RSA No.1035 of 2009(O&M) 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.1035 of 2009(O&M) Date of decision: 8.4.2010 Kuldip Anand and others ......Appellant(s) Versus Satish Parkash @ Satish Kumar and others ......Respondent(s) RSA No.1036 of 2009(O&M) Kuldip Anand and others ......Appellant(s) Versus Satish Parkash @ Satish Kumar and others ......Respondent(s) RSA No.1037 of 2009(O&M) Kuldip Anand and others ......Appellant(s) Versus Satish Parkash @ Satish Kumar and others ......Respondent(s) CORAM:- HON'BLE MR.JUSTICE RAKESH KUMAR GARG * * * Present: Mr. Amar Vivek, Advocate for the appellants. Mr. Wazir Singh, Advocate for Mr. Harkesh Manuja, Advocate for respondents No.1 and 2. Rakesh Kumar Garg, J. (Oral) This judgment shall dispose of three regular second appeals i.e. RSA Nos.1035, 1036 and 1037 of 2009 which have arisen out of two civil suits between the parties and which were disposed of by the trial Court by one common judgment. However, the necessary facts for disposal of these appeals have been taken from Civil Suit No.3 of 2007 titled as Kuldeep Anand and Arjan Das (deceased) through his LRs vs. Shiv RSA No.1035 of 2009(O&M) 2 Darshan and others. As per the averments made in the civil suit, the plaintiff- appellants submitted that Nirmal Dass, defendant No.4, who was the father of the plaintiffs as well as defendants No.1 to 3, was owner in possession of the property in dispute. The aforesaid Nirmal Dass had married twice. The plaintiff-appellants are his sons from his wife Diali Bai whereas defendants No.1 to 3 are his sons from Saraswati to whom he had married after the death of his first wife Diali Bai. According to the plaintiff- appellants, a dispute had arisen between the plaintiffs and defendants pertaining to the distribution of the suit property which was amicably settled by way of family settlement dated 29.11.1988. The said family settlement was acted upon. As per aforesaid family settlement, the plaintiffs were owners in possession to the extent of 1/5th share each in respect of suit property. The aforesaid properties were ancestral properties in the hands of defendant No.4 and plaintiffs and defendants No.1 to 4, constituted an undivided joint Hindu Family. Defendants No.1 to 3 were residing in village Farrukh Nagar, Tehsil & District Gurgaon whereas the plaintiffs were living in other places and it was only two months prior to the filing of the suit that they came to know that Satish Parkash and Tilak Raj, defendants No.2 and 3 respectively, had fraudulently obtained a judgment and decree in civil suit No.436 of 23.5.1996 after concealing the factum of execution of family settlement dated 29.11.1988. In these circumstances, Kuldeep Anand-appellant No.1 and Shiv Darshan-respondent No.1 had jointly filed a suit for declaration with consequential relief of permanent injunction titled as “Shiv Darshan and another v. Satish Parkash and another” challenging the aforesaid judgment and decree dated 18.7.1996. The said suit bearing civil suit No.125 of 1998 was consolidated with the present suit. Another suit was also filed by defendants No.2 and 3 titled as RSA No.1035 of 2009(O&M) 3 “Satish Parkash and another v. Nirmal Dass wherein they tried to obtain a decree for declaration by concealing the family settlement dated 29.11.1988. The above said judgment and decree dated 3.1.1996 in civil suit No.1172 is null and void and not binding upon the rights of the plaintiffs. Suffice it to say, in the present suits, the plaintiffs and Shiv Darshan-defendant No.1 have taken a stand that the suit property at the hands of Nirmal Dass was ancestral property and there was family settlement dated 29.11.1988, according to which, the plaintiffs as well as defendants No.1 to 3 were entitled to 1/5th share each whereas the stand taken by defendants No.2 and 3 i.e. Satish Kumar and Tilak Raj was that decrees in their favour were legal and valid as the property at the hands of Nirmal Dass was self- acquired and he was competent to suffer the impugned decrees and the same cannot be set aside as there was no allegation of fraud etc. Moreover, Nirmal Dass himself was a party to the present suits and he never made any objection with regard to the decrees suffered in their favour. On the basis of the evidence on record and after hearing learned counsel for the parties, the trial Court decreed the suit of the plaintiffs holding that the property in question was an ancestral land and the family settlement dated 29.11.1988 was binding upon all the parties to it. It was further held that the impugned decrees dated 3.1.1996 and the impugned judgment and decrees were non est and null and void. Consequently, the suit of the plaintiff-appellants was decreed declaring that the plaintiffs were owners in possession of the suit land to the extent of 1/5th share each, in accordance with the family settlement dated 29.11.1988. Against the aforesaid judgment and decree of the trial Court dated 17.1.2008, three appeals were carried out before the Lower Appellate Court i.e. Civil Appeal No.3 of 6.2.2008 titled Satish Parkash RSA No.1035 of 2009(O&M) 4 and another v. Kuldeep Anand and others, Civil Appeal No.2 of 6.2.2008 titled as Satish Parkash and another