R.S.A.No. 2095 of 2007 1 In the High Court of Punjab and Haryana at Chandigarh R.S.A.No. 2095 of 2007 Date of decision: 11.8.2009 Harpal Singh (minor) and others ......Appellants Versus Karam Singh and others .......Respondents CORAM: HON'BLE MRS. JUSTICE SABINA Present: Mr.Kanwaljit Singh, Sr. Advocate with Mr.Harmanjit Singh, Advocate, for the appellants. Mr.Arun Palli, Sr. Advocate with Mr.Sunil Garg, Advocate, for the respondents. **** SABINA, J. Plaintiffs Harpal Singh and others filed a suit for declaration, which was decreed by the Civil Judge (Sr.Divn.) Moga vide judgment and decree dated 29.5.2006. In appeal, the said judgment and decree were set aside by the Additional District Judge, Moga vide judgment and decree dated 28.5.2007 and the suit of the plaintiffs was dismissed. Hence, the present appeal. Brief facts of the case, as noticed by the trial Court in R.S.A.No. 2095 of 2007 2 para Nos. 1 to 3 of its judgment, are as under:- “1. Present suit has been filed for declaration by the plaintiffs seeking therein a declaration to the effect that they were the owners in possession of land 82 kanals 18 marlas out of 1/3rd share of land measuring 281 kanals 8 marlas as fully detailed in the head note of the plaint. Another declaration that has been sought that decree dated 3.5.1994 obtained by the defendant No.1 against defendant No.2 Gurdial Singh in respect of suit land was illegal, void and inoperative on their rights. A consequential relief of injunction restraining defendants from interfering into their ownership and possession has also been sought. 2. It has, therefore, been pleaded that they were in possession of the land in dispute as owners. Defendant No.1 in connivance with defendant No.2 has been threatening to dispossess them forcibly and illegally from the suit land by denying their rights over the same. She has also threatened to alienate the suit land and she alleged a decree dated 3.5.1994 which she allegedly obtained against defendant No.2 from the court of Sub Jdge, Moga. They however do not admit the factum of validity of said decree, which was illegal, void and in operative against them on account of R.S.A.No. 2095 of 2007 3 following reasons: 1. That defendant No.2 never suffered a said decree; 2. That he had already suffered a civil court decree dated 14.9.1993 in favour of plaintiffs regarding suit land and as such he was left with no right to suffer a said decree dated 3.5.1994; 3. That said decree, if any, was a fictitious one and was a result of impersonation and was not binding on their rights; 3. Contesting defendant No.1 appeared upon notice and has filed her written statement raising certain preliminary objections therein on the grounds of cause of action, locus standi, maintainability, limitation and suit of plaintiff being false and frivolous one. It was also submitted that property in dispute was 82 kanals 18 marlas and its market value was more than 30 lacs and the alleged decrees as stated in para No.3 of the plaint was null and void. Plaintiffs also had no pre- existing right in the suit property. The decrees were compulsorily registerable as per the law laid down by the pex Court as plaintiffs had no pre-existing right. Thus, on the basis of those unregistered decrees, the R.S.A.No. 2095 of 2007 4 plaintiffs have got no right title in the suit property. On merits, it has been denied that suit land has been the ownership and has been in possession of plaintiffs as claimed. Rather, the alleged decrees dated 14.9.993 and 18.2.1995 have been obtained by plaintiffs by fraud, misrepresentation, and impersonation and those were not binding upon the rights of answering defendant and otherwise also, suit land was given to her by defendant No.2 by way of family settlement she being his only real daughter/child. Besides question of giving land to the plaintiffs by the defendant No.2 did not arise at all as she was as stated the only real child of him. Remaining, all other averments made in the plaint have been denied and dismissal of the suit was prayed for.” On the pleadings of the parties, following issues were framed by the trial Court:- “1. Whether the judgment and decree dated 3.5.1994 obtained by the defendant No.1 against the defendant No.2 is illegal and void? OPP 2. Whether the plaintiffs are entitled to declaration? OPP 3. Whether the plaintiffs are entitled to injunction? OPP R.S.A.No. 2095 of 2007 5 4. Whether the suit is not maintainable? OPD 5. Whether the plaintiffs have got no cause of action? OPD 6. Relief. ” After hearing learned senior counsel for the parties, I am of the opinion that the present appeal deserves to be dismissed. Admittedly, defendant No.1 is the real daughter of defendant No.2. Plaintiffs are the grand-sons of brother of defendant No.2 Gurdial Singh. Plaintiffs based their claim on decree dated 14.9.1993 suffered by defendant No.2 and also on the basis of Will dated 22.9.1998 executed by Gurdial Singh in their favour. Gurdial Singh died during the pendency of the suit. Plaintiffs had also filed a suit for declaration against Gurdial Singh, wherein the fact that Mukhtiar Kaur was daughter of Gurdial Singh was not disclosed. Gurdial Singh admitted the contents of the plaint and also made a statement before the Court on 7.6.1993, wherein he stated that he was issueless and un-married. On the basis of the statement made by Gurdial Singh, judgment and decree dated 14.9.1993 were passed. Thus, it is apparent that the said judgment and decree were a result of fraud and misrepresentation. In the said decree, Mukhtiar Kaur was not made a party nor her existence was disclosed in the plaint. In fact, the said decree was not a consent decree but was a collusive decree. The same had been filed by the plaintiffs to defraud R.S.A.No. 2095 of 2007 6 Mukhtiar Kaur-defendant No.1, daughter of Gurdial Singh-defendant No.2. Moreover, defendant No.2, while appearing in the witness box as PW-1, deposed that with regard to the land in dispute he had executed a registered Will. He has not talked about the