Regular Second Appeal No. 73 of 2004 1 IN THE HIGH COURT OF PUNJAB & HARYANA, CHANDIGARH R.S.A. No. 73 of 2004 (O&M) Date of Decision: August 06, 2009 Amrit Singh and another ...........Appellants Versus Jagdish Singh and another ..........Respondents Coram: Hon'ble Mrs. Justice Sabina Present: Mr.S.K.Singla, Advocate the appellants. Mr.Arihant Jain,Advocate for the respondents ** Sabina, J. Plaintiffs have filed a suit for declaration and permanent prohibitory injunction. The suit of the plaintiffs was dismissed by the Civil Judge (Junior Division) Malerkotla vide judgment and decree dated 19.9.2002. Aggrieved by the same, plaintiffs preferred an appeal and the same was dismissed by the Additional District Judge, Fast Track Court, Sangrur vide judgment and decree dated 7.8.2003. Hence, the present appeal. The brief facts of the case, as noticed by the learned Additional District Judge in paras 2 and 3 of its judgment, reads as under:- “2. The facts giving rise to this appeal, in brief, are that plaintiff- appellant has filed suit against Jagdish Singh & Nahar Singh defendants for declaration that she was in possession of land measuring 6 bighas 7 biswas and ½ share of land measuring 47 bighas 3 biswas, fully described in the heading of the plaint and Regular Second Appeal No. 73 of 2004 2 Judgment & Decree dated 27.2.1986 in Civil suit No.507 of 9.8.85, decided on 27.2.86, passed by the learned Sub Judge, IInd Class, Malerkotla, is null and void and result of fraud and misrepresentation played by the defendants and is ineffective on the rights of the plaintiff qua the suit land and the same is also liable to be set aside and mutation sanctioned on the basis of that Judgment & Decree is also null and void and ineffective on the rights of the plaintiff and in the alternative, suit (of joint possession of the land in dispute and further suit for permanent prohibitory injunction restraining the defendants from alienating the land in dispute and that dispossessing the plaintiff illegally and forcibly from the land in dispute on the grounds that he was owner in possession of the land in dispute and that the defendants are his sister's sons and the defendants never resided in village Tollewal nor served the plaintiff, however, in the first week of January 1996, the plaintiff decided to transfer some land, out of land in dispute and for that purpose,the plaintiff obtained a copy of Jamabandi for the year 1992-93 from the Patwari Halqa and from it he came to know that the land in dispute is shown in the ownership of the defendants and on enquiry from the defendants, they replied that in the year 1985, the plaintiff had given the suit land to the defendants and he also suffered a collusive decree dated 27.2.86, in their favour and by threatening the plaintiff have obtained the copies of plaint, written statement, Judgment and decree of suit No.507 of 9.8.85. It is claimed that he never gave the suit land to the defendants nor appeared in suit No.507 nor Regular Second Appeal No. 73 of 2004 3 engaged any counsel in the alleged suit. It was further claimed that the plaintiff also never made any statement admitting the claim of the defendants and Judgment & Decree passed by the learned Sub Judge, IInd Class in Suit No.507 are the result of fraud and misrepresentation, practiced by the defendants on the plaintiff. It is further alleged that the defendants had come to the plaintiff in the year 1985 and told him that the Government is giving the loan to the farmers at a very low rate of interest and they also instigated the plaintiff to get the loan and in this regard, the defendants obtained the thumb impression of the plaintiff on some blank papers, thereafter, the plaintiff enquired from the defendants as to what happened about the taking of loan by him from the Government, upon which, they replied that the Government has cancelled the scheme. Therefore, defendants used the abovesaid blank papers for obtaining the Judgment and Decree and the plaintiff had thumb marked the blank papers as he had full faith in the defendants. Since, the defendants refused to admit the claim of the plaintiff and taking undue advantage on the basis of wrong entries of Revenue Record, the defendants threatened to alienate the suit land and illegally dispossessed the plaintiff from the suit land. Hence, the suit. 3. The defendants, in their written statement, denied the allegations of the plaintiff and interalia pleaded that the plaintiff was fully aware that he had no concern with the ownership and possession of the suit land and the same was given to the defendants by him in a family settlement and lateron, the plaintiff Regular