IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. R.S.A. No.1173 of 2004 (O&M) Date of Decision: 9.3.2010 Shri Inderjit Singh. ....... Appellant through Shri Arun Jain, Senior Advocate with Shri Amit Jain, Advocate. Versus Karam Singh (since deceased) represented by his L.Rs.and another. ....... L.R.Nos. (iv) & (v) of respondent No.1 through Shri C.B.Goel, Advocate. None for other L.Rs. of respondent no.1. Respondent no.2 ex parte. CORAM: HON'BLE MR.JUSTICE MAHESH GROVER .... 1. Whether Reporters of Local Newspapers may be allowed to see the judgment? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? .... Mahesh Grover,J. This Regular Second Appeal is directed against the judgment and decree dated 26.2.2004 passed by the Additional District Judge, Jagadhri (hereinafter referred to as `the first appellate Court') whereby the appeal of Karam Singh (since deceased) represented by his legal heirs (hereinafter called as `the plaintiff') was accepted and the judgment & decree dated 21.9.2002 of the Civil Judge (Junior Division), Jagadhri (described hereinafter as `the trial Court') were set aside. R.S.A.No.1173 of 2004 -2- .... The plaintiff had filed a suit against his son, Hakam Singh – defendant/ respondent no.2, and grand-son, Inderjit Singh- defendant/ appellant, for declaration to the effect that he was owner in possession of the disputed land as detailed in the head note of the plaint and that judgment & decree dated 26.3.1981 passed in civil suit no.184 of 25.3.1981, titled as `Inderjit Singh Versus Karam Singh etc.', which pertained to the said land, was wrong, illegal, null & void and was not binding on his rights as the same were the result of fraud. It was pleaded that the aforesaid judgment & decree were the result of collusion between the appellant and his mother- Smt.Surinder Kaur. It was next pleaded that the suit land was ancestral in his hands and he was Karta of the family, but the appellant & respondent no.2 had deprived him thereof fraudulently. Upon notice, the appellant had appeared and filed his written statement contesting the suit. He denied the factum of fraud and supported the judgment & decree in question to be valid and pleaded that the suit was barred by time. The parties went to trial on the following issues:- 1. Whether the plaintiff is owner in possession of the suit land as mentioned in the head note of the plaint?OPP 2. Whether the judgment and decree dt. 26.3.81 passed by the then Sub Judge, Jagadhri in civil suit no.184 dt. 25.3.81 is wrong,illegal, null and void and liable to be set aside on the ground as alleged in the plaint?OPP 3. Whether the suit is time barred?OPD R.S.A.No.1173 of 2004 -3- .... 4. Whether this court has got no jurisdiction to try and hear this suit?OPD 5. Whether the suit of the plaintiff is not maintainable in the present form?OPD 6. Whether the plaintiff has concealed the true and material facts from this court?OPD 7. Whether the plaintiff is estopped from filing the present suit by his own act and conduct?OPD 8. Relief. After appraisal of the entire evidence on record, the trial Court dismissed the suit with costs by observing that it was barred by limitation. In appeal, the findings of the trial Court were reversed by the first appellate Court and the suit of the plaintiff was decreed. Hence, this Regular Second Appeal. Learned counsel for the appellant has contended that the findings of the first appellate Court are erroneous and are liable to be set aside. He further contended that the fraud as pleaded by the plaintiff was not proved and the first appellate Court has erred in concluding against the appellant by recording perverse findings. On the other hand, learned counsel for the legal representatives of the plaintiff has defended the impugned judgment & decree and has argued that the fraud was evident from the facts and evidence on record. I have thoughtfully considered the rival contentions and have perused the impugned judgment, as also the record of the Courts below, R.S.A.No.1173 of 2004 -4- .... which was summoned. The foremost issue that is to be addressed is as to whether the decree suffered in the year 1981 in civil suit no. 184 of 25.3.1981 was a result of fraud or not. The aforesaid suit which was filed against the plaintiff and respondent no.2 by the appellant through his mother as he was minor at the relevant time, a declaration was sought by pleading that the suit land was ancestral