R.S.A.No.1825 of 2006 1 In the High Court of Punjab and Haryana at Chandigarh R.S.A.No.1825 of 2006 Date of decision: 2.12.2009 Bharpai ......Appellant Versus Prem Kaur and others .......Respondents CORAM: HON'BLE MRS. JUSTICE SABINA Present: Mr.R.A.Sheoran, Advocate, for the appellant. Mr.Jaswant Jain, Advocate, for the respondents. **** SABINA, J. Plaintiffs Bharpai and Sarvan Devi filed a suit for declaration, which was dismissed by the Additional Civil Judge (Sr.Divn.), Charkhi Dadri vide judgment and decree dated 15.10.2003. In appeal, the said judgment and decree were upheld by the Additional District Judge, Bhiwani vide judgment and decree dated 16.2.2006. Hence, the present appeal. Brief facts of the case, as noticed by the lower appellate Court in para Nos. 2 to 6 of its judgment, are as under:- “2. Shorn of details, the claim of the plaintiffs, set R.S.A.No.1825 of 2006 2 up for trial, is that Harnarain, father and husband of parties to the suit, respectively, was owner in possession of the land, in question, measuring 64 kanals – 6 Marlas and after his demise in December, 1994, the said property developed upon them being legal heirs to the extent of their respective shares. 3. The next averment, made by the plaintiffs, is that Harnarian never suffered the decree, under challenge, dated 9.3.1994 in favour of defendant No.1 as no family settlement ever took place. So, the same is illegal, null and void being the result of fraud and thus, liable to be set-aside. The said decree is unregistered. Subsequently, the defendant No.1 on the basis of impugned decree, has transferred the land, in dispute, in favour of her sons (defendants No. 2 to 4) having illegally suffered a decree dated 12.1.1995, which also deserves to be set-aside. All these facts and circumstances culminated in the institution of the suit. 4. On notice, the contesting defendants No. 1 to 4 appeared through their counsel and resisted the suit, tooth and nail jointly, having filed a written statement and vehemently pleased that the plaintiffs are estopped by their own act and conduct to file the suit. Particulars of fraud have not been mentioned. Harnarain voluntarily R.S.A.No.1825 of 2006 3 suffered the impugned decree in favour of defendant No.1 as she was looking after him. Further, during his life time, Harnarain never challenged the impugned decree, which is not registrable compulsorily. Thus, both the decrees are perfectly valid. Lastly, the suit deserves dismissal. 5. It is pertinent to mention that initially, the proforma defendant No.5 was proceeded against ex-parte. But subsequently, the ex-parte proceedings were set-aside and she contested the suit having filed a written statement and pleaded that Harnarain never suffered the impugned decree. Thus, she supported the stand of the plaintiffs. 6. Another proforma defendant No.6, mother of the plaintiffs, has also supported the cause of defendants No. 1 to 4 having filed a separate written statement.” On the pleadings of the parties, following issues were framed by the trial Court:- 1. Whether upon the death of Har Narain son of Data Ram, parties became owner in possession of the suit land in equal shares?OPP 2. Whether judgment and decree passed in civil suit No. 175 of 1994 decided on 9.3.1994 and the consequent mutation No.430 are illegal, null and void and liable to be set-aside on the ground as alleged in R.S.A.No.1825 of 2006 4 the plaint?OPP 3. Whether the judgment and decree passed in civil suit No. 1015 decided on 12.1.1995 and consequent mutation No.435 are also null and void and illegal and not binding on the plaintiff?OPD 4. Whether the plaintiffs have no locus-standi to file the present suit?OPD. 5. Whether the suit is false and frivolous and defendants are entitled to special costs?OPD 6. Whether plaintiffs are estopped from filing the present suit by their own act and conduct?OPD. 7. Relief. After hearing learned counsel for the parties, I am of the opinion that the present appeal deserves to be dismissed. The plaintiffs had filed a suit for declaration challenging the decree passed in Civil Suit No.175 dated 4.3.1994 decided on 9.3.1994 in favour of Prem Kaur. Admittedly, the property in question was owned by Harnarain, father of plaintiff and defendant No.1. The suit property was not coparcenary property in the hands of Harnarain. Thus, the suit property can be termed as his self acquired property. Harnarain suffered a decree in favour of defendant No.1. The only ground available to the plaintiffs was to challenge the same on the basis of fraud or misrepresentation or impersonation. However, the plaintiffs R.S.A.No.1825 of 2006 5 had failed to prove that the impugned decree was a result of fraud or impersonation or misrepresentation. Defendant No.1 filed a suit against her father Harnarain basing her claim on a family settlement. Harnarain filed a written statement admitting the claim of defendant No.1. There is nothing on record to suggest that the written statement filed by Harnarain did not bear his thumb impressions. The suit was filed by defendant No.1 basing her claim on a settlement about five months prior to the filing of the suit. Since the impugned decree did not create right in defendant No.1 for the first time, the decree did not require registration. Harnarain was being looked after by defendant No.1 during his life time. 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. Accordingly, the same is dismissed. (SABINA) JUDGE December 02, 2009 anita