RSA No.244 of 2006 (1) IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.244 of 2006 Date of Decision: 30.7.2009 Midhu Singh ......Appellant Versus Makhan Singh .......Respondent CORAM: HON'BLE MR. JUSTICE HEMANT GUPTA. 1. Whether Reporters of local papers may be allowed to see the judgment? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? Present: Ms. Malkiat Mann, Advocate,for the appellant. HEMANT GUPTA, J. (Oral). The plaintiff is in second appeal aggrieved against the judgment and decree passed by the Courts below, whereby his suit for possession after setting aside the judgment and decree dated 22.11.1994, stands dismissed. The plaintiff, recorded as owner of land measuring 43 kanals 12 marlas has challenged the consent judgment and decree dated 22.11.1994 suffered in favour the defendant as part of family settlement, being his son. The plaintiff has challenged the aforesaid judgment and decree RSA No.244 of 2006 (2) on the ground that the defendant is not his son, but the son of one Kartar Singh, resident of village Khillanhal and that the defendant by misrepresentation got his thumb impressions on the blank papers under the guise that he will get the pension sanctioned for him. On the basis of such blank papers, the said defendant filed a civil suit and obtained decree. Such decree is the result of fraud and misrepresentation. As a consequence thereof, the appellant claimed possession of the suit land as well. In the written statement, the defendant denied the assertion of the plaintiff. It was asserted that he is the son of the plaintiff and the land was given to him in the family settlement. The plaintiff has given Vakalatnama in favour of his counsel. He has signed written statement and also made statement in the Court resulting into the decree dated 27.11.1994. It was denied that there was any fraud or misrepresentation. The plaintiff appeared as his own witness and was cross- examined on 14.3.2001. On the said date he closed his evidence as well. Thereafter, the defendant led his evidence. The plaintiff tendered affidavit dated 2.1.2004 of his wife Ajmer Kaur in rebuttal. She was cross-examined. In the affidavit, the stand taken was that she married Kartar Singh of Khillanhal about 40 years back. She has stated that her sister Sauda Kaur was married to Chanda Singh, brother of Kartar Singh on the same day. She has also stated that she has another sister Gurdevo, who married Midhu Singh son of Gajan Singh, resident of Alampur Mandara. No child was born out of the said wedlock and that son Makhan Singh was born to her from the loins of Kartar Singh. She has further deposed that when Makhan Singh was about two years old, Kartar Singh died and she married plaintiff as by that time her sister Gurdevo has also died. Makhan Singh was kept by her sister RSA No.244 of 2006 (3) Sauda Kaur and thereafter she has given birth to four daughters from the loins of her husband Midhu Singh. Both the Courts have dismissed the suit holding that the plaintiff has admitted his thumb impressions on the power of attorney Exhibit D.4, written statement Exhibit D.3 and statement Exhibit D.1. The plaintiff has disputed the said decree almost after four years by filing the present suit on 25.3.1998. It was also found that the plaintiff has admitted the defendant to be his son in the earlier proceedings and such admission in the previous judgment given voluntarily, is binding on the plaintiff. In appeal, the learned first Appellate Court referred to cross- examination of Ajmer Kaur, wherein she has stated to have not remembered the date, month and year of her marriage with either Kartar Singh or Midhu Singh. The register of Chowkidar, to the effect that she has given birth to Makhan Singh was not produced. She even does not remember the date, month or year of birth of Makhan Singh. The first Appellate Court also found that such evidence of Ajmer Kaur could not have been led in rebuttal. The trial Court has kept the said objection open but not dealt with in the judgment. The Court also found that the plaintiff has not examined any of his four daughters or any other relatives to deny the relationship between the plaintiff and the defendant. It was also found that the evidence led in rebuttal is totally contradictory to the pleadings raised by the plaintiff. Learned counsel for the appellant has vehemently argued that the defendant has committed fraud with the plaintiff while obtaining thumb impressions of the plaintiff which led to the decree dated 22.11.1994. However, both the Courts have recorded finding of fact based upon appreciation of evidence particularly the statement of the plaintiff himself RSA No.244 of 2006 (4) that thumb impressions on the power of attorney, vakalatnama, written statement and on the statement given in the Court are that of the plaintiff. Still further, the allegation that the defendant is son of Kartar Singh has not been substantiated by examining any witness from the village Khillanhal or from the family of Kartar Singh in respect of birth of a son to Kartar Singh or even marriage of Ajmer Kaur with Kartar Singh. The plaintiff has not examined any of his daughters or any other relative in respect of relation of the defendant with the plaintiff. In the absence of any such evidence, the bald assertion of the plaintiff that the defendant is not his son and/or the statement of Ajmer Kaur on affidavit that defendant is not son of the plaintiff, are not only contradictory to the pleadings, but also unreliable and untrustworthy. Such evidence could not be led in rebuttal as well. The finding of fact recorded by the Courts below is sought to be disputed by re-appreciation of evidence. It could not be pointed out that any evidence has been misread or not taken into consideration. Consequently, I do not find any patent illegality or material irregularity in the finding recorded or that the finding recorded gives rise to any substantial question of law in the present second appeal. Hence, the present appeal is dismissed. (HEMANT GUPTA) JUDGE 30.7.2009 ds