R.S.A. No. 1912 of 2009 1 IN THE PUNJAB AND HARYANA HIGH COURT AT CHANDIGARH R.S.A. No. 1912 of 2009 (O&M) Date of Decision : 6.5.2009 Dalip Singh .......... Appellant Versus Niranjan Singh & others ...... Respondents CORAM : HON'BLE MR. JUSTICE VINOD K. SHARMA Present : Mr. Ram Chander, Advocate for the appellant. **** VINOD K. SHARMA, J. (ORAL) C.M. No. 5610-C of 2009 This is an application under Section 149 of the Code of Civil Procedure for condoning the delay of 38 days in making good the deficiency in court fee. It has been averred in the application that in-advertantly the court fee was not affixed at the time of filing of the appeal and the court fee has been affixed with a delay of 38 days, which is not intentional but bona fide mistake. For the reasons stated in the application, the delay of 38 days in making good deficiency in court fee is condoned. C.M. stands allowed. R.S.A. No.1912 of 2009 This regular second appeal is directed against the judgment and R.S.A. No. 1912 of 2009 2 decree dated 23.12.2008 passed by the learned Courts below dismissing the suit filed by the plaintiff / appellant to challenge the decree suffered by the plaintiff, to be null and void being outcome of fraud and misrepresentation. A plea was also raised, that the decree was not valid for want of registration. The learned trial Court dismissed the suit by holding, that it is not open to the appellant / plaintiff to challenge the decree suffered by him. It was also held, that the suit as framed was not maintainable, as admittedly the plaintiff / appellant was not in possession of the suit property. In absence of possession, the suit for declaration and permanent injunction was not maintainable. Though there could be some substance in the contention regarding registration, but in view of the settled law that it is not open to the plaintiff / appellant to challenge the decree for want of registration after having suffered the same himself. Furthermore keeping in view the fact, that the learned lower appellate Court rightly held, that the suit was time barred. No fault can be found with the judgment and decree passed by the learned Courts below. The learned counsel appearing on behalf of the appellant contends that the appeal raises the following substantial question of law for consideration :- 1. Whether the decree obtained by fraud and misrepresentation which is otherwise bad for want of registration, could be sustained in law ? In support of the substantial question of law the learned counsel for the appellant contends, that the decree was obtained by father of the R.S.A. No. 1912 of 2009 3 defendant / respondent, by fraud and misrepresentation. It is contended that though under the decree the right was transferred for the first time, it was not got registered, therefore, no valid title could pass on to the defendant / respondents or his father. This plea of the learned counsel for the appellant cannot be accepted, as the learned Courts below rightly held, that the suit as framed, was not competent as the relief of possession was not sought, though defendant / respondents were in possession. The suit was also time barred , as it was filed after three years of knowledge as admittedly the mutation in favour of the predecessor-in- interest of the defendants was sanctioned in presence of the plaintiff / appellant. The suit otherwise also was not maintainable in view of the settled law that it was not open to the plaintiff to challenge the decree for want of registration having suffered the decree. The substantial question of law, raised does not arise for consideration in this appeal. No merit. Dismissed. 6.5.2009 ( VINOD K. SHARMA ) 'sp' JUDGE