R.S.A. No. 118 of 2011 [1] IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. R.S.A. No. 118 of 2011 Date of Decision: January 18, 2011 Mohar Singh and others …..Appellants Vs. Richpal Singh and others …..Respondents CORAM: HON’BLE MR. JUSTICE M.M.S. BEDI. -.- Present:- Mr.B.S. Bedi, Advocate for the appellants. -.- M.M.S. BEDI, J. (ORAL) Defendant- appellants have field this appeal against the judgment of reversal. The trial Court had dismissed the suit of plaintiff- respondents for declaration that the decree dated July 28, 1979 in a civil suit titled Mohar Singh Vs. Mal Singh and mutation proceedings sanctioned on the basis of said decree and the other decree dated December 19, 1984 titled Kashmir Singh etc. Vs. Mohar Singh and subsequent mutation No.4336 entered on the basis of said decree are not binding upon the rights of the R.S.A. No. 118 of 2011 [2] plaintiff- respondents as these were the result of fraud and misrepresentation besides seeking an injunction to restrain the defendant- appellants from alienating the suit property. The plaintiff- respondents had filed the appeal against judgment and decree passed by the trial Court. The lower Appellate Court vide judgment and decree dated December 7, 2010 reversed the finding of the trial Court and decreed the suit of plaintiff- respondents holding that the consent decree suffered by the plaintiff- respondent dated July 28, 1979 before Sub Judge, 2nd Class, Karnal and the decree suffered by defendant on December 19, 1984 in favour of his sons are not binding on the rights of the plaintiff- respondent as these were the result of fraud and impersonation. Aggrieved by the judgment and decree passed in favour of the plaintiff- respondent by the lower Appellate Court, the defendant- appellants have preferred this appeal challenging the findings of the lower Appellate Court on the material issues. Briefly, the facts of the case, as pleaded by the plaintiff- respondent Mal Singh, the predecessor-in-interest of respondents, were that he was 80 years old having three children (daughters) with no male issue. Suit property had been leased by him to his nephew defendant- appellant No.1 Mohar Singh about 20 years back. The signatures of Mal Singh had been obtained by Mohar Singh on some papers on the pretext that these were required for lease deed. The plaintiff became aware of the decree dated July 28, 1979 passed in Civil Suit No. 446 of 1979 titled Mohar Singh Vs. Mal Singh when he obtained copy of the jamabandi from the area Patwari for the purpose of transferring his land to his daughters. He also R.S.A. No. 118 of 2011 [3] came to know about Mutation No. 3541 regarding the entire suit property having been sanctioned in favour of the defendant- appellant Mohar Singh. It was further pleaded that the defendant- appellant No.1 has transferred the land in dispute in favour of his sons defendant- appellants No.2 to 4 vide decree dated December 19, 1984 passed in Civil suit titled Kashmir Singh etc. Vs. Mohar Singh, and mutation No.4336 was also sanctioned on the basis of said decree. The plaintiff- respondent obtained copies of the records of the previous suit and came to know that the decree dated July 28, 1979 had been passed on the basis of the statement suffered by himself. He claimed that he never suffered any such decree and had never appeared before any Court. He had also not filed any written statement or thumb marked and singed any document in connection with the aforesaid decree. The decree was the result of fraud, misrepresentation and impersonation. He also argued that he had never entered into family settlement as was alleged in Civil Suit No. 446 of 1989 and had never transferred his rights in favour of defendant- appellant No.1. The decree was also challenged on the ground that it was not registered and that the defendant- appellant did not have any pre-existing right in the property of the plaintiff as such he cannot claim any share therein. It was also pleaded that the defendant- appellants No.2 to 4 had exchanged 24 kanals land with Sardool Singh and 37 kanals of land with Sadha Singh. Those exchange deed were also claimed to be bad as they had no right to exchange the property. Defendant- appellant No.1 to 4 filed a joint written statement claiming that the plaintiff had himself suffered a decree dated July 28, 1979 and admitted the entire claim R.S.A. No. 118 of 2011 [4] of Mohar Singh, defendant. The mutation had rightly been sanctioned and on the basis of the said decree, possession was also delivered to Mohar Singh, defendant- appellant No.1 by plaintiff Mal Singh. Plaintiff Mal Singh was aware of the decree dated December 19, 1984 passed in Civil suit titled as Kashmir Singh etc. Vs. Mohar Singh and subsequent mutations. The plaintiff had never challenged the raising of construction and claim of the defendant- appellants. He retired as a teacher and that he did not hold any property. It was claimed by the appellants that after the decree dated July 28, 1979, no right vested in the plaintiff- respondent. The decree was the result of legal family settlement which could not be challenged. The defendants No.5 to 7, proforma respondents filed separate written statements claiming their right through their predecessor pursuant to the exchange from defendants No.1 to 4. The following issues were framed:- “1. Whether