v. Shiv Darshan and others and Civil Appeal No.6 of 4.3.2008 titled as Shiv Darshan v. Kuldip Anand and others. The aforesaid appeals were accepted and the judgment and decrees of the trial Court in both the civil suits were set aside. While allowing the aforesaid appeals, the Lower Appellate Court observed as under:- “From the perusal of the rival pleadings of the parties, it is observed that Kuldeep Anand etc. plaintiffs challenged the judgment and decree dated 18.7.1996 passed in civil suit No.436 and judgment and decree dated 3.1.1996 passed in civil suit No.1172 of 12.10.1995, as illegal, null and void and not having any binding effect on the rights of the plaintiffs. The above cited judgment and decrees have been challenged on the ground that a family settlement dated 29.11.1988 had been executed in between the parties of the suit land. According to that family settlement, the plaintiffs were owners in joint possession to the extent of 1/5 th share. The impugned judgments and decrees have also been challenged on the ground of fraud. The plaintiffs were the necessary parties being brothers and they were not impleaded as parties in that suits by which the impugned judgments and decrees were obtained. The suit property was the ancestral property in between the parties and Shri Nirmal Dass was not competent to suffer decree of the suit land. It is pertinent to mention here that the alleged RSA No.1035 of 2009(O&M) 5 family settlement had no effect on the passing of the impugned judgments and decrees because it was never acted upon in between the parties. It is also to be noted that Nirmal Dass, father of the plaintiff, purchased the suit land vide sale certificates Ex. PW11/A and Ex.PW11/B respectively. It is also to be noted as that the plaintiffs failed to prove the fact that the amount by which the suit property was purchased came from the ancestral property. In authority 2005(1) PLR 67, it has been held that property allotted in lieu of claim of Pakistan, cannot be held to be ancestral or joint Hindu Family property unless the property held in Pakistan is proved to be ancestral. The facts and circumstances of this authority are very much applicable on the present case because the plaintiffs failed to prove the fact that the property held by Nirmal Dass was ancestral in Pakistan. In these circumstances, it cannot be said that the suit property was the ancestral property of the plaintiffs. In these circumstances, the suit property was self acquired property of Nirmal Dass. It is also to be noted as that the plaintiffs filed the suits for challenging the impugned judgments and decree in the life time of Nirmal Dass and Nirmal Dass was also impleaded as party but Nirmal Dass never made any objection to the effect that the impugned judgments and decrees were the result of fraud or misrepresentation. It is also to be noted as that Nirmal Dass also executed a Will in favour of the present appellants and the Will has been RSA No.1035 of 2009(O&M) 6 fully proved. All these facts show that Nirmal Dass deceased suffered the judgments and decrees with his own free will and that was not the result of fraud or misrepresentation. It is also to be noted as that the consent decree can only be challenged on the ground of which the contract is challenged and that are coercion, undue influence, fraud, mistake and misrepresentation. In these cases, the plaintiffs (respondents) failed to prove the fact that the impugned judgments and decrees were result of fraud, misrepresentation etc. In view of the above discussion, I am of the considered opinion that the impugned judgments and decrees were not the result of fraud and misrepresentation and the suit property was self acquired property of Nirmal Dass and he was fully competent to suffer the impugned judgment and decrees.” Thus, the Lower Appellate Court on appreciation of evidence has recorded a finding of fact that the property in dispute which was purchased by Nirmal Dass from the Government cannot be held to be ancestral or Joint Hindu Family Property because the plaintiffs had failed to prove the fact that the property held by Nirmal Dass was ancestral in Pakistan. Not satisfied with the aforesaid judgment and decrees of the Lower Appellate Court, the appellants have approached this Court by way of these appeals. It is relevant to mention that in the grounds of appeal, learned counsel has submitted that the following substantial questions of law arise in these appeals: RSA No.1035 of 2009(O&M) 7 “1. Whether a patent error in the eyes of law has been committed by the learned Lower Appellate Court as while reversing the judgment of the learned trial Court, it did not even discuss or touch the well recorded finding of the learned trial Court and thereby decided the instant appeal as if it was de novo deciding the suit itself? 2. Whether the ld. Lower Appellate Court was duty bound to take into account and discuss the findings of the learned trial Court on the issue of family settlement dated 29.11.1988, Exh. PW6/2 which it clearly omitted to notice even, while recording its judgment, due to which the same is perverse and suffers from patent illegallity? 