RSA No. 417 of 2009 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH R.S.A. No. 417 of 2009 Date of Decision: 03.08.2009 Smt. Shanti daughter of Mir Singh son of Nonda, r/o village Gurgaon, Tehsil and District Gurgaon, at present residing at village Kishangarh Mehrauli, New Delhi. ... Appellant Versus 1. Smt. Dhanwanti wd/o of deceased Siri Kishan son of Mir Singh, r/o 12 Biswa, Mohalla, Gurgaon, Village Tehsil and District Gurgaon. 2. Smt. Sunita; 3. Smt. Vijay Laxmi; 4. Smt. Savitri Devi; 5. Urmila; all d/o deceased Siri Kishan son of Mir Singh, r/o 12 Biswa, Mohalla, Gurgaon, Village Tehsil and District Gurgaon. 6. Mukesh Kataria, son of deceased Siri Kishan, son of Mir Singh, r/o 12 Biswa, Mohalla, Gurgaon, Village Tehsil and District Gurgaon. 7. Mukesh Kumar son of Siri Kishan son of Mir Singh, r/o 12 Biswa, Mohalla, Gurgaon, Village Tehsil and District Gurgaon. 8. Sh. Satbir Singh son of Sh. Kaptan Singh, r/o Nihal Bagh, 12 Biswa, Gurgaon Village, Tehsil and District Gurgaon. 9. Sh. Rohtash Singh son of Sh. Daya Ram, r/o village Amanpur, Tehsil and District Gurgaon. 10. Sh. Jatinder Singh son of Sh. Balbir Singh, r/o Prem Nagar, Nangloi Suba, Delhi. 11. Sh. Gajedhar son of Dama, r/o Karlia, P.O. Maharaj Ganj, Distt. Bareli. 12. Sh. Ram Parshad son of Sh. Ram Khilawan, r/o Harivans-Pushta, P.O. Bazar Badli Rai, District Sultanpur. 13. Sh. Parmod Kumar son of Zile Singh, Kjurli, District Bulandshahr (U.P). RSA No. 417 of 2009 2 14. Sh. Suresh Kumar Gupta son of Sh. Mange Ram Gupta, r/o village Satondi, District Karnal. ...Respondents CORAM: HON'BLE MR. JUSTICE SHAM SUNDER Present: Mr. Sumeet Goel, Advocate, for the appellant. SHAM SUNDER, J. * * * * This appeal is directed against the judgement and decree dated 15.01.2008, rendered by the Court of Civil Judge (Senior Division), Gurgaon, vide which, it dismissed the suit of the plaintiff/appellant, and the judgement and decree dated 23.09.2008, rendered by the Court of Additional District Judge, Gurgaon, vide which, it dismissed the appeal. 2. The plaintiff was the owner of the land, in dispute. Some portion of the suit land, was under acquisition proceedings, which were undertaken by the Haryana Government, about 7-8 years, prior to the institution of the suit. The cases for enhancement were also pending before the Court, and, on account of that Siri Kishan (since deceased), brother of the appellant, had approached her, for her presence, in the acquisition proceedings, and, under that impression, he had obtained her thumb impressions, on some blank papers, but those papers, were misused by him, in Civil Suit No. 107/93. It was further stated that, on the basis of those papers, he obtained the impugned decree dated 17.12.1993. It was further stated that the plaintiff/appellant, never consented to the transfer of land, in favour of defendant No. 1, vide the decree aforesaid. It was further stated RSA No. 417 of 2009 3 that the decree, was not registered, and, therefore, could not be acted upon. The decree dated 17.12.1993, was challenged as illegal, void, and inoperative, against the rights of the plaintiff/appellant. The defendants, were many a time asked, to get the decree set aside, but to no avail. On their final refusal, left with no other alternative, a suit for declaration and injunction, was filed. 3. Defendant No. 1 (now deceased), appeared, and filed written statement, wherein, he took up various objections, and contested the suit. It was pleaded that the suit was barred by limitation. It was further pleaded that, no cause or action, accrued to the plaintiff, to file the suit. It was further pleaded that the suit was not maintainable. It was further pleaded that the plaintiff, was estopped by her own act and conduct, from challenging the decree. It was stated that the land was ancestral property, in the hands of the father of the parties, namely Meer Singh, and a family settlement, had taken place, amongst his sons and daughters. It was further stated that, as per settlement, the appellant, had agreed to transfer her share, in favour of defendant No. 1. It was further stated that the family settlement, was recognized by way of the impugned decree. It was denied that any fraud was played by defendant No. 1 (now deceased), upon the plaintiff/appellant. It was further stated that the plaintiff/appellant, had herself appeared, in the Court, at the time of making the statement, and she put her thumb impressions upon the papers, after knowing the facts. It was further stated that similarly the other sisters also transferred their share, in favour of other brothers. It was further stated that the decree, was legal and valid. The remaining averments, were denied, being wrong. 4. Defendants No. 3 and 4, filed separate written statement, and stated that the plaintiff, was neither the owner, nor in possession of the suit RSA No. 417 of 2009 4 land. It was further stated that the suit, had been filed in collusion with defendant No. 1. It was further stated that defendants No. 3 and 4, purchased the suit property, from defendant No. 2, for a valuable consideration, in good faith, and, as such, they were the bonafide purchasers. 