Regular Second Appeal No. 251 of 2009 (O&M) 1 IN THE HIGH COURT OF PUNJAB & HARYANA, CHANDIGARH R.S.A. No. 251 of 2009 (O&M) Date of Decision: July 13,2009 Rajbir Singh ...........Appellant Versus Smt.Santosh ..........Respondent Coram: Hon'ble Mrs. Justice Sabina Present: Mr.Ashwani K.Gaur,Advocate for the Appellant. ** Sabina, J. Smt. Santosh-plaintiff filed a suit for possession by way of cancellation of decree dated 30.1.1987. The suit of the plaintiff was decreed by the Civil Judge (Junior Division) Sonepat vide judgment and decree dated 15.6.2007. In appeal filed by the defendant, the said judgment and decree were upheld by the Additional District Judge, Sonepat vide judgment and decree dated 31.1.2008. Hence, the present appeal. The case of the parties, as noticed by the learned Additional District Judge in paras 2 and 3, of its judgment reads as under:- “ 2. Plaintiff's case, in brief, is that plaintiff used to be owner in possession of 1/40' share in the suit land comprised in Khewat No.81/69, total land measuring 46 bighas 10 biswas situated in the revenue estate of Sonepat Patti Jatan Tehsil and District Sonepat as per jamabandi for the year 1991-92 as detailed in para No.2 of the plaint. It is pleaded that plaintiff and defendants Regular Second Appeal No. 251 of 2009 (O&M) 2 are real sister and brother and she reposed confidence in the defendant being brother and acted on the advice of defendant. Relations between plaintiff and defendant were cordial. Plaintiff used to visit the house of defendant on social ceremonies and at no point of time, she had ever doubted the integrity of defendant till 31.3.1998 when she came to know about the passing of judgment and decree dated 30.1.1987 in Civil Suit No. 7/87 titled “Rajbir Singh vs. Santosh”, by the Court of the then Senior Sub Judge, Sonepat. It is pleaded that defendant had threatened the plaintiff that she is not the owner of suit property as he has already got the suit land in his favour by virtue of said judgment and decree. On coming to know about judgment and decree dated 30.1.1987, plaintiff got the entire record checked and further obtained certified copies of plaint, written statement and judgment and decree dated 30.1.1987 passed in civil suit titled “Rajbir Singh vs. Santosh”. It is pleaded that after obtaining illegal decree, defendant has got sanctioned mutation no.5269 on 6.2.1993 qua said decree in his favour. However, judgment and decree dated 30.1.1987 being illegal and void is not binding upon the rights of the plaintiff as the same has been got passed by playing fraud upon the plaintiff and further by misrepresentation of facts. It is pleaded that judgment and decree dated 30.1.1987 is liable to be set aside inter-alia on the grounds that the said decree is bad in law for want of registration under the Registration Act; that at the relevant time, no family settlement was arrived at between the plaintiff and defendant as on 30.1.1987 she along Regular Second Appeal No. 251 of 2009 (O&M) 3 with her husband and other family members was living at village Kurar Ibrahimpur; that no notice or information of any kind with regard to civil suit titled “Rajbir Singh vs. Santosh” was ever served upon the plaintiff as per rules of Code of Civil Procedure, nor she had appeared in Court or gave any statement in favour of the defendant or affixed any thumb impression on the written statement; and that impugned decree was obtained by the defendant by producing some other lady in place of plaintiff in the Court. It is pleaded that defendant is claiming himself to be owner of suit property on the basis of illegal and void decree and he is in unauthorized possession of suit land and further on the basis of said decree defendant wants to alienate the suit land to some other person and in case he succeeds in his illegal designs, plaintiff would suffer irreparable loss and injury which cannot be compensated in any manner. Since despite repeated requests, defendant has failed to admit the claim of the plaintiff and to get the judgment and decree dated 30.1.1987 and mutation sanctioned on the basis of said decree set aside and cancelled, which led to the institution of this suit for declaration and joint possession. 3. On notice, defendant appeared in Court and filed written statement wherein, preliminary objections inter-alia of locus standi maintainability, limitation and estoppel have been taken. On merits, it is contended that the plaintiff and defendant are sister and brother. It is wrong to plead that the plaintiff had come to know regarding judgment and decree dated 30.1.1987 passed in civil suit No. 7/87 only on 21.3.1998. As a matter of fact plaintiff Regular Second Appeal No. 251 of 2009 (O&M) 4 is well acquainted with the facts and circumstances of the case decreed on 30.1.1987, as she, voluntarily engaged counsel, filed written statement and made oral statement in favour of defendant regarding suit property in the Court. It is wrong to plead that defendant had