RSA No.2729 of 2006 1 IN THE HIGH COURT OF PUNJAB & HARYANA, CHANDIGARH R.S.A. No. 2729 of 2006 Date of Decision: October 22, 2009 Gurmeet Kaur and another ...........Appellants Versus Rajwant Kaur and others ..........Respondents Coram: Hon'ble Mrs. Justice Sabina Present: Mr.Akshay Bhan, Advocate for the Appellants. Mr.Animash Sharma, Advocate for respondents No. 1 and 2 ** Sabina, J. Plaintiffs filed a suit for declaration for possession and for permanent injunction. The suit of the plaintiffs was dismissed by the Civil Judge (Junior Division) Fatehgarh Sahib vide judgment and decree dated 10.6.2000. The appeal filed by the plaintiffs was dismissed by the Additional District Judge, Fatehgarh Sahib dated 17.7.2003. Hence, the present appeal by the plaintiffs. The case of the parties, as noticed by the learned Additional District Judge, in paras 2 to 7 of its judgment reads as under:- “2. In brief the facts of the case of the plaintiffs/appellants are that respondents No. 1 and 2 are heirs of Sukhwinder Singh, who was brother of the appellant. Respondents No. 3 & 4 are co-sharer in the suit land. Respondent No.2 is minor. He has been sued through his mother and guardian Rajwant Kaur, respondent No.1 as she has no adverse interest to her son. RSA No.2729 of 2006 2 3. Sukhwinder Singh brother of the appellants died on 7.8.1994. Sukhwinder Singh during his life time got a collusive decree in his favour from Sardara Singh father of the appellants by mis-representation and fraud. The said decree dt:24.8.1991 is not binding on the rights of the appellants. The said decree is null and void being unregistered, collusive and obtained by fraud. 4. Said Sardara Singh never appeared in the Court nor he thumb marked on his statement. The said decree was obtained by Sukhwinder Singh by getting the suit pre-poned. The said decree is unregistered and cannot pass any title qua the suit property in favour of late Sukhwinder Singh. The appellants being Class-1 heirs of Sardara Singh are entitled to inherit the estate of Sardara Singh in equal share with respondents No. 1 and 2. 5. On the basis of alleged collusive decree dt:24.8.1991 Sukhwinder Singh got the mutation sanctioned in his favour of the estate of Sardara Singh. After the death of Sukhwinder Singh the revenue authorities wrongly sanctioned the mutation in favour of respondents No.1 & 2. Respondents No. 1 & 2 are also threatening to alienate the suit land to some one else. Appellants requested respondents no. 1 & 2 to admit their claim but they refused, which compelled them to file suit for declaration, possession and permanent injunction. 6. Respondents No. 1 and 2 in their written statement took preliminary objections that appellants have no locus-standi and cause of action to file this suit, their suit is not maintainable being time barred. The appellants have not come to the court with clean RSA No.2729 of 2006 3 hand. They have concealed material facts. Respondent No. 1 had become absolute owner of the suit property u/s 14 of the Hindu Succession Act by inheritance. 7. On merits, it is submitted it is correct that appellants are daughters of late Sardara Singh and sisters of late Sukhwinder Singh, husband of respondent no.1 and father of respondent no.2. After the marriage, appellant ceased to become members of Joint Hindu Family. It is further pleaded that it is totally incorrect and wrong that Sukhwinder Singh obtained a decree in his favour from Sardara Singh by misrepresentation, collusiveness and fraud. In fact, Sardara Singh himself admitted the claim of Sukhwinder Singh in written statement by engaging counsel. He further admitting the claim of Sukhwinder Singh by appearing in the Court, suffering statement on oath and the learned Sub Judge IInd Class, after satisfying himself from the statement of Sardara Singh, decreed the suit of Sukhwinder Singh. It is correct that on the basis of judgment and decree mutation of land of Sardara Singh was sanctioned in favour of Sukhwinder Singh. It is also correct that after the death of Sukwinder Singh the mutation was sanctioned in favour of respondents no.1 & 2 correctly by the Revenue Authorities. The judgment and decree in favour of Sukhwinder Singh is valid, legal and genuine. It required no registration as Sardara Singh was exclusive owner of the suit land which he has inherited from his father Amar Singh. All other parawise contents of the plaint are denied and prayed for the dismissal of the suit.” RSA No.2729 of 2006 4 On the pleadings of the parties, the following issues were framed by the trial Court:- "1. Whether the judgment and decree dt:24.8.1991 passed in Civil suit No.485 of 13.6.91 and the mutation no.1208 and 1222 sanctioned on the basis of the same are null and void ?OPP 2. If issue no.1, is proved, whether the plaintiffs are entitled for possession of land to the extent of 2/9 share?OPP 3. Whether the plaintiff is entitled for permanent injunction ?OPP. 4. Whether the suit is not maintainable?OPD 5. Relief". After hearing the learned counsel for the parties, I am of the opinion that the instant appeal is devoid of any merit. Plaintiffs have filed the suit challenging the decree dated 24.8.1991 passed in Civil suit No. 485 of 13.6.1991. Plaintiffs, in order to succeed, had to establish that the impugned judgment and decree were the result of fraud or misrepresentation. Sukhwinder Singh filed the Civil suit No.485 dated 13.6.1991 for declaration to the effect that on the basis of the oral family settlement, he had become owner in possession of the 1/3rd share out of the suit land. In the said suit, Sardara Singh appeared in the Court and made a statement that the suit of the plaintiff be decreed as the contents of the plaint were correct. On the basis of the admission made by the plaintiff, the suit filed by Sukhwinder Singh was decreed as prayed. Vide impugned judgment and decree dated 24.8.1991, the consent decree was passed on the basis of oral family settlement and in these circumstances, since the decree was not creating any right or title in favour of Sukhwinder Singh first time, it did not require registration. Plaintiffs, on the other hand, RSA No.2729 of 2006 5 had failed to establish that the impugned judgment and decree were the result of fraud. Sardara Singh had appeared before the Court and had made a statement before the Court. No substantial question of law arises in this regular second appeal which would warrant interference by this Court . Accordingly, this appeal is dismissed. ( Sabina ) Judge October 22, 2009 arya