RSA No.554 of 1986 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.554 of 1986 Date of decision: 19.04.2011 Manjit Kaur and another …Appellants Versus Smt. Bhajan Kaur and another …Respondents . CORAM : HON’BLE MR. JUSTICE JITENDRA CHAUHAN Present: Mr. M.S. Rakkar, Sr. Advocate, with Mr. P.S. Bath, Advocate, for the appellants. None for the respondent. JITENDRA CHAUHAN, J. 1. Manjit Kaur and Ranjit Singh, minor children of Smt. Resham Kaur, preferred this regular second appeal No.554 of 1986, against their mother’s sister-Smt. Bhajan Kaur, against the judgment and decree dated 27.01.1986 passed by the Additional District Judge, Jalandhar, dismissing their appeal against the judgment and decree dated 27.07.1983 passed by the Sub Judge, I Class, Nawanshahr, dismissing the suit filed by Dilbagh Singh, their maternal grandfather. The following pedigree table is reproduced for understanding the facts:- RSA No.554 of 1986 -2- Dilbag Singh (deceased) plaintiff | | | | Bhajan Kaur-defendant (Kewal Singh-husband) | | Resham Kaur-dead (Surinder Singh alias Chhinda- husband) | | Ranjeet Singh (son) and Manjeet Kaur (daughter) (Appellants herein) 2. Dilbagh Singh had two daughters, namely, Smt. Bhajan Kaur and Smt. Resham Kaur, who pre-deceased him. Dilbagh Singh filed this suit for declaration against Smt. Bhajan Kaur and Ram Kishan to the effect that he is the owner-in-possession of the land measuring 67 kanals 8 marlas situated in Village Jhander Kalan. 3. On 21.05.1980, Dilbagh Singh suffered a consent decree in favour of his daughter, Smt. Bhajan Kaur in Civil Suit No.44 of 1980-Bhajan Kaur Vs. Dilbagh Singh. It is alleged that the consent decree was a result of fraud and against the wishes of Dilbagh Singh. It was argued that the said decree was null and void. He prayed for setting aside of this consent decree dated 21.05.1980. 4. Smt. Bhajan Kaur contested the suit of the plaintiff on the ground that on 13.01.1954, Dilbagh Singh, the plaintiff, orally gifted his 33 kanal 19 marlas land to her. To give effect to this oral gift deed, Dilbagh Singh suffered consent decree dated 21.05.1980. The plaintiff-Dilbagh Singh, appeared before the Court of Sub Judge, Nawanshahr, filed the written statement admitting the claim and made a statement before the Court and thus, RSA No.554 of 1986 -3- the Civil Suit No.44 of 1980 filed by Smt. Bhajan Kaur, defendant, was decreed. 5. From the pleadings of the parties, the following issues were framed:- 1. Whether the plaintiff is the owner and in possession of the suit land as alleged ? OPP 2. Whether the decree dated 21.5.1980 is binding on the plaintiff ? OPD 3. Whether the suit in the present form is not maintainable as alleged in the preliminary objection No.1 of the written statement ? OPD. 4. Whether the plaintiff made an oral gift in favour of defendant No.1 on 13.01.1954 as alleged ? If so its effect ? OPD. 5. Whether the suit in the present form is not maintainable as alleged in preliminary objection No.4 of the written statement ? OPD. 6. Relief. 6. Issues No.1, 2 and 4 were decided in favour of Bhajan Kaur, defendant No.1 while issue No.3 was decided against the plaintiff. Issue No.5 was also decided in favour of defendant No.1. 7. The learned trial Court dismissed the suit of the plaintiff holding that the plaintiff himself appeared in the previous suit and made a statement in Court on 7.05.1980 admitting the claim of defendant No.1-Bhajan Kaur resulting in the consent decree dated 21.05.1980. RSA No.554 of 1986 -4- 8. Aggrieved by the judgment, Dilbagh Singh preferred an appeal which was also dismissed vide judgment and decree dated 27.01.1986 by the learned Additional District Judge, Jalandhar. 9. Dilbagh Singh, the appellant, died on 22.10.1983 during the pendency of the appeal before the learned First Appellate Court. Smt. Manjit Kaur and Ranjit Singh, daughter and son of Smt. Resham Kaur, the pre- deceased daughter of Dilbagh Singh, were brought on record as his only legal heirs on the basis of alleged Will dated 09.10.1983. 10. Mr. M.S. Rakkar, Sr. Advocate, argued that the decree dated 21.05.1980 was the result of fraud and misrepresentation. He further argued that the alleged oral gift was not proved on the basis of which the consent decree was passed. He argued that the consent decree may be set aside and the suit of the deceased Dilbagh Singh may be decreed as prayed for. 11. None appeared on behalf of the respondent. 