Regular Second Appeal No.71 of 2011 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA NO.71 OF 2011 DATE OF DECISION: JANUARY 10, 2011 Devi Lal .... Appellant Versus Shokaran and another .... Respondents CORAM :- HON'BLE MR. JUSTICE L. N. MITTAL. PRESENT: Mr. K. S. Yadav, Advocate for the appellant. * * * * L.N. MITTAL, J. (ORAL) Devi Lal-plaintiff who was successful in the trial court but has been non-suited in the lower appellate court is in second appeal. The plaintiff alleged that he is owner in possession of the suit land measuring 20 Kanals 2 Marlas and 10 Kanals 5 Marlas. The plaintiff never relinquished his rights in the suit land in favour of defendants or anybody else. But the defendants have obtained judgment and decree dated 02.12.1993 from Sub-Judge First Class, Abohar in suit No.1015-1 dated 24.07.1993 titled as Sho Karan and another versus Devi Lal qua the suit land and got mutation No.927 sanctioned on the basis thereof without consent and knowledge of the plaintiff. In the instant suit, the plaintiff has challenged the aforesaid consent judgment and decree dated 02.12.1993 and the consequent mutation No.927 alleging the same to be illegal and null and void. The plaintiff sought declaration that he continues to be owner in possession of the suit land. The judgment and decree in question are said to have been obtained by fraud, misrepresentation and impersonation. Plaintiff herein (who was defendant in the previous suit) alleged Regular Second Appeal No.71 of 2011 -2- that he never appeared in the previous suit nor admitted the claim of defendants herein (who were plaintiffs in the previous suit). Plaintiff also sought consequential relief for permanent injunction restraining the defendants from alienating the suit land in any manner to anybody and from interfering in the enjoyment of rights of plaintiff qua suit land. Defendants while broadly controverting the plaint allegations, inter alia pleaded that the plaintiff is not in possession of the suit land but has not claimed the relief of possession thereof and therefore, suit for declaration only is not maintainable. The suit is also barred by limitation. On the basis of family settlement dated 06.07.1991, defendants are owners in possession of the suit land. Plaintiff herein who was defendant in the previous suit admitted the claim of the defendants herein (plaintiffs in the previous suit) by filing written statement dated 26.10.1993 and also by making statement to the same effect in the court on the same date in Civil Suit No.1015-1 dated 24.07.1993. Plaintiff herein himself appeared in the said previous suit and made the said statement in the court. Judgment and decree dated 02.12.1993 and the consequent mutation are legal and valid. All grounds pleaded by the plaintiff to challenge the same have been controverted. Various other pleas were also raised. Learned Additional Civil Judge (Senior Division), Abohar vide judgment and decree dated 04.09.2009 decreed the plaintiff's suit. However, first appeal preferred by defendants has been allowed by learned Additional District Judge, Ferozepur vide judgment and decree dated 13.10.2010 and thereby suit filed by the plaintiffs stands dismissed. Feeling aggrieved, plaintiff has filed the instant second appeal. I have heard learned counsel for the appellant and perused the case file. Regular Second Appeal No.71 of 2011 -3- Plaintiff challenged the judgment and decree dated 02.12.1993 on the ground that the same was obtained by impersonation. However, plaintiff has miserably failed to prove the said allegation. Written statement was filed in the previous suit on behalf of the plaintiff herein (who was defendant in that suit). Statement of plaintiff herein was also recorded in the said suit in the court. The said statement and the written statement purport to have been thumb marked by the plaintiff herein. However, plaintiff has not examined any finger print expert to depict that the said written statement and the statement recorded in the court in the previous suit had not been thumb marked by him. Science of finger print comparison is perfect science. The plaintiff could easily examine finger print expert to prove his case, but for reasons best known to him, the plaintiff has not examined any finger print expert. Consequently, very strong adverse presumption arises against the plaintiff. Moreover, self-serving, bald and oral statement of the plaintiff in this regard is not sufficient to prove his aforesaid version. In addition to the aforesaid, the defendants have examined Mr. Ram Lubhaya Kamboj, Advocate as DW-3, who represented the plaintiff herein (defendant in the previous suit). This witness has stated that Devi Lal-plaintiff herein (defendant in the previous suit) was represented by him and he drafted the written statement on his instructions. Devi Lal thumb marked the said written statement in token of its correctness. Devi Lal also suffered statement in the court admitting the claim of defendants herein (plaintiffs in the previous suit) and the said statement was also thumb marked by the defendant voluntarily. From this testimony, it is manifest that the plaintiff herein himself appeared in the previous suit and filed the written statement and also made statement in the court admitting the claim of defendants herein (who were Regular Second Appeal No.71 of 2011 -4- plaintiffs in the previous suit). There is no reason to doubt or discard the sworned statement of Mr. Ram