RSA 3354 of 2010(O&M) 1 In the High Court for the States of Punjab and Haryana at Chandigarh. RSA 3354 of 2010(O&M) Decided on 09.9.2010. Smt.Santra and others --Appellants vs. Dharampal and others -- Respondents CORAM: HON'BLE MR.JUSTICE RAKESH KUMAR JAIN Present: Mr. Y.P.Singla,Advocate, for the appellants Rakesh Kumar Jain, J, The plaintiffs are in second appeal against judgment and decree of both the Courts below by which their suit for declaration has been dismissed. In short, the case set up by the plaintiffs is that Baldeva son of Sheodan was the common ancestor of the plaintiffs and defendant Nos. 1&2. who was absolute owner in possession of land measuring 79 kanals 7 marlas. Said Baldeva had one son namely, Dharampal (defendant No.1) and six daughters, namely, .Santra, Bhateri, Sumitra, Urmila, Geeta (defendant No.2) and Kamla (defendantNo.11). Baldeva died instestate. His entire property devolved upon his widow, one son and six daughters in equal shares. It was alleged that the plaintiffs, defendant Nos. 11 and 12 are married and are living in their respective matrimonial homes. Defendant RSA 3354 of 2010(O&M) 2 No.1. obtained thumb impressions of the plaintiffs and defendant Nos.2, 11 and 12 on blank papers on the pretext of using the same for preparing a power of attorney but on the basis of blank papers and their thumb impressions, he procured a judgment and decree in his favour in Civil suit No. 322 of 1991 decided on 14.6.1991. It is this judgment and decree which has been challenged in the suit on the ground of fraud. It is further alleged that defendant No.1.sold 486/1585 share out of the suit land in favour of defendant Nos. 3 to 9 vide registered sale deed No.31 dated 7.4.1998 and further mortgaged 41 kanals 0 marla vide mortgaged deed No. 174 dated 7.6.1999 to defendant No.10 which are illegal, null and void. On notice, all the defendants appeared and filed their joint written statement. It was alleged that the land in question is ancestral property which is in possession of defendant No.1. Smt.Kesar widow of Baldeva is still alive. The Civil Court decree passed in Suit No.322 of 1991 decided on 16.4.1991 was suffered by the plaintiffs legally. He denied to have played any fraud. Defendant Nos. 2, 4 and 5 did not appear and were proceeded against exparte, whereas defendant Nos. 6,7,8 and 9 adopted the written statement filed by defendant No.1and 10. On the pleadings of the parties, issues were framed. Both the parties led their evidence . After appreciating the evidence, the trial court dismissed the suit vide its judgment and decree dated 23.12.2006. The plaintiffs challenged the judgment and decree of the trial Court by way of appeal which is also dismissed vide judgment and decree dated 9.6.2010. It is pertinent to mention here that the suit was initially filed by five sisters of defendant No.1, namely, Kamla, Santra. Urmila, Bhateri and Sumitra. The 6th sister Geeta was arrayed as defendant No.2. The suit RSA 3354 of 2010(O&M) 3 was filed on 17.5.1999. On 25.11.2001, one of the sisters of defendant No.1. namely, Kamla withdrew the suit, whereas the suit by other sister namely, Urmila was dismissed on 8.10.2002. Both were impleaded as proforma defendant Nos. 11 and 12, but they did not appear in support of the allegations of the plaintiffs' sister. The Court below has found as a matter of fact that Civil suit No.322 of 1991 which is under challenge was filed by defendant No.1. against all his sisters in which he has claimed ownership of the land in dispute on the basis of family settlement. All the sisters filed their written statement admitting all the contents of the plaint to be correct. Their thumb impressions are available on the written statement and all of them had appeared before the Court and suffered a statement to the effect that the averments made in the plaint are correct and also stated that they have no objection if the suit of the plaintiffs is decreed. This statement was recorded on 13.6.1991 and is also thumb marked by all the sisters of defendant No.1. Moreover, the defendants had examined Sh.Ram Kumar,Advocate as DW-2 who had testified that he had scribed the written statement as DW-2 on behalf of all the sisters of defendant No.1. in Civil Suit N0.322 of 1991 which was read over to them and after understanding the same, they had put their thumb impressions. He had drafted the power of attorney executed in his favour by all the sisters of defendant No.1- Dharampal which is on record as Ex.D4. The learned Courts below have examined all other aspects of the earlier litigation in which a joint statement made by the sisters of defendant No.1 and also that the mother of the plaintiffs is still alive who had not objected to the transfer of the property by all the sisters in favour RSA 3354 of 2010(O&M) 4 of their brother. Thus, the story put up by the plaintiffs that they had put their signatures/ thumb impressions on blank papers on the asking of defendant No.1 on the pretext of preparation of a power of attorney is not believable because all the sisters had appeared before the Court through an Advocate and had not only filed the written statement but also made a joint statement suffering a collusive decree in favour of defendant No.1. In view of the finding of fact recorded by both the learned Courts below and the fact that there is no question of fraud in obtaining the decree which has been challenged in this appeal, I do not find any ground in the present appeal to take a view different from the view taken by both the Courts below. Moreover, the findings recorded by both the Courts below cannot be interfered with by this Court in the second appeal unless and until there is substantial question of law involved in the same. In view of my above discussion, I do not find any merit in this appeal and the same is hereby dismissed. No costs. 09.9.2010 (Rakesh Kumar Jain) RR Judge