Regular Second Appeal No.3293 of 2008 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Regular Second Appeal No.3293 of 2008 Date of Order: 05.10.2009 Ram Kanwar ....Appellant Versus Satbir Singh and another ..Respondents CORAM: HON'BLE MR. JUSTICE RAJIVE BHALLA Present: Mr. P.R.Yadav, Advocate for the appellant. RAJIVE BHALLA, J (Oral). The appellant challenges judgments and decrees dated 07.06.2006 and 29.01.2008, passed by the Civil Judge (Senior Division), Kosli and the Additional District Judge, Rewari, dismissing his suit and his appeal. The plaintiff-appellant, filed a suit on 21.08.2001, praying for a declaration that the judgement and decree dated 12.06.1981, allegedly suffered by him, in favour of the respondents, is vitiated by fraud. The appellant pleaded that he had jointly purchased the suit land measuring 10 kanals and 2 marlas, with the respondents, vide registered sale deed dated 14.06.1979. In the year 1981, the respondents made a request to the appellant that they should get the land partitioned. The appellant agreed and for this purpose signed on a written statement, a vakalatnama and other papers. As the appellant was under the impression that the suit land had been partitioned, he continued to cultivate the land. The appellant was shocked to discover, in May 2001, that instead of a partition of the suit land the respondents had obtained a decree of ownership, dated 12.06.1981 in their favour. In response, the respondents pleaded that as the appellant has Regular Second Appeal No.3293 of 2008 2 signed the written statement, the vakalatnama and has made a statement before a Court, accepting the averments in the plaint, he cannot be allowed to challenge the judgement and decree dated 12.06.1981, on any ground whatsoever. After considering the pleadings, the evidence adduced and the arguments addressed, the trial court dismissed the suit by holding that as the appellant has admitted his signatures on the written statement, the vakalatnama and the statement made before a Court and as he has failed to prove his allegation of fraud, the judgement and decree dated 12.06.1981 is legal and valid. Aggrieved by the aforementioned judgment and decree, the appellant filed an appeal. Vide judgement and decree dated 29.01.2008, the Additional District Judge, Rewari, dismissed the appeal and affirmed the findings recorded by the trial court. Counsel for the appellant submits that the averments in the written statement filed in the present case and in the plaint filed in the earlier case are materially different. It is, therefore, apparent that the judgement and decree dated 12.06.1981 was the result of fraud perpetuated by the respondents. It is argued that in view of the averments in the written statement, filed in the present case, the story of a family settlement stands demolished and, therefore, the courts below have committed an error in dismissing the suit and the appeal. It is submitted that the following substantial questions of law arise for adjudication:- “1. Whether the impugned decree can be held to be based on family settlement when the story of family settlement is not pleaded at all? 2. Whether the impugned decree require registration? 3. Whether the circumstances of the case fully established the fraud? Regular Second Appeal No.3293 of 2008 3 4. Whether onus was upon the defendants to prove existence of family settlement especially when the same was categorically denied in the replication filed by the appellant? 5. Whether the courts can go beyond the decree when the circumstances are totally against the defendants?" I have heard counsel for the appellant, perused the impugned judgements and considered the questions of law framed by counsel for the appellant. The appellant admits his signatures on the written statement, the vakalatnama and the statement made before a Court. His only plea is that his signatures were obtained by informing him that the land was to be partitioned. In essence, the appellant raised a plea of fraud. The onus to establish a plea of fraud lies upon a person who alleges so. A perusal of the findings recorded by the courts below leaves no manner of doubt that the appellant has failed to lead any evidence in support of this plea. The appellant is an educated person who was working in the Intelligence Bureau and retired from service in 1993. It is incomprehensible that the appellant would sign a written statement and suffer a statement before a Court, without any knowledge of their contents. As regards the plea of a difference between the stand taken in the plaint filed in the earlier case and the written statement filed in the present case, suffice is to say that though the averments in the original plaint refer to a family settlement, para 2 of the written statement in the present case merely sets out its particulars. As a consequence, as the impugned judgements and decrees do not suffer from any error so as to give rise to a substantial question of law, the appeal is dismissed with no order as to costs. October 05, 2009 (RAJIVE BHALLA) nt JUDGE