R.S.A.NO.2557 OF 2009 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Misc. NO. 7609-C of 2009 and Civil Misc. No. 7610-C of 2009 and Regular Second Appeal No. 2557 of 2009 Ram Lal(through his LR's) ......Appellant Versus Bhim Sain and others ......Respondents Before: HON'BLE MR. JUSTICE RAJIVE BHALLA Present: Mr. P.S.Jammu, Advocate for the appellant. RAJIVE BHALLA, J. Civil Misc. NO. 7609-C of 2009 For the reasons stated in the application, the delay of 277 days in refiling the present appeal is condoned. C.M., stands disposed of accordingly. Civil Misc. No. 7610-C of 2009 Prayer in this application is for impleading the legal heirs of Ram Lal-appellant, mentioned in para 2 of the application, who is stated to have been passed away on 15.01.2009, for the sole purpose of this appeal. C.M is allowed subject to all just exceptions for the purpose of this appeal only. R.S.A.No.2557 of 2009 The appellants, who are the legal representatives of Ram Lal(deceased) challenge the correctness of the judgments and decrees dated 9.10.2007 and 31.05.2008, passed by the Civil Judge(Senior Division), Sirsa, and the Additional District 1 R.S.A.NO.2557 OF 2009 Judge, Sirsa, decreeing the suit filed by respondent no. 1 and dismissing their appeal. The Plaintiff-Respondent no. 1, filed a suit for permanent injunction, to restrain the respondents from interfering in his peaceful possession over the suit land. Respondent no. 1 alleged that Ram Lal his father was owner in possession of the suit land. On 13.12.1995, he suffered a civil court decree in civil suit titled as “Bhim Sain and another Vs. Ram Lal and another” on the basis of a family settlement, in favour of the plaintiff and the performa defendant. He suffered another civil court decree dated 25.04.1998, in favour of the plaintiff and performa defendant. Upon notice, the defendants filed a joint written statement, primarilary asserting that in the year 1994 and pursuant to a family settlement 67 kanals and 11 marlas of land was given to the plaintiff and performa defendant no. 4 in equal shares, 44 kanals and 13 marlas was given to the defendant no. 2 and 3, and the remaining land measuring 32 kanals and 15 marlas was left with defendant no. 1, Ram Lal. In the year 1995, Ram Lal, at the request of his children wanted to execute a Will, bequeathing 32 kanals and 15 marlas, after his and his wife’s death, to his children in equal shares. For this purpose he requested the plaintiff to make the necessary arrangements. The plaintiff exploited his trust and instead obtained a fraudulent civil court decree dated 25.04.1998, with respect to this land. On the basis of the pleadings, the courts below framed the following issues: 2 R.S.A.NO.2557 OF 2009 “1. Whether the plaintiff is entitled for permanent injunction restraining the defendants No. 1 to 3 from interfering in any manner with the peaceful possession of the plaintiff and proforma defendant over the land as mentioned in the head-note of the plaint?OPP 2. Whether the suit of the plaintiff is not maintainable in the present form?OPD 3. Whether the suit of the plaintiff is bad for misjoinder of the necessary parties?OPD 4. Whether the plaintiff has no locus-standi and cause of action to file the present suit?OPD 5. Whether the plaintiff has not come in court with clean hands and has totally concealed and misrepresented the true and material facts from this court?OPD 6. Relief.” After considering the pleadings, the evidence adduced and the arguments addressed, the learned trial court held that the judgment and decree dated 25.04.1998, was legal and valid 3 R.S.A.NO.2557 OF 2009 and therefore, the plaintiff was entitled to the grant of an injunction. The suit was consequently, decreed and a permanent injunction was granted in favour of the plaintiff-respondent no. 1. Aggrieved by the aforementioned judgment and decree, the appellants filed an appeal. Vide judgment and decree dated 31.05.2008, the Additional District Judge, Sirsa, dismissed the appeal and affirmed the findings recorded by the courts below. Counsel for the appellants submits that respondent no. 1, played a fraud upon his father Ram Lal and his other brothers and obtained a decree by perpetuating a fraud. The findings recorded by the courts below, are perverse and contrary to the evidence on record. The courts below have failed to appreciate the fact that Ram Lal had already executed a Will dated 18.01.1995 in favour of his sons and therefore, there was no need for him to suffer a decree in favour of respondent no. 1. It is submitted that the decree is a fraudulent transaction, particularly in view of the fact that Ram Lal had already transferred land to his sons. It is further submitted that respondent no. 2, who is a party to the fraudulent judgment and decree, has accepted the correctness of Ram Lal's claim and therefore, the courts below should have dismissed the suit and accepted the appeal. It is submitted that in view of the errors in the impugned judgments and decrees, the following substantial questions of law arise for consideration: “1. Whether the respondent no. 1 who has obtained the civil court decree dated 4 R.S.A.NO.2557 OF 2009 25.4.1998 deserve to grant the discretionary relief of permanent injunction? 