R.S.A.No. 1825 of 2011(O&M) 1 In the High Court of Punjab and Haryana at Chandigarh R.S.A.No. 1825 of 2011(O&M) Date of decision: 27.4.2011 Sandeep Kumar ......Appellant Versus Bidamo .......Respondent CORAM: HON'BLE MRS. JUSTICE SABINA Present: Mr.S.S.Godara, Advocate, for the appellant. **** SABINA, J. The plaintiff had filed a suit for declaration challenging judgment and decree dated 5.3.1994 passed in civil suit No.455 of 1994 titled Sandeep vs. BIdamo and mutation No.1950 sanctioned on the basis of the said judgment and decree on 7.4.2006. The case of the plaintiff, in brief, was that she had 110 shares out of the total land measuring 68 kanals 11 marlas situated in village Chamar Khera. Defendant Sandeep was the son of the plaintiff's real brother. The land was being cultivated by the defendants' father and after his death, it was being cultivated by the defendant on behalf of the plaintiff. On 27.3.2006, defendant R.S.A.No. 1825 of 2011(O&M) 2 threatened to sell specific khasra numbers out of the suit land and she was constrained to file civil suit at Hisar and the same was still pending. The plaintiff was unaware of the decree passed on 5.3.1994 and came to know about the same on 11.4.2006. Plaintiff had never suffered the said decree nor had engaged Mahabir Singh as her counsel. The plaintiff had not appeared in the Court on 5.3.1994 nor had made any statement before the Court. The decree had been obtained by impersonation. The defendant, in his written statement, denied the contentions in the plaint. It was averred that the plaintiff had suffered the decree in favour of the defendant of her own accord. On the pleadings of the parties, following issues were framed by the trial Court:- “1. Whether the Civil Court decree dated 5.3.1994 passed in civil suit No.455 of 1994 by Sh.Darshan Singh, Senior Sub Judge, Hisar in a civil suit titled as 'Sandeep Vs. Smt.Badamo' and the resultant mutation bearing No.1950 dated 7.4.2006 is illegal, null and void and liable to be set aside on the grounds mentioned in the plaint? OPP. 2. Whether the plaintiff is entitled to decree of permanent injunction ? OPP 3. Whether suit of the plaintiff is not maintainable in the present form ? OPD 4.Whether the plaintiff has no cause of action to file the present suit ? OPD 5. Whether the suit of the plaintiff is barred by the law or R.S.A.No. 1825 of 2011(O&M) 3 limitation? OPD 6. Relief.” The Civil Judge (Jr.Divn.) decreed the suit of the plaintiff vide judgment and decree dated 11.8.2010. Aggrieved by the said judgment and decree, defendant preferred an appeal and the same was dismissed vide judgment and decree dated 17.3.2011 passed by the District Judge. Hence, the present appeal by the defendant. After hearing learned counsel for the appellant, I am of the opinion that the present appeal is devoid of any merit and deserves dismissal. The question that requires consideration in the present case is as to whether the impugned decree dated 5.3.1994 was a result of fraud and misrepresentation. The plaintiff denied the fact that she had suffered the said decree in favour of the defendant. In order to substantiate her plea, the plaintiff herself appeared in the witness box as PW-3 and deposed that she had not appeared in the Court to make a statement nor had thumb marked the vakalatnama or written statement. Further to substantiate her case, the plaintiff examined PW-6 Shamsher Singh Malik, handwriting and finger print expert, who gave his opinion that Ex.P-4, written statement in the earlier suit, as well as Ex.P-5, statement purported to have been suffered by the plaintiff in the earlier suit, did not bear the thumb impressions of Bidamo as these did not match with her standard thumb impressions. In order to rebut the evidence led by the plaintiff in this regard, defendant examined DW-4 Yashpal Chand Jain, handwriting and finger print expert. The examination-in-chief of the said witness was recorded and he gave his opinion that the standard R.S.A.No. 1825 of 2011(O&M) 4 thumb impressions taken by PW-6 Shamsher Singh Malik were not of the plaintiff. The said witness, however, did not appear for cross- examination and hence, the statement of the expert examined by the defendant cannot be read an evidence. In these circumstances, the Courts below rightly held that the plaintiff had been successful in establishing that she had not suffered the impugned decree dated 5.3.1994 in favour of the defendant. It appears that the defendant produced some other lady in the Court as Bidamo while obtaining the decree in his favour. DW-2 Neki Ram, in his cross-examination, did not support the case of the defendant and deposed that he did not know what had happened at Hisar. He did not know whether Bidamo had appeared before the Judge or not. Bidamo had not affixed any thumb impressions in his presence. No substantial question of law arises in this regular second appeal, which would warrant interference by this Court. Accordingly, the same is dismissed. (SABINA) JUDGE April 27, 2011 anita