RSA No. 5081 of 2010(O&M) 1 In the High Court for the States of Punjab and Haryana at Chandigarh … RSA No. 5081 of 2010(O&M) Date of decision: May 26,2011 Capt. Bhupinderjit Singh ..Appellant Versus Kuldip Singh and others ..Respondent Coram: Hon'ble Mr. Justice L.N. Mittal Present: Mr. Arvind Singh, Advocate for the appellant ... L.N.Mittal,J.(Oral) C.M.No.14957-C of 2010 Application is allowed as prayed for. RSA No. 5081 of 2010 Capt. Bhupinderjit Singh plaintiff No.2 has filed the instant second appeal after having remained unsuccessful in both the courts below. The suit was filed by proforma respondent No.11-Jatinderjit Singh plaintiff No.1 and appellant Bhupinderjit Singh plaintiff No.2 against respondents No.1 to 10 as defendants. Respondents No. 7 to 10 were impleaded as proforma defendants. Plaintniffs and defendant Nos. 8 to 10 are sons of Piara Singh, whereas defendant No.7 is widow of Piara Singh. Suit on behalf of plaintiff No.1 was dismissed as withdrawn by the trial Court vide order dated 13.9.2005. Plaintiffs in the suit challenged consent decree dated 5.8.1995 passed in Civil Suit No. 518 of 1995 titled as Kuldip Singh etc. v. Smt. Parkash Kaur etc. by learned Sub Judge Ist Class, Kurukshetra. In the said suit, defendants No.1 to 6 herein were plaintiffs, whereas plaintiffs and proforma defendants No. 7 to 10 herein were defendants. Parkash Kaur defendant No.7 herein who is mother of plaintiffs and defendants No. 8 to 10 herein was their, general attorney vide Power of Attorney dated 7.7.1995 and appeared for herself and as attorney of the remaining defendants of the said suit and suffered the impugned consent decree regarding suit land. Defendants No. 1 to 6 herein were declared to be owners in possession of the suit land vide said consent decree. RSA No. 5081 of 2010(O&M) 2 It is also undisputed that defendants No.1 to 6 are first cousins of the plaintiffs as submitted by counsel for the appellant. The plaintiffs challenged the consent decree on different grounds including the ground that the decree was suffered on the basis of factually incorrect facts pleaded in the plaint of suit No. 518/95. It was also alleged that plaintiffs never executed the alleged general power of attorney dated 7.7.1995 in favour of their mother. It was also pleaded that the decree required compulsory registration but it is unregistered. Proforma defendants No. 7 to 10 were proceeded ex parte. Defendants No.1 to 6 contested the suit and controverted the grounds pleaded by the plaintiffs to challenge the consent decree. It was pleaded that plaintiffs and defendants No. 8 to 10 had executed general power of attorney dated 17.7.1995 in favour of their mother defendant No.7 and the consent decree was validly suffered. Learned Civil Judge (Junior Division), Kurukshetra vide judgment and decree dated 22.2.2008 dismissed the plaintiff's suit. First appeal preferred by plaintiff No.2 has been dismissed by learned Additional District Judge, Kurukshetra vide judgment and decree dated 24.12.2009. Feeling aggrieved, plaintiff No.2 has preferred the instant second appeal. I have heard learned counsel for the appellant and perused the case file. The plea of the plaintiffs that there was no family settlement and the amount of `9 lacs was never paid as pleaded in the plaint of suit No. 518/95 and possession of the suit land was never handed over to defendants No. 1 to 6, cannot be accepted because the consent decree cannot be challenged on the ground that it was based on incorrect facts. Challenge to the consent decree on this ground is barred by resjudicata because the consent decree finally adjudicated the factual position pleaded in the suit in which the decree was passed. The said facts cannot be reopened and re-adjudicated in subsequent suit on the ground that the facts pleaded in the previous suit were not correct. In RSA No. 5081 of 2010(O&M) 3 this view, I am supported by judgment of this court in Harpal Singh and others v. Smt. Ram Piari and others-1981 PLJ 492. Learned counsel for the appellant vehemently contended that there are reports of two hand writing experts examined by the plaintiff. N.K. Jain PW2 compared the signatures of both the plaintiffs and opined that their alleged signatures on the power of attorney did not match with their specimen signatures, whereas, R.D. Babbar PW4 compared signatures of defendant No.9 on the power of attorney and opined that his alleged signatures on the power of attorney did not match his specimen signatures. It was accordingly contended that the power of attorney was not executed by the plaintiffs and therefore, plaintiffs' mother had no right to suffer the consent decree. I have carefully considered the aforesaid contention but it cannot be accepted. Defendant No. 9 has stepped into the witness box and deposed that he and all his brothers i.e., plaintiffs and defendants No. 8 to 10 had executed the power of attorney in question which bears their signatures. Parkash Kaur defendant No. 7 (attorney) mother of plaintiffs and defendants No. 8 to 10 also appeared in the witness box and supported the case of defendants No. 1 to 6 in the examination-in-chief, although in cross examination, she tried to wriggle out. Defendants have also produced other evidence including evidence from the bank regarding demand drafts of amount paid by defendants No. 1 to 6 herein to defendant No.7 Parkash Kaur. Payment of `9 lacs by defendants No. 1 to 6 to Parkash Kaur has been proved. Parkash Kaur further passed the amount of `1 lac out of it to plaintiff No.2-appellant by way of cheques. These payments support the version of contesting defendants regarding family settlement under which they had paid `9 lacs to defendant No.7 for and on behalf of plaintiffs and defendant Nos.7 to 10 . In view of relationship between the parties being first cousins, there could be a valid family settlement which did not require compulsory registration. Payment of `9 lacs would not depict that defendants No. 1 to 6 had actually purchased the suit land requiring compulsory registration. The amount was paid in terms of the RSA No. 5081 of 2010(O&M) 4 family settlement under which the suit land came to the share of defendants No. 1 to 6 who were already in possession thereof as according to plaintiffs' own version, they and defendants No. 7 to 10 were residing in Indore for 10/15 years before passing of the consent decree, whereas the suit land is situated in District Kurukshetra. Obviously, plaintiffs and defendants No. 7 to 10 were not in possession of the suit land and consequently judgment of Hon'ble Supreme Court in the case of K. Raghunandan & Ors. V. Ali Hussain Sabir & Ors. 2008 (3) R.C.R. (Civil) 699 regarding requirement of compulsory registration of the decree is not applicable to the instant case. As regards general power of attorney, defendant No. 7 appeared in the previous suit as attorney of plaintiffs and defendants No. 8 to 10 herein and suffered the consent decree. She has also appeared as witness in the instant suit and stated that she had been appointed attorney by plaintiffs and defendants No. 8 to 10, who are none else but her own sons. She has also proved the aforesaid power of attorney. In these circumstances, statements of hand writing experts examined by the plaintiff cannot be given undue importance. Defendant No.9 by direct evidence contradicted the opinion evidence of the said experts. Obviously, direct evidence has to be preferred to opinion evidence of experts. There is concurrent finding by both the courts below against plaintiff No.2-appellant. The said finding is based on appreciation of evidence and is not shown to be perverse or illegal nor it is based on misreading or misappreciation of evidence. There is no illegality or perversity in judgments of the Courts below so as to warrant interference in second appeal. No question of law, much less substantial question of law, arises for determination in this second appeal. The appeal is found to be meritless and is accordingly dismissed in limine. May 26,2011 (L.N.MITTAL) nk JUDGE