R.S.A.No. 414 of 2007 (O&M) 1 In the High Court of Punjab and Haryana at Chandigarh R.S.A.No. 414 of 2007 (O&M) Date of decision: 15.7.2009 Barphy Devi @ Bharpo ......Appellant Versus Mahabir Singh and others .......Respondents CORAM: HON'BLE MRS. JUSTICE SABINA Present: Mr.Vikram Singh, Advocate, for the appellant. **** SABINA, J. Plaintiff Barphy @ Barpho filed a suit for declaration to the effect that she was owner in possession of the suit land to the extent of 1/3rd share. The suit of the plaintiff was dismissed by the Civil Judge (Sr.Divn.) Jind vide judgment and decree dated 7.12.2004. In appeal, the said judgment and decree were upheld by the Additional District Judge, Jind vide judgment and decree dated 11.12.2006. Hence, the present appeal. Brief facts of the case, as noticed by the lower appellate Court in para Nos. 2 and 3 of its judgment, are as under:- “2. The facts, in brief, of the case of the plaintiff as set up in the plaint before the learned lower court are that plaintiff is co-owner in possession of the land comprised in Khewat No.104/96 Khatoni No. 143/139 R.S.A.No. 414 of 2007 (O&M) 2 measuring 36 kanals to the extent of 1/3 rd share situated in the revenue estate of Jind. Plaintiff's husband Jaswant Singh along with defendant No.1 Dharam Singh and Om Parkash (since deceased) were real brothers and they were living in separate houses for the last more than 30 years having separate kitchens and they never constituted a joint Hindu family. The plaintiff is an old lady of 75 years of age and is an illiterate and rustic house hold lady and she does not know the norms of the law and the court but defendant No.1 and his brother Om Parkash (since deceased) were very clever persons and they brought the plaintiff in the court for taking the land on lease for two years but they by playing fraud and mis- representation upon her got the civil court decree passed in their favour though the plaintiff never appeared before the court for giving the statement. Even the plaintiff never remained with the defendants as family member, so there is no question of acting as family settlement between them and the defendants had not paid any money or any property in lieu of her share out of the suit land at the time impugned decree. The property involved in this case under the decree was more than Rs.100/- so without registration on the basis of civil Court decree the defendants cannot be considered as owners and rather R.S.A.No. 414 of 2007 (O&M) 3 without registration it has not passed any title right in favour of the defendants qua the suit land. So, decree dated 4.11.1987 passed in favour of the defendants qua the suit land is illegal, void and the same is not binding upon the plaintiff. Plaintiff came to know about the decree in the month of October, 1998 when she came to revenue Patwari for taking fard jamabandi that suit land has already been transferred in favour of the defendants and mutation in this respect has already been sanctioned. So, after taking copy of the decree and other documents she filed the suit and challenged the decree dated 4.11.1987 for setting aside the same by declaring as illegal and void. 3. The defendants have contested the suit by filing their joint written statement. Their stand is that the plaintiff is neither took place with the plaintiff in which answering defendants got the suit land while they gave property situated in Sampla to the plaintiff and plaintiff herself appeared in the court by engaging a counsel and on the statement of the plaintiff the decree was passed and the defendants never played any fraud or mis- representation upon her. Members of the joint Hindu family the defendants were having preexisting rights in the suit land. So, the decree under challenge does not R.S.A.No. 414 of 2007 (O&M) 4 require any registration and by virtue of the same the defendants are to be considered owners in possession of the suit land. Even the suit of the plaintiff is time barred but the plaintiff has filed the suit after 11 years of the passing of the decree. She is not in possession of the suit land and she has filed the suit for declaration without seeking the relief of possession, so her suit is not maintainable and she is also estopped from filing the suit by her own act and conduct. In this way the defendants have controverted the stand of the plaintiff and also requested for dismissal of the suit.” On the pleadings of the parties, following issues were framed by the trial Court:- “1. Whether the plaintiff is owner in possession of the suit land to the extent of 1/3rd share? OPP 2. Whether the judgment and decree dated 4.11.1987 passed in civil suit No.187 dated 7.3.1987 passed by the then ld. Senior Sub Judge, Jind in a suit titled as Dharam Singh vs. Barfi Devi etc. and mutation No.5440 dated 30.6.1997 are illegal, null and void and does not effect the rights of the plaintiff and are liable to be set aside? OPP 3. Whether the plaintiff is entitled for injunction as prayed for? OPP R.S.A.No. 414 of 2007 (O&M) 5 4. Whether the suit is time barred? OPD 5. Whether the suit is false and frivolous and liable to be dismissed with special costs.? OPD 6. Whether the plaintiff is estopped by her own act and conduct from filing the present suit? OPD 7. Relief. ” After hearing learned counsel for the appellant, I am of the opinion that the present appeal deserves to be dismissed. Dharam Singh-defendant No.1, Om Parkash and Jaswant Singh (all are since deceased) were real brothers. Plaintiff is widow of deceased Jaswant Singh. Case of the plaintiff was that Dharam Singh and Om Parkash by playing a fraud upon her had obtained her thumb impressions on blank papers without telling her the true facts and had got the suit land transferred in their favour fraudulently through Civil Court decree dated 4.11.1987 passed in civil suit No.187 of 7.3.1987 titled Dharam Singh etc. vs. Barfi @ Barfo etc. Admittedly, Jaswant Singh, Dharam Singh and Om Parkash had purchased land and out of which, plaintiff had 1/3rd share. In order to prove that a fraud had been played upon her at the time of suffering of the civil Court decree by her, plaintiff herself appeared in the witness box as PW-1. Her case was that she wanted to give her land on lease to the defendants for cultivation for two years but her thumb impressions had been taken on some blank papers and on the basis of the same, a decree had been got passed R.S.A.No. 414 of 2007 (O&M) 6 by them against her. The defendants, on the other hand, placed on record a copy of the plaint in the earlier suit Ex.D-1. As per the same in a family settlement, property situated in Garhi Sampla was given to the plaintiff while the suit land had come to their share. Plaintiff appeared in the said suit along with her counsel. The certified copy of the written statement filed by the plaintiff in the said suit was placed on record as Ex.D-4, wherein the plaintiff had admitted the claim of Dharam Singh and Om Parkash. Statement of the plaintiff was recorded in the Court before passing of the impugned decree. The only ground available to the plaintiff to challenge the decree was that it was a result of fraud. Learned counsel for the appellant has failed to point out anything from the record that the plaintiff had not appeared before the Court in the earlier suit or had not filed any written statement. The case of the defendants in the earlier suit was that in a family settlement the property situated in Garhi Sampla was given to the plaintiff. It has been noticed by the learned Additional District Judge that the plaintiff herself had stated that residential house and some other property in Sampla were in her possession. Hence, learned Additional District Judge has rightly observed that the possibility of a family settlement having been effected between the parties, in the facts and circumstances of the present case, could not be ruled out. In the facts of the present case, the Courts below rightly held that there was no question of any misrepresentation of fraud R.S.A.No. 414 of 2007 (O&M) 7 having been committed by the defendants upon the plaintiff. The plaintiff had challenged the impugned judgments and decrees of the Courts below on the basis of fraud and misrepresentation but had failed to establish the same. The judgment and decree in question were passed on 4.11.1987, whereas, plaintiff filed the suit in the year 1998 after more than eleven years. In these circumstances, the Courts below had rightly dismissed the suit of the plaintiff. I do not find any illegality or irregularity in the impugned judgments which may give rise to any substantial question of law for consideration of this Court in second appeal. Accordingly, the present appeal stands dismissed. (SABINA) JUDGE July 15, 2009 anita