RSA No. 1024 of 2011 (O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. RSA No. 1024 of 2011 (O&M) Date of Decision: 01.03.2011. Smt. Jeewan Devi & others .......Appellants Vs. Dharampal ......Respondent CORAM: HON'BLE MRS. JUSTICE SABINA Present: Mr. P.R.Yadav, Advocate for the appellants. ..... SABINA, J. Plaintiff had filed a suit for declaration and possession with consequential relief of permanent injunction. The case of the plaintiff in brief was that he was the owner in possession to the extent of ½ share in the suit land measuring 46 Kanals 4 Marlas. Defendant No. 1 and performa defendants No. 2 to 4 were the sons of the plaintiff. Plaintiff had purchased the suit property from the income obtained from his agricultural land. Plaintiff was residing in his native village along with his son defendant No.4. Defendants No. 2 and 3 were residing at Gurgaon. Defendant No.1 was posted as a school Teacher in Govt. Boys School, Pataudi and had been assigned the job to look after the land in dispute. Defendant No.1 proposed to the plaintiff that he intended to take loan for the progress and development of the disputed land. Defendant No.1 RSA No. 1024 of 2011 (O&M) -2- took advantage of the faith of the plaintiff in him and got his signatures/thumb impressions on several papers. Defendant No.1 got 1/3rd share out of the disputed land alienated in his favour vide Civil Court decree dated 25.4.1998 and sale deed dated 16.11.1998 illegally. Hence, the suit was filed by the plaintiff challenging the decree dated 25.4.1998 and sale deed dated 16.11.1998. Defendant No. 1, in his written statement, averred that the plaintiff had purchased the land in dispute from his own income and the property in dispute was the self acquired property of the plaintiff. Plaintiff had served in the army and had been Sarpanch of the village Balawas Ahir for several years. Plaintiff had taken loan for the purchase of tractor and other agricultural implements. Plaintiff had been selling and purchasing land. The sale deed was executed by the plaintiff for consideration in favour of defendant No.1. Plaintiff had appeared before the court and had suffered the decree. Defendants No. 2 to 4, in their written statement, averred that the suit land was ancestral property of the parties. At the time of passing of the impugned decree, pre-existing rights of the answering defendants were not taken in consideration. On the pleadings of the parties, following issues were framed by the trial Court:- “1. Whether the civil court decree in suit No. 216/30.8.1997 titled as Dharampal Vs. Badlu Ram decided on 25.4.1998 is obtained by playing fraud and mis-representation by defendant No.1 from the court of Sh. Ashok Bhardwaj, Civil Judge RSA No. 1024 of 2011 (O&M) -3- (Sr. Divn.) and if so what its effect? OPP 2. Whether the sale deed 873 dated 16.11.1993 is executed illegal without any right title and interest by playing fraud and mis-representation with plaintiff by defendant No.1 if so what its effect? OPP 3. Whether the suit is not maintainable in the present form? OPD 4. Whether the plaintiff is not estopped by his own act and conduct to file the present suit? OPD 5. Whether the suit is bad for non-joinder and mis- joinder of the necessary party? OPD 6. Whether the suit is barred under the provision of specific relief Act? OPD 7. Whether the suit is not maintainable on account of res-judicata ? OPD 8. Whether the suit is liable to be dismissed under Order 23 Rule 3(A) CPC? OPD 9. Relief.” Vide judgment and decree dated 5.12.2009, Civil Judge (Junior Division), Gurgaon decreed the suit of the plaintiff and held that the impugned decree dated 25.4.1998 and sale deed dated 16.11.1998 were illegal, null and void. Defendant No.1 was directed to hand over the possession of the land in dispute to the plaintiff with the consequential relief of permanent injunction restraining the defendant No.1 from alienating the suit land in any manner. Aggrieved by the said judgment and decree, defendant No.1 preferred an appeal. Vide judgment and decree RSA No. 1024 of 2011 (O&M) -4- dated 15.11.2010, Additional District Judge, Gurgaon allowed the appeal and consequently, the suit filed by the plaintiff was dismissed. Hence, the present appeal by the plaintiff (through his legal heirs and performa defendants No. 2 to 4). After hearing the learned counsel for the appellants, I am of the opinion that the instant appeal deserves dismissal. Plaintiff Badlu Ram had filed the present suit. Plaintiff had died during the pendency of the suit and his legal representatives were brought on record. The case of the plaintiff was that the decree dated 25.4.1998 and the sale deed dated 16.11.1998 were a result of fraud and were hence not binding on the plaintiff. A perusal of the sale deed dated 13.11.998, registered on 16.11.1998, reveals that Badlu had executed a sale deed qua 7 Kanals of land in favour of the defendant No.1. Plaintiff had appeared before the Sub Registrar, Pataudi at the time of registration of the sale deed. The sale deed duly bears the thumb impressions of the plaintiff. The plaintiff had failed to establish that the said sale deed was a result of fraud and misrepresentation. There is nothing on the record to suggest that the sale deed in question did not bear the thumb impressions of the plaintiff or the fact that the plaintiff had not appeared before the Sub Registrar at the time of registration of the sale deed. A perusal of the decree dated 25.4.1998 reveals that the defendant Badlu Ram appeared and filed his written statement and admitted the claim of the plaintiff Dharampal in toto. It is also evident from the judgment dated 25.4.1998 that the parties had appeared and made statements. The present RSA No. 1024 of 2011 (O&M) -5- plaintiff had also filed his affidavit and thereafter the suit filed by the present defendant no.1 Dharampal was decreed. Plaintiff had failed to establish that the said decree was a result of fraud or misrepresentation. Since, the plaintiff had appeared before the court when the impugned decree was passed, it cannot be said that the plaintiff did not know about the proceedings going on in the court. The only ground available to the plaintiff to challenge the sale deed and decree was that the same were based on fraud or misrepresentation. However, the plaintiff had failed to establish the said plea. In these circumstances, the learned District Judge, Gurgaon had rightly dismissed the suit of the plaintiff. No substantial question of law arises in this appeal. Dismissed. (SABINA) JUDGE March 01, 2011 Gurpreet