RSA No. 241 of 2007 1 In the High Court of Punjab and Haryana at Chandigarh RSA No. 241 of 2007 Date of decision: March 04, 2011 Sardara Singh .....Appellant Versus Raj Kumar and others .......Respondents CORAM: HON'BLE MRS. JUSTICE SABINA Present: Mr.Arun Jain, Senior Advocate, with Mr.Amit Jain, Advocate for the appellant Mr.Brijender Kaushik, Advocate for respondent No.1 Mr.Mansimran Singh,Advocate for respondent No.2 **** SABINA, J. Plaintiff had filed the suit for possession of the suit land. The case of the plaintiff, in brief, was that Bishni was owner of the suit land which was now recorded in the name of defendant No.1. Partapa, husband of Bishni was the last male owner of the suit land. Bishni had died on 2.6.1988 without any child. Plaintiff being a cognate of Bishni was entitled to inherit the suit land after her RSA No. 241 of 2007 2 death. Mother of the plaintiff-Munshi Devi had already died on 21.12.1980. Raj Kumar, defendant No.1 was not related to Bishni in any manner and had obtained the impugned decrees by way of fraud and misrepresentation. The said decrees were not binding on the rights of the plaintiff. Bishni had executed a Will dated 25.4.1971 in favour of the plaintiff. Defendant No.1 in his written statement averred that Bishni was the absolute owner of the suit property. She had not executed any Will in favour of the plaintiff. The answering defendant had become owner of the suit property on the basis of the decrees suffered by Bishni in his favour. Bishni had adopted the answering defendant as her son. On the pleadings of the parties, following issues were framed by the trial Court:- “1.Whether the plaintiff is the owner of the land in dispute?OPP 2.Whether the plaintiff is entitled for possession of the suit land as prayed for?OPP 3.Whether the plaintiff has got no locus standi to file the present suit?OPD 4.Whether the suit of the plaintiff is not within time?OPD 5.Whether the suit of the plaintiff is not properly valued for the purposes of court fee and jurisdiction?OPD 6.Relief” Vide order dated 27.8.1999, following additional issue no.1- A was framed:- 1-A. Whether deceased Bishni executed will dated 25.4.71 RSA No. 241 of 2007 3 in favour of plaintiff. If so, its effect?OPP However, vide order dated 25.1.2001, another additional issue no. 1-B was framed; 1-B. Whether judgment and decree dated 9.11.72 passed in civil suit no.84 titled Raj Kumar vs. Bishni, judgment and decree dated 17.2.79 passed in civil suit no.3 titled Raj Kumar vs. Bishni and judgment and decree dated 4.3.82 passed in Civil Suit no. 49 titled Raj Kumar Vs. Bishni were obtained by defendant no.1 by fraud and misrepresentation of facts and are illegal, null and void and liable to be cancelled?OPP The trial Court vide judgment and decree dated 23.5.2006 decreed the suit of the plaintiff. Aggrieved by the said judgment and decree, defendant No.1-Raj Kumar preferred an appeal and the same was allowed by the Additional District Judge(Fast Track Court) Ambala vide judgment and decree dated 11.11.2006. Consequently, the suit filed by the plaintiff was dismissed. Hence the present appeal by the plaintiff. Learned senior counsel for the appellant has submitted that the decrees alleged to have been suffered by Bishni in favour of defendant No. 1 were the result of fraud and misrepresentation. The said decrees were liable to be set aside. Defendant No.1 had no relationship with Bishni. Defendant No.1 had described Bishni as his great grand mother in one case and in another case, he had described himself to be adopted son of Bishni. As per the School leaving certificate, defendant No.1 was described as son of Labh Singh. Bishni had executed a Will in favour of the plaintiff which had RSA No. 241 of 2007 4 been duly proved on record. In support of his arguments learned Senior counsel has placed reliance on Santosh vs. Jagat Ram and another 2010(2) RCR(Civil) 206 wherein it was held that the fraud was evident from the fact that the suit had been filed on 26.3.1985 and the written statement was also filed on the same day and the widow was examined on the same day and decree was passed on the same day. Learned senior counsel has next placed reliance on Gurcharan Singh and others vs. Angrez Kaur and another 2008 (4) RCR(Civil) 178 where in it was held that once there was no pre- existing right of the appellants in the suit property, the decree could not have been passed in favour of a stranger. Learned senior counsel has also placed reliance on Rajinder Singh vs. Joginder Singh and others 2002(2) PLJ 321 wherein it was held that if a decree creates right for the first time and is not in recognition of some pre-existing right, it requires registration. Learned counsel for respondent No,1 on the other hand has submitted that Bishni had appeared before the Court and had suffered the decrees. Bishni was the absolute owner of the suit property. Plaintiff had failed to establish any relationship with the deceased Bishni. After hearing the learned counsel for the parties, I am of the opinion that the instant appeal deserves dismissal. Although in the present case, a lot of stress has been laid by the learned senior counsel for the appellant that defendant No.1 RSA No. 241 of 2007 5 was not the adopted son of Bishni, but the fact remains that Bishni was the absolute owner of the suit property, The decrees suffered by Bishni could have been challenged on the basis of fraud or misrepresentation. A perusal of Exhibit PW8/3 reveals that in a suit filed by Raj Kumar for possession of 72 kanals 8 marlas of land, Bishni appeared before the Court and admitted the claim of Raj Kumar. Statement of Bishni was recorded and,thereafter, the suit filed by Raj Kumar was decreed. The suit was filed by Raj Kumar on 5.10.1972 and was decreed on 9.11.1972. Bishni was duly represented by a counsel. A perusal of Exhibit PW8/5 reveals that in a suit filed by Raj Kumar against Bishni qua 15 marlas of land, Bishni had appeared before the Court and had admitted the claim of Raj Kumar. Notice of the suit was issued to Bishni. Bishni was present in the Court along with her counsel. The said suit was instituted on 6.2.1982 and was decreed on 4.3.1982. A perusal of the judgment Exhibit PW8/6 reveals that Raj Kumar had filed a suit for possession of 45 kanals 16 marlas of land on 2.1.1979. The said suit was decreed on 17.2.1979. Defendant Bishni appeared in the said suit and admitted the claim of the plaintiff-Raj Kumar. Statements of the parties were recorded and consequently, the suit filed by Raj Kumar was decreed. Thus, the said three suits were decreed on the basis of admission made by Bishni. There is nothing on record to suggest that Bishni had not appeared before the Court when the decrees were passed. The handwriting expert examined by the parties have merely compared the thumb impressions of Bishni during the Courts RSA No. 241 of 2007 6 proceedings qua the impugned decrees with her thumb impressions on the Will set up by the plaintiff. None of the parties could prove on record any standard thumb impression of Bishni. In these circumstances, the proceedings which had taken before the Courts are liable to be believed. The impugned decrees were passed after Bishni had suffered statement in the Court admitting the claim of Raj Kumar. The fact that whether Raj Kumar was the adopted son of Bishni or not loses its significance in view of the admission made by Bishni. The decrees were suffered by Bishni way back in the year 1972,1979 and the year 1982. The suit was,however,filed in the year 1991. Bishni had died in the year 1988 and had never challenged the decrees in question during her life time. In these circumstances, since the deceased Bishni had already suffered a decrees in favour of defendant No.1 during her life time qua the land owned by her, plaintiff could not draw any benefit on the basis of the Will set up by him. No substantial question of law arises in this appeal. Dismissed. ( Sabina ) Judge March 04,2011 arya