RSA No. 3512 of 2011 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. RSA No. 3512 of 2011 Date of decision: 19.10.2011 Om Parkash … Appellant Versus Pritam Singh and others … Respondents Present: Mr. Madan Gupta, Advocate, for the appellant. … ARVIND KUMAR, J: This second appeal is by defendant No.1 Om Parkash preferred against judgment and decrees of both the Courts below decreeing the suit of the plaintiffs. It is apparent that the plaintiffs filed the suit and challenged the ex-parte decree dated 3.3.1989 passed in favour of defendant Om Parkash by virtue of which he was declared owner of the suit property. It was the case of the plaintiffs that in the suit in which decree dated 3.3.1989 was passed, was filed against a dead-person, namely, Budhu, his father, who died in the year 1958. Since the decree was based upon fraud and misrepresentation, therefore, the same as well as consequent mutations are not binding upon them and also sought joint possession of the suit land along with defendants 4 to 9. The defendant No.1 took up the stand that his physical possession over the suit land is adverse, exclusive, continuous and hostile since the last 46/47 years. The decree dated 3.3.1989 was in the knowledge of defendants therein and by virtue of aforesaid decree, he became owner of the suit property. After contest, the learned trial Court held that defendant Budhu died much prior to the passing of the impugned decree i.e. on RSA No. 3512 of 2011 2 5.2.1958, and as such, the same is a nullity and not binding on the rights of the plaintiffs as well as defendants 4 to 9. It was accordingly held, that the plaintiffs and defendants 4 to 9 are still the owners of the suit property of their share in the suit and are entitled to joint possession notwithstanding the decree passed against them and the mutation and subsequent revenue entries are liable to be corrected. The appeal filed by defendant No.1 has been dismissed and the findings of the learned trial Court have been affirmed, leading to the institution of the present second appeal. Counsel for the appellant-defendant No.1 has contended that the suit of the plaintiffs was barred by limitation as the decree passed in the earlier suit in 1989 was challenged in the year 2001. Counsel further contended that defendant-appellant was in possession of the land for the last 40 years and qua that fact, the Courts below have given a perverse finding. It is also contended that while hearing the appeal, the first appellate Court did not refer to all the issues which were framed by the trial Court. Counsel specifically tried to show that there was no mention of issue No.2-A in the judgment and on this basis, he tried to raise an argument that the first appellate Court dismissed the appeal without application of mind. After hearing the counsel for the appellant, I am of the view that there is no merit in the appeal. Both the Courts below have concurrently held that Puran Chand, father of defendant No.1, as per revenue record was a tenant in the land in dispute. During his life time, he never challenged the entry with regard to tenancy. Once it is established that there was a relationship of landlord and tenant, the plea raised that defendant-appellant was in possession of the land in dispute for the last 40 years and thus, entitled to benefit of adverse possession, is not maintainable. So far as perversity of recording a finding on the issues struck by the Courts below is concerned, that argument is also not sustainable because admittedly, decree dated 3.3.1989 on the basis of which the appellant had got mutations and other revenue entries recorded in his favour was obtained against a dead person, namely, Budhu, who is proved to have died on 5.2.1958, i.e. much prior to the filing of suit by the defendant-appellant in the year 1987. So far as the contention raised by the counsel for the appellant with regard to limitation of suit is concerned, the Courts below after following the laid down by this Court in Sarwan Kumar v. Shyam RSA No. 3512 of 2011 3 Mangla 1990(1) PLR 152 and Bhim Singh and others v. Zile Singh and others 2006(1) PLJ 420, have rightly held that where the decree is a nullity having been obtained by playing fraud, it can be challenged without bar of limitation as and when the affected person comes to know about the same. In the present case, the decree had been obtained against dead person, namely, Budhu, in the year 1989 without impleading the plaintiffs as well as other legal representatives as parties to the suit. The plaintiffs had come to know about the decree passed against Budhu in 1989 when they went to Halqa Patwari in 2001 for obtaining jamabandi. On the basis of this plea taken by the plaintiffs, both the Courts below have held the suit to be within limitation of three years from the date of knowledge. So far as the argument raised by the counsel for the appellant that there was non-application of mind by the first appellate Court while deciding the appeal is concerned, the same is also not sustainable because all the pleas raised before the Court had been dealt with at length by the Presiding Officer while recording his finding. In this regard, a reference may be made to para 13 of the judgment wherein it has been held that earlier decree obtained in civil suit No. 809 of 1987 on the ground that the defendant-appellant was in possession of the land in dispute for the last more than 30 years, has been held to be a decree passed against a dead person and ineffective. Moreover, it has been held that defendant-appellant had stepped into the shoes of his father and had become co-sharer with other co-owners and was holding possession. The first appellate Court has held that being a co-sharer, his possession cannot be hostile and adverse to other co-owners. It clearly shows that all the issues as raised were fully considered and answered accordingly. No other argument has been argued. The arguments raised before this Court are based upon concurrent findings and no question of law, muchless substantial, arises which requires consideration in the present appeal. Accordingly, there being no merit in the present appeal, the same is hereby dismissed in limine. October 19, 2011 ( ARVIND KUMAR) JS JUDGE