r 491 l RegularSecond Appeal No2 of 2008 4m iNTHE HIGH COURT FOR THE STATES OF PUNJAB AND HARYANA AT CHANDIGARH RegularSecond Appeai N52 of 2008 Dateof Decisionugust 2009 BhagChand and another m Appellants r Versus 0 0 Smt MayaDevi I C5 Respondent CORAM HONBLE MR JUSTICE RAJIVE BHALLA 1 Z Present M RS Mittat Senior Advocate with Mr AtuI Gaur Advocate 0 for the appeliants I Mr LN Verma Advocate for the respondent 08 RAJIVE BHALLA J 7 Z The appellantschallengethe judgmentsand decrees dated Qm 23 122006 and 191 22007 passedby Civil Judge lnior Divisionl Hansi and the Additional District Judge Hissar decreeingthe suit filed by the resporldentand dismissingtheir appeal Maya Devi the plaintifespondent filed a su it for possessionof iand measuring 72 kanals situated in village Sisar Tehsil Hansi on the plea that the collusive decree dated 297 1975 allegedlysuffered by her in Civil Suit NoC of 1975 is a nu Ilityas it is vitiated by fraud She denied any familysettiement allegedher irnpersonationby the appellantsand pieaded that as she was a minor aged 12 years on the date of the collusive decree she could Anita 2012.11.09 11: 29 True Scanned Copy Of The Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:01 I attest to the accuracy and integrity of this document r 492 RegularSecond AppealNo2 of 2008 e2 e not make a statement or suHer a decree The contested the suit and raised various objections On merits they denied the allegationsof fraud and denied the fact that MayaDevi was 12 yearsold on the date of the decree and asserted that MayaDevi had suffered a collusive decree vide judgmentand decree dated 1 29 071975 pursuantto a familysettlement and therefore the suit 0 should be dismissed C I On the basis of the pleadingsthe trial court framed the C5 I followingissuesl 1 Whether the plaintiffis entitled to the relief of Z declaration as well as possession and inJunction r with respectto the disputedIand on the groundsso mentioned in the plaint20PP a5 2 VVhether the plaintiff has no Iocus standi and wao cause of action to file the presentsuit7OPD Z 3 VVhether the suit is barred by Iimitation70PP 4 Whether the suit is barred by principle of res judicata70PD 5 VVhether the suit is not maintainable in its present20PD 6 Relief After consideringthe pleadingsthe evidence adduced and the argumentsaddressed the triai coun decreed the suit and set aside the judgmentand decree dated 291 975 by holdingthat it was a nullityas on the date of the judgmentand decree MayaDevi was a minor It was aiso held that the impugned judgmentand Anita 2012.11.09 11: 29 True Scanned Copy Of The Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:01 I attest to the accuracy and integrity of this document 493 RegularSecond AppealNo2 of 2008 3 6 decree was obtainedby perpetuating a fraud the aforementionedjudgmentthe appellants 61ed an appealThe AdditionaI District Judge Hissar aHirmed the recorded by the trial court and dismissed the appeal Coonsel for the submits that the appellantsfiled a suit that they wereowners of the suit Iand pursuantto a family 1 C settlement MayaDevi filed a written statement Ex2 admittingtheir 0 claim She also made a statement Ex03 acceptingthe averments in C3 I the suit As a result a decree dated 291 975 was passedin favour C5 of the appellantsThe suit filed by Maya Devi alleging that this decree was obtained by fraud should have been dismissed as the Z has failed to adduce any evidence to establish her plea that this decree was obtained by perpetuating fraucl The finding recorded by the courts below that the decree dated 29 1975 is a 08 nullityas MayaDevi was 12 years old on 291 975 is based upon mm of the evidence panicularlythe bitth certificate Ex Z The birth certificate relates to and records the birth of a girlnamed Qm Surajmukhi to one Ratna son of Bhala The respondenthas failed to adduce any evidence other than her self servingstatement that she was known as Surajmukhior that she is the daughterof Ratna MayaDevi has failed to produceany other relative or any of the other children of Ratna from his other wife to establish that she was known as Surajmukhiduring her childhood The courts below however proceededto rely upoo Maya Devis