2. Whether the impugned judgments and decrees passed by the courts below are liable to be set aside? 3. Whether the impugned judgment and decree are perverse and arbitrary to law and facts on the file? 4. Whether the judgment and decree in question are contrary to evidence on record and whether evidence has been misread? 5. Whether the impugned judgments and decrees are hit by ruling of the Hon’ble Supreme Court and other Hon’ble Courts?” I have heard counsel for the appellants and carefully perused the judgments and decrees passed by the courts below. Before proceeding further, it would be necessary to mention here that respondent no. 1 claims to be in possession, on the basis of judgment and decree dated 4.01.1996. Ram Lal deceased filed a suit that the judgment and decree dated 4.01.1996, was null and void as it had been obtained by fraud. Both the trial court and the first appellate court have negatived the plea of fraud and held that the judgment and decree dated 4.01.1996 is legal and valid. R.S.A.No.2556 of 2009, titled as “Ram Lal(through his LR's) Vs. Bhim Sain and others” against these judgments 5 R.S.A.NO.2557 OF 2009 and decrees has been dismissed vide a separate order of even date. As regards the present case, both the courts below have recorded concurrent findings of fact that the appellants have failed to establish the plea that the judgment and decree dated 4.01.1996, passed by the then Civil Judge(Junior Division) Sirsa, was obtained by fraud as Ram Lal, filed a written statement, suffered a statement before the court admitting the claim set out in the plaint. He failed to produce any evidence to establish that there was any fraud in these proceedings. Ram Lal, in essence, admitted his signatures on the written statement. Ram Lal appellant has failed to produce any evidence to establish a case of fraud by impersonation. It would be necessary to mention here that respondent no. 1 has proved the execution of another registered will dated 14.10.1997, Ex.D-W 1/A, vide which Ram Lal cancelled the Will dated 18.01.1995 and bequeathed his land, tractor etc., to respondent nos. 1 and 2 with a stipulation that respondent no.1 would get 6 kanals of land more than respondent no. 2. The will bears the photograph of Ram Lal. The judgment and decree dated 25.04.1998, passed in Civil Suit No. 1278 of 1997, is in consonance with the recitals in this Will. The courts below also took notice of the fact that as Ram Lal appellant had executed three wills at different times, had suffered two other collusive decrees, therefore, he was fully aware of the difference between the execution of a will and the procedure for suffering a consent decree and therefore, negatived his plea of fraud. 6 R.S.A.NO.2557 OF 2009 The questions of law framed by counsel for the appellants are facts in issue rather than questions of law much less substantial questions of law. Counsel for the appellants has failed to refer to any evidence that would raise an inference that the judgment and decree dated 4.01.1996 was obtained by a fraud. The mere fact that respondent no. 2 , who is a party to the decree dated 4.01.1996 admits the claim of Ram Lal cannot be a ground to hold that the judgment and decree was obtained by fraud. The registered will dated 18.01.1995 is irrelevant as by a subsequent will dated 14.10.1997, Ram Lal cancelled this will and bequeathed his property to respondents no. 1 and 2. It would also be necessary to mention here that the judgment and decree dated 25.04.1998 is in consonance with a will dated 14.10.1997. Counsel for the appellants has failed to advance any worthwhile argument or refer to any part of the impugned judgments and decrees as would disclose such a perversity or illegality in the impugned judgments and decrees as would raise a substantial questions of law. In view of what has been stated herein above, as the concurrent findings recorded by the courts below do not suffer from any error or raise any substantial question of law, the appeal is dismissed with no order as to costs. [RAJIVE BHALLA] JUDGE 15th July, 2009 SKaushik 7