R.S.A.No. 3381 of 2007 (O&M) 1 In the High Court of Punjab and Haryana at Chandigarh R.S.A.No. 3381 of 2007 (O&M) Date of decision: 31.7.2009 Chander Wati and others ......Appellants Versus Ved Singh and others .......Respondents CORAM: HON'BLE MRS. JUSTICE SABINA Present: Mr. R.M.Singh, Advocate, for the appellants. Mr.R.C.Setia, Sr.Advocate with Mr.Vishal Ranjan, Advocate, for respondents No. 1 to 9. Mr.R.S.Malik, Advocate, for respondent No.10. **** SABINA, J. Sarjo Devi (respondent No.10) and the appellants- plaintiffs filed a suit for possession, which was dismissed by the Additional Civil Judge (Sr.Divn.) Sonepat vide judgment and decree dated 15.3.2007. Aggrieved by the same both the parties filed appeals and the same were dismissed by the Additional District Judge, Sonepat vide judgment and decree dated 27.7.2007. Hence, the present appeal by plaintiffs No. 2 to 8. Brief facts of the case, as noticed by the trial Court in para Nos. 2 to 6 of its judgment, are as under:- “2. The plaintiff and her son Davinder Kumar are R.S.A.No. 3381 of 2007 (O&M) 2 owners in possession of the suit land as mentioned in para No.1 of the plaint vide judgment and decree dated 6.8.1986 and they got partitioned the said land by mutual consent and mutation No.1828 was sanctioned on 12.1.1988 and according to that partition, plaintiff Smt. Sarjo became owner in possession of the land comprising in rect and killa no. 37, 13/1/2 (2-7), 13/2(4-0), 18/1/1/(0- 11) total measuring 6 kanals 18 marlas, and Davinder i.e. son of plaintiff Smt.Sarjo became owner in possession of the land comprised in rect. And killa no.37, 18/1/2/(2-16), 18/2(4-4) total measuring 7 kanals 0 marla. The land comprised in rect. and killa No.37, 13/1/1/(0-16), 13/1/3(0- 17) total measuring 1 kanal 13 marla was kept as joint property of the plaintiff Smt.Sarjo and her son Davinder Kumar. 3. It is further alleged in the plaint that Mohinder and Chand Singh filed a civil suit for declaration to the effect that decree dated 6.8.1986 passed in favour of Davinder Kumar, is not binding upon the rights of them being fraudulent and in the said suit, plaintiff and Davinder Kumar were restrained from alienating their property covered by the decree dated 6.8.1986. It is further alleged that against that restrained order, plaintiff and Davinder filed an appeal, which was also R.S.A.No. 3381 of 2007 (O&M) 3 dismissed from the court of ld. District Judge, Sonepat on 21.9.1988. It is further submitted that plaintiff appointed Om Parkash i.e. defendant No. 7 as her general attorney only to manage her property and plaintiff did not authorise to said Om Parkash to alienate her property, but said Om Parkash (general attorney of plaintiff Smt.Sarjo Devi) in connivance with the deed writer Virendere Kumar Batra got recited in the said general power of attorney he is authorised to alienate the property of plaintiff No.1 covered by the decree dated 6.8.1986. 4. It is further alleged that defendant No.7 i.e. Om Parkash without the consent of plaintiff No.1 executed the sale deed on 30.1.1995 for a sale consideration of Rs.2,00,000/- in favour of defendant No. 1 to 6. In the sale deed, it has been recited that sale consideration of Rs.2,00,000/- as per agreement dated 22.1.1993 and receipt dated 22.2.1993 has been received by vendor i.e. Om Parkash who is general power of attorney of plaintiff No.1. Upon this, defendants No. 1 to 6 vendees of the sale deed dated 30.1.1995 have been asked to admit the sale deed dated 30.1.1995 as illegal and void and not binding on the right of the plaintiffs but they are adamant and have R.S.A.No. 3381 of 2007 (O&M) 4 refused to oblige the genuine request of the plaintiffs. Hence, the present suit has been filed. 5. In pursuance of notice, defendants appeared and filed written statement taking various preliminary objections and on merits it is submitted that the suit was filed by Mohinder Singh against the plaintiffs and the decision of which was obtained by them in collusion with the each other and by practicing fraud in the court in order to defeat the rights of the defendants. The plaintiffs in that suit Mohinder Singh and Devender Kumar made their statements in the court that the suit was decreed in favour of Mohinder Singh etc. hence that suit was decreed in favour of Devender Kumar and Sarjo Devi was got set aside to defeat the rights of the defendants. Plaintiff No.1 i.e. Smt.Sarjo Devi had executed an agreement to sell of the suit land for a consideration of Rs.2,00,000/- vide agreement to sell dated 22.1.1993 and she received the said payment vide receipt dated 22.1.1993 and 22.2.1993. 