3. Whether the learned Lower Appellate Court tell into a patent error in recording its own findings about the earlier collusive decrees dated 18.7.1996, in civil suit No.436 of 23.5.1996 and decree dated 3.1.1996 in civil suit No.1172 dated 12.10.1995 etc., respectively, dehors the findings and observations of ld. Trial Court and the evidence on record, and ignoring the material and evidence on record, whereas it had been proved on record that the earlier decrees had been obtained by the respondents without impleading the appellants as a party, the earlier decrees were collusive and material documents like family settlement etc. had been withheld therefrom, besides pointing out various other legal and factual aspects duly appreciated and upheld by the RSA No.1035 of 2009(O&M) 8 learned trial Court? 4. Whether the lower Appellate Court ought not to have given any credence to the stand of the respondents, as their evidence was based upon collusive decrees, fraudulently obtained earlier by them and in terms of the various judgments rendered by the Hon'ble Supreme Court of India, a party not approaching the Court with clean hands ought to be non-suited on this ground alone? 5. Whether the findings of learned Lower Appellate Court about the suit property not being joint, derived from the sale certificate are perverse, inasmuch as it had been duly proved, as rightly found by the learned trial Court, that the sale certificate was based upon the land left by Shri Nirmal Dass in Pakistan and not even a penny had been paid for the purchase of land and hence the property was essentially coparcenary and ancestral? 6. Whether the learned lower Appellate Court ought not to have rejected the arguments of the appellants about the express admissions made by the respondents- defendants in various suits and pleadings earlier about their property being joint Hindu Family Property and the family settlement having been executed inter se the parties? 7. Whether the findings of the learned Lower Appellate Court are perverse as they are in utter disregard of the fact that in the family settlement dated 29.11.1988, there was a clear-cut recital about the RSA No.1035 of 2009(O&M) 9 payment of Rs.1.50 lac by the appellants on their part, which aspect had also been proved before the learned trial Court but no finding whatsoever on this crucial point was recorded by the learned Lower Appellate Court? 8. Whether the cursory, mechanical and absolutely baseless finding of the ld. Lower Appellate Court in para 19 of its judgment, to the effect that the family settlement dated 29.11.1988, had never been acted upon, is liable to be set aside, the same being not based upon appreciation of any material or evidence at all? 9. Whether the impugned judgment of the learned Lower Appellate Court relied upon perverse material, has been rendered in utter disregard of the documentary and oral evidence duly adduced before it and, as such, is liable to be set aside?” However, on 25.3.2009, at the time of motion hearing, learned counsel appearing on behalf of the appellants contended that the findings recorded by the Lower Appellate Court were contrary to the pleadings of the parties wherein defendant-respondents had admitted the factum of property being ancestral coparcenary Joint Hindu Family Property. The order dated 25.3.2009 reads as follows: “Present: Amar Vivek, Advocate for the appellants. * * * * CM Nos.3897-98-C of 2009 This is an application under Section 151 of the Code of Civil Procedure seeking permission to place on record the accompanying additional RSA No.1035 of 2009(O&M) 10 affidavit on record. There is no such provision under which in a regular second appeal additional affidavit can be taken on record under the inherent powers under Section 151 of the Code of Civil Procedure. Consequently, the C.M is dismissed. RSA No.1035 of 2009 The learned counsel for the appellants contends that the finding recorded by the learned lower appellate court is contrary to the pleadings of the parties wherein defendant/respondents had admitted the factum of property being ancestral coparcenary joint Hindu family property. Notice of motion for 13.7.2009. Parties are directed to maintain status quo.” During the course of subsequent proceedings, this Court on perusal of the impugned judgment and decrees found prima facie, that the contention raised by the learned counsel for the appellant at the time of motion hearing was incorrect. During the course of hearing, today, learned counsel for the appellants was given a very fair chance to prove and support his contention from the record, as raised by him on 25.3.2009. However, learned counsel was unable to support his aforesaid contention to the effect that the findings of the Lower Appellate Court were contrary to the pleadings of the parties. Thus, the solitary contention raised by the learned counsel for the appellants is held to be without any merit. In view of the aforesaid, substantial questions of law alleged to be arising in these appeals, as mentioned in the grounds of appeals, do not RSA No.1035 of 2009(O&M) 11 arise. Consequently, all these appeals being devoid of merit are dismissed with costs which are assessed as Rs.10,000/- in each appeal. April 8, 2010 (RAKESH KUMAR GARG) ps JUDGE