IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.1153 of 2009 Date of decision: 24.02.2010 Inder Singh and others ..Appellants Versus Smt.Phoolpati Devi ..Respondent CORAM: HON'BLE MR.JUSTICE AJAY TEWARI Present:- Mr. Sanjiv Gupta, Advocate with Mr.Johny Goyal, Advocate for the appellant Mr.R.K. Gupta, Advocate for the respondents . . . AJAY TEWARI. J This appeal has been filed against the concurrent judgments of the Courts below decreeing the suit of the respondent that the Civil Court decree in respect of her share in the property was obtained by fraud and by impersonation. Both the Courts below have found on the basis of the report of Document Expert that the thumb impression on the Vakalatnama and the written statement in the suit from which the impugned decree has arisen were not of the respondent, as in reply to the positive evidence led by the respondent in this regard, the appellant did not lead any rebuttal evidence. The following questions have been proposed:- (i) Whether the findings having been recorded by the Courts below on misreading and mis- interpretation of pleadings and evidence both, involve a substantial question of law or not ? (ii) Whether impugned judgments and decrees are sustainable being contrary to Section 11 of CPC RSA No.1153 of 2009 -2- and in view of the fact that the second suit itself is not maintainable ? (iii) Whether the fraud under the Civil Law is not required to be proved only by direct evidence ? (iv) Whether the so-called affidavit i.e. Ex.PW1/A of Plaintiff, being not sworn as per the requirement of Order 19 of C.P.C. was not required to be excluded from the purview of legal evidence ? (v) Whether the Courts below could make out a case for which there was no foundation in the pleadings ? (vi) Whether the plaintiff was not required to lead cogent evidence to prove such issues, the onus of which was upon her and upon her failure to do so, whether the Courts below were not required to draw adverse inference against her ? (vii) Whether the non consideration of material evidence/documents in the shape of documents Ex.D-1 to D-13 emerging on record have the effect of rendering the impugned judgments of the courts below as cryptic and unsustainable ? (viii) Whether the 1st Appellate Court was not required under the law to pass reasoned judgment and decree showing manifestation of mind duly applied to the facts and circumstances, the reasoning adopted by the Trial Court and also to the law applicable thereto ? (ix) Whether the courts below did not commit error in not appreciating the settled proposition of law which envisages that the plaintiff is required stand upon RSA No.1153 of 2009 -3- his/her own legs and he/she cannot take benefit of the weakness of the case of defendant, if any in the case of defendant(s) ? (x) Whether the courts below have not commit an error in by not holding the civil suit no.256-C of 10.09.2004 as hopelessly time barred having been filed after 17½ years of passing of judgment and decree and sanctioning of mutation ? (xi) Whether the courts below committed a grave error in decreeing the suit for declaration without any further relief having been claimed by plaintiff whereas it was fully established on record that plaintiff was not at all in possession of the suit land since 17½ years. (xii) Whether the courts below have not committed a grave error in setting aside the judgment and decree dated 25.10.1986 passed in civil suit no.389-C of 1986 as a whole whereas the prayer made by the plaintiff was to the extent of setting aside said judgment and decree only qua her share in the suit land ? Learned counsel has not been able to pursuade me that the findings of facts recorded by the Courts below are either based on no evidence or on such perverse misreading of the evidence so as to be liable for interference under Section 100 CPC. Once these findings are upheld and its held that the appellant obtained the decree against respondent by impersonation, all questions except question Nos.(xi) and (xii) do not arise. As regards question No.(xi), the consequence of the decree would be that the respondent would become co-sharer in the property and thus, did not RSA No.1153 of 2009 -4- need to seek any consequential relief. As regards question No.(xii), it is clarified that the decree would be set aside only qua the share which the respondent had inherited from her father. With this modification the decree qua the remaining property cannot be sustained. Consequently, rejecting all the questions proposed with regard to the findings against the appellant, this appeal stands dismissed subject to the modification that it would enure to the benefit only of the respondent and would not affect the remaining part of the earlier decree obtained by the appellant. Since the main case has been decided, the Civil Miscellaneous Application, if any, stands disposed of. February 24, 2010 (AJAY TEWARI) Sukhpreet JUDGE