Regular Second Appeal No. 1009 of 2009 -1- IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH Regular Second Appeal No. 1009 of 2009 Date of decision : November 18, 2010 Shanti Devi and others ....Appellants versus Mange Ram and others ....Respondents Coram: Hon'ble Mr. Justice L.N. Mittal Present : Mr. Ashish Aggarwal, Advocate, for the appellants L.N. Mittal, J. (Oral) Legal representatives of plaintiffs no. 1 and 2 along with plaintiffs no. 4 and 5 have filed the instant second appeal by impleading plaintiff no. 3 Ram Pal as respondent no. 10, after remaining unsuccessful in both the courts below. Suit was filed by Roop Ram etc. against Mange Ram defendant-respondent no. 1 and Indraj defendant no. 2 (since deceased and represented by respondents no. 2 to 9). Plaintiffs no. 1 and 2 and defendant no. 2 were sons of Shankar. Plaintiffs no. 3 and 4 are sons of Sunehra son of Shankar whereas plaintiff no. 5 is son of Hari Ram son of Shankar. Mange Ram defendant no. 1 is natural/biological son of defendant no. 2 Indraj. Sumer Chand since deceased was also son of Shankar. He was Regular Second Appeal No. 1009 of 2009 -2- unmarried and had no biological issue. Mange Ram defendant no. 1 herein filed civil suit no. 261 of 1985 against Sumer Chand alleging that Mange Ram is adopted son of Sumer Chand and there was family settlement between them. Pursuant thereto consent decree dated 28.3.1985 was passed by Senior Sub Judge, Karnal declaring Mange Ram to be owner in possession of the land which was previously held by Sumer Chand. The said consent decree has been challenged in the instant suit on various grounds. Primary challenge to the consent decree dated 28.3.1985 is on the plea that Mange Ram was never adopted by Sumer Chand; that there was no family settlement between them; that Mange Ram had no pre-existing right in the suit property and therefore, the same could not be transferred to him by family settlement or consent decree without registered deed; that the family settlement was not bonafide; that the consent decree required registration; that the decree is bogus and Sumer Chand never appeared in the court and the decree was obtained by impersonation; that Sumer Chand could not transfer the suit property being his self acquired property. Accordingly, the plaintiffs sought declaration that consent decree dated 28.3.1985 is void, ab-initio. They also claimed relief of joint possession of 3/4 share of the suit property falling to their share. Defendants contested the suit and controverted the pleas raised by the plaintiffs. Grounds to challenge the consent decree were controverted. Various other pleas were also raised. It was also pleaded that defendant no. 1 is adopted son of Sumer Chand since deceased and plaintiffs have no right, title or interest in the suit property. Regular Second Appeal No. 1009 of 2009 -3- Learned Civil Judge (Junior Division), Karnal vide judgment and decree dated 24.3.2006 dismissed the plaintiffs' suit. First appeal preferred by the plaintiffs (including legal representatives of plaintiffs no. 1 and 2 since deceased) has been dismissed by learned Additional District Judge, Karnal vide judgment and decree dated 19.9.2008. Feeling aggrieved, legal representatives of plaintiffs no. 1 and 2 with plaintiffs no. 4 and 5 have filed the instant second appeal. I have heard learned counsel for the appellants and perused the case file. Learned counsel for the appellants relying heavily on judgment of this Court in Jai Narain versus Smt. Sona Devi, 2006(2) RCR (Civil) 213 contended emphatically that in a subsequent suit, court can go into the correctness or otherwise of the facts pleaded in the earlier suit on the basis of which consent decree was passed. It was next contended that in the instant suit neither alleged adoption of defendant no. 1 by Sumer Chand nor alleged family settlement between them is proved and therefore, the plaintiffs' suit deserves to be decreed. I have carefully considered the aforesaid contention but find no merit therein. Judgment in the case of Jai Narain (supra) is not attracted at all because in that case the question to be decided was whether the consent decreed required compulsory registration or not and whether the same was obtained by misrepresentation. In this context, it was observed that bonafide nature of the family settlement pleaded in the earlier suit can be gone into, in order to see whether the consent decree required registration or not and whether the same was based on fraud or misrepresentation. In the Regular Second Appeal No. 1009 of 2009 -4- instant case, however, the factum of adoption of Mange Ram by Sumer Chand stood concluded by consent decree dated 28.3.1985 and for this purpose the said decree did not require any registration and consequently, in the instant subsequent suit the fact whether defendant no. 1 Mange Ram had been adopted by Sumer Chand or not cannot be gone into. In this view, I am supported by judgment of this Court in Harpal and others versus Smt. Ram Piari and others, 1981 PLJ 492 and also by Division Bench judgment of this Court in Gurdev Kaur and anr. Versus Mehar Singh and ors., 1990(1) PLR 334. According to these judgments in subsequent suit courts will have no jurisdiction to reopen or go behind the compromise decree merely on the basis whether the facts stated in the plaint which ultimately concluded by compromise decree were correct or not. Consequently, in the instant subsequent suit the question whether Mange Ram had been adopted by Sumer Chand or not cannot be gone into because the said question stood concluded by consent decree dated 28.3.1985. If Mange Ram had been adopted by Sumer Chand then Mange Ram became sole legal heir of Sumer Chand to the exclusion of plaintiffs and defendant no. 2. Consequently, plaintiffs cannot succeed. In addition to the aforesaid, there could be valid family settlement between Sumer Chand and his adopted son Mange Ram and consent decree based thereon would not require compulsory registration. Courts always lean in favour of family settlement instead of ignoring or setting aside the same. If Sumer Chand had adopted Mange Ram then it was most natural for Sumer Chand to enter into family settlement with his adopted son Mange Ram regarding the suit property. Consequently, the Regular Second Appeal No. 1009 of 2009 -5- said family settlement cannot be said to be malafide in any manner. It may be mentioned that suit to challenge the consent decree dated 28.3.1985 was filed on 7.4.1997. Learned counsel for the appellants states that Sumer Chand had died in the year 1985 itself about 3/4 months after suffering consent decree. Sumer Chand during his life time did not challenge the said consent decree. After his death mutation Ex. P3 was sanctioned on 22.2.1986. Consequently, the instant suit filed on 7.4.1997 to challenge the consent decree dated 28.3.1985 is also barred by limitation. For the reasons aforesaid, I find no merit in the instant second appeal. No question of law much less substantial question of law arises for determination in the instant second appeal. The appeal is accordingly dismissed in limine. ( L.N. Mittal ) November 18, 2010 Judge 'dalbir'