Regular Second Appeal No.3161 of 2011 (O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Regular Second Appeal No.3161 of 2011 (O&M) Date of Decision:-19.9.2011 Shamsher Singh and another ...Appellants Versus Balvir Kaur alias Balbir Kaur ...Respondent CORAM: HON'BLE MR.JUSTICE MEHINDER SINGH SULLAR Present:- Mr.Baltej Singh Sidhu, Advocate for the appellants. M ehinder S ingh S ullar , J . (Oral) Having kept the law laid down by Hon'ble Apex Court in case Kashmir Singh vs. Harnam Singh & Anr. 2008(2) R.C.R. (Civil) 688 : 2008 AIR (SC) 1749 into focus, now the short and significant question, though important that arises for determination is, as to whether any substantial question of law is involved in the instant regular second appeal, so as to invoke the jurisdiction vested in this Court under Section 100 C.P.C or not ? 2. Concisely, the facts, culminating in the commencement, relevant for deciding the present appeal and emanating from the record, are that Balvir Kaur alias Balbir Kaur wife of Malook Singh respondent-plaintiff (for brevity “the plaintiff”) filed the suit for a decree of declaration to the effect that she is owner and in possession, Shamsher Singh and Lovepreet Singh appellant-defendants (for short “the defendants”) have got no right, title or interest in the land in dispute, the collusive decree dated 20.11.1997, mutation bearing No.1106 and the entries in the subsequent revenue record, in pursuance thereof, are illegal, null, void and not binding on her rights, with a consequential relief of permanent injunction restraining the defendants from alienating the suit property in any manner. 3. The case set up by the plaintiff, in brief in so far as relevant, was that Regular Second Appeal No.3161 of 2011 (O&M) -2- the defendants have illegally obtained the collusive decree dated 20.11.1997 from the Court of Civil Judge (Junior Division), Patti in case titled as “Shamsher Singh Vs. Balvir Kaur”. It was alleged that neither she appeared, nor thumb marked, nor filed any written statement (Ex.D4), nor engaged Shri Gurjit Singh, Advocate as her counsel nor entered into any compromise (Ex.D1) with the defendants nor she suffered any statement (Ex.D2) in this connection in the Court. The defendants have committed a fraud with the plaintiff as well as with the Court, by impersonating and producing some other lady in her place. She claimed that the collusive decree is based on fraud, hence, the subsequent mutation and the contrary entries in the revenue record in pursuance thereof, are illegal, null, void and not binding on her rights. On the basis of aforesaid allegations, the plaintiff filed the suit seeking a decree for declaration/permanent injunction against the defendants, in the manner indicated hereinabove. 4. The defendants contested the suit and filed the written statement, inter-alia pleading certain preliminary objections of, maintainability of the suit, estoppel, cause of action and locus standi of the plaintiff. According to the defendants that the plaintiff compromised the matter and made the statement before the Court, resulting into collusive decree dated 20.11.1997. She was stated to be bound by her earlier statement and thus, the defendants became the owners and in possession of the disputed land. The mutation and entries in the revenue record were termed to be valid and legal. It will not be out of place to mention here that the defendants have stoutly denied all other allegations contained in the plaint and prayed for dismissal of the suit. 5. Controverting the allegations of the written statement and reiterating the pleadings contained in the plaint, the plaintiff filed the replication. In the wake of pleadings of the parties, the trial Court framed the essential issues for proper adjudication of the case. 6. The parties to the lis, produced on record the oral as well as Regular Second Appeal No.3161 of 2011 (O&M) -3- documentary evidence, in order to substantiate their respective pleaded stands. 7. The trial Court, after considering the evidence on record, decreed the suit of the plaintiff, by virtue of impugned judgment and decree dated 5.11.2009. 8. Aggrieved by the decision of the trial Court, the defendants filed the appeal, which was dismissed with costs as well, by the Ist Appellate Court, through the medium of impugned judgment and decree dated 25.4.2011. 9. The appellant-defendants still did not feel satisfied with the impugned judgments and the decrees and preferred the present regular second appeal. 10. After hearing the learned counsel for the appellant-defendants, going through the record with his valuable assistance and after considering the entire matter deeply, to my mind, there is no merit in the instant appeal in this context. 