R.S.A. No. 5432 of 2003 [1] IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Regular Second Appeal No. 5432 of 2003 (O&M) Date of decision: 11.12.2008 Surender Singh ..Appellant v. Bishna alias Bishna Ram (deceased) through LRs .. Respondent CORAM: HON'BLE MR. JUSTICE RAJESH BINDAL Present: Mr. R.A. Sheoran, Advocate for the appellant. Mr. Adarsh Jain, Advocate for the respondent. .. Rajesh Bindal J. The defendant is in second appeal before this Court against concurrent finding of fact by both the courts below, whereby the suit filed by the respondent-plaintiff for declaration and permanent injunction was decreed. The challenge in the suit was to the judgment and decree dated 23.5.1986 suffered by Babu Ram in a suit filed by the appellant. Briefly, the facts are that Jee Ram had two sons, namely, Kanhiya and Nihala. Kanhiya had one son-Babu Ram, who was unmarried. It is his estate which is in dispute. Nihala had three sons and further their family as well. The respondent-plaintiff is legal representative of Bishna son of Nihala, who was brother of father of Babu Ram. The appellant filed the earlier suit on 15.5.1985 for injunction restraining the defendant therein, namely, Babu Ram from denying the status of the appellant as his adopted son. The suit was decreed on 23.5.1986, in which as is evident from the record, after filing of the written statement, Babu Ram never appeared even to get his statement recorded in the Court. Immediately after the death of Babu Ram on 27.10.1990, the present suit was filed on 4.1.1991 challenging the aforesaid ex parte judgment and decree passed in the earlier suit. The ground of challenge was that the same was a result of fraud and misrepresentation and as such was not binding on the parties and further that Babu Ram never adopted any person as his son and the respondent, being his collateral and there being a will executed in his favour, was entitled to inherit the property. Both the courts found that the impugned judgment and decree passed R.S.A. No. 5432 of 2003 [2] in favour of the appellant was a result of fraud. There was no adoption as such. Even the will projected by him was also found to be surrounded by suspicious circumstances. Learned counsel for the appellant submitted that there was no evidence led by the respondent-plaintiff to prove that the judgment and decree, earlier suffered by Babu Ram was a result of fraud and misrepresentation and as such no finding was recorded by the courts thereon. The court went on to examine as to whether the appellant was adopted by Babu Ram or not and also as to whether will dated 26.12.1988, executed by Babu Ram in his favour, was a valid document or not, which was totally beyond the issue involved in the case as the Court was to examine only as to whether the earlier decree was a result of fraud and misrepresentation. On the other hand, learned counsel for the respondent-plaintiff submitted that the very conduct of the appellant-defendant in the entire story shows that the earlier decree and even subsequent decree got by him were as a result of fraud and nothing else. It was submitted that from the evidence on record, it was established beyond doubt that the appellant somehow or the other was out to grab the property of Babu Ram, who died unmarried. In fact, he had never adopted the appellant. It was alleged that the appellant was adopted by him in the year 1970. Babu Ram executed a will on 30.11.1982 in favour of the appellant. If Babu Ram had already executed a will in his favour, there was no occasion for him to have filed the suit on 15.5.1985 to establish his right of being an adopted son of Babu Ram and nothing prevented Babu Ram to appear in the court and admit his claim. However, the suit was decreed ex parte as after filing the written statement, none appeared for the defendant. Will dated 30.11.1982 in favour of the appellant was cancelled by Babu Ram on 22.3.1988. Immediately thereafter, second suit was filed on 1.6.1988 by the appellant and his three brothers claiming entire property of Babu Ram. The suit was decreed on the very next day, i.e., 2.6.1988, when allegedly the claim made by the plaintiffs therein was admitted by Babu Ram. Subsequent judgment and decree dated 2.6.1988 was challenged and the same was set aside by the judgment and decree of the Civil Court on 20.1.1998. Even after getting the second suit decreed on 2.6.1988, the appellant was still not satisfied, as he again fabricated a will dated 26.12.1988, whereby Babu Ram bequeathed his entire property to him. Still further, it is submitted that there is no evidence on record, either oral or documentary, that the appellant was ever adopted as son by Babu Ram or was treated as such. No witness was produced to substantiate that any ceremony was performed. Even the parents of the appellant, who were alive, R.S.A. No. 5432 of 2003 [3] were not produced. The claim was sought to be made that the appellant was adopted by Babu Ram in the year 1970 and thereafter a decree was also got passed on 23.5.1986 establishing his claim, but still in the suit filed on 1.6.1988, the appellant claimed himself to be a son of his natural father, i.e., Bakshi Ram and not the adopted son of Babu Ram. Referring to the above record, it was submitted that the conduct of the appellant clearly established that he was somehow or the other out to grab the property of Babu Ram which clearly shows that the judgment and decree dated 23.5.1986 was a result of fraud as even subsequent decree obtained by him had also been set aside on that ground only. Having heard learned counsel for the parties, I do not find any merit in the present appeal. The findings recorded by the courts below are plain and simple findings of fact. The conduct of the appellant and the circumstances, as have been enumerated above and highlighted by learned counsel for the respondent-plaintiff, namely, in spite of the fact that the appellant claimed that he was adopted in the year 1970, he produced no evidence to show that he was ever treated by Babu Ram as such or he took care of Babu Ram being his son. No record was produced to show that till his death, the appellant was ever shown to be the adopted son of Babu Ram. The record which was produced related to the period after his death. The ceremonies of adoption were not proved, as even the parents of the appellant were not produced as witnesses to prove the fact that they had ever given their son in adoption to Babu Ram. The basic reason to file the suit in the year 1985 to establish the claim being adopted son of Babu Ram is not borne out from the record, where it was claimed by the appellant that he was adopted in the year 1970. Further, there is no reason forthcoming as to what was the hitch to Babu Ram for not appearing in the court to make a statement to that effect in case the claim made by the appellant was correct. Further, conduct of the appellant in furtherance to the object of grabbing the property of Babu Ram is evident from the subsequent suit filed by him on 1.6.1988 in spite of the fact that he had an earlier decree dated 23.5.1986 in his favour proving him to be an adopted son of Babu Ram. In the subsequent suit filed on 1.6.1988, the appellant and his three brothers claimed that Babu Ram had given all his property to them and the suit was decreed on the very next day, i.e., 2.6.1988. The challenge to the earlier decree was only when the present suit was filed by the respondent on 4.1.1991. The aforesaid judgment and decree has been set aside by the civil court in a suit filed by the respondent vide judgment and decree dated 20.1.1998. Further conduct of the appellant is established from a will dated 26.12.1988 created by him showing that Babu Ram had bequeathed the entire property in his favour. What was the R.S.A. No. 5432 of 2003 [4] apprehension in the mind of the appellant is not borne out from the record, rather, can very well be inferred as he wanted to be sure from all angles that he somehow or the other gets the property of Babu Ram, as upto that date he had one decree of the court dated 23.5.1986 claiming himself to be an adopted son of Babu Ram, second decree dated 2.6.1988 wherein the appellant and his three brothers got the property of Babu Ram and third being a will executed by Babu Ram on 26.12.1988 bequeathing his entire property in favour of the appellant. All these factors are more than sufficient to form an opinion on the conduct of the appellant to hold that the judgment and decree dated 23.5.1986 passed in favour of the appellant was nothing else, but a result of fraud and misrepresentation. For the aforesaid reasons, I do not find any merit in the present appeal. No substantial question of law arises. Accordingly, the same is dismissed. (Rajesh Bindal) Judge 11.12.2008 mk