decree dated 14.9.2003. The Apex Court in Gram Panchayat of village Naulakha v. Ujagar Singh 2000 (4) RCR (Civil) 749, held that a judgment obtained by collusion was not necessary to be challenged by way of filing an independent suit and it could be contended in a later suit by way of defence that the earlier decree was result of collusion. Para Nos. 6 to 8 are reproduced herein below:- “6. It appears from commentary in Sarkar's Evidence Act on Section 44 that it is the view of the Allahabad, Calcutta, Patna, Bombay High Courts that before such a contention is raised in the latter suit or proceeding, it is not necessary to file an independent suit. The passage from Sarkar's Evidence which refers to various decisions reads as follows:- “Under Section 44 a party can, in a collateral proceeding in which fraud may be set up as a defence, show that a decree or order obtained by the opposite party against him was passed by a Court without jurisdiction or was obtained by fraud or collusion and it is not necessary to bring an independent suit for setting it aside. R.S.A.No. 2095 of 2007 7 Thus, in order to contend in a latter suit or proceeding that an earlier judgment was obtained by collusion, it is not necessary to file an independent suit as stated in Jagar Ram's case for a declaration as to its collusive nature or for setting it aside, as a condition precedent. In our opinion, the above cases cited in Sarkar's Commentary are correctly decided. We do not agree with the decision of the Full Bench of the Punjab and Haryana High Court in Jagar Ram's case. The Full Bench has not referred to Section 44 of the Evidence Act nor to any other precedents of other Courts or to any basic legal principle. 7. The law in England also appears to be the same, that no independent suit is necessary. In Spencer- Bower and Turner on Res judicata it is stated that there are exceptions to the principle of res judicata. If the party setting up res judicata as an estoppel has alleged all the elements of an estoppel (i.e. ingredients of res judicata), it is still open to the latter (the opposite party) to defeat the estoppel by setting up and establishing certain affirmative answers. Of these there are four main classes- fraud, cross-estoppel, contract and public policy. The author clearly says that no active proceedings for 'rescission' of the earlier judgment are necessary. They state as R.S.A.No. 2095 of 2007 8 follows:- “The avoidance of a judicial act on the ground of fraud or collusion is effected not only by active proceedings for rescission but also by setting up the fraud as a defence to an action on the decision, or as an answer to any case which, whether by way of estoppel or otherwise, depends for its success on the decision being treated as incontrovertible.” Thus, the law is well settled that no independent suit as a condition precedent is necessary. 8. Collusion, say Spencer-Bower and Turner is essentially play acting by two or more persons for one common purpose- a concerted performance of a fabula disguised as a judicium an unreal and fictious presence of a contest by confederates whose game is the same. As stated by Lord Selborne L/C in Baswell v. Coaks, 1894 (6) Rep. 167, there is no judge; but a person divested with the ensigns of a judicial office, is misemployed in listening to a fictitious cause proposed to him, there is no party litigating no real interest brought into question and to use the words of a very sensible civilian on this point, fabula non judicium, hoc est; in scena, non in foro, res agitur. That, in our view, is the true meaning of the word ' R.S.A.No. 2095 of 2007 9 collusion' as applied to a judicial proceeding. In these circumstances, the learned lower Appellate Court rightly held that the judgment and decree dated 14.9.1993 were a result of fraud and misrepresentation and were not binding on defendant No.1. During the pendency of the suit, plaintiffs have alleged that defendant No.2 had executed a Will in their favour on 22.9.1998. Soon after the execution of the said Will, defendant No.2 died. From the factual matrix of this case, it is evident that defendant No.2 had not executed the Will of his free disposing mind. On an earlier occasion he had appeared before the Court and had stated that he was un-married and issueless and consequently a decree was passed in favour of the plaintiffs. While appearing in the witness box in this case he had not talked about the decree suffered by him in favour of the plaintiffs. He had just stated that he had not executed any decree in favour of his daughter. He had further deposed that his daughter was married and he did not have any son. These facts show that defendant No.2 was not of a sound disposing mind because he has made different statements at different instances. Defendant No.2 did not file any written statement in this case but was, however, examined as a witness by the plaintiffs. In examination-in-chief, defendant No.2 described the plaintiffs as his grand sons but in cross-examination, he clarified that the plaintiffs were not his grand sons but were the grand sons of his brother. He also admitted that Mukhtiar Kaur was his sole daughter. It appears R.S.A.No. 2095 of 2007 10 that defendant No.2 was under the influence of the plaintiffs. Although the Will in question is a registered document and has been technically proved by the plaintiffs by examining the attesting witness yet it fails to satisfy the test of judicial conscience. In these circumstances, learned Additional District Judge rightly held that the Will in question was not a genuine document and had not been executed by the testator out of his own free will. Defendant No.1 Mukhtiar Kaur, being the sole daughter of defendant No.2, was entitled to inherit his property even by way of natural succession. Hence, learned Additional District Judge had rightly dismissed the suit of the plaintiffs. No substantial question of law arises in this regular second appeal. Accordingly, the same is dismissed. (SABINA) JUDGE August 11, 2009 anita