R.S.A. No. 322 of 2008 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH R.S.A. No. 322 of 2008 Date of Decision: 16.10.2008 Ajaib Kaur ...Appellant. Versus Gurmeet Singh and others ...Respondents. CORAM:- HON'BLE MR. JUSTICE AJAY KUMAR MITTAL. PRESENT: Mr. S.S. Swaich, Advocate for the appellant. AJAY KUMAR MITTAL, J. The plaintiff having remained unsuccessful before the courts below has approached this Court by way of the present regular second appeal against the judgment and decree dated 18.7.2007 passed by the lower appellate court vide which that of the trial court dated 30.7.2005 dismissing the suit of the plaintiff for declaration and permanent injunction was affirmed and the counter objection filed by defendant No.1 was allowed. Put shortly, the facts of the case are that the land measuring 27 bighas 14 biswas comprised in khasra Nos. 1261/1000, 1263/1003, 1265/1004, 1005 to 1009 and 1385/491 situated within the revenue estate of village Karala, Tehsil Rajpura, District Patiala (hereinafter referred to as the “suit land”) was owned and possessed by R.S.A. No. 322 of 2008 -2- Smt. Tej Kaur widow of Bachan Singh. She died intestate and the suit land was inherited by the plaintiff and defendants No.1 to 3 to the extent of 1/5th share each and defendants No.4 to 7 to the extent of 1/5th share jointly being her successors-in-interest. It was pleaded that when the plaintiff went to the Halqa Patwari to get the inheritance of her mother, Tej Kaur, sanctioned in her favour, she came to know that defendant No.1 had obtained a collusive decree in his favour by filing Civil Suit No. 73 of 31.1.1984 titled as 'Gurmeet Singh v. Tej Kaur' decided on 28.2.1984. It was further pleaded that defendant No.1 was not having any pre-existing right in the suit land and the said judgment and decree dated 28.2.1984 was wrong, illegal and nullity qua the rights of the plaintiff as well as defendants No.2 to 7 as the same was not registered one and was a result of fraud and collusion between the parties thereto. The plaintiff requested defendant No.1 to admit her claim but he threatened to alienate the suit land and that gave rise to the filing of the suit for declaration and permanent injunction, declaring that the plaintiff and the defendants were the natural heirs of Smt. Tej Kaur and that the revenue entries in the name of defendant No.1 on the basis of the impugned decree were illegal, wrong and liable to be corrected. A decree for permanent injunction restraining defendant No.1 from alienating the suit land was also sought besides a decree for joint possession as a consequential relief. To resist the claim of the plaintiff, defendant No.1 filed a written statement raising various preliminary objections. It was pleaded that the suit land was transferred by Smt. Tej Kaur in his favour during her life time by way of a civil court decree dated 28.2.1984 passed in R.S.A. No. 322 of 2008 -3- Civil Suit No. 73 of 31.1.1984 which was a legal and valid one. It was further pleaded that Smt. Tej Kaur also executed a legal and valid Will dated 29.11.1997 bequeathing her entire property including the suit land in favour of defendant No.1 in lieu of the services rendered to her and on the basis of the aforesaid Will he had become a testamentary heir. According to defendant No.1, the plaintiff and defendants No.2 to 7 had no right or interest in the suit land. The said decree was challenged by defendant No.2-Ajaib Singh by way of a civil suit but that suit was dismissed vide judgment and decree dated 14.3.1987 and the appeal filed against the same was also dismissed by the Additional District Judge, Patiala vide judgment and decree dated 8.8.1989 which operated as resjudicata against the plaintiff. It was also pleaded that defendant No.1 had a pre-existing right in the suit land and the plaintiff was bound by the said judgment and decree dated 28.2.1984. The other averments made in the plaint were denied and a prayer for dismissal of the suit was made. The trial court framed various issues and on appreciation of the oral as well as the documentary evidence led by the parties held that the impugned decree dated 28.2.1984 was not result of fraud and collusion between the parties thereto. Further, it was held that the Will, Ex.D1, being unregistered was surrounded with suspicious circumstances and defendant No.1 had failed to prove the said Will beyond suspicion. Accordingly, the suit filed by the plaintiff was dismissed by the trial court vide judgment and decree dated 30.7.2005. Feeling aggrieved, the plaintiff approached the lower appellate court. Defendant No.1 filed a counter objection challenging the finding of the R.S.A. No. 322 of 2008 -4- trial court on issue No.2A- Whether Smt. Tej Kaur executed legal, valid Will dated 29.11.1997, if so its effect? The lower appellate court vide judgment and decree dated 18.7.2007 dismissed the appeal filed by the plaintiff and while accepting the counter objection filed by defendant No.1, reversed the finding of the trial court on issue No.2A upholding the validity of the Will in question even when the same was unregistered. I have heard the learned counsel for the appellant and have gone through the impugned judgments very carefully. Learned counsel for the appellant has submitted that the decree dated 28.2.1984 passed in Civil Suit No. 73 of 31.1.1984 was vitiated being based on fraud and collusion between the parties thereto and the same was bad for want of registration. I do not find any merit in the contention of the learned counsel for the appellant. The courts below had recorded a finding that the judgment and decree dated 28.2.1984 passed in Civil Suit No. 73 dated 31.1.1984 titled as 'Gurmeet Singh v. Smt. Tej Kaur' was not a result of any fraud or collusion between the parties to that suit. It was further recorded that defendant No.2-Ajaib Singh one of the sons of Smt. Tej Kaur during her life time had earlier filed a suit against Gurmeet Singh and others, challenging the validity of the decree dated 28.2.1984 but the same was dismissed vide judgment and decree dated 13.4.1987, Ex.D3, which was upheld by the Additional District Judge, Patiala vide judgment and decree dated 8.8.1989, Ex.D5 in Civil Appeal No. 283 dated 13.5.1987. Still further, the decree dated 28.2.1984 has been sought to be challenged by the plaintiff on filing the present suit on R.S.A. No. 322 of 2008 -5- 5.9.2008 which has been held to be time barred under issue No.6. The decree dated 28.2.1984 could not now be challenged for want of registration. Moreover, the lower appellate court while deciding issue No.2A had reversed the finding of the trial court and held the Will dated 29.11.1997 in favour of defendant No.1-Gurmeet Singh to be legal and valid. Thus, viewed from any angle, the relief sought by the plaintiff in the suit for declaration and permanent injunction has rightly been declined by the courts for valid reasons. No question of law much less a substantial question of law arises in this appeal for consideration of this Court. In view of the above, there is no merit in this appeal and the same is hereby dismissed. There shall, however, be no order as to costs. October 16, 2008 (AJAY KUMAR MITTAL) gbs JUDGE