Regular Second Appeal No. 2104 of 2008 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Regular Second Appeal No. 2104 of 2008 Date of Decision: 12.5.2009 *** Suresh Appellant VS. Smt. Mariyan & Ors. Respondents CORAM: HON'BLE MR. JUSTICE ARVIND KUMAR, Present:- Mr. Anil Malik, Advocate for the appellant. Mr. K.S. Dhaliwal, Advocate for respondent No.1. *** ARVIND KUMAR, J. The appellant was one of the defendants in the suit for declaration and consequential relief of possession filed by the plaintiff- respondent No.1. He is aggrieved with the concurrent findings returned by the Courts below to the effect that the plaintiff is owner of 1/27 share of land measuring 331 kanals 12 marlas and 5/72 share of land measuring 247 kanals 15 marlas and that the judgment and decree dated 6.5.1995 passed in Civil Suit No.283 of 2.3.1995 titled as Satpal & Ors. Vs. Smt. Mariyan and consequent mutation No. 4535 dated 30.9.1995 sanctioned on the basis thereof, are based upon fraud and misrepresentation and that the plaintiff is entitled to take over the possession from the defendants. The facts of the case, in nutshell, are that the plaintiff Smt. Mariyan got instituted a suit wherein she claimed that she is owner of the suit land, to the extent mentioned above, and that the judgment and decree dated 6.5.1995 passed in favour of defendants is based upon fraud and obtained by impersonation. It was her case that she never appeared in the Regular Second Appeal No. 2104 of 2008 2 aforesaid Court and suffered the admitting statement, leading to the decree of the suit, rather the defendants, by producing some other lady in the Court, got obtained the said decree in their favour in respect of the suit land. It was further case of the plaintiff that the defendants have no pre-existing right in the suit property. Thus, a prayer was made to set aside the impugned judgment and consequent mutation entered in favour of the defendants and that the defendants be directed to restore the possession of the suit land to her. On the other hand, the stand of the defendants No.2 to 4 who contested the suit, was that the said statement, leading to the decreetal of the suit was made by the plaintiff out of her own sweet will, pursuant to a family settlement arrived at between the parties. The plea of fraud and impersonation, as raised by the plaintiff, were denied and it was prayed that the plaintiff is not entitled to claim possession of any part of the suit land from them. After contest, the suit was decreed in the manner indicated above and the appeal preferred by the appellant was dismissed. Hence this regular second appeal. I have heard learned counsel for the parties and have gone through the paper book carefully. The main stress of the learned counsel for the appellant is as to the maintainability of the suit filed by the plaintiff. Although no such plea was taken while filing the written statement and obviously for that reason no issue to that effect was framed, yet the argument of learned counsel for the appellant is that as per Order 23 Rule 3-A there is a complete bar to file separate suit to challenge the compromise decree and the court is prohibited from entertaining such a suit and that the remedy of the party aggrieved may be by way of an application before the same Court. In this context, reliance has been placed on the judgment rendered by coordinating Single Bench of this Court in the case of Smt. Shanti Devi (dead) represented by LR. Vs. Gian Chand 2008(1) RCR (Civil) 658. However, this Court is of the opinion that the appellant cannot derive any benefit from Smt. Shanti's case (supra). In the case of Ram Kishan & Ors. Vs. Smt. Sardari Devi & Ors. 2002(4) RCR (Civil) 837, similar argument was raised on behalf of the appellants therein and the learned Single Judge, while relying upon the Regular Second Appeal No. 2104 of 2008 3 answer of the Division Bench to the question of law formulated in this regard, held as under:- “11. The contention raised by the learned counsel for the appellant cannot be said to be devoid of any merit, but keeping in view the fact that a Division Bench of this Court specifically, upon instructions, formulated a question of law and answered the same in the following terms:- Q. What is the import of the words 'not lawful' in Rule 3-A of Order 23 of the code; do these words have or have not the same connotation as the words “shall not be deemed to be lawful” in the Explanation to Rule 3-A of Order 23 of the code or to be a little more specific, whether a separate suit lies to set aside the decree on the ground that the agreement or the compromise on which it is based is void having been brought about by mis-representation, undue influence or fraud