6. It is further alleged that the fraudulent, illegal and collusive decree obtained by Mohinder Singh, is not binding on the rights of the defendants. After agreement to sell in favour of Lakhi Ram dated 22.1.1993, Sarjo Devi-plaintiff No.1 executed a general R.S.A.No. 3381 of 2007 (O&M) 5 power of attorney in favour of Om Parkash i.e. defendant No.7 and said Om Parkash executed a sale deed in respect of the suit land contained in rect. and killa No.37, 13/1/2/(2-7) and 37, 13/2 (4-0) in favour of the defendants No. 1 to 6 and hence, they are became owners in possession of the suit property and plaintiffs have no concern with the same. Hence, dismissal fo the suit has been prayed for.” On the pleadings of the parties, following issues were framed by the trial Court:- “1. Whether the plaintiffs are entitled for a decree of possession of the suit land as mentioned in para No.1 of the plaint ? OPP 2. Whether the suit of the plaintiffs is not maintainable in the present form? OPD 3. Relief. ” After hearing learned counsel for the parties, I am of the opinion that the present appeal deserves to be dismissed. Learned Additional District Judge in the impugned judgment has observed that an agreement to sell dated 22.1.1993 Ex.DC was executed by plaintiff Smt.Sarjo with regard to 6 kanals 7 marlas of land bearing khasra No.13/1/2/(2-7) and 13/2 (4-0) in favour of defendant No.5 Lakhi Ram for a consideration of Rs.2,00,000/-. It was also stipulated in the said agreement that R.S.A.No. 3381 of 2007 (O&M) 6 Mohinder and Chand Ram had filed a suit against Sarjo and the sale deed would be executed within one month of the decision of the said case and the remaining sale consideration would be paid at the time of execution and registration of the sale deed. So far as the execution of agreement to sell is concerned, the same was admitted by Sarjo while appearing in the witness box and it was also admitted by her that her brother Vijender had also attested the same. As per receipt dated 22.2.1993, Ex.DB, Sarjo received sale consideration of Rs.50,000/-. Sarjo executed a power of attorney Ex.D-1 in favour of Om Parkash son of Mohan Lal, defendant No.7, on 22.1.1993. The said power of attorney is a registered document. As per the same Sarjo had authorized Om Parkash to deal with her land measuring 6 kanals 7 marlas i.e. to sell, mortgage or lease etc. Vide sale deed Ex.P-5, defendant No.7 Om Parkash, acting as attorney of Sarjo, sold the land measuring 6 kanals 7 marlas to defendants No. 1 to 6. The receipt of the sale consideration by Sarjo vide receipts dated 22.1.1993 and 22.2.1993 was also mentioned in the sale deed. Ex. P-4 cancellation deed, however, does not reveal that the general power of attorney had been cancelled by Sarjo. Learned Additional District Judge has further observed that the evidence on the file clearly suggested that plaintiff Sarjo and her son Davinder have colluded with her brothers-in-law Mohinder and Chand Ram in obtaining decree dated 28.10.1995 passed in civil suit No.27 of 1998 to defeat the rights of defendants R.S.A.No. 3381 of 2007 (O&M) 7 No. 1 to 6 in this case. The circumstances as enumerated by the Learned Additional District judge in para 24 of the impugned judgment reads as under:- 24. However, the question is that whether said rule of lis pendens is applicable in the facts and circumstances of the present case because evidence on file clearly suggest collusion between plaintiff Smt. Sarjo and her son Davinder on one hand and her brothers-in-law Mahender and Chand Singh on the other hand in obtaining decree dated 28.10.1995 passed in civil suit No.27 of 1988 to defeat the rights of defendants No. 1 to 6 of this case. There are several circumstances, as rightly pointed out by learned counsel for the contesting respondents, to prove this collusion. These circumstances may be noticed as under:- (a) Agreement was executed by Smt.Sarjo on 22.1.1993. She received the entire sale consideration by virtue of two receipts on 22.1.1993 and 22.2.1993. She executed general attorney on 22.2.1993 in favour of defendant No.7 Om Parkash authorizing him to deal with the suit property in every possible manner, including the power to sell the same. Till the time the money was not received by Smt.Sarjo, obviously there was R.S.A.No. 3381 of 2007 (O&M) 8 clash of interest between plaintiff Smt. Sarjo and her son Davinder on one hand; and Mahender Singh and Chand Singh on the other hand. It appears that till that time, the civil suit no.27 of 1988 was being contested by Smt. Sarjo and her son Davinder in right earnest. However, once the money was received and possession of the suit property was delivered vide Ex.DC, Smt.Sarjo, Davinder, Mahender and Chand Singh colluded. At that time, suit no.27 of 1988 appeared as a witness in that case on 30.5.1995. Certified copy of that statement is proved on record as Ex. DW8/C. Perusal of the said statement Ex.DW8/C would show that Davinder made statement in such a way that it facilitated the decreeing of the suit no.27 of 1988 in favour of Mahender and Chand Singh. He made a statement just contrary to the record. As per the documentary evidence on file, property in dispute was self acquired of Ram Parshad, he having purchased it by way of registered sale deed dated 2.1.1958 