Punjab-Haryana High Court
Bimla Devi Alias Buri vs Laxmi Narain And Others on 27 May, 2010
Author: L.N. Mittal
Bench: L.N. Mittal
Regular Second Appeal No. 2191 of 2010 -1-
IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH
Regular Second Appeal No. 2191 of 2010
Date of decision : May 27, 2010
Bimla Devi alias Buri
....Appellant
versus
Laxmi Narain and others
....Respondents
Coram: Hon'ble Mr. Justice L.N. Mittal
Present : Mr. Ravinder Malik, Advocate, for the appellant
L.N. Mittal, J. (Oral)
This is second appeal by Bimla Devi legal representative of original defendant Badri Parshad having remained unsuccessful in both the courts below.
Respondents filed suit against Badri Parshad alleging that plaintiffs are owners in possession of 1/3rd share of land measuring 38 kanals 4 marlas. The defendant who was first cousin of the plaintiffs was Lambardar of the village whereas plaintiffs are illiterate and rustic villagers. The plaintiffs reposed faith in the defendant. In September or October, 1988 the defendant brought the plaintiffs to court complex for execution of some documents for taking loan from bank. Defendant was to take the loan by mortgaging land with bank. At the instance of defendant, plaintiffs Regular Second Appeal No. 2191 of 2010 -2- signed some papers being co-sharers in the land for getting loan sanctioned. However, fraudulently the signed papers were converted into proceedings of a suit resulting in passing of consent decree dated 15.10.1988 regarding share of the plaintiffs in the suit land in favour of defendant. The plaintiffs have challenged the said decree in the suit seeking declaration that they are joint owners in possession of the suit land to the extent of 1/3rd share.
The defendant controverted the allegations of the plaintiffs and pleaded that the plaintiffs who were defendants in the previous suit voluntarily suffered consent decree dated 15.10.1988 by filing written statement admitting the claim of the defendant who was plaintiff in the previous suit. The said decree was voluntarily suffered on the basis of family settlement.
Learned Additional Civil Judge (Senior Division), Mohindergarh vide judgment and decree dated 25.7.2006 decreed the plaintiffs suit. First appeal preferred by the defendant has been dismissed by learned Additional District Judge, Narnaul vide judgment and decree dated 29.3.2010. Feeling aggrieved, legal representative of defendant has preferred the instant second appeal.
I have heard learned counsel for the appellant and perused the case file.
Learned counsel for the appellant vehemently contended that the defendant was first cousin of the plaintiffs and therefore, there could be a valid family settlement between the parties and consequently, consent decree dated 15.10.1988 based on family settlement is not vitiated. Reliance in support of this contention has been placed on two judgments i.e. Regular Second Appeal No. 2191 of 2010 -3- Krishna Beharilal (dead) by his legal representatives versus Gulabchand and others, AIR 1971 SC 1041 and Bale and others versus Deputy Director of Consolidation and others, AIR 1976 SC 807. However, this contention even if accepted for the sake of arguments would not come to the rescue of the appellant because the consent decree dated 15.10.1988 has been found to have been obtained by fraud and misrepresentation.
Learned counsel for the appellant also relied on a judgment of Hon'ble Supreme Court in the case of Shanti Budhiya Vesta Patel & Ors v. Nirmala Jayprakash Tiwari & Ors., JT 2010(4) SC 196. In that case, there was some development agreement between developer and owner of the property. It was observed that in order to make out a case of fraud or coercion, there must be an express allegation of coercion or fraud and all the material facts in support of such allegations must be laid out in full and with a high degree of precision. In the instant case, the plaintiffs have pleaded the necessary facts regarding their plea of fraud in the passing of consent decree dated 15.10.1988. The plaintiffs have also substantiated their said claim.
It has to be noticed that as a matter of practice when consent decree is passed on the basis of written statement filed by defendant admitting claim of the plaintiff, normally statement of the defendant is also recorded by the court to make sure that the admission of claim of plaintiff by defendant is genuine. In the instant case, however, statement of plaintiffs, who were defendants in the previous suit along with sisters of present defendant was not recorded. This circumstance alone may not Regular Second Appeal No. 2191 of 2010 -4- have been sufficient to uphold the plea of fraud. However, there is also evidence that thumb impressions of sisters of the defendant on the written statement filed in the previous suit had not been affixed by them. The said thumb impressions had been forged. It is a different matter that the defendant's sisters have not challenged the decree but this material circumstance cannot be ignored. It has also come in evidence that written statement on behalf of the plaintiffs who were defendants in the previous suit was prepared on blank signed paper. The said written statement was verified only by one of the sisters of the defendant. However, thumb impressions of the said sister of defendant had not been affixed by her and had been forged. Thus, there was no verification of the said written statement at all. Consequently, it was not a valid written statement in law. Had statement of plaintiffs, who were defendants in the previous suit, been recorded in the court, the position might have been different. So, all the circumstances narrated herein before considered cumulatively along with other circumstances are sufficient to prove that the consent decree dated 15.10.1988 was obtained by fraud. Learned counsel for the appellant relied on a judgment of this Court in the case of Mohinder Kaur & Anr. Versus Kanwal Singh & Ors., 2010(1) Law Herald (P&H) 419. In that case consent decree was not set aside because fraud was not proved. In that case, the plaintiffs had admitted that they had executed power of attorney in favour of their brothers. Plaintiffs made statement in court through their attorneys who were duly identified by Lambardar. Moreover, even plaintiffs themselves appeared in court in the previous suit and admitted the claim of the defendants who were plaintiffs in the previous suit. In view of Regular Second Appeal No. 2191 of 2010 -5- these facts, it was held in that case that the plaintiffs have failed to prove that the decree was obtained by fraud. However, in the instant case, the facts are entirely different as noticed hereinabove. In addition to aforesaid, there is concurrent finding of fact of both the courts below on appreciation of evidence that consent decree dated 15.10.1988 was obtained by fraud. The said finding being based on proper appreciation of evidence cannot be said to be illegal or perverse and therefore, cannot be interfered with in second appeal being finding of fact. First appellate court is the final court to go into the facts. Concurrent finding of fact by both the courts below does not give rise to any question of law much less substantial question of law for determination in the instant second appeal.
For the reasons recorded hereinabove, I find no merit in the instant appeal which is accordingly dismissed in limine.
( L.N. Mittal )
May 27, 2010 Judge
'dalbir'