RSA. No.1419 of 1982 -1- IN THE HIGH COURT FOR THE STATES OF PUNJAB AND HARYANA AT CHANDIGARH RSA. No.1419 of 1982 Date of Decision. 14.11.2011 Sheo Ram son of Hukam Singh resident of Sahjawas, Tehsil and District Gurgaon …………Appellant Versus Hem Raj and others and others ……Respondents Present: Mr. C.B. Goel, Advocate for the appellant. Mr. A.P.S. Sandhu, Advocate for respondent No.1. Mr. Rajinder Goyal, Advocate for respondent Nos.2 and 3. Mr. Deepak Manchanda, Advocate for respondent No.4. CORAM:HON'BLE MR. JUSTICE K. KANNAN 1. Whether Reporters of local papers may be allowed to see the judgment ? Yes/No 2. To be referred to the Reporters or not ? Yes/No 3. Whether the judgment should be reported in the Digest? Yes/No -.- K. KANNAN J. 1. The defendant in suit is the appellant before this Court. The minor sons and daughter of the person by name Parsandi had filed a suit for declaration that the decree obtained by the defendant against the plaintiff was illegal, void and inoperative and could not take away the rights that they were still the owners of their share in the properties. The suit had been dismissed. The appeal filed by the RSA. No.1419 of 1982 -2- plaintiffs had been allowed and the plaintiffs’ suit challenging the decree obtained in C.S. No.343 of 1978 had been found to be not binding on the plaintiffs. The defendant has appealed against the said judgment before this Court. 2. The suit in the appeal arises out of the following facts. An extent of property measuring 145 kanals 19 marlas of land described in the plaint was owned and possessed by one Hukam Singh. He died on 28.07.1974 leaving behind two sons Ram Chander and Sheo Ram (1st defendant), Parsandi the daughter and his widow Parbho. Mutation had been sanctioned assigning to each one 1/4th share. The daughter Parsandi had also died subsequently and as regards the 1/4th share, the mutations stood sanctioned in the name of Hem Raj, Mahinder and Rajinder being the sons, Smt. Dhano, Smt. Mahendri and Billi being the daughters. Mahinder, Mahendri and Billi are not parties. Only three of the heirs of the six heirs have filed the suit. It appears that Parbho, widow of Hukam Singh also died leaving behind the two sons Ram Chander and Sheo Ram and the children of the pre-deceased daughter Parsandi. The plaintiffs along with their other brothers and sisters would claim 1/3rd share in whole of the estate. It appears that the defendant Sheo Ram being one of the sons claimed that he had obtained a decree against the plaintiffs and others in Civil Suit No.343 of 1978. In the previous suit instituted in C.S. No.343 of 1978, it appears to have been claimed that there had been an oral settlement in the family with all the properties stood divided only between two sons and the plaintiffs forsook their claims in the property and in consideration of the fact that the cash had been given to their mother for her share. The earlier suit had been filed on the ground that the RSA. No.1419 of 1982 -3- family settlement had been only oral and since both the ladies namely Parbho and Parsandi had died, it could not be put into writing. The suit had been filed on 10.08.1978 and it was claimed by the present defendant, who was the plaintiff in that suit, that a written statement had been filed on 14.08.1978 and they had conceded to the plaintiff’s claim and allowed for a decree to be passed in terms of such consent and on the basis of such alleged admission, the earlier suit had been decreed. It is this decree, which was challenged by the plaintiffs contending that they were living in District Bullandshahr, U.P. and they were not at all residing in village Sehjawas, District Gurgaon as alleged in the earlier plaint. The plaintiffs contended that false address was given to keep them in dark and preventing them from coming to Court. 3. The defendant contended that the plaintiffs had actually appeared before Court and had given the statement and the plea of impersonation as made in the plaint was not true. The defendant claimed that all the plaintiffs herein were represented by counsel and the written statement had been filed on due verification of the correctness of the suit and affixing the thumb impression and signatures respectively by the parties. Although the trial Court had found that the plaintiffs’ contention had not been established, the Appellate Court had held that in the earlier written statement, there was found a signature of the 1st plaintiff Hem Raj and there were also thumb impressions, which were claimed to be the thumb impressions of Rajinder and Dhanno namely the plaintiffs No.2 and 3. The lower Court found on examination of the witnesses that the so-called statement alleged to have been given by the 1st defendant Hem Raj in RSA. No.1419 of 1982 -4- the previous proceeding had not been established at all. The Court even found that there was a very serious doubt about the identity of the person, who appeared in Court and admitted to the plaintiffs’ claim in the previous suit. The Court found that none of the plaintiffs had appeared in Court and the decree itself had been obtained by impersonation. The Appellate Court found fault with the approach of the trial Court in discarding the opinion of the Finger Print Expert, which the Appellate Court found as a perfect science and if he had given a statement on the basis of his report that the thumb impression found in the written statement filed in the previous suit was not that of any of the plaintiffs, then the same ought to have been accepted by the Court and therefore, reversed the finding of the trial Court and held that the plaintiffs established that decree was not binding. 