uncorroborated statement to hold that she was known as Surajmukhiduringner childhood It IS further urgedthat in the plaint Maya Devi allegesthat she was 12 yearsold on 29 071975 whereas if the entries in the binh certificate Anita 2012.11.09 11: 29 True Scanned Copy Of The Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:01 I attest to the accuracy and integrity of this document 494 RegularSecond AppealNo2 of 2008 w4 areacceptedas true she would be 16 years old on 291 975 It is therefore argued that as the birth certificate belies the averments in the plaint as to age the courts below should have reJectedit It is further argued that the birth certificate Exl records the binh of a childto Ratna son of BhaIa The respondenthas failed to eadduce any evidencethat she is the daughterof Ratna In the original 1 r plaintthe respondenthas described herself as MayaDevi daughter 0 of Shiv Lal However by way of an amendment it was altered to C I MayaDevi daughterof Badamo widow of Shiv Lal The respondent C5 has failed to produceany evidence to establish that Ratna was her I father In the absence of any evidence to support her claim that she Z IS the daughterof Badamo from the Iions of Ratna or that she was 2 also known as Surajmukhithe courts below could not have placed reliance upon the birth cettificate ExP1 a5 0 Another argumentpressedinto service by counsel for the nm appellants is that as per the reportExD3 submitted by a handwriting Z expert the thumb impressionsappearing on the statement recorded tl before the court match the admitted thumb impressionof Maya Devi It is therefore arguedthat as the appellantshave provedthat the thumb impressions were affixed by Maya Devi it stands proved that she appeared before the Court filed a written statement concedingthe claim of the appellantsadmitted a familysettlement and therefore could not pleadfraud and impersonationThe findings returned by the courts below that Maya Devi did not appear before the court and was impersonatedare therefore factuallyand Iegally unsustainable It is further submitted that DW5 AJit Singh Malik Advocate who representedMaya Devi in the earlier suit has Anita 2012.11.09 11: 29 True Scanned Copy Of The Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:01 I attest to the accuracy and integrity of this document 495 RegularSecond AppealNo2 of 2008 5 4e that he was instructed by Maya Devi to file the written statement Ex02 the claim raised by the appellantsHe also identifiedMaya Devi in Court The couns below have ignored thisevidence and therefore committed an error of Ial It is further arguedthat Maya Devi and the appellants belongto the same family tm Counselforthe on the other hand submits that 0 the coutts below have recorded concurrent findingsof fact that the C I judgmentand decree dated 291 975 were obtained by C5 I and fraud It has also been held that on 291 975 MayaDevi was a minor As these concurrent findingsof fact do not Z Suffer from any error no substantial question of Iaw artses for rJ consideratior It is argued that the certificate Exl clearly I establishes that MayaDevi was a minor on 297 1975 Even if it is 08 acceptedthoughnot admittedthat she appearedbeforethe coun W2 and made a statement givin9 up her rights Ill her property her Z statement is a nullity as it is the statement of a minort is further tl submitted that apait from the document Exl the respondenthas producedan order ExJ passed by the Judicial MagistrateHansi committing Ratnathe respondentsfather and appellantnol for trial for the murder of Maya Devis mother Badamo It is clearlyrecorded in the order E P9 that Smt Maya is the daughterof Badamo It IS further pointedout that the depositionof DW1 clearly establishes that Maya Devi was a minor on 29 01975 As reaards the argumentthat the certificate ExP1 contains the name Surajmukhiit IS submitted that Maya Devis depositionthat she was known as Surajmukhiduringher childhood was rightlyacceptedby the COUItS Anita 2012.11.09 11: 29 True Scanned Copy Of The Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:01 I attest to the accuracy and integrity of this document 496 RegularSecond Appeal No2 of 2008 S L belowas it remains unrebutted It is arguedthat