Punjab-Haryana High Court
Amar Singh And Others vs Suresh Kumar And Another on 9 July, 2012
Author: Tejinder Singh Dhindsa
Bench: Tejinder Singh Dhindsa
RSA No.2345 of 2010 (O&M) -1-
IN THE HIGH COURT OF PUNJAB AND HARYANAAT
CHANDIGARH
RSA No.2345 of 2010 (O&M)
Date of Decision: JULY 9, 2012
Amar Singh and others .......Appellants
Versus
Suresh Kumar and another .......Respondents
CORAM:- HON'BLE MR.JUSTICE TEJINDER SINGH DHINDSA
Present: Mr.VK Jindal, Advocate for the appellants.
Mr.GS Jaswal, Advocate for the respondents.
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TEJINDER SINGH DHINDSA, J.
The plaintiffs filed a suit for declaration and possession in terms of pleading that plaintiff No.1 was the owner of land measuring 3 K being 3/16th share of total land measuring 16 K situated at village Kalal Majra, Tehsil Thanesar, District Kurukshetra. Declaration was sought in terms of impugning judgment and decree dated 6.6.1995 passed in civil suit No.539 of 1995 titled as 'Amar Singh and others v. Suresh Kumar' passed by the Senior Sub Judge, Kurukshetra stating the same to be illegal, null and void on the ground of fraud. It was pleaded that the plaintiffs enjoyed a relationship of trust and faith with the defendants and in the year 1995, the RSA No.2345 of 2010 (O&M) -2- defendants had approached plaintiff No.1 regarding taking of suit land on lease for a term of six years commencing from June 1995 to June 2001. In this regard, lease money of Rs.18,000/- was paid by the defendants in advance and it was asserted that since the defendants wanted to save the stamp and registration expenses, they coerced plaintiff No.1 for going to the Sub Registrar. It was further pleaded that plaintiff No.1 was brought to the Court complex on 3.6.1995 under the influence of liquor whereupon his signatures were obtained on some written as also blank papers. It was further pleaded that plaintiff No.1 was even taken inside a Court room accompanied by an Advocate and his signatures were again obtained on certain papers. The plaintiffs asserted that he never had any doubt as regards the intentions of the defendants and it was only upon expiry of the lease period from July 2001 when he asked the defendants to hand over possession back to him that the defendants kept putting off the matter on one pretext or the other. The plaintiff asserted that it was in December 2001 that the defendants openly declared that they have become owners of the suit land. Accordingly, the case set up by the plaintiffs was that the impugned judgment and decree dated 6.6.1995 was a result of fraud and was not binding on the rights of the plaintiffs. It was further pleaded that the version of a family settlement having been entered into, as set up in the earlier suit, was totally false as the defendants are complete strangers to the family of the plaintiffs. Plaintiffs further asserted that since the defendants did not have any pre-existing right or interest in the suit property and since the impugned decree had also not been registered, as such, no right had come to vest with the defendants as regards the suit land on the basis of RSA No.2345 of 2010 (O&M) -3- such impugned decree. The consequential relief of permanent injunction was also prayed for restraining the defendants from alienating the suit land and a decree for possession was also prayed for directing the defendants to hand over the possession of the suit land to them.
2. The defendants contested the suit in terms of filing a written statement stating that the impugned judgment and decree was legal, valid and the same was binding on the plaintiffs. It was stated that plaintiff No.1 had himself appeared in the Court in the previous suit, had engaged a counsel and even filed a written statement admitting the case of the plaintiffs (in the previous suit) on account of his free will and consent and without any undue influence. It was further stated that the registration of the impugned judgment and decree was required as per law.
3. Upon the pleadings of the parties, the following issues were struck by the trial Court:
1. Whether the judgment and decree dated 6.6.1995 passed by the court of Mrs.Raj Rahul Garg, the then Senior Sub Judge, Kurukshetra in civil suit No.539 of 1995 are null and void and not binding on the plaintiffs?OPP
2. If issue No.1 is proved whether the plaintiffs is entitled to injunction and possession of the suit land as prayed for?OPP