4. During the pendency of the appeal, it appears that the appellant has settled the claims of two of the parties. On an application moved at the instance of the appellant in C.M. No.1033 of 1993, the lower Appellate Court decree was set aside and the appeal had been allowed on 07.04.1993. Subsequently C.M. No.381-C of 1994 had been filed at the instance of one Raj Pal to recall the order passed on 07.04.1993 contending that during the pendency of appeal, Raj Pal had purchased the property and he had moved an application under Order 1 Rule 10 read with Order 22 Rule 3, 4, 5, 9 and 11 CPC to implead himself as party claiming under a purchase dated 14.09.1988 from Rajinder Singh and Dhanno, who are the respondents No.2 and 3 in the appeal. The applicant claimed that as a purchaser no consent had been obtained from him and the compromise was RSA. No.1419 of 1982 -5- purported to have been recorded respondent Nos.2 and 3, who had already disposed of the right in the property to the 4th respondent. Respondent Nos.2 and 3 consequently had no interest in the property in dispute to enter into a valid compromise with the appellant. This Court found there that there could not have been valid compromise and passed an order dated 27.09.1994 recalling the order passed earlier on 07.04.1993 allowing the appeal. Subsequently, an application in C.M. No.4939 of 2010 has been filed at the instance of Rajinder, who was the plaintiff Nos.2 and Dhanno, who was plaintiff No.3. They sought for permission to withdraw the suit unconditionally. The Court has, therefore, granted time to the 4th respondent to contest the said application. A reply has been filed by the 4th respondent contending that the plaintiffs cannot withdraw the suit especially in a case where they had transferred their right in the property and the attempt of the appellant to secure the withdrawal is fraudulent. The 4th respondent would claim that he is bona fide purchaser of the property and plaintiffs No.2 and 3 had no right to withdraw the suit. The application for withdrawal is clearly mala fide and they had no power to withdraw the suit having transferred the property. 5. The power of a plaintiff to withdraw in a case where there is already a transfer has come up squarely for consideration before the Hon’ble Supreme Court in K.S. Bhoopathy and others Vs. Kokila and others (2000) 5 SCC 458. The Hon’ble Supreme Court held that the discretion of a Court permitting the plaintiff to withdraw the suit will be exercised with caution and circumspection. The Court held that RSA. No.1419 of 1982 -6- such caution becomes all the more import in a case where the application is moved by the plaintiff at the appellate stage. In R. Rathinavel Chettiar and another Vs. V. Sivaraman and others (1999) 4 SCC 89, the Hon’ble Supreme Court dealt with similar situation when during the pendency of an appeal, the subsequent purchaser had been added as party under Order 22 Rule 10. The plaintiff-respondent filed an application for dismissing the suit as not pressed and having been compromised. The Court observed that once the decree is passed adjudging the rights of parties, as in this case, it has been done after a decree passed in favour of the plaintiffs before the lower Appellate Court, it becomes conclusive between the parties in the suit in respect of the subject matter with reference to which relief is sought. Where in such situation, after a decree is passed, it would not be open to the plaintiff at the appellate stage to withdraw the suit so as to destroy the decree. Once the property was transferred and the transferee had also been impleaded as a respondent in the appeal, such a transferee was virtually in the position of plaintiff having obtained a valuable right from the plaintiffs, who had obtained a successful decree. In such a situation, there is no question of a plaintiff withdrawing the suit unconditionally and the withdrawal was positively to have the effect of destroying the decree already passed in favour of the plaintiff. This decision is squarely applicable and the defendants cannot steal a march over the 4th respondent’s right by getting the respondents No.2 and 3 to move an application to withdraw the suit. RSA. No.1419 of 1982 -7- 6. Learned counsel for the appellant/defendant also contended that the suit for setting aside the compromise decree itself is not valid. Learned counsel refers to a judgment of this Court in Shanti Devi Vs. Gian Chand 2008(1) R.C.R. (Civil) 658 that the remedy to a party, who is aggrieved by a compromise decree would be in the very same suit to have the decree set aside. I am afraid this judgment cannot apply in a case where the previous decree is sought to be set aside on the ground that it was not merely a case of lack of consent but it was a case of impersonation. The lower Appellate Court has found that none of the plaintiffs in the present suit had appeared as defendants in the earlier suit and the signature and thumb impression found in the document were established to be not the signature and thumb impression of the parties. The Court, therefore, found that the earlier decree was not binding at all. The relevance of this judgment is, therefore, clearly misplaced and erroneous. 7. I find that there is a deliberate fraud attempted to be practiced by the appellant (i) by falsely pleading for a case of compromise and securing earlier an appeal to be allowed, which was later withdrawn when the 4th respondent filed an application stating that compromise could not have been effected in his absence especially when the respondent Nos.2 and 3 had transferred the right in the property in their favour. (ii) Subsequent to this when this Court had recalled the order allowing the appeal, the appellant has again attempted to stultify the decree already passed by a strange manoeuvre of applying through respondent Nos.2 and 3 to have the suit withdrawn unconditionally. We have already seen that such a withdrawal is also RSA. No.1419 of 1982 -8- impermissible. (iii) The appellant has caused impersonation to be done in an earlier proceedings and secured a decree and before this Court again questionable practices are adopted to stultify the decree. It has all started with the appellant trying to contend that the under an oral family settlement, the plaintiffs’ mother had received some cash in lieu of her 1/4th share in the property. 8. From the beginning to end, the appellant has been deliberately taking false pleas. There is absolutely no merit in the appeal and it is dismissed with costs of the 4th respondent. The appellant shall also be liable for payment of exemplary of costs of Rs.3,000/- being the maximum possible under Section 35-A of CPC. (K. KANNAN) JUDGE November 14, 2011 Pankaj*