RSA No.4904/2009(O&M) 1 IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH RSA No.4904/2009(O&M) Date of decision: 06.03.2012. Bachittar Singh .........................Appellant. v. Bala Singh and others ..........................Respondents. CORAM:HON'BLE MR.JUSTICE JASWANT SINGH Present:- Mr.Gurcharan Dass,Advocate for the appellant. Jaswant Singh,J. CM No.14287-C/2011 seeking exemption to file certified copy of the judgment and decree dated 20.2.2006 passed by the learned trial court is allowed subject to all just exceptions. CM No.14288-C/2011 filed under Section 149 IPC is allowed and permission to make good the deficiency in payment of requisite court fee is granted. RSA No.4904/2009 Plaintiff/appellant-Bachittar Singh is in second appeal against the judgments and decrees passed by the courts below whereby the suit for declaration filed by him was dismissed by the trial court and affirmed in appeal. Facts necessary for the decision of the present second appeal are that plaintiff/appellant filed a suit for declaration alleging therein that he is son of defendant no.1-Zora Singh and brother of defendants 2 and 3 namely Nachhatar Singh and Bala Singh. It was RSA No.4904/2009(O&M) 2 further alleged that the suit land as described in the head note of the plaint was Joint Hindu Family coparcenary property. It was alleged that defendant no.1 (father of plaintiff/appellant) inherited the suit land from his father and defendant no. 2 filed a suit bearing no.146 against defendant no.1 and plaintiff on 30.3.1990 for declaration that he (defendant no.2) is owner of land measuring 10K-4M out of the land measuring 42K-19M described in the head note of the plaint. It was alleged that though plaintiff/appellant was a party in that suit but he was never served and in that suit, all the defendants entered into a compromise on 1.7.1992. On the basis of that compromise, decree dated 20.7.1992 was passed and defendants 2 and 3 were given 7K-3M of land each. According to the plaintiff/appellant since he was not a party to the said compromise, the decree based on the compromise was liable to be set aside and it was not binding upon the rights of the plaintiff. It was alleged that the said decree was a result of fraud and mis-representation played with the court and that defendant no.3 had also been given land measuring 7K-3M though he had not filed the suit. It was further the case of the plaintiff that on 17.7.1992 defendant no.1-Zora Singh had entered into an agreement to sell with Harbans Kaur- wife of plaintiff, and that Harbans Kaur had filed a suit for specific performance of the said agreement. It was alleged by the plaintiff that decree dated 20.7.1992 was got effected by defendant no.1 only to forfeit the right of the plaintiff/his wife. It was also alleged that defendants 1 and 2 have also filed a suit for permanent injunction RSA No.4904/2009(O&M) 3 against the plaintiff and others which was pending in the court of Civil Judge (Junior Division) Ludhiana. It was alleged by the plaintiff that he came to know about the passing of the decree dated 20.7.1992 only in the month of October 1993 when he appeared in the civil suit filed by his brothers-defendants 2 and 3 namely Nachhattar Singh and Bala Singh. Upon notice of the suit, defendants contested the same by filing separate written statements. In the written statement filed by defendant no.1 it was denied that the suit property was joint Hindu family, coparcenary property. The fact regarding filing of suit by defendant no.2 against defendants 1,3 and plaintiff was admitted. It was further stated that in the said suit the plaintiff was duly served. It was further stated that the decree dated 20.7.1992 was based on the statement of defendant no.1 made in court in the presence of his counsel and was a legal, perfect, genuine and valid one. It was also stated that plaintiff was in the knowledge of compromise between the parties and passing of the decree dated 20.7.1992. As regards the filing of suit for specific performance by Harbans Kaur-wife of plaintiff, it was alleged that he (defendant no.1) had filed a criminal complaint against Harbans Kaur, Bachittar Singh deed writer and the marginal witnesses with whose connivance the plaintiff and his wife had forged the agreement dated 17.7.1992. In their written statement, defendants 2 and 3though RSA No.4904/2009(O&M) 4 admitted that the property in dispute was coparcenary property but denied that plaintiff was a coparcener qua the property mentioned in the plaint. The