the opinionof the handwriting expert though not bindingbut even if accepted as correct would make no difference to the final outcome of the case as boththe courts below have returned concurrent findingsof fact that Maya Devi was a minoron the date ofthe collusive decree It is furthersubmitted that the respondenthas provedthat Smt Badamo C marriedRatna after the demise of her husband Shiv Lal and Maya 0 Devi was born from their union These facts have been admitted by C the appellantsand theirwitnesses Ex08 dated 0610 2 004 is the C statement of Ram Chander appellantno recorded in a civil suit titled as MayaDevi v Ram Chander etc In his cross examination Z Ram Chander admits that Shiv Lal died priorto his birth and Maya r Devi was born when he was 20122 years old Funher more the I commitment order Ex9 dated 11 1971 clearlyrecords Maya a5 Devi as the daughterof Badamo DW1 Surat Singhadmits that 7 Badamo mother of MayaDevi was married to Shiv LaI who died Z issueless and after his demise she married Ratna It is submitted Om that in view of the overwhelmingevidence produced by the respondentthe courts below rightlydecreed the suit and dismissed the appeal Another argument pressedinto service IS that appellant 110 1 and Ratna father of MayaDevi were tried for the murder of her mother Badamo It is therefore incomprehensiblethat Maya Devi would enter into a familysettlement with her mothers killers It IS prayedthat as the concurrent findingsof fact recorded by the courts below do not raise any question of Iaw much Iess a substantial questionof Iaw the appealbe dismissed Anita 2012.11.09 11: 29 True Scanned Copy Of The Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:01 I attest to the accuracy and integrity of this document 497 RegularSecond Appeal No2 of 2008 7 4 have heardcounsel for the partiesperusedthe record and considered the addressed by counsel for the partiesounselfor the appellanthas framed the followingquestions oflaw al Whether impugnedJudgmentof the Iearned Iower appellatecourt is perverse beingcontraryto the 1 facts stated in the record7 0 Iol Whether the findingsof Iearned Iower appellate C I court on issue no 1 are contraryto the record and C5 I based upon conjecturesand a perverse approach to the entire case7 Z C1 VVhether any fraud can be held established in the presentcasein the fact of the statement of finger I print expert DW6 and his report Ex DW61A a5 showing that the plaintifespondentherself had V appeared in the previoussuit and suffered the Z decree E P3 by affixingher thumb impressionon m the admission written statement and on the statement made on oath in the court on identification by her c0unse12 cll VVhether the Learned Iower appellate court has failed to appreciateadmissible relevant evidence furnished by the statements of two respectable Advocates appearingas DW4 and DW5 without referringto them in a properperspective7 el Whether the judgmentof the Iearned Iower appellatecourt is vitiated on account of its failure Anita 2012.11.09 11: 29 True Scanned Copy Of The Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:01 I attest to the accuracy and integrity of this document 498 RegularSecond AppealNo2 of 2008 8e 1 to that in the originalplaintthe plaintiff prescribed herself as daughterof Shiv Lal and Iater on after amendment also she prescribedherself as daughterof Badamo widow of Shiv Lal which means the same thing7 fl Whether the Iearned Lower AppellateCourt was 1 r entitled to allow the plaintiffespondentto build a 0 new case which was contraryto her pleadingin the C3 I plaint7In the piaintpara 3 the plaintiHclaims C9 her age to be 12 years in 1975 In the face of definite pleadingshe was not entitled to produceIrl Z evidence Ex P1 as her birth cenificate because it showed the age of the girl of P4 to be 16 years Ill 1975 08 gl Whether the self servingstatement of the plaintiH to the effect that her name in childhood was Suraj Z Mukhi is believable in the absence of producing L1 Ratna in her suppott and not producingany vvitness from the village Siser statingthat the childhood name of the plaintiff respondentwas SurajMukhi7 h1 Whether the suit of the plaintiff iS barred by Iimitation when it challenges