Regular Second Appeal No. 1276 of 2009 -1- In the High Court of Punjab and Haryana at Chandigarh Regular Second Appeal No. 1276 of 2009 Date of Decision: November 18, 2010 Umrao --Appellant versus Ram Niwas and another ---Respondents Coram: HONBLE MR. JUSTICE GURDEV SINGH *** Present: Mr.Sudhir Aggarwal, Advocate, for the appellants None for the respondents *** GURDEV SINGH, J. The present appellant-plaintiff, Umrao, filed suit for declaration to the effect that the decree dated 30.3.1996 and Mutation No. 542 entered on the basis thereof, are illegal, null and void and also for permanent injunction, by way of consequential relief, restraining the respondents/defendants from interfering in his possession or dispossessing him from the land in dispute, situated in village Nanu Khurd, as fully detailed in the plaint. His suit was dismissed vide judgment and decree dated 3.10.2008 passed by Additional Civil Judge(Senior Division), Gurgaon. Against that judgment and decree he preferred the first appeal which was dismissed by Additional District Judge, Gurgaon, vide judgment Regular Second Appeal No. 1276 of 2009 -2- and decree dated 24.12.2008. Now, he has preferred the present second appeal against those judgments and decrees. The case of the plaintiff, as pleaded in the plaint, is that he is aged person of 85 years and the defendants are his sons. He never transferred the land in dispute in their favour. However, in the month of January, 2003, they started claiming that they have become the owners of that land by way of decree of the Civil Court and threatened him that he should not cultivate the land. On making enquiry from the Patwari, he came to know that he suffered a decree dated 30.3.1996 passed in Civil Suit No. 74 of 1996. He never appeared before any Civil Court nor filed any written statement nor admitted the claim of the defendants. In fact, in 1996, he had requested the defendants that he wanted his share in the suit land and partition through a Court of Law. On that occasion, the defendants had obtained his thumb impressions on the requisite documents for the purpose of partition of that land. It was told to him that his share would be partitioned in March, 1996 and on that pretext he was brought to Gurgaon, where his thumb impressions were obtained on some printed papers and his statement was recorded in the court. He never received any summons from the Court nor he was allowed to consult any person before putting his thumb impressions on those papers. He being an old person was having faith in the defendants which was betrayed. The decree has been obtained by the defendants by taking undue advantage of his old age and illiteracy. The suit was contested only by defendant No. 1 whereas defendant No. 2 did not appear before the trial court in spite of his service and was proceeded against ex parte. In the written statement filed by the former defendant, he admitted the passing of the decree in dispute in his Regular Second Appeal No. 1276 of 2009 -3- favour and in favour of the other defendant. He denied the other contentions made in the plaint and pleaded that after the passing of that decree, he himself and the other defendant are the owners in possession of the land in dispute. The plaintiff wanted to transfer the property in their favour and got the decree passed by his free will. That decree was in the knowledge of the plaintiff from the very beginning. He along with his counsel appeared in the court and filed his written statement and also made a statement in the court knowing fully well about the contents of the plaint and the suit filed against him. He also pleaded that the plaintiff has no locus standi nor any cause of action to file the suit and is estopped from filing the same. In the replication to the written statement, the plaintiff denied the contentions raised therein and reiterated his averments made in the plaint. On the pleadings of the parties, following issues were framed by the learned trial court:- 1. Whether plaintiff is entitled for declaration and permanent injunction as prayed for on the grounds mentioned in the plaint?OPP 2. Whether suit is not maintainable in the present form?OPD 3. Whether the plaintiff is estopped from filing the present suit by his own act, conduct etc.?OPD 4. Whether the plaintiff has no locus standi to file the present suit?OPD 5. Whether the suit has not been properly valued for the purposes of court fee and jurisdiction?OPD Regular Second Appeal No. 1276 of 2009 -4- 6. Whether the suit is barred by limitation?OPD 7. Relief. To succeed in the suit, the plaintiff examined himself as PW-1 and and Malkhan-defendant No. 2 as PW-2. On the other hand, defendant No. 1 appeared in the witness box as DW-1. After going through that evidence and hearing learned counsel for both the sides, learned trial court decided Issues No. 1 to 4 and 6 against the plaintiff and Issue No. 5 against the defendants and resultantly dismissed the suit, vide the aforesaid judgment and decree. The first appeal was preferred by the plaintiff against that judgment and decree , which was also dismissed. I have heard learned counsel for the plaintiff. It has been submitted by counsel for the plaintiff that the findings of the lower courts are recorded on the misreading of the evidence as defendant No. 2, who was one of the beneficiary under the decree, appeared as witness in the Court and deposed that he was not present at the time when the decree was passed. That itself shows that the decree was the result of the fraud practised upon the plaintiff and that no such decree was ever got passed by him. Notice of motion was issued vide order dated 30.11.2009. At that time it was submitted by the counsel for the plaintiff that one of the defendant admitted the claim of the plaintiff before the trial court and that at least the suit could have been decreed against that defendant and he also submitted at that time that keeping in view the age of the appellant and his relationship with the defendants, the fraud having been played upon him cannot be prima facie ruled out. Regular Second Appeal No. 1276 of 2009 -5- No such admission was ever made by defendant No. 2 before the trial court. In fact, he did not appear before that court in spite of his service and was proceeded against ex parte. No written statement was filed by him, which rules out the possibility of any such admission by that defendant. No doubt, defendant No. 2 was examined by the plaintiff as his own witness but at that time he only stated that he was not present in the Court when the decree was passed. The same does not amount to an admission. The plaintiff is not coming, for setting aside the decree, on the ground of undue influence. He has specifically pleaded in his plaint that the decree is the result of fraud and he never intended to get any such decree passed in favour of the defendants. Even if it is assumed that he filed the suit on the ground of undue influence also, even then, it cannot be said that the decree passed by the lower courts suffered from any illegality. In that eventuality and in view of his pleadings, at the most it could have been said that the onus was upon the defendants to prove that the decree was got passed with the consent of the plaintiff. Defendant No. 1 did produce the evidence to that effect. Concurrent findings of fact were recorded by the lower courts. It cannot be said that there is misreading of evidence by those courts while recording those findings against the plaintiff or that those findings are perverse. No substantial question of law arises in the present appeal and the same is hereby dismissed. (GURDEV SINGH) JUDGE November 18, 2010 PARAMJIT