RSA No. 750 of 2009 (O&M) 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.750 of 2009(O&M) Sat Pal ....Appellant VERSUS Singh Ram and others ....Respondents RSA No.751 of 2009(O&M) Sat Pal ....Appellant VERSUS Singh Ram and others ....Respondents RSA No.752 of 2009(O&M) Sat Pal ....Appellant VERSUS Singh Ram and others ....Respondents RSA No.753 of 2009(O&M) Sat Pal ....Appellant VERSUS Singh Ram and others ....Respondents Decided on : 17-02-2009 CORAM:- HON'BLE MR. JUSTICE MAHESH GROVER Present:- Mr. Munish Jolly, Advocate for the appellant. RSA No. 750 of 2009 (O&M) 2 MAHESH GROVER, J C.M. Nos. 2187-C of 2009 (in RSA No. 750 of 2009), 2189-C of 2009 (in RSA No. 751 of 2009), 2191-C of 2009 (in RSA No. 752 of 2009) and 2193-C of 2009 (in RSA No. 753 of 2009) For the reasons mentioned in the applications, delay of 867 days in re-filing the appeals is hereby condoned. RSA No. 750 of 2009 This order will dispose of four RSA Nos. 750 of 2009, 751 of 2009, 752 of 2009 and 753 of 2009. These are four regular second appeals filed by the plaintiff- appellant who filed four separate suits against the present respondents bearing nos. 401 of 2001, 402 of 2001, 404 of 2001 and 477 of 2001 against various different sets of respondents who have been arrayed as such in these separate four appeals. The suit of the appellant was primarily confined to the challenge to a decree passed in Civil Suit no.116 of 1987 titled as Ajay Pal @ Ajay Pal Singh versus Sat Pal etc. regarding suit property which was described separately in the suits. It is pleaded that the property belonged to Data Ram, father of the appellant-plaintiff. Plaintiff-appellant is son of Data Ram from his first wife who expired. Data Ram thereafter entered into second marriage from whose association three sons namely Ajay Pal Singh, Sunder Lal and Singh Ram were born. In 1987 Data Ram and other three sons filed a civil suit in which appellant was arrayed as defendant and a collusive decree was suffered in favour of the appellant as also the respondents and Data Ram whereby his properties were divided amongst all the legal heirs. The appellant by virtue of the suit contested the family settlement-cum-arrangement and pleaded fraud to challenge the decree of 1987 and stated that he never appended his signatures to the statement RSA No. 750 of 2009 (O&M) 3 before the Court and his signatures have been obtained on blank paper. The respondents filed joint written statement and raised objections regarding limitation, maintainability and estoppel. They pleaded that the property had been distributed equally and the civil suit of 1987 has been filed on the basis of family settlement. The fraud was denied. Both the parties went to trial broadly on the following issues:- 1) Whether the judgement and decree dated 6.2.87 passed in Civil Suit No. 116 of 1987 is null, void, illegal, inoperative, ineffective and has been obtained by playing fraud by the defendants no. 1 & 2 and is liable to be set aside on the grounds mentioned in para no.4 of the plaint? OPP. 2) If issue No.1 is decided in favour of the plaintiff then whether the plaintiff is entitled to declaration as prayed for? OPP. 3) Whether the suit is not maintainable in the present form? OPD. 4) Whether the suit has not been filed within limitation? OPD. 5) Whether the plaintiff is estopped from filing the present suit by his own act and conduct? OPD. 6) Whether the plaintiff has not come to the court with clean hands and has suppressed the material facts from the court in view of preliminary objection no.4, if so, to what effect? OPD. 7) Relief. Singh Ram also filed a separate civil suit bearing no.404 of 2001 against the appellant wherein he prayed for declaration to the effect RSA No. 750 of 2009 (O&M) 4 that they are owners in possession to the extent of 3/4th share in the property described in the suit. It was stated by Singh Ram who was plaintiff in that suit that he and the appellant (defendant in the suit) constituted Joint Hindu Family and the property was joint Hindu Family property and family settlement was arrived at for equitable distribution of the property and in that settlement it was agreed that any of the plaintiff and defendant who got the land in two different villages will be entitled to 5 kanals of land more than his share ignoring the deficiencies or excess of 9 marlas. In this way Singh Ram, plaintiff in that suit got more land than his share as he got land in two different villages and that four separate suits were filed on the basis of which decree was passed in the year 1987. It was pleaded that the plaintiff Singh Ram and defendant have jointly purchased a shop fully detailed in para no.2 of the plaint through joint Hindu family funds but it was recorded in the name of appellant Sat Pal alone and house mentioned in appeal was also bought from the family funds but name of appellant was entered alone. Singh Ram pleaded that he was joint owner of the said properties. Respondent contested the suit and pleaded that he is absolute owner of these properties and plaintiff has nothing to do with it. In this suit the following issues were framed:- 1) Whether the family settlement ever took place between the parties? If so, its effect?OPP. 2) Whether plaintiffs are entitled for the declaration of joint ownership and possession to the extent of 3/4th share in the suit property? OPP. 3) Whether the suit is time barred? OPD. RSA No. 750 of 2009 (O&M) 5 4) Whether the plaintiffs are estopped from filing the present suit by their acts and conducts/ OPD. 5) Whether the plaintiffs have suppressed the true and material facts from the Court? OPD. 6) Whether the present suit is not legally maintainable in its present form? OPD. 7) Whether the suit has not been properly valued for the purposes of court fees and jurisdiction? OPD. 8) Whether the suit has been filed on false, frivolous and vexatious grounds? OPD. 9) Relief. The Trial Court as also the First Appellate Court came to the conclusion that the suits filed by the appellant are frivolous and were barred by limitation as the decree was passed in the year 1987 while civil suits were filed in the year 1996. In the suit filed by Singh Ram against the appellant Sat Pal it was held that there was no family settlement regarding the property i.e. the shop and the house and the suit filed by Singh Ram etc. was also dismissed. In appeal, the findings of the learned Trial Court were affirmed. Learned counsel for the appellant has contended that the family settlement as pleaded by Singh Ram who is the respondent in the suit filed by the appellant and the plaintiff in a separate suit filed by him, the findings recorded by both the Courts below was that family settlement was not proved and if the family settlement was not proved than the very basis of decree of 1987 was knocked out and in this view of the matter, the suit of the appellant ought to have been decreed. RSA No. 750 of 2009 (O&M) 6 I have heard learned counsel for the appellant and have perused the impugned judgments. The contention of the learned counsel for the appellant necessarily has to be repelled for the simple reason that plea of family settlement was confined only to the property purchased out of the family funds. It is shop and house described in the civil suit by Singh Ram (No.404 of 2001). The decree of 1987 was never in question in these proceedings. It is the appellant who has questioned the decree of 1987 on the basis of fraud, which he has miserably failed to prove. A person who alleges fraud is cast with an onerous duty to prove it. No such material is before the Court from where an inference can be derived that the appellant had been defrauded at the time of passing of the decree in 1987. That apart, the appellant and the respondents who were put in possession of the various properties of Data Ram and they did not question the decree for as long as nine years while enjoying the fruits of that property. Both the Courts therefore rightly concluded that the suits were clearly barred by limitation. The decree was to the knowledge of the appellant and therefore, it is inconceiveable that he would realise the factum of fraud after an ordinately long period of nine years. There is, thus, no infirmity in the findings recorded by both the Courts below. It is a case where the family has accepted the division to the satisfaction of all. The appeals are, therefore, without any merit and do not involve any substantial question of law and are hereby dismissed. February 17, 2009 (Mahesh Grover) rekha Judge