IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH --- Regular Second Appeal No. 248 of 2007 Date of decision: 10.3.2008 Bachan Singh --- Appellant Versus Raunak Singh --- Respondent --- CORAM: HON’BLE MR. JUSTICE AJAY KUMAR MITTAL --- PRESENT: Mr. Anish Setia, Advocate for the appellant. --- AJAY KUMAR MITTAL, J. This is defendant’s second appeal. The parties herein are none-else but the real brothers. The dispute is over agricultural land measuring 52 Kanals 14 Marlas situated in the revenue estate of village Kapoor Tehsil and District Patiala (henceforth referred to “suit land”). The plaintiff filed a suit seeking a declaration that he was owner in possession of the suit land. The plaintiff had given land measuring 29 Kanals 12 Marlas out of the suit land to the defendant on batai in the year 1980 who was stated to be cultivating the same in the said capacity and used to give batai to the plaintiff until Kharif 1999. The plaintiff, however, came to know that the defendant got a decree dated 11.5.1981 from the civil court in his favour declaring him as owner of land measuring 29 Kanals 12 Marlas pursuant to which mutation No. 265 had also been sanctioned in favour of the defendant. Having come to RSA No. 248 of 2007 know about the foul play of the defendant, the plaintiff got a copy of the said decree sheet and filed a suit for declaration to the effect that the said decree of the civil court and mutation No. 265 sanctioned in pursuance thereof are illegal, null and void on the ground that the same were based on fraud and misrepresentation; that he was owner in possession of the land measuring 29 Kanals 12 Marlas; and also for permanent injunction restraining the defendant to alienate the suit land in any manner. The cause of action to file the instant suit was stated to have arisen just 2½ months earlier to the institution of the suit when the fact of passing of the decree dated 11.5.1981 came to the knowledge of the plaintiff. It was stated in the written statement that the defendant was in possession of the land in question as owner to the extent of half share and his ownership was admitted by the plaintiff himself in the proceedings of the civil suit in which decree dated 11.5.1981 was passed. The fact of the land having been given to the defendant on batai by the plaintiff in the year 1980 was out-rightly denied. It was stated that in the earlier suit, the plaintiff had admitted the claim of the present defendant and, thus, he was estopped by his own act and conduct from challenging the decree dated 11.5.1981. The plaintiff had full knowledge of filing of that suit by the defendant and he had himself appeared in the court pursuant to a notice of the court and made statement admitting the claim of the present defendant. On the basis of the statement made by the plaintiff, in the aforesaid suit, the suit came to be decreed. It was asserted that the defendant is in possession of the land in question and his possession is actual, physical, open, accessible and known to one and all but now the plaintiff wanted to grab the land of the defendant. It was reiterated that the judgment and decree impugned in the instant suit was 2 RSA No. 248 of 2007 passed on the basis of admission by the present plaintiff of the claim made by the defendant and thus, the present suit was liable to be dismissed on that score alone. The trial court, on the rival contentions of the parties, framed the following issues:- “1- Whether the plaintiff is entitled for declaration as prayed for? OPP 2- Whether the plaintiff is entitled for possession as prayed for? OPP 3- Whether the plaintiff is entitled for permanent injunction as prayed for? OPP 4- Whether the defendant is owner in possession of the suit land? OPD 5- Relief.” At a later point of time, an additional issue was also framed on 2.12.2004, which is also reproduced below: “1- Whether the suit is within limitation? OPP” The onus to prove the above issues, except issue No.4 was on the plaintiff. The plaintiff while appearing as his own witness totally denied the pleas raised on behalf of the defendant. He flatly denied the fact that he had appeared in person in the court and suffered a consent decree as alleged by the defendant. He further denied having appeared before the revenue authorities for getting the mutation sanctioned in favour of the defendant. The primary question that drew much attention of the court was the question of limitation. It was vehemently contended before the trial court that the suit was filed after the expiry of period of limitation prescribed in law. It was urged that the civil court decree impugned in the suit had been 3 RSA No. 248 of 2007 passed on 11.5.1981 whereas the suit challenging the said decree was filed only on 18.12.1999 and even if the limitation for filing the suit is taken to be 12 years which is the limitation prescribed under Article 64 of the Limitation Act for filing a suit for possession, the instant suit was barred by limitation. The trial court held the suit to be within limitation. The finding of the trial court in para 11 reads thus: “But, however, in my considered opinion, the suit of the plaintiff is not at all hit by limitation because limitation starts running against the true owner only when by any act or assertion of the defendant, the plaintiff feels threatened. In the case in hand, the plaintiff approached the defendant and inquired from him about the batai and the defendant apprised him of the impugned decree about 3¾ years ago and the title of the plaintiff was threatened qua the suit land and it was that time from which the cause of action accrued to the plaintiff for filing the instant suit. Moreover, in the case in hand it is the proven case of the plaintiff that he did not appear in Court nor he suffered any statement admitting the claim of the present defendant in earlier suit. The defendant himself is unaware if the present plaintiff had engaged any counsel in that case or not. He