threatened the plaintiff after lapse of more than 11 years and thus, plaintiff has not come to the Court with clean hands. It is wrong to plead that the plaintiff had ever checked the record of the civil suit titled “Rajbir Singh vs. Santosh”. Since judgment and decree dated 30.1.1987 has been obtained by the defendant with the consent and willingness of plaintiff, question of playing fraud upon the plaintiff or misrepresentation while obtaining the decree does not arise at all. Mutation qua judgment and decree dated 30.1.1987 was rightly sanctioned. It is contended that decree dated 30.1.1987 did not require compulsory registration and since the said decree was suffered with the consent of plaintiff, thus, defendant has become owner in possession of suit property. In this manner, defendant has categorically denied the claim of plaintiff and prayed for dismissal of suit with special costs under Section 35-A CPC.” On the pleadings of the parties, the following issues were framed by the trial Court:- “1. Whether the decree dated 30.1.1989 passed in civil suit No.7/87 titled “Rajbir vs. Santosh” is illegal, null and void and not binding on the rights of the plaintiff and is liable to be set aside?OPP 2. Whether the plaintiff has no locus-standi to file the present Regular Second Appeal No. 251 of 2009 (O&M) 5 suit ?OPD 3. Whether the suit of plaintiff is time barred ?OPD 4. Whether the suit is not maintainable in the present form? OPD 5. Whether the plaintiff is estopped from filing the present suit by her own act and conduct?OPD 6. Whether plaintiff has concealed the material facts from the Court?OPD 7. Relief.” After hearing the learned counsel for the appellant, I am of the opinion that this appeal deserves to be dismissed. Parties are closely related to each other being brother and sister. Plaintiff had challenged the decree dated 30.1.1987. In order to prove her case, plaintiff appeared in the witness box as PW1 and stated that she had never appeared in the Court proceedings of civil suit No. 7 of 1987. She had not filed any written statement in the said suit nor had suffered any statement admitting the claim of her brother/defendant-Rajbir. PW2 Bedo has corroborated the statement of plaintiff. PW3 Kamal Kant Khandelwal, handwriting and finger print expert proved his report as per which the disputed thumb impressions did not match with the standard thumb impressions of the plaintiff. Defendant, while appearing in the witness box as DW2 in his cross-examination, has deposed that his sister was married about 35/36 years back and was residing in village Kurar Ibrahimpur. He further stated that the family settlement was reduced into writing and denied the suggestions that he had obtained the decree in question by playing fraud upon the plaintiff. The handwriting expert examined by the defendant, on Regular Second Appeal No. 251 of 2009 (O&M) 6 the other hand, gave his report that the disputed thumb impressions of the plaintiff matched with her standard thumb impression. Learned Additional District Judge in its judgment has observed that in the plaint of civil suit No.7/87 (Exhibit P3) address of the plaintiff has been given as resident of Sonepat,whereas, admittedly plaintiff was residing at village Kurar Ibrahimpur. Hence, the defendant had given incorrect address of the plaintiff in the earlier suit so that summons should not be served upon her. The summons issued to the present plaintiff in the earlier suit were received back unserved with the report that she was already married and was residing at village Kurar Ibrahimpur. The said report was dated 27.1.1987. In this situation, there was no occasion with the present plaintiff to put in appearance on 27.1.1987 before the Court although the service of summons have not been effected on her. After examining the report of both the handwriting experts, learned Additional District Judge has observed that the report submitted by PW3 inspired confidence,whereas, the report submitted by DW1 handwriting expert examined by the defendant was self contradictory. Since the summons sent to the present plaintiff in the earlier suit have been received back with the report that she was resident of village Kurar Ibrahimpur and the said report is dated 27.1.1987, the Courts below were right in holding in such a situation that there was no occasion for the plaintiff to appear in the Courts on the same day alongwith her counsel. Moreover, the plea taken by the defendant- Rajbir in the earlier suit was that oral family settlement had taken place between the parties but when he appeared in the witness box as DW2 in his cross examination, he deposed that the family settlement had been reduced into writing. Thus, both the Regular Second Appeal No. 251 of 2009 (O&M) 7 judgments and decrees of the Courts below do not call for any interference. No substantial question of law arises in this case which would warrant interference by this Court. Accordingly, this appeal is dismissed. ( Sabina ) Judge July 13, 2009 arya