RSA No.1229 of 2009 (O & M) - 1 - IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.1229 of 2009 (O & M) Date of Decision: 04.03.2011 Murti ……Appellant Versus Jai Ram and others …...Respondents Coram: HON’BLE MR. JUSTICE L. N. MITTAL. Present: Mr. K. B. Sharma, Advocate for the appellant. Mr. Amit Jain, Advocate for respondent No.1. L.N. MITTAL, J (ORAL) Smt. Murti-plaintiff No.5, who is also one of the legal heirs of her mother Smt. Ramo plaintiff No.1 since deceased, has filed the instant second appeal. Suit was filed by Smt. Ramo and her four daughters, Vidya, Basanti, Ram Pyari and Murti against Jai Ram-respondent No.1-defendant. Smt. Ramo was mother of plaintiff Nos.2 to 5 as well as of the defendant. Plaintiff Nos.2 and 5 are sisters of defendant. Their father Mawasi was owner in possession of 11 kanals 3 marlas land. On his death, it was inherited by his 9 heirs i.e. five plaintiffs, one defendant and two more sons and a daughter of Mawasi in equal shares i.e. 1/9th share each. The plaintiffs thus claimed 5/9th share in the said land i.e. to the extent of 6 kanals 4 marlas. In the instant suit, they challenged consent judgment and RSA No.1229 of 2009 (O & M) - 2 - decree dated 10.05.1995 suffered by them in favour of defendant herein in suit No.266 of 1995 alleging that the said judgment and decree were obtained by fraud and misrepresentation and are null and void. It was pleaded that plaintiffs were brought to the Magistrate on the pretext of obtaining their power of attorney for claiming compensation for the suit land which was being acquired by State of Haryana. Defendant broadly controverted the plaint allegations, while admitting the relationship between the parties. The defendant alleged that in view of family settlement, he became owner in possession of the suit land and consent decree dated 10.05.1995 was suffered voluntarily by the plaintiffs and is not result of fraud and misrepresentation etc. All averments to challenge the same were controverted by the defendant. Various other pleas were also raised. Suit qua plaintiff No.1 was withdrawn. Learned Civil Judge (Junior Division), Faridabad vide judgment and decree dated 21.12.2006 decreed the suit qua plaintiff Nos.2 to 5 declaring consent judgment and decree dated 10.05.1995 to be null and void. However, first appeal preferred by defendant has been allowed by learned Additional District Judge, Faridabad vide judgment and decree dated 25.04.2008 and thereby suit filed by the plaintiffs stands dismissed. Feeling aggrieved, plaintiff No.5 only has filed the instant second appeal. I have heard learned counsel for the parties and perused the case file. RSA No.1229 of 2009 (O & M) - 3 - Learned counsel for the appellant vehemently contended that there is no proof of family settlement on the basis of which impugned consent decree dated 10.05.1995 was passed. It was also contended that the said decree had the effect of transferring the share of plaintiffs herein in the suit land and, therefore, it required compulsory registration, but was not registered. Reliance in support of this contention has been placed on various judgments namely:- Rajender Singh versus Joginder Singh and others, 2003(2) LJR 576; Ajay Chaudhary versus Santosh Kumar and another, 2004(1) LJR 623; Biru versus Nanhi, 2007-4 PLR 326; Rajni Bajaj and others versus Ram Piari, 2006-1 PLR 708; Smt. Kamala Devi versus Smt. Gainda Devi and others, 2008(1) HRR 60 and Jai Narain versus Smt. Sona Devi, 2006(2) Civil Court Cases 0099. On the other hand, learned counsel for respondent No.1- defendant contended that the plaintiffs herein themselves appeared in the Court in the previous suit and admitted the claim of defendant herein (who was plaintiff in the previous suit) and, therefore, the impugned consent decree was rightly passed on the basis of family settlement. I have carefully considered the rival contentions. The impugned consent decree has been challenged on the ground of fraud and misrepresentation. However, the plaintiffs have miserably failed to prove the alleged fraud and misrepresentation. Plaintiff No.5-Murti (appellant) while appearing as PW-3 admitted that all the plaintiffs herein had appeared in the Court in the previous suit RSA No.1229 of 2009 (O & M) - 4 - whereas Vidya plaintiff No.2 while appearing