RSA No.1684 of 2009(O&M) #1# IN THE HIGH COURT FOR THE STATES OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.1684 of 2009(O&M) Date of Decision: 21.11.2011 Tehal Singh and another ....Appellants Versus Avtar Singh and others ....Respondents CORAM: HON'BLE MR. JUSTICE JASWANT SINGH Present: Mr. P.C. Rakra, Advocate for the appellants/plaintiffs. Mr. M.S. Dhami, Advocate for respondent Nos.1 to 6. Respondent Nos.7 to 11 and 13 ex parte (vide order dated 5.4.2011). None for respondent No.12. JASWANT SINGH, J C.M.No.4984-C of 2009 For the reasons stated in the application, which is supported by an affidavit, the same is allowed and the delay of 679 days in re- filing the appeal is condoned. RSA No.1684 of 2009(O&M) By filing the present second appeal, plaintiffs-appellants have laid challenge to the impugned judgment and decree dated RSA No.1684 of 2009(O&M) #2# 7.12.2006 passed by learned Addl. District Judge, Hoshiarpur whereby an appeal filed by them against the judgment and decree dated 29.7.2003 passed by the learned Civil Judge (Jr. Division), Dasuya dismissing the suit, has been dismissed. Brief facts of the case are that the plaintiffs-appellants filed a Civil Suit No.156 of 1995 for declaration with consequential relief of permanent injunction regarding the suit property measuring 10 kanal and 13 marlas as described in the head note of the plaint. It was further alleged that the impugned judgment and decree dated 24.11.1992 passed by the learned Additional Senior Sub Judge, Dasuya is null and void and not binding upon the rights of the plaintiffs and liable to be set aside. The suit was contested by defendant Nos.1,2 & 4/respondent Nos.1,2 & 5 by filing their separate written statements and rest of the defendants were proceeded ex parte by the learned trial Court. After hearing both the parties, learned trial Court dismissed the suit. On an appeal having been filed, the same has been dismissed by the learned appellate Court, hence the present second appeal. Learned counsel for the appellants argues that both courts below have gravely erred while dismissing the suit of the plaintiffs- appellants in view of the fact that their vendor-Smt Shiv Devi is still the owner of land measuring 40 kanal from which they have derived title and possession of suit land. It is further argued that the judgment and decree dated 1.12.1972 is collusive and of no consequence. On the other hand, it is argued by the learned counsel for RSA No.1684 of 2009(O&M) #3# the defendants-respondents that the impugned judgment and decrees passed by both the courts below are well reasoned and there is no substantial question of law involved in the present case, hence the present appeal is liable to be dismissed. After hearing learned counsel for the parties and perusing the paper book, this Court does not find any merit in the present appeal and the same deserves dismissal. A perusal of judgment of learned trial Court reveals that from the pleadings of the parties, learned trial Court framed the following issues on 7.5.1997: “1. Whether the plaintiffs are entitled to declaration prayed for?OPP 2. Whether the plaintiffs are entitled to permanent injunction restraining the defendants from dispossessing the plaiintiffs from the suit land till the partition?OPP 3. Whether the plaintiffs have got no locus standi to file the present suit?OPD 4. Whether the suit is not maintainable in the present form?OPD 5. Whether the plaintiffs have got no cause of action to file the present suit?OPD 6. Whether the suit of the plaintiffs is liable to be dismissed under Section 35-A CPC?OPD 7. Relief.” Thereafter, it transpires that on 13.5.2003, the following three additional issues were framed: “6A. Whether the judgment and decree dated 24.11.92 are null and void, ineffective, inoperative and are liable to be set aside as prayed for?OPP RSA No.1684 of 2009(O&M) #4# 6B. Whether the plaintiffs are estopped by their own act and conduct from filing the present suit?OPD 6C. Whether the suit of the plaintiffs is not properly valued for the purpose of court fee and jurisdiction?OPD” It is alleged by the plaintiffs-appellants that defendant No.3-Shiv Devi (since deceased)-mother of respondent Nos.1 to 5, who was recorded as owner in possession of the suit land, alienated the same in favour of plaintiffs-appellants by way of two registered sale deeds dated 11.10.1983 (Ex.P.1) and 31.12.1985 (Ex.P.2) respectively and as such they became exclusive owners in possession of the land in dispute. Defendant/respondent Nos.1 & 2 allegedly obtained a judgment and decree dated 24.11.1992 (Mark-A) against the plaintiffs by playing a fraud to the effect that they are owners of the suit land but as a matter of fact, the plaintiffs were never served in that case. It is also alleged that the judgment and decree was a result of collusion between defendant-respondent Nos.1 & 2 and Shiv Devi (since deceased). As a matter of fact, the plaintiffs-appellants have come to know about the said judgment and decree dated 24.11.1992 only about two-three months prior to the filing of the present suit. It is worthwhile to mention here that the defendants- respondents have specifically averred that the alleged sale deeds executed in favour of the plaintiffs-appellants are not legally binding as the same were without any authority under law as the executant (deceased Shiv Devi) was not the owner of the land in dispute on that date. So far as the judgment and decree dated 24.11.1992 in civil suit RSA No.1684 of 2009(O&M) #5# No.425 of 1990 passed by the Sub Judge, Dasuya is concerned, it is specifically submitted that the plaintiffs were duly served but they did not join the proceedings and consequently were