RSA No.1949 of 2009 (O&M) 1 IN THE HIGH COURT OF PUNJAB & HARYANA, CHANDIGARH R.S.A. No.1949 of 2009 (O&M) Date of Decision: October 13, 2009 Mool Chand ...........Appellant Versus Raj Kapoor and Others ..........Respondents Coram: Hon'ble Mrs. Justice Sabina Present: Mr.R.K.Gupta,Advocate for the appellant ** Sabina, J. Plaintiff-Mool Chand filed a suit seeking for declaration. The said suit of the plaintiff was dismissed by the Civil Judge (Junior Division) Mohindergarh vide judgment and decree dated 8.4.2005. Aggrieved by the same, plaintiff filed an appeal and the same was dismissed by the Additional District Judge Narnaul vide judgment and decree dated 6.12.2008. Hence, the present appeal by the plaintiff. The case of the parties, as noticed by the learned District Judge, in paras 1 to 3 of its judgment reads as under:- “ 2. The plaintiff filed a suit for declaring in lower court with the averments that plaintiff is the owner in possession of the land measuring 10 kanal 10 marla comprised in khewat no.90 khatoni no. 137 and ½ share in the land measuring 1 kanal 0 marla comprised in khewat no.92 khatoni no.39 and 102 kanal 7 marlas comprised in khewat no. 160 khatoni no. 235 as per jambandi for RSA No.1949 of 2009 (O&M) 2 the year 1996-97 situated in village Chelawas Tehsil and District Mohindergarh. The defendants have no concern with the same. The defendants have obtained a civil court judgment and decree in the case titled Raj Kapoor vs. Mool Chand etc. of 17.5.1990 which is null and void and is liable to be set aside on following grounds that there was no Hindu joint family between plaintiff and defendants and no family settlement was ever arrived among the parties to the proceedings; that the market value of suit land is much more and same cannot be transferred by way of civil court judgment and decree; that the possession of the suit land was never transferred to the defendants and thus no decree can be passed in favour of the defendants and thus no decree can be passed in favour of the defendants; that the plaintiff is a handicap person and the defendants got the decree from the plaintiff by way of fraud. The plaintiff never engaged any counsel nor filed any written statement. It is further averred that the defendants started interfering in the possession of the plaintiff, and thus he (Plaintiff) came to know about the civil court judgment and decree. The defendants were asked many times to admit the claim of the plaintiff but they refused. Through the present suit filed in the lower court plaintiff sought a decree for declaration that he is the owner in possession of the suit land and civil court judgment and decree in the case titled Raj Kapoor etc. Vs. Mool Chand etc. decided on 17.5.1990 is null and void and is liable to be set aside being unregistered and based on fraud. Plaintiff also sought a decree for permanent injunction restraining the defendants from RSA No.1949 of 2009 (O&M) 3 interfering in his peaceful possession as a consequential relief. 2. On notice in lower court, defendants no. 2 and 3 appeared and filed written statement. The suit of the plaintiff is resisted on the ground that plaintiff has no concern with the suit land. The plaintiff is neither owner nor in possession over the same. The defendants are in possession over the suit land. The civil court judgment and decree in the case titled Raj Kapoor etc. vs. Mool Chand etc. decided on 17.5.1990 is legally valid and perfect. The plaintiff is the father of defendants and before civil court judgment and decree a family settlement was arrived in which suit land was given to the defendants, and thus the defendants had pre- existing right in the suit land. It is further averred that the plaintiff appeared in court after appointing Sh.Satyadev Sharma as his counsel and gave admitted written statement. No fraud has been committed with the plaintiff. The plaintiff has a hard litigant and is well acquainted with the procedure of the court. It is further averred that the defendants have pre-existing right in the suit land and the civil court judgment and decree does not require any registration. Rest of the averments of the plaintiff have been denied specifically and prayed for dismissal of the suit in lower court. 3. In lower court the defence of defendant no.1 was struck off vide order dated 30.9.2002” On the pleadings of the parties, the following issues were framed by the trial Court:- RSA No.1949 of 2009 (O&M) 4 “1.Whether the plaintiff is entitled for relief of declaration as mentioned in the plaint? OPP 2.Whether plaintiff has no right to file the present suit ?OPD 3. Whether suit is time barred for?OPD 4. Whether the suit is not maintainable?OPD 5. Whether the plaintiff is estopped from filing the suit due to his act and conduct?OPD 3. Relief.” After hearing the learned counsel for the appellant, I am of the opinion that this appeal is devoid of any merit. Plaintiff had challenged the decree dated 17.5.1990 passed against him in case titled as `Raj Kapoor vs. Mool Chand etc.' on the ground that it was null and void. However, the suit was filed by the plaintiff in the year 2001,whereas, the impugned decree was passed in the year 1990. Plaintiff had appeared before the Court before the impugned decree was passed and his statement was recorded before the trial Court. The said statement (Exhibit D1) was duly signed by the plaintiff in English. On the basis of the statement made by the plaintiff, the suit in question was decreed. In these circumstances, the Courts below rightly held that the plaintiff had failed to establish that the impugned decree was the result of fraud and misrepresentation, especially, when the plaintiff himself admitted in his cross-examination, as has been noticed by the learned Additional District judge, that when the decree was passed in the Court then he had signed the same in the Court room. It appears that the decree was passed in the year 1990 and,thereafter, the relation between the parties might not have remained cordial and due to this reason, the plaintiff filed the present RSA No.1949 of 2009 (O&M) 5 suit. Since the suit has been filed much beyond the period of limitation, the Courts below had rightly dismissed the same. The plaintiff could not challenge the decree on the ground that it was not registered because plaintiff was himself party to the consent decree in question. 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 13, 2009 arya