RSA No. 3347 of 2010 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. RSA No. 3347 of 2010 Date of Decision: 07.03.2011. Kans Raj .......Appellant Vs. Santosh Kumari & others ......Respondents CORAM: HON'BLE MRS. JUSTICE SABINA Present: Mr. A.S.Sandhu, Advocate for the appellant. ..... SABINA, J. Plaintiff had filed a suit for declaration. The case of the plaintiff in brief was that the plaintiff was permanent resident of village Dali and had retired as a Teacher. Plaintiff had purchased a plot measuring 250 square yards in Taraf Rajputan, Tehsil and District Panipat vide sale dated 19.5.1987 and had sold the same to Sumer Chand vide sale deed dated 5.6.1995. Plaintiff came to know about the impugned judgment and decree dated 9.4.1991 passed in Civil Suit No. 551 of 1991 in case titled as 'Sumitra Devi versus Kans Raj' relating to the suit land. The said impugned decree was liable to be set aside as no family partition had taken place between the plaintiff and his wife. Sumitra Devi had never filed the suit in question. Defendant No.7, brother of the plaintiff had RSA No. 3347 of 2010 -2- got the decree by way of fraud and impersonation. Plaintiff had not received any summons qua the suit allegedly filed by Sumitra Devi. Plaintiff had not filed written statement in the suit nor had appeared before the court on 9.4.1991. Defendants No. 1 to 5 admitted the claim of the plaintiff in their written statements. Defendant No. 6, in its written statement, denied the contentions in the plaint. It was averred that after passing of the impugned decree dated 9.4.1991, the sale deed executed by the plaintiff in favour of Sumer Chand was illegal, null and void. The impugned decree was valid and legal and had been passed after the plaintiff had admitted the claim of Sumitra Devi. Sumitra Devi had created an equitable mortgage qua the plot in question with the respondent bank as collateral security for securing the due repayment of loan. The account of M/s Rishi Industries became irregular and a Civil Suit No. 818 of 1995 was filed by the bank for recovery of ` 71556.15. The said suit was decreed by the trial court. Defendant No.6 had filed execution petition qua the said decree. On the pleadings of the parties, following issues were framed by the trial Court:- “1. Whether judgment and decree dated 9.4.91 passed in Civil Suit No. 551 of 1991 in case titled Sumitra Devi Vs. Kans Raj passed by the court of Sh. Surinder Kumar, the then Ld. Sub Judge Ist Class, Panipat is illegal, null and void and not binding upon the rights of the plaintiff? OPP 2. Whether the suit filed by the plaintiff is not RSA No. 3347 of 2010 -3- maintainable in the present form? OPD 3. Whether the plaintiff has not approached the court with clean hands? OPD 4. Whether the suit has not been properly valued for the purposes of court fee jurisdiction? OPD 5. Whether the suit filed by the plaintiff is barred by limitation? OPD 6. Relief.” Vide judgment and decree dated 3.12.2009, Civil Judge (Junior Division), Panipat dismissed the suit of the plaintiff. The said judgment and decree was upheld, in an appeal filed by the plaintiff, by Additional District Judge, Panipat vide judgment and decree dated 28.1.2010. Hence, the present appeal by the plaintiff. After hearing the learned counsel for the appellant, I am of the opinion that the instant appeal deserves dismissal. Plaintiff had challenged the decree dated 9.4.1991 suffered by him in favour of his wife qua the plot in question. Sumitra Devi, wife of the plaintiff died in the year 2003. During the lifetime of his wife, plaintiff had not challenged the decree but had filed the suit in the year 2004, challenging the decree which was passed in the year 1991. Sumitra Devi had mortgaged the suit property with defendant No. 6 after the decree was passed in her favour. Plaintiff had failed to establish that the decree in question was a result of fraud or impersonation. Plaintiff had not examined any Hand Writing Expert to establish his plea that the written statement was not signed by him which led to the passing of the impugned decree. RSA No. 3347 of 2010 -4- Both the courts below, after appreciating the evidence led by the parties on record, have given a finding of fact that the impugned decree had been validly passed. No substantial question of law arises in this appeal. Dismissed. (SABINA) JUDGE March 07, 2011 Gurpreet