12. I have heard learned counsel for the appellants and carefully gone through the trial Court record with their able assistance. 13. In Sir Chunilal V. Mehta and Sons Ltd. Vs. Century Spinning and Manufacturing Co. Ltd., AIR 1962 S.C. 1314, it was held as under:- “The proper test for determining whether a question of law raised in the case is substantial would, in our opinion, be whether it is of general public importance or whether it directly and substantially affects the rights of the parties and if so whether it is either an open question in the sense that it is not finally settled by this Court or by the Privy Council or by the Federal Court or is not free from difficulty or calls for RSA No.554 of 1986 -5- discussion of alternative views. if the question is settled by the highest Court or the general principles to be applied in determining the question are well settled and there is a mere question of applying those principles or that the plea raised is palpably absurd the question would not be a substantial question of law” 14. Whether the decree was a consent decree suffered by Dilbagh Singh voluntarily or not, both the Courts below have decided this issue in favour of Smt. Bhajan Kaur, the defendant-respondent. It is a concurrent finding of facts of both the Courts below. Moreover, to satisfy the conscious of the Court, this Court has gone through the evidence adduced by the parties. Ex.P3 is the copy of the judgment dated 21.05.1980; Ex.D1 is the Power of Attorney executed by Dilbagh Singh in favour of Jaskaran Singh, Advocate, to appear on his behalf; Ex.D5 is the statement of Dilbagh Singh, the plaintiff, in which he has stated that Bhajan Kaur (plaintiff in that suit), is his daughter and his another daughter-Resham Kaur, had already expired. He has admitted the oral gift. He has also admitted the possession of Smt. Bhajan Kaur on the disputed land. Ex. D2 is the written statement filed by him through Jaskaran Singh, Advocate, in which he has admitted the claim of Dilbagh Singh, the plaintiff. The consent decree has been passed on the basis of pre-existing right of Bhajan Kaur on account of oral gift of land measuring 33 kanals 19 marlas made on 13.01.1954 made by Dilbagh Singh in her favour. A fact admitted in the pleadings need not be proved. It was specifically admitted in the earlier suit through written statement, Ex.D2, filed by Dilbagh Singh that she (Bhajan Kaur) accepted the oral gift and took the possession of the suit land as owner. This fact was also confirmed by Dilbagh Singh in his RSA No.554 of 1986 -6- statement, Ex.D5, made on 7.5.1980 in earlier litigation. Shri Jaskaran Singh, Advocate, appeared as DW1, in this case, who appeared for and on behalf of Dilbagh Singh and filed written statement in earlier suit. The consent decree does not require registration as the beneficiary had pre-existing right in the land on the basis of oral gift deed dated 13.01.1954. In 1954, the oral gift was a valid transaction and was not necessary to be written and registered. 15. So, Dilbagh Singh, the plaintiff, is estopped from challenging the consent decree. 16. In order to prove the fraud and misrepresentation, there is no specific averment and specific plea as to how he was defrauded and misrepresented. Mere assertion that the decree was a result of fraud is of no avail. Moreover, both the Courts below, on appraisal of evidence, came to the conclusion that there was no fraud. A consent decree operates as an estoppel. Such a decree is binding on the parties and must be given effect to unless it is proved that the same was obtained by fraud, misrepresentation, coercion or undue influence. No substantial question of law arises for determination in this case. There is no scope to interfere in the concurrent finding of facts of both the Court below. 17. Keeping in view the above discussion, this regular second appeal fails and is dismissed and the judgments and decrees of both the Courts below are hereby affirmed. There is no order as to costs. 19.04.2011 atulsethi ( JINTENDRA CHAUHAN ) JUDGE Note : Whether to be referred to reporter ? Yes / No