3. Whether the plaintiffs have no locus standi and cause of action to file and maintain the present suit?OPD
4. Whether the plaintiffs have concealed the true and material facts from the court?OPD
5. Whether the suit of the plaintiffs is time barred?OPD
6. Whether the suit of the plaintiffs is not properly valued for the purpose of court fees and jurisdiction? OPD
7. Whether the present suit is hit by the principle of res-RSA No.2345 of 2010 (O&M) -4-
judicata?OPD
8. Whether the suit is bad for mis-joinder and non-joinder of necessary parties?OPD
9. Relief.
4. The trial Court vide judgment dated 27.5.2009 dismissed the suit filed by the plaintiffs in terms of returning a finding that the plea of fraud stood not proved. Still further, the trial Court held that the impugned judgment and decree dated 6.6.1995 could not be set aside only on the ground of its non-registration. It was further held by the trial Court that the limitation to file the suit was three years from the date of passing of the impugned judgment and decree dated 6.6.1995 and since the present suit had been instituted on 21.3.2002, as such, the same was barred by time. It may, however, be noticed that a specific finding was recorded by the trial Court to the effect that the plaintiff was not a close relative of the defendants, and in this regard, the trial Court had specifically referred to the testimony of defendant No.3, namely, Jai Singh who had clearly admitted that his mother and the mother of plaintiff No.1 were not real sisters but they have assumed themselves to be the sisters on the basis of belonging to the same Gotra.
5. The plaintiff-appellants aggrieved of the judgment passed by the trial Court preferred a civil appeal before the Additional District Judge, Kurukshetra. It would be apposite to notice that the findings of the trial Court insofar as holding the defendants not to be relative of the plaintiffs was not assailed by the defendants and as such, such finding attained finality. The lower Appellate Court vide judgment dated 11.5.2010 has accepted the appeal filed by the plaintiffs thereby setting aside the judgment RSA No.2345 of 2010 (O&M) -5- dated 27.5.2009 passed by the trial Court, declaring the impugned judgment and decree dated 6.6.1995 to be illegal, null and void, holding the same to be fraudulent and not binding on the rights of the plaintiffs. Further a decree for possession on the basis of title has also been passed in favour of the plaintiffs. It is under such circumstances that the defendant-appellants are in second appeal before this Court.
6. I have heard Mr.VK Jindal, Advocate for the appellants and Mr.GS Jaswal, Advocate for the respondents.
7. Learned counsel appearing for the appellants has vehemently argued that a consent decree was open to challenge only on the ground of fraud and mis-representation, but such a consent decree could not be impugned on the ground that the facts that had been pleaded in the suit which led to the passing of the consent decree were erroneous and incorrect. Accordingly, learned counsel would contend that since the earlier decree dated 6.6.1995 had been passed on the basis of family settlement, such issue could not be opened up afresh in the subsequent suit wherein such consent decree was assailed. In furtherance of the submission, the learned counsel would place reliance upon judgment of this Court in Murti v. Jai Ram & Ors., 2011(4) Civil Court Cases 124 (P&H) as also judgment rendered in Lichhami Devi & Ors. v. Smt.Bharpai & Ors., 2011(4) Civil Court Cases 156 (P&H). Learned counsel for the appellants would further place reliance upon a judgment of this Court in Jai Lal v. Chhattar Singh & Ors., 2005 (1) Civil Court Cases 779 (P&H) to contend that it was not necessary for a family settlement to be recorded in writing and a consent decree passed on the basis of a family settlement does not create rights for RSA No.2345 of 2010 (O&M) -6- the first time and as such, such consent decree would not require registration. In support of such submission, further reliance has been placed upon a judgment of Apex Court in Som Dev and ors. v. Rati Ram and anr., 2006(4) RCR (Civil) 303.
8. Per contra, Mr.Jaswal, learned counsel appearing for the appellants would contend that a family settlement could have been entered into only if a party to such settlement has a lawful right over the property and in support of such submission placed reliance upon a judgment of Hon'ble Apex Court in Hari Chand (dead) through LRs. v. Dharampal Singh Baba & Ors., 2007(4) Civil Court Cases 529. Learned counsel would further argue that in the facts of the present case, a fraud had been played upon the Court in procuring the impugned consent decree dated 6.6.1995 inasmuch as the same was based on the version of a family settlement having been entered between the parties and such a judgment and decree based upon fraud amounts to nullity. Learned counsel would further submit that the judgment passed by the lower Appellate Court is well- reasoned and based on due appreciation of oral and documentary evidence adduced on record and as such, would call for no interference in second appeal by this Court.
9. I have given my thoughtful consideration to the submissions made by learned counsel for the parties and have minutely perused the pleadings on record. However, for the reasons recorded hereinafter, I find that the present second appeal must fail as it is devoid of merit.