a decree of 29 07 1975 in the presentsuit filed for the first time on 145197 after a Iapseof more than 22 years7 A brief narrative of the facts would be appropriate Maya 1 1 Anita 2012.11.09 11: 29 True Scanned Copy Of The Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:01 I attest to the accuracy and integrity of this document 499 RegularSecond AppealNo2 of 2008 e Devi respondent filed a suit prayingfor possession of Iand 72 kanals by allegingthat the collusive judgmentand decree Ex P2 and Ex3 dated 207 1975 passed in civil suit no28C of 1975 and the consequent mutation nol 366 dated 281 1976 sanctioned thereon are null and void Maya Devi pleadedthat she had never entered into any familysettlement or 1 r appeared In any court to file a written statement or suffered a 0 statement acceptinga familysettiement It was aiso pleadedthat C her mother Badamo was married to one Shiv Lal who died issueless C5 After his demise Badamo inherited the estate of Shiv Lal and I thereafter performeda karewa marriagewith one Ratna son of Z Bhala Maya Devi was born of this union and was known as C Surajmukhiduring her childhood After the murder of Badamo by I appellantno 1 and Ratnathe suitland was inherited by Maya Devi 5 10 Ratna and Bhag Chand were broughttotrial but were acquitted It 7 was further allegedthat on the date of passingof collusive decree Z as she was a minor and therefore Iegallyincapableof enteringinto tl a familysettlement or filing a written statement suffering a collusive decree Both the trial and the first appellatecourt have recorded concurrent findingsof fact that the judgmentand decree dated 2971975 was obtained by perpetuating a fraud In addItion concurrent findingsof fact have been recorded by the courts below that on 297 1975 Maya Devi was a mInor and therefore Iegalty incapableof enteringinto any familysettlement much Iess filing a written statement or sufferinga statement concedingthe appellants claim Anita 2012.11.09 11: 29 True Scanned Copy Of The Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:01 I attest to the accuracy and integrity of this document 200 RegularSecond Appeal No2 of 2008 10 1 The first two questionsof Iaw though generalin nature relate to the findingsthat the collusive judgment and the decree dated2971 975 were obtained by fraud would be considered along with the other questions As noticed in the precedingparagraphs thecourts below are concurrent in their opinionthat 11 On the date of the passing of the judgmentand 1 0 decree dated 291975 MayaDevi was a minor 0 21 Maya Devi is the daughterof Badamo from the Ioins 0 I of Ratna C5 31 Badamo married Ratna after the demise of her first husband Z 41 The birth ceitificate ExP establishes that Maya 1 Devi was born to Ratna I 51 Maya Devi was known as Surajmukhiduringher a5 chiidhood r 61 MayaDevi did not appear before a courtdid not Z file a written statement did not suHer a statement lOm the family settlement and therefore the judgmentand decree dt 291995 is vitiated on account of fraud The argumentthat Maya Devi has failed to prove fraud or impersonationas the finger print expert has deposed that her admitted thumb impressionsmatch the thumb impressionsappeanng on the written statement filed and the statement recorded before the passing of the judgment and decree dated 291 975 even if acceptedas true IS of no avail Thejudgmentand decree dated Anita 2012.11.09 11: 29 True Scanned Copy Of The Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:01 I attest to the accuracy and integrity of this document 201 RegularSecond AppealNo52 of 2008 41 Ie 297 1975 stands vitiated as MayaDevi was a minor andtherefore Iegallyincapableof agreeingto a familysettlement or suHeringa collusivedecree givingup her proprietoryrightswithout requisite from a Guardian Judge No such permissionhas been pleadedor established It would also be necessay to mention that the storyof Maya 10 Devi sufferinga coilusive decree in favour of the appellantsdoes not 0 appealto reason It is not denied that Badamo MayaDevis mother C I was murdered Bhagsingh appellantnol and Ratna her husband C5 I were tried for this murder but were acquittedMaya Devi could not be expectedto giveup her