Punjab-Haryana High Court
Har Narain And Another vs Revti Parkash And Others on 5 March, 2012
Author: L.N. Mittal
Bench: L.N. Mittal
Regular Second Appeal No. 851 of 2012 -1-
IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH
Regular Second Appeal No. 851 of 2012
Date of decision : March 05, 2012
Har Narain and another
....Appellants
versus
Revti Parkash and others
....Respondents
Coram: Hon'ble Mr. Justice L.N. Mittal
Present : Mr. Rakesh Kumar Sharma, Advocate, for the appellants
L.N. Mittal, J. (Oral)
Plaintiffs Har Narain and Lakshmi Chand sons of Aaram have filed this second appeal, having been non-suited by both the courts below.
Plaintiffs and defendants are sons and daughters of Aaram. Defendant no. 2 Smt. Mewa has since died and is represented by her son and legal representative Rajender respondent no. 2.
Plaintiffs obtained consent decree dated 21.4.1981 against their father Aaram thereby declaring the plaintiffs to be owners in possession of the suit land measuring 24 kanals 1 marla on the basis of alleged family Regular Second Appeal No. 851 of 2012 -2- settlement. Aaram, father of the parties, died on 18.12.1992, leaving behind the present parties and his widow Atlo as his legal heirs. Later on, Atlo also died. Plaintiff's case is that defendant no. 1 Revti Parkash obtained signatures/thumb impressions of plaintiffs and defendants no. 2 to 4 on the pretext of filing cases regarding land which was under occupancy tenancy of Aaram and his brother Balram. However, the said papers were misused by defendant no. 1 who by instituting suit No.132 of 3.4.1993 challenged earlier consent decree dated 21.4.1981 and obtained ex parte decree dated 1.6.1994 thereby setting aside decree dated 21.4.1981. Plaintiffs in the suit challenged said decree dated 1.6.1994 on the ground of fraud. It was pleaded that the plaintiffs never engaged any counsel in suit no. 132 of 1993 nor filed any written statement in the said suit admitting the claim of present defendant no. 1 (plaintiff in that suit) and that defendant no. 1 herein used blank signed papers and vakalatnama to obtain the decree.
Defendant no. 1 contested the suit and controverted the allegations of plaintiffs. It was pleaded that plaintiffs had obtained decree dated 21.4.1981 by fraud without impleading present defendants as party to the said suit and without knowledge of defendant no. 1 herein. Defendant no. 1 came to know of the said decree after death of his father. Thereupon he challenged the same by filing suit no. 132 of 1993 and the same was rightly decreed vide judgment and decree dated 1.6.1994. The said decree Regular Second Appeal No. 851 of 2012 -3- is legal and valid. Grounds to challenge the same were controverted.
Defendant nos. 2 to 4 in their written statement admitted the claim of the plaintiffs. However, later on, none appeared for defendants no. 3 and 4 and they were proceeded ex parte whereas defendant no. 2 died and it appears from the judgment of the trial court that her legal representative was not impleaded in the trial court.
Learned Additional Civil Judge (Senior Division), Gurgaon vide judgment and decree dated 17.11.2010 dismissed the plaintiffs' suit. First appeal preferred by plaintiffs has been dismissed by learned Additional District Judge, Gurgaon vide judgment and decree dated 17.11.2011. Feeling aggrieved, plaintiffs have filed this second appeal.
I have heard learned counsel for the appellants and perused the case file.
Learned counsel for the appellants vehemently contended that present plaintiffs never appeared in Civil Suit No. 132 of 1993 in court nor engaged any counsel nor filed any written statement and decree dated 1.6.1994 passed in the said suit is result of fraud. Reference in this regard was made to statements of Har Narain plaintiff no. 1 as PW2 and Kaushalaya defendant no. 3 as PW1.
I have carefully considered the aforesaid contention but the same cannot be accepted. Defendant no. 1 appeared as DW4 and supported Regular Second Appeal No. 851 of 2012 -4- his own version. He also examined Mr. Kehar Singh Chauhan, Advocate as DW2 and Mr. A.K. Gupta, Advocate as DW3. They have supported the version of contesting defendant no. 1. Civil suit No. 132 of 1993 was instituted by defendant no. 1 herein through Mr. AK Gupta, Advocate vide plaint Annexure A/3. Mr.AK Gupta has stated accordingly. Written statement Annexure A/4 on behalf of present plaintiffs and defendants no. 2 to 4, who were all defendants in the aforesaid suit was filed through Mr. Kehar Singh Chauhan. He has stated that defendants of the said suit i.e. present plaintiffs and defendants no. 2 to 4 have signed and thumb marked the written statement after admitting its contents to be correct. Consequently, it cannot be said that the decree dated 1.6.1994 in the said suit was obtained by fraud. Self serving statements of plaintiff no. 1 and defendant no. 3 in this regard are not sufficient to prove the alleged fraud. On the contrary, their statements stand rebutted by the sworn testimony of Mr. Kehar Singh Chauhan, DW2. Mr. Chauhan has no personal interest in the matter. There is no allegation against him even by the present plaintiffs or defendants no. 2 to 4. Consequently, there is no reason to discard or disbelieve the sworn statement of Mr. Kehar Singh Chauhan, Advocate. Present plaintiffs and defendants no. 2 to 4, who were defendants in suit no. 132 of 1993, filed their written statement Annexure A/4 admitting the claim of present defendant no.1 who was plaintiff in that suit. However, later on, Regular Second Appeal No. 851 of 2012 -5- all the defendants in the said suit were proceeded ex parte. The trial court in that suit even recorded ex parte evidence of present defendant no. 1 who was plaintiff in that suit and thereafter said suit was decreed. Coupled with admission in written statement, ex parte evidence of present defendant no. 1 (plaintiff in the said suit) was found sufficient to decree the said suit. In the instant second suit, court cannot go into the question whether decree dated 1.6.1994 was passed on correct or wrong facts. Such adjudication is barred by principle of resjudicata. However, decree dated 1.6.1994 could be set aside on the ground of fraud. Plaintiffs have, however, miserably failed to prove the alleged fraud. Even in civil cases, fraud is required to be proved beyond reasonable doubt just like a criminal charge. In the instant case, however, not to talk of proving the alleged fraud beyond reasonable doubt, the plaintiffs have even failed to establish the alleged fraud by preponderance of evidence. Evidence of defendant no. 1 far out weighs the evidence led by the plaintiffs.
It may be added that plaintiffs had obtained consent decree dated 21.4.1981 against their father Aaram without impleading defendant no. 1, another son of Aaram, and also without impleading defendants no. 2 to 4 (daughters of Aaram), although the said decree was based on alleged family settlement adversely affecting the rights of the present defendants. On the contrary, defendant no. 1 filed suit no. 132 of 1993 by impleading all Regular Second Appeal No. 851 of 2012 -6- necessary parties i.e. plaintiffs and defendants no. 2 to 4 herein.
There is concurrent finding of both the courts below to non-suit the plaintiffs holding that alleged fraud is not proved. Said finding is fully justified by the evidence on record and is not shown to be perverse or illegal nor based on misreading or misappreciation of evidence. Consequently, the said finding does not call for interference in exercise of second appellate jurisdiction. No question of law much less substantial question of of law arises for adjudication in this second appeal. The appeal is meritless and is, therefore, dismissed in limine.
( L.N. Mittal )
March 05, 2012 Judge
'dalbir '