IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. R.S.A. No. 4228 of 2008 (O&M) Date of Decision: 10.02.2010 Kadma. ....... Appellant through Shri Raj Mohan Singh, Advocate. Versus Smt.Kamla Devi and others. ....... Respondent nos. 1 & 2 through Shri Ashish Gupta, Advocate. None for other respondents. CORAM: HON'BLE MR.JUSTICE MAHESH GROVER .... 1. Whether Reporters of Local Newspapers may be allowed to see the judgment? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? .... Mahesh Grover,J. This Regular Second Appeal is directed against judgment and decree dated 14.6.1999 passed by the Additional District Judge, Karnal (hereinafter referred to as `the first appellate Court') whereby the judgment & decree dated 22.3.1999 of the Civil Judge (Junior Division), Karnal (described hereinafter as `the trial Court') were modified on the basis of a compromise having been arrived at between the parties. Since it is barred by limitation, C.M.No.12670-C of 2008 has been filed for condonation of 3216 days' delay in its filing. R.S.A.No.4228 of 2008 (O&M) -2- .... The appellant and four others filed a suit for declaration to the effect that they were owners and in joint possession of 3/4th share of land measuring 44 kanals 2 marlas (hereinafter described as `the suit property') being 2646/7742 share of total 387 kanals 1 marla of land situated in village Bahri, Tehsil Assand, District Karnal, which was fully detailed in paragraph 3 of the plaint. The suit property was stated to be in the ownership of one Bhartu, who died issueless. It was averred that Bhartu along with his four brothers, namely, Kadma (present appellant), Telu Singh, Parmal Singh and Jagmal, was jointly holding his share. It was further averred that on the basis of some collusive decree, Smt.Kamla and Tarsh Pal, her minor son, both of whom are the decendents of Parmal Singh, got the suit property mutated in their names, whereas no such decree was suffered by Bhartu. It was alleged that firstly there was no such decree and even if, it existed, the same was the result of fraud because neither Bhartu appeared in any Court nor made any statement. It was further alleged that Bhartu was an illiterate person aged about 75 years and Sapattar Singh, husband of Smt.Kamla and father of Tarsh Pal had murdered Bhartu for which he was challaned. Besides the aforesaid Smt.Kamla and Tarsh Pal, who was at that time a minor and impleaded through his father, Sapatar Singh, Kallatar Singh, Ajmer Singh and Ramesh Singh, all sons of Parmal Singh, were impleaded as defendants in the suit. In a joint written statement, the defendants had contested the suit on the ground of maintainability, locus standi,misjoinder & non-joinder of necessary parties. On merits, the share of Bhartu to the extent of R.S.A.No.4228 of 2008 (O&M) -3- .... 2646/7742 was admitted, but it was averred that the suit property was self- acquired property of Bhartu and the provisions of Hindu Succession Act,1956 were not applicable. The collusive decree was stated to be absolutely legal. On the pleadings of the parties, the following issues were framed:- 1. Whether the plaintiffs are entitled to the relief claimed as alleged?OPP 2. Whether the parties to the suit constituted a Joint Hindu Family?OPP 3. Whether the judgment/decree in favour of defendants No.1 and 2 is null, void and not binding upon the rights of the plaintiffs, if so its effect?OPP 4. Whether the plaintiffs have got no locus standi to file the present suit?OPD 5. Whether the suit in the present form is not maintainable?OPD 6. Whether the suit is bad on account of mis-joinder and non- joinder of necessary parties?OPD 7. Relief. After appraisal of the entire evidence on record, the trial Court decreed the suit. Feeling aggrieved, Smt.Kamla and Tarsh Pal filed appeal wherein a compromise was allegedly arrived at between the parties and on R.S.A.No.4228 of 2008 (O&M) -4- .... the basis of which, the first appellate Court disposed of the appeal in the year 1999 itself. The statements of the parties were also recorded and the written compromise was taken on record as Exhibit-CX. As per this compromise and the consequent decree passed by the first appellate Court, Smt.Kamla and Tarsh Pal were held entitled to ½ share of the suit property, whereas the plaintiffs including the present appellant were held entitled to the remaining ½ share. In the instant appeal, the appellant has averred that he came to know about the compromise decree passed in the year 1999 only when a suit for mandatory injunction was filed by the defendants on 12.4.2008 for issuance of a direction to the Tehsildar to enter and sanction mutation in his and other plaintiffs' favour on the basis of decree dated 14.6.1999. He has further averred that a fraud was played thereby reducing his entitlement of the share by way of the decree in question and that he never gave any consent in that regard and never put his thumb impression on any compromise. Since a delay of 3216 days occurred in filing the appeal, the appellant has moved an application under Section 5 of the Limitation Act for condonation thereof and pleaded therein that there is no limitation for challenging a decree based on fraud and, therefore, the appeal be entertained and decided on merits. Upon notice, Smt.Kamla and Tarsh Pal put in appearance and filed reply to the application for condonation of delay. It was alleged that the judgment and decree dated 14.6.1999 were within the knowledge of the R.S.A.No.4228 of 2008 (O&M) -5- .... appellant and that all the pleas raised by him were false. It was averred that the appellant had put his thumb impression on the compromise before the Court and nothing was forged. I have heard the learned counsel for the parties on the application for condonation of delay. To appreciate the contentions and the averments made in the application for condonation of delay, I have perused the records of the trial Court, as also that of the first appellate Court wherein the compromise was arrived at between the parties and which has strongly been refuted by the learned counsel for the appellant by pleading fraud. The compromise deed is on record as Exhibit-CX. Prior thereto, the first appellate Court in its order noticed the presence of all the respondents and finally when the appeal was disposed of on the basis of the said compromise, the statements of the parties were also recorded which have been duly thumb marked or signed by the respective parties after due identification by their counsels. This totally belies the assertion made by the appellant in support of the plea for condonation of delay. There is, indeed, no doubt that the law of limitation should be construed liberally so as to ensure that the interest of justice is not thwarted on technical grounds, but, at the same time, such an enormous delay cannot be brushed under the carpet, especially when the explanation given does not seem to be bona fide. In view of the fact that the judicial record totally contradicts the plea of ignorance and absence from judicial proceedings, this Court is of the considered opinion that the delay R.S.A.No.4228 of 2008 (O&M) -6- .... in filing the appeal cannot be condoned. Accordingly, the appeal has to be dismissed on the ground of limitation alone. Ordered accordingly. All pending civil miscellaneous applications are also dismissed in view of the above. February 10,2010 ( Mahesh Grover ) “SCM” Judge