entire propenyto a person who was accused Z of the murder of her mother The argumentthat the birth cenificate 2 C Exl records the biith of a girl named Surajmukhito Ratna was I considered by the Courts below and rejecteclI do notfind any error c5 of Iaw as would necessitate interference with these findings Even vmo otherwise this argumentwould have assumed significanceif the Z appellantshad chosen to rebut Maya Devis oral depositionthat tl duringher childhood she was known as Surajmukhi1 therefore find noreason to differ with the opinionrecorded bythe Courts below The other argumentrelates to the plea that Maya Devi has failed to establish that she is the daughterof Ratna Both the courts below have returned concurrent findingsthat Maya Devis mother Badamo performeda Karewa marriagewith Ratna after the demise of her first husband Shiv Lal The fact that Maya Devi was born to Badamo from her marriagewith Ratna is corroborated by sufficient evidence E P8 is a statement dated 06 102004 made by Ram Chander appeliantno2 in an earlier suit titled as Maya Devi V Anita 2012.11.09 11: 29 True Scanned Copy Of The Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:01 I attest to the accuracy and integrity of this document 202 RegularSecond AppealNo2 of 2008 12 e Ram Chander wherein Ram Chander has deposed that Shiv Lal died priorto his birth and Maya Devi was born when Ram Chander was 20122years old thus clearlyadmittingthat MayaDevi was born after the demise of Shiv Lal EP9 is a order dated 11 1 1971 passedby the Judicial MagistrateIst Class Hissar committingBhag Chandappellantnol and Ratna to the Sessions Court for trial of the m 1 murder of Badamo In these proceedings Maya Devi IS clearly 0 referred to as the daughterof BadamoOW1 Surat Singh admitted C I that after the demise of her husband Shiv LaI Badamo married C5 Ratna He also admitted that Shiv Lal had died issueless This I witness therefore admits by inference that Maya Devi was the Z daughter of Ratna and Badamo To similar effect is the statement of C one Azad Singh ExP7 recorded in a priorinteopartiesdisputele I documents Ex P8 and Ex9 when read with the oral evidence and a5 the admissions made by the defendants clearlyestablish that Maya 7 Devi was born out of the wedlock of Ratna and Badamo The courts below therefore rightlyheld that MayaDevi was the daughterof tl Badamo from her Karewa marriagewith Ratna and that on the date of passingof the decree dated 297 1975 she was a minor The submission rnade by counsel for the appeliantsthat if EPl is to be accepted as correct MayaDevi would be 16 years old and not 12 years as asserted by her in the plaint even if it is acceptedtrue would not make any difference to the final outcome of the appealas MayaDevi would still be a minor In view of what has been stated hereinabove as the findingsrelatingto the date of birth and parentageof MayaDeviare purefindingof fact that do not suffer from any error of Iaw much Iess Anita 2012.11.09 11: 29 True Scanned Copy Of The Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:01 I attest to the accuracy and integrity of this document 203 e5 1 RegularSecond AppealNo52 of 2008 43 4 a error as would raise a substantial questionof Iaw the concurrentfindingsof fact recorded by the courts below are affirmed The Iast question of Iaw relates to a plea that the suit was barredby Iimitation as it was filed 22 years after the judgmentand decreedated 29 1975 merits outrightrejection Apart from the 1 fact that Maya Devi was a minor and denies knowledgeof the r decree fraud vitiates every act As fraud has been established the 0 0 suit was rightlyheld to have been filed within Iimitation I C5 In view of what has been stated hereinabove as the I questions framed by the counsel for the appellantsdo not raise any Z substantial of Iaw the concurrent findingsof fact recorded by the courts below do not call for any interference and are r therefore affirmecl The appealis dismissed with nc order as to a5 costs V Z 2009 RAJIVE BHALLAI nt JUDGE C1 r 8 421 4e a Olvlo 01 V Anita 2012.11.09 11: 29 True Scanned Copy Of The Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:01 I attest to the accuracy and integrity of this document