RSA No. 937 of 2009(O&M) 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No. 937 of 2009(O&M) Decided on : 04-03-2009 Jora Singh ....Appellant VERSUS Ajmer Kaur and others ....Respondents CORAM:- HON'BLE MR. JUSTICE MAHESH GROVER Present:- Mr. Jasbir Rattan, Advocate for the appellant. MAHESH GROVER, J This appeal by the plaintiff is directed against the judgement of the learned Trial Court dated 12.9.2007 and that of the First Appellate Court dated 26.9.2008. The case of the plaintiff-appellant is that he was the owner of the suit property regarding which the respondent fraudulently got an agreement to sell executed in his favour on the pretext of getting a lease deed executed. Subsequently, a collusive decree was suffered on 25.8.1987 in civil suit no. 635 of 1987 and the property was transferred to the respondent. The case as further set up by the appellant is that the said decree was also result of fraud and that no title could be passed on to the respondent for the reason that it was unregistered document. The respondent who contested the suit took up a plea that there was a valid agreement to sell in his favour executed by the appellant. The fraud as alleged was denied. It was further pleaded that on the basis of consent decree the revenue entries have also been entered in his favour and RSA No. 937 of 2009(O&M) 2 that the appellant was in knowledge of the passing of the decree from the very beginning and the suit has been filed belatedly in the year 2001. It was further pleaded that his possession is protected under Section 53A of the Transfer of Property Act as handing over of the possession was in pursuance of the part performance of the agreement. The decree was suffered on the basis of the family settlement which came into existence subsequently. Both the parties went to trial on the following issues:- 1. Whether the decree passed in civil suit no. 635 of 1987 titled as Gurcharan Singh versus Zora Singh is illegal, null and void and liable to be set aside on the grounds mentioned in para no.6 of the plaint?OPP. 2. Whether the plaintiff is co-owner in the suit property?OPP. 3. If issue nos. 1 and 2 are proved in affirmative, whether the plaintiff is entitled for the relief claimed?OPP. 4. Whether the suit of the plaintiff is barred under Order 23 Rule 3-A of CPC?OPD. 5. Whether the plaintiff is estopped from filing the suit by his own act and conduct?OPD. 6. Whether the decree was suffered by the plaintiff voluntarily and is legal and not liable to be set aside?OPD. 7. Whether the suit of the plaintiff is time barred?OPD. 8. Relief. The Trial Court as also the First Appellate Court dismissed the suit of the plaintiff which has resulted in filing of the present regular second appeal. RSA No. 937 of 2009(O&M) 3 It was contended by the learned counsel for the appellant that the entire transaction is a result of fraud and mis-representation and, therefore, the proceedings are vitiated. The contentions which were raised more or less conform to the pleadings which were raised in the suit. I have heard learned counsel for the appellant and have perused the impugned judgments. The appellant has raised a plea of fraud and mis-representation to say that on the pretext of getting a lease deed executed an agreement to sell was executed and this has resulted in fraud being practised upon him. I am afraid the contention is totally mis-placed. Even if it is to be accepted that the fraud was practised upon the appellant yet no title was passed on the respondent on the basis of this agreement. The appellant voluntarily and deliberately suffered a decree in favour of the respondent in the year 1987. He has not been able to produce any evidence to prove that this decree was also result of fraud. The plea of fraud in so far as execution of the document is concerned is therefore rendered inconsequential. That apart, the decree was sought to be challenged belatedly in the year 2001 when the decree itself was suffered in the year 1987. There is no explanation as to how this challenge was made at such a belated stage. In so far as the plea of registration of decree is concerned it does not lie in the mouth of the appellant to question the same as it was he voluntarily suffered a decree and is unable to show that any fraud was practised upon him. The facts reveal that it is the appellant who in first parting with the possession in favour of the respondent voluntarily and then seeking to revoke it by raising the plea as raised in the suit who has tried to be dishonest. No substantial question of law has been shown to have arisen RSA No. 937 of 2009(O&M) 4 in the present appeal for consideration of this Court. That apart the appeal is barred by delay of 5 days in filing which has not been explained satisfactorily and the same being devoid of any merit is hereby dismissed. March 04, 2009 (Mahesh Grover) rekha Judge