RSA No.421 of 2010(O&M) 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.421 of 2010(O&M) Date of decision: 2.2.2010 Jeet Kaur ......Appellant(s) Versus Harbans Kaur and others ......Respondent(s) CORAM:- HON'BLE MR.JUSTICE RAKESH KUMAR GARG * * * Present: Mr. S.S. Walia, Advocate for the appellant. Rakesh Kumar Garg, J. CM No.1220-C of 2010 Application is allowed subject to all just exceptions. RSA No.421 of 2010(O&M) This is plaintiff's second appeal challenging the judgment and decree of the Lower Appellate Court whereby an appeal filed by the defendant-respondent No.1 against the judgment and decree dated 20.4.2007 passed by the Civil Judge (Jr. Division), Sirsa, was allowed and the suit of the plaintiff-appellant was ordered to be dismissed. Briefly, the facts of the case are that the plaintiff-appellant being daughter of Beant Singh (deceased) brought the suit for declaration challenging the judgment and decree dated 12.2.1985 passed in Civil Suit No.73-C of 1985 titled as “Jaswant Singh and others v. Beant Singh” in respect of land measuring 107 kanals 12 marlas and 47 kanals 2 marlas alleging that the said judgment and decree was illegal, null and void being obtained by defendant-respondent and others on the basis of fraud. It is the further case of the plaintiff-appellant that the aforesaid decree dated 12.2.1985 could not have been passed legally because respondent No.1 was not the legally wedded wife of Beant Singh and the RSA No.421 of 2010(O&M) 2 previous wife of Beant Singh, namely, Smt. Iqbal Kaur was alive and respondent No.1 was not competent to make the statement to get the judgment and decree passed in her favour in view of the nature of the property as no family settlement ever took place. The judgment and decree under challenge was the result of collusiveness between the parties as no process was ever got issued to the defendants in that case. The defendants were repeatedly requested to admit the claim of the plaintiff- appellant but they were adamant. Hence, this suit. Respondents No.1, 3 to 6 (i.e. defendants No.1, 3 and 5 to 7) appeared and filed their separate written statement raising various legal objections. On merits, it was submitted that judgment and decree dated 12.2.1985, consequential sanction of mutation was legal and were not liable to be set aside on any of the grounds. It was further submitted that no fraud or misrepresentation was made. Respondent No.1 was legally wedded wife of Beant Singh and the plaintiff-appellant was not entitled to get any share in the suit property. Respondent No.3 (i.e defendant No.3) had taken the stand that Beant Singh never performed second marriage during his lifetime with Harbans Kaur-respondent as he performed only marriage with Iqbal Kaur, his real mother. Respondents No.4 to 6 (i.e. defendants No.5 to 7 had taken the stand that Harbans Kaur was legally wedded wife of Beant Singh and he had executed and registered a Will with regard to his property in her favour and the impugned judgment and decree was not liable to be set aside. Dismissal of the suit was prayed for. Gurmeet Kaur i.e. Predecessor in interest of respondents No.7 to 11 and respondents No.12 and 13 (Defendants No.8 to 10) filed their written statement admitting the claim of the plaintiff. Respondent No.2 RSA No.421 of 2010(O&M) 3 (defendant No.2) was proceeded against ex parte. Replication was filed by the plaintiff reiterating all the averments made in the plaint. The trial Court on appreciation of evidence decided all the issues in favour of the plaintiff and against the defendants and ultimately the suit of the plaintiff was decreed with costs. Defendant No.1 (now respondent No.1) filed an appeal before the Lower Appellate Court challenging the aforesaid judgment and decree dated 20.4.2007 passed by the trial Court. On reappraisal of evidence, the Lower Appellate Court found that the plaintiff-appellant had failed to prove and establish the factum of fraud and misrepresentation and the consent decree cannot be challenged and reopened by filing a fresh suit on any other ground. The plea of limitation was also decided against the plaintiff-appellant. It was also observed that it was immaterial that Harbans Kaur had no pre-existing right and the decree Ex.P-2 dated 12.2.1995 was not registered as per the provisions of the Registration Act as the aforesaid decree being between the family members was valid and admissible in evidence and was not liable to be set aside and thus, the appeal was accepted vide impugned judgment and decree dated 12.1.2010, and dismissed the suit. Feeling aggrieved from the aforesaid judgment and decree of the learned Lower Appellate Court, the plaintiff-appellant has filed the instant appeal submitting herein that there was no pre-existing right in favour of Harbans Kaur, respondent No.1, as she was not the legally wedded wife of respondent No.1 and therefore, the decree dated 12.2.1985 cannot have any binding effect upon the rights of the appellant, being not registered under the provisions of the Registration Act. It was further submitted by the learned counsel for the appellant that the Lower RSA No.421 of 2010(O&M) 4 Appellate Court was not justified while dismissing the suit of the appellant on the ground of limitation as it stood established that the suit filed by the appellant was well within limitation as the same was filed from the date of knowledge when mutation of inheritance was sanctioned on 12.2.1985. Learned counsel for the appellant has relied upon a judgment of this Court reported as Nachhattar Singh and another v. Jangir Singh and others 2005 (2) PLR 212. On the basis of the aforesaid arguments, learned counsel for the appellant has submitted that the following substantial questions of law arise in this appeal: “1. Whether collusive decree can confer title upon Harbans Kaur in the property of Beant Singh since deceased as she was not a member of his family and had no pre-existing right in the suit property? 2. Whether the Lower Appellate Court was justified in law in dismissing the suit of the appellant on the ground of limitation?” I have heard learned counsel for the appellant and perused the impugned judgment and decree. It is well settled that a consent decree can be challenged only on the ground of fraud and misrepresentation. The Lower Appellate Court on appreciation of evidence has recorded a finding of fact that the appellant has failed to prove and establish the factum of fraud and misrepresentation. Thus, the decree dated 12.2.1985 could not be challenged and reopened by filing a fresh suit. Moreover, in the present case, impugned decree was passed in the year 1985 and it was very much to the knowledge of sons of deceased Beant Singh who were real brothers of plaintiff-appellant. However, the present suit was filed on 13.12.2000 i.e RSA No.421 of 2010(O&M) 5 after a lapse of 15 years. Such a decree cannot be challenged by filing a fresh suit as provided under Order 23 Rule 3-A CPC. It may also be noticed that there is no whisper about the nature of the property held at the hands of Beant Singh which was his self-acquired property and he himself appeared before the Court and made statement Ex.P-8 admitting the claim of respondent No.1. It is also not in dispute that Beant Singh remained alive thereafter but he never challenged the aforesaid decree suffered by him. It is also not believable that the plaintiff-appellant, who is the real sister of Jeet Singh etc.(predecessor-in-interest of defendants No.5 to 7) and the real sister of defendant No.2, namely, Jaswant Singh who admittedly had a knowledge of passing of the aforesaid decree. The argument of the learned counsel for the appellant with regard to compulsory registration of the aforesaid decree is also of no consequence as no fault can be found with regard to validity of passing of the aforesaid decree in favour of respondent No.1 who claimed herself to be the legally wedded wife of Beant Singh (deceased) in the aforesaid decree. In view of the aforesaid, it cannot be argued that she was not a member of the family and therefore, a decree based upon family settlement requires registration. Moreover, Beant Singh, deceased , suffered a decree himself and there is nothing on record to prove the plea of fraud and misrepresentation. The judgment cited by the learned counsel for the appellant is of no help to him. Thus, there is no merit in this appeal. No substantial question of law, as raised, arises in this appeal. Dismissed. February 2, 2010 (RAKESH KUMAR GARG) ps JUDGE