whereas, the decree in question was passed on 14.6.1994. The suit was filed after a lapse of more than three years of the passing of the impugned decree and, hence, the Courts below rightly held that the suit was barred by limitation. No substantial question of law arises in this regular second appeal which would warrant interference by this Court Accordingly, this appeal is dismissed. ( Sabina ) Judge October 13, 2009 arya