as PW-2 even denied this fact. However, in the plaint, it is not the case of the plaintiffs herein that the impugned consent decree was obtained by impersonation. On the other hand, there is specific admission by plaintiff No.5-Murti-appellant that all the plaintiffs herein (who were defendant in the previous suit) had appeared in the Court in the previous suit. Consequently, impersonation is ruled out. Ground of impersonation has also not been pleaded in the plaint. Impugned consent decree was passed not only on the basis of admission made in the written statement in the previous suit, but also on the basis of statement recorded in the Court in the previous suit. Statement made in the Court has authenticity and sanctity. The said statement cannot be said to be result of fraud and misrepresentation. In the statement made in the Court in the previous suit, plaintiffs herein (who were defendants in the previous suit) admitted the claim of defendant herein, who was plaintiff in the said suit. The said statement was recorded in Hindi and was readover and explained to the plaintiffs herein and then they signed/thumb marked the same. Consequently, it cannot be said that the said statement was made by plaintiffs herein for execution of power of attorney. In addition to the aforesaid, plaintiffs have not produced in evidence requisite documents to depict as to when proceedings for acquisition of the land had commenced. The plaintiffs had to depict that proceedings for acquisition of suit land had commenced before impugned consent decree dated 10.05.1995 was passed. Only then the plaintiffs could urge that the said decree was obtained on the RSA No.1229 of 2009 (O & M) - 5 - pretext of getting power of attorney from the plaintiffs herein for taking compensation of the acquired land. However, plaintiffs have failed to produce requisite documents in this regard. Consequently, adverse presumption arises against the plaintiffs. As regards plea that family settlement is not proved, the said question cannot be reopened in the instant subsequent suit. Consent decree can be challenged in subsequent suit on the ground of fraud and misrepresentation etc. and not on the ground that facts pleaded in the previous suit culminating in the impugned consent decree were erroneous and incorrect. The said question stands determined and concluded by the consent decree and cannot be re- adjudicated and would be barred by principle of res judicata in the subsequent suit. As regards necessity of compulsory registration of the consent decree, plaintiffs herein, who suffered the consent decree, were none else, but real sisters and mother of the defendant herein, in whose favour the consent decree was passed. It is not uncommon in our country particularly in this part of the country that sisters transfer their share in paternal property in favour of their brothers, and mother also transfers her share in favour of her sons. Concept of family settlement among such close family members is well recognized by the Courts and consent decree passed on the basis of such family settlement does not require compulsory registration. It may be added that in the instant case, plaintiff NO.1-mother had withdrawn the suit and, therefore, the suit proceeded qua plaintiff Nos.2 to 5 only, who are sisters of the defendant. Since the consent decree was passed on the basis of family settlement pleaded in the RSA No.1229 of 2009 (O & M) - 6 - previous suit, the same did not require compulsory registration as plaintiff Nos.2 to 5 are real sisters of the defendant herein. For the reasons recorded hereinbefore, I find no merit in the instant second appeal. Finding recorded by the lower appellate Court is fully justified by the evidence on record and is supported by sufficient reasons. Trial Court proceeded on the erroneous assumption that the defendant herein had to prove the family settlement in the instant suit. However, the defendant was not required to do so. Judgment and decree of the lower appellate Court do not suffer from any illegality or perversity so as to warrant interference in second appeal nor any question of law, much less substantial question of law, arises for determination in the instant second appeal. Accordingly, the appeal is dismissed. (L. N. MITTAL) JUDGE 04.03.2011 A.kaundal