the civil court decree dated 28.7.79 in civil suit No. 446/79 titled as Mohar Singh Vs. Mall Singh and subsequent mutation No. 3541 on the basis of that decree and subsequent court decree dated 19.12.84 tilted as Kashmir Singh Vs. Mohar Singh passed by the Court of Shri Dharam Pal, and subsequent mutation on that decree No. 4336 are illegal, null arid void and not binding upon the rights of the plaintiff being result of fraud, misrepresentation? OPP. R.S.A. No. 118 of 2011 [5] 2. Whether the suit of the plaintiff is time barred? OPD. 3. Whether the suit of the plaintiff is not maintainable? OPD. 4. Relief.” Suit of the plaintiff was dismissed with special costs of Rs.3000/-, deciding issue Nos. 1 to 3 in favour of the defendant and against the plaintiff- respondents. Under issue No.1 it was held that the decree dated July 28, 1979 suffered by plaintiff Mal Singh in suit Mohar Singh Vs. Mal Singh and mutation on the basis of said decree and subsequent Court decree dated December 19, 1984 suffered by Mohar Singh, defendant, in favour of his son Kashmir Singh and subsequent mutation on the basis of said decree were not the result of fraud and misrepresentation. The trial Court held: i) that the plaintiff had failed to plead and prove fraud having been committed against the plaintiff; ii) the decree dated July 28, 1979 did not require registration despite the fact that it was a consent decree and it was not the requirement of law that a consent decree should be registered; iii) The mutation No. 3541 entered on the basis of consent decree dated July 28, 1979 in favour of Mohar Singh was made openly with the knowledge of all the concerned parties; R.S.A. No. 118 of 2011 [6] iv) The transfer of the property had been made in accordance with law in favour of Mohar Singh and the subsequent transfers of properties made by him to his sons i.e. defendants No.2 to 4 and further exchange of the properties were valid transactions; v) The plaintiff was aware of the judgment and decree dated July 28, 1979 but he had deliberately indulged in false and frivolous litigation. The judgment and decree passed by the trial Court was challenged by the plaintiff before the lower Appellate Court. The lower Appellate Court re-appreciated the entire evidence and referred to case law and arrived at the following conclusions:- i) The decree dated July 28, 1979 was never suffered by the plaintiff with his free will and consent by filing written statement or making a statement in the Court. His signatures had been obtained by fraud and misrepresentation taking the benefit of innocence of Mal Singh as he had faith in his nephew; ii) There was no family settlement between the parties regarding the suit land; iii) The decree is nonest for want of registration; iv) The decree was held vitiated being suffering from the vice of fraud and misrepresentation. The R.S.A. No. 118 of 2011 [7] Court also took into consideration various circumstances; v) The decree in favour of Mohar Singh suffered by Mal Singh in civil suit of 1979 decided on July 28, 1979 was held to be nonest and all the subsequent transactions of Mohar Singh in favour of his sons etc. were held to be bad. Mr.B.S. Bedi, learned counsel for the defendant- appellants has vehemently contended that the lower Appellate Court has given a perverse finding regarding the fraud having been committed on the plaintiff- respondents. The finding which is given without any evidence is perverse as per counsel for the appellant. He has argued that the trial Court had delivered the judgment on fair appreciation of the evidence taking into consideration the statements of DW Gurpal Singh and defendant- Mohar Singh. He argued that the judgment has been reversed by the lower Appellate Court without properly appreciating the finding given by the trial Court. The well reasoned judgment of trial court has been set aside without appreciating the fact that there is no evidence that lease papers were procured by Mohar Singh. So far as the registration of the consent decree is concerned, he submitted that no registration was required as the defendant- appellants had pre-existing rights in the property held by his uncle Mal Singh. Moreover, the pre-existing rights should be presumed in close relations. The family settlement need not be proved. He vehemently argued that the suit of the plaintiff- respondents was barred by limitation. He cited R.S.A. No. 118 of 2011 [8] S.V.R. Mudaliar (dead) by LRs Vs. Mrs.Rajabu F. Buhari (Dead) by LRs., 1995 (2) RRR 401, in support of his contention that before reversing a finding of fact, the Appellate Court has to bear in mind the reasons ascribed by trial Court. The Court can interfere only when a finding is shown to be wrong. He also cited D.R. Rathna Murthy Vs. Ramappa, JT 2010 (11) SC 398 in support of his contention that finding of fact if vitiated by non-consideration of relevant evidence or by showing any erroneous approach to the matter, the same would be perverse and can be interfered by the High Court. Regarding fraud, he relied upon Union of India Vs. M/s Chaturbhai M. Patel and Co., AIR 1976 SC 712 and A.L.N. Narayanan Chettyar and another Vs. Official Assignee, High Court Rangoon and another, (28) AIR 1941 Privy Council 93, to contend that fraud must be established beyond all reasonable doubts. It cannot be based on suspicion and