proceeded ex parte. It is further averred that the judgment and decree dated 24.11.1992 passed in favour of defendant Nos.1 & 2 of the suit land is perfectly legal and binding and does not require any interference. DW1-Tirlok Singh has deposed that on the basis of judgment and decree dated 24.11.1992, mutation was sanctioned in favour of defendant/respondent Nos.1 & 2 and if there is any entry in the revenue record in favour of Shiv Devi (since deceased), the same is wrong and inconsequential. It has been deposed by DW1 that in the civil suit of 1972, they were never served and the same is not binding upon the defendant- respondent Nos.1 & 2. DW3-Ajit Kumar Walia was examined to bring the case file of Civil Suit No.425 of 1990 titled as Tirlok Singh and others v. Shiv Devi and others, decided on 24.11.1992 but he deposed that due to a fire incident in record room on 16.6.1998, the case file had been burnt and the same was not traceable and he placed on record the report (Ex.DW3/A). Thereafter, the decree sheet dated 24.11.1992 has been brought on record by the defendants as Ex.D3 and copy of judgment dated 24.11.1992 as Ex.D.4 besides a judgment dated 3.11.1978 (Ex.D.5) and copy of judgment dated 24.9.1982 (Ex.D.6). It is also pertinent to note here that while deciding issue No.6A being the material issue, the learned trial Court came to the RSA No.1684 of 2009(O&M) #6# conclusion that the land measuring 3 kanal 13 marla was sold by Shiv Devi (since deceased) by way of sale deed (Ex.P.1) to Tehal Singh- plaintiff/appellant No.1 whereas land measuring 8 kanal 4 marlas was sold to Baldev Singh-plaintiff/appellant No.2 by way of sale deed (Ex.P.2). Undisputedly, the plaintiffs-appellants have neither filed any application under Order 9 Rule 13 CPC to set aside the ex parte proceedings nor any appeal was preferred against the judgment and decree dated 24.11.1992. Admittedly, the present suit was filed on 27.4.1995 whereas the fire took place in the record room on 16.6.1998 but the plaintiffs-appellants did not make any effort to get the certified copy of the record of the civil suit No.425 of 1990. It is an admitted fact that both the aforesaid sale deeds were discussed in the judgment and decree dated 24.11.1992 and were specifically declared null and void having no effect on the rights of defendants-respondent Nos.1 & 2 while deciding issues Nos.1,2 & 3 in civil suit No.425 of 1990. In that civil suit, present plaintiffs-appellants were arrayed as defendant Nos.9 & 10 respectively and the relevant operative part of the judgment dated 24.11.1992 reads as under: “In view of the findings on the above issues the suit of the plaintiffs for declaration that the plaintiffs and defendant Nos.2 to 8are the co-owners in joint possession of the suit land and the entries showing defendant No.1 to be the exclusive owners sale deeds by defendant No.1 in favour of the defendants No.9 and 10 and the suit land to the extent of the share of the plaintiffs and defendants No.2 and 8 is free from any loan, charge or any RSA No.1684 of 2009(O&M) #7# obligations of payment to defendant No.11 and 12 with consequential relief of permanent injunction restraining defendant No.1 from alienating any specific portion out of the suit property and also restraining defendants No.11 and 12 from demanding or charging any amount from the plaintiffs shall stand decreed with costs. Decree sheet be prepared and file be consigned.” The learned trial Court, in my opinion, has rightly observed that the order dated 31.8.2000 (Ex.P.8) passed the Revenue Authority regarding correction of khasra girdawari during the pendency of civil suit is of no consequence as both the sale deeds (Ex.P.1 and P.2) were declared as null and void. It is also necessary to mention here that in the judgment and decree dated 24.11.1992, there is a reference of earlier judgment dated 3.11.1978 (Ex.D.5) arising out of Civil Suit No.27 of 1976 titled as Gian Singh and others v. Shiv Devi and others in respect of the land measuring 156 kanal 17 marla including the land in dispute and an appeal dated 24.9.1982 (Ex.D.7) was decided in favour of the defendants-respondents. In view of the findings recorded by the learned trial Court on issue No.6A, issue Nos.1,2,3,4,5,6 & 6B & 7 have been decided in favour of the defendants-respondents and against the plaintiffs- appellants. Learned first appellate Court has also concurred with the finding of the learned trial Court while recording that the appropriate court for the plaintiffs-appellants would have been either to file an application under Order 9 Rule 13 CPC or an appeal against the RSA No.1684 of 2009(O&M) #8# judgment and decree dated 24.11.1992 (Ex.D.3 and D.4) and until and unless it is not set aside, the same is binding upon the plaintiffs- appellants being a party to that judgment and decree as defendant Nos.9 & 10 and they cannot wriggle out of the same. The argument that the judgment and decree dated 1.12.1972 is collusive, is devoid of any merit in view of the judgment and decree dated 24.11.1992 (Ex.D.3 and D.4). The plaintiffs-appellants have miserably failed to prove that the judgment and decree dated 24.11.1992 is the result of any fraud played upon them by the defendants-respondents rather the same is legal, valid and binding upon the parties in the civil suit No.425 of 1990. There are concurrent findings of facts recorded by both the courts below and no substantial question of law is involved in the present appeal, which is sine qua non for entertaining an appeal under Section 100 CPC. Dismissed. No order is required to be passed with regard to condonation of delay in filing the appeal. November 21, 2011 ( JASWANT SINGH ) manoj JUDGE