RSA No.1172 of 2007 (O&M) 1 IN THE HIGH COURT OF PUNJAB & HARYANA, CHANDIGARH R.S.A. No. 1172 of 2007 (O&M) Date of Decision: October 08 , 2009 Smt.Ram Murti and others ...........Appellants Versus Smt.Khazani ..........Respondent Coram: Hon'ble Mrs. Justice Sabina Present: Mr.B.R.Gupta, Advocate for the appellants. Mr.B.R.Mahajan,Advocate for the respondent. ** Sabina, J. Plaintiffs filed a suit for declaration to the effect that the judgment and decree dated 16.9.1992 passed in civil suit No.412 of 16.3.92 titled as Smt.Khajani vs.Dharam Singh by the Sub Judge IInd Class Hisar regarding 1/6th share of agriculture land measuring 148 kanals 2 marlas comprised in Khewat no.9, Khatoni no.26 as per jamabandi for the year 1985-86 situated in village Sundawas, Tehsil and District Hisar and 47/80 share of 80 kanals 10 marlas comprised in Khewat no.157, Khatoni no.264 and ½ share of 36 kanals and 8 marlas comprised in Khewat no.158. Khatoni no.265 as per jamabandi for the year 1988-89 situated in village RSA No.1172 of 2007 (O&M) 2 Siswala, Tehsil and District Hisar are illegal, null and void and inoperative qua the rights of the plaintiffs and are liable to be set aside .The suit of the plaintiffs was dismissed by the Civil Judge (Junior Division) Hisar vide judgment and decree dated 15.12.2005. Aggrieved by the same, plaintiff filed an appeal and the same was dismissed by the learned Additional District Judge,Hisar vide judgment and decree dated 29.3.2007. Hence, the present appeal by the plaintiffs. The case of the parties, as noticed by the learned Additional District Judge, in paras 2 to 5 of its judgment reads as under:- “ 2. Shorn of unnecessary details, the facts which gave rise to this appeal, may be narrated as under:- That Dharambir alias Dharma (since deceased) was owner of the suit property. He died on 17.9.1997. Plaintiff No.1 is widow of said Dharambir and plaintiffs No. 2 & 3 are children of Dharam Singh. After marriage with the plaintiff No.1 Dharam Singh became addicted to bad habits and he succeeded in turning out of the plaintiff from his house. Therefore, plaintiff filed an application under Section 125 of Code of Criminal Procedure (Cr.P.C) which was accepted on 23.11.1993 by the court of Sh.N.D.Achint, learned JMIC, Sirsa . With a view to nullify the effect of order, Dharam Singh suffered a decree in favour of the defendant. The said decree has been challenged by the plaintiffs on the ground that no family settlement could have taken place within the female; the suit land was ancestral,therefore, Dharam Singh was not competent to suffer the decree in favour of the defendant; the property involved is of the value of more than RSA No.1172 of 2007 (O&M) 3 Rs.100/-,therefore, the decree required to be registered. However, the impugned decree is un-registered. Besides, this the defendant had no pre-existing right in the suit property and the previous suit was hopelessly time barred; the plaintiffs were not impleaded as party and maintenance of the plaintiffs was a charge on the suit property. It has further been pleaded that under the garb of impugned decree, the defendant wants to take the forcible possession of the suit property and attempted to take the possession of the suit property about a week back. 3.Prayer was made for passing a decree for declaration to the effect that the judgment and decree dated 16.9.1992 passed in civil suit No.412 of 1992 titled as Smt.Khazani Vs.Dharam Singh in respect of suit property is illegal, null and void, without jurisdiction, collusive, ineffective, inoperative qua the rights of the plaintiffs, not binding and liable to be set aside. 4. In the written statement, the plea set up by the defendants is that Dharam Singh @ Dharambir was a simple person and he was a permanent disabled person, whereas plaintiff No.1 is a strong headed lady and was under the influence of his brother. She was putting pressure upon Dharambir and in order to teach a lesson to him filed an application under Section 125 of Cr.P.C. and succeeded in sending Dharambir to imprisonment. It was the son of the defendant namely Karan Singh, who deposited the arrears of maintenance and got his uncle Dharam Singh released from jail and thereafter Dharambir went to village Fatehpur Niamat Khan for bringing plaintiff No.1 to his house but his brother Banwari RSA No.1172 of 2007 (O&M) 4 Lal got registered a false criminal case against him under Section 25 of the Arms Act. All other allegations of plaint have been denied by the defendants. It is further alleged that the defendant is in possession of the suit property on the basis of judgment and decree in question. While denying the other pleas of the plaintiffs, defendants made prayer for dismissal of the suit. 5. In their replication plaintiffs repudiated the pleas raised by the defendants and re-iterated the allegations in the plaint.” On the pleadings of the parties, the following issues were framed by the trial Court:- “1. Whether the plaintiffs are owner in possession of the suit land as alleged?OPP 2. If issue No.1 is proved, whether the decree dated 16.9.2002 passed in civil suit titled as Smt. Khajani vs. Dharam Singh by Sh.M.M.Dhonchak is illegal, null and void without jurisdiction and inoperative and liable to be set aside as alleged?OPP 3. Whether the suit is not maintainable ?OPD 4.Whether the suit is hopelessly time barred?OPD 5. Relief.” After hearing the learned counsel for the parties, I am of the opinion that this appeal deserves to be dismissed. Plaintiffs had filed a suit challenging judgment and decree dated 16.9.1992 passed in civil suit No.412 of 16.3.1992. Plaintiffs had failed to establish that the suit land was ancestral in nature. Thus, the suit property was not ancestral property in the hands of Dharambir alias Dharam Singh. Consequently, he was competent to deal with the property in the RSA No.1172 of 2007 (O&M) 5 manner he liked. It has been observed by the learned Additional District Judge in the judgment that PW1 Bhoop Singh in his cross examination had admitted that Dharambir alias Dharam Singh and Khajani (defendant) used to reside together. The appellant Ram Murti had admitted that she was not residing with Dhararmbir alias Dharam Singh. Thus, from the evidence led by the plaintiff, it is evident that Dharambir alias Dharam Singh, (husband of plaintiff No.1- Ram Murti), was not residing with his wife and was rather residing with his sister Khajani (defendant). A decree was passed in favour of defendant with regard to the property in dispute. The impugned judgment and decree dated 16.9.1992 were not challenged on the ground of fraud and misrepresentation and they were not challenged within three years of the passing of the same by the plaintiffs. In these circumstances, the Courts below had rightly dismissed the suit of the plaintiff. 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 08, 2009 arya