5. On the pleadings of the parties, the following issues were struck:- i) Whether the decree passed in Civil Suit No. 107/92 decided on 07.03.1992 titled as 'Siri Kishan Vs. Shanti' and subsequent mutation bearing No. 5417 dated 08.04.1992, are wrong, illegal, null and void? OPP ii) Whether the plaintiff is entitled for the relief claimed for? OPP iii) Whether the suit is not maintainable in the present form? OPD iv) Whether the plaintiff has no cause of action for filing the present suit? OPD v) Whether the plaintiff is owner in possession of the suit land? OPD vi) Whether the suit is bad for non-joinder and mis-joinder of necessary parties? OPD vii) Whether the suit is time barred? OPD viii) Relief. 6. After hearing the Counsel for the parties, and, on going through the evidence, on record, the trial Court, dismissed the suit of the plaintiff. 7. Feeling aggrieved, an appeal was preferred, by the plaintiff/appellant, which was also dismissed by the Court of Additional District Judge, Gurgaon, vide judgement and decree dated 23.09.2008. 8. Still feeling dissatisfied, the instant Regular Second Appeal, has been filed by the plaintiff/appellant. RSA No. 417 of 2009 5 9. I have heard the Counsel for the appellant, and have gone through and perused the documents, on record, carefully. 10. The Counsel for the appellant, submitted that the Courts below, erred in holding, that the decree, was not the result of fraud. He further submitted that the decree, amounted to transferring the immovable property, worth more than Rs. 100/-, and for want of registration, the same could not confer any right of ownership on defendant No. 1. He further submitted that there was neither any family settlement, between the plaintiff/appellant, and defendant No. 1, nor any document, was produced, on record, in that regard. He further submitted that it was not proved, on record, that the thumb impression, put on the statement, allegedly made by the plaintiff/appellant, in the earlier suit, related to her. He further submitted that the Courts below, were also wrong, in coming to the conclusion, that the suit was barred by time. He further submitted that the judgements and decrees of the Courts below, were based on mis-appreciation and mis-reading of evidence, and law, on the point, and were liable to be set aside. 11. After giving my thoughtful consideration, to the contentions, advanced by the Counsel for the plaintiff/appellant, in my considered opinion, the appeal deserves to be dismissed, for the reasons to be recorded, hereinafter. In Madvan Nair Vs. Bhaskar Pillai (2005) 10, SCC, 533, Harjeet Singh Vs. Amrik Singh (2005) 12, SCC, 270, H.P. Pyarejan Vs. Dasappa, JT 2006(2), SC, 228, and Gurdev Kaur and others Vs. Kaki and others (JT 2006 (5) SC, 72, while interpreting the scope of Section 100 of the Code of Civil Procedure, the principle of law, laid down, was that the High Court, has no jurisdiction to interfere with the findings of fact, arrived at by the trial Court, and the first Appellate Court, even if the same are grossly erroneous as the legislative intention was very clear that the RSA No. 417 of 2009 6 legislature never wanted second appeal to become a “third trial on facts” or “one more dice in the gamble.” It was further held that the jurisdiction of the High Court in interfering with the judgements of the Courts below, is confined only to the hearing of substantial questions of law. It is evident, from the judgement of the first Appellate Court, that it was established, that Shanti Devi, had appeared, in the Court, and made a statement dated 03.03.1992. She was identified by her Counsel Ajay Panwar. On the basis of her statement, the judgement and decree, were passed. No fraud or mis- representation allegedly played by defendant No. 1 (deceased) upon Shanti Devi, was established by leading evidence. The allegation of fraud, whether made in civil or criminal proceedings, must be established, beyond a reasonable doubt. Similar principle of law, was laid down, in Dalip Singh Vs. Kali Ram, 1988, SLJ, 255 (P&H). The Courts below, were right, in coming to the conclusion, that the decree, did not create right, for the first time, but defendant No. 1, had pre-existing right, in the property, in question, on the basis of family settlement, which took place, between him, and the plaintiff/appellant. Thus, the decree, only recognized the pre- existing rights of defendant No. 1 (now deceased), which had already been created, in him, on the basis of the family settlement. Similar principle of law, was laid down, in Ved Pal @ Vedu Vs. Smt. Raj Rani, 2003(1) PLR, 455. The first Appellate Court, was also right, in holding that, the suit, was barred by time. The concurrent findings of fact, recorded by the Courts below, on the aforesaid points, being based, on the correct appreciation of evidence, and law, on the point, do not suffer, from any illegality or perversity, and, therefore, warrant no interference, by this Court. The judgements and decrees of the Courts below, are, thus, liable to be upheld. The submission of the Counsel for the appellant, being without merit, must RSA No. 417 of 2009 7 fail, and the same stands rejected. 12. No question of law, much less substantial, has arisen, in this appeal, for the determination of this Court. 13. For the reasons recorded above, the instant Regular Second Appeal, being devoid of merit, must fail, and the same is dismissed. 03.08.2009 (SHAM SUNDER) Amodh JUDGE