10. The lower Appellate Court while reversing the findings of the trial Court on the ground of fraud having been played on the Court while RSA No.2345 of 2010 (O&M) -7- passing the impugned judgment and decree dated 6.6.1995 has furnished cogent and valid reasoning upon due appreciation of evidence. The certified copies of the impugned judgment and decree dated 6.6.1995 were adduced on record as Exhibits P3 and P4 respectively. Even the certified copies of the plaint in the earlier suit as also the written statement were placed on record as Exhibits P5 and P6. The main case file pertaining to the earlier suit had also been summoned and had been brought by Vinod Bhushan, Clerk, Record Room, DC Office while appearing as DW1. The lower Appellate Court has recorded a finding of fact that the previous suit had been instituted on 30.5.1995 by the present appellants against the respondent (plaintiff No.1 in the present suit). The trial Court in the previous suit had issued summons to the defendants therein i.e. the present respondents for 7.10.1995, on filing of process fee. No process fee had, in fact, been filed. After institution of the previous suit on 30.5.1995 and the same having been adjourned to 7.10.1995 for summoning of the defendants therein (present respondents), the case file of the said suit was taken up on 3.6.1995 purportedly on an application filed by the defendants in that suit (present respondents). Clearly, when no summons had been issued by the Court to the present respondents in the earlier suit, there was no occasion for them to come in knowledge about the filing or pendency of suit. Still further, even though the record of the main file pertaining to the earlier suit revealed that the file had been taken up by the trial Court on 3.6.1995 on an application filed by the defendants therein (present respondents), it could not be explained as to how the plaintiffs in that suit i.e. the present appellants became aware that the date in the suit stood pre-poned from RSA No.2345 of 2010 (O&M) -8- 7.10.1995 to 3.6.1995. The aforementioned factual situation was a clear pointer to a situation of fraud having been initiated at the hands of the present appellants.
11. Secondly, the lower Appellate Court has clearly noticed the pleadings as regards the earlier suit wherein the plaintiffs therein (present appellants) had clearly based their claim on the basis of a family settlement having been arrived at between the parties and further the trial Court had been made to believe that the parties to the suit were close relatives and on such premise, the Court had passed the decree dated 6.6.1995 on the basis of such alleged oral family settlement. It is on such reasoning that the lower Appellate Court has upheld the plea of fraud that had been set up by the plaintiff-respondents as regards the impugned judgment and decree dated 6.6.1995 is concerned. I do not find any patent infirmity in such conclusion drawn by the lower Appellate Court.
12. The findings of the trial Court in the present suit holding the defendants i.e. the present appellants and the plaintiff-respondents not to be close relatives has gone unassailed. In law, the family settlement could have been entered into only between the parties who have a lawful right over the property in question and it is only in such eventuality that a family settlement could have been executed, be it oral. There is no difficulty with the proposition canvassed by the learned counsel appearing for the appellant that a consent decree passed on the basis of family settlement could not be re-opened in a subsequent suit except on the ground of fraud and mis- representation and an issue of a family settlement raised in the earlier suit could not be re-agitated in the subsequent suit. Likewise, even the RSA No.2345 of 2010 (O&M) -9- contention raised by the learned counsel for the appellant to the effect that a consent decree on the basis of a family settlement between members of the family would not require registration has merit. However, such submissions are mis-placed in the context of the facts of the present case. Admittedly, the appellants herein have been held not to be close relations of the plaintiff-respondents. That being so, there was no question of any family settlement having been entered into validly between the parties. Consequently, even the previous suit in which the impugned consent decree dated 6.6.1995 had been procured was clearly on the basis of a mis- representation and a fraud having been played on the Court inasmuch as the previous suit had been instituted on the basis of such alleged family settlement. It has been held by the Hon'ble Apex Court in the case of Santosh v. Jagat Ram and another, 2010 (2) RCR (Civil) 206 that a judgment and decree obtained by playing fraud upon the Court would be a nullity and non-est in the eyes of law and it had been held in the following terms:
"A fraud puts an end to everything. It is a settled position in law that such decree is nothing, but a nullity. It has come in the evidence that when the respondents herein started disturbing the possession of the appellant and also started bragging about a decree having been obtained by them, the appellant chose to file a suit. In that view, her suit filed in 1990 would be absolutely within time. The casual observation made by the High Court that her suit would be barred by limitation, is also wholly incorrect."
13. As regards the issue of limitation, it had been categorically pleaded by the plaintiff-respondents in the present suit that it is only in the RSA No.2345 of 2010 (O&M) -10- month of December 2001 that they had become aware of the impugned consent judgment and decree dated 6.6.1995. Accordingly, the lower Appellate Court has rightly reversed the finding of the trial Court in holding the suit that had been instituted on 21.3.2002 to be well within the period of limitation, the same to be computed to the date of knowledge to the impugned judgment and decree.
14. For the reasons recorded above, the impugned judgment and decree dated 11.5.2010 passed by the Additional District Judge, Kurukshetra does not call for any interference. The present second appeal must fail as it raises no question of law, much less substantial question of law.
15. The present appeal is, accordingly, dismissed.
16. Appeal dismissed.
( TEJINDER SINGH DHINDSA )
JULY 9, 2012 JUDGE
SRM
Note: Whether to be referred to Reporter? Yes/No