11. Ex-facie the argument of learned counsel that since the independent suit filed by the plaintiff was not maintainable, so the Courts below committed a mistake in decreeing her suit, is not only devoid of merit but misplaced as well. 12. As is evident from the record, the plaintiff claimed that neither she appeared, nor thumb marked nor filed any written statement (Ex.D4) nor engaged Shri Gurjit Singh, Advocate as her counsel in collusive suit nor entered into any compromise (Ex.D1) with the defendants nor she suffered any statement (Ex.D2) in this relevant connection in the Court, but the defendants have produced some other lady and obtained the indicated collusive decree by impersonation and thus they have cheated and committed the fraud on her as well as with the Court. 13. Having completed all the codal formalities, the trial Court, after taking into consideration the oral as well as documentary evidence on record in the right perspective and the report (Ex.PW4/B) of handwriting expert, came to a definite conclusion that the plaintiff never appeared on 20.11.1997 in the Court, when the indicated collusive decree was passed. The defendants have produced some other lady, who signed the written statement (Ex.D4), compromise (Ex.D1) Regular Second Appeal No.3161 of 2011 (O&M) -4- and the statement (Ex.D2), purported to be of the plaintiff. A criminal case was registered in regard to indicated cheating & fraud and the accused were convicted and sentenced, by way of judgment of conviction and order of sentence (Ex.PX). The core question as to whether the suit, challenging such fraudulent decree obtained by playing fraud and impersonation, is maintainable or not, is not res integra and is now well settled. 14. An identical question came to be decided by the Hon'ble Supreme Court in case titled as Sukhnandan Singh etc. Versus Jamiat Singh and others, 1971 PLJ 278, and it was held as under:- “Collusion in judicial proceedings is normally associated with secret arrangement between two persons that the one should institute a suit against the other in order to obtain the decision of a judicial tribunal for some sinister purpose. In such a proceeding the claim put forward is fictitious, the contest feigned or unreal and the final adjudication a mask, designed to give false appearance of a genuine judicial determination, and this is generally done with the object of confounding third parties. In such a proceeding the contest is a mere sham. Even in the wider sense the word “collusion” suggests a deceitful agreement or compact between two or more persons to do some act in order to prejudice a third person or for some improper purpose.” 15. Again, reiterating the concept of fraud, the Hon'ble Apex Court in case A.V.Papayya Sastry and others Versus Govt. of A.P. and others, (2007) 4 Supreme Court Cases 221, has ruled that “fraud may be defined as an act of deliberate deception with the design of securing some unfair or undeserved benefit by taking undue advantage of another. In fraud, one gains at the loss of another. Even the most solemn proceedings stand vitiated if they are actuated by fraud. Fraud is thus an extrinsic collateral act, which vitiates all judicial acts, whether in rem or in personam.” It was further held that “any judgment, decree or order obtained by playing fraud on the court, tribunal or authority is a nullity and non est in the eyes of the law. Such a judgment, decree or order by the first court or by the final court has to be treated as nullity by every court, superior or inferior. Regular Second Appeal No.3161 of 2011 (O&M) -5- It can be challenged in any court, at any time, in appeal, revision, writ or even in collateral proceedings.” 16. In this manner, the contrary submissions of the learned counsel for the appellant-defendants that the aforesaid collusive decree is legal and binding, “stricto sensu” deserve to be and are hereby repelled under the present set of circumstances, as the law laid down by the Hon'ble Supreme Court in the aforesaid judgment “mutatis mutandis” is applicable to the facts of the present case and is the complete answer to the problem in hand. 17. Therefore, keeping the law laid down by the Hon'ble Apex Court into focus, to me, the trial Court has rightly decreed the suit of the plaintiff in this relevant connection. 18. Sequelly, the decision of the trial Court was upheld by the Ist appellate Court, by means of impugned judgment dated 25.4.2011, which, in substance, is (paras 12 to 14) as under:- “12. Coming to the first aspect of the case regarding statement of DW 2 Surjan Singh who was a witness in the civil no.187 of 1997, in which, the order dated 20.11.1997 was passed upon which basis the mutation no.1106 under challenge was entered into. Statement of DW2 was recorded on 20.10.1997 where he mentioned himself to be son of Thakar Singh son of Kala Singh aged about 60-65 years whereas while appearing in the Court as DW2 on 27.11.2001, he told his age to be 58 years and being the son of Malook Singh @ Thakar Singh son of Jawala Singh @ Kala Singh. If Surjan Singh was of the age of 60-65 years on 20.10.1997, he