RSA No.3464 of 2011(O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. RSA No.3464 of 2011(O&M) Date of Decision: September 14, 2011 Pardeep Kumar .....Appellant v. Nasib Singh and others .....Respondents CORAM: HON'BLE MR.JUSTICE RAM CHAND GUPTA Present: Mr.Parminder Singh, Advocate for the appellant. ..... RAM CHAND GUPTA, J.(Oral) C.M.No.9743-C of 2011 In view of the facts mentioned in the application, delay of 78 days in refiling the appeal is condoned. Application stands disposed of accordingly. C.M.No.9746-C of 2011 In view of the facts mentioned in the application, delay of 24 days in filing the appeal is condoned. Application stands disposed of accordingly. C.M.No.9744-C of 2011 Requests for placing on record, Annexure A-1. The same is taken on record subject to all just exceptions. Application stands disposed of accordingly. RSA No.3464 of 2011 The present regular second appeal has been filed against judgment and decree dated 28.1.2011 passed by learned Additional District Judge (Fast Track Court), Karnal, dismissing appeal filed by present RSA No.3464 of 2011(O&M) -2- appellant-plaintiff against judgment and decree dated 13.6.2007 passed by learned Civil Judge (Junior Division), Karnal, vide which suit filed by appellant-plaintiff was dismissed. I have heard learned counsel for the appellant and have gone through the whole record carefully including both the judgments passed by learned Courts below. Briefly stated, Ram Chander, the original plaintiff, now represented by his legal heir, i.e., his alleged adopted son, who is son of another brother of Ram Chander, filed suit against Nasib Singh son of another brother of Ram Chander and Smt.Giano, daughter of Ram Chander, who also expired during pendency of the suit and now represented by her legal representatives. Suit has been filed for decree for declaration that decree dated 3.8.1992 passed by the then Sub Judge II Class, Karnal, in Civil Suit No.595/92 titled as Naseeb Singh etc. v. Ram Chander, appellant —plaintiff, regarding land in dispute, duly described in the plaint and in jamabandi for the year 1985-86 is illegal, void and not binding upon the rights of the plaintiff and the same is liable to be set aside and cancelled alongwith a decree for permanent injunction restraining respondents- defendants from implementing the said judgment and decree and from interfering, in any manner, in the possession of the plaintiff. Plea has been taken that the alleged decree is the result of fraud committed by respondent-defendant no.1, who was to pay a sum of `15,000/- to plaintiff and for that purpose, he persuaded him to execute some documents. Plea has been also taken that Smt.Giano daughter of plaintiff is in fact daughter of one Sheo Ram, i.e., real sister of Nasib Singh-defendant no.1. It has been also pleaded that there was no alleged RSA No.3464 of 2011(O&M) -3- family settlement. Suit was contested by respondent-defendant no.1 by stating that the appellant-plaintiff used to reside with defendants and that they had constituted a joint hindu family and that a family settlement was arrived between the parties in the month of December 1991 and that on the basis of same the impugned decree was passed. It has been asserted that Giano is the real daughter of the plaintiff and no fraud was committed upon him by defendant no.1, whereas respondent-defendant no.2 filed written statement admitting the suit filed by appellant-plaintiff. However, she had taken the plea that plaintiff had married with her mother. Suit filed by appellant-plaintiff was dismissed by learned trial Court. Appeal filed against the said order was also dismissed by learned first appellate Court. It has been contended by learned counsel for the appellant- plaintiff that it is a case of misreading and misappreciation of evidence by both the Courts below as the various documents placed on record have not been considered by the Courts below. It is also contended that no notice of suit was issued to present appellant-plaintiff and, in fact, the date was pre- poned and after playing fraud respondent-defendant no.1 obtained decree in his favour. It is also contended that moreover one of the beneficiaries of the decree, i.e., respondent-defendant no.1 is supporting the case of present appellant-plaintiff. So far as decree suffered by present appellant-plaintiff, which has been challenged in the present suit is concerned, passing of the same by learned trial Court has been duly proved by contesting respondent- defendant no.1. Admitted written statement was filed by present appellant- RSA No.3464 of 2011(O&M) -4- plaintiff through Advocate Lalit Chopra, who was examined as PW4 by plaintiff himself. He had deposed that he appeared on behalf of the plaintiff and admitted that he filed admitted written statement Ex.PW4/A at his direction after the summons were shown to him by Ram Chander. He had also admitted the thumb impression of Ram Chander appearing on vakalatnama filed by him. He had also deposed that Ram Chander got recorded his statement in his presence and, thereafter he had appended his thumb impression over the statement and that the said statement was also identified by him. He had also proved that an application for early hearing was filed by Ram Chander, which is dated 30.7.1992, which is mark `A'. Ram Chander never disputed his thumb impression even on the said application. So far as plea of fraud is concerned, the same has to be specifically pleaded and proved and however, both the Courts have come to the conclusion that no such fraud has been proved by present appellant- plaintiff. There is nothing wrong in the preponing of the suit on the application of defendant and suffering statement admitting the case of present respondents-defendants. There was a family settlement between the parties on the basis of which decree was suffered. Moreover, it has been rightly observed by learned Courts below that different stands were taken by appellant-plaintiff at different times and hence no reliance was placed upon his statement. As per averment in the plaint, he has shown himself as issueless, whereas as per document placed on record by present alleged legal representatives of original plaintiff, in whose favour he allegedly executed a Will, Ex.P2, it has been mentioned that he was married. Even respondent-defendant no.2 has taken the plea that appellant-plaintiff was RSA No.3464 of 2011(O&M) -5- married with her mother and that she was brought up by plaintiff and was also married by the plaintiff. However, plea had been raised that another nephew was adopted by appellant-plaintiff on 1.9.1993 and however, no such plea was taken by the appellant-plaintiff in this case. In suit it has been averred that plaintiff has been continuing in possession. However, as per revenue record, respondents-defendants are in possession. He has also admitted possession of respondents-defendants. Hence, in view of these facts, it cannot be said that any illegality has been committed by learned Courts below in passing the impugned judgments and decrees. Finding recorded by the learned courts below is fully justified by the evidence on record and is supported by cogent reasons. The said finding is not shown to be perverse or illegal nor it is based on misreading or misappreciation of the evidence. Hence, the said finding does not warrant interference in this second appeal. No question of law, much less substantial question of law, arises for determination in this second appeal. Accordingly the appeal is dismissed in limine. 14.9.2011 (Ram Chand Gupta) meenu Judge