R.S.A.No. 2803 of 1998 (O&M) 1 In the High Court of Punjab and Haryana at Chandigarh R.S.A.No. 2803 of 1998 (O&M) Date of decision: 12.11.2009 Baljit Kaur and another ......Appellants Versus Makhan Singh .......Respondent CORAM: HON'BLE MRS. JUSTICE SABINA Present: Mr. PPS Duggal, Advocate, for the appellants. Mr.Binderjit Singh, Advocate, Mr.Simaranjit Singh, Advocate, for the respondent. **** SABINA, J. Plaintiffs-appellants filed a suit for declaration, which was dismissed by the Civil Judge (Jr.Divn.), Bathinda vide judgment and decree dated 26.11.1996. In appeal, the said judgment and decree were upheld by the Additional District Judge, Bathinda vide judgment and decree dated 16.1.1998. Hence, the present appeal. Brief facts of the case, as noticed by the lower appellate R.S.A.No. 2803 of 1998 (O&M) 2 Court in para Nos. 2 to 4 of its judgment, are as under:- “2. Plaintiffs Baljit Kaur and Paramjit Kaur filed a suit against Makhan Singh defendant for declaration to the effect that the judgment and decree dated 21.7.1982 passed by Additional Senior Sub Judge, Bathinda in civil suit No.238 of 18.5.1982 is illegal, null and void as decree has been procured by producing any body else in place of Samma Kaur and has been obtained by playing fraud with the Court, and the case set up by the plaintiffs was that Samma Kaur widow of Pritam Singh was owner of 1/27th share of land measuring 1062 kanals 19 marlas fully detailed in the head note of the plaint. Samma Kaur had died about 10 months before the institution of the suit. She was mother-in-law of plaintiff No.1 and grand mother of plaintiff No.2 and mother of defendant. It is averred that defendant, in order to grab the land of Samma Kaur and to cause loss to the plaintiffs filed civil suit No.238 dated 18.5.1992 against Samma Kaur regarding suit land and claimed himself owner of the share of deceased Samma Kaur. Defendant produced any lady in place of Samma Kaur and obtained decree by mis-representating and playing fraud with the Court on 21.7.1982. Therefore, the decree and judgment is illegal, null and void, inter alia on the grounds that Samma Kaur was not served any R.S.A.No. 2803 of 1998 (O&M) 3 summons in that case and she did not appear in Court. No counsel was engaged by her and no written statement was filed by her; that Samma Kaur was residing with plaintiffs and plaintiffs issued to serve her; that possession of land has never been transferred and Samma Kaur used to cultivate herself and after death, plaintiffs are in possession of ½ share of Samma Kaur as defendant is in possession of ½ share of Samma Kaur; that no body can transfer his immovable land of value of more than Rs.100/- without registered deed. It is further averred that defendant managed to get mutation attested in his name in connivance with revenue official. The mutation has been sanctioned into two parts, whereas, mutation could have been sanctioned only once and completely. Therefore, mutation got sanctioned by defendant are also illegal, null and void. It is also averred that according to Hindu Succession Act, plaintiffs are entitled to ½ share of Samma Kaur and defendant is entitled to ½ share and the plaintiffs have become owners of 1/27th share of Samma Kaur and defendant has no concern with this share and plaintiffs are entitled to get entries in the revenue record in this respect. It is averred that now defendant has started asserting exclusive owner of the share of Samma Kaur and on scrutiny. The R.S.A.No. 2803 of 1998 (O&M) 4 plaintiffs came to know about decree dated 21.7.1982, and mutation dated 10.5.1991. The plaintiffs were having no knowledge regarding this decree and mutation before this. It is averred that the defendant was requested to admit the claim of the plaintiffs and get the revenue record corrected in the name of plaintiffs as per their share and also get the decree and judgment dated 21.7.1982 declared, illegal, null and void. But the defendant did not agree. Hence, this suit. 3. Notice of the suit was given to the defendant, who appeared and contested the same. He has admitted that Samma Kaur was owner of suit land. The death of Samma Kaur has also been admitted. It is further alleged that civil court has passed the decree rightly and the plaintiffs are bound by the same. No fraud has been played on the Court and Samma Kaur has suffered the decree with her sweet will and without any pressure. It is denied that the decree is illegal, null and void. Samma Kaur was duly served with summons and she appeared through her counsel and filed the written statement and also made her statement in the Court. It is denied that Samma Kaur was residing with the plaintiffs. She was residing with the defendant and he used to look after and serve her. Defendant is in peaceful possession of the suit R.S.A.No. 2803 of 1998 (O&M) 5 property as owner. The mutation has been rightly sanctioned in favour of the defendant on the basis of the