Lubhaya Kamboj, Advocate. Thus the plaintiffs' version that he was impersonated in the previous suit is completely falsified. Learned counsel for the appellant vehemently and emphatically contended that Dr. Sham Sunder examined by the plaintiff has stated that plaintiff was suffering from MDP Bipola disease and, therefore, the plaintiff herein was not in a position to appear in the previous suit and to admit the claim of the defendants herein (who were plaintiffs in the previous suit). The contention cannot be accepted. Dr. Sham Sunder was specifically cross- examined as to whether Devi Lal was in a position to appear in court of law and to make statement or not. Dr. Sham Sunder responded by deposing that Devi Lal was suffering from psychotic level of depression and he was not having proper insight, but in view of his varying condition from time to time, Devi Lal might or might not be in position to make such a statement. It would mean that Devi Lal was not completely incapacitated to appear and make statement in the Court. Some times he was in fit condition to appear and make statement, but at other time, he might not have been in such a fit condition. Consequently it cannot be said that Devi Lal was not in a fit condition to make statement in the Court or to file written statement in court in the previous suit on 26.10.1993 when he did so. In this context, it is significant to notice that statement of Devi Lal was recorded in Court in the previous suit on 26.10.1993. If at that time, Devi Lal had not been in a fit state of mind to make such a statement, the court would not have recorded his statement in the previous suit. The very fact that the court recorded his said statement in the previous suit would also go to depict that plaintiff herein was in fit state of mind at that time. This conclusion is also strengthened by the fact that the written statement was drafted on the Regular Second Appeal No.71 of 2011 -5- instructions of Devi Lal-plaintiff herein by his counsel Mr. Ram Lubhaya Kamboj, Advocate who represented him in the previous suit. Said advocate has appeared as witness and deposed that Devi Lal thumb marked the said written statement after admitting it is correct and also made statement in the court in the previous suit. Testimony of Mr. Ram Lubhaya Kamboj, Advocate further disproves the plaintiff's version that he was not in a fit state of mind. The plaintiff admitted in his cross-examination recorded on 12.06.2002 that defendants are in possession of the suit land for the last five- six years i.e. since 1996-97. The instant suit was instituted on 29.09.1999. In other words, the plaintiff himself admitted that defendants are in possession of the suit land since long before the filing of the suit. Plaintiff's witness Ram Partap PW-5 also admitted that defendants are in possession of the entire Khewat for the last many years. However, inspite of admitted position that defendants are in possession of the suit land since long before the filing of the suit, the plaintiff in the suit claimed himself to be not only owner of the suit land but also in possession thereof. The plaintiff thus made patently false claim in the suit. Moreover, the plaintiff has filed instant suit for declaration and injunction only. However, plaintiff being out of possession of the suit land could not maintain a simple suit for declaration and permanent injunction only and should have also claimed relief of possession of the suit land. Suit for declaration and permanent injunction only is not maintainable in view of mandatory provision of proviso to Section 34 and also in view of Section 41(h) of the Specific Relief Act, 1963. The suit is also barred by limitation. Judgment and decree dated 02.12.1993 have been challenged in the suit instituted on 29.09.1999 i.e. almost six years after the passing of the judgment and decree. The suit is, therefore, Regular Second Appeal No.71 of 2011 -6- barred by limitation as the suit could be instituted within limitation period of three years. Learned counsel for the appellant contended that suit is within limitation as the limitation period commenced from the date when the plaintiff acquired knowledge of the impugned consent judgment and decree dated 02.12.1993 just before the filing of the suit. The contention cannot be accepted because it has already been held that the plaintiff herein was not impersonated when the judgment and decree dated 02.12.1993 were passed. In other words, plaintiff herein was party to judgment and decree dated 02.12.1993 and, therefore, he had knowledge of the said judgment and decree since beginning. The suit is, therefore, hopelessly barred by limitation. For reasons aforesaid, I find no merit in the instant second appeal. Finding recorded by the lower appellate court for non-suiting the appellant is fully justified by the evidence on record and supported by cogent reasons. The said finding does not warrant interference in the second appeal. No question of law, much less substantial question of law, arises for determination in this second appeal. On the contrary plaintiff-appellant has been rightly non-suited by the lower appellate court because he has failed to prove his case and also the suit is barred by limitation and also the suit is not maintainable for declaration and permanent injunction only without claiming relief of possession of the suit land. Accordingly, the appeal is dismissed in limine. (L. N. MITTAL) JUDGE 10.01.2011 'raj'