Second Appeal No. 73 of 2004 4 suffered the impugned decree and,therefore, the defendants were owners in possession of the suit land. It was further alleged that the defendants were owners in possession of the suit land for the last 21/22 years in the knowledge of the plaintiff and that the mutation of the suit land has already been sanctioned in favour of the defendants with the consent of the plaintiff. It was also alleged that the plaintiff also suffered decree in suit No.229 of 166-83 decided on 19-7-83, in favour of Surjit Singh, Ranjit Singh & Prem Singh and the defendants reserved their rights to challenge the said decree. It was denied that the plaintiff never appeared in suit No.507 of 9.8.85 nor made statement admitting the claim of the defendants. It was also denied that they went to plaintiff in the year 1985 and have obtained his thumb impressions on blank papers on the pretext of taking loan from the Government. It was also denied that any fraud was played upon the plaintiff by them. It was further alleged that the suit land was in possession of the defendants before 1985 and the plaintiffs admitted their ownership and possession by filing his written statement in civil suit No.507 of 9.8.1985 and by giving his statement on oath in the Court, on the basis of which, Judgment and decree dated 27.2.1986 was passed by the Court. It was also claimed that the suit was also barred by time and is not maintainable in the present form. It was further alleged that the plaintiff appeared in the Court and filed written statement and gave statement admitting the claim of the defendants and then, the Court passed the decree in their favour.” Regular Second Appeal No. 73 of 2004 5 On the pleadings of the parties, the following issues were framed by the trial Court:- “i) Whether the plaintiff is entitled to declaration as prayed for. ? OPP ii) Whether the Judgment and decree in civil suit No.507 of 9.8.1985, passed on 27.2.1986, is null and void, result of fraud and misrepresentation and is liable to be set aside?OPP iii) Whether the plaintiff is entitled to permanent injunction as prayed for?OPP iv) Whether the suit is not within limitation?OPD v) Whether the suit is not maintainable in the the present form?OPD vi)Whether the suit is bad for non-joinder and misjoinder of necessary parties ?OPD vii) Relief.” After hearing the learned counsel for the appellant, I am of the opinion that this appeal deserves to be dismissed. The case of the plaintiffs is that the judgment and decree passed on 27.2.1986 (in Civil Suit No.507 of 9.8.1985) were illegal, null and void and were the result of fraud and misrepresentation. In order to prove their case, parties led their respective evidence. However, the plaintiffs failed to establish that the impugned judgment and decree in question were the result of fraud or misrepresentation. The original file was summoned by the trial Court. Statement was made by the plaintiff and Swaran Singh after filing the written statements. Plaintiff in the said suit Regular Second Appeal No. 73 of 2004 6 was duly identified by Swaran Singh, Numberdar. In these circumstances, both the Courts below had rightly held that the plaintiff had failed to establish that the decree was passed on the basis of fraud or misrepresentation. It is a settled proposition of law that a compromise decree which creates right, title or interest in the movable property worth more than Rs.100/- requires registration. However, as per Exhibit D1, plaintiffs in the earlier suit had claimed that about 10 years ago land in dispute was given to them in a family settlement. The said facts were admitted by the plaintiff Jagir Singh, who was defendant in the earlier suit and on the basis of the same, the decree in question was passed. Hence, it can not be said that the decree in question created rights in the parties for the first time. Rather the decree in question is merely an acknowledgment of earlier family settlement. The settlement arrived at between the parties was about 10 years ago. Petitioner Jagir Singh was unmarried and he gave 30 bighas of land to the defendants in the present case i.e. Jagdish Singh and Nahar Singh and the remaining land was given to Surjit Singh, Ranjit Singh and Prem Singh, nephews of Jagir Singh. It is a settled proposition of law that any party to a consent decree cannot challenge the same on the ground of non-registration of the decree. Both the Courts below had rightly dismissed the suit of the plaintiff. No substantial question of law arises in this case which would warrant interference by this Court. Accordingly, this appeal is dismissed. ( Sabina ) Judge August 06, 2009 arya