Punjab-Haryana High Court
Smt. Jiwani vs Jai Lal And Anr. on 8 September, 1994
Equivalent citations: (1995)109PLR104
JUDGMENT N.K. Kapoor, J.
1. This is unsuccessful plaintiff s Regular Second Appeal challenging the judgment and decree of the Courts below.
2. The appeal was admitted and was ordered to be heard with RSA No. 3511 of 1986. Regular Second Appeal bearing No. 3511 and 3512 of 1986 have been decided by the Division Bench on 11.8.1988. Since the case file of the present regular second appeal was misplaced in the record room, the same has been listed for final disposal.
3. Plaintiff filed a suit for declaration and possession on the ground that the decree dated 10.6.1977 was procured by the defendant by playing fraud upon her and thus the same is null and void and so it does not affect her proprietary as well as possessory right in respect of the suit land.
4. Defendant put in appearance, filed written statement and controverted the various material averments made in the plaint. It was specifically denied that any fraud was played or it was a case of misrepresentation. Other points with regard to the locus standi to file the present suit; suit being time barred as well as not maintainable were raised.
5. On the pleadings of the parties, following issues were framed:-
1. Whether the decree dated 10.6.1977 passed in civil suit No. 195 of 1977 titled 'Jaimal v. Jiwani' is liable to be set aside on the grounds mentioned in the plaint? OPP.
2. Whether the plaintiff has no cause of action to file the present suit ? OPD.
3. Whether the suit is time barred. OPD.
4. Whether the suit is not maintainable in the present form ? OPD.
5. Whether the suit is not legally maintainable ? OPD.
6. Whether the suit is liable to be dismissed on account of delay and latches ? OPD.
7. Whether the suit is barred by principle of res judicata ? OPD.
8. Relief.
6. The trial Court on the basis of documentary as well as oral evidence decided issue No. 1 against the plaintiff holding that the judgment and decree dated 10.6.1977 are legal, valid and binding upon the plaintiff. It was also recorded by the trial Court that no arguments were advanced by the counsel for the defendant with regard to issues No. 2 to 7. Resultantly, the suit of the plaintiff was dismissed on 10.11.1986.
7. The lower appellate Court once again examined the matter on facts as well as ok law. The Court after reappraising the evidence came to the conclusion that the plaintiff voluntarily appeared in the Court, made her statement, which fact is duly proved on record. The Court further held that there was no element of fraud or misrepresentation on the part of Jai Lal, who, in fact, is son of the appellant-plaintiff. Thus, finding in respect of issue No. 1 was affirmed. Other issues were not pressed by the counsel for the appellant and so these too were affirmed. Thus the appeal was also dismissed.
8. This appeal was admitted in view of the reference order in Regular Second Appeal No. 3511 of the 1986 wherein the learned Judge referred the matter to the Division Bench for adjudication i.e. whether a consent decree involving immovable properly of the value of more than Rs. 100/- would require registration or not.
9. This precise question was considered in case reported as Gurdev Kaur and Ors. v. Mehar Singh and Ors., 1989 P.L.J. 182, wherein it was held that compromise or consent decree does not require registration, even if it creates title, in respect of immovable property of the value of Rs. 100/- or more, provided it is subject matter of the suit; secondly, compromise or consent decree can be set aside on one of the ground, on which a contract can be set aside, namely, if obtained by 'fraud' 'misrepresentation' or 'coercion' etc. In the instant case, both the Courts after appraising the evidence have come to the conclusion that the plea of fraud set up by the plaintiff has not been proved. This being essentially a finding of fact cannot be interfered with under section 100 of the Code of Civil Procedure. Even otherwise, the suit was liable to be dismissed on the ground of limitation. As per averment in the plaint, plaintiff suffered a decree on 10.6.1977 whereas the suit was filed on 4.4.1983 i.e. long after the expiry of period of limitation. Thus, finding no merit in the appeal, the same is dismissed. Parties will, however, bear their own costs.