factum of passing of decree dated 20.7.1992 on the basis of a compromise dated 1.7.1992 was admitted. It was denied that the said decree was a result of fraud or misrepresentation. It was furrther stated that plaintiff was also a party to the said compromise but he did not signed the same. It was stated that the decree dated 20.7.1992 was binding on the rights of the plaintiff as he had already received his share from defendant no.1-Zora Singh by way of gift deed dated 11.4.1980. On the pleadings of the parties issues were framed. Both sides led evidence in support of their respective pleas. The learned trial court on the basis of oral/documentary evidence available on record dismissed the suit of the plaintiff/appellant vide impugned judgment and decree dated 20.2.2006. Aggrieved against the same, plaintiff filed an appeal which was also dismissed by the learned appellate court vide impugned judgment and decree dated 20.3.2009. Hence the present appeal. I have heard the learned counsel for the plaintiff/appellant and gone through the impugned judgments and decrees carefully. It has been found by both the courts below that as per pleaded case of the plaintiff the suit land was joint ancestral/ coparcenary property, but he could not prove the same. In order to prove that suit property is joint Hindu family coparcenary property, RSA No.4904/2009(O&M) 5 plaintiff/appellant relied upon copy of plaint of civil suit no.146 dated 30.3.1990 Ex.P3 filed by Nachhattar Singh (respondent/defendant). However, this plea of the plaintiff was rightly rejected by the appellate court by holding that simply if Nachhattar Singh filed civil suit no.146 pleading that the suit property is joint Hindu family coparcenary property, the suit property automatically does not becomes coparcenary property. It was further found by the appellate court that as per revenue record Zora Singh was shown to be owner of the suit property. On the other hand plaintiff appellant did not place any revenue record to establish the fact that Zora Singh inherited the suit property from his forefathers but during his cross examination admitted that Zora Singh (father of the plaintiff) had got the suit property from his father (plaintiff's grandfather) by way of Will alongwith his brothers. In this view of the matter, in my opinion, the courts below have rightly held that the suit property was not joint Hindu family coparcenary property, as alleged by the plaintiff/appellant. Further, it was found by the appellate court that plaintiff while appearing as PW6 admitted that in terms of agreement Ex.D1 he was given 10K-8M of land by Zora Singh and on the basis of that gift deed he became owner in possession of the same. In these circumstances the learned appellate court rightly held that once the plaintiff admits to have received 10K-8M of land by way of gift deed it does not lie in his mouth to challenge the judgment and decree dated 20.7.1992 by virtue of which Zora Singh had given 7K-3M each to his other sons namely Nachhattar Singh and Bala Singh. As regards the allegation of the plaintiff that he was not a party to the compromise on the basis of which decree dated 20.7.1992 was passed, it has rightly RSA No.4904/2009(O&M) 6 been held by the appellate court that since plaintiff was never recorded as owner of the property measuring 14K6M, there was no necessity for recording his statement and as such he could not agitate the judgment and decree dated 20.7.1992 passed in civil suit no.146, especially when he had already received land measuring 10K-8M from his father. In view of the concurrent finding of fact recorded by the courts below, as noticed above, in my opinion, no question of law much less substantial question of law arises for determination in this appeal and the same is hereby dismissed. Since there is a delay of 784 days' in refiling the appeal, CM No.14289-C/2011 has been filed seeking condonation of the said delay. The reason given for delay is that appellants was suffering from Anemia and Hypoprotinemia. The reason given for delay in unacceptable. It is evident that appellant is a resident of Village Chomo, Tehsil Payal, District Ludhiana and used to visit Civil Hospital at Malaudh (Ludhiana) (as per OPD/ Heamotology Report (A1 and A2 respectively), therefore, it is not understandable as to what prevented him to visit his counsel for filing the appeal. In these circumstances, the application seeking condonation of delay in refiling the appeal is also dismissed. 06.03.2012. (Jaswant Singh) joshi Judge