Regular Second Appeal No.544 of 2011 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Regular Second Appeal No.544 of 2011 Date of Decision:-13.7.2011 Dinesh Kumar ...Appellant Versus Naresh Kumar and others ...Respondents CORAM: HON'BLE MR.JUSTICE MEHINDER SINGH SULLAR Present:- Mr.Hemant Bassi, Advocate for the appellant. M ehinder S ingh S ullar , J . (Oral) As the Courts below duly recapitulated, discussed the pleadings and evidence brought on record by the parties in detail, therefore, there appears to be no necessity to again reproduce and repeat the same in this context. However, the conspectus of the facts, culminating in the commencement, relevant for deciding the instant appeal and emanating from the record, is that Pirthi Singh and his wife Indrawati original plaintiffs (since deceased), being represented by their legal representatives (for brevity “the plaintiffs”), were the owners and in possession of the property in dispute. According to the plaintiffs (Pirthi Singh & Indrawati) that as they had no male issue, therefore, they wanted to give their property to their daughters in equal shares in a family settlement. Subsequently, they came to know that Naresh Kumar and others respondent-defendants (for short “the defendants”) got suffered a frivolous and illegal decree dated 15.12.1993 (Ex.P5), with respect to the property in dispute in the garb of family settlement. Hence, they filed the suit challenging the aforesaid collusive decree. 2. Levelling a variety of allegations and narrating the sequence of events, in all, according to the plaintiffs that defendants obtained the collusive decree (Ex.P5) from them on the pretext of implementing the family settlement. Regular Second Appeal No.544 of 2011 -2- They never wanted to execute the decree, rather they intended to give their property to their daughters in equal shares. The decree was was claimed to be illegal, null, void and inoperative on their rights. On the basis of aforesaid allegations, plaintiffs filed the suit for a decree of declaration declaring the impugned decree dated 15.12.1993 (Ex.P5) passed in the suit bearing No.911 of 1993 titled as “Naresh Kumar etc. Vs. Pirthi Singh etc.” by Sh.Sanjeev Kumar, SJIC, Rohtak as illegal, null & void and not binding on their (plaintiffs) rights, with a consequential relief of injunction restraining the defendants from interfering in the suit property in any manner. 3. The defendants contested the suit and filed their respective written statements. The case set up by them, in brief in so far as relevant, was that plaintiffs suffered the collusive decree in their favour on account of services rendered to them by the defendants. They have been living with the plaintiffs since their birth. They were brought up and educated by the plaintiffs due to love and affection. It was claimed that they engaged a lawyer in that suit and personally appeared in the Court and made statements of their own free will and without any pressure or coercion. It will not be out of place to mention here that the defendants have stoutly denied all other allegations contained in the plaint and prayed for dismissal of the suit. 4. Controverting the allegations of the written statements and reiterating the pleadings contained in the plaint, the plaintiffs filed the replication. In the wake of pleadings of the parties, the trial Court framed the essential issues depicted in its judgment for proper adjudication of the case. 5. In order to substantiate their respective pleaded stands, the parties to the lis, produced on record the oral as well as documentary evidence. 6. The trial Court, after taking into consideration the entire oral as well as documentary evidence on record, dismissed the suit of the plaintiffs, by means of impugned judgment and decree dated 1.2.2008. 7. Aggrieved by the decision of the trial Court, Krishna Devi LR of the Regular Second Appeal No.544 of 2011 -3- plaintiffs through her LR Dinesh Kumar, filed the appeal, which was dismissed as well, by the Ist Appellate Court, by way of impugned judgment and decree dated 20.1.2010. 8. Appellant Dinesh Kumar still did not feel satisfied with the impugned judgments and the decrees of the Courts below and preferred the present appeal. 9. After hearing the learned counsel for the appellant, going through the record with his valuable assistance and after deep consideration over the entire matter, to my mind, there is no merit in the appeal in this context. 10. Ex facie, the cosmetic argument of the learned counsel that since the defendants have obtained the collusive decree in question by playing fraud on the original plaintiffs, so, the Courts below committed a legal mistake in dismissing their (plaintiffs) suit, lacks merit. 