conjecture. It must be pleaded. It was contended that the lower Appellate Court has given a presumptive finding that a fraud had been played upon the plaintiff- respondent. The finding given by the trial Court that there had not been any fraud had been wrongly reversed by the lower Appellate Court. I have considered the contention of counsel for the appellants on the finding given by the lower Appellate Court regarding fraud. The trial Court had held that though the plaintiff had pleaded fraud but he failed to prove the same by his bald assertions and that the consent decree was, therefore, binding upon the plaintiff- respondent and could not be set aside by the lower Appellate Court. I have considered the finding on fraud by R.S.A. No. 118 of 2011 [9] both the Courts below and I am of the opinion that it is an admitted fact that defendant No.1- Mohar Singh is the real nephew of plaintiff Mal Singh. Admittedly, Mal Singh did not have any son. Plaintiff had claimed that the decree dated July 28, 1979 Ex.P-10 had not been suffered by him but the same had been procured by the defendant Mohar Singh fraudulently as a result of impersonation. In order to support that fraud had been played upon plaintiff-Mal Singh, he appeared as PW1. He stated that his signatures had been obtained on some papers. The trial Court held that two contradictory stands had been taken by the plaintiff as such the plea of the plaintiff- respondent regarding fraud having been played upon him was disbelieved. The trial Court arrived at a conclusion that the original file of civil suit No. 446 of 1999 was never produced before the Court having been misplaced though it was summoned from the record room of D.C., Karnal. The trial Court also observed that defendant- appellants who were in possession of certified copy of the written statement and statement of Mal Singh, produced the same on record as Ex.DW10/B and Ex.DW10/C. The plaintiff had made a note of these documents that he dispensed with the requirement of the formal proof of the documents. The signatures of Mal Singh present on both the documents were compared as per report of hand-writing expert Ex.DW8/A and these were found to be identical but the trial Court refused to rely upon the report as comparison of admitted signatures had been made with photocopies. The trial Court held that the statement of plaintiff that he had been misrepresented or impersonated or that fraud had been played cannot be believed. He had dispensed with the requirement of a formal or R.S.A. No. 118 of 2011 [10] cogent proof of the documents containing his signatures. The lower Appellate Court has reversed the finding of the trial Court in context to the allegation of fraud and misrepresentation. Replying upon the definition of fraud as given in Malkiat Singh Vs. Surjit Kaur, 1993 (3) CCC 512 (P&H), Channo Devi and others Vs. Ami Lal, 2004 (1) CCC 101 (P&H) and Daya Shankar Vs. Smt. Bachi and others, AIR 1982 Allahabad 376, it was observed that when an old person with weak eye-sight and mental capacity is tricked to sign a document other than the one he actually signs, then he can claim that the documents signed by him is not actually his own document. The mind of the singer did not accompany the document and, therefore, such a person can make a claim that the document is non est factum. The lower Appellate Court taking into consideration the relationship of Mal Singh being paternal uncle of Mohar Singh, defendant, appreciated the fact and relied upon the statements of defendant- Mohar Singh, DW6 Sadha Singh and DW7 Bhupinder Singh, who had admitted that deceased Mal Singh was owner in possession of the suit land and later on somewhere in the year 1966, Mal Singh, plaintiff gave suit land to defendant- Mohar Singh for cultivation on batai as he had become old and was having no male issue to cultivate the suit land and defendant Mohar Singh used to pay batai to Mal Singh who used to maintain his family consisting of three daughters out of that batai. The lower Appellate Court appreciated the circumstance that deceased- plaintiff being old man unable to cultivate the suit land on account of his age had given the land to defendant, his nephew on batai who had started cultivating the land falling R.S.A. No. 118 of 2011 [11] to the share of the plaintiff. There was a relationship of good faith between the plaintiff and defendant which was taken into consideration under Section 111 of the Indian Evidence Act by the lower Appellate Court to arrive at a conclusion that where there was a question of good faith of transaction between the parties, the burden of providing good faith of transaction would lie on the party who is in a position of active confidence. The plaintiff did not have any male issue as such he had intention only to give the land on batai to nephew Mohar Singh. The lower Appellate Court appreciated the evidence that defendant Mohar Singh continued to pay batai in the form of house-hold expenses till 1997 when the deceased- plaintiff filed this suit. Another factor which weighed with the lower Appellate Court was that Mal Singh had allegedly executed the decree in favour of defendant on the basis of family settlement in the year 1979 whereas no family settlement or family compromise was brought to the notice of the Court. It is not probable that daughters of the deceased- plaintiff