RSA No. 3929 of 2007(O&M) 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No. 3929 of 2007 (O&M) Decided on :03-03-2009 Smt. Sito Devi ....Appellant VERSUS Balkar Singh and another ....Respondents CORAM:- HON'BLE MR. JUSTICE MAHESH GROVER Present:- Mr. Gurnam Singh, Advocate for the appellant MAHESH GROVER, J C.M.No. 2645-C of 2009 For the reasons mentioned in the application, the same is allowed and the appeal is restored to its original number. RSA No. 3929 of 2007 The Court after restoring the appeal to its original number asked the learned counsel for the appellant to argue the matter. Learned counsel for the appellant argued for some time but could not answer certain queries and pleaded that he did not have the relevant evidence and prayed for some time. The request is totally unreasonable. The matter was earlier dismissed after noticing the fact that the appeal is of the year 2007 and has been adjourned repeatedly without the counsel making any attempt to argue the same. Today, when the appeal has been restored yet another request for adjournment is made, which is totally unjustified, yet purely in the RSA No. 3929 of 2007(O&M) 2 interest of justice, the prayer is accepted, however, subject to Rs.5,000/- as costs, which shall be deposited in the Lawyers Welfare Fund. At this stage, learned counsel for the appellant prays that the appeal be decided on merits rather than adjourning it. Accordingly, the appeal is being disposed of on merits. The appellant-plaintiff is in regular second appeal. Plaintiff filed a suit for possession alleging that her brother Chhajju had defrauded her and got a decree suffered from her by mis-representation and fraud in favour of his sons in the year 1996. It is pleaded that the property belonged to her father Biru who died leaving behind four children namely Ram Ditta, Chhajju, Sito and Guddi and all of them inherited the property of the deceased in equal shares after is death. The relevant mutation was also entered accordingly. The plaintiff became the owner to the extent of 1/4th share of the estate of the deceased Biru. It was pleaded that in the year 1996 a loan for tractor was obtained against the property of the plaintiff which was mortgaged with the State Bank of India. Subsequently, this loan was repaid but her brother Chhajju on the pretext of getting some documents signed for the relevant purpose produced her in Court and get a decree suffered in favour of his sons thereby defrauding her. It was further pleaded that she discovered the fraud subsequently when her brother Chhajju who was earlier paying Rs.42,000/- as lease money for cultivating her land stopped making the payment in the year 1999-2000. Thereafter, she discovered the fraud and tried to initiate criminal proceedings against him but to no effect and ultimately filed the civil suit. It is prayed that decree suffered in civil suit no.57 of 1996 titled as Balkar Singh versus Sito Devi is illegal and based on RSA No. 3929 of 2007(O&M) 3 fraud. The respondents contested the suit and denied the factum of fraud. The factum of loan having been obtained against the property of the appellant was also denied. It was pleaded that the decree was validly suffered and the appellant herself appeared in Court where her statement was recorded and she engaged a counsel. The allegations regarding payment of Rs.42,000/- as lease money was also denied. Both the parties went to trial on the following issues:- 1. Whether the civil court decree dated 24.2.1996 in civil suit no. 57 of 1996 titled as Balkar Singh vs. Smt. Sito passed by the court of Sh.D.P.Chauhan, the then ACJ(SD) Tohana, and resultant mutation no.1358, 1375 sanctioned on dated 25.3.1996 is illegal, nulland void and liable to be set aside?OPP. 2. If issue no. 1, stand proved, whether the plaintiff is entitled for the relief of injunction as claimed?OPP. 3. Whether the plaintiff has no locus standi to file the present suit?OPD. 4. Whether the suit is barred by law of limitation?OPD. 5. Whether the plaintiffs have been estopped to file the present suit by her own act and conduct?OPD. 6. Whether the plaintiff has no cause of action to file the present suit?OPD. 7. Whether the suit is not maintainable in the present form?OPD. 8. Relief. RSA No. 3929 of 2007(O&M) 4 On appraisal of the evidence before it, learned Trial Court dismissed the suit of the plaintiff-appellant. In appeal, the findings of the learned Trial Court were affirmed. In Regular Second Appeal, the appellant has assailed the findings of both the Courts below to contend that the findings are perverse and deserve to be set aside. It was pleaded that fraud has been played upon the appellant which is reflected from the proceedings in civil suit no. 57 of 1996. It was Chhajju who identified her and since he was the beneficiary an inference should be drawn that he was party to the fraud. It was further contended that no person from the village was produced to identify her and this was sufficient for the Court to come to the conclusion that fraud has been committed. It was further contended that there is cogent evidence on record to suggest Chhajju her brother was paying Rs.42,000/- as lease money to her and when this payment was stopped the fraud was discovered. I have heard learned counsel for the appellant and have perused the impugned judgments. It is a settled principle of law that a person pleading fraud has to prove it by producing cogent evidence on record. It is the appellant who denied her thumb impression on the statement which was recorded before the Court in proceedings in civil suit no. 57 of 1996 and once this fact was pleaded by her it was entirely up to her to prove this fact which she miserably failed to prove. Rather it was respondent who moved an application to get her thumb impression compared but the appellant dilly dallied and sufferred a statement through her counsel that she does not wish to get her thumb impression compared. In this view of the matter, learned First Appellate Court drew RSA No. 3929 of 2007(O&M) 5 an adverse inference against the appellant correctly. Merely because Chhajju had identified the appellant could not ipso facto mean that he being the beneficiary the decree ought to be rendered to be a result of fraud. There is evidence on record to suggest that she had appeared through her counsel and suffered a statement as well, besides appending her thumb impression to the proceedings. Identification, by Chhajju the brother of the appellant could have been necessitated, to obviate and obliterate the chances of impersonation. In this view of the matter, the contention of the learned counsel for the appellant is without any merit. In so far second contention is concerned that an amount of Rs. 42,000/- was paid to her as lease money which plea has been raised to suggest that an arrangement was existing between the appellant and her brother Chhajju who was cultivating her land and that the decree was result of fraud for the reasons which have been pleaded by her, the same is also without any merit as there is no evidence to suggest that this amount was being paid by the respondent to the appellant. In this view of the matter, when consistent and concurrent findings of facts have been recorded by both the Courts below and no substantial question of law has been shown to have arisen for the consideration of this Court, the appeal being devoid of any merit is hereby dismissed. March 3, 2009 (Mahesh Grover) rekha Judge