R.S.A.No.4221 of 2009 (O&M) 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH R.S.A.No.4221 of 2009 (O&M) Date of Decision: 23rd Nov.2009 Chhoti & Ors. .....Appellants. Versus Nand Singh & Ors. .....Respondents CORAM: HON'BLE MRS JUSTICE SABINA Present: Mr. A.S.Syan, Advocate for the appellants. Mr. Rakesh Gupta, Advocate for the respondents. * * * Sabina,J.(Oral) Plaintiffs filed a suit for declaration and permanent injunction which was dismissed by the Additional Civil Judge(Sr.Divn.)Patiala, vide judgment and decree dated 01.12.2004. Appeal filed by the plaintiffs against the said judgment and decree was dismissed by the learned Additional District Judge, Patiala, vide judgment and decree dated 05.02.2009. Hence, the present appeal by the plaintiffs. Brief facts of the case, as noticed by the lower Appellate Court in paras 2 to 5 of its judgment read as under: “2. The facts of the case of the plaintiffs/appellants are that the defendant no.1 and 3 are the sons of defendant no.2 and form a Joint Hindu property and also own Joint Hindi Family property. Defendant No.2 filed a suit for specific R.S.A.No.4221 of 2009 (O&M) 2 performance titled as “Hari Kishan Vs. Mohinder Singh” and defendant no.3 filed suit for possession against defendant no.2 titled as “Mohinder Singh Vs. Nand Singh”. In the suit filed as Mohinder Singh vs. Nand Singh filed by defendant no.3, in which defendants no.1 and 2 appeared. Defendant no.1 obtained decree from the court of Shri Tarsem Chand Mangla, Sub Judge III Class, Patiala, on 22.5.93 and also obtained another judgment from the court of Shri Gurnam Singh, Civil Judge, Junior Division, Patiala, on 17.1.1996. The plaintiffs came to know regarding the passing of said judgments and decree only on 23.5.96 when the plaintiff obtained certified copy of the jamabandi. Both the defendants played fraud upon the court and concealed the material facts to the effect that Nand Singh has three more brothers and all are having same right, title, share and concern in the suit property, who have right to retain the property either through successor or as a matter of coparcenary. It was specifically settled that after the death of Hari Kishan Khasra no.693/283 (8) shall be divided in equal shares by all the four sons of Hari Kishan. Nand Singh was having power of attorney of Hari Kishan defendant no.2 to contest and prosecute two cases i.e Hari Kishan Vs. Mohinder Singh and Mohinder Singh Vs. Nand Singh. Taking the advantage of the confidence reposed by Hari Kishan in his favour, he got the entire land transferred in his name fraudulently, illegally by R.S.A.No.4221 of 2009 (O&M) 3 getting the decree challenged. This decree being a result of misrepresentation is void having no effect in the eyes of law. No family partition ever took place in which the entire land was given to defendant Nand Singh. Defendant No.2 had never agreed to transfer the land in favour of defendant No.1 but defendant no.1 with a view to grab the entire property got the decree in his favour without informing his other brothers. In fact, defendant no.2 is an old, sick and weak person, who could not appear in the court. He usually signed the documents but in this case, the thump impression was procured from defendant no.2 by defendant no.1 or the thump impression was marked at the instance of defendant no.1. Defendant no.1 misutilizing his position, is bent upon to dispossess the plaintiff from the suit land and to sell the same to which he has no right, title or authority. Hence, the cause of action and the suit. 3. The defendant no.1 filed the written statement taking preliminary objections that the suit is not maintainable. On merits, it has been admitted that the plaintiffs, defendant no.1 and 3 are the sons of defendant no.2. Defendant no.1 had approached Sh.Pargat Singh Bhangu, Advocate, District Courts, Patiala, regarding the transfer of land in the name of defendant no.1 from the name of defendant no.2 but the learned counsel wrongly mentioned in both the suits that the property is the Joint Hindu Family and is ancestral and R.S.A.No.4221 of 2009 (O&M) 4 coparcenary. This property was purchased by defendant no.1 vide agreement dated 19.2.60 and the sale deeds were got registered in the name of defendant no.2.Thereafter defendant no.2 has transferred the same in the name of defendant no.1. It has been averred that no family partition took place between the parties as alleged. Defendant no.2 had himself appeared in the court and given a statement regarding transfer of the land in favour of the plaintiff. Other allegations were denied and prayer for dismissal of the suit was thus made. 4. Defendant no.2 filed separate written statement stating that the decrees dated 22.5.93 and 17.1.96 were rightly passed. Defendant No.2 is the exclusive owner of the suit property, which he has transferred to defendant no.1. 5. Defendant No.3 filed separate written statement stating that the suit for specific performance had been dismissed while suit for possession was decreed against defendant no.1. Their father is acting on the advice of defendant no.1 who is in a position to dominate the will of defendant no.2. It has been further averred that the defendant no.3 had no prior knowledge about the passing of the decree dated 22.5.93 by the court. On the pleadings of the parties, the following issues were framed by the trial court: “1.Whether the judgment and decree dated 22.5.93 and 17.1.96 are result of fraud and not binding upon R.S.A.No.4221 of 2009 (O&M) 5 the rights of the plaintiff as well as defendant No.3?OPP. 2. Whether the plaintiffs are entitled for permanent injunction as prayed for ?OPD. 3. Whether the plaintiffs are entitled for a consequential relief as prayed for?OPP. 4. Whether the suit is not maintainable in the present form?OPD 5. Whether this court has no jurisdiction to try the present suit?OPD 6. Relief.” After hearing the learned counsel for the parties, I am of the opinion that the instant appeal is devoid of any merit and deserves to be dismissed. By way of the present suit, plaintiffs had challenged the judgment and decree passed in Civil Suit No.125T/14.11.1992/12.05.1993 decided on 22.05.1993 and the judgment and decree passed in Civil Suit No.272 of 15.09.1995 decided on 17.01.1996 were result of fraud and were not binding on the plaintiffs. The case of the plaintiffs was that the property in dispute was ancestral and coparcenary property and hence, the impugned judgments and decrees were liable to be set aside. However, the plaintiffs failed to establish that the property in dispute was ancestral and coparcenary property of the parties. The plaintiffs failed to lead any evidence to the effect by producing revenue record on the file that the suit property was ancestral/coparcenary property in the hands of Hari Kishan. Merely,oral statements of the witnesses examined by the R.S.A.No.4221 of 2009 (O&M) 6 plaintiffs to the effect that the land in question was ancestral and coparcenary property of the parties was not sufficient. It has been noticed by the learned Additional District Judge that as per mutation Ex.DX the land had been purchased by Hari Kishan for a consideration of Rs.2500/- vide sale deed dated 01.09.1960. Mutation Ex,D2 revealed that Hari Kishan had purchased land from Hadam Amad Hussain. In these circumstances, the property in the hands of Hari Kishan was self- acquired property and he could alienate the same in the manner he liked. Plaintiffs also failed to establish the plea of fraud taken by them at the time of passing of the impugned decrees. At the time of passing of the impugned decrees, Hari Singh had appeared in the court and had made statements. On the basis of said statements, the decrees in question were passed. In these circumstances, the courts below had rightly dismissed the suit of the plaintiffs. No substantial question of law arises in this case. Accordingly, this appeal is dismissed. 23rd Nov.2009 (SABINA) Seema-II Judge