Regular Second Appeal No. 2109 of 2010 -1- IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH Regular Second Appeal No. 2109 of 2010 Date of decision : July 15, 2010 Kishore Singh ....Appellant versus Moola Ram and others ....Respondents Coram: Hon'ble Mr. Justice L.N. Mittal Present : Mr. RC Setia, Senior Advocate with Mr. Anish Setia, Advocate, for the appellant Mr. Ashok Aneja, Advocate for Mr. DS Nirban, Advocate for the caveator-respondent no. 2 L.N. Mittal, J. (Oral) This is second appeal by Kishore Singh one of the legal heirs of plaintiff no. 1 Ramji Lal, having been unsuccessful in both the courts below. Suit was filed by Ramji Lal and his two sisters Sarti and Mari against Mulla and Krishan. Defendant no. 1 Mulla is brother of plaintiff no. 1 Ramji Lal. Krishan defendant no. 2 is son of Chajju son of Smt. Buji. Shillu father of the plaintiffs was real brother of Buji. After death of Buji's husband not long after their marriage, Buji was maltreated by her in-laws and therefore, she shifted to her parental home and started residing with Regular Second Appeal No. 2109 of 2010 -2- Shillu father of the plaintiffs. Even Chajju father of defendant no. 2 was born posthumously to Buji in her parental home. Defendant no. 2 also continued to reside with the plaintiffs after death of his father and grand- mother. About 20 years before the filing of the instant suit, there was dispute between plaintiff no. 1 and defendant no. 2 who then started residing with respondent no. 1. Plaintiffs claim share in the suit land having inherited the same along with defendant no. 1 on the death of their father Shillu. It is alleged that defendant no. 2 had no share therein. However, the shares were not correctly depicted in the revenue record and for correction of the said shares and for entry of family settlement in the revenue records, defendants obtained thumb impression of the plaintiffs and their mother Dhani on some papers. However, it was learnt that decree dated 18.11.1986 was obtained in civil suit No. 651 of 1986 giving 1/3rd share to defendant no. 2 and also 1/3rd share each to plaintiff no. 1 and defendant no. 1. The said decree stands challenged by the plaintiffs in the suit and plaintiffs have claimed their different shares in the suit land. Defendants by filing separate but similar written statements contested the suit and denied the plaint allegations. It was contended that consent decree dated 18.11.1986 is legal and valid and was not obtained by fraud and accordingly plaintiff no. 1 and both the defendants are owners of the suit land to the extent of 1/3rd share each. Various other pleas were also raised. Learned Civil Judge (Junior Division), Mohindergarh vide judgment and decree dated 2.1.2006 dismissed the plaintiffs' suit. First appeal preferred by legal representatives of plaintiff no. 1 Ramji Lal has Regular Second Appeal No. 2109 of 2010 -3- been dismissed by learned Additional District Judge, Narnaul vide judgment and decree dated 19.11.2009. Feeling aggrieved, Kishore Singh one of the legal representatives of plaintiff no. 1 has preferred the instant second appeal. I have heard learned counsel for the appellant and perused the case file. Decree dated 18.11.1986 has been challenged in the suit which has been instituted on 7.8.1999. Consequently, the suit is hopelessly barred by limitation. All the plaintiffs were party to the said decree and therefore, the suit should have been filed within three years of the passing of the said decree but the suit has been filed after almost 13 years and therefore, is hopelessly barred by limitation. Even on merits, the plaintiffs have failed to prove their case. Ramji Lal himself was one of the plaintiffs in the suit in which consent decree dated 18.11.1986 was passed. Consequently, it does not lie in the mouth of Ramji Lal plaintiff to contend that the said decree was result of fraud and misrepresentation. Not only that Ramji Lal plaintiff no. 1 is beneficiary of the said decree dated 18.11.1986 where under he was declared to be owner of the suit land to the extent of 1/3rd share. It is, thus, apparent that the said decree was passed with the consent of the parties to the said suit and was not obtained by fraud and misrepresentation. Both the courts below have passed elaborate judgments recording detailed reasons for non-suiting the plaintiffs. There is concurrent finding of fact against the plaintiffs based on proper appreciation of evidence. The said finding is not perverse or illegal in any manner so as to warrant interference in second appeal. Regular Second Appeal No. 2109 of 2010 -4- Learned counsel for the appellant vehemently contended that defendant no. 2 could not be part of the family of the plaintiffs and therefore, there could be no family settlement between the parties. The contention is completely misconceived. Grand-mother of defendant no. 2 was real sister of father of the plaintiffs. Admittedly she became widow soon after her marriage and gave birth to a posthumous child in her parental village while residing with plaintiff's father. She and her son had been residing there and defendant no. 2 has also been residing there. Therefore, it cannot be said that there was no semblance of antecedent rights of defendant no. 2 in the suit property nor it can be said that there could not be valid family settlement between the parties. Defendant no. 2 is a close relative/family member of the plaintiffs and therefore, there could be valid family settlement between the parties which did not require compulsory registration. For the reasons recorded herein above, I find no merit in the instant second appeal. No question of law much less substantial question of law arises for determination in the instant second appeal. Accordingly, the appeal is dismissed in limine. ( L.N. Mittal ) July 15, 2010 Judge 'dalbir'