could not lessen his age by 7 years after a gap of four years. Statement of DW2 Surjan Singh was recorded on 27.11.2001. The result comes out that he changed his age and parentage and when his supplementary statement was recorded as DW2 on 5.12.2006, he stated his age to be 70-75 years. This all was made up by him to fill in the lacuna and to avoid the legal criminal consequences which have been taken against him in a private complaint moved by Balbir Kaur in a complaint titled as Balvir Kaur Vs. Saraj Singh and others which culminated into Ex.PX wherein the accused were convicted. Ex.P11 is the application for bail moved by said Surjan Singh on 14.6.2001 wherein he stated his parentage as Surjan Singh son of Malook Regular Second Appeal No.3161 of 2011 (O&M) -6- Singh, resident of village Kalanjar Uttar. He has again wrongly divulged his age and parentage and a person who can change his age and parentage before the Court at different stages cannot be relied upon while deciding the controversy regarding the rights of the parties. 13. Although the criminal cases are not binding upon the civil cases but so far as the plea of fraud and mis-representation is concerned, the standard of proof required is that of criminal one and like a criminal case, the party alleging so has to prove that the fraud and mis-representation has been made and since in this case, Ex.PX is the judgment available on the file showing that accused Saraj Singh and Surjan Singh have committed the offence under sections 467/468/471/419/120-B IPC and even they have preferred the appeal Ex.D6 before the Appellate Court which is pending disposal, the net result can be drawn that Saraj Singh father of the minor plaintiffs with the help of Surjan Singh has committed fraud and cheating with plaintiff Balvir Kaur. 14. To add further, summons of the civil suit no.187 of 1997 were issued at the address of village Kalanjar Uttar whereas Rasal Singh Process-server has specifically made his report that she is not residing at the given address. If the Process server has made the report Ex.P8 to Ex.P10, appearance of said Balbir Kaur through his attorney and subsequent statement in the Court Ex.D2 all goes to prove that it has been done by the plaintiff by impersonating some other lady in place of Balbir Kaur @ Balvir Kaur just to grab her property. The ld.lower Court has, therefore, rightly appreciated the evidence adduced on the record and rightly came to the conclusion that the fraud and mis-representation has been committed upon the plaintiff and mutation on the documents Ex.D1, Ex.D2, Ex.D3, Ex.D4 and Ex.D5 has been wrongly sanctioned and hence the plaintiff is entitled to the relief as prayed for.” 19. The learned counsel for the appellant-defendants did not point out any material, much less cogent, to contend as to how and in what manner, the impugned judgments and decrees are illegal and would invite any interference in this relevant direction. 20. Meaning thereby, the Courts below have taken into consideration and appreciated the entire relevant evidence brought on record by the parties in the right perspective. Having scanned the admissible evidence in relation to the Regular Second Appeal No.3161 of 2011 (O&M) -7- pleadings of the parties, they have recorded the above-mentioned concurrent findings of fact. Such pure concurrent findings of fact based on the appraisal of evidence, cannot possibly be interfered with by this Court, while exercising the powers conferred under section 100 CPC, unless and until, the same are illegal and perverse. No such patent illegality or legal infirmity has been pointed out by the learned counsel for the appellant-defendants, so as to take a contrary view, than that of well reasoned decision already arrived at, in this regard. 21. No other meaningful argument has been raised by the learned counsel for the appellant-defendants to assail the findings in the impugned judgments and decrees. All other arguments, relatable to the appreciation of evidence, now sought to be urged on their behalf, in this relevant behalf, have already been duly considered and dealt with by the Courts below. 22. Similarly, the entire matter revolves around the re-appreciation and re-appraisal of the evidence on record, which is not legally permissible and is beyond the scope of second appeal. Since no question of law, muchless substantial, is involved, so, no interference is warranted, in the impugned judgments/decrees, in view of the law laid down by Hon'ble Supreme Court in Kashmir Singh's case (supra) in the obtaining circumstances of the present case. 23. No other legal point, worth consideration, has either been urged or pressed by the learned counsel for the appellant-defendants. 24. In the light of aforementioned reasons, as there is no merit, therefore, the instant appeal is hereby dismissed as such. (Mehinder Singh Sullar) 19.9.2011 Judge AS Whether to be referred to reporter?Yes/No