Regular Second Appeal No. 21 of 2006 1 In the High Court of Punjab and Haryana, at Chandigarh. Regular Second Appeal No. 21 of 2006 Date of Decision: 16.10.2008 Kidara …Appellant Versus Rajwanti …Respondent CORAM: HON’BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA. Present: Mr. Arvind Singh, Advocate for the appellant. Kanwaljit Singh Ahluwalia, J. This regular second appeal was preferred by Kidra son of Risala. He has been unsuccessful in the two Courts below. Case of the appellant is that he was in possession of 1/3rd share of the suit land, particulars of which have been given in the plaint. By filing a suit he wanted that judgment and decree passed in Civil Suit No. 37 of 10.1.1996 passed on 17.2.1986 be set aside. It has been further stated that the mutation sanctioned on the basis of decree be also set aside as the same had been obtained by way of fraud. It was further stated in the suit that in the year 1986, respondent had brought appellant-plaintiff to Rohtak for medical check up, as he was required to thumb mark some papers as guarantor to the tractor loan case. It has been further stated that he came to know in December 1985 that the defendant had misused those papers and on misrepresentation a decree had been passed against the plaintiff. It was further pleaded that Regular Second Appeal No. 21 of 2006 2 he being an illiterate and old person could not comprehend outcome of the litigation. He prayed that the decree and subsequent mutation be set aside being illegal, null and void. Notice of the suit was issued. The Defendant appeared. She took a preliminary objection that the suit is not maintainable and the same is time barred. It was further stated that by his own act and conduct, the plaintiff is estopped from filing the present suit and no cause of action has arisen and he has no locus standi. On merits, it was stated that the judgment and decree dated 17.6.1986 was passed in favour of the defendant in accordance with law regarding 1/3rd share of the land measuring 500 kanals 9 marlas and not 50 kanals 9 marlas. It was further stated that the appellant-plaintiff himself suffered a decree in favour of the defendant. He had engaged a counsel, filed a written statement in which averments made in the plaint were admitted and made a statement in the Court according to his own free will and consent without any coercion. After the pleadings of the parties had concluded, following issues have been framed by learned trial Court:- 1. Whether the Civil Court decree dated 17.2.1986 is illegal, null and void? OPP 2. Whether the plaintiff is owner in possession of the suit property? OPD 3. Whether the suit is not maintainable in the present form? 4. Whether the suit is barred by limitation? OPD 5. Whether the plaintiff is estopped from filing the Regular Second Appeal No. 21 of 2006 3 present suit by his own act and conduct? OPD 6. Relief. The appellant-plaintiff led evidence and examined one Devender Kumar, Clerk, DRK, Rohtak, as PW.1. Plaintiff himself appeared as PW.1 and also examined Satbir son of Diwan and another Satbir son of Ram Chander as PW.3 and PW.4, respectively. Thereafter, the evidence was closed. The defendant herself examined as DW.1. One Ram Kishan was examined as DW.2 and documents Ex.D1 to Ex.D12 were tendered. The two Courts below have taken into consideration the fact that the defendant is none else but the grand daughter in relation to the appellant. It further returned a finding that since the appellant had himself appeared in the Court and had deposed, therefore, his plea that the the earlier decree was result of fraud cannot be upheld. The two Courts below further came to conclusion that consent decree is as good as a decree obtained after contest. The plea that inadvertently decree instead of 1/6th share was passed regarding 1/3rd share was also declined. The two Courts below have also came to conclusion that since the decree had been passed on 17.2.1986 in the earlier suit, the present suit was filed on 24.1.1997. Thus, there was a delay of more than 12 years. The two Courts below have returned a concurrent finding of fact that there was no fraud and the plea raised subsequently is after thought. Mr. Arvind Singh, Advocate, appearing for the appellant has stated that in view of fiduciary relationship, fraud is writ large. I am Regular Second Appeal No. 21 of 2006 4 unable to accept this contention as I cannot re-appraise and re- appreciate the evidence led before learned trial Court. Reliance has been placed upon Chalti Devi and Others v. Rajinder Kumar and Another 2003(3) Punjab Law Reporter 463 to contend that a person who was in dominant relationship, onus is caused upon that person to prove that there was no fraud. Reliance has been also placed upon another judgment Madan Lal and Another v. Rajesh Kumar (Dead) through LRs. 2005(3) Punjab Law Reporter 466. The two Courts below after taking into consideration the evidence of appellant-plaintiff and his two witnesses namely Satbir son of Diwan PW.3 and Satbir son of Ram Chander PW.4 held that in this case, the plea of fraud cannot be accepted. No material has been placed before me to differ with the well reasoned finding returned by the two Courts below. Learned counsel for the appellant has urged that substantial question of law is that whether a decree was obtained by way of fraud or not?. In the facts and circumstances of the case, it cannot be said that there was a fraud on the part of defendant-respondent, therefore, on facts, question raised being substantial cannot be entertained. Thus, the appellant cannot succeed and his Regular Second Appeal cannot be accepted. (Kanwaljit Singh Ahluwalia) Judge October 16, 2008 “DK”