decree. The pleas that plaintiffs have no locus standi to file the suit; that the plaintiffs have no cause of action to file the suit; that the suit is not maintainable in the present form; that the suit is barred by limitation; and that the plaintiffs are estopped from filing the suit by their act and conduct have also been taken. On the pleadings of the parties, following issues were framed by the trial Court:- “1. Whether the decree dated 21.7.1982 passed by the Additional Senior Sub Judge, Bathinda in civil suit No.238 of 18.5.1982 is illegal, against law and facts, as per grounds stated in the plaint, and the same is liable to be set aside? OPP 2. If issue No.1 is proved whether revenue record is liable to be correct in favour of the plaintiffs? OPP 3. Whether the plaintiffs are owners in possession of the suit land as alleged in the plaint? OPP 4. Whether the suit is within time? OPP 5. Whether the plaintiffs have got no locus standi to file the present suit? OPD R.S.A.No. 2803 of 1998 (O&M) 6 6. Whether the suit is not maintainable in the present form? OPD 7. Whether the plaintiffs are estopped from filing the present suit by their act and conduct? OPD 8. Relief. ” Learned counsel for the appellants has submitted that the suit land belonged to the plaintiffs. Samma Kaur, mother-in-law of plaintiff Baljit Kaur had no right to suffer a decree in favour of defendant Makhan Singh. The said decree dated 18.5.1982 was collusive and had been obtained by impersonation. The said decree was not registered and was, thus, illegal. Learned counsel for the respondent, on the other hand, has submitted that Samma Kuar, mother of defendant had suffered a decree in favour of the defendant. She had not challenged the decree during her life time. The plaintiffs had no concern with the suit land. After hearing learned counsel for the parties, I am of the opinion that the present appeal is devoid of any merit and deserves to be dismissed. Admittedly, Pritam Singh was owner of the property in dispute as well as other property. The said property came to Sulkhan Singh and Makhan Singh, his sons. After the death of Sulkhan Singh, his share in the property, earlier owned by Pritam Singh, came to Baljit Kaur (his widow), Paramjit Kaur (his daughter) R.S.A.No. 2803 of 1998 (O&M) 7 and Samma Kaur (his mother) in equal shares. The dispute in this case is with regard to the share of the property which had come to Samma Kaur from her son Sulkhan Singh. Samma Kaur had inherited 1/3rd share out of the property owned by Sulkhan Singh and she could dispose of the same in any manner she liked. The argument raised by learned counsel for the appellants that the property which had come to the share of Samma Kaur, in fact, belonged to plaintiffs Baljit Kaur and Paramjit Kaur is falacious. Samma Kaur had got share out of the property owned by Sulkhan Singh being his mother. Samma Kaur had suffered the decree in favour of her son Makhan Singh and not in favour of any stranger. The suit filed by Makhan Singh against Samma Kaur regarding her share was decreed as Samma Kaur had appeared and made a statement admitting the claim of Makhan Singh. However, the pleadings in the civil suit No.238 of 18.5.1982 decided on 21.7.1982 have not been placed on record. In these circumstances, it cannot be said that the decree created rights in favour of Makhan Singh for the first time and hence, it required registration. Admittedly, mutation qua some part of the land relating to the decree dated 21.7.1982 was sanctioned in the year 1988. Samma Kaur died in the year 1990. Samma Kaur did not challenge the decree during her life time. The plaintiffs examined handwriting expert Dr.Atul Kumar Singla and tendered his report Ex.PW-3/1 to establish that the R.S.A.No. 2803 of 1998 (O&M) 8 questioned thumb impressions on vakalatnama, written statement and on statement dated 21.7.1982 did not match with the standard thumb impressions of Samma Kaur. The standard thumb impressions relate to some Bahi entry. The said Bahi entry was maintained by plaintiff Baljit Kaur herself. The said Bahi was not page marked and there was no date relating to the writing in the Bahi. PW-4 Hardev Singh who was examined to prove the writing in the Bahi made by Gurdial Singh is none other than the real brother of Baljit Kaur. In these circumstances, the Courts below rightly held that the Bahi entry could not be relied upon to establish the standard thumb impressions of Samma Kaur. Hence, the report furnished by the expert examined by the plaintiffs was rightly discarded by the Courts below. Thus, the plaintiffs had failed to establish that the impugned decree was a result of impersonation. The Courts below, after appreciating the evidence led by the parties on record, had rightly dismissed the suit of the plaintiffs. No substantial question of law arises in this regular second appeal. Accordingly, the same is dismissed. (SABINA) JUDGE November 12 , 2009 anita