11. As is evident from the record that the original plaintiffs Pirthi Singh and his wife Indrawati were the owners of the property in dispute. They had no male issue and had only two daughters, namely, Krishna Devi and Bimla Kumari. They suffered the collusive decree (Ex.P5). They (original plaintiffs) themselves filed the suit on 13.5.1997, challenging the decree dated 15.12.1993 i.e. after about 3½ years. 12. Above being the position on record, now the short and significant question, though important that arises for determination in this case, is as to whether the decree (Ex.P5) is null and void and the result of fraud as alleged by the original plaintiffs or not? 13. Having regard to the contentions of the learned counsel for the appellant, to me, the answer must obviously be in the negative. 14. What is not disputed here is that the original plaintiffs challenged the judgment (Ex.P4) and decree (Ex.P5) suffered by themselves, only on the ground that these have been obtained on the pretext of implementing the family settlement Regular Second Appeal No.544 of 2011 -4- as they wanted to give the property to their daughters in equal shares. They were old and illiterate persons. They have not taken any specific plea of fraud in this respect. 15. To me, the said decree of civil Court suffered by the original plaintiffs themselves can only be challenged by them on the ground of deep fraud and mis-representation. Not only that, specific incidents and instances of fraud have to be clearly pleaded and proved by cogent evidence as in a criminal case, which is totally lacking in the instant case. 16. It is not a matter of dispute that the original plaintiffs engaged their counsel, filed the written statement, made their statements in the Court and themselves suffered the decree (Ex.P5) on 15.12.1993. The mere fact that they were old aged and illiterate, is ipso facto not a valid ground to set aside the said decree. Therefore, to my mind, no cogent pleading and evidence are forth coming on record, so as to plead and prove the plea of fraud. In that eventuality, the original plaintiffs cannot challenge the decree (Ex.P5) in this relevant connection, that too, beyond the period of limitation. 17. Meaning thereby, the Courts below have taken into consideration and appreciated the entire relevant evidence brought on record by the parties in the right perspective. Having analyzed the admissible evidence in relation to the pleadings of the parties, the trial Court as well as the first Appellate Court has recorded the concurrent findings of fact that no fraud was proved to have been played upon the plaintiffs, no ground for setting aside the decree (Ex.P5) is made out and negatived their plea by recording valid grounds in their impugned judgments and decrees. Such pure concurrent findings of fact based on the appraisal of evidence, cannot possibly be interfered with by this Court, while exercising the powers conferred under section 100 CPC, unless and until, the same are illegal and perverse. No such patent illegality or legal infirmity has been pointed out by the learned counsel for the appellant, so as to take a contrary view, Regular Second Appeal No.544 of 2011 -5- than that of well reasoned decision already arrived at by the Courts below, in this behalf. 18. No other meaningful argument has been raised by the learned counsel for the appellant to assail the findings of the Courts below in this respect. All other arguments, relatable to the appreciation of evidence, now sought to be urged on behalf of the appellant, in this relevant direction, have already been duly considered and dealt with by the Courts below. 19. In this manner, the entire matter revolves around the re-appreciation and re-appraisal of the evidence on record, which is not legally permissible and is beyond the scope of second appeal. Since no question of law, muchless substantial, is involved, so, no interference is warranted, in the impugned judgments/decrees of the Courts below, in view of the law laid down by Hon'ble Apex Court in case Kashmir Singh v. Harnam Singh & Anr. 2008 (2) R.C.R. (Civil) 688 : 2008 AIR (SC) 1749 in the obtaining circumstances of the present case. 20. No other legal point, worth consideration, has either been urged or pressed by the learned counsel for the appellant. 21. In the light of aforementioned reasons, as there is no merit, therefore, the instant appeal is hereby dismissed as such. (Mehinder Singh Sullar) 13.7.2011 Judge AS Whether to be referred to reporter?Yes/No