and during family partition, the same fell to the share of respondent no.2. It was further pleaded that about six months back, respondent no.2 had partitioned his land and by virtue thereof, the same was given to the appellant alone and since then he was continuing in exclusive possession of the same. It was next pleaded that the plaintiff & respondent no.2 had assured to implement the partition, but did not do so and had ultimately refused to accede to the request of the appellant. That suit was presented before the Court of Sub Judge Ist Class, Jagdahri on 24.3.1981 and the plaintiff was directed to appear on 25.3.1981. It was registered in the Court as Civil Suit No.184 of 25.3.1981. Respondent no.2 was given notice for appearance for 29.5.1981. On 26.3.1981, an application dated 25.3.1981 was moved by the plaintiff and respondent no.2 to take up the file of that suit on that day by pleading that the parties had arrived at a compromise and it be decided in terms thereof. A compromise deed dated 25.3.1981 was also filed which was signed by respondent no.2 on his own behalf and on behalf of the plaintiff as his attorney, whereas on behalf of the appellant, it was signed by his counsel alone. A written statement dated 25.3.1981 was also filed admitting the claim of the appellant in toto. Again, R.S.A.No.1173 of 2004 -5- .... it was signed by respondent no.2 on his own behalf and on behalf of the plaintiff as his attorney. The suit was accordingly preponed and was taken up on 26.3.1981. The statement of respondent no.2 and that of counsel for the appellant were recorded and the suit was decreed on 26.3.1981 itself. The aforesaid facts leave no manner of doubt that the decree dated 26.3.1981 was a result of a dubious plan to grab the property of the plaintiff. Concededly, the mutation was never got sanctioned by the appellant on the basis of the said decree which was kept under wraps for almost seventeen years. The fraud is also implicit from the facts of the case because the partition of the property owned by the plaintiff had been pleaded, which property was also stated to be ancestral in the suit filed by the appellant. It has come on record that the plaintiff had purchased the suit land in the year 1965 and he was having other sons as well. There is nothing on record from which it can be inferred that as to why the plaintiff would have deprived the other sons of a right in his property. If the suit land was not ancestral, then the partition so pleaded ought to have been proved at least in the instant suit to justify the passing of the decree dated 26.3.1981. Gian Singh, another son of the plaintiff, while appearing as PW1, had admitted that the parties had separated as he was residing separately. But, this does not imply that any partition of the property had been effected. In any eventuality, the fact that the decree dated 26.3.1981, even though ostensibly passed on the basis of compromise, was never passed in terms of Order 23 Rule 3 of the C.P.C. and also the fact that the R.S.A.No.1173 of 2004 -6- .... plaintiff had never signed his statement nor any compromise was produced before the Court and the entire transaction was conducted by respondent no.2 along with his wife-Smt.Surinder Kaur to benefit their son,i.e., the appellant, show that the whole exercise was fraudulent. I, therefore, have no hesitation to conclude that decree dated 26.3.1981 was a result of fraud. Learned counsel for the appellant has then submitted that the instant suit has been filed belatedly and is hit by the law of limitation. I am afraid, this submission does not come to the rescue of the appellant for the simple reason that the fraud vitiates everything. Besides, the limitation has to run from the date of acquiring the knowledge of such fraud. The plaintiff had pleaded that he came to know about the decree dated 26.3.1981 when the mutation was got entered in August,1998 on the basis of the same. It is pertinent to mention here that the appellant remained silent for as long as seventeen years without getting the revenue record corrected on the basis of the said decree. Therefore, the suit cannot be held to be beyond limitation. On the basis of the above discussion, I am in complete agreement with the findings recorded by the first appellate Court. While concurring with the same, I dismiss the instant appeal which is held to be without any merit. March 9,2010 ( Mahesh Grover ) “SCM” Judge