has admitted that the plaintiff was also not identified by any person from the village in the Court. The present plaintiff got his disputed thumb impressions Q1 to Q4 compared with his specimen thumb impressions S1 to S5 from PW2 an Expert witness. Except for Q3, which was found to be unsuitable for comparison, the expert found that the disputed thumb impressions did not tally with standard thumb impressions of Raunak Singh and 4 RSA No. 248 of 2007 those were of two different persons. In such a situation, the stand of the plaintiff that fraud has been committed by the defendant not only upon the present plaintiff but also upon the Court because, the impugned decree dated 11.5.1981 was got suffered by impersonating the present plaintiff by some other person. The testimony of PW2 has gone unrebutted on record because the defendant did not try to rebut his evidence by producing some expert of his own. Science of finger prints is a complete science and the margin of error is minimum in it. Had there been an expert opinion regarding signatures it might be contended that science of handwriting is not a complete science but since, the expert has opined vide report Ex. P9 that the disputed thumb impressions Q1, Q2 and Q4 do not tally with the standard thumb impressions of Raunak Singh, there can be no escape but from holding that the present plaintiff did not suffer the impugned decree and some other persons was impersonated as Raunak Singh for obtaining the impugned decree. Once fraud is committed on the Court in obtaining the decree, the principle envisaged in Article 59 of the Limitation Act would not apply. The decree obtained by fraud is not to be set aside or cancelled. It can only be declared to be not binding on the owner on whom the fraud was committed ands such a suit would fall under Article 58 of the Limitation Act. I stand fortified on this point from Surjit Kaur Vs. Malkiat Singh, 1991 PLJ 412. It is the case of the plaintiff that he is owner in possession of 23 Kanals 2 Marlas land out of the joint Khata while had given land measuring 29 kanals 12 marlas 5 RSA No. 248 of 2007 on batai to the defendant in the year 1980. Once the decree in dispute is ignorable, being not binding upon the plaintiff, the stand of the defendant that no decree for possession could be granted in favour of the plaintiff because of tenancy rights of the defendant, is not tenable because the tenancy stood automatically terminated once the defendant sets up his title qua the tenanted property, particularly when, his assertion regarding title was found to be untenable. The defendant cannot be allowed to blow hot and cold in the same breath. Even if the stand of the defendant is taken to be true that he is in continuous possession of part of the suit land i.e. 29 kanals 12 marlas, even then, he suit of the plaintiff is not hit by limitation because the suit of the plaintiff would be hit by limitation only if the defendant sets up the plea of adverse possession and claimed that he had perfected his title qua the plaintiff prior to the filing of the present suit. Otherwise suit for possession filed on behalf of the true owner would never be hit by limitation as no period of limitation has been prescribed in the limitation Act for filing a suit for possession on the basis of title. In Om Parkash vs. Palu Ram, 1992 PLJ 531 (P&H) it has been laid down that cause of action accrues to the plaintiff when the defendant actually threatened and only the threatened injury gives a party cause of action. Even entry of mutation in favour of defendant would not furnish the plaintiff any cause of action. Only when any act or assertion by which the plaintiff feels threatened, gives the plaintiff a cause of action. In the case in hand, the threat of the defendant that he would alienate 6 RSA No. 248 of 2007 land measuring 29 kanals 12 marlas to some other person gave a cause of action to the plaintiff to file the present suit.” Issue Nos.1 to 3 were decided in favour of the plaintiff and against the defendant. Consequently, in view of the findings on the aforesaid issues, the suit for declaration was decreed vide judgment and decree dated 19.10.2005 to the effect that the plaintiff was the owner and in possession of land measuring 23 Kanals 2 Marlas and the decree dated 11.5.1981 pertaining to the land measuring 29 Kanals 12 Marlas, passed by the court of Shri B.S.Teji, Sub Judge Ist Class, Patiala was not binding on the plaintiff. Decree for permanent injunction, as prayed for by the plaintiff, was also passed. The first appellate court affirmed the findings returned by the trial court. The appeal carried at the instance of the defendant was consequently dismissed vide judgment and decree dated 23.10.2006. I have heard learned counsel for the appellant and have perused the record. Learned counsel appearing for the appellant argued in vain to persuade this Court that the suit was barred by limitation. But nothing could be shown that in the facts and circumstances of the case, the suit was barred by limitation. The findings on other issues recorded by the courts below are concurrent findings of fact based on correct appreciation of the oral as well as the documentary evidence on record and again nothing was pointed out by the counsel to disturb any of the said findings. The counsel also could not show to this Court any illegality or perversity in the said findings of the courts below nor could otherwise persuade this Court by reference to any law or the material available on the record that any of the findings called for interference by this Court, 7 RSA No. 248 of 2007 particularly, when the decree in favour of the defendant was found to be the result of fraud and misrepresentation. No substantial question of law arises for the consideration of this Court. In view of the above, there is no merit in the appeal and the same is accordingly dismissed with no order as to costs. (AJAY KUMAR MITTAL) March 10, 2008 JUDGE *RKMALIK* 8