were not associated in the same. The lower Appellate Court also believed that it is not probable that if Mal Singh had relinquished his rights in the property, the defendant will continue to pay money to Mal Singh. The age of Mal Singh being 70 years was also taken into consideration that on account of his old age he was not dependent upon his nephew and had a fiduciary relationship with him, never believing that Mohar Singh, defendant, would cheat him as he was paying his share in the suit land till 1997 without disclosing that he had obtained the impugned decree. On the basis of all these circumstances, the correct decision has been arrived at by the lower R.S.A. No. 118 of 2011 [12] Appellate Court that the signatures of plaintiff- respondent had been obtained by misrepresentation and concealment of true facts. The onus which was shifted upon Mohar Singh could not be discharged. The lower Appellate Court took into consideration the other circumstances mentioned in para 26 of the judgment i.e. the original file of the impugned decree was not traceable in the record room, whereas it was alleged that defendants have obtained certified copies from the record room; the defendant- appellants had failed to examine Kuldeep Singh Bajwa, Advocate who had allegedly appeared on behalf of the deceased plaintiff and identified him in the Court; material evidence to prove that plaintiff had himself appeared in the Court and signed the written statement and statement made in the Court had been with-held warranting the adverse inference to be drawn against the defendant and production of certified copy of the impugned decree held not to be sufficient to prove its due execution. The lower Appellate Court also held that the deceased Mal Singh was not having joint family with Mohar Singh as such there cannot be any question of any family settlement between them. In the absence of any family settlement and absence of any pre-existing rights in favour of defendant regarding the suit land, he was a stranger to Mal Singh though related. In view of the detailed reasoning given by the lower Appellate Court in reversing the judgment of the trial Court, I do not find any force in the contention of counsel for the appellants that the judgment of reversal is based without reasoning as such the ratio of the rulings cited by counsel for the appellants is not applicable to be facts of the present case. R.S.A. No. 118 of 2011 [13] Counsel for the appellants has placed reliance on Ramji Dass Vs. Dhanti Ram, 1978 PLJ 370, Smt.Har Kaur Vs. Smt.Dhappan (died) and others, 1986 PLJ 94, Sailendra Narayan Bhanja Deo Vs. The State of Orissa, AIR 1956 SC 346, Shankar Sitaram Sontakee and another Vs. Balkrishna Sitaram Sontakee and others, AIR 1954 SC 352 and Krishna Beharilal (dead) by his Legal representatives (in both the appeals_ Vs. Gulabchand and others (in both the appeals), AIR 1971 SC 1041 to contend that once the close relation entered into family agreement, it is not open to the parties to back out and that if a judgment has been passed on the basis of compromise between the parties it operates as estopple between them in the subsequent litigation regarding that matter and that the judgment by consent or default is as effective as an estopple between the parties and is binding unless and until the same is vitiated by fraud, misrepresentation or misunderstanding. It was vehemently argued that it is not necessary that the parties entering into compromise on the basis of family settlement should belong to one family. Counsel also relied upon Som Dev and others Vs. Rati Ram and another, JT 2006 (8) SC 469 to contend that a compromise decree need not be registered. He also relied on Bachan Singh Vs. Kartar Singh and others, JT 2001 (10) SC 64, to contend that consent decree passed by a Court is not required to be registered under the provisions of Indian Registration Act. I have considered all the judgments cited by counsel for the appellants and I am of the opinion that there is no dispute regarding the proposition of law referred to in the judgments cited but all these judgments R.S.A. No. 118 of 2011 [14] are not applicable to the facts of the present case as the cumulative effect of all the circumstances discussed by the lower Appellate Court indicate that the consent decree passed in favour of Mohar Singh was vitiated as the same suffers from the vice of fraud and misrepresentation. The totality of the circumstances taken together indicate that the plaintiff- respondent had not suffered decree dated July 28, 1979 voluntarily. The consent decree obtained by a party on the basis of vague pleadings and vague material without impleading all the persons interested is always a weak type of decree if the same is challenged on the basis of fraud and other circumstances. A heavy onus lies upon a person claiming rights on the basis of a consent decree. No doubt, the consent decree has got a binding effect but once it is challenged and circumstances indicating that the same had been obtained by fraud are established, the same deserves to be declared a nullity. In view of the finding of well reasoned fact arrived at by the lower Appellate Court, there is no ground to interfere in the appeal. No substantial question of law is involved as such the appeal is dismissed in limine. January 18, 2011 (M.M.S.BEDI) sanjay JUDGE