from one Mange for a consideration of Rs.5500/- as duly reflected in mutation no.798 sanctioned on 22.12.1959. Certified copy of that mutation is Ex.P7 (in Urdu); whereas its Hindi R.S.A.No. 3381 of 2007 (O&M) 9 translation available on record is Ex.P8. Said fact was even specifically pleaded by defendants Smt. Sarjo and Davinder of civil suit No.27 of 1988 in the written statement filed in that case. Certified copy of that written statement is Ex.DW8/B on record in which the ancestral nature of the suit property is denied and it is pleaded that Parshada had purchased the same from mange vide sale deed dated 2.1.1958 for Rs.5500/-. However, contrary to this stand taken in the written statement, it was stated in the witness box by Davinder (as per statement Ex.DW8/C) that suit property was ancestral in the hands of Parshada. Though in the written statement, it had been denied that plaintiffs of that case Mahinder and Chand Singh had any right in the suit property but as a witness Davinder stated in cross-examination that all sons of Parshada had a right therein. Said statement was made by Davinder on 30.5.;1995 i.e. after the execution of agreement dated 22.1.1993 and sale deed dated 30.1.1995. By that time general attorney had also been executed in favour of Om Parkash, which was very much to the knowledge of Davinder as is evident from his cross-examination. R.S.A.No. 3381 of 2007 (O&M) 10 In the said statement Ex.DW8/C, it was stated by him that attorney had been given to Om Parkash by his mother. But it was pleaded that it was given by mistake since she was illiterate. In nut shell, Davinder Kumar, the son of Sarjo, made a statement before the court during civil suit no.27 of 1988, contrary to the documentary record and the stand taken in written statement to facilitate the passing of the decree dated 28.10.1995 in favour of Mahinder and Chand Singh. (b) In the present case, Smt.Sarjo entered the witness box as PW1. She tendered affidavit Ex. PW1/A as her examination-in-chief in which she supported the averments of plaint. However, he cross-examination demolishes her entire case and clearly exposes collusion between her and her brothers-in-law. In her statement, she says that present suit has not been filed by her and rather, she filed this suit at the behest of her brothers-in- law. In the further cross-examination, she says that power of attorney given in favour of Om Parkash had been cancelled by her only after a week. Said statement made by her is contrary to the record because power of attorney Ex.D1 was executed on R.S.A.No. 3381 of 2007 (O&M) 11 22.1.1993, whereas cancellation deed Ex.P4 was executed on 31.1.1995 i.e. after more than two years. PW1 Smt. Sarjo further says that she is not aware that who had got the cancellation deed written. Her brothers-in-law Mahinder, Raghbir and Chand might have got executed that cancellation deed. She was told by them that cancellation deed had been executed. He further cross-examination is very material in which she admits that she has not filed any suit and that it is her DEWAR-JAITH (brothers-in-law) who filed the suit. She further admits that all of them including her Dewar, Jaith etc. reside together having no enmity or ill-will. She further admits that all the decisions regarding the land are taken by them jointly. She is further categorical in her admission that the present suit was filed by all of them jointly. Her further cross- examination reveals that she showed ignorance (and did not deny) that the suit which was filed by Mahinder against Davinder was in collusion. She admits that Mahinder and Davinder resides together and takes joint decisions. Again, she only showed ignorance and did not deny that in the suit, which was filed for setting aside decree dated 6.8.1988, R.S.A.No. 3381 of 2007 (O&M) 12 statements were made by Davinder etc. in such a way that the decree dated 6.8.1996 was got cancelled. Learned counsel for the appellant has failed to point out any error in the observations made by the learned Additional District Judge, discussed above. Hence, the learned Additional District Judge rightly held that the decree in question had been obtained by Sarjo and her son Davinder in collusion with Mohinder and Chand Ram with a view to defeat the right of the purchasers. Defendants No. 1 to 6 were not a party to the decree dated 28.10.95 and hence, they could not challenge the same. So far as Sarjo and Davinder are concerned, since they had colluded with Mohinder and Chand Ram, they did not challenge the said decree. In these circumstances, the Courts below rightly held that the decree dated 28.10.95 passed in civil suit No.27 of 1998 was not binding on the rights of defendants No.1 to 6 as the same was a result of fraud and collusion in order to defeat the rights of defendants No. 1 to 6. No substantial question of law arises in this regular second appeal. Accordingly, the same is dismissed. (SABINA) JUDGE July 31, 2009 anita