etc.? Ans. The words “not lawful” occurring in Rule 3-A of Order 23 of the code have wider content than similar words in the Explanation to Rule 3. The Explanation to Rule 3 deals with agreements or compromise which are not to be deemed to be lawful if they are void or voidable under the Indian Contract Act, 1872 but the agreement or compromises which are not lawful as referred to in Rule 3-A are more general in term and are not engrafted by the limitations as insertted in the Explanation appended to Rule3. If the agreement or compromise is not the result of consensus of mind of two person in regard to certain matters, viz. when the consent of one of them to the terms is Regular Second Appeal No. 2104 of 2008 4 obtained by the other by some illegal means, namely, by fraud, coercion or undue influence, thre is in fact no compromise. Rule 3-A does not bar the maintainability of the suit challenging the compromise on these grounds. However, the Court can in exercise of its inherent jurisdiction also relieve the party alleging fraud, coercion or undue influence of the agreement. Question No.1 is answered accordingly.” 12. In view of the above law laid down by a Division bench of this Court, which is binding on a Single Judge of this Court, I would follow the law as laid down despite the above contention. As the Division Bench has held that a suit challenging a compromise decree on the ground that it was obtained by misrepresentation and fraud is maintainable, the argument of the appellants that no suit was maintainable, cannot be sustained.” In view of the aforesaid observations, this Court is of the firm opinion that the suit filed by the plaintiff was very much maintainable. Adverting to the merits of the case, both the Courts below concurrently held that the judgment and decree dated 6.5.1995 and the consequent mutation are illegal and void being based upon fraud. While arriving to the said conclusion, both the Courts below took into consideration the report of Finger Print Expert as also that of Director, Finger Print Bureau Haryana, Madhuban, wherein, after comparison of standard thumb impression of plaintiff with those appearing on her admitted statement recorded in the Court on 21.4.1995 and application moved on same date, it was opined to be of different persons and not matched with the standard thumb impression of plaintiff. No doubt PW.3 Dr. Inderjit Singh, Handing Writing Expert was examined by the plaintiff, but the specimen thumb impressions were also got examined by the Court from Director, Finger Print Bureau, Haryana, Madhuban at the instance of the defendants and they never objected the said report. Not only this, it was found that on Regular Second Appeal No. 2104 of 2008 5 filing the said suit, notice was issued to Smt Mariyan (defendant therein) for 2.6.1995, however, on 21.4.1995 the file was taken up on an application allegedly moved by Mariyan and her admitted statement was recorded on that date itself and thus, no notice of the suit could be issued to the defendant therein. As said above, the thumb impression appearing on application as well as statement dated 21.4.1995 were found not tallied with standard thumb impression of Smt. Mariyan. The plaintiff is sister of father of the appellant. The theory of family settlement between the parties was also discarded by the Courts below by observing that since a Hindu woman becomes absolute owner of the property possessed by her by virtue of Section 14 of the Hindu Succession Act, 1956, therefore, no person can have pre-existing right therein and once the defendants had no pre-existing right in the property held by the plaintiff, there was no question of any legal and valid family settlement between the parties. By observing that limitation would not come in the way of setting aside a void order and also when the suit is filed on the basis of title, it has been concluded that the suit is well within limitation. Accordingly, it has been held that the defendants have no right to retain the possession of the suit land on the basis of judgment and decree, which was a nullity. Said findings are discernible from para No.16 of the judgment rendered by the learned first appellate Court, while affirming the findings returned by the learned trial Court. In view of the above, there is nothing to deviate from what has been concurrently held by the Courts below. It cannot be said that the findings returned by the Courts below suffer from any illegality or perversity or that the same are based on no evidence. No question of law, much less substantial question of law arises for determination in this regular second appeal, which is accordingly dismissed. No costs. (ARVIND KUMAR) JUDGE May 12,2009 Jiten